Jeffery Glenn v. David Holland, Jr. et al.

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Superior Court of Connecticut.

Jeffery Glenn v. David Holland, Jr. et al.

CV106002593

Decided: November 12, 2010

MEMORANDUM OF DECISION Motion to Strike, # 114

On January 15, 2010, the plaintiff, Jeffrey Glenn, filed a thirteen-count complaint against David Holland, Jr., Gerri Scott, Jayleianna Holland, Michele Kellough, the city of Norwich, Yi Len Wang and Xiu Li Zheng.   The plaintiff alleges, inter alia, that while working as a postal carrier for the United States Postal Service, he was attacked by two pit bull dogs in the vicinity of 24 Harland Place in Norwich.   On April 22, 2010, the plaintiff filed a revised complaint.   Michelle Kellough is identified as the Animal Control Officer for the City of Norwich.   On May 4, 2010, defendants Kellough and Norwich (the defendants) filed the present motion to strike counts seven, eight and nine of the plaintiff's revised complaint with a memorandum of law in support.   The plaintiff has filed an objection to the defendants' motion to strike and a memorandum of law in support.

In count seven of his revised complaint, the plaintiff alleges that Michele Kellough, an animal control officer for Norwich, caused the plaintiff injuries by her recklessness.   The plaintiff alleges that Kellough acted recklessly under General Statutes § 52-557n(b)(7) because she had notice that the two pit bull dogs that allegedly attacked the plaintiff were born, and, although she knew that the parents of the pit bull dogs had been quarantined and she did not require the dogs born to the parents to be registered, vaccinated, monitored or evaluated by a veterinarian.   The plaintiff further alleges that Kellough ignored an “obvious and apparent risk by not investigating the puppies born to parents known to be a threat to public health and safety.”   The plaintiff alleges that as a result, the plaintiff was “viciously attacked and severely injured by the two pit bull dogs born to ferocious parents.”

In count eight, entitled “Endangerment of an Identifiable Victim,” the plaintiff alleges most of the same facts as count seven.   He does not, however, incorporate paragraphs eleven through fifteen of count seven, in which the plaintiff alleges that Kellough acted recklessly.   Instead, count eight adds that the plaintiff's injuries were caused by the conduct of Kellough in that:  (a) “The plaintiff ․ was an identifiable victim in that as a Postal Carrier employed by the United States Postal Service, he was required to come within a close proximity, on a daily basis, of the house in which the violent and ferocious dogs were being kept”;  (b) “It was, or should have been, readily apparent to the defendant that the dogs posed a serious threat of imminent harm to the health and safety of the above mentioned identifiable victim”;  and (c) “It was, or should have been, readily apparent to the defendant that failure to take reasonable precautions to remove or contain the dogs would subject the identifiable victim ․ to the imminent harm detailed above.”

In count nine, which is directed against the city of Norwich, the plaintiff alleges the same conduct as count seven, except that it does not allege that Kellough acted in violation of § 52-557n(b)(7).   Instead, count nine adds that the city of Norwich employed Kellough as an animal control officer, that the plaintiff's injuries were caused by Kellough while she was acting in the performance of her duties and within the scope of her employment, and that Kellough is personally liable to the plaintiff.   Consequently, the plaintiff alleges, Norwich is “liable to payment on behalf of” Kellough pursuant to General Statutes § 7-465.1

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).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id.

“A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”   (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

Generally, 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 ․ Nevertheless, [w]here 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.”  (Citations omitted;  internal quotation marks omitted.)   Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006);  see also Vejseli v. Pasha, 282 Conn. 561, 566 n.6, 923 A.2d 688 (2007).

In support of their motion to strike as to count seven, the defendants raise several arguments.   First they argue that General Statutes § 52-557n(b)(7) 2 does not create a private cause of action for reckless conduct against a municipality or its employee.   The defendants next argue that count seven fails to state a legally sufficient cause of action for common-law recklessness.   They argue that Kellough's alleged knowledge of the behavioral traits of the parents of the pit bull dogs that attacked the plaintiff cannot be imputed to their eight-month-old offspring.

The defendants argue that count eight, entitled “Endangerment of an Identifiable Victim,” must be struck because it is barred by the doctrine of governmental immunity.

The defendants argue that the court should strike count nine for two reasons.   First, they argue that count seven fails to state a legally sufficient claim for recklessness against Kellough, and as such, the claim of indemnification against Norwich under General Statutes § 7-465 must fail.   As an alternative basis for striking count nine, the defendants argue that § 7-465 only applies to negligence claims;  here, the plaintiff pleaded recklessness only.   The defendants also move to strike counts seven, eight and nine on the ground that the plaintiff's claims are barred by the doctrine of governmental immunity.   They contend that Kellough was engaged in a governmental function while performing the alleged acts and omissions.   They maintain that under the facts alleged in the complaint, Kellough did not fail “to perform any function as required by a charter provision, ordinance, regulation, rule, policy, or other directive.   Rather, the complained of acts are discretionary in nature and Kellough, accordingly, is immune from liability under the doctrine of governmental immunity.”  (Defendants' memorandum in support, p. 15.)

The plaintiff counters each of the defendants' arguments in his opposition papers.

Count Seven.   Count seven purports to bring an action against the defendant Michelle Kellough based upon the language of Gen.Stat. § 52-557n(7).   In Futia v. Murdy & Sons, Superior Court, judicial district of New London, Docket No. CV 98 0120949 (March 3, 2003, McLachlan, J.), the court discussed governmental immunity and its relationship to the Gen.Stat. § 52-557n.   The court reasoned:  “plaintiffs seek to rely on General [Statutes] § 52-557n(b)(7) and (8).   Neither of those subsections are intended to create any duty but merely create additional conditional immunity.”  Id. The court finds the reasoning of that decision persuasive.   Thus, § 52-557n(b)(7) does not create a statutory cause of action for recklessness but rather it recognizes that a common-law action for recklessness falls within an exception of the conditional governmental immunity that is created by statute.   Accordingly, as count seven of the plaintiff's revised complaint purports only to set forth a statutory claim for recklessness pursuant to § 52-557n(b)(7), this count fails to set forth a legally sufficient claim and is therefore stricken.3

Count 8. The plaintiff characterizes count 8 as asserting a negligence claim against the defendant Kellough.   Unfortunately it does not allege or describe the conduct of the defendant that it relies upon to establish negligence.   It merely asserts that the defendant had knowledge of the parents of the pit bull puppies, that nine months later the plaintiff was attacked by these dogs and suffered injuries.   Allegations of acts of negligence are essential to support this count.   They are absent.   For this reason Count 8 is stricken.

Count 9. This count asserts the vicarious statutory liability of the defendant City of Norwich pursuant to § 7-465.   As the predicate counts have been stricken, so to must Count 9 be stricken.

The plaintiff counters that his allegations in counts seven and eight are legally sufficient to overcome qualified immunity, and thus, that his allegations in count nine are also sufficient.   The plaintiff counters that the defendants' argument improperly combines counts seven and eight of his complaint, two separate causes of action, which sound in recklessness and imminent harm to an identifiable victim,4 respectively.   Accordingly, the plaintiff argues that the motion to strike his claim for indemnification pursuant to § 7-465 in count nine must fail.

They argue that § 52-557n(b) merely abrogates Connecticut's sovereign immunity, but does not create an independent cause of action.   They argue that the only case relied upon by the plaintiff in support of the proposition that § 52-557n(b)(7) creates a private right of action for recklessness against a municipal employee, Duffy v. Wallingford, 49 Conn.Sup. 109, 862 A.2d 890 (2004) (Tanzer, J.), a Superior Court decision, was rendered prior to the Supreme Court's decision in Martel v. Metropolitan District Commission, 275 Conn. 38, 881 A.2d 194 (2005), in which, according to the defendants, the Supreme Court “flatly rejected the proposition.”  (Defendant's reply memorandum, p. 3.) They contend that Martel, therefore, overruled Duffy.

In response, the plaintiff argues that § 52-557n(b)(7) allows actions to be brought against municipalities and their employees when their alleged actions constitute a reckless disregard for health or safety.   Specifically, he argues that the language “unless ․ reckless disregard for health and safety” serves as an exception to the statute's limitations on municipal liability and therefore creates a private cause of action against a municipal employee or a municipality, and notes that Martel dealt with subdivision (4) of § 52-557n(b), not subdivision (7), the provision at issue in this case.   He notes that there is no exception under subdivision (4) for recklessness, whereas subdivision (7) does reference recklessness.   He also notes that Martel involved a negligence claim, not recklessness, and argues that Duffy has not been overruled.

They assert that merely alleging recklessness is inadequate and that the complaint must contain specific allegations setting out the conduct claimed to be reckless.   They argue that the facts alleged by the plaintiff support only a claim of negligence as the facts set forth fail to show that Kellough consciously disregarded the consequences of her acts.

The plaintiff did not respond to the defendants' argument until his final reply memorandum.   There, he counters that his revised complaint complies with the requirements for alleging common-law recklessness.   In support of this argument, he merely resubmits his initial allegations.

Moreover, they contend that none of the exceptions to governmental immunity apply, in particular, the identifiable person, imminent harm exception.   They note that the only cognizable class of foreseeable victims recognized by the Supreme Court is schoolchildren who are statutorily compelled to attend school during school hours.   They argue that the rationale behind recognizing that class of foreseeable victims does not apply to the present case.   Further, the defendants argue that even if the plaintiff was “identifiable,” he has not alleged that he was identifiable as a potential victim of a specific imminent harm or that it was apparent to Kellough that her conduct was likely to subject him to that harm.   They note that the plaintiff has not alleged any facts to demonstrate that Kellough would have had any knowledge of the subject pit bulls' violent propensities.   The plaintiff merely alleges that Kellough knew that the parents of the pit bull dogs had been violent and that the pit bull dogs at issue had been born.

The plaintiff does not dispute that the acts complained of are discretionary, but argues that the identifiable person, imminent harm exception applies.   He contends that because his job as a postal carrier required him to be at the property of the dog owner on a daily basis, and because Kellough knew that the parents of the dogs were violent and that failing to monitor the dogs would subject the plaintiff to attack by these dogs, the plaintiff comes within a cognizable class of foreseeable victims for purposes of the exception.   He further argues that he was intended to be a beneficiary of the duty imposed on the city to quarantine dangerous dogs and “the plaintiff was required to deliver the mail by Federal law through his employment with the Federal government.   As a matter of public policy, the need to deliver mail is paramount.”   Accordingly, he argues, the motion to strike should be denied.

Section 52-557n(b) provides that a governmental actor “shall not be liable for damages to person or property ․” Generally, it sets forth exceptions to municipal liability.  Elliot v. Waterbury, 245 Conn. 385, 395, 715 A.2d 27 (1998).   As noted by the defendants, § 52-557n(b)(4) has specifically been found not to provide an independent cause of action against a municipality.   Martel v. Metropolitan District Commission, supra, 275 Conn. 46.   Moreover, Martel involved claims of negligence, not recklessness.   Subdivision (7) of § 52-557n(b) reads differently than subdivision (4).   Like subdivision (4), it contains a general exception to municipal liability, but limits that exception where “such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety ․” At least one judge of the Superior Court impliedly treated § 52-557n(b)(7) as creating an independent cause of action, but the issue of whether that subdivision creates an independent cause of action was not before the court.   See Duffy v. Wallingford, supra, 49 Conn.Sup. 118-20.

One Superior Court decision, however, did address this issue.   The defendants next argue that the court should strike counts seven, eight and nine of the plaintiff's revised complaint on the ground that they are barred by the doctrine of governmental immunity.   As count seven is already stricken for the reasons discussed above, the court will consider only whether counts eight and nine should be stricken on this ground.5  “Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ․ Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.”  (Internal quotation marks omitted.)  Violano v. Fernandez, supra, 280 Conn. 318.  “There are three exceptions to discretionary act immunity.   Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity-to encourage municipal officers to exercise judgment-has no force.”  (Internal quotation marks omitted.)  Id., 319.

One of the three exceptions where “liability may be imposed [is] when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․” (Internal quotation marks omitted.)  Violano v. Fernandez, supra, 280 Conn. 320.   For this exception to apply, three requirements must be satisfied:  “(1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”  (Internal quotation marks omitted.)  Benedict v. Norfolk, 296 Conn. 518, 519 n.1, 997 A.2d 449 (2010).  “If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.”  (Internal quotation marks omitted.)  Id.

“Imminent [harm] does not simply mean a foreseeable event at some unspecified point in the not too distant future.   Rather, we have required plaintiffs to identify a discrete place and time period at which the harm will occur.   [R]ecent decisions focus on the government actors' specific awareness of the imminent harm at issue, and further illustrate the very limited recognition in this state accorded to the identifiable person, imminent harm exception.”   (Internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 314, 999 A.2d 700 (2010).  “With respect to the identifiable person element ․ [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care.”  (Internal quotation marks omitted.)  Grady v. Somers, supra, 294 Conn. 350-51.

Our Supreme Court has narrowly interpreted the identifiable person, imminent harm exception.  “The only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours.   In determining that such schoolchildren were within such a class, we focused on the following facts:  they were intended to be the beneficiaries of particular duties of care imposed by law on school officials;  they were legally required to attend school rather than being there voluntarily;  their parents were thus statutorily required to relinquish their custody to those officials during those hours;  and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions.”  (Internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 107, 931 A.2d 859 (2007).

The plaintiff does not dispute that the acts he complains of in count eight were discretionary.   Rather, he asserts that the “identifiable person, imminent harm” exception applies, thereby abrogating the defendants' governmental immunity.   In count eight of his revised complaint, the plaintiff alleges the three requirements for this exception to apply.   These are, however, legal conclusions.   The plaintiff must also allege facts to support these legal conclusions.   He has not alleged facts demonstrating that he was either subject to imminent harm or was an identifiable person.

First, the plaintiff fails to allege facts that demonstrate that the defendants had specific awareness of the alleged imminent harm.   The only awareness that the plaintiff alleges is that the defendant Kellough knew that the parents of the dogs at issue had vicious propensities.   The plaintiff alleges no facts that indicate that Kellough knew or should have known that the dogs at issue were vicious or dangerous, or that they could escape and attack the plaintiff.   While the plaintiff may be able to identify a discrete place (24 Harland Place in Norwich) and a time period where the harm might occur (each day when the plaintiff delivered mail), he does not allege that the defendant Kellough had any specific awareness that any harm was imminent or would occur at all.

Moreover, the plaintiff has failed to allege facts demonstrating that he was an identifiable person.   The facts alleged in this case are dissimilar to those of the only case in which a Connecticut court has applied this exception to an identifiable “class” of victims.   See Durrant v. Board of Education, supra, 284 Conn. 91.   First, a postal carrier is not the intended beneficiary of a particular duty of care imposed on an animal control officer.   The plaintiff alleges that he was an intended beneficiary because his employment required him to be present at the property at issue.   This is far too attenuated;  as an animal control officer, Kellough has nothing to do with the plaintiff's work assignments.   Second, although a postal carrier may occasionally be required to enter upon private premises in the course of his employment, he is not statutorily required to be there.   Thus, where his voluntary employment takes him is not analogous to the statutory mandate of schoolchildren attending school.   Last, a postal carrier is not analogous to a child requiring special consideration in the face of dangerous conditions.   Rather, the plaintiff is an adult, capable of discerning dangers.   The defendants did not owe the plaintiff a duty of care because he was not an identifiable victim for purposes of the identifiable person, imminent harm exception.

The identifiable person, imminent harm exception to governmental immunity does not apply to the claim alleged in count eight.   Thus, the defendants are entitled to governmental immunity for their discretionary acts.   Accordingly, the defendants' motion to strike count eight of the plaintiff's revised complaint is granted on this ground.

The defendants last argue that the court should strike count nine of the plaintiff's revised complaint because it sounds only in recklessness, and indemnification under § 7-465 is unavailable for such claims.  “The plain and unambiguous language of § 7-465 provides that a municipality is not obligated to pay damages if the employee was acting in a wilful or wanton manner.”  West Haven v. Hartford Ins. Co., 221 Conn. 149, 156, 602 A.2d 988 (1992).   Wilful, wanton and reckless are synonyms.   See Saunders v. Firtel, supra, 293 Conn. 532.

In count seven of his revised complaint, the plaintiff alleges that the defendant Kellough acted recklessly.   The plaintiff incorporates these allegations in count nine against the defendant Norwich seeking indemnification.   Accordingly, as § 7-465 does not provide for indemnification for reckless conduct, count nine is legally insufficient and is stricken.

CONCLUSION

For the foregoing reasons, the defendants' motion to strike counts seven, eight and nine of the plaintiff's revised complaint is hereby granted.

The Court

Cosgrove, J.

FOOTNOTES

FN1. General Statutes § 7-465 provides in relevant part:  “(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ․ and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ․ for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty ․ Governmental immunity shall not be a defense in any action brought under this section ․ As used in this section, ‘employee’ includes (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board, and (2) a member of the local emergency planning committee from such municipality appointed pursuant to section 22a-601 ․”.  FN1. General Statutes § 7-465 provides in relevant part:  “(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ․ and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ․ for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty ․ Governmental immunity shall not be a defense in any action brought under this section ․ As used in this section, ‘employee’ includes (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board, and (2) a member of the local emergency planning committee from such municipality appointed pursuant to section 22a-601 ․”

FN2. General Statutes § 52-557n provides in relevant part:  “(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, offices or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from:  ․ (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety ․”.  FN2. General Statutes § 52-557n provides in relevant part:  “(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, offices or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from:  ․ (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety ․”

FN3. Count seven of the plaintiff's revised complaint does not sound in common-law recklessness.   Indeed, the defendants argued that the plaintiff's complaint failed to state a legally sufficient cause of action for common-law recklessness in their memorandum in support of their motion to strike, and the plaintiff failed to reply to this argument.   Not until the plaintiff's reply memorandum did the plaintiff suggest that count seven alleged a cause of action for common-law recklessness.   Even then, the plaintiff did not raise any arguments in favor of this position, but merely restated his initial allegations.   Thus, the court only treats count seven as involving a claim of statutory recklessness..  FN3. Count seven of the plaintiff's revised complaint does not sound in common-law recklessness.   Indeed, the defendants argued that the plaintiff's complaint failed to state a legally sufficient cause of action for common-law recklessness in their memorandum in support of their motion to strike, and the plaintiff failed to reply to this argument.   Not until the plaintiff's reply memorandum did the plaintiff suggest that count seven alleged a cause of action for common-law recklessness.   Even then, the plaintiff did not raise any arguments in favor of this position, but merely restated his initial allegations.   Thus, the court only treats count seven as involving a claim of statutory recklessness.

FN4. In his memorandum of law in reply to the defendants' reply, the plaintiff characterizes his claims in count eight as alleging “that the plaintiff was an identifiable victim” and that he “was subject to the imminent harm exception to the employee's qualified immunity.”   Although the plaintiff does not explicitly characterize his claim in count eight as a negligence claim, he states the final sentence of this section of his memorandum that “[a]s such, at least as to Count Eight, the City's claim for striking its negligence must fail.”   He also asserts that the allegations in count eight incorporate the language of Grady v. Somers, 294 Conn. 324, 984 A.2d 684 (2009), which concluded that “the identifiable person, imminent harm exception to employees' qualified immunity applies to the immunity afforded to municipalities for the negligent performance of discretionary acts under § 52-557n(a)(2)(B).”  (Emphasis added.)   Id., 349.   From this argument, it could be inferred that the plaintiff views count eight as a negligence claim.   He fails, however, to clearly explain the nature of his claim in count eight in any of his pleadings.   In the revised complaint, he refers to the claim as “Endangerment of an Identifiable Victim.”   The terms “negligence” or “recklessness” do not appear in count eight..  FN4. In his memorandum of law in reply to the defendants' reply, the plaintiff characterizes his claims in count eight as alleging “that the plaintiff was an identifiable victim” and that he “was subject to the imminent harm exception to the employee's qualified immunity.”   Although the plaintiff does not explicitly characterize his claim in count eight as a negligence claim, he states the final sentence of this section of his memorandum that “[a]s such, at least as to Count Eight, the City's claim for striking its negligence must fail.”   He also asserts that the allegations in count eight incorporate the language of Grady v. Somers, 294 Conn. 324, 984 A.2d 684 (2009), which concluded that “the identifiable person, imminent harm exception to employees' qualified immunity applies to the immunity afforded to municipalities for the negligent performance of discretionary acts under § 52-557n(a)(2)(B).”  (Emphasis added.)   Id., 349.   From this argument, it could be inferred that the plaintiff views count eight as a negligence claim.   He fails, however, to clearly explain the nature of his claim in count eight in any of his pleadings.   In the revised complaint, he refers to the claim as “Endangerment of an Identifiable Victim.”   The terms “negligence” or “recklessness” do not appear in count eight.

FN5. Count seven, in which the plaintiff alleges recklessness, would not be barred by the doctrine of governmental immunity.   In addition to the statutory abrogation of immunity for recklessness set forth in § 52-557n(b)(7), a common-law exception to governmental immunity is that “liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.”  (Internal quotation marks omitted.)  Soderlund v. Merrigan, 110 Conn.App. 389, 395-96, 955 A.2d 107 (2008).   A claim of recklessness falls within this exception.   “While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.”  Saunders v. Firtel, 293 Conn. 515, 532, 978 A.2d 487 (2009).   Thus, reckless and wanton are synonyms, and a claim of recklessness falls within this second exception to governmental immunity.   As count seven purports only to set forth a claim of statutory recklessness, the court need not address the issue of whether the facts alleged therein would support a common-law recklessness claim..  FN5. Count seven, in which the plaintiff alleges recklessness, would not be barred by the doctrine of governmental immunity.   In addition to the statutory abrogation of immunity for recklessness set forth in § 52-557n(b)(7), a common-law exception to governmental immunity is that “liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.”  (Internal quotation marks omitted.)  Soderlund v. Merrigan, 110 Conn.App. 389, 395-96, 955 A.2d 107 (2008).   A claim of recklessness falls within this exception.   “While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.”  Saunders v. Firtel, 293 Conn. 515, 532, 978 A.2d 487 (2009).   Thus, reckless and wanton are synonyms, and a claim of recklessness falls within this second exception to governmental immunity.   As count seven purports only to set forth a claim of statutory recklessness, the court need not address the issue of whether the facts alleged therein would support a common-law recklessness claim.

Cosgrove, Emmet L., J.