Fraser v. Henninger

• Decision Date: 26 April 1977
• Citation: 376 A.2d 406,173 Conn. 52
• Court: Connecticut Supreme Court
• Parties: Peter FRASER v. Charles E. HENNINGER et al.

Page 406

376 A.2d 406

173 Conn. 52

Peter FRASER v. Charles E. HENNINGER et al.

Supreme Court of Connecticut.

Argued March 1, 1977.

Decided April 26, 1977.

Thomas F. Seymour and Stephen W. Whalen, Branford, with whom, on the brief, was Robert M. Owens, Branford, for appellant (plaintiff).

James W. Macauley, Town Atty., for appellees (defendants).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The plaintiff's complaint is in two counts. The first count alleges personal injuries sustained as a result of negligence upon the part of the named defendant, an employee of the town of Greenwich. The second count purports to allege facts to support a recovery from the defendant town of Greenwich, pursuant to § 7-465 of the General Statutes providing for the assumption of liability for damages caused by municipal employees. ¹ The same attorney who entered an appearance for the defendant town of Greenwich also entered an appearance for the defendant employee and filed a statement with the court that the town would pay any verdict rendered in such action against that employee, pursuant to § 7-465, "said employee reserving unto himself any and all defenses which may be available to him." See Martyn v. Donlin 148 Conn. 27, 32, 166 A.2d 856, 858; General Statutes § 7-465. The defendants subsequently demurred to the complaint. The court filed a memorandum of decision sustaining the demurrer. The plaintiff did not plead over and judgment was rendered against him. From this judgment the plaintiff has appealed.

The demurrer filed by the defendants sets up more than one ground of demurrer. Our rules of practice require a judge before whom such a demurrer is argued, in rendering a decision thereon, to specify in writing the grounds upon which his decision is based. Practice Book § 114. The only ground discussed in the court's memorandum of decision in this case is the first ground alleged. This ground relates to the statutory notice requirement and is addressed to both the first and the second counts of the complaint. ²

The second count of the complaint alleged that due notice of the plaintiff's intention to institute this action was given the defendant town under the provisions of § 7-465 and that a copy of that notice was attached. This notice appears to be a written communication to the town clerk of the municipality reciting the time when and the place where the plaintiff, a minor, sustained personal injuries, and some of the surrounding circumstances. The communication further states that the cause of the injuries was "defective and unsafe facilities and negligent supervision of a basketball program by the Recreation Board of the Town of Greenwich," and that the father of the injured minor will look to the town of Greenwich "for damages as provided by law." The purpose of a provision requiring statutory notice of a claim as a condition precedent to bringing an action for damages against the municipality is to give the officers of the municipality such information as will enable them to make a timely investigation of the claim and to determine the existence and extent of liability. Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152; Cassidy v. Southbury, 86 Conn. 45, 49, 84 A. 291, 293; 56 Am.Jur.2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 686. The notice is to be tested with reference to the purpose for which it is required, which is "to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection." Cassidy v. Southbury, supra. Unless the notice patently meets or fails to meet the requirements of the statute, the question of its sufficiency is a question of fact. Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522; see Judd v. New Britain, 81 Conn. 300, 305, 70 A. 1028; 56 Am.Jur.2d, op. cit., § 687.

" While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance." Kostyal v. Cass, 163 Conn. 92, 97, 302 A.2d 121, 124. When a plaintiff seeks to take advantage of the statute, the liability of the municipality, but not that of the municipal employee, is dependent upon the giving of proper statutory notice. We have previously held that an injured party may maintain a common-law action against a municipal employee covered by the statute, thereby avoiding those requirements which are unique to recovery under the indemnification statute. Wakelee v. DeSanto, 152 Conn. 44, 46, 202 A.2d 833; see annot., 71 A.L.R.3d 90, 98 § 2, 148 § 27(b). The defendants admit that the plaintiff was not required to bring his action under the statute as his sole and exclusive remedy, and that he might have instituted an action against the defendant employee without joining the municipality. The defendants, however, argue that because this action is brought jointly against the municipality and the municipal employee the two counts of the complaint in effect constitute one cause of action. We do not agree. In the context used in § 7-465, it is clear that the word "jointly" simply means "together with." Webster, Third New International Dictionary. Such a construction is consistent with the remarks on the floor of the House of Representatives indicating that one of the purposes of Public Acts 1973, No. 73-610, which amends § 7-465 in part by adding the word "jointly," was to eliminate any inference that notice need be given to a municipality in an action brought only against an employee. 16 H.R.Proc., Pt. 9, 1973 Sess., p. 4172. Accordingly, the provisions of § 7-465 which permit an action to be maintained against the municipality and the employee jointly do not mean that a plaintiff may not proceed against the employee alone if for any reason the plaintiff cannot prevail upon the count alleging facts to support a recovery from the municipality of any judgment obtained against the employee. A plaintiff's failure to sustain his complaint against the municipality is no reason for turning the plaintiff out of court if he can sustain his complaint against the employee. General Statutes § 52-227; Woodruff v. Perrotti, 99 Conn. 639, 645, 122 A. 452; Dean v. Savage, 28 Conn. 359; see Schubert v. Ivey, 158 Conn. 583, 588, 264 A.2d 562.

In an action brought under § 7-465, there is an obvious potential that the interests of a municipality will be antagonistic to those of its employee and, accordingly, it is often the case that the parties should be represented by different counsel. See Martyn v. Donlin, 148 Conn. 27, 32, 166 A.2d 856. Where the municipality and the employee nevertheless choose to be represented by the same attorney, § 7-465 requires that the municipality, "at the time such attorney enters his appearance, (file) a statement with the court . . . that it will pay any verdict rendered in such action against such employee." The plaintiff claims that because the municipality has filed a statement in court, as permitted by statute, that it will pay any verdict rendered against the municipal employee, the municipality has no standing to attack the validity of the statutory notice. On demurrer, the court considers the whole record. Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 551, 324 A.2d 919; White v. Avery, 81 Conn. 325, 328, 70 A. 1065. We are of the opinion that such a statement constitutes a waiver of the municipality's right to assert any defense which it might have to the second count. See Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 561, 316 A.2d 394; Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 198, 286 A.2d 308. Moreover, we cannot say that the notice, "tested with reference to the purpose for which it is required," was so patently insufficient that its adequacy was a question of law for the court and not one of fact for the jury. Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522, 525. As required by § 7-465, the plaintiff's notice specifically set forth the time when and the place where the injuries were sustained. It also set forth the surrounding circumstances of the injuries so that the municipal officers were provided with "such information as will enable them to intelligently investigate the facts upon which the claim is based." Marino v. East Haven, 120 Conn. 577, 579, 182 A. 225, 226. Although the notice did not use the exact statutory wording that the plaintiff intended to "commence such action" against the town of Greenwich pursuant to § 7-465, the notice did state that the father of the minor plaintiff "will look to the Town of Greenwich for damages as provided by law." Notice provisions are generally construed liberally in favor of a claimant who is attempting to establish compliance with their terms, and substantial compliance with a statute requiring notice of injury is all that is required. Flynn v. First National Bank & Trust Co., 131 Conn. 430, 433, 40 A.2d 770; Christian v. Waterbury, 123 Conn. 152, 156, 193 A. 602; 56 Am.Jur.2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 687. The allegations of the notice were not so patently defective that, as a matter of law, they failed to "reasonably protect the interests of the defendant under the particular circumstances of the case." Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152, 153. The court erred in sustaining the demurrer on the first ground.

Our practice requires that each demurrer shall distinctly specify the reason or reasons why the pleading demurred to is insufficient. Practice Book § 107. While grounds other than those...