GRUENDEL, J.
The plaintiffs, William Kumah and Keziah Kumah, appeal from the judgment of the trial court rendered in favor of the defendant town of Greenwich (town)
The following procedural history and facts, as alleged in the plaintiffs' complaint and amended complaint, are relevant to our disposition of this appeal. In the early morning of September 3, 2006, Leo G. Brown was operating a tractor trailer in a westerly direction on Interstate 95 in Greenwich. While traveling in Greenwich, Brown lost control of the tractor trailer,
Subsequently, the plaintiffs commenced this action against the town based on Lucas' conduct in responding to the accident.
The plaintiffs now claim that the court improperly granted the town's motions to strike. Specifically, the plaintiffs argue that, as to their negligence counts, the doctrine of governmental immunity does not bar their claims because their complaint alleges violations of ministerial rather than discretionary duties. Additionally, with respect to their nuisance counts, the plaintiffs claim that this court's decision in Himmelstein is not controlling and is inapposite to the case at bar. We address each of these claims in turn. Additional facts will be set forth as necessary.
The plaintiffs first claim that the court improperly granted the town's motion to strike their negligence counts on the basis of governmental immunity. Specifically, the plaintiffs argue that governmental immunity does not bar their negligence counts because their complaint alleges violations of ministerial duties, for which the town may be liable notwithstanding the doctrine of governmental immunity. We agree.
The following additional facts and procedural history are relevant to the resolution of this claim. In support of their negligence counts, the plaintiffs alleged, inter alia, that "[t]he actions and omissions of Lucas [as an agent of the town] were
The plaintiffs now claim that the court improperly granted the town's motion to strike, as their negligence counts adequately plead a cause of action based on the alleged violation of ministerial rather than discretionary duties. Thus, as argued by the plaintiffs, because their negligence counts adequately aver a cause of action notwithstanding the doctrine of governmental immunity, the town's motion to strike should not have been granted.
Before addressing the merits of the plaintiffs' claims, we set forth the applicable standard of review and legal principles governing our analysis. "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 [defendant's 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 for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. . . .
"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of
"The tort liability of a municipality has been codified in [General Statutes] § 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." (Citations omitted; emphasis added; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-21, 907 A.2d 1188 (2006).
Here, it is apparent from the face of the complaint and amended complaint that the town, acting through Lucas, was engaging in a governmental function while performing the acts and omissions complained of by the plaintiffs. See id., at 321, 907 A.2d 1188. As such, the court appropriately considered the applicability of governmental immunity in this case in the context of the town's motion to strike. Nonetheless, "tak[ing] the facts to be those alleged in the complaint that has been stricken"; (internal quotation marks omitted) id., at 317, 907 A.2d 1188; as we are required to do, it is equally apparent that the plaintiffs' negligence counts adequately plead a cause of action for the breach of ministerial duties. Therefore, "facts provable in the complaint would support a cause of action"; (internal quotation marks omitted) id., at 318, 907 A.2d 1188; for negligence notwithstanding the doctrine of governmental immunity, as the doctrine does not shield municipalities for the misperformance of ministerial duties. Moreover, the court's conclusion that "`statutes,
We conclude that the plaintiffs' negligence counts adequately plead a cause of action for violations of ministerial rather than discretionary duties. Thus, the court improperly granted the town's motion to strike on the ground of governmental immunity.
The plaintiffs next claim that the court improperly granted the town's motion to strike their nuisance counts on the basis of this court's decision in Himmelstein v. Windsor, supra, 116 Conn.App. at 40, 974 A.2d 820. Specifically, the plaintiffs argue that Himmelstein is distinguishable on its facts and, as such, not controlling in the present case. We agree.
In Himmelstein, the plaintiff brought suit against the town of Windsor and the Windsor police department after sustaining physical injuries when the bicycle he was riding struck a Windsor police department radar trailer. Id., at 31, 974 A.2d 820. In addition to alleging a breach of General Statutes § 13a-149,
In the present case, unlike in Himmelstein, the plaintiffs have not alleged that Interstate 95 is a road that the town is "bound to keep . . . in repair" pursuant to § 13a-149. Indeed, it would be disingenuous to conclude that the town is responsible for the upkeep, maintenance and repair of Interstate 95, a major thoroughfare spanning the state. Therefore, the plaintiffs' nuisance counts are clearly distinguishable from those asserted in Himmelstein, as the plaintiffs' nuisance counts here do not fall within the scope of § 13a-149.
The judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion the other judges concurred.