Opinion
No. CV06-5002138 S
File Date: February 23, 2007
MEMORANDUM OF DECISION
FACTS
On February 21, 2006, the plaintiffs filed a complaint against the defendants, alleging interference with the plaintiffs' business relations. The plaintiff, Blackhawk Security Services Inc. (Blackhawk), is a corporation engaged in the business of providing certified flaggers to construction sites in the state of Connecticut. The plaintiff, Richard Verrill, is the president and sole shareholder of Blackhawk. The defendants, Robert Nolan and Jack Kennelly, are, respectively, the former and current chief of police in Hamden, Connecticut. In the complaint, the plaintiffs allege that during the defendants' respective tenures as chief of police, a de facto policy and/or custom and practice was adopted that provided police officers the exclusive right to provide flagging services to construction and utility maintenance sites within Hamden. This allegedly has interfered with the plaintiffs' ability to conduct business relations in Hamden, causing a substantial financial loss to both plaintiffs.
On March 29, 2006, the defendants filed an answer with special defenses which was later amended on June 30, 2006. The first special defense alleges that the defendants are entitled to legislative immunity and the second special defense alleges that the defendants are entitled to governmental immunity. On September 22, 2006, the plaintiffs filed a motion to strike the amended special defenses due to legal insufficiency. The motion was accompanied by a supporting memorandum. On October 6, 2006, the defendants filed a memorandum in opposition arguing that the motion is untimely. The plaintiffs and the defendants also filed a reply memorandum.
DISCUSSION
The court must, first, address the defendants' argument that the motion to strike should be denied as untimely, pursuant to Practice Book § 10-8. The defendants have not addressed the merits of their special defense claims, yet rely wholly on § 10-8 of the rules of practice for timely filing in support of their opposition to the plaintiffs' motion to strike their special defenses. Section 10-8 provides in relevant part: "[S]ubsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the judicial authority thereon if one is required . . ." Practice Book § 10-8.
It is within the court's discretion to accept the motion to strike even if filed outside of the fifteen-day window set forth in § 10-8. Practice Book § 1-8 provides: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
The following chronology is relevant to this issue:
The defendants' second amended answer with special defenses was filed on June 19, 2006. Special defenses must be replied to in order to close the pleadings. See Practice Book 10-6. The plaintiffs did not respond, as required, in a timely manner, and, therefore, the defendants had the opportunity to file a motion for default for failure to plead after the fifteen-day period under § 10-8 had passed on July 6, 2006. See Practice Book § 10-18. Instead, the defendants filed a motion for order of compliance to compel the plaintiffs to respond to the defendants' interrogatories. As a result of the plaintiffs' failure to comply, a judgment of nonsuit was entered against the plaintiffs on July 17, 2006. On September 12, 2006, this court granted the plaintiffs' motion to open the judgment of nonsuit. Within fifteen days of the granting of the motion to open nonsuit, on September 22, 2006, the plaintiffs filed the present motion to strike the defendants' second amended special defenses. On October 6, 2006, the defendants filed a motion for default for failure to plead. This motion, currently pending before the court, is based on the plaintiffs' failure to respond within fifteen days to the defendants' second amended special defenses, filed on June 19, 2006.
Practice Book 10-6 provides: "The order of pleading shall be as follows:
(1) The plaintiff's complaint.
(2) The defendant's motion to dismiss the complaint.
(3) The defendant's request to revise the complaint.
(4) The defendant's motion to strike the complaint.
(5) The defendant's answer (including any special defenses) to the complaint.
(6) The plaintiff's request to revise the defendant's answer.
(7) The plaintiff's motion to strike the defendant's answer.
(8) The plaintiff's reply to any special defenses."
Practice Book 10-18 provides: "Parties failing to plead according to the rules and orders of the judicial authority may be nonsuited or defaulted, as the case may be."
The court finds based upon the Practice Book provisions and the fact that the defendants now. The interests of justice and judicial efficiency are better served if the issues raised in the motion to strike are addressed at this time.
The court has with care considered the aforementioned and concludes that issues raised in the motion to strike should for reasons of judicial efficiency and in the interest of justice, be addressed now. The defendants' request to deny the plaintiffs' motion to strike due to untimely filing pursuant to Practice Book § 10-8 is denied.
Turning next to the argument posed by the plaintiffs in their memorandum of law in support of the motion to strike, the court must determine the legal sufficiency of the defendants' special defenses. Practice Book § 10-39 provides in relevant part:
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike . . ." The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999). "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
"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." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Consequently, if the allegations of the defendants' special defense are legally sufficient, the motion to strike should not be granted. See Doe v. Yale University, 252 Conn. 641, 684, 748 A.2d 834 (2000).
First Special Defense — Legislative Immunity
In their first special defense, the defendants allege that by enforcing a presumptively valid legislative enactment, Hamden Ordinance § 97.03, they engaged in legislative activity for which they are entitled to legislative immunity as to all of the plaintiffs' claim. In their complaint, the plaintiffs allege that the Hamden ordinance provides "that the Chief of Police would determine under which circumstances a police officer would be required at a construction or utility work site either on or adjacent to a public highway." The plaintiffs argue that the special defense alleging legislative immunity should be stricken because the defendants have not alleged any acts that would qualify as legislative in nature.
"Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity . . . Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it . . . [ Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966 (1998)]" (Internal quotation marks omitted.) Avalonbay Communities, Inc. v. Orange, Superior Court, judicial district of Ansonia/Milford, Docket No. CV 99 065826 (February 9, 2000, Curran, J.). "The doctrine . . . is meant to protect individuals acting within the bounds of their legislative duties not the governing bodies on which they serve." (Internal quotation marks omitted.) Anonymous v. Connecticut Bar Examining Committee, Superior Court, judicial district of Hartford, Docket No. CV 940534160 (August 17, 1995, Corradino, J.) ( 15 Conn. L. Rptr. 218).
When Connecticut courts have recognized legislative immunity, it has been for members of the legislature, or individuals performing a quasi-legislative function. See e.g., Rustici v. Malloy, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 97 0164460 (July 1, 2004, Schuman, J.) (finding that the defendant's role in preparing and submitting a budget as mayor of Stamford, entitles him to absolute legislative immunity for claims arising out of that role); Avalonbay Communities, Inc. v. Orange, supra, Superior Court, Docket No. CV 99 065826 (First Selectmen entitled to legislative immunity for actions conducted in his official capacity).
While a chief of police is a municipal officer, the position does not involve any degree of legislative authority or involvement in the legislative process. Absent such legislative activity, the defendants have failed to sufficiently assert a defense of legislative immunity. A police officer enforcing a city ordinance is not engaging in legislative activity. The plaintiffs' motion to strike the first special defense is granted.
Second Special Defense — Governmental Immunity.
In their second special defense, the defendants allege that Hamden Ordinance § 97.03 grants discretion to the chief of police to decide whether a police officer, rather than a private flagger, should be present at construction or work sites. The defendants further allege that even if it is determined that discretion was not exercised on a case-by-case basis, the defendants' decision not to exercise discretion in a given situation was itself an exercise of discretion. As a result, the defendants allege that they are entitled to governmental immunity both at common law and pursuant to General Statutes § 52-557n. In their memorandum in support of their motion to strike this second special defense, the plaintiffs argue that they have alleged an intentional tort, the tortious interference with a business expectancy, and neither form of governmental immunity, common or statutory, would provide the defendants with protection from liability for their claim.
Common-Law Governmental Immunity
"The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . 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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). In the present case, the defendants determined whether police officers, not flaggers, were required at a construction or utility site in Hamden. The defendants' acts pursuant to Hamden Ordinance § 97.03 were a discretionary, not a ministerial, function. The defendants are therefore entitled to governmental immunity for these discretionary acts, absent the application of an exception to such immunity under the common law.
The plaintiffs' argument against the applicability of governmental immunity is not whether the act typically would qualify for the immunity afforded governmental employees performing a discretionary function, but whether the defendants' acts fall under an exception to governmental immunity. Jurisprudence has carved out three exceptions to common-law governmental immunity, one of which is relevant to the present case. Governmental immunity does not apply to a discretionary act when "the alleged conduct involves malice, wantonness or intent to injure, rather than negligence." Martel v. Metropolitan District Commission, 275 Conn. 38, 49 n. 7, 881 A.2d 194 (2005). The plaintiffs argue that the defendants' second special defense of governmental immunity should be stricken because tortious interference with a business expectancy is an intentional tort that falls within this exception to governmental immunity.
Consideration of the prima facie elements of the cause of action for tortious interference with a business expectancy is necessary to determine if the specific intent required would bring this intentional tort under the exception to governmental immunity for malicious acts. As a preliminary matter, however, it should be noted that "not every act that disturbs a contract or business expectancy is actionable." (Internal quotation marks omitted.) Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535-36, 546 A.2d 216 (1988). "[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss." (Emphasis added.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32-33, 761 A.2d 1268 (2000). "[F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously." (Internal quotation marks omitted.) Robert S. Weiss Associates, Inc. v. Wiederlight, supra, 536. "[T]he plaintiff [is required] to plead and prove at least some improper motive or improper means . . . [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself." (Internal quotation marks omitted.) Id., 536. In the present case, the specific intent required for a claim of tortious interference with a business expectancy to be actionable, would satisfy the requirements of the exception to common-law governmental immunity for "acts involv[ing] malice, wantonness or intent to injure, rather than negligence." For this reason, the special defense raised by the defendants under common-law governmental immunity is inapplicable to the plaintiffs' claim.
Statutory Governmental Immunity
In addition to common-law immunity, the defendants also allege in their second special that they are entitled to statutory governmental immunity pursuant to § 52-557n. The defendants claim that the plaintiffs' cause of action is barred "because the Chief of Police, or his designee, was exercising discretion in determining (a) when or whether a police officer is required to provide temporary traffic control services at construction or work sites on the streets of Hamden or (b) whether to exercise its discretion under the ordinance in a particular instance." In their memorandum in opposition, the plaintiffs argue that the statute is inapplicable to their claims because it does not apply to municipal employees for their own intentional acts, and furthermore, the defendant's actions do not fall within any of the enumerated exceptions set forth in § 52-557n(b).
General Statutes § 52-557n abrogates the common law regarding governmental immunity in Connecticut. See Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004). Section 52-557n(b) provides in relevant part: "[A]ny employee, officer 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 . . ." In the present case, the defendant's decision that a police officer, rather than a flagger, would be present at a construction or utility site within the town of Hamden was made pursuant to the chief of police's statutory grant of discretionary authority in the ordinance.
The plaintiffs cite to Sanzone v. Board of Police Commissioners, 219 Conn. 179, 193, 592 A.2d 912 (1991), to support their argument that statutory governmental immunity does not apply to protect a municipal employee from liability for the intentional tort of tortious interference with a business expectancy. In Sanzone, the court addressed the applicability of § 52-557n to a tort claim alleging, inter alia, negligence, nuisance and misperformance of ministerial duties by certain city officials. In their memorandum in support of the motion to strike the special defenses, the plaintiffs misstate the finding of the Sanzone court and conclude that the claim for tortious interference with a business expectancy does not fall within the enumerated cases set forth in § 52-557n(b). As set forth above, the conduct of the defendants, acting pursuant to the discretionary authority granted by Hamden Ordinance § 97.03, falls within the exemption enumerated in § 52-557n(b)(7).
In the present case, the defendants, while acting in their respective terms as chief of police, acted pursuant to the discretionary authority granted under in Hamden Ordinance § 97.03. The resulting determination that police officers are required to be present at construction and utility sites at all times is still a discretionary decision, even if not applied on a case-by-case basis. The defendants' special defense of statutory governmental immunity is legally sufficient.
CONCLUSION CT Page 3900
Based upon the foregoing(1) The plaintiffs' motion to strike the defendants' first special defense is granted.
(2) That portion of defendants' second special defense alleging common-law immunity is granted.
(3) Plaintiffs' motion to strike defendants' second special defense is denied.