No. X08 FST CV 095012844 S
March 16, 2011
MEMORANDUM OF DECISION
MOTION TO STRIKE #148
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2009, the plaintiff, Graciela Chirieleison, on behalf of the plaintiff decedent, Jacqueline Bardales Chirieleison, ("Chirieleison") commenced the present action against the defendants, Robert S. Lucas ("Lucas"); the Town of Greenwich, Connecticut ("Town"); and the Cos Cob Fire Police Patrol, Inc. ("Fire Patrol"). The plaintiff's July 28, 2010 amended complaint sounds in five counts. Count one alleges common-law negligence against the defendant Lucas. Counts two and three allege causes of action pursuant to § 52-557n and nuisance respectively. Count four alleges a cause of action pursuant to General Statute § 52-183 as to the defendant Cos Cob Fire Police Patrol, Incorporated. Count five is a claim of indemnification pursuant to General Statute § 7-465.
Throughout portions of the complaint the plaintiff refers to Fire Chief Brian Kelly, Deputy Chief Keith Millette, Fire Captain Dan Burns and Fire Lt. Koczak. None of these individuals have been named as defendants in this action. The plaintiff cites to acts or omissions of the individuals as performing ministerial acts but fails to name them as defendants.
The amended complaint alleges that on September 30, 2007, at approximately 6:09 a.m., the defendant Lucas responded to the scene of a motor vehicle accident which had occurred on I-95 northbound in Greenwich, Connecticut. The defendant Lucas responded in a 2004 Pierce fire truck owned by the defendant Town. Lucas positioned the fire truck across the center and right lanes of I-95 northbound. Lucas placed cones on the west side of I-95, beyond the fire truck. At about the same time, the plaintiff, Chirieleison, was a passenger in a motor vehicle operated by Reynaldo Sanchez, and was traveling in a northerly direction on I-95 in the Town of Greenwich, Connecticut. The motor vehicle operated by Sanchez struck the fire truck that was positioned across the two lanes causing the plaintiff to sustain the injuries and death.
On September 23, 2010, the defendants, Robert Lucas, Town of Greenwich, and the Cos Cob Fire Police Patrol, Inc. filed a motion to strike each of the counts in the July 27, 2010 amended complaint. The plaintiff submitted a memorandum in opposition, dated December 22, 2010. In the motion to strike, the defendants contend that the first and fifth counts fail to allege compliance with the notice and time requirements of General Statutes § 7-308 and that the plaintiff's complaint is devoid of allegations that the notice and time limitations of § 7-308 were complied with, which renders the first and fifth counts legally insufficient. Additionally, the defendants claim that the first and second counts fail to state a cause of action in negligence against Lucas and the Town, as the acts complained of are discretionary governmental acts and the identifiable person-imminent harm exception does not apply to the facts as plead. The defendants contend that the third count fails to state a cause of action in nuisance against the defendant Town and the fourth count must be stricken, as the fire patrol is entitled to the same immunities as Lucas and the Town. Lastly, the defendants argue that the highway defect statute, General Statute § 13a-149, is the plaintiff's exclusive remedy in an action such as the present matter, where the plaintiff is seeking damages arising from what they describe as a highway defect by positioning the town's fire truck and traffic cones within the traveled path of a public highway, which allegedly caused the plaintiff decedent's injuries and death.
The parties appeared and argued the motion on February 7, 2011.
DISCUSSION A. STANDARD FOR MOTION TO STRIKE
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike is the proper vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, judicial district of Waterbury, Docket No. CV 99 154112 (March 9, 2000, Pellegrino, J.) ( 26 Conn. L. Rptr. 547). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). Further, our Supreme Court "will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).
"In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. "Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the . . . pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "It is of no moment that the defendants might prove facts which operate to bar the plaintiff's claim, the sole inquiry at this stage of the pleadings is whether the plaintiff's allegations, if proved, would state a basis for standing . . . [An] argument [that] would require the court to consider facts outside the face of the pleadings . . . would be unproper on a motion to strike . . ." (Citations omitted.) Miller v. Insilco Corp., Superior Court, judicial district of New Haven, Docket No. 27 92 67 (May 22, 1990, Schimelman, J.) ( 1 Conn. L. Rptr. 651).
The plaintiffs attached deposition transcripts to their memorandum in opposition and cited to portions of these transcripts in the memorandum and at argument. These are not considered by the court in ruling upon this motion.
THE FIRST COUNT AND CLAIMS PURSUANT TO GENERAL STATUTE § 7-308
The defendants contend that the first count of the amended complaint should be stricken because the plaintiff has not filed the claim against Lucas in accordance with General Statute § 7-308. In particular, the first count alleges that the defendant Lucas was negligent in his actions and/or omissions related to the incident on the highway. The defendant argues that it is an obvious conclusion that the defendant Lucas was performing fire duties as a result of his volunteer fire work and thus the only claim for liability would be General Statute § 7-308 which has specific notice provisions. All parties agree the notice provisions of General Statute § 7-308 have not been satisfied. The allegations in the first count of the complaint state that the defendant Lucas "was at all times herein mentioned a resident of the Town of Greenwich, Connecticut and acting in his capacity as a member of the Cos Cob Fire Police Inc., a volunteer organization operated under the direction of the Fire Department of the defendant, Town of Greenwich, Connecticut." Amended Complaint ¶ 4. Thereafter, the plaintiffs allege that the defendant was operating a fire truck owned by the Town. Amended Complaint ¶ 6. The plaintiffs set forth a common-law negligence claim against the defendant Lucas for failure to properly position the defendant town's fire truck; for failure to use a sufficient number of traffic cones or set traffic cones at a sufficient distance so as to provide adequate warning for oncoming motor vehicles; and for failure to properly secure the accident scene. The defendants contend that because the allegations in the complaint involve negligent acts performed as a volunteer fire police patrol member and the performance of fire duties then the only claim must be pursuant to General Statute § 7-308 which has strict notice requirements. The defendants refer to the indemnification set forth in the fifth count that requires a cause of action against a fireman to be covered pursuant to General Statute § 7-308. The defendants then argue that Lucas was performing the duties of a fireman and therefore, not only does § 7-308 apply but the notice provisions are applicable. The defendants ignore the actual allegations in the first count and instead assume and extend the actual allegations to have this court imply that the defendant is a fireman pursuant to § 7-308 and as such the plaintiff was required to provide notice to the fireman and the town which was not pled and thus requires that the court strike the first count. The plaintiffs contend that this is a proper common-law negligence claim and thus the notice required by § 7-308 is not necessary. The defendants argue that the definitional terms set forth in General Statute § 7-314 that provides "fire duties" include "duties performed while at fire, while answering alarms of fire, . . . while answering or returning from fire department emergency calls and any other duty ordered to be performed by a superior or commanding officer in the fire department" provide the basis for this court to determine that the defendant Lucas was a fireman and thus determine that § 7-308 applies with its notice requirements. The defendants contend that the plaintiff's complaint contains allegations which identify Lucas' position as a fireman and his performance of fire duties at the time of the incident and therefore fall within the purview of the definition of "fire duties" under § 7-314. Thus, according to the defendants, it follows that § 7-308 applies to the present action and the plaintiff was required to comply with the notice and time requirements of this section. The plaintiffs contend they are not seeking to hold the defendant liable pursuant to § 7-308 and she is seeking compensation for damages based upon a common law negligence claim.
Plaintiff's counsel conceded at oral argument that they did not give notice to Lucas in accordance with General Statute § 7-308 nor did they commence the action within one year after the cause of action arose. Therefore, if this first count clearly named a fireman as the defendant, the action would not be sustainable under § 7-308.
The seminal issue at this juncture is whether the pleadings provide the proper factual basis for this court to find that the defendant Lucas is a fireman and determine that the only viable claim against him in that capacity would arise under § 7-308. This court has reviewed the Supreme Court decision in Rowe v. Godou, 209 Conn. 273, 550 A.2d 1073 (1988), which specifically addressed the pleading and notice provisions of § 7-308. In Rowe, the plaintiff alleged that he sustained damage to his motor vehicle from the negligent operation of a fire truck owned by the defendant city. The plaintiff claimed the operator of the city fire truck was negligent and sought to hold the defendant city liable for the damages caused by the fire truck operator pursuant to § 7-465. The defendant moved to strike, claiming that the plaintiff's claim was barred by § 7-308. The plaintiff contended that the appellate court "erred by `divining' facts not alleged in his complaint and by finding without foundation that his action was brought pursuant to General Statute § 7-308." Id., 275. The Supreme Court agreed with the plaintiff, concluding that there was "nothing in the plaintiff's complaint to indicate that he was proceeding under § 7-308, nor are there allegations of compliance or attempted compliance with its provisions . . . The Appellate Court had either to speculate or resort to information outside of the complaint. In ruling on the motion to strike, however, the Appellate Court was limited to the facts alleged in the plaintiff's complaint." Id., 277-78. In reaching their conclusion, the Supreme Court reasoned that "[t]he plaintiff's complaint does allege that, at the time of the accident which damaged his motor vehicle, the defendant Godou was operating a fire truck owned by the city of Bridgeport as "agent, servant and/or under a general authority" to drive. Nowhere in his complaint, however, is it alleged that at that time Godou was a "paid or volunteer fireman . . ." Id., 276-77.
Similarly, in the instant action the plaintiff alleges that Lucas was operating the fire truck and that he engaged in certain actions. However, the complaint is conspicuously missing the key phrase that the defendant Lucas was acting as a fireman at all times relevant to the incident alleged in the complaint. The Supreme Court in Rowe explained that on a motion to strike the court is limited to only the facts alleged in the plaintiff's complaint. The Rowe court has made it clear that neither the parties nor the court can speculate as to facts in order to rule on a motion to strike. In other words, if the fact is not plead, this court cannot infer from other facts as to the nature of the association between Lucas and Greenwich or the Cos Cob Fire Police Patrol. In fact, the allegations set forth in Rowe closely align the allegations in the instant complaint and thus the strict construction of the court in Rowe must be followed in the instant matter.
Therefore, without a specific allegation regarding the status of the defendant Lucas as a fireman, this court denies the motion to strike the first count for failure to comply with the notice and time requirements of General Statute § 7-308. The court will examine the second argument as to whether the first count should be stricken because the defendant has immunity for his actions.
This finding is limited to the motion to strike and is not to be perceived as a ruling related to any future motions addressed to the court after the completion of the discovery phase of the action.
THE NEGLIGENCE CLAIMS AND APPLICABLE IMMUNITY
The defendants contend that any claim of negligence against either the individual, Lucas, or the town cannot survive because the defendants are entitled to governmental immunity for negligent acts. There are two components that must be considered on a claim for immunity to apply. The first component involves an analysis of whether the duty is discretionary or ministerial. The law holds that a ministerial act, that is, one performed without any exercise of discretion would not be subject to governmental immunity. Violano v. Fernandez, 280 Conn. 310, 907 A.2d 1188 (2006). If on the other hand the duty is one that requires the exercise of discretion, that is, if the individual has choices or various unscripted methods to perform, that individual is immune so long as one of the three exceptions do not apply. The first and second counts of the complaint each refer to negligent acts of the individual defendant Lucas and the Town of Greenwich.
The first count alleges common-law negligence but does not allege that the action is pursuant to General Statute § 52-557n. The plaintiff's second count alleges that the Town of Greenwich is liable for the injuries and subsequent death to Jacqueline Bardales Chirieleison pursuant to General Statute § 52-557n for negligent acts of its employees or agents. The general common-law rule of negligence maintains that a municipality "is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." Williams v. New Haven, 243 Conn. 763, 767, 707 A.2d 1251 (1998). The Connecticut Supreme Court has held that "section 52-557n abandons the common law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages." Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006). However, "section 52-557n(a)(2)(B) . . . explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." Doe v. Petersen, supra, 279 Conn. 614.
Section 52-557n(a)(1) states in relevant part that "a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . ."
Section 52-557n "was enacted to codify the common law and to limit the scope of governmental immunity." Mulligan v. Rioux, 229 Conn. 716, 643 A.2d 1226 (1994) (citing Conway v. Wilton, 238 Conn. 653, 672, 680 A.2d 242 (1996).
Both the first and second counts of the amended complaint contain a myriad of legal claims and appear to mix the ministerial and discretionary duties within the claims. In Paragraphs 10 and 21a, the plaintiff contends that the actions and omissions of defendants Lucas, and other agents, officer and/or employees of the defendant, Town of Greenwich, were ministerial to the extent there exists prescribed standards, regulations, rules and/or procedures requiring the Town of Greenwich, firefighters and other municipal officials perform their duties in securing a traffic accident scene in a prescribed manner without the exercise of judgment or discretion. However, in the next paragraph, 21b, the plaintiff alleges that the plaintiff was in a "narrowly identifiable class of foreseeable victims at the time of her injury and death." These allegations within the same count as to either common-law negligence or statutory negligence pursuant to § 52-557n are incongruous. "Municipal officials are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). A portion of the plaintiff's complaint defines the actions by the defendants as ministerial, that is, guided by prescribed regulations and standards. Although there is no specific citation to a regulation or a procedure in paragraphs 10 and 21a, the allegations do provide an indication that Lucas failed to follow appropriate standards, thus being the proximate cause of the incident. The plaintiff contends that the allegations regarding failure to follow standards is sufficient to overcome a motion to strike. In support of the defendant's position, they referred to a decision by the court in Kumah v. Brown, Superior Court, judicial district of Fairfield, Docket No. 08 5015502 (January 7, 2009, Bellis, J.). The superior court decision in Kumah, striking the count in negligence after finding it was a discretionary act, was appealed. Recently, the Appellate Court released a decision reversing the court's finding. Kumah v. Brown, 127 Conn.App. 254 (2011). In particular, the Appellate Court focused on the factual allegations within the Kumah complaint in determining that the complaint contained sufficient factual allegations in support of a negligence claim. Like the arguments of the defendants in the instant action, the Kumah defendants argued that there were no specific standards or regulations set forth in the complaint and therefore the actions could not be found ministerial. The lower court had viewed the allegations and made observations that the alleged acts were most often held to create discretionary duties and thus the ministerial claims could not survive allowing the immunity defenses. The Kumah court addressed the motion from a very strict procedural ground. The court stated 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 . . . Pleadings construed broadly and realistically, rather than narrowly and technically." Kumah, supra. Thus, the court found that allegations within the complaint that referred to standards and regulations without providing specific standards was sufficient to provide a factual basis in support of the cause of action. The complaint in the instant action consists of almost identical allegations. The court found that "taking the facts to be those alleged in the complaint that has been stricken" (internal quotation marks omitted) id., 317, as we are required to do, it is equally apparent that the plaintiffs' negligence counts adequately plead a cause of action for the breach of ministerial duties." Kumah, supra, 127 Conn.App. 261. The court followed a standard for review that requires a strict adherence to the facts pled. It stated that "inquiry should have been limited to a consideration of whether, if proven, the facts as alleged in the complaint would support a cause of action irrespective of the doctrine of governmental immunity." Thus with almost identical allegations and the guidance of Kumah, the motion to strike is denied because the complaint on its face alleges a cause of action for ministerial acts in Paragraph 10 which provides: "The actions and omissions of defendant, Robert S. Lucas, as aforesaid were ministerial to the extent there exists prescribed standards, regulations, rules and/or procedures requiring defendant, Robert S. Lucas, perform his duties in securing a traffic accident scene on I-95 in a prescribed manner without the exercise of judgment or discretion; while the determination of the state of facts involved the exercise of judgment, the subsequent duty to act was mandatory and therefore ministerial."
Because this court follows the law as set forth in Kumah which found a sufficient basis in similar pleadings to proceed on the negligence claim as to the ministerial duty, the court does not address the issue as to whether the claims are sufficient for a finding of immunity pursuant to the claim of governmental immunity.
The defendant argued that placement of the fire truck on the roadway, placement and utilization of road cones and lighting of an accident scene were by their very nature discretionary acts. This court is well aware of the case law that has determined that the "municipal corporation is exercising a governmental function when maintaining and operating a fire department pursuant to legislative authority, and while in the exercise of that function is not liable for the negligent act of its officers, agents and servants." Brock-Hall Dairy Co. v. City of New Haven, 122 Conn. 321, 189 A.2d 182 (1937). However, the claims of discretionary acts and the subsequent exceptions also require an analysis of the facts, actions and particular circumstance in this action to determine if the immunity applies. This claim can be raised at a later time, if appropriate, by the defendants. Even if this court addressed the discretionary acts, the plaintiff also alleges that the plaintiffs were identifiable victims in imminent harm which may or may not give rise to an exception depending upon an analysis of the factual background.
Therefore, since the plaintiff appears to have adequately alleged both ministerial and governmental theories in counts one and two, the court follows the decision in Kumah which precludes a motion to strike when the complaint contains factual allegations that could ultimately provide a viable cause of action. Therefore, the issue before the court is whether the complaint sufficiently pleads a cause of action for negligence that precludes a motion to strike. A reading of the complaint in conjunction with the ruling in Kumah precludes granting the motion to strike as to Counts I and II of the Amended Complaint.
The defendant argued that this court should follow the decision in Kumah which granted the motion to strike and thus it follows that the court should also be bound by the Kumah decision of the appellate court reversing the ruling granting the motion to strike.
The motion to strike is denied as to both Count I and Count II of the Amended Complaint.
THE NUISANCE CLAIM
Count three of the amended complaint alleges that the actions of the Town of Greenwich constitute a nuisance. The defendant claims that the plaintiffs have failed to allege sufficient facts to state a nuisance claim, and thus the court should strike this count of the amended complaint. Statutory municipal liability for the creation of a nuisance is governed by § 52-557n(a)(1)(C) "imposes liability in nuisance on a municipality only when the municipality positively acts to create the alleged nuisance." Picco v. Town of Voluntown, 295 Conn. 141, 989 A.3d 593 (2010). A failure to act, however, does not create or cause a nuisance: "A failure to act to abate a nuisance does not fall within the meaning of the term `acts,' as used in § 52-557n(a)(1)(C), because inaction does not create or cause a nuisance; it merely fails to remediate one that had been created by some other force. Accordingly, the plain meaning of § 52-557n(a)(1)(C) leads us to conclude that the provision imposes liability in nuisance on a municipality only when the municipality positively acts (does something) to create (cause) the alleged nuisance." Id., 149. In order to prevail on a claim for public nuisance, a plaintiff must prove that "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the [plaintiff's] injuries and damages." Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). A public nuisance "is one that injures the citizens generally who may be so circumstanced as to come within its influence . . . Typical examples of public nuisances are . . . obstruction of safe travel on a public highway . . ." Collins v. Olin Corp., 418 F.Sup.2d, 34, 52 (2006).
Section 52-557n(a)(1) provides in relevant part that "a political subdivision of the state shall be liable for damages to person or property caused by . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance."
The common law also imposes a positive act requirement for municipal defendants: "[W]hen the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act created the condition constituting the nuisance." Picco v. Town of Voluntown, 295 Conn. 141, 156, 989 A.3d 593, 598 (2010).
Public nuisance law "is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety." Pestey v. Cushman, 259 Conn. 345, 357 (2002).
Municipal defendants, such as the town of Greenwich, have the privilege of governmental immunity. In order to overcome the governmental immunity of municipal defendants, "the plaintiff must prove that the defendant[s], by some positive act, intentionally created the conditions alleged to constitute a nuisance." Elliot v. City of Waterbury, 245 Conn. 385, 715 A.2d 27 (1998) (citing Keeney v. Old Saybrook, 237 Conn. 135, 165-66, 676 A.2d 795 (1996)). The standard for the determination of whether or not a nuisance was intentionally created has been enunciated by the Supreme Court in Keeney v. Old Saybrook, supra, as, "an interference with the public right is intentional if the municipality . . . knows that it is resulting or is substantially certain to result from its conduct." Collins v. Olin Corp., 418 F.Sup.2d 34 (2006) (citing Keeney v. Old Saybrook, supra, 165-66).
The court in Collins v. Olin Corp., 418 F.Sup.2d 34 (2006) further noted that "it is not enough to make an invasion intentional that the actor realizes or should realize that its conduct involves a serious risk or likelihood of causing the invasion, rather the actor must either act for the purpose of causing it or know that it is resulting or is substantially certain to result from the actor's conduct." Id., 53.
In count three, the plaintiffs set forth a claim of nuisance pursuant to § 52-557n against the defendant Town. The plaintiffs allege that the defendant Town is liable through the actions and/or omissions of its agents, officers and/or employees, including the defendant Lucas as well as Fire Patrol's chief, Brian Kelly, fire department deputy chief Keith Millette, fire captain Dan Burns and fire lieutenant Kozack. The plaintiff alleges that the Town created a nuisance by its failure to properly position the fire truck as to make it visible to oncoming traffic, that the town knew or should have known that the placement would increase and/or create danger to oncoming motor vehicles; that it failed to use a sufficient number of traffic cones or set the cones at a sufficient distance to provide adequate warning to oncoming motor vehicles and failed to properly secure the scene. The plaintiffs allege that the acts of the town and its agents and employees had a natural tendency to create danger and inflict injury upon persons such as the plaintiff and that such danger was a continuous one as long as the town fire truck was parked across the travel lanes of I-95, and that such actions of the defendant Town's employees, officers and agents were unreasonable under the circumstances and the existence of such nuisance was the proximate cause of the plaintiff's injuries.
The only individual who has been named as a defendant in this action is Robert Lucas. The other individuals while referred to in the complaint are not named defendants.
The defendant contends that the nuisance count fails to state a legal claim for nuisance and merely recites the same facts as alleged in the claim for negligence. While the factual allegations are the same, the court reviews the pleadings as a whole to determine if they satisfy the pleading requirements for a cause of action in nuisance. The plaintiffs argue that the defendant Lucas intentionally parked the fire truck diagonally across two lanes of I-95 and knew that such actions could result in imminent harm to motorists approaching the scene. Additionally, the plaintiffs rely upon the case of DeLahunta v. Waterbury, 134 Conn. 630, 59 A.2d 800 (1948) for its position that the placement of an object in the roadway is a public nuisance. The plaintiff also argues that the continuing danger element can be found without a danger existing for a long period of time. Warren v. City of Bridgeport, 129 Conn. 355, 28 A.2d 1 (1942).
The defendant contends that the claims are nothing more than a claim for negligence and there is a conflict in the allegation that the incident in question was a continuing one and the allegation that the harm could occur within a limited temporal and geographic zone involving a temporary condition. While this may be an issue at trial or if addressed in other pleadings, for purposes of a motion to strike, count three recites elements related to the claim of nuisance. Further, the Connecticut Supreme Court has held that "if a municipal corporation creates and maintains a nuisance, it is liable for damages to any person suffering special injury therefrom, irrespective of whether the misfeasance or nonfeasance causing the nuisance also constitutes negligence." Warren v. City of Bridgeport, 129 Conn. 355, 359, 28 A.2d 1, 3 (1942).
The plaintiffs' complaint is very similar to the facts as alleged in Kumah v. Brown, supra. In that action the court held that since the "town's employees affirmatively place the fire truck and road cones on the road, the intent to commit an action alleged to constitute a nuisance element is met." Id. Based upon the allegations in the instant case the court follows the reasoning of the court in Kumah and finds that the plaintiffs have met the first element of positive act and intent to assert a claim for a public nuisance action.
The next element of a claim for nuisance requires a determination of whether the positive act had "a natural tendency to create a continuing danger, and therefore if it was substantially certain that a nuisance would result from the actions of the town's employees." Id., 8. Regarding the continuing danger requirement, the court in Kumah, citing Warren v. City of Bridgeport, supra, 129 Conn. 355, noted that the continuing danger requirement "does not mean an exposure of another or his property to danger over a long period of time." Kumah v. Brown, supra. In Warren, the plaintiff was a passenger in a motor vehicle that collided with a mechanical street sweeper owned by the city of Bridgeport and operated by its employee. The plaintiff set forth claims against the city for negligence and nuisance. The court held that the "presence of the sweeper for the time and under the circumstances described might reasonably have been found to have been a continuing danger." The court rejected the defendant's claim that the element of continuance required for a nuisance cause of action was lacking. In the present action, the plaintiff's allege that the fire truck was positioned, that is, parked on, the highway and the positioning was in such a manner that approaching motorists were inadequately warned of the danger. The complaint alleges that the danger was a "continuous one as long as the defendant, town of Greenwich's fire truck was parked across the travel lanes of I-95." This allegation satisfies the pleading element of a claim of nuisance.
During argument, the defendant argued that the nuisance claim among others must also fail because the proper cause of action is pursuant to § 13a-149 for a highway defect. This statute provides in relevant part: "any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair." The Connecticut Supreme Court has held that "an action brought under . . . § 13a-149 is a plaintiff's exclusive remedy." Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001); see also Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991). The defendant argues that the highway statute should apply in the present action because the placement of the fire truck on the highway is as much a highway defect in this action as the radar trailer was in the Himmelstein action. Himmelstein v. Windsor, 116 Conn.App. 28, 974 A.2d 820, cert. granted 293 Conn. 927, 980 A.2d 910 (2009). This court cannot agree with the defendant's argument because as the court indicated during the course of oral argument, a finding of this nature would subject any police or emergency activity on a highway to liability as a result of this interpretation. That was never the intent of the statute which allowed liability against a town or municipality under very strict conditions. Additionally, the appellate court in Kumah v. Brown, supra. ruled that the plaintiff failed to allege that the road where this incident occurred, I-95, was a road which the town of Darien was bound to keep . . . in repair" pursuant to § 13a-149, thus precluding application of liability pursuant to the statute. As such, the nuisance counts are not precluded by the application of this statute.
Based upon the above, the court finds that the plaintiffs have alleged sufficient facts to state a claim for public nuisance and the court denies the motion to strike count three.
CLAIM AGAINST COS COB FIRE POLICE PATROL
Count four of the amended complaint alleges liability of the defendant Cos Cob Fire Police Patrol ("Police Patrol") pursuant to the theories of respondeat superior and General Statutes § 52-183.
The fourth count repeats the allegations in the first count and adds paragraph 20 that states in part: "such actions and/or omissions may be imputed to the defendant, Cos Cob Fire Police Patrol, Incorporated, pursuant to the doctrine of respondent (sic) superior, and/or Conn. Gen. Stat. Sec. 52-183."
The defendants contend that this count must be stricken because the individual defendant is immune from liability as argued above. However, this court has denied the motion to strike as to the claim of immunity. A claim under the principle of respondeat superior would impute liability to an employer for the negligent acts of an employee during the course of his employment. Because this court has denied the motion to strike the negligence claims based upon immunity, the negligence claim against the defendant Lucas has not been precluded. Therefore, the defendants' argument that the claim of respondeat superior cannot survive is not supported, based upon this court's earlier ruling.
The plaintiff also contends that the defendant Police Patrol is responsible pursuant to General Statute § 52-183. This statute states: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption." This statute requires that the plaintiff allege that the defendant is the owner of the motor vehicle and that the named individual defendant, operator of the motor vehicle, is an agent and servant of the owner of the motor vehicle. In the instant action, the plaintiff alleges that: "The defendant, Town of Greenwich, Connecticut, is a Connecticut municipality organized under the laws of the State of Connecticut." and "Defendant, The Cos Cob Fire Police Patrol, Incorporated, was at all times herein mentioned, a non-stock Connecticut Corporation with its principal office located in Cos Cob, Connecticut." The plaintiffs further allege that: "defendant, Robert S. Lucas, was operating a 2004 Pierce fire truck owned by defendant, Town of Greenwich, which defendant Lucas had parked across the travel lanes . . ." The plaintiff does not allege in count four any facts related to the ownership of the motor vehicle or any facts related to any relationship of the Town and the Police Patrol that would satisfy the element of ownership of the motor vehicle which is necessary to allege a cause of action pursuant to § 52-183. The plaintiff has not argued or responded to the argument of the defendant that count four fails to plead ownership necessary to support a statutory cause of action.
Therefore, the motion to strike Count Four is granted.
THE INDEMINIFICATION CLAIM PURSUANT TO § 7-465
The fifth count of the complaint is a claim for indemnification against the Town of Darien for the alleged negligent actions of defendant Lucas. The fifth count re-alleges the facts of the first count and thereafter concludes that: "Pursuant to Conn. Gen. Stat. § 7-465, the defendant Town of Greenwich is liable for the damages incurred by plaintiff, Jacqueline Bardales Chirieleison, as a result of the negligence of the defendant Robert S. Lucas." An action pursuant to this statute is one in indemnification for acts of an employee or agent. The court has already ruled that the actions of the defendants do not fall within the parameters of § 7-308, as the fireman exception to § 7-465. In order to satisfy the elements of this statutory claim, the plaintiff must plead that the defendant is an employee or agent of the municipality and the plaintiff must plead that he has satisfied the notice requirements of the statutory claim. In particular, section 7-465 provides in relevant part that: "No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefore arose and written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued." The instant complaint on its face fails to satisfy two requirements of this statutory claim. The complaint identifies Robert Lucas as "a resident of the Town of Greenwich, Connecticut and acting in his capacity as a member of the Cos Cob Fire Police Patrol, Inc. a volunteer organization operated under the direction of the Town of Greenwich, Connecticut." Amended Complaint ¶ 4. Paragaph 19 of the Fifth Count describes Lucas only as a "defendant." There is no cause of action pursuant to § 7-465 without also suing a municipal employee or agent. Gaudino v. East Hartford, 87 Conn.App. 353, 865 A.2d 470 (2005). The complaint is lacking this element. Additionally, § 7-465 requires a plaintiff to provide notice of the intention to sue the municipality specifying the time and location of the accident with the clerk of the municipality within six months of the accrual of the cause of action. The plaintiff has not included within the Fifth Count, any factual allegations that she has satisfied this mandatory element. Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002). Therefore, the plaintiff has failed to plead a cause of action for municipal indemnification and the motion to strike Count Five is granted.
Based upon the above, the motion to strike is denied as to Counts I, II, and III, and granted as to Counts IV and V.