DocketNumber: No. 31 70 08
Citation Numbers: 1995 Conn. Super. Ct. 5962
Judges: STODOLINK, J.
Filed Date: 6/19/1995
Status: Non-Precedential
Modified Date: 4/18/2021
The first count is directed at the Town of Brookfield and alleges a violation of General Statutes, Sec.
The fifth count incorporates the fourth count in its entirety and further alleges that, pursuant to General Statutes, Sec.
The remaining counts are directed against various other CT Page 5963 parties and are not at issue for purposes of this motion.
On October 27, 1994, The Town of Brookfield, Bonnie Smith, John Anderson and Ronald Klimas ("defendants") filed a motion to strike counts two through five of the plaintiff's revised complaint on the ground that these counts are legally insufficient.1 The defendants have filed a memorandum of law in support of their motion. The plaintiff has filed a memorandum of law in opposition to the defendants' motion.
The purpose of the motion to strike is to challenge the legal sufficiency of the allegations of any complaint. Gordon v.Bridgeport Housing Authority,
COUNTS TWO AND THREE
General Statutes, Sec.
CT Page 5964Except 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; provided, 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.
In count two of his revised complaint, the plaintiff alleges, inter alia, that the defendant town (1) was required, pursuant to General Statutes, Sec.
In their memorandum of law in support of their motion to strike, the defendants argue that counts two and three fail as a matter of law because General Statutes, Sec.
The plaintiff's entire memorandum in opposition only addresses whether Sanzone and Cook were correctly decided. In fact, the plaintiff framed the issue in the present case as follows:
The issue raised by the defendant, Town of Brookfield, in this case, requires that this Court review the decisions of the Supreme Court of Connecticut (interpreting CGS
52-557n ) in Sanzone v. Board of Police Commissioners of the City of Bridgeport, et al.,219 Conn. 179 (1991) and Cook v. Turner,219 Conn. 641 (1991) to see if those cases were correctly decided or if, rather, they were based on an incomplete analysis of the exact words used by the legislature in the statute and the then existing law in Connecticut. This Court must also consider the fact that the Supreme Court was not asked to consider another competing line of cases.
In Sanzone, the court expressly stated that "we construe Sec.
In the present case, the plaintiff alleges a statutory violation of General Statutes, Sec.
Allegations that a town has failed to erect a railing or fence in violation of section
COUNTS FOUR AND FIVE
In count four of his revised complaint, the plaintiff alleges, inter alia, twelve specific allegations of negligence against the municipal employees. In count five, the plaintiff seeks recovery pursuant to General Statutes, Sec.
General Statutes, Sec.
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, except firemen covered under the provisions of Sec.
7-308 , and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to Sec.22a-601 , 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 hereinafter set forth, 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.
CT Page 5966
The defendants postulate that counts four and five are insufficient as a matter of law because General Statutes, Sec.
Since the fourth count seeks damages against officers of a municipality pursuant to General Statutes, Sec.
Stodolink, J.