No. CV 05-4007549
January 20, 2006
MEMORANDUM OF DECISION ON MOTION TO STRIKE
This fourteen-count amended complaint against the defendants, Town of West Hartford, West Hartford Fire Department and a number of their employees seeks damages for the death of plaintiff's decedent, Christopher Bailey, resulting from a fire at 70-72 Washington Circle, West Hartford around midnight on January 7, 2004, alleging that defendants negligently failed to maintain area fire hydrants and to properly train, equip and supervise the responding firefighters.
On May 6, 2005, the Town of West Hartford and the West Hanford defendants jointly filed this motion to strike the first twelve counts addressed to them on the ground of governmental immunity alternatively challenging allegations of the town's negligence, and claims of negligent infliction of emotional distress by the individual defendants as legally insufficient.
At the short calendar hearing on September 26, 2005, this court granted defendants' motion to strike as to count twelve of the complaint alleging negligent infliction of emotional distress, with no opposition of the plaintiff.
It is well settled that a municipal employee has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. Prescott v. Meriden, 80 Conn.App. 697, 701, 836 A.2d 1248 (2003). See also Haberern v. Castonguay, Superior Court, judicial district of Hartford, Docket No. CV 02-0820429 (May 27, 2005, Wagner, J.T.R.) ( 39 Conn. L. Rptr. 441). Feliciano v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 01-0806525 (February 21, 2003, Wagner, J.T.R.). Our Supreme Court has stated that governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). In contrast, ministerial duties are those to be performed in a prescribed manner without the exercise of judgment or discretion. Prescott v. Meriden, supra, 80 Conn.App. 701. Breach of a ministerial duty is established by showing the defendant possessed prescribed procedures or policies to which it failed to adhere. Gauvin v. New Haven, supra, 187 Conn. 186.
In Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994); our Supreme Court listed three exceptions that enable a plaintiff to abrogate governmental immunity of a municipality. The only exception relevant to the present case is that permitting a tort action in circumstances of perceptible imminent harm to an identifiable person. Id., 645-46. This exception applies if "circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." Id., 645. "The question in each case is whether the facts present a situation where . . . a public official's constant general duty to the public has, in addition, subsumed a specific duty to the individual claiming injury." Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979).
The plaintiffs argue that the determination as to when to maintain town property is not a discretionary function and insist that ongoing maintenance of fire hydrants in West Hartford constitutes a ministerial act. Alternatively, they urge that this case implicates the "identifiable person/imminent harm" exception to governmental immunity because the decedent faced imminent harm inside a structure reliant upon and adjacent to an inoperable fire hydrant. The plaintiffs also assert that, as a procedural matter, questions of governmental immunity should be decided in a motion for summary judgment, not a motion to strike.
As to this latter procedural claim our Supreme Court has approved the practice of deciding the issue of governmental immunity as a matter of law. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). Where 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 though a motion to strike. DeConti v. McGlone, supra, 88 Conn.App. 272; Doe v. Board of Education, 76 Conn.App. 296, 299 n. 6, 819 A.2d 289 (2003). This court has frequently decided issues of governmental immunity raised in a motion to strike. See, e.g., Feliciano v. Hartford, supra, Superior Court, Docket No. CV 01-0806525; Granby v. Schlicht, Superior Court, judicial district of Hartford, Docket No. CV 01-0811944 (November 18, 2002, Wagner, J.T.R.); Andrea v. Metropolitan District, Superior Court, judicial district of Hartford, Docket No. CV 99-0586173 (November 27, 2000, Wagner, J.T.R.); Coletosh v. City of Hartford, Superior Court, judicial district of Hartford, Docket No. CV 97-0573462 (April 13, 1999, Wagner, J.T.R.) ( 24 Conn. L. Rptr. 399); Adams v. Cromwell, supra, Superior Court, Docket No. CV 96-05 63464; DeLeon v. Hartford Board of Education, Superior Court, judicial district of Hartford, CV 96-0566449 (April 15, 1997, Wagner, J.T.R.) ( 19 Conn. L. Rptr. 345); Ellison v. Scott, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 96-0561257 (January 9, 1997, Wagner, J.T.R.).
It is settled in this state that a municipal corporation is exercising a governmental function when maintaining and operating a fire department pursuant to legislative authority. Hansen v. Mohegan Fire Co., Inc., Superior Court, judicial district of New London, Docket No. 111388 (January 14, 1998, Martin, J.), quoting Brock-Hall Dairy Co. v. New Haven, 122 Conn. 321, 324, 189 A. 182 (1937). The plaintiffs' amended complaint alleges, inter alia, negligence in relation to the oversight and conduct of responding firefighters. Accordingly it is appropriate for this court to address the governmental immunity arguments advanced in the context of the present motion to strike.
Whether official acts or omissions are ministerial or discretionary is normally a question of fact. Lombard v. Peters, 252 Conn. 623, 628, 749 A.2d 630 (2000). As this court stated, "[i]f the plaintiff does not allege specific ministerial misconduct or fails to allege a breach of a specific ministerial standard . . . the plaintiff is alleging a discretionary act." (Emphasis added.) Martel v. Metropolitan District Comm., Superior Court, judicial district of Hartford, Docket No. CV 02-0814799 (November 13, 2003, Wagner, J.T.R.); Haberern v. Castonguay, supra, Superior Court, Docket No. CV 02-0820429 ( 39 Conn. L. Rptr. 441). The plaintiffs' amended complaint cites no ordinance mandating even periodic maintenance of town fire hydrants; rather, their amended complaint deems such maintenance ministerial, citing Kolaniak v. Board of Education, 28 Conn.App. 277 (1992). In Kolaniak, the plaintiff brought a negligence action against the local board of education and school maintenance personnel for personal injuries. The plaintiff offered evidence of a bulletin to all custodians and maintenance personnel to keep the walkways clear of snow and ice. Id., 281. The Appellate Court refused to "equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity." (Emphasis added.) The court held such maintenance to be ministerial and affirmed the refusal to charge on the doctrine of governmental immunity.
In the present base, plaintiff's conclusionary allegations are unsupported by the facts alleged. See Murillo v. Seymor Ambulance Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003). The defendants' acts must be regarded as discretionary, not ministerial, absent any specific authority to the contrary as was the case in Kolaniak. Martel v. Metropolitan District Comm., supra, Superior Court, Docket No. CV 02-0814799. See also Santana v. Rohan, Superior Court, judicial district of Hartford, Docket No. CV 04-0830569 (June 7, 2005, Shapiro, J.).
In cases involving qualified immunity of a municipal employee for discretionary acts, the discrete person/imminent harm exception has received very limited recognition in Connecticut. Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989). In Evon, as here, the gravamen of the plaintiffs' allegations was that the defendants had not done enough to prevent the occurrence of a fire. Id., 507-08. The plaintiffs claimed in that case that their complaint alleged breaches of discretionary duties owed to their decedents, a group that was "discrete, readily identifiable and subject to imminent harm." Id., 507. The Supreme Court disagreed, explaining that the risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future and that the class of possible victims of such an unspecified fire is by no means a group of identifiable persons. Id., 508. Accordingly, the court could not accept the proposition that the plaintiffs' decedent in that case was a readily identifiable victim subject to imminent harm.
In this case, the decedent cannot be considered a "readily identifiable victim" because the nonfunctional fire hydrant in question posed comparable risks to an unspecified number of other residents or bystanders in case of fire.
Because the alleged acts charged to the Town of West Hartford are discretionary as a matter of law and no exception to governmental immunity applies, the motion to strike counts one through eleven, inclusive is granted.