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Anthony Criscio v. Town of Branford

CV156053940S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN

2016 Conn. Super. LEXIS 2221

August 16, 2016, Decided August 17, 2016, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

CORE TERMS: public nuisance, immunity, revised, discretionary acts, written policy, ministerial acts, quotation marks omitted, ministerial, directive, legal sufficiency, cause of action, municipal officers, exercise judgment, imminent harm, identifiable, municipality, municipal, immune, basketball, entirety

JUDGES: [*1] Brian T. Fischer, J. OPINION BY: Brian T. Fischer OPINION

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S REVISED COMPLAINT #121

STATEMENT OF THE CASE

Before the court is the defendant Town of Branford's motion to strike the plaintiff Anthony Criscio's three-count revised complaint alleging negligence arising out of the defendant's ministerial duties as well as public nuisance. The plaintiff was injured, while playing basketball, by metal edging surrounding the basketball court which was under the defendant's duty to maintain in a safe condition. The defendant moves to strike the revised complaint in its entirety on the grounds that the plaintiff failed to allege a specific written policy or directive that would make the defendant's acts ministerial and not immune to thenegligence claim, and also failed to allege a positive act by the defendant that would create a public nuisance.

DISCUSSION

"[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause [*2] of action, the motion to strike must be denied." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership , 309 Conn. 342, 350, 71 A.3d 480 (2013). "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.) Santorso v. Bristol Hospital , 308 Conn. 338, 349, 63 A.3d 940 (2013).

"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers 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 . . . This is because society has no analogous interest in permitting municipal [*3] officers to exercise judgment in the performance of ministerial acts." (Footnote omitted; internal quotation marks omitted.) Violano v. Fernandez , 280 Conn. 310, 318-19, 907 A.2d 1188 (2006).

"If the complaint alleges negligence in the performance of discretionary acts, the claims will be barred on the ground of governmental immunity unless there is a statute that abrogates the immunity or unless one or more of the three well established exceptions to discretionary act immunity applies under the circumstances of the case." Avoletta v. Torrington , 133 Conn.App. 215, 225, 34 A.3d 445 (2012). Those exceptions are as follows: "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).

In the present case, counts one and three attempt to allege negligence in the performance of ministerial acts, but fail to allege any written policy or directive that would make the defendant's acts ministerial. The plaintiff merely alleges a [*4] failure to inspect, which has been determined by our Supreme Court to constitute discretionary acts that are granted governmental immunity. See Evon v. Andrews, supra , 211 Conn. 505; see also Bonington v. Westport , 297 Conn. 297, 312, 999 A.2d 700 (2010). The plaintiff argues that there has not been sufficient discovery to determine if there is a written policy or rule and that it is premature to strike counts one and three. The court disagrees. This is the plaintiff's revised complaint and Connecticut case law is clear that failure to allege a written policy or directive warrants the allegations to be stricken. Further, any argument that the plaintiff is an identifiable person subject to imminent harm is rejected as the exception has been narrowly applied and only been found to apply to school children during school hours because they are legally required to attend. See Haynes v. Middletown , 314 Conn. 303, 318-19, 101 A.3d 249 (2014); see also Durrant v. Board of Education , 284 Conn. 91, 931 A.2d 859 (2007).

Turning to the count two public nuisance claim, "[a] public nuisance exists if: (1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property; (2) the danger created is a continuing one; (3) the use of the land is unreasonable or unlawful; and (4) the condition or conduct complained of interferes with a right common to the general public." Keeney v. Old Saybrook , 237 Conn. 135, 162-63, 676 A.2d 795 (1996). "In addition, [*5] when 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, 146, 989 A.2d 593 (2010). The plaintiff in the present case merely alleges that a public nuisance was created "as a result of the negligence and carelessness of the defendant . . ." Compl., Count Two, ¶7. Accordingly, the plaintiff has failed to allege a positive act by the defendant and thus, count two is legally insufficient.

For the foregoing reasons, the defendant's motion to strike the plaintiff's revised complaint is granted in its entirety.

Brian T. Fischer, J.

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Date/Time		November 4 2016 16:07:11