J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC ( 2016 )

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J.D.C. ENTERPRISES, INC. v. SARJAC
PARTNERS, LLC
(AC 37497)
DiPentima, C. J., and Beach and Flynn, Js.
Argued January 14—officially released April 12, 2016
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee [motion to strike]; Scholl, J. [judgment].)
Gary J. Greene, for the appellant (defendant-third
party plaintiff).
William S. Wilson II, for the appellee (third party
defendant town of West Hartford).
Opinion
FLYNN, J. The third party plaintiff, Sarjac Partners,
LLC (Sarjac), appeals from the judgment of the trial
court rendered after the granting of the motion to strike
its six count third party second amended complaint
filed by the defendant town of West Hartford (town).
Sarjac argues that the court improperly granted the
town’s motion to strike. We disagree and affirm the
judgment of the trial court.
The following procedural history and factual allega-
tions from the operative third party complaint are rele-
vant to this appeal. The underlying case began when
Sarjac suffered flood damage to property it owns,
known as 36 LaSalle Road in West Hartford (property),
and engaged the plaintiff, J.D.C. Enterprises, Inc., for
remediation work in connection with the flooding and
resulting damage.
Prior to June 12, 2013, the property had experienced
periodic flooding and sustained water damage requiring
repair and remediation of the water and moisture dam-
age. Sarjac engaged remediation companies to deter-
mine the source of the water problem, but none were
able to identify definitively the source of the problem,
so it replaced sump pumps on the property. On June
12, 2013, the property suffered major flooding causing
significant damage. The following day, Sarjac put the
town on notice that it would seek restitution from the
town should it be determined that the floodwater origi-
nated from a defect in the town’s pipes. J.D.C. Enter-
prises, Inc., was engaged to stop the flooding, prevent
further flooding, and to determine its cause. During
the investigation by J.D.C. Enterprises, Inc., a sinkhole
formed on the front pavement.
A town engineering official visited the premises and
advised both Sarjac and J.D.C. Enterprises, Inc., that
the town had no storm lines running through that loca-
tion, but if any such pipe existed, it was inactive. How-
ever, after investigation by J.D.C. Enterprises, Inc., and
Sarjac, it was determined that a municipal storm line
did exist, a two foot section of the pipe was missing,
the line was active, and it was owned by and/or con-
trolled by the town. J.D.C. Enterprises, Inc., was then
engaged by Sarjac to remediate and repair the damage
and to prepare a report, which subsequently concluded
the damage to Sarjac’s property was caused by a dam-
aged active storm water line.
When its bill for services remained unpaid, J.D.C.
Enterprises, Inc., the first party plaintiff, brought the
first party action against Sarjac seeking the sum of
$154,559.54 for its work plus additional fees and costs.
Sarjac in turn commenced this third party action against
the town seeking damages for negligence, common-
law indemnity, and a declaratory judgment seeking a
judicial determination as to what part of the bill from
J.D.C. Enterprises, Inc., should be borne respectively
by it and the town. The third party complaint further
alleged that pursuant to General Statutes § 7-148 (c)
(6) (B) and (C),1 the town has authority to lay out,
construct, and maintain sewers and pursuant to the
town of West Hartford ordinance § 12-40, its Depart-
ment of Public Works ‘‘shall be responsible for the
repairing, maintaining and cleaning of streets and sew-
ers . . . .’’2
On October 6, 2014, the town moved to strike the
entire second amended third party complaint on the
ground that the allegations were legally insufficient to
state a claim on which relief could be granted because
the town enjoys governmental immunity against com-
mon-law negligence claims unless such immunity has
been abrogated by statute. The court ruled that the
third party complaint sounded in negligence in all of
its six counts, generally a municipality is immune from
liability, and neither § 7-148 nor local ordinance § 12-
40 abrogated municipal immunity. It further held that
to repair or not to repair and to install or not to install
are discretionary acts by the town and that it would
not be apparent to the town that a failure to act would
likely subject an identifiable person to imminent harm.
This appeal followed.
On appeal, Sarjac claims that the court improperly
granted the motion to strike because the court erred
in concluding that West Hartford ordinance § 12-40 did
not extend to subterranean storm water pipelines and
that repair of such pipelines was a discretionary func-
tion. We disagree and conclude that neither the town
of West Hartford ordinance § 12-40 nor § 7-148 abro-
gates the town’s common-law immunity, and, therefore,
the town’s motion to strike was granted properly.
‘‘[T]he interpretation of pleadings is always a question
[of law] for the court . . . . The modern trend, which
is followed in Connecticut, is to construe pleadings
broadly and realistically, rather than narrowly and tech-
nically. . . . Although essential allegations may not be
supplied by conjecture or remote implication . . . the
complaint must be read in its entirety in such a way as
to give effect to the pleading with reference to the
general theory upon which it proceeded . . . . As long
as the pleadings provide sufficient notice of the facts
claimed and the issues to be tried and do not surprise
or prejudice the opposing party, we will not conclude
that the complaint is insufficient . . . .
‘‘The standard of review in an appeal challenging
a trial court’s granting of a motion to strike is well
established. A motion to strike challenges the legal suffi-
ciency of a pleading, and, consequently, requires no
factual findings by the trial court. As a result, our review
of the court’s ruling is plenary. . . . We take the facts
to be those alleged in the complaint that has been
stricken 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.’’
(Citation omitted; internal quotation marks omitted.)
Bailey v. West Hartford, 100 Conn. App. 805, 809, 921
A.2d 611 (2007).
We agree with the court that all counts of the com-
plaint sounded in common-law negligence. Our
Supreme Court held in Williams v. New Haven, 243
Conn. 763, 707 A.2d 1251 (1998), that where the plaintiff
had not relied on any statute granting an exception to
the governmental immunity provided by the common
law, the defendant municipality was not liable for negli-
gence in the performance of a governmental function.
We first note, as did the Williams court, that, during
the entire course of this litigation, including the allega-
tions in the amended third party complaint, the motion
to strike, and this appeal, Sarjac has relied solely on
its common-law negligence claim on the part of the
town. Sarjac has not advanced any statute as a basis
for the liability of the town in this case. ‘‘Accordingly,
on appeal, we consider this case as it was litigated in
the trial court and briefed and argued in this court. . . .
[I]t is the settled law of this state that a municipal
corporation is not liable for negligence in the perfor-
mance of a governmental function. . . . This court has
previously stated that [a] municipality itself was gener-
ally immune from liability for its tortious acts at com-
mon law . . . . [Our Supreme Court has] also
recognized, however, that governmental immunity may
be abrogated by statute. Wysocki v. Derby, [140 Conn.
173, 175, 98 A.2d 659 (1953)] ([l]iability for the negligent
performance of a purely public governmental duty may
occur only when a statute so provides) . . . . Thus,
the general rule developed in our case law is that a
municipality is immune from liability for negligence
unless the legislature has enacted a statute abrogating
that immunity.’’ (Citations omitted; internal quotation
marks omitted.) Williams v. New Haven, supra, 243
Conn. 766–67.
We further note, as did the Williams court, that ‘‘[t]he
legislature has acted to limit governmental immunity in
certain circumstances. For example, in General Statutes
§ 13a-149,3 the legislature has provided for municipal
liability for property damage or personal injuries caused
by defective roads and bridges. The legislature also has
set forth general principles of municipal liability and
immunity in General Statutes § 52-557n.4 The [third
party plaintiff has] not relied on either of these two
statutes,5 nor [has it] cited to any other statute as a
means of abrogating the defendant’s governmental
immunity.6
‘‘In addition, the legislature has provided for indemni-
fication by municipalities of municipal officers, agents
or employees who incur liability for certain of their
official conduct. See General Statutes [§ 7-465].’’7 (Foot-
notes altered.) Williams v. New Haven, supra, 243
Conn. 767–68. However, Sarjac has not sought to avail
itself of these statutory remedies by bringing an action
against any individuals and subsequently claiming
municipal indemnification. See id. Sarjac did not name
any agent, employee, or officer of the municipality as
a defendant, but instead Sarjac brought this action
against only the town, and, therefore, cannot invoke
indemnification pursuant to § 7-465.
We note that Practice Book § 10-44 provides that a
party whose complaint is struck may plead over and
amend its complaint within fifteen days. That would
have permitted Sarjac to cite to any relevant statute
abrogating immunity; however, it did not do so.
Although Sarjac’s amended third party complaint refer-
enced § 7-148, that statute merely sets forth the power
of a municipality to carry out certain activities under
its municipal powers. Thus, we agree with the court
that it says nothing about abrogating common-law
immunity. The town of West Hartford ordinance § 12-40
does not abrogate immunity either. It merely designates
what town department will carry out the maintenance
of roads and sewer systems. Our Supreme Court
pointed out in Bonington v. Westport, 297 Conn. 297,
308, 999 A.2d 700 (2010), that ‘‘[t]here is a difference
between laws that impose general duties on officials
and those that mandate a particular response to spe-
cific conditions.’’
We are bound by our Supreme Court’s decision in
Williams v. New Haven, supra, 243 Conn. 763. Sarjac
failed to cite to any statute in its second amended third
party complaint that abrogates the town’s common-law
immunity, and, therefore, we conclude that the court
properly struck its third party complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 7-148 (c) (6) (B) provides in relevant part that munici-
palities shall have the power with respect to sewers, drainage and public
utilities to ‘‘(i) Lay out, construct, reconstruct, repair, maintain, operate,
alter, extend and discontinue sewer and drainage systems and sewage dis-
posal plants; (ii) Enter into or upon any land for the purpose of correcting
the flow of surface water through watercourses which prevent, or may tend
to prevent, the free discharge of municipal highway surface water through
said courses; (iii) Regulate the laying, location and maintenance of . . .
water pipes, drains, sewers . . . and other structures in the streets and
public places of the municipality . . . .’’
General Statutes § 7-148 (c) (6) (C) provides in relevant part that munici-
palities shall have the power with respect to highways and sidewalks to
‘‘(i) Lay out, construct, reconstruct, alter, maintain, repair, control, operate,
and assign numbers to streets, alleys, highways, boulevards, bridges, under-
passes, sidewalks, curbs, gutters, public walks and parkways; (ii) Keep open
and safe for public use and travel and free from encroachment or obstruction
the streets, sidewalks and public places in the municipality; (iii) Control
the excavation of highways and streets; (iv) Regulate and prohibit the excava-
tion, altering or opening of sidewalks, public places and grounds for public
and private purposes and the location of any work or things thereon, whether
temporary or permanent, upon or under the surface thereof . . . .’’
2
Sarjac served its initial third party complaint consisting of one count
sounding in common-law negligence against the town and in response the
town filed an answer and special defenses, including the defense of govern-
mental immunity. Sarjac filed a reply denying all of the town’s special
defenses, but did not plead any exception to the town’s special defense of
governmental immunity. Sarjac then filed an amended third party complaint
which consisted of three counts, including claims of common-law negli-
gence, indemnification, and a request for a declaratory judgment. The town
filed a motion to strike all three counts on the ground that Sarjac failed
to identify any statutory basis on which it relied to abrogate the town’s
governmental immunity to common-law negligence. Sarjac then filed a sec-
ond amended third party complaint and objected to the motion to strike
on the grounds that it filed another amended complaint. Sarjac’s second
amended complaint included the addition of references to General Statutes
§ 7-148 and the town of West Hartford ordinance § 12-40.
3
General Statutes § 13a-149 provides in relevant part: ‘‘Damages for injur-
ies by means of defective roads and bridges. Any person injured in person
or property by means of a defective road or bridge may recover damages
from the party bound to keep it in repair. . . . No action for any such injury
shall be maintained against any town, city, corporation or borough, unless
written notice of such injury and a general description of the same, and of
the cause thereof and of the time and place of its occurrence, shall, within
ninety days thereafter be given to a selectman or the clerk of such town,
or to the clerk of such city or borough, or to the secretary or treasurer of
such corporation. . . .’’
4
General Statutes § 52-557n provides in relevant part: ‘‘Liability of political
subdivision and its employees, officers and agents. Liability of members of
local boards and commissions. (a) (1) Except as otherwise provided by law,
a political subdivision of the state shall be liable for damages to person or
property caused by: (A) The negligent acts or omissions of such political
subdivision or any employee, officer or agent thereof acting within the scope
of his employment or official duties; (B) negligence in the performance of
functions from which the political subdivision derives a special corporate
profit or pecuniary benefit; and (C) acts of the political subdivision which
constitute the creation or participation in the creation of a nuisance; pro-
vided, no cause of action shall be maintained for damages resulting from
injury to any person or property by means of a defective road or bridge
except pursuant to section 13a-149. (2) Except as otherwise provided by
law, a political subdivision of the state shall not be liable for damages to
person or property caused by: (A) Acts or omissions of any employee, officer
or agent which constitute criminal conduct, fraud, actual malice or wilful
misconduct; or (B) negligent acts or omissions which require the exercise
of judgment or discretion as an official function of the authority expressly
or impliedly granted by law.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, a
political subdivision of the state or any employee, officer or agent acting
within the scope of his employment or official duties shall not be liable for
damages to person or property resulting from: (1) The condition of natural
land or unimproved property; (2) the condition of a reservoir, dam, canal,
conduit, drain or similar structure when used by a person in a manner which
is not reasonably foreseeable; (3) the temporary condition of a road or
bridge which results from weather, if the political subdivision has not
received notice and has not had a reasonable opportunity to make the
condition safe; (4) the condition of an unpaved road, trail or footpath, the
purpose of which is to provide access to a recreational or scenic area, if
the political subdivision has not received notice and has not had a reasonable
opportunity to make the condition safe; (5) the initiation of a judicial or
administrative proceeding, provided that such action is not determined to
have been commenced or prosecuted without probable cause or with a
malicious intent to vex or trouble, as provided in section 52-568; (6) the act
or omission of someone other than an employee, officer or agent of the
political subdivision; (7) the issuance, denial, suspension or revocation of,
or failure or refusal to issue, deny, suspend or revoke any permit, license,
certificate, approval, order or similar authorization, when such authority is
a discretionary function by law, unless such issuance, denial, suspension
or revocation or such failure or refusal constitutes a reckless disregard for
health or safety; (8) failure to make an inspection or making an inadequate
or negligent inspection of any property, other than property owned or leased
by or leased to such political subdivision, to determine whether the property
complies with or violates any law or contains a hazard to health or safety,
unless the political subdivision had notice of such a violation of law or such
a hazard or unless such failure to inspect or such inadequate or negligent
inspection constitutes a reckless disregard for health or safety under all the
relevant circumstances; (9) failure to detect or prevent pollution of the
environment, including groundwater, watercourses and wells, by individuals
or entities other than the political subdivision; or (10) conditions on land
sold or transferred to the political subdivision by the state when such
conditions existed at the time the land was sold or transferred to the political
subdivision. . . .’’
5
Sarjac did not cite to § 52-557n in its third party complaint. We acknowl-
edge that ‘‘[a]lthough a plaintiff should plead a statute [on which the plaintiff
intends to rely] in a complaint . . . failing to do so will not necessarily bar
recovery as long as the [defendant is] sufficiently apprised of the applicable
statute during the course of the proceedings.’’ (Emphasis omitted; internal
quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 84,
111 A.3d 453 (2015). However, Sarjac never raised § 52-557n at any stage
in the trial court, but rather counsel for Sarjac attempted to do so for the
first time during oral argument before this court. On that record, we cannot
conclude that the town was sufficiently apprised that § 52-557n was at issue
during the course of the proceedings. Compare Spears v. Garcia, 66 Conn.
App. 669, 676, 785 A.2d 1181 (2001) (‘‘[T]he plaintiffs in the present case
relied on the statute in their memorandum of law in opposition to the motion
for summary judgment and in oral argument before the trial court. That
sufficiently apprised the defendants that the plaintiffs were relying on § 52-
557n to abrogate governmental immunity.’’), aff’d, 263 Conn. 22, 818 A.2d
37 (2003).
6
Counsel for Sarjac conceded during oral argument before this court that
the claim was reliant on the existence of § 7-148 and the town of West
Hartford ordinance § 12-40.
7
General Statutes § 7-465 provides in relevant part: ‘‘Assumption of liabil-
ity for damage caused by employee of municipality or member of local
emergency planning district. Joint liability of municipalities in district depart-
ment of health or regional council of governments. (a) Any town, city or
borough, notwithstanding any inconsistent provision of law, general, special
or local, shall pay on behalf of any employee of such municipality . . . all
sums which such employee becomes obligated to pay by reason of the
liability imposed upon such employee by law for damages awarded for
infringement of any person’s civil rights or for physical damages to person
or property, except as set forth in this section, if the employee, at the time
of the occurrence, accident, physical injury or damages complained of,
was acting in the performance of his duties and within the scope of his
employment, and if such occurrence, accident, physical injury or damage
was not the result of any wilful or wanton act of such employee in the
discharge of such duty. . . .’’