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APPENDIX
ALEX RODRIGUEZ ET AL. v. DOUGLAS CLARK*
Superior Court, Judicial District of Waterbury
File No. CV-13-6020248-S
Memorandum filed June 10, 2014
Proceedings
Memorandum of decision on defendant’s motion to
strike. Motion granted.
Donald McPartland, for the plaintiffs.
James G. Williams and Christian M. Gunneson, for
the defendant.
Opinion
SHAPIRO, J. On May 12, 2014, the court heard oral
argument concerning the defendant’s motion to strike
all counts of the plaintiffs’ complaint. After consider-
ation of the parties’ written submissions and oral argu-
ments, the court issues this memorandum of decision.
For the reasons stated below, the motion is granted.
I
BACKGROUND
In Count One of the complaint, the plaintiffs allege
that, on July 13, 2011, plaintiff Alex Rodriguez was
employed as a police officer by the City of Middletown,
Connecticut (City).1 The plaintiffs allege that, on that
date, the defendant, Douglas Clark, was also employed
as a police officer by the City, and was assigned a police
cruiser and a K-9 dog, which was specially trained to
attack human beings involved in criminal activities who
needed to be subdued and arrested by the police.
They also allege that, on that date, Rodriguez was in
the process of subduing a man he was arresting at an
altercation, and that, at the scene, the defendant was
assigned to aid fellow police officers and knew that the
dog was not needed to subdue the persons his fellow
officers were in the process of subduing and arresting.
See complaint, all counts, paragraphs 3 and 4.
In paragraph 5, the plaintiffs allege that, on that date,
the defendant drove the cruiser to the scene, with the
dog in it, ‘‘placed the gear shift from drive to park; he
exited the cruiser and closed the driver’s side door; left
the key in the ignition and the motor running and a
window open; left to assist his fellow police officers
in subduing and arresting criminals when the K-9 dog
jumped out of an open window in the police car and,
unsupervised, it ran and attacked and nipped a police-
man and thereafter it attacked and bit . . . Rodriguez,
a second policeman, on his left leg causing serious
injuries and damages . . . .’’
The plaintiffs allege that Rodriguez’ injuries and dam-
ages were caused by the defendant’s negligence, in one
or more ways. See complaint, paragraph 8. In paragraph
9, the plaintiffs allege that the defendant’s conduct con-
stituted negligent operation of the motor vehicle pursu-
ant to General Statutes § 31-293a. Rodriguez alleges
that, as a result, he has suffered permanent injuries,
causing his retirement from his career as a police offi-
cer, and including permanent scarring, and permanent
interference with his mobility. These allegations are
incorporated in all four counts.
In Count Two, Rodriguez alleges that the defendant
is liable to him under General Statutes § 22-357 (dog
bite statute). In Counts Three and Four, based on the
same allegations. Rodriguez’ wife, plaintiff Rachel
Rodriguez, alleges that the defendant is liable to her
for loss of consortium. Additional references to the
allegations are set forth below.
II
STANDARD OF REVIEW
‘‘[A] motion to strike challenges the legal sufficiency
of a pleading and, consequently, requires no factual
findings by the . . . court . . . . We take the facts to
be those alleged in the complaint . . . and we construe
the complaint in the manner most favorable to sus-
taining its legal sufficiency. . . . Thus, [i]f facts prov-
able in the complaint would support a cause of action,
the motion to strike must be denied. . . . Moreover
. . . [w]hat is necessarily implied [in an allegation]
need not be expressly alleged. . . . It is fundamental
that in determining the sufficiency of a complaint chal-
lenged by a defendant’s motion to strike, all well-
pleaded facts and those facts necessarily implied from
the allegations are taken as admitted. . . . Indeed,
pleadings must be construed broadly and realistically,
rather than narrowly and technically.’’ (Internal quota-
tion marks omitted.) Coppola Construction Co. v. Hoff-
man Enterprises Ltd. Partnership, 309 Conn. 342, 350,
71 A.3d 480 (2013).
Legal conclusions in a complaint are not deemed to
be admitted. Murillo v. Seymour Ambulance Assn., lnc.,
264 Conn. 474, 476, 823 A.2d 1202 (2003).
III
DISCUSSION
The defendant argues that Counts One and Two are
barred by the exclusivity provision of the Workers’
Compensation Act, General Statutes § 31-275 et seq. In
addition, the defendant contends that Count Two is
also barred by governmental immunity because § 22-
357, the dog bite statute, does not abrogate the immu-
nity offered to municipalities under General Statutes
§ 52-557n, and because § 22-357 does not provide that
governmental immunity is not a defense to a dog bite
action. The defendant also argues that the loss of con-
sortium counts, as derivative claims, are barred by the
workers’ compensation scheme.
In response, the plaintiffs assert that they state legally
sufficient causes of action for negligence (Count One)
and under § 22-357 (Count Two) because their allega-
tions fall within the motor vehicle exception to the
exclusivity provision of the Workers’ Compensation
Act, and the defendant does not enjoy governmental
immunity because his negligence occurred in the perfor-
mance of a ministerial act. In the alternative, they argue
that, even if the negligence had been in the performance
of a discretionary act, the defendant is liable because
the negligence subjected Rodriguez, an identifiable per-
son, to a risk of imminent harm. They also assert that,
since their allegations in Counts One and Two are
legally sufficient, their loss of consortium claims are
similarly not barred.
‘‘Connecticut’s Workers’ Compensation Act . . . is
the exclusive remedy for injuries sustained by an
employee arising out of and in the course of his employ-
ment. . . . General Statutes § 31-284 (a). Under the
act’s strict liability provisions, workers are compen-
sated without regard to fault. In return for a relatively
low burden of proof and expeditious recovery, employ-
ees relinquish their right to any common-law tort claim
for their injuries. . . . Generally, then, all rights and
claims between employers and employees, or their rep-
resentatives or dependents, arising out of personal
injury or death sustained in the course of employment
are abolished as a result of the act’s exclusivity bar.
‘‘Another provision of [this state’s] act, [namely] . . .
§ 31-293a,2 creates an exception, however, to the other-
wise applicable exclusivity bar. In relevant part, § 31-
293a provides that [i]f an employee . . . has a right to
benefits or compensation . . . on account of injury or
death from injury caused by the negligence or wrong
of a fellow employee, such right shall be the exclusive
remedy of such injured employee or dependent and no
action may be brought against such fellow employee
unless such wrong was wilful or malicious or the action
is based on the fellow employee’s negligence in the
operation of a motor vehicle. . . . [I]f an employee
suffers injuries, which otherwise would be compensa-
ble under the act, due to the negligence of a fellow
employee, the injured employee is barred from recovery
against that fellow employee unless the injuries were
caused by the fellow employee’s negligent operation of
a motor vehicle.’’ (Citation omitted; emphasis added;
footnote added; internal quotation marks omitted.) Jai-
guay v. Vasquez, 287 Conn. 323, 328–29, 948 A.2d 955
(2008).
‘‘[T]he legislature has expressed its preference for a
bright line test to determine whether an employee may
recover from a fellow employee for injuries sustained
as a result of the latter’s negligence in the operation of
a motor vehicle. Under that test, an injured employee
may recover against a fellow employee as long as that
fellow employee is operating a ‘motor vehicle,’ as that
term is defined in [General Statutes] § 14-1 [53]3 and
limited under § 31-293a.’’ (Emphasis added; footnote
added.) Colangelo v. Heckelman, 279 Conn. 177, 192,
900 A.2d 1266 (2006); Cirillo v. Sardo, 41 Conn. App.
664, 669, 676 A.2d 1388 (‘‘‘[o]peration’ of a motor vehicle
connotes the control and direction of it, the activity of
an ‘operator’ or ‘driver’ licensed for that purpose’’), cert.
denied, 239 Conn. 904, 682 A.2d 998 (1996).
‘‘[R]eview of the defendant’s claim hinges on two
specific questions: (1) was the accident caused by a
motor vehicle and, if so, (2) did the defendant operate
that motor vehicle?’’ Arias v. Geisinger, 126 Conn. App.
860, 866, 15 A.3d 641, cert. denied, 300 Conn. 941, 17
A.3d 476 (2011). ‘‘The issue of whether the defendant
was engaged in the operation of a motor vehicle at the
time of the incident is an issue of law.’’ ld., 870–71.
‘‘[Our Supreme Court has] long held that . . . excep-
tions to statutes are to be strictly construed with doubts
resolved in favor of the general rule rather than the
exception . . . .’’ (Internal quotation marks omitted.)
Suprenant v. Burlingham, 64 Conn. App. 409, 414, 780
A.2d 219 (2001) (concluding that motor vehicle excep-
tion in § 31-293 was not applicable).
For example, Kegel v. McNeely, 2 Conn. App. 174,
476 A.2d 641 (1984), involved the electrocution of the
decedent coemployee of the defendant when contact
occurred between high tension wires and a crane. ‘‘At
the time of the death of the plaintiff’s decedent, he and
the defendant were coemployees involved in moving
and stacking floating docks for their employer. The
defendant’s job was to operate a truck cab, to the rear
of which was a crane on a turntable mounted on the
truck bed. The crane was controlled by another
employee who, at the time of the accident, was seated
in the crane. The decedent was working on the ground,
loading and unloading the floating docks onto and off
of a sling suspended from the boom of the crane. The
entire procedure was supervised by a fourth employee
who served as a ground guide. The crane and the truck
each had an engine and a set of controls which operated
independently of one another. The defendant controlled
the locomotion of the truck from the truck cab and the
action of the crane and boom was controlled from the
crane cab. The accident occurred when the boom of the
crane or the crane cable came in contact with overhead
high-tension wires. This contact caused the instanta-
neous electrocution of the decedent who, at the time,
was holding a part of the metal sling which was attached
to the crane cable. The evidence adduced at trial estab-
lished that immediately prior to the accident, the
employee acting as the ground guide directed the defen-
dant to back the truck into position to lower a floating
dock. The defendant stopped the truck at the spot indi-
cated, turned off the ignition and remained seated in
the cab with his foot on the brake. The truck was sta-
tionary at the time of the accident.’’ ld., 176–77.
The Appellate Court concluded, ‘‘lf a coemployee is
not engaged at the time of the fellow employee’s injury
in any activity related to driving or moving a vehicle
or related to a circumstance resulting from the move-
ment of a vehicle, the lawsuit does not fall within the
exception of . . . § 31-293a. . . . At the time of the
decedent’s injury, the truck, with its ignition having
been turned off, could not function to move the truck
itself nor did it function or move so as to change the
position of the crane or its boom. On the basis of the
evidence of this case, the jury could not have found
that the accident was caused by the negligence of the
defendant in the operation of a motor vehicle. . . . [A]s
a matter of law, the plaintiff’s action was barred . . . .’’
(Citations omitted.) Id., 178.
The plaintiffs argue that operation of a motor vehicle
has been held to include the parking of a motor vehicle.
In Allison v. Manetta, 84 Conn. App. 535, 537, 854 A.2d
84, cert. denied, 271 Conn. 931, 859 A.2d 582 (2004),
cited by the plaintiffs, ‘‘the plaintiff alleged that [defen-
dant James M.] Zucco was . . . operating a dump truck
(truck) owned by the state. She alleged that on the date
in question, Zucco negligently had stopped the truck
beneath a ridge on Route 44 in such a manner that the
truck partially obstructed the westbound lane. Zucco
allegedly failed to use any means of warning to alert
drivers that the truck was parked in a manner that
obstructed the westbound lane of Route 44. The plaintiff
alleged that, pursuant [General Statutes] § 52-556,4 the
state was liable for Zucco’s negligence.’’ Thus, the acci-
dent allegedly resulted from Zucco’s positioning of the
truck when he parked it.
The Appellate Court stated that ‘‘operation of a motor
vehicle occurs when there is a setting in motion of the
operative machinery of the vehicle, or there is move-
ment of the vehicle, or there is a circumstance resulting
from that movement or an activity incident to the
movement of the vehicle from one place to another.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 540–41. ‘‘The truck that Zucco was operating
on the date of the accident was the means of locomotion
he used to follow a designated route of state highway
to correct maintenance problems he discovered. When
he came upon . . . water running onto the roadway in
Salisbury, he parked the truck with its motor running
adjacent to [a] driveway so that he could exit the truck
to perform the required maintenance. On this set of
facts, we concluded, as a matter of law, that Zucco was
operating the truck within the meaning of § 52-556. He
had parked the truck as an activity incident to moving
it from one place to another along his designated main-
tenance route to fulfill his responsibilities for the
[D]epartment [of Transportation]. There was, conse-
quently, a temporal congruence between the operation
of the truck and the plaintiff’s injury.’’ Id., 541–42.
Here, in contrast, the dog bite, which allegedly
occurred after the dog left the parked police cruiser
and bit Rodriguez, not the positioning of the parked
vehicle so as to partially obstruct a travel lane, was
the alleged cause of injury. See complaint, all counts,
paragraph 5. In Allison v. Manetta, supra, 84 Conn. App.
536–37, the positioning of the truck allegedly caused
another driver to collide with the plaintiff’s vehicle. The
plaintiff’s allegations here, including that the dog was
not controlled within the cruiser and that the window of
the cruiser was left open, do not establish the necessary
temporal congruence between operation of the vehicle
and the claimed injuries. Negligence in failing to secure
the dog was not an activity incident to the movement
of the cruiser from one place to another.
Similarly, in Hicks v. State, 287 Conn. 421, 433, 948
A.2d 982 (2008), also cited by the plaintiffs, another
action concerning a state vehicle, the Supreme Court
reiterated its approval, in Allison v. Manetta, 284 Conn.
389, 397, 933 A.2d 1197 (2007), of the Appellate Court’s
previous construction, of the meaning of ‘‘operation of
a motor vehicle’’ in the context of § 52-556, ‘‘even though
the truck was parked and [the operator] was outside
of it at the time of the accident.’’ (Internal quotation
marks omitted.) Hicks v. State, supra, 433, noting that
‘‘the term operation encompasses both parking incident
to travel and movement.’’ (Internal quotation marks
omitted.) Id., 434.
As explained in Allison v. Manetta, supra, 284 Conn.
399, ‘‘if [Zucco] had parked the state truck as an activity
incident to moving it from one place to another along
his designated maintenance route to fulfill his responsi-
bilities, he was operating the truck as that word is used
in § 52-556, even though the truck was parked and he
was outside of it at the time of the accident.’’ In contrast,
if ‘‘the truck was being used as a warning device or as
a protective barrier . . . the jury . . . must find for
the defendant because the truck was not being ‘oper-
ated’ under § 52-556.’’ ld., 400 (discussing Rivera v. Fox,
20 Conn. App. 619, 624, 569 A.2d 1137, cert. denied, 215
Conn. 808, 576 A.2d 538 [1990]).
However, the plaintiffs mistakenly argue that, in
affirming a judgment for the plaintiff in Hicks, the
Supreme Court ‘‘conclud[ed] that the state’s employee
was engaged in the operation of the motor vehicle,
despite that the parked truck itself was not involved
with the collision.’’ See plaintiffs’ objection (#106) p. 8.
Rather, as explained below, evidence showed that the
state or department truck was both moving and
involved with the accident, and the jury found in favor
of the plaintiff based on ‘‘negligent operation by way
of moving the truck . . . .’’ Hicks v. State, supra, 287
Conn. 436. In discussing the evidence supporting the
verdict, the court cited testimony by an independent
eyewitness, who stated that, at the time of the accident,
she was driving behind the defendant’s moving, not
parked, truck. See id., 427.
The eyewitness, Linda Guard, ‘‘repeatedly stated that
she was certain that the department truck was in the
westbound travel lane, in front of the plaintiff’s truck,
when the accident occurred and that she had seen the
department truck moving slowly in that lane within the
five or ten seconds that it took her to pull her car off
the road to assist the plaintiff, as the plaintiff’s truck
was sliding to a stop. Guard further stated that the
department truck was close enough in front of the plain-
tiff’s truck that she thought his truck would strike it,
and that the plaintiff did not do so only because the
department truck kept moving. On the basis of Guard’s
testimony, the jury reasonably could have inferred that,
if the department truck was moving seconds after the
accident, it was moving seconds earlier as the accident
was occurring.’’ Id., 436. Thus, the jury reasonably could
have inferred that the department truck was moving,
not parked, when she saw it ‘‘in the westbound lane
when the plaintiff’s truck flipped on its side after strik-
ing the guardrail.’’ Id., 437.
Another appellate decision cited by the plaintiffs,
Kiriaka v. Alterwitz, 7 Conn. App. 575, 509 A.2d 560,
cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), pro-
vides a useful illustration. In contrast to the other cases
cited by the plaintiffs and discussed above, Kiriaka
involved analysis of the applicability of § 31-293a, not
§ 52-556. The court explained that ‘‘[i]n order to find
. . . negligent operation allowing supplementary tort
recovery against the employee operator within the
exclusion of § 31-293a, the fellow employee’s injury
must have been caused by the negligent movement or
circumstance resulting from the movement of the
employer’s truck.’’ ld., 579.
There, ‘‘[i]n the course of their employment . . . [the
defendant Peter] Lipscomb was operating their employ-
er’s furniture van in a northerly direction on Route 137
in Stamford, with [the plaintiff, Boleslaw] Kiriaka as a
passenger, when he stopped on the highway and parked
the vehicle at the easterly curb of the road with its
lights and flashers on. After Lipscomb parked the truck,
he remained in the cab and reviewed work papers. In
the meantime, Kiriaka alighted and proceeded to cross
the highway from east to west when he was struck by
a motor vehicle . . . .’’ Id., 576–77.
Thus, neither the allegations nor the undisputed facts
‘‘establish[ed] that [Kiriaka’s] injury was caused by Lips-
comb’s movement of the van or by a circumstance fol-
lowing from its movement. The accident causing
Kiriaka’s injury was removed from Lipscomb’s prior
movement or operation of the vehicle. Lipscomb parked
the truck by the side of the road. Kiriaka alighted from
it. Kiriaka then proceeded, on his own, unrelated to the
operation of the truck, to cross the highway where he
was struck by a passing vehicle. Kiriaka’s actions which
resulted in his injuries were removed in fact and law
from the operation of the company van. ‘Operation’ of
a motor vehicle connotes the control and direction of
it, the activity of an ‘operator’ or ‘driver’ licensed for that
purpose. The exception to § 31-293a relates to injury
causally connected to the control and direction of the
employer’s vehicle. In the undisputed facts before the
trial court, the accidental injuries to Kiriaka were
unconnected and unrelated to Lipscomb’s control,
direction and movement of [the employer’s] van. His
injuries admittedly arose out of and in the course of
his employment in the circumstances of the case, but
they cannot be extended to reach the exception to § 31-
293a. His workers’ compensation benefits are the exclu-
sive remedy available to him under that provision of
the act.’’ Id., 579–80.
Here, the accident causing Rodriguez’ injuries was
removed from the defendant’s prior operation of the
vehicle. It is alleged that the defendant parked the
cruiser and exited from it and that, subsequently, the
K-9 dog alighted from it through an open window and
proceeded to attack Rodriguez. Rodriguez’ injuries
were not causally connected to the control, direction,
and movement of the police cruiser. See Colangelo v.
Heckelman, supra, 279 Conn. 186 (court has construed
‘‘the term operation of a motor vehicle in § 31-293a as
not including activities unrelated to the movement of
[a] vehicle’’ [internal quotation marks omitted]).
‘‘[A]pplying the rule of statutory construction that
[the court] strictly construe[s] exceptions, as articu-
lated previously, [the court] cannot say that the plain-
tiff[s] ha[ve] shown that [their] case clearly fits within
the motor vehicle exception.’’ Suprenant v. Burl-
ingham, supra, 64 Conn. App. 415. As a matter of law,
the plaintiffs’ negligence allegations are insufficient to
come within the exceptions in § 31-293a to workers’
compensation exclusivity.
Since a dog bite action pursuant to § 22-357 is not
one of the exceptions enumerated under § 31-293a,
Count Two is also barred. See Roy v. Bachmann, 121
Conn. App. 220, 224–25, 994 A.2d 676 (2010).
As discussed above, Rodriguez’ claims against his
fellow employee are precluded by workers’ compensa-
tion exclusivity. Accordingly, the derivative loss of con-
sortium claims are also barred. See Colangelo v.
Heckelman, supra, 279 Conn. 183–84; Lynn v. Haybus-
ter Mfg., Inc., 226 Conn. 282, 298–99, 627 A.2d 1288
(1993).
In view of the court’s determination that the plaintiffs’
claims are barred by workers’ compensation exclusiv-
ity, the court need not address the parties’ arguments
concerning governmental immunity.
CONCLUSION
For the reasons stated above, the defendant’s motion
to strike is granted. It is so ordered.
* Affirmed. Rodriguez v. Clark, 162 Conn. App. 785, A.3d (2016).
1
For ease of reference, the court refers to plaintiff Alex Rodriguez as
Rodriguez.
2
General Statutes § 31-293a provides, in relevant part, ‘‘If an employee
. . . has a right to benefits or compensation under this chapter on account
of injury or death from injury caused by the negligence or wrong of a fellow
employee, such right shall be the exclusive remedy of such injured employee
or dependent and no action may be brought against such fellow employee
unless such wrong was wilful or malicious or the action is based on the
fellow employee’s negligence in the operation of a motor vehicle as defined
in section 14-1. For purposes of this section, contractors’ mobile equipment
such as bulldozers, powershovels, rollers, graders or scrapers, farm machin-
ery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or
other similar equipment designed for use principally off public roads are
not ‘motor vehicles’ if the claimed injury involving such equipment occurred
at the worksite on or after October 1, 1983. . . .’’
3
General Statutes § 14-1 (53) provides, in relevant part: ‘‘ ‘Motor vehicle’
means any vehicle propelled or drawn by any nonmuscular power . . . .’’
4
General Statutes § 52-556, which concerns injuries caused by motor
vehicles owned by the state, provides: ‘‘Any person injured in person or
property through the negligence of any state official or employee when
operating a motor vehicle owned and insured by the state against personal
injuries or property damage shall have a right of action against the state to
recover damages for such injury.’’