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ALEX RODRIGUEZ ET AL. v. DOUGLAS CLARK

(AC 37083)

Alvord, Keller and Schaller, Js.

Argued December 8, 2015—officially released February 2, 2016

(Appeal from Superior Court, judicial district of

Waterbury, Shapiro, J.)

John Del Buono, with whom was Donald McPartland,

for the appellants (plaintiffs).

Michael F. O’Connor, for the appellee (defendant).
Opinion

PER CURIAM. The plaintiffs, Alex Rodriguez and his

wife, Rachel Rodriguez, appeal from the judgment of the

trial court rendered in favor of the defendant, Douglas

Clark, after the court struck the plaintiffs’ complaint in

its entirety. The plaintiffs claim that the court improperly concluded that their causes of action were barred

by the exclusivity provision of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. We

affirm the judgment of the trial court.

The relevant procedural facts may be summarized as

follows. In July, 2013, the plaintiffs commenced this

action against the defendant by means of a four count

complaint. The plaintiffs alleged that, on July 13, 2011,

the plaintiff1 and the defendant were Middletown police

officers who at all times relevant were engaged in their

official police duties in Middletown. The plaintiff was

in the process of subduing and arresting individuals

who were involved in an altercation, at which time

the defendant arrived upon the scene to aid his fellow

officers. The defendant drove to the scene in a marked

police cruiser accompanied by Niko, a trained police K9 dog that was kept and/or owned by him. The defendant

parked his cruiser at the scene, leaving the key in the

ignition with the motor running. After the defendant

had exited the cruiser and was providing assistance to

his fellow officers at the scene, Niko exited the back

of the cruiser by means of an open window, attacked

and ‘‘nipped’’ a third police officer, and ‘‘attacked and

bit’’ the plaintiff. The plaintiff alleged that he incurred

a variety of physical injuries that, among other things,

have detrimentally affected his mobility and his quality

of life, and have caused him to retire from a career as

a police officer.

In count one, the plaintiff alleged that the defendant

was negligent in several ways for failing to restrain and

control Niko at the scene of the altercation. The plaintiff

alleged that the defendant’s conduct constituted negligent operation of a motor vehicle under General Statutes § 31-293a.2

In count two, the plaintiff alleged that

the defendant was liable for his damages under the dog

bite statute, General Statutes § 22-357. In counts three

and four of the complaint, Rachel Rodriguez brought

corresponding derivative claims for loss of consortium.

On October 9, 2013, the defendant filed a motion to

strike all four grounds of the complaint on the ground

that all four counts were barred by the exclusivity provision of the act.3 The plaintiffs objected to the motion.

Subsequently, the court held a hearing on the motion

to strike. On June 10, 2014, the court issued a memorandum of decision in which it concluded that the plaintiffs’

claims were barred by the exclusivity provisions of the

act.4 On July 7, 2014, the court rendered judgment in

favor of the defendant on the stricken complaint. This
appeal followed.

We carefully have considered the record, the briefs

submitted by the parties, as well as the arguments of

the parties advanced at the time of oral argument before

this court. We have reviewed the court’s memorandum

of decision in accordance with the plenary standard of

review that applies to the legal determinations of the

trial court in granting a motion to strike one or more

counts of a complaint. See, e.g., Kortner v. Martise,

312 Conn. 1, 48–49, 91 A.3d 412 (2014). Our examination

ofthe record and the arguments ofthe parties persuades

us that the judgment of the trial court should be

affirmed. Because the trial court’s memorandum of

decision fully addresses the arguments raised in the

present appeal, we adopt its concise and well reasoned

decision as a proper statement of the relevant facts and

the applicable law concerning the issues raised by the

plaintiffs. See Rodriguez v. Clark, 162 Conn. App. 785,

A.3d (2014)(appendix). It would serve no useful

purpose for us to repeat the discussion contained

therein. See, e.g., Chiulli v. Chiulli, 161 Conn. App.

638, 639, A.3d (2015); Pellecchia v. Killingly,

147 Conn. App. 299, 301–302, 80 A.3d 931 (2013).

The judgment is affirmed.

1

In this opinion we shall refer to the named plaintiff, Alex Rodriguez, as

the plaintiff.

2 General Statutes § 31-293a, the exclusivity provision of the act, provides

in relevant part: ‘‘If an employee or, in case of his death, his dependent 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 . . . .’’

3

In the alternative, the defendant argued that count two was barred by

the doctrine of governmental immunity. The court did not reach the merits

of this argument in striking the complaint. Although, in this appeal, the

defendant relies on the doctrine of governmental immunity as an alternate

ground for affirmance, in light of our resolution of the appeal we need not

address that claim.

4 We observe that, before this court, the plaintiffs, in an attempt to circumvent the exclusivity of the act, suggest that the defendant and the dog, Niko,

had engaged in wilful and malicious conduct during the incident at issue.

See General Statutes § 31-293a. In their complaint, however, the plaintiffs

alleged that the defendant had engaged in the negligent operation of a motor

vehicle and that the defendant was liable for the plaintiffs’ damages under

the dog bite statute. ‘‘It is fundamental in our law that the right of a plaintiff

to recover is limited to the allegations of his complaint.’’ (Internal quotation

marks omitted.) Provenzano v. Provenzano, 88 Conn. App. 217, 225, 870

A.2d 1085 (2005). Moreover, in argument before the trial court, the plaintiffs

did not argue that the exclusivity of the act did not apply because of wilful

and malicious conduct. The court, therefore, did not address such an argument. In light of the fact that the plaintiffs did not raise such an argument

at trial and the court did not address it, we consider any argument advanced

by the plaintiffs with respect to wilful and malicious conduct to be

abandoned.