Sepega v. Delaura

• Decision Date: 26 September 2017
• Docket Number: SC 19683.
• Citation: 167 A.3d 916,326 Conn. 788
• Court: Connecticut Supreme Court
• Parties: Robert SEPEGA v. Lawrence R. DELAURA

326 Conn. 788

167 A.3d 916

Robert SEPEGA

v.Lawrence R. DELAURA

SC 19683.

Supreme Court of Connecticut.

Argued February 22, 2017

Officially released September 26, 2017

Gerald S. Sack, with whom, on the brief, was Jonathan A. Cantor, for the appellant (plaintiff).

Keith S. McCabe, for the appellee (defendant).

Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.^*

EVELEIGH, J.

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 generally 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 , 267 Conn. 651, 653–54, 841 A.2d 208 (2004). The principal issue in this appeal is whether the firefighter's rule should be extended beyond the scope of premises liability so as to bar a police officer from recovering, under a theory of ordinary negligence, from a homeowner who is also an alleged active tortfeasor. The plaintiff, Robert Sepega,¹ a municipal police officer, appeals from the judgment of the trial court in favor of the defendant, Lawrence R. DeLaura, following the granting of a motion to strike. In granting that motion, the trial court concluded that the firefighter's rule barred the plaintiff's sole claim, which sounded in ordinary negligence. We conclude that the firefighter's rule should not be extended beyond claims of premises liability and, accordingly, reverse the judgment of the trial court in favor of the defendant and remand the case to the trial court for further proceedings.

The following facts, as alleged by the plaintiff in his amended complaint, and procedural history are relevant to the present appeal. The plaintiff, while in the course of his employment as a municipal police officer, responded to a call at a premises owned by the defendant. The call indicated that the defendant had locked himself inside his home and was threatening to harm himself. After arriving at the premises and making numerous requests of the defendant for entry into the home, the plaintiff ultimately attempted to kick in a door and, in doing so, sustained serious injuries. The plaintiff alleged that the resulting damages were caused by the negligence and carelessness of the defendant. Specifically, the plaintiff alleged that the defendant had negligently "created conditions which mandated that the plaintiff, as a police officer, forcibly enter the premises in order to prevent harm to the defendant or to others." In support of this claim, the plaintiff alleged that the defendant "had violated a protective order by entering and remaining in the premises," was "threatening to harm himself," and was "uncooperative with police requests to come to the door and speak to them." We note that the complaint does not make any allegations against the defendant relating to dangerous or defective conditions on the premises.

The defendant filed a motion to strike the amended complaint, and the plaintiff objected. On September 15, 2015, the trial court issued a memorandum of decision denying the defendant's motion to strike. Thereafter, the defendant filed a motion for articulation that the court, sua sponte, recast as a motion for reargument and reconsideration. After hearing argument from the parties, the trial court vacated its original decision and issued a new memorandum of decision granting the defendant's motion to strike on October 29, 2015. The defendant then filed a motion for judgment, which the trial court granted. This appeal followed.²

"We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. 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... 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." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc. , 322 Conn. 385, 398, 142 A.3d 227 (2016) ; see also Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership , 309 Conn. 342, 350, 71 A.3d 480 (2013). "The issue of whether to recognize a common-law cause of action in negligence is a matter of policy for the court to determine based on the changing attitudes and needs of society." Craig v. Driscoll , 262 Conn. 312, 339, 813 A.2d 1003 (2003). We note that, because the firefighter's rule is rooted in the common law, it "is subject to both legislative and judicial modification." Ascuitto v. Farricielli , 244 Conn. 692, 698, 711 A.2d 708 (1998). We also note that, "because the firefighter's rule is an exception to the general rule of tort liability that, as between an innocent party and a negligent party, any loss should be borne by the negligent party, the burden of persuasion is on the party who seeks to extend the exception beyond its traditional boundaries." Levandoski v. Cone , supra, 267 Conn. at 661, 841 A.2d 208.

On appeal to this court, the plaintiff asserts that the trial court incorrectly granted the motion to strike because his claim is not barred by the firefighter's rule. Specifically, the plaintiff asserts that his claim is controlled by this court's decision in Levandoski v. Cone , supra, 267 Conn. at 654, 841 A.2d 208, in which the firefighter's rule was limited to claims of premises liability. In response, the defendant claims that the trial court correctly granted his motion to strike because this case is distinguishable from Levandoski. Instead, the defendant asserts that Kaminski v. Fairfield , 216 Conn. 29, 578 A.2d 1048 (1990), governs the plaintiff's claim. We agree with the plaintiff.

In Kaminski , this court considered whether parents could be held liable for injuries that a police officer received when accompanying mental health workers to a home in response to a request for mental health assistance to control the behavior of an adult son. Id., at 30, 578 A.2d 1048. The injured police officer relied on the following two theories of liability in support of his claim: (1) the parents owed him a duty of care pursuant to § 319 of the Restatement (Second) of Torts because, in permitting their adult schizophrenic son to live with them, they undertook a custodial relationship that encompassed responsibility for controlling his behavior; and (2) the parents were negligent in failing to warn the police officer of the son's dangerous and violent propensities, and that he possessed several axes. Id., at 33–36, 578 A.2d 1048. This court rejected the police officer's first claim, holding that the parents did not owe the police officer a duty of care because, in permitting their adult schizophrenic son to live with them, they had not undertaken a custodial relationship that encompassed responsibility for controlling his behavior. Id., at 36, 578 A.2d 1048. In rejecting the police officer's reliance on Tarasoff v. Regents of University of California , 17 Cal. 3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), this court further concluded that the parents were not negligent in failing to warn the police officer of their son's dangerous and violent propensities, and that he possessed several axes, because the parents did not have a professional relationship with their son and because the police officer was not a specifically identifiable victim. Kaminski v. Fairfield , supra, 216 Conn. at 37, 578 A.2d 1048. This court explained that the parents "cannot be held liable [to the police officer, who was] acting as a trained escort for a mental health team on a visit to a disturbed patient known to be agitated and to have access to axes." Id., at 38, 578 A.2d 1048.³

In Levandoski , a police officer brought a claim against a suspect for injuries he sustained during a pursuit. Levandoski v. Cone , supra, 267 Conn. at 654–56, 841 A.2d 208. The issue before this court in that case was "whether the firefighter's rule should be extended beyond the scope of premises liability so as to bar a police officer from recovering, based on a claim of ordinary negligence, from a tortfeasor who is neither an owner nor a person in control of the premises." Id., at 654, 841 A.2d 208. This court held that the firefighter's rule "should not be extended to a nonpremises liability case ...." Id., at 661, 841 A.2d 208. In reaching this conclusion, we noted that, "[b]ecause the firefighter's rule is an exception to the general rule of tort liability that, as between an innocent party and a negligent party, any loss should be borne by the negligent party, the burden of persuasion is on the party who seeks to extend the exception beyond its traditional boundaries," and that "the history of and rationales for the [firefighter's] rule persuade us ... that it should be confined to claims of premises liability." Id. In addition, after briefly discussing Kaminski , this court limited the breadth and scope of that case by concluding that, "we agree with those jurisdictions that have framed the [firefighter's] rule as one that relates specifically to premises liability ...." Id., at 664, 841 A.2d 208.

In Levandoski , we explained the history of the firefighter's rule in this state as follows: "This court first applied the firefighter's rule in Roberts...