Lund v. Milford Hospital, Inc.

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JUSTIN LUND v. MILFORD HOSPITAL, INC.
(SC 19834)
Rogers, C. J., and Eveleigh, McDonald, Espinosa and Robinson, Js.*
Syllabus
The plaintiff, a police officer, brought a negligence action, seeking to recover
damages for personal injuries that he sustained while subduing an emo-
tionally disturbed person, P, who had been committed to the defendant
hospital’s custody on an emergency basis for psychiatric evaluation.
Specifically, the plaintiff alleged that P had been transported to the
defendant’s facilities after exhibiting certain irrational behavior and
injuring two other police officers at the scene of an automobile accident.
The plaintiff traveled to the defendant’s facilities to check on the injured
officers and observed that P had been restrained by the defendant’s
employees. Subsequently, P was allowed to go to the bathroom unaccom-
panied and unrestrained. Upon exiting the bathroom, P threw an object
at the plaintiff and fled. The plaintiff was injured in the course of the
pursuit that followed. The defendant filed a motion to strike the original
complaint, which the trial court granted, concluding that the plaintiff’s
claim was barred by the justifications underlying the firefighter’s rule,
which generally bars firefighters and police officers who enter private
property in the exercise of their duties from bringing civil actions against
the landowner for injuries caused by defective conditions on the prop-
erty. The plaintiff then filed a substitute complaint, to which the defen-
dant objected. In sustaining the defendant’s objection, the trial court
concluded that, despite certain new allegations, the plaintiff had failed
to state a claim for which relief could be granted. The trial court subse-
quently rendered judgment for the defendant, from which the plaintiff
appealed. Held:
1. This court concluded that the allegations set forth in the plaintiff’s substi-
tute complaint were materially different from those in the original com-
plaint, and, therefore, the plaintiff had preserved his right to appeal
after repleading; the new and revised factual allegations set forth in the
substitute complaint, read in the light most favorable to the plaintiff,
constituted a good faith effort to address the trial court’s determination
that the claims of negligence in the original complaint were barred by
the justifications underlying the firefighter’s rule insofar as the substitute
complaint deemphasized, or eliminated entirely, the plaintiff’s role in
P’s committal.
2. The trial court improperly sustained the defendant’s objection to the
plaintiff’s substitute complaint, this court having concluded that the
claims of negligence set forth therein alleged a valid cause of action
and, therefore, the trial court’s judgment was reversed and the case was
remanded for further proceedings; pursuant to this court’s decision in
Sepega v. DeLaura (326 Conn. ), the firefighter’s rule does not extend
to cases, such as the present case, in which the complaint alleges ordi-
nary negligence rather than premises liability.
(Two justices dissenting in one opinion)
Argued February 22—officially released September 26, 2017
Procedural History
Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Ansonia-Milford, where
the court, Stevens, J., granted the defendant’s motion
to strike the plaintiff’s complaint; thereafter, the court,
Stevens, J., granted the defendant’s objection to the
plaintiff’s corrected substitute complaint and the defen-
dant’s motion for judgment, and rendered judgment
thereon for the defendant, from which the plaintiff
appealed. Reversed; further proceedings.
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).
Opinion
EVELEIGH, J. The plaintiff, Justin Lund, a Connecti-
cut state trooper, brought this action against the defen-
dant, Milford Hospital, Inc., seeking damages for
personal injuries sustained while subduing an emotion-
ally 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 Pari-
seau properly, (2) failing to provide for adequate secu-
rity 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 proce-
dural 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 [fire-
fighter’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 fol-
lowed.3On 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 firefight-
er’s rule does not bar police officers from bringing negli-
gence claims in nonpremises liability cases for injuries
suffered during the performance of their duties. The
plaintiff also claims that the trial court erred in sus-
taining 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 plead-
ing [pursuant to Practice Book § 10-44] or, on the ren-
dering 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 quota-
tion 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 com-
plaint 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 deficien-
cies 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.’’ Cal-
tabiano v. L & L Real Estate Holdings II, LLC, supra,
128 Conn. App. 88. ‘‘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., 90; 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 com-
plaints 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 reme-
dying 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, 88–89. 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 Tech-
nologies Corp., supra, 243 Conn. 75–76. Factual revi-
sions 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. 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 Technolo-
gies Corp., supra, 243 Conn. 75. 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 dif-
ference between the two sets of allegations is the addi-
tion 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., 74–75; see also id., 71
(noting that amendment specified location of ‘‘ ‘Head-
quarters, 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 fac-
tual 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 com-
plaint that states a cause of action.’’7 (Footnote omit-
ted.) Id., 75–76.
The defendant argues that the trial court properly
concluded that the substitute complaint was not materi-
ally 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 specifica-
tions 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 psy-
chiatric patient. To this end, he brought with him Pari-
seau’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 facili-
ties, ‘‘he first checked on the condition of the injured
[police officers], then he attended to filling out the
emergency committal paperwork for Pariseau. Pursu-
ant 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 Pari-
seau was in a holding room under observation, undergo-
ing a full psychiatric evaluation. [The plaintiff] saw that
Pariseau had been placed in restraints by [the defen-
dant’s employees].’’ (Emphasis added.)
In granting the defendant’s motion to strike the origi-
nal complaint, the trial court agreed with the plaintiff
that this court stated in Levandoski v. Cone, supra, 267
Conn. 661, that the firefighter’s rule itself is limited to
premises liability cases. Nevertheless, the court fol-
lowed Superior Court case law; see, e.g., Jainchill v.
Friends of Keney Park, Superior Court, judicial district
of Hartford, Docket No. CV-00-0800130-S (February 28,
2001); implementing the policies underlying the fire-
fighter’s rule as expressed in Kaminski v. Fairfield,
supra, 216 Conn. 38–39, and Lodge v. Arett Sales Corp.,
246 Conn. 563, 579–81, 717 A.2d 215 (1998), and deter-
mined that it precluded liability based on the allegations
in the complaint because ‘‘the plaintiff was injured while
acting in the performance of his duty as a police officer
and that the alleged acts of negligence were intimately
connected with the very occasion for which the plain-
tiff was on the property.’’ (Emphasis added; internal
quotation marks omitted.) The trial court relied on the
allegations that the plaintiff had arrested Pariseau and
brought him to the defendant’s facilities for emergency
commitment, at which point the plaintiff became con-
cerned about the defendant’s security measures.
The new and revised factual allegations in the substi-
tute complaint are responsive to the memorandum of
decision granting the motion to strike insofar as they
deemphasize, or eliminate entirely, the plaintiff’s role
in Pariseau’s committal. First, the substitute complaint
contains a new paragraph alleging that the plaintiff first
proceeded to Bridgeport Hospital ‘‘to follow up with [a
separate] accident,’’ which had occurred prior to and
in the vicinity of Pariseau’s accident. See footnote 1 of
this opinion. The substitute complaint then alleges that,
‘‘[u]pon the completion of his obligations as to the first
accident, the plaintiff left Bridgeport Hospital and pro-
ceeded to [the defendant’s facilities], to check upon the
condition of the [police officers] injured by Pariseau
incident to his arrest.’’ Notably, the substitute complaint
omits the allegation from the original complaint con-
cerning the plaintiff’s role in completing the documents
necessary for Pariseau’s emergency committal. The
substitute complaint further minimizes the plaintiff’s
role in the committal of Pariseau, alleging that, when
the plaintiff arrived at the defendant’s facilities, ‘‘he
first checked on the condition of the [injured police
and officers and then] attended to additional
paperwork.’’ The substitute complaint then specifically
alleges that, ‘‘[b]ased upon the actions of Pariseau and
the observations of [the injured police officers], an
emergency committal was completed for Pariseau pur-
suant to [General Statutes] § 17a-503 (a).’’ To this end,
the substitute complaint also alleges that the defendant
‘‘did not at any time call for or seek or invite in any
regard the assistance of the Connecticut state troopers,
including but not limited to [the plaintiff].’’8
Read in the light most favorable to the plaintiff, the
allegations set forth in the plaintiff’s substitute com-
plaint constitute a ‘‘good faith effort’’ to address the
pleading deficiency identified by the trial court in grant-
ing the motion to strike the original complaint. Parsons
v. United Technologies Corp., supra, 243 Conn. 75–76.
Specifically, the new allegations in the substitute com-
plaint are an attempt to distinguish this case from Kam-
inski v. Fairfield, supra, 216 Conn. 31, which held that
the parents who allowed their adult schizophrenic son
to live with them could not be held vicariously liable
for the injuries he inflicted on a policeman, and that
they had no duty to warn beyond the initial call. The
new allegations seek to disconnect the plaintiff’s pres-
ence from the emergency committal of Pariseau in an
apparent attempt to address the trial court’s observa-
tion in granting the motion to strike that the defendant’s
‘‘alleged acts of negligence were intimately connected
with the very occasion for which the plaintiff was on
the property.’’ (Internal quotation marks omitted.) The
new allegations in the substitute complaint, therefore,
materially differ from those in the original complaint
for purposes of preserving the plaintiff’s right to appeal
after repleading pursuant to Practice Book § 10-44.
Accordingly, we reach the merits of the plaintiff’s claims
on appeal.
II
We note that, following this court’s decisions in Kam-
inski and Levandoski, some trial court judges have
continued to apply the firefighter’s rule9 to nonpremises
liability claims while others have not. In the present
case, the trial court relied on Jainchill v. Friends of
Kenney Park, supra, Superior Court, Docket No. CV-
00-0800130-S, which had applied the justifications
underlying firefighter’s rule to a nonpremises liability
claim. In granting the defendant’s motion to strike, the
trial court in the present case found that ‘‘the alleged
acts of negligence were ‘intimately connected with the
very occasion for which the plaintiff was on the prop-
erty’ ’’ because ‘‘[s]pecifically, according to the com-
plaint, the plaintiff knew about Pariseau’s violent and
unstable emotional condition because the plaintiff had
arrested him and brought him to the hospital.’’
In response, the plaintiff added multiple new allega-
tions to clarify the circumstances under which the plain-
tiff had gone to the defendant’s facilities and certain
other facts on which the trial court had previously
relied. Specifically, the substitute complaint alleged that
(1) the plaintiff had been on duty on Interstate 95 in
connection with an entirely unrelated accident before
encountering Pariseau, (2) the plaintiff had traveled
to Bridgeport Hospital in connection with his duties
relating to the other accident before traveling to the
defendant’s facilities, (3) the plaintiff had traveled to
the defendant’s facilities in order to check on the police
officers who had arrested Pariseau and to complete
additional paperwork, (4) Pariseau was brought to the
defendant’s facilities by an ambulance, not by the plain-
tiff, and (5) the defendant had accepted custody of
Pariseau, in its institutional capacity, as a professional
custodian with a degree of special competence.
In sustaining the defendant’s objection to the substi-
tute complaint, the trial court held that the defendant’s
negligent act was ‘‘ ‘intimately connected’ with the very
reason . . . the plaintiff . . . acted to apprehend Pari-
seau when he attempted to escape’’ and that ‘‘the plain-
tiff was injured while acting in the performance of his
duty as a police officer . . . .’’10 In reaching its conclu-
sion, the trial court again cited Jainchill and Kaminski.
As this court has recently clarified in Sepega v.
DeLaura, 326 Conn. , A.3d (2017), however,
the firefighter’s rule does not extend beyond claims of
premises liability. In Sepega, this court also distin-
guished Kaminski as a case that was primarily con-
cerned with vicarious liability of parents and an
independent duty to warn. Id., . Accordingly, we
conclude that the trial court’s decision to sustain the
defendant’s objection to the substitute complaint in the
present case was improper because the plaintiff had
alleged a valid cause of action. As a result, the trial
court’s subsequent judgment in favor of the defendant
must be reversed in light of this court’s decision in
Sepega.11
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion ROGERS, C. J., and ESPINOSA, Js.,
concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
The substitute complaint alleges the following underlying facts. Pariseau
had been transported to the defendant’s facilities and committed for psychi-
atric observation following certain violent and irrational behavior—includ-
ing attacks that injured two police officers—at the scene of an automobile
accident on Interstate 95. The plaintiff, who had been attending to an earlier
accident nearby and had assisted in Pariseau’s arrest, subsequently traveled
to the defendant’s facilities to check on the condition of the injured police
officers. The defendant did not ‘‘at any time’’ ask for the assistance of any
police officer, including the plaintiff, with regard to Pariseau. In the process
of checking on the injured police officers, the defendant’s employees showed
the plaintiff that Pariseau was being restrained under observation while
undergoing a full psychiatric evaluation. The plaintiff relied on the represen-
tations of the defendant’s employees that Pariseau had been properly
secured and restrained.
Shortly before leaving, the plaintiff noticed that Pariseau was no longer
in his room. The plaintiff asked where Pariseau had gone, and a nurse
indicated that he had gone unaccompanied and unrestrained into the bath-
room behind the nurse’s station to change into a hospital gown. The plaintiff
then knocked on the locked bathroom door, heard water running in the
sink, and asked Pariseau to unlock the door. Pariseau asked for more time
in the bathroom, with the water still running. After ten minutes, Pariseau
flung open the door and ran out, hurling a garbage can that was filled with
a mix of hot water and his own urine at the plaintiff, another police officer,
and two nurses. The plaintiff, after slipping and falling in the mix of urine
and water on the floor, caught up with Pariseau and, with the assistance
of others, subdued him. In the course of these events, the plaintiff sustained
injuries to his head, shoulder, elbow, wrist, and hand.
2
Practice Book § 10-44 provides: ‘‘Within fifteen days after the granting
of any motion to strike, the party whose pleading has been stricken may file
a new pleading; provided that in those instances where an entire complaint,
counterclaim or cross complaint, or any count in a complaint, counterclaim
or cross complaint has been stricken, and the party whose pleading or a
count thereof has been so stricken fails to file a new pleading within that
fifteen day period, the judicial authority may, upon motion, enter judgment
against said party on said stricken complaint, counterclaim or cross com-
plaint, or count thereof. Nothing in this section shall dispense with the
requirements of Sections 61-3 or 61-4 of the appellate rules.’’
3
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4
‘‘An example of a proper pleading filed pursuant to Practice Book § 10-
44 is one that [supplies] the essential allegation lacking in the complaint
that was stricken.’’ (Internal quotation marks omitted.) Perugini v. Giuliano,
148 Conn. App. 861, 878, 89 A.3d 358 (2014). It may not assert an entirely
new cause of action premised on a legal theory not previously asserted in
the stricken complaint, which would require permission under Practice
Book § 10-60 (a). See also id., 878–79 (substitute complaint asserting new
legal theories was not proper because it did not correct deficiencies identi-
fied in previous decision granting motion to strike, which was grounded on
fact that ‘‘Rules of Professional Conduct do not give rise to a private cause
of action,’’ and, thus, ‘‘there was no essential allegation or any other correc-
tion to be added that would have made the stricken count legally sufficient’’
[internal quotation marks omitted]).
5
Subsequent appellate review of this comparative process is plenary
because it considers the trial court’s interpretation of the pleadings. See,
e.g., Caltabiano v. L & L Real Estate Holdings II, LLC, supra, 128 Conn.
App. 88.
6
We note that the defendant’s arguments regarding this issue may be
premised on a misunderstanding of the trial court’s memorandum of deci-
sion. Specifically, the introduction to the trial court’s decision sustaining
the defendant’s objection to the substitute complaint states generally that
the court ‘‘agrees’’ with the defendant’s arguments ‘‘that the allegations of
the substitute complaint are insufficient to cure the legal deficiencies of
the earlier pleading. The defendant requests that its objection be sustained
and that judgment enter in its favor based on the plaintiff’s failure to file
an adequate substitute pleading in response to the order granting the motion
to strike. See Practice Book § 10-44.’’ Acknowledging the changes made
to the allegations in the substitute complaint, the trial court nevertheless
concluded that the ‘‘substantive allegations of the substitute complaint
describing the circumstances of the plaintiff’s injur[ies] remain essentially
the same as those of the original complaint.’’ The trial court’s analysis does
not, however, specifically conclude that the substitute complaint lacked
‘‘materially different’’ allegations; see Caltabiano v. L & L Real Estate Hold-
ings II, LLC, supra, 128 Conn. App. 88; rather, the trial court went on to
reach the merits of the plaintiff’s claim, concluding that, in light of the factual
allegations made in the substitute complaint, the justifications underlying
the firefighter’s rule barred the plaintiff’s cause of action. Specifically, the
trial court concluded that the plaintiff’s substitute complaint continued to
allege that ‘‘the defendant’s negligence precipitated the very reason for his
involvement’’ and rejected ‘‘the plaintiff’s argument that the . . . holding
in Kaminski . . . should be applied only in situations where a person
actually requests police assistance.’’ Following Jainchill v. Friends of Keney
Park, Superior Court, judicial district of Hartford, Docket No. CV-00-0800130-
S (February 28, 2001), the trial court in the present case reiterated that
‘‘there is no question that the alleged acts of negligence . . . were ‘intimately
connected’ with the very reason why the plaintiff became involved with
Pariseau and why he acted to apprehend Pariseau when he attempted to
escape. Specifically, the plaintiff engaged Pariseau precisely because he was
concerned about the level of the [defendant’s] control or supervision of
Pariseau. Furthermore, the plaintiff was injured while acting in the perfor-
mance of his duty as a police officer to apprehend a dangerous, fleeing
individual and to protect other people from this potential danger.’’
7
A comparison of other cases is helpful to illustrate those amendments
that rise to the level of ‘‘materially different’’ for purposes of avoiding the
waiver rule. Compare Alexander v. Commissioner of Administrative Ser-
vices, 86 Conn. App. 677, 683, 862 A.2d 851 (2004) (‘‘new allegations [in
amended complaint] that transformed [the] previous, generic equal protec-
tion claim into a colorable claim of selective enforcement . . . differ materi-
ally from the equal protection allegation contained in [the] original
complaint’’), Emerick v. Kuhn, 52 Conn. App. 724, 734, 737 A.2d 456 (adding
statutory and constitutional references, even if inapposite, ‘‘may be read as
attempting to address the legal insufficiency specifically identified by the
trial court . . . making the count materially different,’’ and, therefore, plain-
tiff had not ‘‘waived his right to appeal from the striking’’), cert. denied, 249
Conn. 929, 738 A.2d 653, cert. denied, 528 U.S. 1005, 120 S. Ct. 500, 145 L.
Ed. 2d 386 (1999), and Doe v. Marselle, 38 Conn. App. 360, 364–65, 660 A.2d
871 (1995) (reaching ‘‘merits of the plaintiff’s argument that she has pleaded
wilful conduct’’ in amended complaint because, ‘‘[d]espite this inexplicable
continued absence of the word wilful, her next pleading contained additional
language with which she argues that wilful conduct may be inferred,’’ which
constituted ‘‘a good faith effort to file a complaint that states a cause of
action’’), rev’d on other grounds, 236 Conn. 845, 675 A.2d 835 (1996), with
St. Denis v. de Toledo, 90 Conn. App. 690, 695–96, 879 A.2d 503 (reiteration
of facts, without satisfying defect by providing content of confidential infor-
mation gained by defendant during attorney-client relationship, did not con-
stitute ‘‘materially different’’ complaint), cert. denied, 276 Conn. 907, 884
A.2d 1028 (2005), Ross v. Forzani, 88 Conn. App. 365, 369–70, 869 A.2d 682
(2005) (waiver rule applicable when original complaint alleged that ‘‘ ‘the
defendant deposed the plaintiff and . . . used against the plaintiff at said
deposition confidential information [previously] disclosed by the plaintiff
to the defendant’s law firm,’ ’’ and amended complaint ‘‘simply restated the
original allegations, now stating that ‘[i]n representing [the plaintiff’s wife]
in the dissolution of her marriage to the plaintiff, after having represented the
plaintiff in the same matter, the defendant used to the plaintiff’s disadvantage
privileged information obtained as a result of his prior representation of
the plaintiff’ ’’), and Parker v. Ginsburg Development CT, LLC, 85 Conn.
App. 777, 780 n.2, 859 A.2d 46 (2004) (‘‘[T]he plaintiff attempted to amend
the complaint by emphasizing that he had been promised employment until
a certain time and omitted the language regarding the number of houses
contemplated to be sold per year. These changes are not material. Further-
more, substituting the phrase ‘explicitly told’ for ‘promised without ambigu-
ity’ does not change the plaintiff’s status as an at-will employee, which was
the basis of the trial court’s decision to strike the complaint. In both the
original and substitute complaints, the two phrases mean the same thing.’’).
8
The plaintiff also added new allegations to the substitute complaint
concerning the defendant’s duty. The substitute complaint emphasized that
the plaintiff ‘‘at no time assumed a duty as a public servant to protect a
mentally compromised individual’’ and that the plaintiff had acted under
an assumption that, following Pariseau’s committal, the defendant and its
employees ‘‘would perform to the reasonable standards inherent in their
duty as professional custodians so as not to risk the safety and well-being
of others.’’ The plaintiff also added numerous allegations emphasizing the
defendant’s special competence and relationship of custody and control
over Pariseau in light of the emergency committal under § 17a-503 (a).
We note that the substitute complaint also contains certain immaterial
differences, namely, an allegation that the plaintiff walked from the first
accident on Interstate 95 to a second accident involving Pariseau. See foot-
note 1 of this opinion. Likewise, the substitute complaint also provides
greater detail about the plaintiff’s injuries.
9
The common-law firefighter’s rule provides, in general terms, that a
firefighter or police officer who enters private property in the exercise of
his or her duties cannot bring a civil action against the property owner for
injuries sustained as the result of a defect in the premises. See Levandoski
v. Cone, supra, 267 Conn. 653–54. We note that a full discussion of the
policies underlying the firefighter’s rule and its limitation to premises liability
claims is set forth in Sepega v. DeLaura, 326 Conn. , A.3d (2017).
10
We note that this language, which is different from that used by the
trial court in granting the motion to strike, appears to dispense with any
requirement of antecedent negligence on the property and, thereby, would
provide immunity to a defendant whenever there is any negligence that
triggers a response by a public safety officer in the performance of his or
her official duties. This test would convert the firefighter’s rule into an
outright ban on any claim by a public safety officer who was injured through
the negligence of a third party while on duty. For the reasons stated in
Sepega v. DeLaura, 326 Conn. , A.3d (2017), such an expansion
is unwarranted.
11
The plaintiff has requested that we recognize § 319 of the Restatement
(Second) of Torts. In view of our decision that the substitute complaint
stated a valid cause of action, it is unnecessary for us to reach that issue.