Opinion
No. CV-06-5001800
September 27, 2007
MEMORANDUM OF DECISION
MOTION TO STRIKE I STATEMENT OF THE CASE
This is an action in damages arising from the murder of the plaintiffs' decedents, Ramona Kendall and her two daughters, by their husband and father, Michael Kendall. The defendants move to strike counts one through six and ten through twelve on the grounds of governmental immunity. The defendants argue that counts seven through nine and thirteen through fifteen are legally insufficient because they fail to plead sufficient facts to prove recklessness. The defendants move to strike count sixteen because it is an indemnification claim that relies on the legal sufficiency of the other counts.
II PLEADINGS
According to the plaintiffs' amended complaint, the murder occurred despite numerous visits by the police over the years to the Kendall residence in response to domestic disputes. (Pl. Amended Compl. ¶ 16.) On their last visit, fifteen days before the murder, Ramona Kendall alleged that her husband had been drinking and had threatened her with a gun. (Pl. Amended Compl. ¶ 19.) As the amended complaint alleges, the police did not find the gun, which was purportedly hidden in the neighbor's barbecue grill, and left the scene without arresting Michael Kendall after directing the neighbors to drive him away from the residence. (Pl. Amended Compl. ¶¶ 21-23.)
III DISCUSSION A MOTION TO STRIKE
"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). See Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998)."The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . to state a claim upon which relief can be granted . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the [pleading] . . . and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); See Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002).
"It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
B COUNTS ONE THROUGH SIX AND TEN THROUGH TWELVE
The defendants challenge the plaintiffs' counts of negligence pursuant to General Statutes § 52-557n on the ground that they are barred by governmental immunity and do not qualify for any of the three exceptions to governmental immunity. Specifically, the defendants contend that the negligent acts alleged by the plaintiffs are discretionary rather than ministerial, and therefore the defendants have immunity. The defendants also argue that none of the three exceptions to governmental immunity apply: (1) their acts did not subject an identifiable person to imminent harm; (2) no statute cited by the plaintiffs explicitly provides a cause of action against the defendants; and (3) their acts did not involve malice, wantonness or intent to injure.
The plaintiffs counter that the defendants must plead governmental immunity as a special defense rather than raise the issue through a motion to strike. The plaintiffs further contend that governmental immunity does not apply because the defendant's duty to arrest was a ministerial duty and not a discretionary act. The ministerial duty is purportedly established by General Statutes § 54-1f(a) and (b), which state that police officers "shall arrest" persons suspected of committing misdemeanors and felonies.
Section 54-1f(a) states in relevant part: "Peace officers . . . shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . ." Section 54-1f(b) states: "Members of the Division of State Police within the Department of Public Safety or of any local police department or any chief inspector or inspector in the Division of Criminal Justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony."
If the court finds that the defendants' actions were discretionary, the plaintiffs alternatively argue that their claims fall under the "identifiable victim/imminent harm" and the "malice/wantonness" exceptions to governmental immunity. For the "identifiable victim/imminent harm" exception, the plaintiffs claim that they are "identifiable victims" of the defendants' actions, which allegedly means the court cannot grant the motion to strike because the "imminent harm" analysis is inherently an issue of fact. If it is proper to consider "imminent harm" on a motion to strike, plaintiffs argue that they faced imminent harm because they were endangered within a reasonable time and geographic distance from the defendants' acts. For the "malice/wantonness" exception, the plaintiffs rely on their allegations in their recklessness counts to satisfy the exception.
Special Defense v. Motion to Strike
"[G]overnmental 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] . . . 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). It is clear from the plaintiffs' complaint that the defendants were performing the governmental function of law enforcement when the alleged acts and omissions occurred. The defendants may raise the issue of governmental immunity through a motion to strike.
Governmental Immunity
"Notwithstanding the procedural posture of a motion to strike, [the Connecticut Supreme] [C]ourt has approved the practice of deciding the issue of governmental immunity as a matter of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "To sustain a cause of action, the court must determine whether the defendant owed a duty to the plaintiff's decedent . . . and the applicable standard of care . . . The existence of a duty is a question of law . . . Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Citations omitted; internal quotation marks omitted.) Id., 171.
Discretionary v. Ministerial
"The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides that `[e]xcept as otherwise provided by law, a political sub-division of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . .' Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by `negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.'" Violano v. Fernandez, supra, 280 Conn. 320.
"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 . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Id., 318.
"[I]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . [T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city . . . The deployment of officers is particularly a governmental function . . . We conclude that the general deployment of police officers is a discretionary governmental action as a matter of law." (Citations omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180.
"Superior Court[s] ha[ve] . . . determined that [t]he investigation of crimes and the decisions to make arrests for them is clearly a discretionary rather than a ministerial function." (Internal quotation marks omitted.) Escobales v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 06 4009470 (May 5, 2006, Shapiro, J.) ( 41 Conn. L. Rptr. 351), quoting Skrobacz v. Sweeney, 49 Conn.Sup. 15, 32, 858 A.2d 899 (2003); see also Mikita v. Barre, Superior Court, judicial district of New Haven, Docket No. CV 99 0430564 (May 22, 2001, Munro, J.); Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0147192 (January 2, 2001, DAndrea, J) ( 28 Conn. L. Rptr. 671); Elinsky v. Marlene, Superior Court, judicial district of Hartford, Docket No. CV 96 0557659 (October 31, 1997, Hale, J.T.R.); Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 88 253464 (June 4, 1993, Fuller, J.) [ 9 Conn. L. Rptr. 202] (specifically holding that an officer's decision to arrest is discretionary).
The plaintiffs' amended complaint contains numerous allegations regarding the failures of the East Hartford police department and its individual police officers. The allegations directed at East Hartford state that the police department failed, inter alia, to supervise and train its officers, to implement proper procedures, to provide sufficient personnel and to respond appropriately to Ramona Kendall's complaints. (Pl. Amended Compl. ¶ 33a-d). The allegations directed at the individual police officers state, inter alia, that they failed to investigate properly, to pursue criminal charges, to arrest Michael Kendall, to prepare a proper police report, to obtain a search warrant for the alleged gun, to determine that Kendall was ordered by the court to vacate the residence on the date of the murder and to periodically check on the safety of the plaintiffs' decedents. (Pl. Amended Compl. ¶¶ 22, 33d-m).
Police officers do not have a ministerial duty to arrest pursuant to General Statutes § 54-1f. The plaintiffs claim that the "will arrest" language in the § 54-1f is mandatory rather permissive and therefore creates a ministerial duty to arrest when officers have "probable cause" or receive "speedy information" from others. Regardless of whether "will arrest" is mandatory or permissive, police officers must determine whether "probable cause" or "speedy information" exists before a duty to arrest possibly can arise, and that determination is inherently discretionary: "Decisions regarding the scope of an investigation — whether probable cause for an arrest exists, whether information is speedy or not . . . all require a municipal police officer to employ wide discretion and to exercise judgment." Florence v. Plainfield, 50 Conn.Sup. 1, 7-8, 909 A.2d 587 (2006) (holding that General Statutes § 46b-38b, which states that officers "shall arrest" suspects of family violence crimes upon, inter alia, speedy information, is discretionary for the purposes of governmental immunity). All of the allegations regarding the police department and its officers are discretionary duties.
Exceptions to Governmental Immunity
"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 . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed 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. 319-20. The plaintiffs contend that the first and the third exceptions apply to the present case.
Malice/Wantonness/Intent to Injure
This exception to governmental immunity does not apply for the same reasons set forth in the analysis below for the plaintiffs' claims of recklessness.
Imminent Harm
"The imminent harm exception to discretionary act immunity applies 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 . . . By its own terms, this test requires three things: (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." (Citation omitted; internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329. "[T]his exception . . . has received very limited recognition in this state . . . 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." (Citation omitted; internal quotation marks omitted.) Id. Whether a plaintiff was subject to imminent harm is a question of law for the court because the exception determines the existence of a duty of care. Doe v. Petersen, 279 Conn. 607, 621, 903 A.2d 191 (2006).
This disposes of the plaintiffs' argument that the "imminent harm" exception is inherently an issue of fact that cannot be decided on a motion to strike.
The imminent harm exception applies where "the danger involved a limited time period and limited geographical area . . . [and] the risk of harm was significant and foreseeable . . ." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 331. If "[t]he risks of [harm] implicates a wide range of factors that can occur, if at all, at some unspecified time in the future," the exception does not apply. (Internal quotation marks omitted.) Id., 330, quoting Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989).
In an analogous case, Alexander v. Vernon, Superior Court, judicial district of Tolland, Docket No. CV X07 020078935 (May 3, 2004, Sferrazza, J.), the decedent was murdered by her husband two days after the municipal police investigated her domestic violence claim. Id. At the time of the investigation on February 12, 2000, the police, after hearing conflicting accounts of physical abuse, did not arrest either party but told them that they would check with the Attorney General's office regarding arrest warrants for both. Id. On February 13, the decedent telephoned the police to report that her husband had destroyed property within the home. Id. When the officers arrived to investigate, the decedent told them that her husband had fled to Maryland. The officers told her they would seek an arrest warrant for the husband. Id. On February 14, the husband killed the decedent while she was staying at her mother-in-law's residence. Id. On the basis of these facts, the court did not find imminent harm: "Here, the claimed risk can only be that, at some unspecified date after [the decedent] departed her residence, her husband would track her down and kill her. This is a risk which might be realized, if at all, at some future unknown time and place and, therefore, cannot give rise to the imminent harm to an identifiable person exemption to qualified governmental immunity." Id.
Both Alexander and the present case are distinguishable from CT Page 16255 Peters v. Greenwich, supra, Superior Court, Docket No. CV 95 0147192. In Peters, the police had specific information as to the future time and place of the intended assault on the victim. Id. In Peters, the police received information from the assailant's sister seventeen days before the attack that the assailant, who lived out-of-state, intended to return to Connecticut on July 19, 1993 to seek retribution on the victim. Id. The victim was killed on August 5, 1993 at his home in Greenwich. Id. In finding that imminent harm existed, the court held that "the plaintiff sufficiently alleges a foreseeable dangerous condition that was limited in duration, to the period in which [the assailant] had returned to Connecticut at the end of July 1993 to `get on with the retribution,' and limited in geographic scope, to the location of the [victim] in relation to the location of the [assailant] in Greenwich, Connecticut." Id.
In the present case, as in Alexander, the police had no information regarding when or where in the future the plaintiff's decedents would be murdered by Kendall, if at all. The plaintiffs do not allege any facts suggesting that the police knew that Kendall would commit murder within a limited time period of their November 28, 2003 investigation. The uncertainty of the murder is underscored by the fact, as alleged by the plaintiffs, that the police knew in October 1998 and March 2001 that Kendall had threatened to kill his wife. (Pl. Amended Compl. ¶¶ 8-9, 14-15). Given that Kendall had not fulfilled his alleged murder threats for more than five years, the police had little reason to believe that imminent harm existed when they investigated in November 2003. The court grants the defendants' motion to strike counts one through six and ten through twelve.
C COUNTS SEVEN THROUGH NINE AND THIRTEEN THROUGH FIFTEEN
In order to determine whether the plaintiff has alleged sufficient facts to support recklessness claims, "[the court] look[s] first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . ." "While [the Supreme Court has] 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. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
In counts seven through nine and thirteen through fifteen, the plaintiffs rely on the same facts to prove recklessness as they alleged for negligence. Those facts, as detailed above, allege numerous failures on the part of the police department and the individual police officers, e.g., the failure to arrest Kendall, the improper investigation of the domestic violence complaints as well as the inadequate training, supervision and deployment of police officers.
"The allegations of inaction and inadequate supervision in this matter fail to reach the level of recklessness or wanton conduct. No [facts are alleged] to support the conclusion that any member of the [police department] disregarded obvious danger and consciously left [the decedents] in a situation where [the assailant] was likely to murder [them]." Alexander v. Vernon, Superior Court, judicial district of Tolland, Docket No. CV X07 020078935 (May 3, 2004, Sferrazza, J.) According to the plaintiff's complaint, the police did not find a gun during their investigation, and they left the scene on November 28, 2003 knowing that Kendall was being transported away from the decedents residence. The murders did not take place until seventeen days later. The court grants the defendants' motion to strike counts seven through nine and thirteen through fifteen.
D COUNT SIXTEEN
In count sixteen, the plaintiffs plead an indemnification claim pursuant to General Statutes § 7-465 against East Hartford for the negligent actions of its police officers as alleged in counts four through six and ten through twelve. "A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification." (Emphasis in original; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). The court strikes count sixteen because the underlying counts were stricken.
IV CONCLUSION AND ORDER
For the above-stated reasons, the motion to strike is granted.