Lund v. Milford Hosp., Inc.

326 Conn. 846

168 A.3d 479

Justin LUND

v.MILFORD HOSPITAL, INC.

SC 19834.

Supreme Court of Connecticut.

Argued February 22, 2017

Officially released September 26, 2017

Jennifer B. Goldstein, with whom were Jonathan M. Levine and, on the brief, Jeffrey L. Ment, for the appellant (plaintiff).

Sherwin M. Yoder, with whom, on the brief, was Mariella LaRosa, for the appellee (defendant).

Rogers, C.J., and Eveleigh, McDonald, Espinosa and Robinson, Js.^*

EVELEIGH, J.

The plaintiff, Justin Lund, a Connecticut state trooper, brought this action against the defendant, Milford Hospital, Inc., seeking damages for personal injuries sustained while subduing an emotionally disturbed person, Dale Pariseau, who had been committed to the defendant's custody on an emergency basis for psychiatric evaluation. The plaintiff has alleged that the defendant was negligent in numerous ways, including (1) failing to supervise or restrain Pariseau properly, (2) failing to provide for adequate security in the area where foreseeably dangerous patients are held, (3) allowing Pariseau, who was known to be dangerous, to go to the bathroom unrestrained and unaccompanied, and (4) failing to train its staff properly.

The record contains the following relevant procedural history. The plaintiff filed a substitute complaint¹ pursuant to Practice Book § 10–44² after the trial court granted the defendant's motion to strike his original complaint on the ground that the claims set forth therein were barred by "underlying justifications for the [firefighter's] rule ...." In sustaining the defendant's objection to the substitute complaint, the trial court concluded that, despite certain new allegations, the plaintiff's pleading failed to state a claim for which relief could be granted because this court's decision in Kaminski v. Fairfield , 216 Conn. 29, 38–39, 578 A.2d 1048 (1990), is not limited to cases in which a person has actually requested police assistance. The trial court rendered judgment accordingly, and this appeal followed.³ On appeal, the plaintiff claims primarily that, under this court's subsequent decision in Levandoski v. Cone , 267 Conn. 651, 841 A.2d 208 (2004), the firefighter's rule does not bar police officers from bringing negligence claims in nonpremises liability cases for injuries suffered during the performance of their duties. The plaintiff also claims that the trial court erred in sustaining the objection to the substitute complaint because the allegations set forth therein were materially different from his original complaint. For the reasons that follow, we reverse the judgement of the trial court and remand the case for further proceedings.

I

The governing legal principles on motions to strike are very well established. "[A]fter a court has granted a motion to strike, [a party] may either amend his pleading [pursuant to Practice Book § 10–44 ] or, on the rendering of judgment, file an appeal.... The choices are mutually exclusive [as the] filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading.... Stated another way: When an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment, and previous rulings on the original pleading cannot be made the subject of appeal." (Citations omitted; internal quotation marks omitted.) Ed Lally & Associates, Inc. v. DSBNC, LLC , 145 Conn.App. 718, 745–46, 78 A.3d 148, cert. denied, 310 Conn. 958, 82 A.3d 626 (2013) ; see also Royce v. Westport , 183 Conn. 177, 178–79, 439 A.2d 298 (1981) ; Caltabiano v. L & L Real Estate Holdings II, LLC , 128 Conn.App. 84, 90, 15 A.3d 1163 (2011) ; Wilson v. Hryniewicz , 38 Conn.App. 715, 719, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995).

If the plaintiff elects to replead following the granting of a motion to strike, the defendant may take advantage of this waiver rule by challenging the amended complaint as not "materially different than the [stricken] ... pleading that the court had determined to be legally insufficient. That is, the issue [on appeal becomes] whether the court properly determined that the plaintiffs had failed to remedy the pleading deficiencies that gave rise to the granting of the motions to strike or, in the alternative, set forth an entirely new cause of action. It is proper for a court to dispose of the substance of a complaint merely repetitive of one to which a demurrer had earlier been sustained."

Caltabiano v. L & L Real Estate Holdings II, LLC , supra, 128 Conn.App. at 88, 15 A.3d 1163. "Furthermore, if the allegations in a complaint filed subsequent to one that has been stricken are not materially different than those in the earlier, stricken complaint, the party bringing the subsequent complaint cannot be heard to appeal from the action of the trial court striking the subsequent complaint." Id., at 90, 15 A.3d 1163 ; see also Parsons v. United Technologies Corp. , 243 Conn. 66, 74, 700 A.2d 655 (1997). In the present case, the defendant argues that, because the two complaints were not materially different, no other issue is properly before the court on appeal, and the plaintiff abandoned any claim of error with respect to the trial court's prior decision striking the original complaint. We disagree. The law in this area requires the court to compare the two complaints to determine whether the amended complaint "advanced the pleadings" by remedying the defects identified by the trial court in granting the earlier motion to strike.⁴ Caltabiano v. L & L Real Estate Holdings II, LLC , supra, at 88–89, 15 A.3d 1163. In determining whether the amended pleading is "materially different," we read it in the light most favorable to the plaintiff.⁵ See, e.g., Melfi v. Danbury , 70 Conn.App. 679, 684, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).⁶

Changes in the amended pleading are material if they reflect a "good faith effort to file a complaint that states a cause of action" in a manner responsive to the defects identified by the trial court in its grant of the motion to strike the earlier pleading. Parsons v. United Technologies Corp. , supra, 243 Conn. at 75–76, 700 A.2d 655. Factual revisions or additions are necessary; mere rewording that "basically restate[s] the prior allegations" is insufficient to render a complaint new following the granting of a previous motion to strike. Caltabiano v. L & L Real Estate Holdings II, LLC , supra, 128 Conn.App. at 89 n.4. The changes in the allegations need not, however, be extensive to be material.

For example, in Parsons , the trial court had stricken an earlier wrongful termination count on the ground that the complaint had "fail[ed] to specify a particular ‘workplace’ or ‘place of employment’ within Bahrain that was allegedly unsafe. The [trial] court held that the plaintiff's allegation that the entire nation was generally unsafe was insufficient." Parsons v. United Technologies Corp. , supra, 243 Conn. at 75, 700 A.2d 655. In concluding that the additional facts pleaded in the subsequent complaint "render the allegations sufficiently different from those in the [stricken] complaint to make the waiver rule inapplicable," this court recognized that "the only difference between the two sets of allegations is the addition of the specific location in Bahrain to which the plaintiff was to be sent. This addition, however, addresses the specific defect that the trial court had emphasized in originally striking the plaintiff's wrongful termination claim ...." Id., at 74–75, 700 A.2d 655 ; see also id., at 71, 700 A.2d 655 (noting that amendment specified location of " ‘Headquarters, Bahrain Defense Force,’ " while previously stricken complaint "merely stated that the plaintiff was to be sent to Bahrain"). The court emphasized that, "although the plaintiff's subsequent additions to his factual allegations may have been limited, they can fairly be read as attempting to address the specific problem identified by the trial court in striking the plaintiff's original wrongful termination claim. The plaintiff appears to have made a good faith effort to file a complaint that states a cause of action."⁷ (Footnote omitted.)

Id., at 75–76, 700 A.2d 655.

The defendant argues that the trial court properly concluded that the substitute complaint was not materially different from the original complaint and, therefore, properly sustained its objection. We disagree. While the original and substitute complaints at issue in the present appeal contain similar factual allegations and specifications of negligence, there are significant differences that appear to address the trial court's determination that the claims in the original complaint were barred by the justifications underlying the firefighter's rule. In particular, the original complaint alleged that the plaintiff followed the ambulance transporting Pariseau to the defendant's facilities to "both ... check upon the condition of the [police officers] injured by Pariseau incident to his arrest, and to attend to the paperwork necessary for Pariseau's emergency committal as a psychiatric patient. To this end, he brought with him Pariseau's effects, specifically the quantities of psychotropic prescription drugs [found in Pariseau's car] as evidence of the necessity of such committal." (Emphasis added.) The original complaint then alleges that, when the plaintiff arrived at the defendant's facilities, "he first checked on the condition of the injured [police officers], then he attended to filling out the emergency committal paperwork for Pariseau. Pursuant to committal, [the defendant] took Pariseau into custody based on the evidence of the clear danger he posed to the public. During this process, [the plaintiff] was shown by [the defendant's employees] that Pariseau was in a...