Rich v. Town of Westport

Audrey RICH v. TOWN OF WESTPORT

No. FSTCV186039107S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

October 7, 2019

UNPUBLISHED OPINION

SOMMER, J.

INTRODUCTION

The defendant Town of Westport has filed a motion to strike the first and second counts of the plaintiff’s four-count complaint. The first count of the complaint alleges negligence against the town. The basis of the defendant’s motion as to the first count, which alleges negligence, is the claim that the defendant is entitled to the defense of governmental immunity. The second count alleges negligent nuisance. The defendant claims that the court should also strike the second count which alleges negligent nuisance because the plaintiff has failed to allege that the nuisance condition in question was the result of some positive act on the part of the defendant. Both sides briefed the issues and argued their positions to the court on the April 29, 2019 short calendar.

I. SUMMARY OF FACTS

The plaintiff, Audrey Rich, alleges the following facts in her complaint. On November 19, 2016, at approximately 11:20 AM the plaintiff was walking her dog on Compo Beach, a public beach located in the Town of Westport (the "Town"). Compo Beach is bordered by a stone wall with access ways that allow passage between the beach and the adjoining sidewalk and road, with steps that descend from the sidewalk to the beach. The Town has placed steel railings extending onto the beach within the access ways. According to the plaintiff’s complaint, "Many of the steel railings are extremely old" and have "deteriorated over time," and the caps on the ends of some railings have fallen off, exposing "sharp edges" to members of the public who walk on the beach. The plaintiff further alleges that while walking near one of the railings with sharp edges, she fell and hit her head on a sharp exposed railing edge. She claims that the impact with the sharp edge caused her to sustain a severe laceration which has left a scar on her forehead.

In the first count of the complaint the plaintiff alleges that the defendant was negligent with respect to its maintenance of the steel railings because over the years the metal caps on the end of many railings have fallen off and have not been replaced, leaving sharp edges exposed. In the second count, she claims that the steel railings with exposed sharp edges constitute a nuisance and seeks to hold the defendant liable for negligent nuisance. The third and fourth counts of the complaint are not relevant to the court’s decision on the subject motion to strike.

In opposition to the defendant’s motion to strike the first count the plaintiff frames the issue as whether the Town’s responsibility for the subject railings was a governmental duty or a proprietary function. She argues that the Town is not entitled to claim governmental immunity because the facts of this case bring it within the provisions of Connecticut General Statutes 52-557(n)(a)(1) which creates an exception for municipal immunity for "Negligence in the performance of functions from which the political subdivision derives a corporate profit or pecuniary benefit." The plaintiff acknowledges that Connecticut courts have found that where a municipality engages in an activity for which it charges a fee and makes a profit, it is performing a proprietary function as in Carta v. Norwalk, 108 Conn. 697 (1929) but not where it charges only a nominal fee. See Consodine v. Waterbury, 279 Conn. 830 (2006). The plaintiff argues that the court should recognize the above statutory exception to municipal immunity because the Town charged a fee for parking at the parking area which was part of the same park as the Compo Beach area. Although she has not made any allegations regarding her claim that the Town was performing in a proprietary manner in her complaint, the plaintiff argues that she should be permitted to develop evidence through the discovery process to determine whether the operations of the Town at the subject beach were governmental or proprietary in nature.

By way of reply the defendant notes that the plaintiff does not allege in her complaint the facts which she has presented in support of her claim of proprietary conduct by the Town. Specifically, she has not alleged that the parking lot was part of the beach park or that the Town charged any fees, nominal or otherwise for parking there. Citing Novametrix Systems v. BOC Group, Inc., 224 Conn. 210, 214-15 (1992) the defendant correctly notes that a court is limited to the facts alleged in the complaint in ruling on a motion to strike. The defendant thus argues and the court concurs that the plaintiff cannot rely on facts which she has not alleged in her complaint in opposition to a motion to strike.

In opposition to the defendant’s argument that the court should strike the second count of the complaint because the plaintiff has failed to allege that it performed an affirmative act, the plaintiff argues that the Town may be found liable for nuisance under the facts as alleged on the basis of negligent misfeasance or nonfeasance citing Keeney v. Town of Old Saybrook, 237 Conn. 135 (1996). The defendant distinguishes Keeney, supra, on the facts of that case. There, the court found that the town had intentionally created the alleged nuisance by prolonged or deliberate failure to act to remedy a known environmental and health hazard which included ignoring the mandate of the Department of Environmental Protection mandate to address failing septic systems and three DEEP orders for implementation of abatement which resulted in pollution of state waters. The court in Keeney found that these facts were sufficient for it to conclude that the defendant’s nonfeasance constituted a positive act. The defendant argues that the facts of this case as alleged by the plaintiff, that the Town’s prolonged and deliberate failure to abate, i.e., to replace the missing railing caps, leaving the edges exposed do not qualify as affirmative acts.

II. APPLICABLE LAW AND ANALYSIS

A. Motion to Strike- Legal Standard

A motion to strike challenges the legal sufficiency of the allegations of a complaint, or any counts of a complaint, to state a claim upon which relief can be granted. Gordon v. Bridgeport Hous. Auth., 208 Conn. 161, 170 (1988); Novametrix Med. Sys., Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15 (1992). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." Novametrix Med. Sys., Inc., 224 Conn. at 214-15. "This includes the facts necessarily implied and fairly provable under the allegations ... It does not include, however, the legal conclusions or opinions stated in the complaint ..." S.M.S. Textile v. Brown, Jacobson, Tillinghast, Lahan and King, P.C., 32 Conn.App. 786, 796, cert. denied, 228 Conn. 903 (1993). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Id. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Med. Sys., Inc., 224 Conn. at 215. "It is incumbent upon a plaintiff to allege some recognizable cause of action in his complaint." Stavinger v. Sage Allen & Co., 146 Conn. 460, 461 (1959).

The court notes that as a procedural matter, it is established that the mere fact that a special defense, such as governmental immunity, must be alleged as a defense later in the normal course of pleadings does not preclude it from being raised at an earlier stage of the proceedings, such as by a motion to strike. Mihok v. Medtronic, Inc., Superior Court, judicial district of Stamford/Norwalk, at Stamford, Docket No. FST CV14-6023001-S, at *3 (October 20, 2016, Povodator, J.). A defendant may raise the defense of governmental immunity on a motion to strike under appropriate circumstances. Coe v. Watertown Bd. of Educ., 301 Conn. 112, 116 n.4 (2011). 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 of which the plaintiff complains, the defendant may attack the legal sufficiency of the complaint through a motion to strike. Id.

B. Governmental Immunity As Applied to the First Count

In the first count of the complaint, the plaintiff seeks to hold the defendant liable in negligence. The defendant argues that the plaintiff fails to state an actionable negligence claim, however, because the defendant is entitled to the defense of governmental immunity pursuant to Conn. Gen. Stat. § 52-557n.

It is settled law that municipalities and their employees may be held statutorily liable for their negligence in certain circumstances. In determining whether municipal immunity applies in a case, the court must discern whether the alleged acts are ministerial or discretionary. "Generally, a municipal employee is liable for the misperformance of ministerial acts." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318 (2006). Section 52-557n of the General Statutes delineates circumstances under which municipalities and their employees can be held liable in tort as well as circumstances under which they retain the shield of governmental immunity. Durrant v. Bd. of Educ. of Hartford, 284 Conn. 91, 105 (2007). Conn. Gen. Stat. § 52-557n(a)(1)(A) provides that a political subdivision of the state shall be liable for the negligent acts or omissions of the subdivision or its employees, officers, or agents occurring within the scope of their employment or official duties except as otherwise provided by law.

C.G.S 52-557(a)(2) states, "Except as...