2009 Ct. Sup. 18297
No. CV 095029394Connecticut Superior Court Judicial District of New Haven at New Haven
November 10, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 118)
JON C. BLUE, JUDGE OF THE SUPERIOR COURT.
In 2007, while standing on a public street in Hamden, Barry Abraham, the plaintiff herein, was struck and injured by a falling tree branch. He has sued the Town, its employees, and the owner of the adjoining property for damages on a theory of negligence. The motion to strike now before the court, claiming governmental immunity, has been filed by the Town and its employees. (The claim against the property owner is not in question for the time being.) For the reasons briefly stated below, the motion must be granted.
Abraham commenced this case in May 2009 by service of process. He is the sole plaintiff. The defendants are the Town of Hamden (“Town”); Joseph Velardi, the Town’s Director of Public Works; David Rhone, the Town’s Tree Warden; and Irene Foskey, the owner of the adjoining property.
Abraham’s Amended Complaint consists of three counts. The First Count is against Velardi and Rhone. It alleges that, “On or about July 14, 2007 at about 3:00 P.M., the plaintiff, Barry Abraham, was standing on a public street in front of 45 St. Mary Street when he was struck by a falling tree branch resulting in the injuries and losses set forth.” The incidence was allegedly caused by the negligence of Velardi and Rhone because they failed to inspect the tree for defects, allowed it to remain in a dangerous and hazardous condition, failed to repair it, failed to remove it, failed to warn Abraham, and, more generally, failed to exercise reasonable care and “failed to perform their ministerial duties with respect to the tree.”
The Second Count is directed against the Town on a theory of indemnity, pursuant to Conn. Gen. Stat. § 7-465.
The Third Count is directed against Foskey. That count is not now before the court.
CT Page 18298 On October 8, 2009, the Town, Velardi, and Rhone filed the Motion to Strike now before the court. The motion, claiming governmental immunity pursuant to Conn. Gen. Stat. § 52-557n, seeks to strike the First and Second Counts. The motion was argued on November 9, 2009.
The outcome of the motion is dictated by binding precedent. The Appellate Court has held that, “the duty to inspect and care for trees undoubtedly involves the exercise of judgment and, as such, is properly classified as a discretionary act.” DeConti v. McClone, 88 Conn.App. 270, 273, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005) Accord Roman v. City of Stamford, 16 Conn.App. 213, 547 A.2d 97
(1988), aff’d, 211 Conn. 396, 559 A.2d 710 (1989). Where it is apparent from the face of the complaint that the municipality and its employees were engaged in discretionary acts of this nature, “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.” DeConti, supra, 88 Conn.App., at 272. The Town and its employees have appropriately done so here. It is entirely clear on the face of the Amended Complaint that all of the defendants’ acts complained of are discretionary. The catchall allegation of “ministerial duties with respect to the tree” is meaningless, since DeConti makes it clear that no “ministerial duties with respect to the tree” exist in the first place.
Under these circumstances, the motion to strike the First and Second Counts must be granted.
CT Page 18299