2009 Ct. Sup. 17525
No. CV 08-5019202-SConnecticut Superior Court Judicial District of Hartford at Hartford
October 29, 2009
MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION TO STRIKE DATED JULY 13, 2009 PLAINTIFF’S SECOND AMENDED COMPLAINT DATED MAY 12, 2009
RITTENBAND, J.T.R.
FACTS AND PROCEDURE:
Plaintiff has brought this action in six counts. The basic issue in the complaint is that, as alleged in the First Count, the plaintiff, Jeffrey Maltz (hereinafter also “Maltz”) had been employed by the City of Hartford in the Emergency Services Telecommunications Department from January 8, 1978 through approximately December 31, 2004. On or about December 31, 2004 at the request of the defendants (“Gary Stango” and “The City of Hartford”) Maltz voluntarily retired from his employment after approximately 21 years of service to the City of Hartford. Prior to Maltz’s retirement the defendant Stango who was Maltz’s supervisor, agreed, individually and/or with the authorization and/or ratification of the City of Hartford to provide Maltz with a positive employment reference if Mr. Maltz retired in the event that he ever needed one. Mr. Maltz and Mr. Stango shook hands upon making this agreement which was authorized and/or ratified by the defendant City of Hartford. Maltz relied on the promise made by the defendant Stango individually and/or with the authorization and/or ratification of the defendant, the City of Hartford, in that Maltz did retire and expected the promised positive references when he applied for future employment. However, according to the complaint the defendants breached the agreement in several ways. The plaintiff applied for employment with Life Star, a critical care helicopter service and Mr. Stango on or about early 2005 made negative statements to Life Star personnel regarding plaintiff’s work history. The same thing happened when Maltz applied for employment with the City of West Hartford as a dispatcher and under the same circumstances his application to Simplex Grinnel, LP, produced to the new prospective employer Mr. Stango’s negative statements to the personnel regarding Maltz’s work history. Again CT Page 17526 Maltz applied to the City of Middletown as a dispatcher. The same thing happened with negative statements to the City of Middletown personnel from Mr. Stango individually and/or with the authorization and/or ratification of the defendant, the City of Hartford; and finally in October 2007 the same thing happened with the Town of East Hartford at which Maltz applied for a job as a dispatcher and was accepted as a telecommunications operator. Mr. Stango under the same circumstances subsequently made negative statements to the Town of East Hartford personnel regarding Maltz’s work history. As a result the Town of East Hartford cancelled its employment agreement with Maltz.
On or about April 11, 2008 the plaintiff brought suit against both defendants, which was followed by the pending motion to strike dated July 13, 2009. A hearing was held on the motion to strike on October 26, 2009 before this Court. The Court heard oral argument and prior thereto reviewed the briefs of the parties.
STANDARD OF REVIEW:
“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state facts upon which relief can be granted. In ruling on a motion to strike, the Court is limited to the facts alleged in the complaint. The Court must construe the facts in the complaint most favorably to the plaintiff.” (Internal quotation marks omitted.) Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996). “A motion to strike challenges the legal sufficiency of a pleading.”Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In reviewing the granting of a motion to strike, we take the facts alleged in the plaintiff’s complaint and construe the complaint in the manner most favorable to the plaintiff. Mozzochi v. Beck, 204 Conn. 490, 491, 529 A.2d 171 (1987). “This includes the fact necessarily implied and fairly provable under the allegations . . . It does not include, however, the legal conclusions or opinions stated in the complaint . . .” Coste v. Riverside Motors, Inc., 24 Conn.App. 109, 111, 585 A.2d 1263 (1991); se Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Stradmore Development Corporation, v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973). (Emphasis added.)
ISSUES AND FINDINGS:
CT Page 17527
1. The first count clearly alleges a contract with Stango. A promise by the plaintiff to retire in exchange for which he was promised favorable recommendations as to his employment history when asked by prospective employers of Maltz. The motion to strike the first count as against Stango is denied. As against the City of Hartford, the answer is more difficult. No facts were set forth that Stango acted with the authorization and/or ratification of the City of Hartford. However, because this case is at the early stage of pleadings and discovery is pending, the Court will give the plaintiff a certain amount of leeway to use disclosure to determine whether there was authorization or ratification by the City of Hartford. Additionally, what is missing from the complaint is that Mr. Stango had apparent authority to act on behalf of the City of Hartford. The wording of the complaint would support at least by necessary implication that there was apparent authority for Mr. Stango to renege on his promise. As stated in the Standard of Review, the facts alleged in the plaintiff’s complaint should be construed in the manner most favorable to the plaintiff and that includes the facts necessarily implied and fairly provable under the allegations. Accordingly, the motion to strike the first count as to the City of Hartford is also denied.
2. For the same reasons as to the first count, the motion to strike the second count, [1] which is also a breach of contract claim, is denied.
3. The third count sounds in tortious interference with a contractual right. Stango made a promise and by the principle of apparent authority, he had the authority for himself and on behalf of the City of Hartford to make a promise upon which the plaintiff relied to his detriment. Accordingly, the plaintiff has complied with paragraphs two and three of Fadner, supra, and this is another reason for denying the motion to strike on count two.
This is a claim for tortious interference with a contractual right. The only defense to that as brought out by the defendants is § 52-557n(a)(2) of the General Statutes which states that a political subdivision shall not be liable for damages caused by acts or omissions of any employee . . . which constitute . . . actual malice . . .” The complaint alleges that the action was done with malice. Accordingly, the motion to strike the City of Hartford is granted. However, the aforementioned section does not apply to the individual employee, and there are sufficient allegations for tortious interference with a contractual right as to Mr. Stango. Accordingly, the motion to strike count three as to CT Page 17528 Mr. Stango is denied.
4. Count four alleges negligence on the part of Mr. Stango. He negligently promised, under pleading in the alternative, good recommendations in exchange for the plaintiff taking retirement. Both Mr. Stango and the City of Hartford had a duty to fulfill the promise that was made. The defendants claim that Mr. Stango’s negligence is deemed to have been in reference to a discretionary act although the plaintiff claims it was a ministerial act. However, again in Violano v. Fernandez, supra, 280 Conn. at 319-20 the Court stated that there are three exceptions to discretionary act immunity. The third is that “. . . liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be very likely to subject an identifiable person to imminent harm . . .” Failure to act would be the failure to give a positive recommendation. The plaintiff is an identifiable person and is subject to imminent harm. It has been advanced, at least in oral argument that harm must be physical not emotional. Well, in paragraph 10 of the fourth count it is true that humiliation, embarrassment, etc. are not physical injuries. However, the plaintiff does allege “loss of sleep” and that is a physical injury.
Accordingly, the motion to strike the fourth count against both defendants is denied.
5. The fifth count is intentional infliction of emotional distress against only Gary Stango. The plaintiff mentions the City of Hartford as being involved in intentional infliction of emotional distress, but alleges that the City of Hartford maliciously sought to hinder Mr. Maltz from said employment, and as stated above the City of Hartford is not liable for malicious acts by its employees. However, as to Mr. Stango, the issue raised by the defendants is whether or not the action was extreme and outrageous. This has been alleged in the complaint, and this Court finds that after promising the plaintiff good recommendations, Mr. Stango completely reneged on that, and this Court believes that in effect he was lying to the plaintiff, and that is serious enough to be extreme and outrageous under these circumstances. Accordingly, the motion to strike count five as to Gary Stango is denied.
6. Defendants claim that the sixth count must be stricken because it is predicated on defendants’ alleged negligence for which defendants cannot be liable for all the reasons argued in section III. D supra. That is, the City cannot be liable in CT Page 17529 negligence under the common law as well as pursuant to C.G.S. § 52-557n(a)(2)(B). The defendants claim that there is an exemption against the City for 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. However, as previously stated in Violano v. Fernandez, supra “liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.” The plaintiff was certainly an identifiable person, and the harm was physical in part because of the allegation of “loss of sleep” which this Court has already concluded is physical harm. Accordingly, the motion to strike count six against both defendants is denied.
CT Page 17530