Opinion
No. NNH CV 09-5031653
January 14, 2011
MOTION TO STRIKE #101
FACTS
The plaintiff, Myra Smith, commenced this action by service of process on the defendant, the city of New Haven, on August 20, 2009. The plaintiff's one-count complaint, filed on September 8, 2009, alleges the following facts. On August 22, 2007, the plaintiff sat in a defective chair in the children's room at the New Haven public library. That chair broke, causing the plaintiff to suffer injury. The complaint alleges that the city was negligent in failing to maintain the chair. The only named defendant in the one-count complaint is the city of New Haven. The complaint also alleges that the plaintiff gave the city notice of her claim on December 17, 2007, pursuant to General Statutes § 7-465.
On October 16, 2009, the defendant moved to strike the plaintiff's complaint on the ground that it fails to state a claim upon which relief can be granted. The defendant filed a memorandum of law in support of its motion to strike on the same day. On October 20, 2009, the plaintiff filed a motion for extension of time of thirty days to respond to the defendant's motion to strike. On October 25, 2010, the plaintiff filed an objection to the defendant's motion to strike and an accompanying memorandum of law. The court took the matter on the papers on December 12, 2010.
ANALYSIS
"We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because "governmental immunity must be raised as a special defense in the defendant's pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] . . . 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).
The defendant argues the following in support of its motion to dismiss. Municipalities are generally immune from liability unless a statute abrogates the immunity. The plaintiff has not cited a statute that does so in this case. The only statute the plaintiff mentions in her complaint is General Statutes § 7-465, but that statute only provides a basis of liability if a municipal employee is found individually liable.
Section 7-465 provides, in relevant part: "Any . . . city . . . notwithstanding any inconsistent provision of law . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of liability imposed upon such employee by law for damages awarded for . . . physical damages to person or property . . . if the employee, at the time the occurrence . . . was acting in the performance of his duties and within the scope of his employment . . ."
In response, the plaintiff "concedes that her [c]omplaint does not properly set forth a claim to abrogate the [d]efendant's governmental immunity." She nonetheless argues that a motion to strike is not the proper vehicle to challenge the legal sufficiency of the plaintiff's complaint. She further requests leave to amend her complaint to include a count against "Jane Doe," an unidentified employee of the city of New Haven.
The plaintiff's concession that her complaint is legally insufficient is a sufficient basis to grant the defendant's motion to strike the complaint. See Juan v. Lancer Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002597 (November 24, 2009, Pickard, J.) ( 48 Conn. L. Rptr. 789, 789) ("In her brief, the plaintiff concedes that the fourth count, as pleaded, is legally insufficient. Therefore, the motion to strike the fourth count, and the relief requested, is granted"). It is submitted that the court need not address the substance of the defendant's argument regarding General Statutes § 7-465.
A
Legal Sufficiency of the Complaint
"Section 7-465 is a municipal employee indemnification statute . . . [T]he legislature has provided for indemnification by municipalities of municipal officers, agents or employees who incur liability for certain of their official conduct . . . To invoke § 7-465, the plaintiffs 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 . . . While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance." (Citations omitted; emphasis in original; internal quotation marks omitted.) Altfeter v. Naugatuck, 53 Conn.App. 791, 799, 732 A.2d 207 (1999); see also Gaudino v. East Hartford, 87 Conn.App. 353, 359, 865 A.2d 470 (2005) (upholding the trial court's grant of summary judgment to a municipal defendant where the plaintiff's complaint alleged liability under § 7-465 but did not allege liability on the part of any individual municipal employee).
In this case, the only statute the plaintiff cites in her complaint as a basis of abrogating the governmental immunity enjoyed by the defendant is § 7-465. The plaintiff's complaint does not, however, allege that any employee of the city of New Haven is individually liable for the plaintiff's injuries. Indeed, the only defendant in this case is the city of New Haven. As a matter of law, the plaintiff cannot recover under § 7-465 unless she recovers against an individual employee. Therefore, the plaintiff's complaint as currently constructed is legally insufficient.
B
The plaintiff's request to amend her complaint
While the plaintiff concedes that her complaint is legally insufficient, she requests leave to amend her complaint to correct the legal insufficiency. Under the Practice Book, § 10-60, the plaintiff "may amend his or her pleadings . . . at any time . . . [b]y filing a request for leave to file such amendment, with the amendment appended . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." Neither that section, nor any section of the practice book, specifically limits the plaintiff's ability to amend her complaint during the pendency of a motion to strike. Practice Book § 10-44, however, provides: "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . ."
Allowing a plaintiff to amend her complaint while a motion to strike is pending would circumvent § 10-44 and allow the plaintiff to avoid a determination that her complaint is legally insufficient. See Dilettante Enterprises v. Metro Realty Group, Superior Court, judicial district of New Britain, Docket No. CV 91 0445207 (February 27, 1992, Sheldon, J.) ( 6 Conn. L. Rptr. 137, 138) ("[i]t is true, of course, that after the granting of a motion to strike, the party whose pleading has been stricken may file a substitute pleading within fifteen days . . . We may not, however, foreshorten the procedures set forth in [the Practice Book] by the simple expedient of filing an amended complaint in direct response to, and as a means of avoiding the granting of, a proper motion to strike" [Citation omitted; emphasis in original]); Flores v. Viveros-Velazquez, 2000 Ct.Sup. 144454, Superior Court, judicial district of Windham, (November 21, 2000, Foley, J.) ("[w]hen a motion to strike is pending, the party whose pleading is being attacked may not file an amended complaint to cure the defects raised by the motion" [Internal quotation marks omitted]); but see Newlands v. NRT Associates LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 4027098 (April 28, 2010, Tyma, J.) ( 49 Conn. L. Rptr. 704, 705) ("judicial expediency and economy are well served by the court exercising its discretion and permitting an amended complaint to be filed in response to a pending motion to strike. The amended complaint could eliminate some, or all, of the issues of legal sufficiency from needless consideration and decision by the court").
In this case, allowing the plaintiff leave to amend her complaint during the pendency of a motion to strike the complaint for lack of legal sufficiency would allow the plaintiff to avoid the court's determination of the complaint's legal sufficiency with respect to the defendant. As outlined above, the plaintiff's complaint as presently constructed is legally insufficient to abrogate the defendant's governmental immunity because it does not allege, in a separate count, that a municipal employee was liable for the plaintiff's injuries. Granting the defendant's motion to strike will not deprive the plaintiff the opportunity to file a new pleading through the proper procedural mechanism of Practice Book § 10-44.
CONCLUSION
The plaintiff's complaint is legally insufficient because it does not separately allege individual liability by an employee of the defendant. The plaintiff cannot amend her complaint while a motion to strike the complaint is pending. Therefore, the court grants the defendant's motion to strike the plaintiff's complaint.