Superior Court of Connecticut, Judicial District of Ansonia-Milford, Milford
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' SPECIAL DEFENSES
Barry K. Stevens, J.
This action was instituted by the plaintiff, Oxford Automotive, LLC, against the defendants, Paul Kryzwick and the city of Shelton. According to the complaint, the plaintiff is " duly authorized to transact business in the State of Connecticut regarding the repair of automobiles." The complaint alleges that on February 8, 2013, Kryzwick " negligently operated a vehicle owned by the City of Shelton" and damaged a vehicle owned by a Matthew Hungerford. Hungerford brought his vehicle to the plaintiff's business for repair, but did not pay for the full cost of the repairs. According to the complaint, Hungerford " signed an assignment of claim, assigning to the plaintiff . . . all rights against the defendant and/or defendant's insurance carrier arising out of damages caused to his vehicle." The first count of the complaint is against Kryzwick and is based on negligence. The second count is against Shelton and alleges that because Shelton owned the vehicle operated by Kryzwick, the city is liable " pursuant to Connecticut General Statutes Sections 14-154a and 52-183." The plaintiff seeks $4, 544.52 in damages.
The defendants filed an answer containing five special defenses. Pending before the court is the plaintiff's motion to strike these special defenses. The defendants have objected to the motion to strike the first four defenses. The defendants have no objection to the motion to strike the fifth special defense. For the following reasons, the plaintiff's motion to strike is granted as to the first, third, and fifth special defenses, and is denied as to the second and fourth special defenses.
Practice Book § 10-39(a)(5) provides that a motion to strike may be used to contest " the legal sufficiency of any answer . . . or any part of that answer including any special defense[s] . . ." See also Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); Girard v. Weiss, 43 Conn.App. 397, 417, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). " In ruling on [a] motion to strike, the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). " The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint, but demonstrate . . . that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999); see Practice Book § 10-50.
The defendants' first special defense alleges that Kryzwick " was engaged in highway maintenance operation within the meaning of [General Statutes] § 14-290 and was thereby exempt from motor vehicle laws referenced in plaintiff's complaint." General Statutes § 14-290(b) provides in relevant part that certain delineated state statutes governing the operation of motor vehicles do not apply to " operators of maintenance vehicles . . . of any governmental agency . . . while such operators . . . are engaged in or are preparing to engage in or are departing from highway maintenance operations on any highway, road or street . . ." The problem with this special defense is that the complaint alleges that Kryzwick was " negligent, " but does not allege that Kryzwick violated any particular motor vehicle statute. Because the complaint does not allege violation of any of the statutes on which an exemption may be based under § 14-290(b), the motion to strike must be granted because the special defense is legally irrelevant to the allegations of the complaint. See Allison v. Manetta, 284 Conn. 389, 933 A.2d 1197 (2007) (holding that a trial court need not charge a jury regarding § 14-290 when the defendant's alleged negligence is not based on violating one of the statutes enumerated therein).
In the second special defense, the defendants assert that " some or all of the allegations of the plaintiff's complaint are barred by the applicable provisions of qualified immunity." In its motion to strike, the plaintiff argues that this special defense should be stricken because General Statutes § 52-557n " abrogates the traditional common-law doctrine that municipalities are immune from suit for torts committed by their employees and agents." The plaintiff's statement is generally true, but misses the point. Both defendants, Kryzwick and his municipal employer, have asserted this special defense. The established common-law rule is that as a municipal employee, Kryzwick " 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Consequently, viewing the second special defense broadly so as to uphold its legal sufficiency, the motion to strike must be denied because, as stated in the defense, some of the claims of the complaint may be barred by the qualified immunity available to Kryzwick as a municipal employee. Certainly, the second special defense is not well-pleaded. The allegation does not specifically state which defendant is asserting the defense. Additionally, the defense does not explicitly state that Kryzwick was engaged in discretionary conduct or include facts supporting such a claim. Nevertheless, if the plaintiff wanted the defense to be pleaded with more specificity, it could have filed a request to revise. By not filing a request to revise, the plaintiff must now accept the allegations as presented and seek any desired specificity through discovery.
The third special defense alleges that the " plaintiff herein was faced with a sudden emergency and the claims are otherwise barred by the sudden emergency doctrine." Again, this defense is curiously pleaded because typically, the claim is that the plaintiff's recovery should be barred because the defendant was presented with a sudden emergency. In any event, there is no sudden emergency " doctrine" as such under Connecticut law. The characterization of this legal principle as a " doctrine" is a misnomer to the extent that its proof does not automatically bar a negligence claim. " A correct statement of the principle is that [i]n an emergency not due to his own negligence, one is not relieved of all obligation to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency." (Internal quotation marks omitted.) Degnan v. Olson, 136 Conn. 171, 177, 69 A.2d 642 (1949). " An emergency is but one of the circumstances shown in evidence which are to be considered by the trier in determining whether an operator [of a motor vehicle] exercised due care . . . The question arises only after consideration of the evidence developed in the course of the trial, and may be suggested by the testimony of a witness without any advance knowledge on the part of the parties or their counsel." (Citations omitted.) Pareles v. McCarthy, 149 Conn. 238, 243, 178 A.2d 155 (1962).
Under Practice Book § 10-50, facts that must be specially alleged are those " which are consistent with [the statements of the complaint] but show, notwithstanding, that the plaintiff has no cause of action . . ." The defendants' third special defense of sudden emergency, even if supported by evidence at trial, would only require the trier to consider these facts in evaluating the issue of reasonable care, and would not establish that the plaintiff " has no cause of action." Id. Consequently, the defendants' claim of sudden emergency must be stricken because it is not a legally cognizable special defense under our rules of practice. See Pareles v. McCarthy, supra, 149 Conn. 243 (holding that " no pleading is necessary to invoke the [sudden emergency] doctrine").
The defendants' fourth special defense states that " some or all of the allegations of the plaintiff's complaint are barred by the applicable provisions of [General Statutes] § 52-557n."  The plaintiff seeks to strike this fourth defense on the ground that " the defendants' allegations are devoid of any facts and any explanation of the legal theories on which they are relying to support its contentions." As previously stated, the plaintiff has filed a motion to strike without first filing a request to revise. A request to revise is the appropriate pleading to file in order to acquire clarification of pleadings that lack sufficient factual specificity. See Practice Book § 10-35. A motion to strike, on the other hand, is not the appropriate pleading to acquire factual specification or clarification of a claim or defense. See generally Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988) (" [T]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike the entire complaint . . . If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike any count of the plaintiff's revised complaint pertaining to their respective liabilities for which the plaintiff was unable to allege the necessary prerequisites." [Citation omitted; footnote omitted.]); compare, Lee v. Perez, Superior Court, judicial district of Stanford-Norwalk, Docket No. CV-90-0108394-S, 1991 Conn. Super. LEXIS 1440 (June 20, 1991, Karazin, J.) (granting motion to strike immunity claim asserted without factual specificity); Herasimovich v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV-04-0481797-S, 2005 Conn. Super. LEXIS 2030 (August 8, 2005, Thompson, J.) (same).
In ruling on a motion to strike a special defense, the court must assume the truth of the facts alleged in the defense, and the motion must be denied if the allegations are sufficient to assert a legally cognizable defense. Consequently, if the facts stated in a special defense are legally sufficient to assert a defense, a motion to strike must fail when solely premised on a lack of specificity that could have been addressed through a request to revise. In this case, although the defendants' allegation that the plaintiff's claims are barred by General Statutes § 52-557n lacks details, it is nevertheless sufficient to withstand a motion to strike (if only barely so). Again, further factual clarity could have been achieved through a request to revise, which the plaintiff chose not to file and has now waived the right to file. See Practice Book § 10-7.
Therefore, the plaintiff's motion to strike is granted as to the defendants' first, third, and fifth special defenses, and is denied as to the second and fourth special defenses.