Opinion
No. CV 04 40008065S
December 13, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 105 AND #128
This motion to strike asks whether count two of the plaintiff's amended complaint should be stricken for the plaintiff's failure to comply with the statutory notice provisions of General Statutes § 7-108, and whether count three should be stricken because no exception to the doctrine of qualified immunity applies. For the reasons given, the motion to strike must be granted.
Facts
The plaintiff, Tina Kowalczyk, originally filed a two-count complaint on September 21, 2004, against the defendants, New Milford Board of Education (the board) and JeanAnn Paddyfote, superintendent of New Milford schools. The plaintiff was employed as a job coach by Education Connection, Inc., an independent contractor hired by the board. The plaintiff's complaint involves an incident that occurred on January 30, 2003, in the hallway of New Milford High School. Several students were involved in an altercation, one of whom sought protection with the plaintiff. Another student ran towards the plaintiff in an attempt to attack the student seeking protection behind her, and in doing so, crashed into the plaintiff's extended arm, causing her serious injuries.
The defendants moved to strike both counts of the complaint on the basis of governmental immunity. The plaintiff subsequently amended her complaint, which now contains six counts, including allegations against the defendants who have been added since the initiation of the suit, Ramon Leite and Security Services of Connecticut, Inc., as well as additional allegations to the pre-existing defendants. In count one, the plaintiff alleges negligence against the board; in count two, a violation of General Statutes § 7-108 against the board; in count three, negligence against Paddyfote, pursuant to General Statutes §§ 10-157 and 10-220; in count four, a violation of § 7-108 against Paddyfote; and in counts five and six, allegations against those defendants who have not joined in this motion to strike. The board and Paddyfote filed a supplemental motion to strike addressing the additional allegations made in the plaintiff's amended complaint. In the plaintiff's memorandum in opposition filed on August 29, 2005 and at oral argument, counsel for the plaintiff indicated that he did not oppose the striking of the first and fourth counts of the amended complaint. Therefore, this court need only consider the motion to strike as to the second and third counts of the amended complaint.
The term `defendants' will be used when referring to both the board and Paddyfote collectively.
The defendants, Leite and Security Services of Connecticut, Inc., have not joined in this motion to strike.
Discussion
"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.2 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, 56 Conn.App. 325, 328, 743 A.26 622 (2000). "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [Thus] [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005).
In its memorandum of law in support of the motion to strike, the board argues that the plaintiff's claim of liability against it under § 7-108 is insufficient as a matter of law because the plaintiff has failed to comply with the statutory thirty days notice provision. The board argues that, in order to hold a city or borough liable for damages under § 7-108, the person claiming damages must give written notice to the clerk of the city of the claim and the injury upon which that claim is based, and that this was insufficiently accomplished for two reasons. First, the notice initially was made to the superintendent of schools, not to the city or town clerk as required. Second, the notice that was ultimately served upon the town clerk was not served until July 28, 2003, almost seven months after the date of the injury. As a result, the board maintains that count two is time barred.
In response, the plaintiff counters that the motion to strike should not be granted on the ground of noncompliance with § 7-108 for several reasons. First, the statute has been substantially complied with, because notice was given even if not within the requisite thirty days. Second, the plaintiff argues that the defendant has not shown any prejudice by the untimeliness of the notice. Finally, the plaintiff claims that the board should be treated the same as a town/borough/city for the purposes of being sued, and, therefore, should not be exempt from liability under § 7-108.
The first issue is whether count two, against the board under § 7-108, should be stricken. Section 7-108 provides in relevant part: "Each city and borough shall be liable for all injuries to person or property, including injuries causing death, when such injuries are caused by an act of violence of any person or persons while a member of, or acting in concert with, any mob, riotous assembly or assembly of persons engaged in disturbing the public peace, if such city or borough, or the police or other proper authorities thereof, have not exercised reasonable care or diligence in the prevention or suppression of such mob, riotous assembly or assembly engaged in disturbing the public peace. Any person claiming damages under this section from any city or borough shall give written notice to the clerk of the city or borough of such claim and of the injury upon which such claim is based, containing a general description of such injury and of the time, place and cause of its occurrence, within thirty days after the occurrence of such injury." Because § 7-108 is a waiver of the sovereign immunity that cities usually enjoy, it must be construed narrowly. Sestito v. Groton, 178 Conn. 520, 524, 423 A.2d 165 (1979). Notice provisions are "a condition precedent to a cause of action when the statute containing those provisions create[s] a new cause of action previously unrecognized by the common law." White v. Edmonds, 38 Conn.App. 175, 185, 659 A.2d 748 (1995). "The notice requirement is not intended merely to alert the [defendant] to the occurrence of an accident and resulting injury, but rather to permit the [defendant] to gather information to protect himself in the event of a lawsuit . . . The purpose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection." (Emphasis in original; internal quotation marks omitted.) Martin v. Plainville, 240 Conn. 105, 112-13, 689 A.2d 1125 (1997).
The necessity of compliance with § 7-108 can be determined through examination of similar situations involving other statutes. General Statutes § 13a-149 provides for suits against municipalities for injuries received as a result of highway defects. The statute provides that "[n]o action for any such injury shall be maintained against any town . . . unless written notice of such injury . . . shall, within ninety days thereafter be given to a selectman or the clerk of such town . . ." (Internal quotation marks omitted.) Brennan v. Fairfield, 255 Conn. 693, 698, 768 A.2d 433 (2001). In Brennan, notice was delivered on the ninety-second day, but the court upheld the validity of this notice because the ninetieth and ninety-first days were Saturday and Sunday, and, as a result, the town clerk's office was not open to receive that notice. Id., 703. In another case, however, regarding a similar statutory notice requirement to bring an action against the highway commissioner, the validity of notice, as required within sixty days by § 1481, was deemed to be insufficient when it was mailed on the sixtieth day, a weekday, and, therefore, was not received until after the statutorily required time period had passed. Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 238, 56 A.2d 519 (1947), see also Bresnan v. Frankel, 224 Conn. 23, 615 A.2d 1040 (1992).
These two separate analyses set a standard with which the noncompliance with the statutory notice period in § 7-108 should be dealt. In the present case, notice was not served until more than six months after the alleged incident. No issue arises regarding whether the clerk's office was open on the thirtieth day, or whether notice was mailed within the thirty days, because notice was not served upon the town clerk within any period of time remotely close to the limits of the notice period. Weighing the fact that the Supreme Court has given great consideration to the specific parameters of statutorily required notice, the statutory notice provision in § 7-108 is a mandatory requirement, the noncompliance of which may constitute grounds for a motion to strike.
Further, § 7-108 provides a statutorily created exception to sovereign immunity, and, as such, "the statutorily required notice is a condition precedent to the cause of action." without which "no cause of action exists." (Internal quotation marks omitted.) Warkentin v. Burns, 223 Conn. 14, 17-18, 610 A.2d 1287 (1992). Because "[a] statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way"; (internal quotation marks omitted). Zirinsky v. Zirinsky, 87 Conn.App. 257, 271, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Starks v. University of Connecticut, 270 Conn. 1, 31, 850 A.2d 1013 (2004); the plaintiff's total noncompliance with the statutorily required notice period is a ground on which the motion to strike count two of the plaintiff's amended complaint must be granted.
In addition, the board contests the plaintiff's failure to serve a timely notice upon the town clerk. Rather than properly serving the town clerk within the prescribed time, service was effectuated first on the superintendent of schools, and then, several weeks later, the town clerk was served. "Under the General Statutes of Connecticut, municipal clerks are the repositories of a variety of notices which must be given by individuals and other government agencies in order to preserve substantial rights . . . As with other rules of law, these filing requirements have an effect on how the municipalities and individuals . . . conduct their affairs . . . Town and city clerks, especially in larger municipalities, have established routines and protocols for the handling and forwarding to other appropriate officials of such notices." (Citations omitted.) Diamond v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 00 0446282 (April 19, 2005, Levin, J.) ( 39 Conn. L. Rptr. 214).
In another decision regarding the required notice of § 13a-149, the court determined that service upon an official other than the prescribed town clerk did not fulfill the purpose of the notice statute. Diamond v. New Haven, supra, Superior Court, Docket No. CV 00 0446282. ( 39 Conn. L. Rptr. 214) Though the court recognized that service upon another town agent may still effectuate the purpose of the statute by passing the notice on to the town clerk and may have been passed on previously by the superintendent, the court determined that "[j]udicially sanctioning the rerouting of § 13a-149 notices, by permitting them to be served on the presumed next destination rather than on town clerk would inject a degree of informality into the notice and subvert rather than serve the purposes of the notice." Diamond v. New Haven, supra, Superior Court, Docket No. CV 00 0446282. ( 39 Conn. L. Rptr. 214).
In the present case, like in Diamond, notice was first served on someone other than the town clerk. Though notice was eventually served upon the town clerk, the required service provision in § 7-108 is not a guideline but a mandatory requirement, and, therefore, service upon someone other than the town clerk did not fulfill the statutory notice requirements necessary to sustain a cause of action thereunder. This is further evidenced by the fact that "[i]f the legislature had intended to excuse the serving of the notice on the wrong municipal official, it could have plainly provided for this circumstance in the savings clause." Diamond v. New Haven, supra, Superior Court, Docket No. CV 00 0446282. Because similar provisions to § 7-108 require that service be made upon the actual official statutorily provided for, and because, in this case, the plaintiff did not first serve the town clerk as required, the board's motion to strike count two of the amended complaint must be granted.
The next issue is Paddyfote's motion to strike count three. In her memorandum of law in support of her motion to strike, Paddyfote argues that count three should be stricken since she is entitled to qualified immunity and no exception to that doctrine applies in this case. Paddyfote argues that she cannot be held liable under a theory of negligence for the plaintiff's injuries because, as a municipal employee, she possesses a qualified immunity in the performance of governmental acts she carries out as a part of her role as superintendent of schools in New Milford. Recognizing that exceptions to the application of qualified immunity exist, she argues that the plaintiff does not fit into one of those exceptions, specifically the identifiable victim/imminent harm exception. Paddyfote makes this argument because the plaintiff does not allege that she was compelled to be present at the location where the injury allegedly occurred at the time of its occurrence. Because the plaintiff was not required to be there and was not in danger of imminent harm, Paddyfote argues that no exception to the doctrine of governmental immunity should be applied in this case.
The plaintiff counters that Paddyfote does not enjoy any immunity from suit, and that there are three different tests with which to analyze Paddyfote's immunity and/or liability. First, since the students of whom she was in charge were part of a "Behavioral Intervention Program," the plaintiff owed them a private duty different from that owed to mainstream public education students. Second, because Paddyfote was performing a ministerial public duty, the identifiable person/imminent harm exception applies. Finally, public policy considerations, such as sending the wrong message that educators allow students under their supervision to fight and fail to protect students, contrary to providing a secure and safe learning environment.
"[A] motion to strike ordinarily is an improper method for raising a claim of governmental immunity . . . however . . . 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 through a motion to strike. Doe v. Board of Education, 76 Conn.App. 296, 299 n. 6, 819 A.2d 289 (2003); Brown v. Branford, 12 Conn.App. 106, 111 n. 3, 529 A.2d 743 (1987). "[W]here it is not apparent from the allegations of the complaint that the municipality was so engaged, then the defense of governmental immunity should be pleaded." (Internal quotation marks omitted.) Zaborowski v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV 04 0093025 (February 2, 2005, Brunetti, J.) (38 Conn. L. Rptr. 638-39). Under the allegations as pleaded in the complaint, a motion to strike can be used to raise the issue of governmental immunity in this action.
"Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [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 . . . [T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." (Citations omitted; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107-08, 708 A.2d 937 (1998). "The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the 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; . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citation omitted.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003). "Generally, liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act." Kolaniak v. Board of Education, 28 Conn.App. 277, 281, 610 A.2d 193 (1992).
"[T]he [identifiable person-imminent harm] exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . Our Supreme Court [has] emphasized the limited nature of the concept of imminent harm . . ." (Citation omitted; internal quotation marks omitted.) Doe v. Board of Education, supra, 76 Conn.App. 302. This strict limitation on the exception exists because "[t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Internal quotation marks omitted.) Id.
"An individual may be "identifiable" for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition." Tryon v. North Branford, 58 Conn.App. 702, 710, 755 A.2d 317 (2000). In Purzycki v. Fairfield, the court found that the facts were sufficient to bring the case within the identifiable person-imminent harm exception to governmental immunity. Purzycki v. Fairfield, 244 Conn. 101, 110-11, 708 A.2d 937 (1998). In that case, the plaintiff, a second grader, was injured when another student stuck out his foot and tripped him in an unmonitored hallway. Id., 104. The student was in the hallway while passing between the monitored lunchroom to his outdoor recess. Id. The first prong of the identifiable person-imminent harm exception was satisfied because "schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." Id., 109. The second prong of the exception was also satisfied because the plaintiff's path from the supervised lunchroom to outdoor recess "involve[d] a temporary condition," in which "the risk of harm was significant and foreseeable, as shown by the principal's testimony that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries." (Internal quotation marks omitted.) Id., 110.
Conversely, in Doe v. Board of Education, in considering the question of imminent harm in the context of a motion to strike, the court found that the situation did not fall into the identifiable person-imminent harm exception. Doe v. Board of Education, supra, 76 Conn.App. 301-06. In that case, the minor plaintiff, a student, was accosted and sexually assaulted by three other students. Id., 297. "The plaintiff [alleged] that the defendant failed to provide a safe and secure educational environment for students. Specifically, the plaintiff [alleged] that the defendant did not provide an adequate number of hall monitors, did not implement a system for ensuring that students were not roaming the halls unsupervised and did not take steps to provide for adequate supervision of students known to have disciplinary problems or to secure vacant rooms so that they could not be used for unlawful purposes." Id. The court compared the case before it to other cases in which the exception was applied in school settings, e.g., Purzycki v. Fairfield, supra, 244 Conn. 101, and Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994). Id., 303-05. The court noted that in both of those cases, the temporal and geographic conditions were limited; unlike the case before it where the "alleged danger . . . was not limited to a particular area of the school and a particular time period." Doe v. Board of Education, supra, 76 Conn.App. 305. Because the danger in Doe did not make it "apparent to the defendant that its failure to act would be likely to subject students to imminent harm," the Doe court found that the defendant could not be held liable under the identifiable person-imminent harm exception to the qualified immunity that municipal employees enjoy. Id., 305-06.
The present case is similar to Doe, rather than Purzycki, and, therefore, the identifiable person-imminent harm exception to qualified immunity does not apply. The exception applying to identifiable individuals applies to "narrowly defined identified classes of foreseeable victims . . . In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." (Citation omitted; internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 573, 839 A.2d 1259 (2004). "[A] person driving a vehicle who is struck by a falling tree limb is not an identifiable victim for the purpose of governmental immunity." DeConti v. McGlone, 88 Conn.App. 270, 274, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). Conversely, "school children, who are statutorily required to attend school, are an identifiable class of foreseeable victims." Colon v. Board of Education, 60 Conn.App. 178, 184, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). In this case, the plaintiff seems to fall somewhere between a motor vehicle operator who has a tree fall on her car and school children who are required by law to be present at school. Even if it is determined, however, that the plaintiff was an identifiable person in imminent danger within the classroom where she worked, it is not likely that she would be an identifiable person who would be in imminent harm in the hallways during the time students move between classrooms. It was not a part of her job to be in the corridors at that time, nor was it her duty to monitor the students' interactions outside of her classroom. Therefore, the plaintiff would not be considered an identifiable person for purposes of the qualified immunity exception.
In addition, the plaintiff was not subject to imminent harm. Just like in Evon where the potential risk of fire "could have occurred at any future time or not at all," the possibility of a fight in the hallway of a high school is a constant possibility but not one which would lend itself to increasing the imminency or predicting the occurrence of such a fight that would create a risk of imminent harm. Evon v. Andrews, supra, 211 Conn. 508. The students in the present case were not going from a period of strict supervision to one with no supervision at all, nor was there any prediction that placing the students in such situations would likely result in injuries, unlike in Purzycki, where the potential risk of fighting in the corridor created a risk of imminent harm. The situation here instead is analogous to the Doe case. As in Doe, the "[plaintiff has] not alleged facts showing that the danger to students was limited in duration and geography." Doe v. Board of Education, supra, 76 Conn.App. 304. Further, both in the present case and in Doe, the "alleged danger . . . was not limited to a particular area of the school and a particular time period . . . [T]he harm in the present case potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school." Id., 305. The fact that the risk of harm in this case was not isolated or previously known or predicted shows that, like in Doe, "it would not have been apparent to the defendant that its discretionary policy decisions subjected students to imminent harm" or, in this case, school employees. Id. Because it would not have been apparent that allowing students to walk through the hallways between classes, as they do several time each day, would create an imminent risk of harm, the second prong of the identifiable person-imminent harm exception to qualified immunity is not met, and, therefore, Paddyfote may not be found negligent since, as a municipal employee, she enjoys qualified immunity from such a suit.
In summary, the defendants' motion to strike counts two and three is granted; count two because the statutory notice provisions of § 7-108 are mandatory and were not complied with, and count three because the identifiable person-imminent harm exception to qualified immunity does not apply.