Violano v. Fernandez

• Citation: 280 Conn. 310,907 A.2d 1188
• Decision Date: 17 October 2006
• Docket Number: (SC 17424)
• Court: Supreme Court of Connecticut
• Parties: CYNTHIA A. VIOLANO ET AL. v. HENRY J. FERNANDEZ III ET AL.

907 A.2d 1188

280 Conn. 310

CYNTHIA A. VIOLANO ET AL. v. HENRY J. FERNANDEZ III ET AL.

(SC 17424)

Supreme Court of Connecticut.

Argued March 6, 2006.

Officially released October 17, 2006.

Sullivan, C.J., and Borden, Katz, Vertefeuille and Zarella, Js.^*

William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellants (plaintiffs).

James S. Del Visco, assistant corporation counsel, for the appellees (defendants).

Opinion

VERTEFEUILLE, J.

Upon our grant of certification, the plaintiffs, Cynthia A. Violano and Cinderella of New Haven, LLC (Cinderella), appeal from the Appellate Court's judgment, in a divided opinion, affirming the trial court's judgment in favor of the defendants, Henry J. Fernandez III and the city of New Haven (city). The plaintiffs claim that the Appellate Court improperly determined that the trial court properly had granted the defendants' motion to strike the complaint on the basis of the majority's conclusion that governmental immunity shielded the defendants from liability for their alleged negligent acts and omissions. We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "On June 16, 1999, the plaintiffs entered into a ten year lease for property located at 26-28 Townsend Avenue (property) in New Haven. The plaintiffs also signed a purchase option agreement that gave Cinderella the exclusive right to purchase the property. Both the lease agreement and the purchase option were recorded on the appropriate land records.

"The plaintiffs intended to operate a restaurant on the property, which was located next to a firehouse. The plaintiffs obtained the necessary zoning permits and health department certificates for the restaurant. They also acquired a liquor permit from the department of consumer protection.

"On December 13, 1999, Fernandez, the director of the Livable City Initiative (Livable City),¹ recommended that the city take the property by eminent domain and Livable City's board voted in accordance with his recommendation. On January 3, 2000, the city's board of aldermen (board) approved the taking for the purpose of expanding the firehouse. The city filed and recorded the certificate of taking in April, 2000. Subsequent to the taking, on November 3, 2000, a robbery occurred at the property and all of the plaintiffs' items, renovations and fixtures were stolen or destroyed.

"On June 18, 2001, the plaintiffs commenced the present action. On May 22, 2002, the defendants filed a motion to strike the entire complaint, alleging that it was insufficient to state a claim on which relief could be granted. Following a hearing on the defendants' motion, the court, on October 17, 2003, granted the defendants' motion. The defendants subsequently filed a motion for judgment, which the court granted on November 17, 2003." Violano v. Fernandez, 88 Conn. App. 1, 3-4, 868 A.2d 69 (2005).

The plaintiffs appealed from the judgment of the trial court to the Appellate Court, but limited their appeal to four of the six counts that they had alleged in their complaint.² In those four counts, the plaintiffs alleged that: (1) Fernandez was negligent with regard to the taking of the property; (2) Fernandez was negligent in securing the plaintiffs' personal property that remained on the property after the taking; (3) the city is liable on behalf of Fernandez for the damage caused by his negligence under General Statutes § 7-465;³ and (4) the city is also liable for the damages caused by Fernandez' negligence under General Statutes § 52-557n.⁴ Because only the second, third and fourth of these counts were the subject of the plaintiffs' petition for certification to this court, we will discuss only the pertinent parts of the Appellate Court's decision dealing with these counts.

The majority of the Appellate Court concluded that the trial court properly had struck the second count of the plaintiffs' complaint alleging that Fernandez was negligent in securing the plaintiffs' personal property. Id., 9-12. Specifically, the majority concluded that qualified governmental immunity applied to Fernandez' alleged actions because they were discretionary in nature. Id., 12. Further, the majority determined that none of the exceptions to Fernandez' qualified governmental immunity applied. Id. Turning to the third count, the majority concluded that this count also was struck properly by the trial court because the city's liability under § 7-465 was predicated on Fernandez' liability in the second count. Id., 12 n. 11. Finally, the majority concluded that the trial court properly struck the fourth count because, under § 52-557n (a) (2) (B), a municipality is not liable for damages caused by its employee's negligent act or omission that requires the exercise of judgment or discretion. Id., 14. Because the majority had concluded that Fernandez' alleged acts of negligence, as set forth in the second count, were discretionary in nature, the city could not be held liable.⁵ Id. Thereafter, we granted the plaintiffs' petition for certification, limited to the following question: "Did the Appellate Court properly affirm the trial court's striking of counts two, three and four of the complaint?" Violano v. Fernandez, 273 Conn. 936, 937, 875 A.2d 544 (2005).

On appeal, the plaintiffs claim that the Appellate Court majority improperly concluded that the trial court properly had struck counts two, three, and four of their complaint. The plaintiffs make a four-pronged attack on the judgment of the Appellate Court. First, the plaintiffs argue that governmental immunity should not have been decided on a motion to strike because doing so denied them an opportunity to conduct discovery to determine whether the city had any applicable rules, policies, or directives that would have rendered Fernandez' actions ministerial in nature. Next, the plaintiffs argue that we should abandon the standard that we currently employ to determine whether a given act is ministerial or discretionary in nature. Specifically, the plaintiffs argue that this court's application of the distinction between ministerial and discretionary acts allows a municipality unfairly to remain immune from the damages caused by its own common-law negligence. Instead, the plaintiffs urge us to adopt a standard whereby, if the act is related to policy or policy making, the municipality would be immune, but if the act resulted simply from the implementation of a policy, then the municipality would be liable for damages caused by its negligence. The plaintiffs' third claim on appeal is that, even if we decline to abandon the distinction between ministerial and discretionary acts, the motion to strike should not have been granted because the circumstances, as alleged in the complaint, warrant the application of an exception to Fernandez' qualified governmental immunity because the plaintiffs were identifiable victims subject to imminent harm. Finally, the plaintiffs claim that the defendants owed them a private duty,⁶ and, accordingly, the special defense of governmental immunity does not apply to shield the defendants from liability caused by their breach of this duty.

In response, the defendants claim that the Appellate Court majority properly affirmed the trial court's judgment rendered after it had granted the defendants' motion to strike the complaint. The defendants first contend that the trial court properly decided the issue of qualified governmental immunity on their motion to strike because it was apparent from the face of the complaint that Fernandez' alleged acts and omissions were discretionary in nature. Further, the defendants contend that the identifiable person, imminent harm exception to governmental immunity does not apply because the alleged harm—the robbery—was not imminent. Finally, the defendants claim that, regardless of whether the duty was public or private, they are immune from liability if the act or omission complained of was discretionary in nature and no exception applied. We agree with the defendants.

"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 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, if facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that what 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." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004).

The following principles of governmental immunity are pertinent to our resolution of the claims raised by the plaintiffs on appeal. "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, ministerial...