Donald Aitken v. Trine Kroll (2015)

MEMORANDUM OF DECISION (Motion to Strike # 104, Short Calendar, May 4, 2015)

FACTS

The defendant, Trine Kroll, filed the instant motion to strike (# 104), invoking the so-called “Firefighter's rule,” which disallows certain claims made by law enforcement personnel for injuries suffered in the line of duty.   In the complaint the plaintiff alleges the following facts:  The plaintiff Kroll caused a motor vehicle accident when she was operating a motor vehicle while intoxicated.   In the immediate aftermath of the accident, she was unconscious in her locked car, and appeared to have stopped breathing.   In order to rescue her, the plaintiff, Trooper Aitken, while off duty, broke her vehicle window, and suffered from a deep laceration to the tendon of his left hand causing permanent injury and damages.   Trooper Aitken alleges that Kroll's conduct was the proximate cause of his injuries.   Trooper Aitken opposes Kroll's motion on the grounds that under Levandoski v. Cone, 267 Conn. 651, 841 A.2d 208 (2004), the firefighter's rule only applies to premises liability cases.

DISCUSSION

“The function of a motion to strike is to test the legal sufficiency of a pleading;  it admits all facts well pleaded.”  Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 530 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).   Facts alleged in the complaint must be construed in the manner most favorable to sustaining its legal sufficiency.  Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996);  see also Mingachos v. CBS, Inc., 196 Conn. 91, 108–09, 491 A.2d 368 (1985).   Thus, “if facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).   The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly probable under them.  Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311, cert. denied 206 Conn. 803, 535 A.2d 1317 (1987).  “Moreover, ․ [w]hat is necessarily implied in an allegation need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Conn. Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

I

Are Off Duty Troopers Responding to Automobile Accidents off Premises Subject to the “Firefighter's Rule”?

Determining whether an off duty trooper responding to an automobile accident off premises is subject to the “Firefighter's Rule” suitably begins with a review of the rule itself.  “The common-law ‘firefighter's rule’ provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee ․ Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property ‘only the duty not to injure him willfully or wantonly.’  “ (Citation omitted.)   Levandoski v. Cone, supra, 267 Conn. 653–54.   The rule arose in the earlier decisions of Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142 (1959), which first adopted the “firefighter's rule” for Connecticut, and Furstein v. Hill, 218 Conn. 610, 590 A.2d 939 (1991), which extended its reach to police officers.

The defendant has not discussed the Levandoski case where the Connecticut Supreme Court held that the firefighter's rule only applies in premises liability cases and, significantly, all of the cases Kroll cites in support of her proposition pre-date Levandoski, which was decided in 2004.   The plaintiff in Levandoski was a police officer injured on property belonging to a neighbor of the owner of land to which he had initially been directed to respond.  Levandoski v. Cone, supra, 267 Conn. 654, 656.   The Supreme Court rebuffed the neighbor's attempt to invoke the rule as a shield to his own liability.  Id., 654, 664.   The defendant here, of course, is the rescued driver of a motor vehicle on a public highway.

In Levandoski, the court stated that “[t]he common-law firefighter's rule provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee ․ Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him willfully or wantonly.”  (Citation omitted;  internal quotation marks omitted).  Id., 653–54.   There, the defendant, on appeal, argued that the rule should be extended to non-premises liability cases, and the court declined the invitation.  Id. The court provided ample grounds for its declination, including:  a) the firefighter's rule had always been essentially a rule of premises liability, specifically concerning the differing duties of care attaching to an owner when a plaintiff is an invitee or a licensee, and that extension of the rule makes no sense if the defendant is not sued as a landowner;  id., 661–62, and b) because the doctrine rests on the doctrine of assumption of risk, abolished by statute in negligence actions pursuant to General Statutes § 52–572h, “it would be inconsistent with the policy of our general tort law to extend the [firefighter's] rule beyond its present confines.”  Id., 662.   The Levandoski court concluded that “[t]he rule ․ relates specifically to premises liability and defines the duty owed by an owner or occupier of land.”  (Emphasis omitted.)  Id., 664.   Since that decision, “[j]udges of the Superior Court who have applied the firefighter's rule after Levandoski ... have acknowledged that the rule's applicability is limited to premises liability claims.”   Ponteau v. Garrett, Superior Court, judicial district of New Haven, Docket No. CV–12–6029737–S (January 3, 2013, Wilson, J.) (55 Conn. L. Rptr. 280, 282 n.3) (collecting cases).

The elements of a claim sounding in premises liability are:  “(1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect, and (3) that such defect had existed for sufficient length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it.”   (Internal quotation marks omitted.)  Palmieri v. Stop & Shop Co., 103 Conn.App. 121, 123–24, 927 A.2d 371 (2007), citing Cruz v. Drezek, 175 Conn. 230, 238–39, 397 A.2d 1335 (1978).

Trooper Aitken does not plead the existence of a defect on any premises, let alone that such defect caused his injuries.   He pleads instead that Kroll's negligent and/or reckless operation of a motor vehicle created an unreasonable risk of harm to him and she was wholly responsible for creating a situation which she knew or should have known would require an emergency first-responder to rescue her from a medical care emergency.   Because the incident ‘arose from Kroll's negligent and/or reckless operation of a motor vehicle, the complaint invokes numerous violations of our motor vehicle statutes, including General Statutes §§ 14–218;  14–218a;  14–219;  14–222;  14–227a;  14–230;  14–237;  and 14–295.   On its face, this is not a premises case, as the duties of the operator of a motor vehicle, and not an owner of land, are the only duties alleged to have been breached.   Because the allegations in the complaint do not arise from premises liability, under Levandoski, the firefighter's rule is not applicable.

CONCLUSION

For the foregoing reasons, the court finds that the firefighter's rule does not apply to the present allegations.   Consequently, the motion to strike is denied.

THE COURT

CALMAR, J.

Calmar, Harry E., J.