Rodriguez v. Clark

162 Conn.App. 785

133 A.3d 510

Alex RODRIGUEZ et al.

v.Douglas CLARK.

No. 37083.

Appellate Court of Connecticut.

Argued Dec. 8, 2015.

Decided Feb. 2, 2016.

John Del Buono, with whom was Donald McPartland, Middlebury, for the appellants (plaintiffs).

Michael F. O'Connor, North Haven, for the appellee (defendant).

ALVORD, KELLER and SCHALLER, Js.

PER CURIAM.

The plaintiffs, Alex Rodriguez and his wife, Rachel Rodriguez, appeal from the judgment of the trial court rendered in favor of the defendant, Douglas Clark, after the court struck the plaintiffs' complaint in its entirety. The plaintiffs claim that the court improperly concluded that their causes of action were barred by the exclusivity provision of the Workers' Compensation Act (act), General Statutes § 31–275 et seq. We affirm the judgment of the trial court.

The relevant procedural facts may be summarized as follows. In July, 2013, the plaintiffs commenced this action against the defendant by means of a four count complaint. The plaintiffs alleged that, on July 13, 2011, the plaintiff¹ and the defendant were Middletown police officers who at all times relevant were engaged in their official police duties in Middletown. The plaintiff was in the process of subduing and arresting individuals who were involved in an altercation, at which time the defendant arrived upon the scene to aid his fellow officers. The defendant drove to the scene in a marked police cruiser accompanied by Niko, a trained police K9 dog that was kept and/or owned by him. The defendant parked his cruiser at the scene, leaving the key in the ignition with the motor running. After the defendant had exited the cruiser and was providing assistance to his fellow officers at the scene, Niko exited the back of the cruiser by means of an open window, attacked and "nipped" a third police officer, and "attacked and bit" the plaintiff. The plaintiff alleged that he incurred a variety of physical injuries that, among other things, have detrimentally affected his mobility and his quality of life, and have caused him to retire from a career as a police officer.

In count one, the plaintiff alleged that the defendant was negligent in several ways for failing to restrain and control Niko at the scene of the altercation. The plaintiff alleged that the defendant's conduct constituted negligent operation of a motor vehicle under General Statutes § 31–293a.² In count two, the plaintiff alleged that the defendant was liable for his damages under the dog bite statute, General Statutes § 22–357. In counts three and four of the complaint, Rachel Rodriguez brought corresponding derivative claims for loss of consortium.

On October 9, 2013, the defendant filed a motion to strike all four grounds of the complaint on the ground that all four counts were barred by the exclusivity provision of the act.³ The plaintiffs objected to the motion. Subsequently, the court held a hearing on the motion to strike. On June 10, 2014, the court issued a memorandum of decision in which it concluded that the plaintiffs' claims were barred by the exclusivity provisions of the act.⁴ On July 7, 2014, the court rendered judgment in favor of the defendant on the stricken complaint. This appeal followed.

We carefully have considered the record, the briefs submitted by the parties, as well as the arguments of the parties advanced at the time of oral argument before this court. We have reviewed the court's memorandum of decision in accordance with the plenary standard of review that applies to the legal determinations of the trial court in granting a motion to strike one or more counts of a complaint. See, e.g., Kortner v. Martise, 312 Conn. 1, 48–49, 91 A.3d 412 (2014). Our examination of the record and the arguments of the parties persuades us that the judgment of the trial court should be affirmed. Because the trial court's memorandum of decision fully addresses the arguments raised in the present appeal, we adopt its concise and well reasoned decision as a proper statement of the relevant facts and the applicable law concerning the issues raised by the plaintiffs. See Rodriguez v. Clark, 162 Conn.App. 785, A.3d (2014) (appendix). It would serve no useful purpose for us to repeat the discussion contained therein. See, e.g., Chiulli v. Chiulli, 161 Conn.App. 638, 639, 127 A.3d 1146 (2015) ; Pellecchia v. Killingly, 147 Conn.App. 299, 301–302, 80 A.3d 931 (2013).

The judgment is affirmed.

APPENDIX

ALEX RODRIGUEZ ET AL. v. DOUGLAS CLARK^*

Superior Court, Judicial District of Waterbury

File No. CV–13–6020248–S

Memorandum filed June 10, 2014

Proceedings

Memorandum of decision on defendant's motion to strike. Motion granted.

Donald McPartland, for the plaintiffs.

James G. Williams and Christian M. Gunneson, for the defendant.

Opinion

SHAPIRO, J. On May 12, 2014, the court heard oral argument concerning the defendant's motion to strike all counts of the plaintiffs' complaint. After consideration of the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is granted.

IBACKGROUND

In Count One of the complaint, the plaintiffs allege that, on July 13, 2011, plaintiff Alex Rodriguez was employed as a police officer by the City of Middletown, Connecticut (City).¹ The plaintiffs allege that, on that date, the defendant, Douglas Clark, was also employed as a police officer by the City, and was assigned a police cruiser and a K–9 dog, which was specially trained to attack human beings involved in criminal activities who needed to be subdued and arrested by the police.

They also allege that, on that date, Rodriguez was in the process of subduing a man he was arresting at an altercation, and that, at the scene, the defendant was assigned to aid fellow police officers and knew that the dog was not needed to subdue the persons his fellow officers were in the process of subduing and arresting. See complaint, all counts, paragraphs 3 and 4.

In paragraph 5, the plaintiffs allege that, on that date, the defendant drove the cruiser to the scene, with the dog in it, "placed the gear shift from drive to park; he exited the cruiser and closed the driver's side door; left the key in the ignition and the motor running and a window open; left to assist his fellow police officers in subduing and arresting criminals when the K–9 dog jumped out of an open window in the police car and, unsupervised, it ran and attacked and nipped a policeman and thereafter it attacked and bit ... Rodriguez, a second policeman, on his left leg causing serious injuries and damages...."

The plaintiffs allege that Rodriguez' injuries and damages were caused by the defendant's negligence, in one or more ways. See complaint, paragraph 8. In paragraph 9, the plaintiffs allege that the defendant's conduct constituted negligent operation of the motor vehicle pursuant to General Statutes § 31–293a. Rodriguez alleges that, as a result, he has suffered permanent injuries, causing his retirement from his career as a police officer, and including permanent scarring, and permanent interference with his mobility. These allegations are incorporated in all four counts.

In Count Two, Rodriguez alleges that the defendant is liable to him under General Statutes § 22–357 (dog bite statute). In Counts Three and Four, based on the same allegations. Rodriguez' wife, plaintiff Rachel Rodriguez, alleges that the defendant is liable to her for loss of consortium. Additional references to the allegations are set forth below.

IISTANDARD OF REVIEW

"[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the ... court.... We take the facts to be those alleged in the complaint ... and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Moreover ... [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).

Legal conclusions in a complaint are not deemed to be admitted. Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).

IIIDISCUSSION

The defendant argues that Counts One and Two are barred by the exclusivity provision of the Workers' Compensation Act, General Statutes § 31–275 et seq. In addition, the defendant contends that Count Two is also barred by governmental immunity because § 22–357, the dog bite statute, does not abrogate the immunity offered to municipalities under General Statutes § 52–557n, and because § 22–357 does not provide that governmental immunity is not a defense to a dog bite action. The defendant also argues that the loss of consortium counts, as derivative claims, are barred by the workers' compensation scheme.

In response, the plaintiffs assert that they state legally sufficient causes of action for negligence (Count One) and under § 22–357 (Count Two) because their allegations fall within the motor vehicle exception to the exclusivity provision of the Workers' Compensation Act, and the defendant does not enjoy governmental immunity because his negligence occurred in the performance of a ministerial act. In the alternative, they argue that, even if the negligence had been in the performance of a discretionary act, the defendant is liable because the negligence subjected Rodriguez, an identifiable person, to a risk of imminent harm. They also assert that, since their allegations in Counts One and Two are legally...