Opinion
No. X07-CV05-4003870
January 17, 2006
MEMORANDUM OF DECISION
The defendants, Richard A. Leco and David Watson, move to strike the counts of the amended complaint pertaining to them. The plaintiffs are Joseph and Linda Turner, co-administrators of the estate of Emmaline E. Turner, and Jennifer Turner, individually and as administratrix of the estate of Josiah R. Nesta Swain.
The amended complaint comprises sixty-one counts which assert various causes of action against the city of New London and its city manager, supervisory officers in the New London Fire Department, the New London Housing Authority, and the movants, who are the Executive Director and the Maintenance Director of the Housing Authority, for the wrongful deaths of Emmaline Turner and Josiah Swain and for physical and emotional injury to Jennifer Turner.
The core of the factual allegations underlying these counts is that Jennifer Turner and her infant son, Josiah Swain, were tenants at the Thames River Apartments which are owned and operated by the New London Housing Authority. On April 19, 2004, an unwanted visitor, Robert Swain, III, gained unobstructed entry into the building in which the Turner apartment was located, approached the door to the apartment, and demanded admission to the apartment. Present in the apartment were Jennifer, her son Josiah, and Jennifer's ten-year-old sister, Emmaline Turner. Jennifer allowed Robert Swain to enter the apartment, and an argument ensued. Swain began stabbing Jennifer with a knife which he had brought with him. Jennifer fled to a neighbor's apartment for help. Swain pursued and continued to stab Jennifer and the neighbor who came to her aid. The neighbor and Jennifer managed to escape into the neighbor's apartment. Swain returned to Turner's apartment, locked himself in, and stabbed Emmaline and Josiah to death before police and emergency personnel could intervene.
Counts 14, 15, 34, 35, and 48 pertain to Richard Leco and set forth claims of wrongful death with respect to Emmaline Turner and Josiah Swain and bystander emotional distress with respect to Jennifer Turner. Parallel claims pertaining to David Watson are contained in Counts 16, 17, 36, 37, and 49.
A motion to strike "admits all the facts will pleaded; it does not admit conclusions or the truth or accuracy of opinions stated in the pleadings." Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).
The movants contend that, as officers or employees of the city of New London, they possess common-law governmental immunity barring liability arising from the negligent performance of discretionary, public acts or are cloaked with such immunity by virtue of General Statutes § 52-557n(b)(8).
I
The court first addresses whether officers, agents, or employees of a municipal housing authority, created under General Statutes § 8-40, are, ipso facto, municipal employees. The court concludes that they are not.
General Statutes § 8-44 declares a municipal housing authority to be "a public body corporate and politic" which is empowered, inter alia, to sue and be sued, to enter contracts and to hold property. Section 8-44b entitles a housing authority "to establish a housing authority police force the members of which shall be employees of such housing authority." A housing authority has the statutory rights to acquire real property by eminent domain, General Statutes § 8-50, and to issue bonds, General Statutes § 8-52.
Municipal housing authorities are not agencies of the municipalities which created them. Austin v. Housing Authority, 143 Conn. 338, 349 (1956). Such an authority is "regarded as a corporate agency of the state and not a creature, agent or representative of the municipality organizing it." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 186 (1988). Housing authorities are independent public entities. Connelly v. Housing Authority, 213 Conn. 354, 357, fn. 2 (1990).
Under General Statutes § 8-41a "[e]ach housing authority shall protect and save harmless any commissioner or any full time employee of such authority from financial loss and expense" resulting from civil judgments against them arising out of their employment. (Emphasis added.) The indemnification statute is significant for two reasons. First, the statute refers to persons holding positions with the housing authority as "employees of such authority" rather than as municipal employees. Second, municipal employees have a nearly identical indemnification protection under General Statutes § 7-101a. It would appear duplicative to have two such statutes if employees of a housing authority were, by dint of that status, also municipal employees. The court holds, therefore, that the movants are not municipal employees for purposes of governmental immunity. It should be noted that the movants have made no claim of common-law, governmental immunity based solely on their position as housing authority employees. Consequently, the court need not address that distinct issue.
II
The movants do claim, however, that they are exempt from liability based on § 52-557n(b)(8). Section 52-557n applies to any "political subdivision of the state" and not exclusively to municipalities.
It is an interesting question whether a municipal housing authority, created under § 8-40, is a political subdivision of the state for purposes of § 52-557n. While a court may have to explore that issue in this case eventually, resolution of that question is unnecessary to decide this particular motion to strike.
The movants specifically rely on § 52-557n(b)(8) as the exemption which absolves them from liability in this case. Subsection 52-557n(b) reads, in relevant part, "any employee, officer or agent [of a political subdivision of the state] acting within the scope of his employment or official duties shall not be liable for damages to person . . . resulting from . . . (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned . . . [by] such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety . . ." (Emphasis added.)
As noted above, the court must assume as true the factual allegations of the complaint. Paragraph six of the first count states that the New London Housing Authority owns the apartment complex in question. The counts against these movants incorporate that paragraph by reference. Assuming, arguendo, that a municipal housing authority is a political subdivision of the state, § 52-557n(b)(8), it affords no immunity to the movants because the Thames River Apartments are purportedly owned by the political subdivision.
For these reasons, the motion to strike is denied.