McCoy v. City of New Haven12/13/2005
The plaintiff, Dennis McCoy, appeals from the partial judgment of the trial court in favor of the defendant city of New Haven (city). The plaintiff contends that the court (1) improperly concluded that the city is immune from liability for the intentional acts committed by Henry Frazier and (2) applied an incorrect standard in ruling on the city's motion to strike. We affirm the judgment of the trial court.
This appeal involves injuries sustained by the plaintiff during the course of his employment with the city. The plaintiff's amended complaint alleged that on July 4, 2002, the plaintiff was assaulted by Frazier, a co-employee. The complaint consisted of two counts, the first of which alleged common-law assault against Frazier. The second count alleged that, as the city "affirmatively condoned and thereby positively fostered . . . assaultive conduct by Mr. Frazier against his co-workers," the city either intended or was substantially certain that the plaintiff's injuries would occur.
On September 4, 2003, the city filed a motion to strike the second count of the plaintiff's complaint. The motion to strike alleged that the city was immune from liability for the intentional acts committed by its employees under General Statutes § 52-557n (a) (2) (A). By memorandum of decision filed February 13, 2004, the court agreed, concluding that the plaintiff had "failed to establish or allege that the [city] . . . intentionally created a dangerous condition that made the injuries he sustained substantially certain to occur so as to allow him to proceed in an action directly against his employer. . . . he [city] is immune from liability for the intentional acts committed by . . . Frazier." Accordingly, the court granted the motion to strike and rendered partial judgment in favor of the city. From that judgment, the plaintiff now appeals.
I.
The plaintiff claims that the court improperly concluded that the city is immune from liability for the intentional acts committed by Frazier and, thus, should not have granted the motion to strike. We disagree.
A motion to strike attacks the sufficiency of the pleadings. Egri v. Foisie, 83 Conn. App. 243, 247, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004); Practice Book § 10-39. Our review of the court's ruling on a motion to strike is plenary. St. Denis v. de Toledo, 90 Conn. App. 690, 694, 879 A.2d 503, cert. denied, 276 Conn. 907, A.2d (2005). "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. . . . f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). While pleadings must be construed broadly and realistically, rather than narrowly and technically; see Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001); a motion to strike "is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
The city's motion to strike was premised on § 52-557n (a) (2) (A), which provides: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . . ." In Pane v. Danbury, 267 Conn. 669, 685-86, 841 A.2d 684 (2004), our Supreme Court held that the defenda
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