Opinion
No. 5004821
July 28, 2008
MEMORANDUM OF DECISION
This negligence action is brought by the plaintiff, City of Derby, against its former mayor, the defendant Marc Garofalo. The revised complaint alleges that between November 8, 2005 and December 3, 2005, the defendant negligently "a. caused or directed other persons to delete and erases [sic] the hard drives of a [sic] up to five of the computers owned by the Plaintiff; b. caused or directed other persons to remove `back-up' computer data storage tapes from the Plaintiff's premises." The plaintiff claims that "[a]s a result of the Defendant [sic] actions, the City incurred considerable costs to investigate the removal of the tapes, for the unauthorized erasure of data and to restore the memory to the computer systems." The plaintiff further alleges that "[t]he Defendant's actions were not authorized by the keeper of records and were in violation of Chapter 14, The Freedom of Information Act, of the Connecticut General Statutes, section 1-200, et seq."
The defendant has moved to strike the complaint on the grounds that "(1) it alleges a violation of `The Freedom of information Act . . . Sec. 1-200 et seq.' and the said statute(s) do not provide a private right of action; (2) there are no facts alleged which would constitute [sic] support a claim of such a violation; and (3) the allegations are of discretionary acts by a public official, immunized from suit under § 52-557n of the General Statutes."
"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. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The court agrees that there is no private right of action under the Freedom of Information Act. Pane v. City of Danbury, 267 Conn. 669, 841 A.2d 684 (2004). That, however, is not dispositive. "The court must construe the facts in the complaint most favorably to the plaintiff. If
facts provable in the complaint would support a cause of action, the motion to strike must be denied." Faulkner v. United Technologies Corp., supra, 240 Conn. 580. The court agrees with the plaintiff that the complaint states a cause of action for simple negligence, independent of the reference to the Freedom of Information Act.
The defendant's remaining claim is that what the plaintiff complains of are "discretionary acts by a public official, immunized from suit under § 52-557n of the General Statutes." The defendant specifically relies on General Statutes § 52-557n(a) which provides in pertinent part: "(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) 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."
General Statutes § 52-557n provides:
(a)(1) Except as otherwise provided by law, 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; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) 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. (b) Notwithstanding the provisions of subsection (a) of
this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: (1) The condition of natural land or unimproved property; (2) the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person in a manner which is not reasonably foreseeable; (3) the temporary condition of a road or bridge which results from weather if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (4) the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568; (6) the act or omission of someone other than an employee, officer or agent of the political subdivision; (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances; (9) failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision; or (10) conditions on land sold or transferred to the political subdivision by the state when such conditions existed at the time the land was sold or transferred to the political subdivision.
(c) Any person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury occurring on or after October 1, 1992, resulting from any act, error or omission made in the exercise of such person's policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person's official functions
and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person, or in violation of subsection (a) of section 9-369b or subsection (b) or (c) of section 1-206. The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, wilful or wanton misconduct of such person.
By its plain and unambiguous terms, the statute applies only to "a political subdivision of the state . . ." See General Statutes § 1-2z. This is underscored by the fact that subsection (b) of General Statutes § 52-557n does apply to "any employee, officer or agent" as well as political subdivisions. "We consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 103, 733 A.2d 809 (1999). "It is generally presumed that [the Legislature] acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another." BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 757, 128 L.Ed.2d 556 (1994). That reality notwithstanding, the dispositive question on the motion is whether as a matter of law the complaint alleges that the defendant's actions constituted governmental acts — "an official function of the authority expressly or impliedly granted by law." From the face of the complaint, this cannot be determined.
General Statutes § 1-2z provides:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
Even apart from the statute, at common law "a municipal employee . . . has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature." Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003).
The plaintiff argues that the defendant was not acting within the scope of his employment and that "the Defendant's action of negligently erasing or causing to be erased data from computers and removal of the back up tapes can in no way be said to be one that is performed for the direct benefit of the public." Plaintiff's Memorandum of Law In Support
of Its Objection to the defendant's Motion to Strike, p. 5. The defendant, argues the plaintiff, "had abandoned his scope of employment . . ." Id., p. 6.
Generally, governmental immunity must be specially pleaded by the defendant in accordance with Practice Book § 10-50. Gauvin v. New Haven, 187 Conn. 180, 184-85, 445 A.2d 1 (1982). The plaintiff is not required to plead facts negating such a defense. Cf. White v. Edmonds, 38 Conn.App. 175, 183, 659 A.2d 748 (1995). However, when "it is apparent from the face of the complaint that the [defendant] 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." Brown v. Branford, 12 Conn.App. 106, 111 n. 3, 529 A.2d 743 (1987); see also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988) (approving the practice of deciding the issue of governmental immunity as a matter of law).
The court is unable to determine from the face of the complaint whether the defendant was engaging in a governmental function, and thereby acting for the benefit of the public, in performing the acts alleged. For this reason, the motion to strike is denied.