209 Conn. 273 | Conn. | 1988
This case is in this court by virtue of our certification from the Appellate Court. Rowe v. Godou, 12 Conn. App. 538, 532 A.2d 978 (1987), cert. granted, 206 Conn. 802, 535 A.2d 1316 (1988). As set forth in the Appellate Court opinion, the plaintiff, Clinton Rowe, commenced an action in a single count against the defendants, Raymond Godou and the city of Bridgeport, seeking compensation for property damage to his motor vehicle allegedly caused by Godou’s negligent operation of a fire truck owned by the city. Id., 539. The defendants moved to strike the plaintiff’s' entire complaint on the ground that his action was “barred by statute.” Id. The defendants’ motion was accompanied by a memorandum of law that specified General Statutes § 7-308 as the statute that “barred” the plaintiff’s action. The trial court granted the defendants’ motion to strike and, upon the failure of the plaintiff to plead over, rendered judgment for the defendants. Id., 539-40; see Practice Book § 157.
The plaintiff next maintains that the Appellate Court erred by “divining” facts not alleged in his complaint and by finding, without foundation, that his action was brought pursuant to General Statutes § 7-308.
Section 7-308 is an indemnification statute that, generally, requires a municipality to pay on behalf of any “paid or volunteer fireman” all sums that the fireman becomes obligated to pay as damages by reason of liability incurred while performing “fire duties.” Haehl v. Port Chester, 463 F. Sup. 845, 847-48 (S.D.N.Y. 1978); Reinhardt v. New Haven, 23 Conn. Sup. 321, 323-24, 182 A.2d 925 (1961). It has application only to a “paid or volunteer fireman” engaged in “fire duties” at the time that the liability was incurred. Shaw v. Industrial Safety Supply Co., 23 Conn. Sup. 149, 151-52, 178 A.2d 284 (1962). The plaintiffs complaint does allege that, at the time of the accident which damaged his motor vehicle, the defendant Godou was operating a fire truck owned by the city of Bridgeport
Without reciting a litany of other possibilities, we disagree with the Appellate Court that the conclusion was
Further, in ruling on a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. Gordon v. Bridgeport Housing Authority, supra; Amodio v. Cunningham, 182 Conn. 80, 82-83, 438 A.2d 6 (1980). So construed, the facts alleged in his complaint can be viewed as an effort by the plaintiff to seek compensation for his damages in a common law negligence action against the individual defendant. “We have previously held that an injured party may maintain a common-law action against a municipal employee covered by the statute [§ 7-465],
It is true that the plaintiff’s complaint is confusing because it combines, in a single count, separate causes of action against the individual defendant and the municipality.
There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand to the trial court with direction to deny the defendants’ motion to strike.
In this opinion the other justices concurred.
“[Practice Book] Sec. 157.—substitute pleading; judgment
“Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”
“[Practice Book] Sec. 154.—reasons
“Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”
“[Practice Book] Sec. 109A.— allegations based on statutory grounds
“When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number. This section shall apply only to pleadings filed after September 1, 1979.”
“[General Statutes] Sec. 7-308. assumption of liability for damages caused by firemen. The word ‘municipality,’ as used in this section, shall have the meaning ascribed to it by section 7-314 and the words ‘fire duties’
General Statutes § 7-465 is an indemnification statute similar to General Statutes § 7-308 which applies to municipal employees except firemen covered by § 7-308.
The plaintiff appears to have been operating under the assumption, when he made the city of Bridgeport a defendant in this action, that liability attached directly to the city simply by reason of its ownership of the fire truck that he claimed was being operated by Godou as an “agent, servant and/or under a general authority to drive.” At oral argument, he abandoned that theory and conceded that without alleging notice under an indemnification statute he was required to rely on the liability of the individual defendant.
See Practice Book § 133.
“[Practice Book] Sec. 147. request to revise
“Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party’s pleading, the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”
We are aware that the trial court file reveals that the defendants made a request to revise in 1984 and that the request was objected to by the plaintiff and denied by the trial court. Despite the denial of the motion to revise, the city still had the opportunity to move to strike the allegations of the complaint insofar as they purported to state a cause of action against it.
“[Practice Book] Sec. 152.—in general
“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, any count thereof, because of the absence of any necessary party, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.
“A motion to strike on the ground of the nonjoinder of a necessary party must give the name and residence of the missing party or such information as the moving party has as to his identity and residence and must state his interest in the cause of action.”