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Sepega v. DeLaura

Superior Court of Connecticut, Judicial District of Middlesex, Middletown

October 29, 2015

Robert Sepega
v.
Lawrence DeLaura

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR REARGUMENT/RECONSIDERATION ON DEFENDANT'S MOTION TO STRIKE (#131)

Elpedio N. Vitale, J.

Nature of the Proceedings

On May 18, 2015, the defendant Lawrence DeLaura filed a Motion to Strike the plaintiff's amended complaint, along with a brief in support of the motion. The plaintiff filed an objection to the motion and a brief in opposition. The defendant thereafter filed a reply brief. The court first heard argument on the motion and objection September 8, 2015, and thereafter issued a memorandum of decision dated September 15, 2015, denying the motion.

On September 22, 2015, the defendant filed a motion for articulation, which the court, sua sponte, recast as a motion for reargument and reconsideration.

On October 19, 2015, the court again heard argument on the motion to strike.

Discussion

" [T]he purpose of a reargument is to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . ." (Internal quotation marks omitted.) Hudson Valley Bank v. Kissel, 303 Conn. 614, 624, 35 A.3d 260 (2012). " A reconsideration implies re-examination and possibly a different decision by the [court] which initially decided it." (Citations omitted; internal quotation marks omitted.) Intercity Development, LLC v. Andrade, 286 Conn. 177, 189, 942 A.2d 1028 (2008). " The granting of a motion for reconsideration . . . is within the sound discretion of the court." (Internal quotation marks omitted.) Swanson v. Groton, 116 Conn.App. 849, 866, 977 A.2d 738 (2009).

At the outset, the court observes that the defendant appropriately requested a clarification of the basis for the court's decision of September 22, 2015. It is incumbent upon a court, and in the interests of justice, to reflect further upon a decision if such decision was based either in whole, or in part, on a misapprehension of the arguments advanced by a party. The court has determined that such an unusual circumstance exists in the present case, and as a result, reconsideration of the defendant's claims is warranted.

In his complaint, the plaintiff alleges that on or about June 29, 2014, while in the course of his employment as a police officer, he responded to a call at the defendant's home as he had locked himself inside the home and threatened to harm himself. After being refused entry to the home by the defendant, despite numerous requests and attempts, the plaintiff ultimately attempted to enter the home by kicking in the door, which caused him to sustain personal injuries. It is further alleged that the defendant negligently created conditions which mandated the plaintiff, as a police officer, to forcibly enter the premises in order to prevent harm to the defendant or to others. Such conditions included the fact that: the defendant had violated a protective order by entering and remaining in the premises: the defendant was threatening to harm himself: and the defendant was uncooperative with police requests to come to the door and speak to them.

The defendant's motion to strike asserts that the plaintiff's complaint does not state a legally cognizable cause of action as a consequence of his status as a police officer acting within the course and scope of his employment while on the defendant's premises and sustaining personal injuries.

Both parties have discussed the so-called " firefighters rule" and the extent to which it is relevant to this case.

" The common-law 'firefighter's rule' provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee . . . Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property " only the duty not to injure him willfully or wantonly." (Citation omitted.) Levandoski v. Cone, 267 Conn. 651, 653-54, 841 A.2d 208. The rule arose in the earlier decisions of Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142 (1959), which first adopted the " firefighter's rule" for Connecticut, and Furstein v. Hill, 218 Conn. 610, 590 A.2d 939 (1991), which extended its reach to police officers.

In Levandoski, the court stated that " [t]he common-law firefighter's rule provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee . . . Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him willfully or wantonly." (Citation omitted; internal quotation marks omitted.) Id., 653-54. There, the defendant, on appeal, argued that the rule should be extended to non-premises liability cases, and the court declined the invitation. Id. The court provided ample grounds for its declination, including: a) the firefighter's rule had always been essentially a rule of premises liability, specifically concerning the differing duties of care attaching to an owner when a plaintiff is an invitee or a licensee, and that extension of the rule makes no sense if the defendant is not sued as a landowner; Id., 661-62, and b) because the doctrine rests on the doctrine of assumption of risk, abolished by statute in negligence actions pursuant to General Statutes § 52-572h, " it would be inconsistent with the policy of our general tort law to extend the [firefighter's] rule beyond its present confines." Id., 662. The Levandoski court concluded that " [t]he rule . . . relates specifically to premises liability and defines the duty owed by an owner or occupier of land." (Emphasis omitted.) Id., 664.

" The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint. A 'speaking motion' to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488 cert. denied, ...


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