Faulkner v. Daddona

63 A.3d 993, 142 Conn. App. 113, 2013 WL 1585908, 2013 Conn. App. LEXIS 202
CourtConnecticut Appellate Court
DecidedApril 23, 2013
DocketAC 33854
StatusPublished
Cited by2 cases

This text of 63 A.3d 993 (Faulkner v. Daddona) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faulkner v. Daddona, 63 A.3d 993, 142 Conn. App. 113, 2013 WL 1585908, 2013 Conn. App. LEXIS 202 (Colo. Ct. App. 2013).

Opinion

[115]*115 Opinion

SHELDON, J.

The plaintiff, Patricia Faulkner, brought an action to recover damages for injuries she claims to have suffered in a motor vehicle accident on Route 262 in Watertown when she was thrown off the back of a motorcycle then being operated by Thomas Bouchard. The plaintiff now appeals from the judgment of the trial court rendered after it granted the motion to strike filed by the defendants Kevin Conard, John Gavallas and the town of Watertown.1

The plaintiff alleges that the accident occurred when, as she and Bouchard came upon the scene of a prior, unrelated motor vehicle accident to which Watertown police Officer Conard had already responded, a tow truck owned by Daniel Daddona, doing business as Watertown Auto Body, then being operated by his employee, Gregory Moscaritolo, suddenly pulled out onto and across the highway, blocking both lanes of travel. The truck’s unexpected movement allegedly forced Bouchard to swerve his motorcycle behind the truck to avoid a collision, which caused the motorcycle to skid out of control and the plaintiff to be ejected from it onto the pavement.

The plaintiff made two sets of claims in this action. The first were claims against Daddona and Moscaritolo, based upon alleged negligence by the latter in operating Daddona’s tow truck at the time and place of the accident. The second were claims against the town of Water-town and two of its employees, Officer Conard and police Chief John Gavallas, based upon, inter alia, alleged breaches of duties to the plaintiff and other members of the public to properly secure the scene of [116]*116the prior accident before the plaintiff came upon it and suffered her injuries and, more generally, to enforce certain town rules and regulations governing the performance of town towing services by private contractors.

With respect to Conard, who was present at the scene of the prior accident when the tow truck pulled out in front of Bouchard’s motorcycle and caused the plaintiffs fall and resulting injuries, the plaintiff claimed that Conard “had an obligation to secure the scene of [the preexisting accident] in order to protect persons at the accident scene and members of the general public from harm,” and that his failure to meet that obligation in several particular ways proximately caused her injuries. With respect to the town, the plaintiff made two claims, pursuant to General Statutes § 52-557n.2 First, she claimed that the town had failed to properly train and supervise its officers and to establish protocols and procedures to secure an accident scene. Second, she claimed that the town had failed to adequately oversee towing operations undertaken on behalf of the town by failing to ensure that the towing company maintained the proper level of liability insurance coverage on its truck. Finally, as to Gavallas, the plaintiff claimed that he, like the town, had breached his duty to oversee the rules and regulations governing the towing of motor vehicles, by failing to ensure that the towing company maintained the proper level of liability insurance coverage on its truck.3

The defendants moved to strike all of the plaintiffs claims against them on two basic grounds. First, they [117]*117argued that no such claim stated a legally cognizable cause of action against them; and second, they argued that even if any of the plaintiffs claims was legally cognizable, any such claim was based upon alleged violations of a discretionary governmental duty, and thus was barred by the doctrine of governmental immunity. The plaintiff objected to the defendants’ motion, arguing that all of her claims were legally cognizable, that no such claim could properly be challenged on the ground of governmental immunity on a motion to strike, and that even if a governmental immunity challenge could properly be brought on a motion to strike, none of her claims was vulnerable to such a challenge because each was either based upon the alleged breach of a ministerial duty or covered by the imminent harm, identifiable person exception to the governmental immunity doctrine.

On July 25, 2011, the court granted the defendants’ motion to strike, concluding in relevant part as follows: “The plaintiff was unable to direct this court to any case law which suggested a private tort duty based upon the negligent securing of an accident scene by police or the allegations . . . regarding the [town] of Watertown and/or its chief of police failing to ascertain that the tow operator had the amount of insurance set forth in his contract with the town. The court can find no private legal basis for the assertion of th[ose] claims .... However, even assuming [that the challenged claims] set forth causes of action, the plaintiff must still overcome the hurdle that the[y] . . . are barred by the doctrine of government immunity. . . . While the plaintiff claims that the acts which form the basis of the allegations set forth in [those claims] . . . are ministerial, the court finds that the allegations in the amended complaint relate to discretionary acts, not ministerial acts. In determining whether there was an imminent harm, identifiable person exception to such [118]*118claimed immunity, the court finds that there was nothing apparent to . . . Conard or . . . Gavallas that the plaintiff would have been the subject of the alleged imminent harm.” When the plaintiff failed, in the wake of this ruling, to replead her stricken claims within the time required by law, the court rendered judgment in favor of those defendants. This appeal followed.

On appeal, the plaintiff presents two challenges to the court’s judgment as to three of the four counts that the court ordered stricken as to the defendants.4 First, she claims that the court improperly concluded that she had failed to set forth legally cognizable causes of action in those stricken counts. Second, she argues that the court improperly concluded that such claims were barred by governmental immunity because they were all based upon alleged violations of ministerial rather than discretionary duties.5 We conclude that the plaintiff’s challenged claims against the defendants were all based upon alleged violations of discretionary duties and thus that they are all barred by governmental immunity. Accordingly, we conclude that the trial court did not err in granting the defendants’ motion to strike and in rendering judgment in their favor.6

“Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the [defendants’ motion] 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 [119]*119legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [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. . . .

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Cite This Page — Counsel Stack

Bluebook (online)
63 A.3d 993, 142 Conn. App. 113, 2013 WL 1585908, 2013 Conn. App. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faulkner-v-daddona-connappct-2013.