Joanne Miles v. Town of Windham (2015)

ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

MEMORANDUM (Motion to Strike, # 102, Short Calendar, May 11, 2015)

On January 28, 2015, the plaintiff, Joanne Miles, filed a two-count complaint against the defendant, Town of Windham.   The plaintiff alleges the following relevant facts.   The town of Windham was in control and possession of the premises at Industrial Park Drive in North Windham, Connecticut, where the Windham Dog Pound was located.   On January 21, 2013, at approximately 7:30 a.m., the plaintiff was a volunteer and invitee at the dog pound.   The plaintiff was attempting to fix a metal gate when two dogs began fighting.   The plaintiff attempted to separate the dogs and was bitten several times.

Count one alleges negligence as to the defendant.   Count two alleges strict liability pursuant to General Statutes § 22–357.   In count two, the plaintiff further alleges that the defendant was the owner and keeper of the dogs at the Windham Dog Pound and that the plaintiff was not committing a trespass or tort or teasing, tormenting or abusing the dogs.

On February 13, 2015, the defendant filed a motion to strike count two with a memorandum in support.   The plaintiff filed an objection on March 13, 2015.   The matter was heard at short calendar on May 11, 2015.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “The role of the trial court in

As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because “governmental immunity must be raised as a special defense in the defendant's pleadings ․ Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10–50] ․ The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).   Nonetheless, “there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike.   Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116 n.4, 19 A.3d 640 (2011).

In the defendant's motion to strike, the defendant argues that count two of the plaintiff's complaint is legally insufficient.   The defendant argues that count two should be stricken because the doctrine of municipal immunity bars the plaintiff's claim for strict liability under § 22–357.   The defendant asserts that it is immune from liability unless the legislature has enacted a statute abrogating that immunity.   The defendant contends that there is no explicit exception to municipal immunity in General Statutes § 52–557n that would allow liability for injuries pursuant to § 22–357.

The plaintiff responds that the state legislature specifically enumerated the only defenses to strict liability pursuant to § 22–357.   Those defenses are when the injured person is committing a trespass or another tort or when the injured party was teasing or abusing the dog.   The plaintiff argues that there is no reference to municipal immunity as a defense, and therefore, municipal immunity is inapplicable.

“Section 22–357 imposes strict liability on the owner or keeper of any dog that does damage to the body or property of any person.”  Tryon v. North Branford, 58 Conn.App. 702, 719, 755 A.2d 317 (2000).   The defendant does not dispute that it is the owner and/or keeper of the dog at issue in this case.   Accordingly, this court must decide whether the doctrine of governmental immunity bars the plaintiff's claims for strict liability against the defendant.

“A municipality itself was generally immune from liability for its tortious acts at common law ․ Governmental immunity may, however, be abrogated by statute.   The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities ․ The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity ․ Statutes that abrogate or modify governmental immunity are to be strictly construed ․ This rule of construction stems from the basic principles that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction ․ The court is to go no faster and no further than the legislature has gone ․ A legislative intention not expressed in some appropriate manner has no legal existence.”  (Citations omitted;  internal quotation marks omitted.)  Id., 720.

By way of § 52–557n, the legislature has explicitly limited governmental immunity in certain circumstances.  “Section 52–557n abrogates the common-law rule of governmental immunity and sets forth circumstances in which a municipality is liable for damages to person and property.   These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit and acts which constitute the creation or participation in the creation of a nuisance ․ The section goes on to exclude liability for acts or omissions of any employee or agent which constitute criminal conduct, fraud, actual malice or willful misconduct and negligent acts that involve the exercise of judgment or discretion ․ The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property ․

“Section 52–557n fails to mention any exception to the rule of municipal immunity that would allow liability for injuries pursuant to § 22–357.   The legislature's intent is derived not in what it meant to say, but in what it did say ․ In the absence of explicit language in § 52–557n modifying the common-law rule of governmental immunity for claims of strict liability pursuant to § 22–357, the statute should not be so construed, and [the Appellate Court has declined] to do so.”  (Citations omitted;  internal quotation marks omitted.)  Id., 721–22.  “Section 22–357 creates a cause of action that did not exist at common law and, therefore, it must be strictly construed ․ The purpose of § 22–357 was to abrogate the common-law doctrine of scienter as applied to damage by dogs to person and property, so that liability of the owner or keeper [does not depend] upon his knowledge of the dog's ferocity or mischievous propensity ․ The statute does not provide that governmental immunity shall not be a defense to an action brought under it.”  (Citations omitted;  internal quotation marks omitted.)  Id., 722.

In Tryon v. North Branford, the plaintiff sued for damages for injuries she sustained when she was bitten by a dog owned by a volunteer firefighter for the defendant town while she was in the staging area of a parade.   See id., 704.  “The plaintiff alleged causes of action for strict liability under § 22–357, and common-law negligence and indemnification ․” Id., 705.   The plaintiff alleged claims of strict liability against the volunteer firefighter individually, the municipal defendants, and for indemnification by the municipal defendants for the strict liability of the volunteer firefighter.   See id., 719.   The defendants filed motions for summary judgment arguing that they were entitled to judgment on the basis of governmental immunity.   See id., 705.   The trial court concluded that § 22–357 “does not apply to a municipal employee who is immune from liability for discretionary acts performed in the course of his duties and whose conduct does not fall within any of the exceptions to governmental immunity.”  Id., 706.   The plaintiff appealed on the ground that the trial court improperly concluded that the doctrine of governmental immunity barred the plaintiff's claims alleging strict liability.   See id., 703.

The Appellate Court affirmed the trial court's decision regarding the plaintiff's claims under § 22–357.   The court reasoned that “[o]ne purpose of governmental immunity is to avoid injecting monetary claims of the public alleging harm arising out of the day-to-day operation of discretionary municipal functions ․ Without express statutory language abrogating the doctrine of governmental immunity in order to allow claims of strict liability under § 22–357, we see no reason to disturb the doctrine.   Limited governmental immunity and governmental immunity rest on the principle that governmental acts should be shielded from liability except in discrete instances, whereas strict liability statutes rest on the principle that certain acts, in and of themselves, without proof of anything else, and without proof of any negligence, require liability to arise.   Governmental immunity limits liability, and § 22–357 expands and extends liability.   The dichotomy between these principles militates against our allowing any further intrusion into the doctrine of governmental immunity.”  (Citations omitted.)  Id., 723.   See also LaFave v. Middletown, Superior Court, judicial district of Middlesex, Docket No. CV–14–6012636–S (January 5, 2015, Aurigemma, J.) (granting the defendants' motion to strike and holding that “because § 22–357 does not contain any language abrogating governmental immunity from strict liability under the dog bite statute, [the defendants could not] be held strictly liable”);  Hazelwood v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV–11–6021852–S (July 17, 2013, Sommer, J.) [56 Conn. L. Rptr. 534] (holding that because § 22–357 does not contain language abrogating governmental immunity from strict liability under the dog bite statute, the defendants, the city of Bridgeport and the police officer engaged in the act of handling a police dog in order to control an unruly crowd, cannot be held strictly liable).

In the present case, the same reasoning is applicable.   Count two alleges that the defendant is strictly liable under § 22–357.   However, there is no exception to the rule of municipal immunity that would allow liability for injuries pursuant to § 22–357.   Therefore, the plaintiff's claim alleging strict liability against the defendant town pursuant to § 22–357 is barred by the doctrine of governmental immunity.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion to strike.

THE COURT

Calmar, J.

Calmar, Harry E., J.