Opinion
No. FST CV 07 5003063 S
January 9, 2009
ARTICULATION RE DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S FIFTH AMENDED COMPLAINT
A. Background and Pleadings
The defendants, Town of Bethel Police Department, Matthew DiRago, and Lynn Morris, moved to strike the first, second, third and fourth counts of the plaintiff's fifth amended complaint dated December 21, 2007 (#134).
The first count of the complaint sounds in negligence as against Officer Matthew DiRago. The second count sounds in negligence against Officer Lynn Morris. The third and fourth counts are against the Town of Bethel Police Department based on the negligence alleged against Officers DiRago and Morris in the first and second counts respectively. The fifth count is directed against Masonic Temple Association of Bethel, Connecticut, Inc. and was not part of the motion.
By way of procedural history, the court granted the defendants' motion to strike the first, second, third and fourth counts of the plaintiff's fourth amended complaint dated December 4, 2007 (entry #124, December 10, 2007). It should be noted that although the defendants' previous motion to strike and supporting memorandum addressed the plaintiff's second revised complaint, it was agreed upon at oral argument before the Honorable Judge Tobin on December 10, 2007 that the motion to strike applied to the then operative fourth amended complaint.
In the fourth amended complaint, the plaintiff alleged that on or about November 26th and 27th of 2004, her decedent, Darnel Patrick Merritt, was a guest at a party held at a facility commonly known as Masonic Temple, located at 84 Greenwood Avenue in the Town of Bethel, Connecticut. (First Count, ¶ 3.) The plaintiff further claimed that on or about 1:41 a.m. on November 27, 2004, Patrick, while exiting the Masonic Temple with other party guests, was met by an assemblage of party participants and a group of members of a gang from Rhode Island known as the "Asian Boyz," and that as he did so he was shot several times by a member of the "Asian Boyz" gang. ( Id., ¶¶ 4-5.)
The plaintiff alleged that at the time of the shooting, Officer Matthew DiRago of the Bethel Police Department was stationed in a marked police vehicle in the parking lot of the Bethel Food Market, directly next door to the Masonic Temple for the purpose of monitoring the activities of a large group of people commingling directly outside the Masonic Temple. ( Id. at ¶ 6.) The plaintiff further claimed that the Bethel Police Department, and in particular Officer DiRago, knew or should have known that the harm of the general nature which occurred to Patrick was a likely risk to the attendees of the party as a result of prior criminal activity in the area and as a result of groups of gangs and individuals loitering in and around the Masonic Temple area during and on subsequent functions held therein as well as prior information they had concerning the likelihood of harm to the attendees of the party. ( Id. at ¶ 9.)
Plaintiff alleged that Officer DiRago was negligent in the performance of this duties in that he failed to exercise reasonable care to control the conduct of third persons, as the conduct of such people created an unreasonable risk of bodily harm to the plaintiff's decedent. It was also claimed that Officer DiRago knew or had reason to know that he had the ability to control such third persons and knew or should have known of the necessity and opportunity for exercising such control by: providing appropriate police protection throughout the area of the Masonic Temple; evicting from the Masonic Temple those gangs and groups of persons engaged in criminal activities of which he knew or should have known existed; dispersing groups, gangs, and crowds of persons he knew or should have known were loitering in the area directly outside the Masonic Temple; and initiating procedures to prevent criminal behavior in and adjacent to the Masonic Temple when he knew or should have known such behavior existed. ( Id. at ¶ 12.)
The plaintiff also alleges that Officer DiRago was negligent, reckless, and careless in that he failed to undertake measures to provide protection and/or a safe environment for persons in the area of the Masonic Temple, and that the negligence, carelessness, and recklessness on the part of Officer DiRago increased the risk of bodily harm to law-abiding persons and the plaintiff's decedent, who relied upon Officer DiRago's provision of proper protective services. ( Id. at ¶¶ 13, 16.)
In the Second Count of the Fourth Amended Complaint, the plaintiff alleges that Officer Lynn Morris of the Bethel Police Department was stationed in a marked police vehicle in the parking lot of the Bethel Food Market, directly next door to the Masonic Temple for the purpose of monitoring the activities of a large group of people commingling directly outside the Masonic Temple. (Second Count, ¶ 6.) Plaintiff alleged that Officer Morris was negligent in the performance of her duties in that she failed to exercise reasonable care to control the conduct of third persons, as the conduct of such people created an unreasonable risk of bodily harm to the plaintiff's decedent, and that Officer Morris knew or had reason to know that she had the ability to control such third persons and knew or should have known of the necessity and opportunity for exercising such control by: providing appropriate police protection throughout the area of the Masonic Temple; evicting from the Masonic Temple those gangs and groups of persons engaged in criminal activities of which he knew or should have known existed; dispersing groups, gangs, and crowds of persons she knew or should have known were loitering in the area directly outside the Masonic Temple; and initiating procedures to prevent criminal behavior in and adjacent to the Masonic Temple when she knew or should have known such behavior existed. ( Id. at ¶ 12.)
The plaintiff also alleged that Officer Morris was negligent, reckless, and careless in that she failed to undertake measures to provide protection and/or a safe environment for persons in the area of the Masonic Temple, and that the aforesaid actions of negligence, carelessness, and recklessness on the part of Officer Morris increased the risk of bodily harm to law-abiding persons and the plaintiff's decedent, who relied upon Officer Morris' provision of proper protective services. ( Id. at ¶¶ 13, 16.)
In the Third and Fourth Counts of the Fourth Amended Complaint as against the Town of Bethel Police Department, the plaintiff alleged that pursuant to Connecticut General Statutes § 52-557n, the Town of Bethel is liable for damages to the plaintiff's decedent in that they were caused by the negligent acts or omissions of its officers, agents or employees acting within the scope of their employment or official duties. (Third Count, ¶ 21; Fourth Count, ¶ 20.)
As a result of granting the defendants' Motion to Strike the plaintiff's Fourth Amended Complaint, the plaintiff filed a Fifth Amended Complaint, which follows the same pleading pattern as the Fourth Amended Complaint. In sum, the First Count sounds in negligence as against Officer DiRago; the Second Count sounds in negligence as against Officer Morris; and the Third and Fourth Counts are directed against the Town of Bethel Police Department, alleging that it is liable for damages to the plaintiff's decedent in that they were caused by the negligent acts or omissions of its officers, agents or employees acting within the scope of their employment or official duties.
It is noted the allegations as against officers DiRago and Morris are almost complete recitals of those contained in the Fourth Amended Complaint. With respect to the additional allegations contained in the Fifth Amended Complaint, it alleges that as an attendee of the party at the Masonic Temple, Patrick was an identifiable person subject to imminent harm and/or member of a narrowly defined class of foreseeable victims. (Fifth Amended Complaint, ¶ 9.) The Fifth Amended Complaint also alleges that the Town of Bethel Police Department, and in particular officers DiRago and Morris, knew or should have known that the harm inflicted on Patrick was a likely risk to him as an identifiable potential victim and/or as a member of a narrowly defined class of foreseeable victims based upon prior information, prior criminal activity at the Masonic Temple, a scuffle that occurred shortly before the shooting, and observed gang members at the party. ( Id., First Count, ¶ 10; Second Count, ¶ 10.) Additionally, the Fifth Amended Complaint alleges that the defendants were negligent in the performance of their ministerial duties to control dangerous activity once they undertook a duty to monitor the party. ( Id., ¶ 13.)
B. Law The Plaintiff's Claims Against Police Officers DiRago and Morris are Barred by the Doctrine of Governmental Immunity
In support of their Motion to Strike the plaintiff's Fifth Amended Complaint, the defendants incorporated the Memorandum of Law submitted in connection with their prior Motion to Strike. The court reviewed the same.
The defendants argued in that memorandum that the plaintiff's claim was barred by the doctrine of discretionary governmental immunity, and the only exception to that doctrine that could arguably apply with respect to the discretionary decisions/actions on the part of the defendant officers, i.e. the identifiable person-imminent harm exception, does not apply to the facts of this case as a matter of law. The defendants argue that Counts One through Four of the Fifth Amended Complaint are legally insufficient and should be stricken. The court agrees.
(i) The Defendant Police Officers Were Engaged in Discretionary Rather Than Ministerial Acts
As explained in part III(B)(i) of the defendants' previous supporting memorandum, an initial threshold determination for whether discretionary governmental immunity applies is whether the act complained of is ministerial or discretionary. In Parts IIIB(i) and (ii) of their previous supporting memorandum, the defendants clearly establish that the actions of the defendant police officers on the night in question were discretionary.
The plaintiff in her Fifth amended Complaint has added the entirely conclusory allegation that defendant officers were negligent in the performance of their ministerial duties to control dangerous activity once they undertook a duty to monitor the party. Such a conclusory allegation is, by itself, completely insufficient to demonstrate the existence of any ministerial duty in so much as "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems v. BOC Group, Inc., supra, 224 Conn. 215. The court agrees with the defendants who argued that the case law set forth in Parts IIIB(i) and (ii) of their previous supporting memorandum clearly demonstrated that the actions of the defendant police officers on the night in question were discretionary in nature. Therefore, the doctrine of governmental immunity applies, and the question becomes whether any of the recognized exceptions apply to defeat its application.
(ii) None of the Recognized Exceptions To Municipal Employees' Qualified Governmental Immunity Are Applicable In This Case
In support of their position the defendants argued in their prior brief that the only exception to discretionary governmental immunity that could possibly apply with respect to the facts of this case, i.e. the identifiable person-imminent harm exception, does not apply as a matter of law. (Part IIIB(iii), See also Durrant v. Board of Education, 284 Conn. 91 (2007).
The additional/modified allegations contained in the plaintiff's Fifth amended Complaint have not cured the Fourth Amended Complaint's inability to sufficiently plead facts that would fit her claims within the identifiable person-imminent harm exception to the doctrine of governmental immunity. See Durrant v. Board of Education, 284 Conn. 91 (2007)
The plaintiff's conclusory allegations that as an attendee of the party at the Masonic Temple, Patrick was an identifiable person subject to imminent harm are insufficient to demonstrate the exception's application in so much as "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems v. BOC Group, Inc., supra, 224 Conn. 215. Furthermore, the Fourth Amended Complaint contained allegations that the undersigned defendants knew or should have known that the harm of the general nature which occurred to Patrick was a likely risk to the attendees of the party as a result of prior criminal activity in the area and as a result of groups of gangs and individuals loitering in and around the Masonic Temple area during and on subsequent functions held therein as well as prior information they had concerning the likelihood of harm to the attendees of the party. The court had previously determined that those allegations were insufficient to fit this case within the identifiable person-imminent harm exception. Those allegations are likewise insufficient in the Fifth Amended Complaint.
What the Fifth Amended Complaint adds, is the allegation that a scuffle occurred shortly before the shooting. As explained below, the addition of this allegation does not cure the plaintiff's inability to fit her claims against the defendants with the identifiable person-imminent harm exception.
In part III(b)(iii) of their previous supporting memorandum, the defendants set forth the well-established law providing that application of the identifiable person-imminent harm exception to governmental immunity requires the presence of an imminent harm and identifiable victim; and a public official to whom it is apparent that his or her conduct is likely to subject the identifiable victim to imminent harm, and that demonstration of less than all of these criteria is insufficient to defeat the application of governmental immunity.
The defendants have cited cases in part (III)(b)(iii) that clearly demonstrate that the plaintiff's decedent was not a readily identifiable victim as that concept has been defined under the existing case law. Rather, he was a member of the general public exiting the Masonic Temple with other people. He was not required to be at that particular location at that particular time, nor was he confined to any classroom or mandated by law to attend any class at that location. Accordingly, he cannot possible be considered a readily identifiable victim or part of a narrowly defined class of foreseeable victims regardless of any allegation that some "scuffle" occurred sometime before the shooting. Therefore, the plaintiff has failed to satisfy one the required elements of the identifiable person-imminent harm exception. As such, the defendants' Motion to Strike must be granted.
Even assuming, for argument purposes, that the plaintiff's decedent was a readily identifiable victim, the plaintiff has still failed to establish the imminent harm requirement. The Connecticut Supreme Court has emphasized that harm is imminent when the threat involves "a limited time period" and a "temporary condition." See, e.g., Purzycki v. Town of Fairfield, 244 Conn. 101, 110 (1997) (citations and internal quotations omitted). In Purzycki, the court determined that a limited time period was involved, "namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess." Id. at 209-110 (citations omitted; emphasis added). While the plaintiff, in response to the defendants' prior Motion to Strike, suggested that the potential for harm was limited in duration because it existed only during the time of the event, this type or argument has been rejected by the Appellate Court in Doe v. Board of Education, 76 Conn.App. 296, 305 (2003), where the court stated:
The plaintiff suggested that the alleged danger was limited in duration because it existed only during school hours. We reject this argument because it is inconsistent with the opinions in Burns and Purzycki . . . The court in Burns relied on the fact that the danger was limited to the duration of the icy condition, and the court in Purzycki, relied on the fact that the danger was limited to a single half-hour period each day. ( Id.) (Emphasis added.)
Also instructive is the court's analysis in the case of Caruso v. Demartino, Superior Court, Judicial District of New Haven, docket number 371907, 1995 Conn. Super. LEXIS 3092 (November 2, 1995, Zoarski, J.) In that case, the defendant sued the Board of Education for negligent supervision after he was assaulted by another student at an after school basketball game. The court granted the defendant's motion to strike the negligence count on the basis that "the risk of an assault implicates a wide range of factors that can occur, if at all, at some unspecified time in the future." Id.
Also helpful with respect to analyzing the concept of imminent harm is the case of Florence v. Town of Plainfield, 50 Conn.Supp. 1 (CT.Sup.Ct. 2006). The court in Florence noted that our Supreme Court has made it clear that "[t]he `imminent harm' aspect of the exception is very restrictive and applies only to risks that are temporary and confined in space." Id. at 8 (citations omitted). The court goes on to reference the case of Sestito v. Groton, 178 Conn. 520 (1979) — which case was cited by the plaintiff in opposition to the defendants' previous Motion to Strike — where a police officer lost qualified governmental immunity because he failed to intervene to quell an ongoing fistfight that resulted in the fatal shooting of one of the disputants. Id., 9. Moreover, "[i]t is evident that our case law imposes a `then and there' characteristic with respect to `imminent harm' . . . [and that] [t]here is a distinction between negligent acts and omissions that creates a foreseeable and even continual exposure to harm at some unknown, future time and place, and `imminent harm.'" Id.
With respect to the present matter, the risk of a shooting implicates a wide range of factors that could have occurred, if at all, at some unspecified time and place in the future. Furthermore, the allegation that some type of "scuffle" occurred shortly before the shooting is insufficient to fit this case within the type of "ongoing," "then and there" scenario that is required to satisfy the imminent harm prong of the exception. In summary given the conditions for the occurrence of the shooting, the potential for it to happen at the event was not imminent as a matter of law.
IV. Conclusion
The defendants' Motion to Strike the First, Second, Third, and Fourth Counts of the plaintiff's Fifth Amended Complaint is granted.