Steven D. Ecker, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Steven D. Ecker, J.

Plaintiff Jacqueline Finn was injured when she fell on a sidewalk outside of the Hamden High School (" high school") gymnasium on the evening of January 25, 2014. Finn was on the premises to attend a basketball game. The precise mechanics of her fall are not clear, but a reasonable construction of the evidence suggests that she was walking on the sidewalk near the gymnasium entryway when she slipped on the snowy surface of the sidewalk as she was attempting to readjust her balance after her right foot struck (or became stuck in) the remnants of a metal footing (" metal box") that once held a light-post. Finn's age is not evident from the record before the court, but she is an adult, not a high school student. It appears that she was accompanied by a daughter or granddaughter named Maddie and perhaps another relative known as " TJ." The three were intending to attend the game as spectators.

The defendants include the Town of Hamden (" Town"), the Hamden Board of Education (" Board"), and those officials and employees responsible for keeping the sidewalk area in a safe condition during events such as the basketball game. The claims of negligence, set forth in two counts (one against the Town defendants and the other against the Board defendants), focus on the various defendants' alleged failure, in one way or another, to remove snow from the sidewalk and to remedy the dangerous condition caused by the raised metal box on the sidewalk.

Defendants have denied the allegations of negligence. Before the court now is their motion for summary judgment, which rests on two separate and distinct grounds. First, they claim that plaintiff's claims are " barred" under the " storm-in-progress" doctrine. See Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1998) (recognizing doctrine under Connecticut common law). Their second argument is based on the " discretionary duty" exception to municipal liability. See Conn. Gen. Stat. 52-557n(a)(2)(B) (providing that municipalities are not liable for " negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law"). The court has carefully reviewed the briefs, reply briefs, and supplemental briefs filed by the parties, the attachments and exhibits to those submissions, as well as all relevant pleadings and other materials that comprise the record in this case. The court has also read the statutes and cases that define and elaborate the substantive law relevant to the " storm-in-progress" doctrine and the issue of governmental immunity presented. The facts and substantive law have been considered in light of the well established standards applicable to a motion for summary judgment. For the reasons that follow, the court has concluded that summary judgment is not appropriate on this record.

Ongoing Storm Doctrine.

The ongoing storm doctrine was formulated by the Supreme Court in these simple terms:

We believe that in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical.

On the present record, there are factual issues for the jury to decide with respect to the ongoing storm defense. Whether there even was a " storm" at the relevant time appears to be in dispute. In addition, plaintiff appears to claim in her deposition that the snow had accumulated from previous storms, not the alleged " ongoing" storm. These (and perhaps other) factual issues cannot be decided by the court on summary judgment.

Parenthetically, it is not obvious to the court that the ongoing storm doctrine applies at all under the circumstances of this case. The doctrine was developed to establish a sensible standard of care for private landowners who may be visited by " invitees" during or just after a storm event, at a time when the landowner cannot reasonably be expected to have yet ventured outside to remove or otherwise mitigate the dangers caused by the accumulated precipitation. See Kraus, supra, 211 Conn. at 192 (plaintiff, an employee of a local utility, was injured when he slipped on defendant's property while stopping to read the meter). It has been found to apply to commercial landowners as well, see Sinert, supra, 38 Conn.App. at 850, and may also apply to public landowners. But, by its own terms, the doctrine does not apply in all circumstances, because it contains an exception for " unusual circumstances." Kraus, supra, 211 Conn. at 197 (quoted above). In the present case, the high school apparently made a choice to invite the public to attend an indoor sporting event, and decided that " the game must go on" even after learning that it would " go on" during a snowstorm (or what defendants say was a snowstorm. It is clear that the event was not cancelled, nor was it closed to members of the public due to safety concerns. It is not clear whether the ongoing storm doctrine permits a landowner to invite the public to attend a special event, but, at the same time, imposes no obligation to exercise reasonable care to provide safe means of ingress and egress. If it is not safe enough to go outside to shovel, it seems fair to question why it nevertheless is safe enough to invite the public to attend the event-without at least warning the attendees that they should not expect the usual rules of due care to apply during the storm.

Governmental Immunity

Defendants' governmental immunity defense presents a closer call at the summary judgment stage. The historical development and purposes of governmental immunity in Connecticut is well-known, as is the doctrinal architecture, and there is no need to recite that background here. Defendants argue that the allegations of negligence relate to " acts or omissions [that] require the exercise of judgment or discretion as an official function of the municipal defendants' authority, " and therefore fall within the protective scope of governmental immunity under General Statutes § 52-557n(a)(2)(B). They also contend that plaintiff cannot rely upon the " identifiable victim/imminent harm" exception to discretionary act immunity because she was a member of the general public whose presence on the premises was voluntary.

On the latter point, defendants are clearly correct under the controlling case law: plaintiff does not qualify as an " identifiable victim" on this factual record See. e.g, St. Pierre v. Town of Plainfield, 326 Conn. 420, 436, 165 A.3d 148 (2017) (" Generally, we have held that a party is an identifiable person when he or she is compelled to be somewhere"); Durrant v. Board of Education, 284 Conn. 91, 100-10, 931 A.2d 859 (2007) (parent, who slipped on wet staircase as she was entering school to pick up her daughter, was not identifiable victim); Prescott v. Meriden, 273 Conn. 759, 764-66, 873 A.2d 175 (2005) (parent, injured after slipping on wet bleachers while attending son's high school football game, was not identifiable victim). Plaintiff's negligence claims here, in short, cannot overcome the governmental immunity bar unless the acts and omissions at issue were carried out as part of defendants' ministerial functions.

The analysis used to distinguish discretionary from ministerial acts or omissions emanates from the underlying purpose of the doctrine itself, which is " to encourage municipal officials to exercise judgment" unhampered by " fear of second-guessing and retaliatory lawsuits, " Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006). The basic framework is well-settled and oft-repeated:

Discretionary act immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts. See 18 E. McQuillin, Municipal Corporations (3d Ed. 2003) § 53.04.10, pp. 179-81 (" [a] municipality is liable for negligence of its employees at the operational level where there is no room for policy judgment).

In most cases, a plaintiff will seek to establish the ministerial nature of the relevant duty by reference to some " [municipal] charter provision, ordinance, regulation, rule, policy, or other directive" prescribing the manner in which the municipal actor must carry out the function at issue. Violano v. Fernandez, 280 Conn. 310, 324, 907 A.2d 1188 (2006); see, e.g., Northrup v. Witkowski, 175 Conn.App. 223, 235, 167 A.3d 443 (2017) (" [O]ur courts consistently have adhered to the principle that to demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion.") (citations omitted). The rule or policy giving rise to the ministerial duty, however, need not be written. See Gauvin v. New Haven, 187 Conn. 180, 186-87, 445 A.2d 1 (1977); Wisniewski v. Town of Darien, 135 Conn.App. 364, 374-75, 42 A.3d 436 (2012).

This analytic framework may appear straightforward, but its application in any particular factual setting causes substantial difficulty. Or at least there is no shortage of appellate-level cases policing the elusive distinction between discretionary and ministerial duties in this context. These cases keep coming at a rapid pace, see, e.g., Strycharz v. Cady, supra, 323 Conn. 548; Northrup v. Witkowski, supra, 175 Conn.App. 223, 232-34 (2017); Costa v. Plainville Board of Education, 175 Conn.App. 402, 407-09 (2017), and there are no signs that the steady flow will abate any time soon; at least four cases involving application of the doctrine (or its " identifiable victim/imminent harm" sub-doctrine) are pending in the Supreme Court at the moment. See Hull v. Town of Newtown, SC No. 19656 (argued 9/12/17); Ventura v. East Haven, 170 Conn.App. 388, 154 A.3d 1020, cert. granted, 325 Conn. 905, 156 A.3d 537 (2017); Brooks v. Powers, 165 Conn.App. 44, 138 A.3d 1012, cert. granted, 322 Conn. 907, 143 A.3d 603 (2016); Willams v. Housing Authority, 159 Conn.App. 679, 124 A.3d 537, cert. granted, 319 Conn. 947, 125 A.3d 528 (2015). The appellate courts in recent years may be reviewing more decisions concerning the discretionary/ministerial distinction and its doctrinal companion, the " identifiable victim/imminent harm" exception, than almost any other substantive issue arising in civil appeals.

One (though not the only) reason for this growing proliferation of case law may be that the Supreme Court has made it clear that the immunity question often can be decided prior to trial, as a matter of law. Although this court has not conducted a comprehensive historical study, it appears that the governmental immunity defense previously was understood in the usual case to present a question of fact for the jury. See Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982) (" Whether the acts complained of in operating a city park were governmental or ministerial is a factual question which depends upon the nature of the act complained of.") (citing cases); Tango v. City of New Haven, 173 Conn. 203, 205-06, 377 A.2d 284 (1977) (in personal injury case arising from sledding accident at public park, holding that demurrer based on governmental immunity should have been overruled because complaint presented factual issue unsuited for judgment as a matter of law); Fraser v. Henninger, 173 Conn. 52, 60-61, 376 A.2d 406 (1977) (" In the absence of a proper basis for determining whether the municipal employee was in the performance of a governmental duty [in connection with the supervision of a basketball program], the complaint is not demurrable on the ground that any violation of the duties involved discretionary or supervisory functions").

More recently, this principle appears to be eroding, and it is safe to say at this point that many (perhaps most) cases in which a defendant invokes governmental immunity are decided " as a-matter of law" by judges ruling on dispositive motions long before trial. The rule-today is expressed as follows:

Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases [in which] it is apparent from the complaint . . . [that the nature of the duty] . . . turns on the character of the act or omission complained of in the complaint . . . Accordingly, [when] it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus necessarily were discretionary in nature, summary judgment is proper.

Turning to the present case, plaintiff's specifications of negligence all relate in some way to the allegedly dangerous condition of the sidewalk (the accumulated snow and the protruding metal box), but can usefully be separated into two distinct categories of acts/omissions. One is supervisory in nature. Plaintiff claims that the Town and Board, and two high-level officials, failed to promulgate rules and regulations necessary for maintaining the High School premises in safe condition, failed to enforce such rules and regulations, and/or failed to supervise the implementation of such rules and regulations. These allegations, which are not (or no longer are) the focal point of the case, plainly implicate discretionary duties only, and do not survive summary judgment. See, e.g., Strycharz v. Cady, supra, 323 Conn. at 567-69 (finding that duty to supervise other school employees is discretionary in nature). On this record, there is no basis for finding that the Town, the Board, Superintendent of Schools Robinowitz, or Principal Highsmith were under any kind of mandatory supervisory obligation to promulgate or enforce rules for clearing snow or removing obstructions from campus sidewalks.

The second category of activity at issue is the operational " on the ground" responsibility of school maintenance workers or custodians to clear snow from the sidewalks and/or remove hazards like the metal box from the sidewalk. It strikes the court as counter-intuitive to consider snow-shoveling or sanding under most circumstances to be a " discretionary" activity. When it snows, common sense and routine experience tell us that every landowner must remove snow and ice from any sidewalk that is likely to be used by a pedestrian. To the best of the court's knowledge, this is the near-universal expectation in Connecticut, at least in urban and suburban communities. The requirement typically is mandated by municipal ordinance. At least as a general matter, it seems fair to posit that no one with responsibility for sidewalk upkeep should need a written rule, or any explicit directive at all, to realize that the sidewalks must be cleared when there is any accumulation of snow, ice, or slush.

This is not to say that some minimal amount of " judgment" or " discretion" is involved in shoveling sidewalks, as it is in virtually every human activity engaged in during waking hours. At a trivial level, the responsible party may be faced with a choice of what type of shovel or chemical treatment to use, and other such logistical details. There also may be situations where the snow may not accumulate at all, or the precipitation results in such a light frosting that removal is entirely unnecessary. Likewise, depending on the circumstances, the municipal defendant may need to exercise limited discretion as to questions of timing. See n.7. The bottom line is that the specific allegations of negligence in any particular case-including the present case-will determine the precise act or omission at issue, and, in turn, will establish the existence (or not) of any meaningful role for the exercise of discretion on the part of the municipal defendant(s).

A related point is pertinent. As noted above at p. 6, the fundamental policy that the Supreme Court consistently has identified as underlying the discretionary duty doctrine, and defining its contours, is the need to " encourage municipal officials to exercise judgment" unhampered by " fear of second-guessing and retaliatory lawsuits." Doe v. Petersen, supra, 279 Conn. at 615. This goal is very important in some contexts, such as those involving split-second decision-making by law enforcement and emergency personnel, or situations involving true policymaking. But the policy is of doubtful application in the context of a school custodian whose job requires him or her to shovel or sand the sidewalks. A conscientious school custodian no doubt will occasionally confront situations at work requiring the exercise of discretion, but it seems unlikely that these include deciding whether to shovel (or sand) snow-covered sidewalks immediately outside the gymnasium before or during a basketball game. It seems equally unlikely that fear of judicial " second-guessing" or " retaliatory lawsuits" would adversely affect or inhibit the custodian's ability to make the right choice between action and inaction in this context. Indeed, it is perhaps worth asking whether it demeans the truly important values underlying the doctrine of discretionary act immunity--the need to insulate certain realms of official decision-making from the threat of legal liability--to hold " as a matter of law" that a school custodian is called upon to exercise " judgment" or " discretion" when snowy weather requires him to shovel or sand the sidewalk.

These observations find support in the Appellate Court's decision in Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992). Kolaniak was injured when she slipped and fell on a snow-covered sidewalk located on the campus of Central High School in Bridgeport. A jury found that defendants negligently failed to remove the snow or sand/salt the sidewalk, and awarded damages. The governmental immunity question was never put to the jury, because, after hearing the evidence, the trial court charged the jury that the duty to clear the sidewalks was ministerial as a matter of law. Id. at 195 & n.3. On appeal, the defendants argued that this charge was erroneous " because the defense of governmental immunity is a question of fact" and should have been left for the jury's determination. Id. at 195.

The Appellate Court affirmed the judgment. The following passage warrants full quotation:

The defendant asserts that because [the custodians] had the responsibility of deciding whether there was sufficient accumulation to begin clearing the walkways, they were performing a discretionary function, and that, therefore, the jury should have decided whether the doctrine of governmental immunity applied. A determination as to when to clear a sidewalk, however, is not a discretionary function. Every voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor. In the present case, the board of education's bulletin to all custodians and maintenance personnel was clear--they were to keep the walkways clear of snow and ice. We will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity. We conclude that it was proper for the trial court to have decided that Domeracki and Plude were involved in a ministerial function as a matter of law.

It is possible to derive a broad holding from Kolaniak . After all, without any evident need first to consider the particular facts of the case or the existence of any applicable policy or directive, the Court states this general proposition: " A determination as to when to clear a sidewalk, however, is not a discretionary function." Id. This statement expresses the common-sense view that a sidewalk must be cleared if there is any accumulation of snow, and, had the Court stopped there, its conclusory holding would probably have remained undisturbed and uncontroversial. But Kolaniak does not stop there. Instead, it supports the Court's general proposition, quoted immediately above, by reference to the particular facts of the case. The evidence at trial established that the board of education had issued a bulletin to all custodians indicating that the sidewalks were to be kept clear of snow and ice. Id.; see also id. at 279 (same). A narrower reading of Kolaniak, therefore, would hold that snow removal from sidewalks is a ministerial function if it is required by some authoritative directive.

Defendants not surprisingly argue for the narrow reading of Kolaniak, and, in supplemental briefing requested by the court, they claim to find support for their position in Beach v. Regional School District, 42 Conn.App. 542, 682 A.2d 118 (1996). Beach, like Kolaniak, involved a claim of negligence arising from injuries caused by a slip-and-fall on a school sidewalk. Plaintiff was a high school cafeteria worker who slipped on an icy walkway leading from the parking lot to the school. Defendants included the board of education, the supervisor of buildings and grounds at the high school (a man named Baker), and the head custodian. As in Kolaniak, the case was tried to a jury--but in Beach the immunity issue was given to the jury, and was decided by the jury in favor of defendant Baker. The trial court denied plaintiff's motion to set aside the verdict, and plaintiff appealed from the judgment in favor of Baker, the supervisor of buildings and grounds. Id. at 544 & n.2. The issue on appeal was whether there was sufficient evidence to support the jury's finding that the defendant was " not liable due to governmental immunity." Id. at 544. The Appellate Court agreed with the trial court's conclusion that there was evidence in the trial record to support the jury's verdict, and affirmed the judgment. Id. at 555.

While it is true that the defendant in Beach prevailed on governmental immunity grounds, the explicit rationale for the decision in Beach undercuts defendants' argument in the present case, at the summary judgment stage, because Beach holds that the discretionary/ministerial determination was for the jury to decide. Thus: " The determination of whether official acts or omissions are ministerial or discretionary is a question of fact for the fact finder." Id. at 553 (citation omitted). To be sure, this rule is by no means absolute, as Kolaniak and many other cases demonstrate, see above at p. 9 (citing cases), but Beach itself actually reinforces the idea that the question ordinarily is for the jury.

In the end, once again, each case must be decided on its own facts and circumstances. The facts as developed to date in the pending case, viewed through the summary judgment lens, present a factual issue for the jury regarding the discretionary/ministerial duty question. Plaintiff has produced evidence that would permit a jury to conclude that the school custodian at the time of the incident, Michael Fowler, was required to inspect the sidewalks for snow and ice when an " event" was being held at the school, and keep the sidewalks " clean" and clear of snow at the time of a scheduled event such as a basketball game. The evidence, while thin at this stage, is sufficient to establish a basis for concluding that Fowler was required by his job duties to make the sidewalks safe for pedestrians attending the basketball game that evening, by salting or otherwise remedying the slippery conditions created by the inclement weather. This evidence includes the " performance responsibilities" for " Custodian Class 10" employees as elaborated by Fowler in his deposition. See Fowler Deposition at 29 (acknowledging that, during " bad weather, " he is " responsible for the sidewalk because that's part of [his] job description); id. at 50 (the sidewalk is a safety priority during winter when the school is open); id. at 52 (during school events, he will inspect the sidewalks for snow/ice during inclement weather because it is mandatory for Class 10 custodians to do so). The jury will not be allowed to speculate regarding the custodian's job responsibilities, but it also will not be prohibited from employing common sense and inferential reasoning to determine whether the snow-removal duties at issue were discretionary or ministerial in nature under all of the circumstances.

The ultimate resolution of immunity issues in cases like this one often depends on the fact-finder's view of a person's conduct based on a series of factual inquiries regarding the specific circumstances surrounding the official act or omission at issue. Sometimes the nature of the duty at stake is crystal clear at the summary judgment stage, and a defendant will prevail if there is no disputed issue of material fact to defeat a motion for summary judgment. But a court considering summary judgment should exercise caution to ensure that the evidence is viewed in the proper light. Many routine ministerial job duties are never reduced to writing-perhaps the requirement is obvious, or perhaps the duties are too numerous, or perhaps the supervisory structure is unwilling or unable to create a written set of policies. In those cases, the discretionary/ministerial determination may depend on a combination of factual considerations that can be properly decided at trial. See, e.g., Wisniewski v. Darien, supra, 135 Conn.App. 364, 373-75 (2012) (although duties of town tree warden are largely discretionary in nature, trial testimony established existence of unwritten policy establishing mandatory duty to inspect trees under certain circumstances). In the court's opinion, this is such a case.

The motion for summary judgment is granted with respect to plaintiff's claims of supervisory negligence, and denied in all other respects.

It is so ordered.