Opinion
MMXCV156014574
05-25-2017
Robert W. Trommer, Jr. v. City of Middletown et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#115)
Julia L. Aurigemma, J.
The defendants, Officer August DeFrance and the City of Middletown, have moved to strike the revised complaint of the plaintiff, Robert W. Trommer, Jr., filed on April 13, 2016 (the " Complaint").
Facts
The Complaint alleges that on October 16, 2011 the plaintiff was riding a motorcycle on the northbound side of Route 9 in Middletown. Compl. ¶ 3. While the plaintiff was stopped at a red light, Kyle Wolak (" Wolak") rear-ended the plaintiff. The complaint alleges that Officer August DeFrance and/or Middletown took control of the accident scene and was required to investigate and report on the accident. Compl. ¶ ¶ 4, 9. The complaint further alleges that due to the defendants' negligence, he was denied physical evidence, photographs, eyewitness statements, and other evidence necessary to definitively establish the location, causation, and severity of the accident. Compl. ¶ 7. The Complaint does not allege that Officer DeFrance failed to create a report concerning the accident. Rather, it alleges that the report has errors and omissions. It further alleges that the defendants did not take a statement from Wolak to determine whether he was speeding or issue a traffic citation to Wolak. Compl. ¶ ¶ 12, 13.
Discussion of the Law and Ruling
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Faulkner v. United Technologies Corporation, 240 Conn. 576, 580, 693 A.2d 293 (1997); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
" It is incumbent on a Plaintiff to allege some recognizable cause of action" in the complaint and it is not the burden of the defendant to attempt to correct the deficiency. Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). A motion to strike is an appropriate means of presenting to the court legal issues at the outset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). " Whenever a party wishes to contest . . . the legal sufficiency of any such complaint . . . or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleadings or part thereof." George v. St. Ann's Church, 182 Conn. 322, 325, 438 A.2d 97 (1980).
A municipality and its employees are immune from liability unless the legislature has enacted a statute abrogating that immunity. Williams v. City of New Haven, 243 Conn. 763, 766-67, 707 A.2d 1251 (1998). " Municipal officials are immune from liability from negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society." Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006).
In J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC., 164 Conn.App. 508, 517, 137 A.3d 894 (2016), the plaintiff alleged that a sinkhole on his property was caused by the negligence of the defendant town because it had failed to properly maintain its sewer lines. The plaintiff cited various statutes and ordinances which it claimed imposed a duty on the town. The trial court granted a motion to strike the negligence claims against the town because the plaintiff failed to cite any statute abrogating common-law immunity. That decision was upheld by the Appellate Court. In this case the plaintiff alleges that the defendants were negligent, but fails to cite any statute which abrogates the defendants' governmental immunity.
The complaint also fails to allege that the defendants owed the plaintiff a duty. The plaintiff cites Connecticut General Statutes § 14-108a(a)(2) which provides, in pertinent part:
(2) In each motor vehicle accident in which any person is killed or injured or in which damage to the property of any one individual, including the operator, in excess of one thousand dollars is sustained, the police officer, agency or individual who, in the regular course of duty, investigates such accident, either at the time of or at the scene of the accident or thereafter, by interviewing the participants or witnesses, shall, within five days after completing such investigation, complete and forward one copy of such report to the Commissioner of Transportation. Such report shall call for and contain all available detailed information to disclose the location and cause of the accident, the conditions then existing, the persons and vehicles involved and the names of the insurance companies issuing their automobile liability policies, as well as the enforcement action taken . . .
" In order to recover in a tort case, the plaintiff must show that the defendant has breached a legal duty owed to him." Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 44, 492 A.2d 219 (1985). " What duty the defendant had, if any, is a question of law. The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court." Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 137, 741 A.2d 349 (1999).
The plaintiff does not allege a breach of a duty that flows from the defendants to him. Instead, he claims that the defendants breached the legal duties set forth under § 14-108a(a)(2). As stated above, the only legal duties that arise under that statute are reporting requirements to the Connecticut Commissioner of Transportation.
In his Memorandum in Opposition the plaintiff argues that its claim for negligence against the defendants is viable under Connecticut General Statutes § 52-557n. There are two problems with this argument. First, the plaintiff does not allege § 52-557n in his complaint. A motion to strike is limited to the pleadings and plaintiffs may not file objection to motions to strike which refer to facts not contained in the four corners of the complaint. Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69, n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).
Second, even if the plaintiff had alleged § 52-557n, the Complaint would still be legally insufficient because the defendants are immune from liability in connection with their discretionary policing activities. The plaintiff does not allege that the defendants failed to fill out a traffic accident report. Rather, he finds fault with the manner in which the defendants completed the report. He alleges that the defendant should have cited the other driver for speeding and should have located the accident on the report differently. " It is well settled in Connecticut that under most circumstances, law enforcement activity is inherently discretionary." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988). The alleged failures here clearly involved discretionary acts. For the foregoing reasons, the motion to strike is granted.
The defendants also argue that the complaint should be stricken because there is no proximate cause between the plaintiff's claim against the defendants and his losses. The plaintiff claims that the defendants' failure to issue a speeding ticket to Mr. Wolak and their failure to properly obtain witness statements prevented him from securing " a greater recovery in his accident-related lawsuit(s)." Compl. ¶ 19. While the court has not considered the lack of proximate cause as an additional basis on which to strike the complaint, the court notes that the proximate cause between the defendants' alleged delicts and the plaintiff's alleged loss is problematic. Even if Officer DeFrance had cited Mr. Wolak for speeding, that would not have been admissible at trial. Lawrence v. Kozlowski, 171 Conn. 705, 712, 372 A.2d 110 (1976). In addition, there appears to be no dispute that Mr. Wolak struck the plaintiff's motorcycle from the rear. In most rear end collisions, there is no dispute as to who was at fault because the law is that " [n]o driver of a motor vehicle shall follow another vehicle more closely than is reasonable and prudent, having regard for the speed of such vehicles, the traffic upon and the condition of the highway and weather conditions." Connecticut General Statutes § 14-240. Further complicating the causation picture is the fact that prior to trial the plaintiff withdrew both actions to recover damages arising out of the accident with Wolak. See Trommer v. Wolak, MMXCV126007023S; Trommer v. Progressive Casualty Insurance Company, MMXCV136010650S.