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.
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
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 Watertown 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 the 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 plaintiff's 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.
The defendants moved to strike all of the plaintiff's claims against them on two basic grounds. First, they argued that no such claim stated a legally cognizable cause of action against them; and second, they argued that even if any of the plaintiff's 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
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.
"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 legal 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...."
"The [common-law] doctrines that determine the tort liability of municipal employees are well established.... Generally, a municipal employee is liable
"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society.... Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by the fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts...."
"The tort liability of a municipality has been codified in § 52-557n. Section 52-557n (a)(1) provides that [e]xcept 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.... Section 52-557n (a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by 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...."
"We have previously determined that governmental immunity must be raised as a special defense in the defendant's pleadings.... Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50].... The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway.... Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike. Determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-22, 907 A.2d 1188 (2006).
It is clear from the plaintiff's complaint that the defendants were performing governmental functions when they engaged in the conduct therein complained of, and thus that the court properly relied upon the doctrine of governmental immunity
As for Conard's alleged failure to comply with certain provisions of the Watertown police department general orders, they also do not impose mandatory duties upon police officers to take particular action in all circumstances. No such provision prescribes the particular manner in which an officer must always secure an accident scene. This, of course, is because all accident scenes are different from one another, and in fact are so different as to require that different measures be taken to secure them.
The plaintiff's final claim against Conard, which is not based upon an allegation that he failed to enforce a statute or to follow a general order, is that he failed to "close the trunk lid on his Watertown Police Cruiser [to avoid] obscuring his emergency lights to oncoming traffic...." An officer's determinations whether or not to activate his emergency lights at an accident scene and, if so, whether he should open his trunk lid if it might block oncoming motorists' view of the lights, are clearly judgments requiring the officer to assess the circumstances at the scene, which, in turn, require the exercise of judgment as to how best to proceed. The making of such discretionary determinations thus involves the performance of a governmental duty for which the defendants are entitled to governmental immunity. Therefore, Conard is entitled to governmental immunity as to each and every one of the plaintiff's specifications of negligence against him.
Turning to the plaintiff's allegations against the town and Gavallas, the plaintiff's claims of negligence against them stemmed from their alleged violation of various regulations and procedures for the towing of motor vehicles in the town. The plaintiff alleged that the town had a "duty to ensure that all rules and regulations for the towing of motor vehicles were followed" and that it breached that duty, inter alia, by failing to ensure that Moscaritolo had "experience in towing and recovery" and that Daddona had adequate insurance coverage on his tow truck. The plaintiff similarly alleged that Gavallas, acting in his capacity as the chief of police, had an "obligation to oversee the [r]egulations and [p]rocedures governing police towing of certain motor vehicles" and that he, like the town, breached that duty by
The judgment is affirmed.
In this opinion the other judges concurred.