Rodriguez v. Clark ( 2016 )

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ALEX RODRIGUEZ ET AL. v. DOUGLAS CLARK
(AC 37083)
Alvord, Keller and Schaller, Js.
Argued December 8, 2015—officially released February 2, 2016
(Appeal from Superior Court, judicial district of
Waterbury, Shapiro, J.)
John Del Buono, with whom was Donald McPartland,
for the appellants (plaintiffs).
Michael F. O’Connor, for the appellee (defendant).
Opinion
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 improp-
erly concluded that their causes of action were barred
by the exclusivity provision of the Workers’ Compensa-
tion 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 K-
9 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 negli-
gent operation of a motor vehicle under General Stat-
utes § 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 provi-
sion 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 memoran-
dum 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, A.3d (2015); Pellecchia v. Killingly,
147 Conn. App. 299, 301–302, 80 A.3d 931 (2013).
The judgment is affirmed.
1
In this opinion we shall refer to the named plaintiff, Alex Rodriguez, as
the plaintiff.
2
General Statutes § 31-293a, the exclusivity provision of the act, provides
in relevant part: ‘‘If an employee or, in case of his death, his dependent has
a right to benefits or compensation under this chapter on account of injury
or death from injury caused by the negligence or wrong of a fellow employee,
such right shall be the exclusive remedy of such injured employee or depen-
dent and no action may be brought against such fellow employee unless
such wrong was wilful or malicious or the action is based on the fellow
employee’s negligence in the operation of a motor vehicle . . . .’’
3
In the alternative, the defendant argued that count two was barred by
the doctrine of governmental immunity. The court did not reach the merits
of this argument in striking the complaint. Although, in this appeal, the
defendant relies on the doctrine of governmental immunity as an alternate
ground for affirmance, in light of our resolution of the appeal we need not
address that claim.
4
We observe that, before this court, the plaintiffs, in an attempt to circum-
vent the exclusivity of the act, suggest that the defendant and the dog, Niko,
had engaged in wilful and malicious conduct during the incident at issue.
See General Statutes § 31-293a. In their complaint, however, the plaintiffs
alleged that the defendant had engaged in the negligent operation of a motor
vehicle and that the defendant was liable for the plaintiffs’ damages under
the dog bite statute. ‘‘It is fundamental in our law that the right of a plaintiff
to recover is limited to the allegations of his complaint.’’ (Internal quotation
marks omitted.) Provenzano v. Provenzano, 88 Conn. App. 217, 225, 870
A.2d 1085 (2005). Moreover, in argument before the trial court, the plaintiffs
did not argue that the exclusivity of the act did not apply because of wilful
and malicious conduct. The court, therefore, did not address such an argu-
ment. In light of the fact that the plaintiffs did not raise such an argument
at trial and the court did not address it, we consider any argument advanced
by the plaintiffs with respect to wilful and malicious conduct to be
abandoned.