Opinion
No. FST CV 05-4002886 S
January 17, 2007
MEMORANDUM OF DECISION
Presently before the court is a motion for summary judgment dated March 6, 2006 filed by the defendant. In that motion the defendant requests the court to enter summary judgment in its favor on all three counts of the plaintiff's complaint.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of its material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45) . . ." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).
FACTS
On January 5, 2005, the plaintiff, Robert E. Martin, Jr., filed a three-count complaint against the defendant, town of Westport arising out of the defendant's alleged termination of the plaintiff's employment after the plaintiff sustained a work-related back injury and filed for workers' compensation benefits.
The plaintiff alleges the following facts in his complaint. The plaintiff began working for the defendant in 1984 as a mechanic in the equipment maintenance division of the department of public works. He was a master mechanic for the last fourteen years of his employment. On March 18, 2002, the plaintiff sustained a work-related injury to his back. On April 8, 2003, he reached maximum medical improvement with five percent partial disability to his back. From 2003 to August 2004, he was placed on light duty based on the recommendations of his treating physicians, Drs. Polifroni and Lamarca. On August 10, 2004, the Westport public works pension board approved the plaintiff's disability retirement. After the meeting, the plaintiff was informed that the board decided to pension him off. The defendant terminated the plaintiff from his employment based on his work-related injury effective September 1, 2004.
Based on these facts, the plaintiff alleges three causes of action. First, he alleges that the defendant discriminated against him in violation of General Statutes § 31-290a because of his work-related injury. Second, the plaintiff alleges that the defendant discriminated against him in violation of § 31-290a because he filed for workers' compensation benefits. Third, he alleges claims of intentional and negligent infliction of emotional distress.
In paragraph 18 of his complaint the plaintiff erroneously alleged the statute to be General Statutes § 31-298a. In his opposition to the motion for summary judgment the plaintiff correctly stated that the controlling statute was General Statutes § 31-290a(a). For purposes of ruling on the defendant's motion the court will assume that the complaint alleged the correct statute.
On March 8, 2006, the defendant filed a motion for summary judgment accompanied by a memorandum of law in support. In support of the motion, the defendant submitted the following authenticated evidence: (1) a signed and sworn affidavit of Stephen J. Edwards, director of the Defendant's Department of Public Works; (2) a signed and sworn affidavit of Scott Sullivan, the plaintiff's supervisor; and (3) a copy of § C4-5 of the Westport code. The defendant also submitted the following unauthenticated evidence: (1) a copy of a medical report from Dr. Polifroni dated May 20, 2004; (2) a copy of a letter from Edwards to Diane G. Farrell, First Selectwoman of the Defendant, dated May 26, 2004, endorsed with her approval; (3) a copy of a letter from Edwards to the plaintiff dated June 15, 2004 accompanied by reports of medical examinations performed by Doctors Ken Kramer, Eric Garver, and Gary Solomon; (4) a copy of the letter to file from Edwards dated August 9, 2004; (5) a copy of a note from Doctor Stewart Gross dated August 6, 2004; (6) a copy of a draft of the minutes of the August 10, 2004 public works pension board meeting accompanied by legal notice and agenda; (7) a copy of excerpts from the plaintiff's deposition; (8) a copy of a letter from Sullivan to Edwards dated November 3, 2003; and (9) a copy of a letter from Edwards to the plaintiff dated November 6, 2003 accompanied by a list of the plaintiff's medical appointments.
The plaintiff filed a memorandum in opposition on April 26, 2006. Also filed in opposition were two affidavits signed and sworn to by the plaintiff. The plaintiff also submitted the following unauthenticated evidence: (1) a copy of a medical report from Dr. Polifroni dated April 8, 2003; (2) a copy of a letter from Dr. Polifroni dated August 9, 2004; (3) a copy of a letter to file from Edwards dated August 9, 2004; (4) a copy of a draft of the minutes of the August 10, 2004 public works pension board meeting; (5) a copy of medical evaluations of the plaintiff from Drs. Kramer, Garver, and Solomon. The defendant filed a reply memorandum on May 24, 2006. This matter was initially heard on short calendar on July 24, 2006 before Lewis, JTR. After an illness prevented Judge Lewis from rendering a decision, the matter was heard before the undersigned on November 27, 2006. By that time the court also had the benefit of supplemental memoranda submitted by the parties on the date of hearing.
USE OF UNAUTHENTICATED EVIDENCE
The court must first consider whether the court can consider the unauthenticated evidence submitted by the defendant. Practice Book § 17-45 provides in relevant part that "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ." In construing that provision our Supreme Court has held that "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995)
In addressing the use of unauthenticated documents the Appellate Court has stated that rules of Practice Book § 17-45 "would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." United Services Automobile Ass'n v. Marburg, 46 Conn.App. 99, 107, 698 A.2d 914 (1997).
In New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005) the Appellate Court discussed the standards which must be met before a court can consider evidence to be authenticated. "[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.)
However, in Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006) the court noted that, just as at trial, the failure to object to unauthenticated evidence results in the admission and consideration of such evidence. In this case, the plaintiff filed papers opposing the defendant's motion for summary judgment on April 26, 2006 and on November 27, 2006. At no time did the plaintiff object to the consideration of the unauthenticated evidence attached to the defendant's motion for summary judgment. In fact, the defendant quoted liberally from many of the documents in his papers opposition the motion. The court concludes that the defendant has waived any objection to the unauthenticated evidence and accordingly will consider such evidence in deciding the defendant's motion for summary judgment.
DISCUSSION
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006).
"[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, CT Page 1067 550, 791 A.2d 489 (2002).
"Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "Only one of [a defendant's] defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, claimant's motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).
"[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . [E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 842, 888 A.2d 104 (2006).
"Unlike other areas of the law, where a defendant files a motion for summary judgment challenging the merits of an employment discrimination claim, the plaintiff has an initial burden of persuasion, albeit an attenuated one . . . [T]he burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis." (Internal quotation marks omitted.) Gordon v. Yale-New Haven Hospital, Superior Court, judicial district of Fairfield, Docket No. 365472 (May 22, 1998, Levin, J.)
The defendant moves for summary judgment on the discrimination claims on two grounds. First, the defendant contends that the plaintiff cannot, as a matter of law, establish a prima facie case of discrimination under General Statutes § 31-290a. The defendant argues that the plaintiff cannot maintain an action for discrimination because of his work-related injury or because he filed for workers' compensation benefits. While the town concedes that the plaintiff engaged in a protected activity, it denies that it undertook an employment action disadvantaging the plaintiff and that a causal connection exists between the protected activity and the adverse action. In the alternative, the defendant argues that the plaintiff's claim fails as a matter of law. The defendant has a legitimate, non-discriminatory reason for its action: the plaintiff was unable to perform the essential functions of the master mechanic position. In addition, the plaintiff cannot establish that the defendant's actions were pretextual.
The defendant moves for summary judgment on count three on the ground that the plaintiff cannot, as a matter of law, establish a claim for intentional or negligent infliction of emotional distress. With respect to the claim for intentional infliction of emotional distress, the defendant argues: (1) governmental immunity both at common law and pursuant to General Statutes § 52-557n bars the plaintiff's claim; and (2) the defendant's conduct was not extreme and outrageous as a matter of law. With respect to the claim for negligent infliction of emotional distress, the defendant provides three arguments: (1) governmental immunity bars the plaintiff's claim; (2) the defendant did not terminate the plaintiff; and (3) the defendant's conduct was reasonable.
In opposition, the plaintiff counters that summary judgment is inappropriate because genuine issues of material fact remain, and he is entitled to judgment as a matter of law. With respect to the discrimination claims, he argues that he has established a prima facie case. He filed a workers' compensation claim for the back injury, and the defendant terminated his employment in a "classic pretextual fashion termed pensioned off" because he was injured and filed a claim. The plaintiff contends that the evidence indicates that he was treated differently from fellow employees who also sustained work-related injuries. He also contends that the evidence indicates that the defendant engaged in retaliatory acts against him because he was injured and filed a claim. The plaintiff also argues that the defendant lacks a legitimate non-discriminatory reason for terminating him and the defendant's actions were pretextual. With respect to his claims for infliction of emotional distress, the plaintiff argues that the defendant's conduct in terminating the plaintiff was extreme, outrageous, and unreasonable. The plaintiff does not address the defendant's argument that governmental immunity bars the claims.
COUNT ONE
In count one, the plaintiff alleges that the defendant discriminated against him in violation of General Statutes § 31-290a because he sustained a work-related injury. The plaintiff, however, fails to state how this discrimination differs from the discrimination in count two, which he alleges arose because he filed for workers' compensation benefits. Practice Book § 10-1 requires: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." As a result, the court will analyze the two discrimination claims together.
COUNT TWO
In count two, the plaintiff alleges that the defendant discriminated against him in violation of General Statutes § 31-290a because he filed a workers' compensation claim. Section 31-290a protects "plaintiffs who file for workers' compensation benefits and is in essence a statutorily created tort deriv[ed] from the action for wrongful discharge set forth in Sheets [v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980)]." (Internal quotation marks omitted.) Chiala v. Pepperidge Farm, Inc., 24 Conn.App. 362, 365-66, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). It provides in pertinent part: "No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter." General Statutes § 31-290a.
"The burden of proof in actions involving § 31-290a is stated in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990), and Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 366, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination . . . In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy [the] burden of persuading the factfinder that [the plaintiff] was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Internal quotation marks omitted.) Kopacz v. Day Kimball Hospital of Windham County, Inc., 64 Conn.App. 263, 268, 779 A.2d 862 (2001).
Pursuant to this analysis, "[t]he initial step in analyzing a claim under § 31-290a is to determine whether the plaintiff has established a prima facie case of discrimination." Mele v. Hartford, 270 Conn. 751, 769, 855 A.2d 196 (2004). "To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that [he] was exercising a right afforded [him] under the act and that the defendant discriminated against [him] for exercising that right." Diaz v. Housing Authority, 258 Conn. 724, 731, 785 A.2d 192 (2001). "The plaintiff must establish (a) [protected activity, i.e.,] that he filed a claim for workers' compensation benefits or otherwise exercised his rights under chapter 568 of the Connecticut General Statutes [Workers' Compensation Act]; (b) an employment action disadvantaging the plaintiff; and (c) a causal connection between the protected activity and the adverse employment action." (Internal quotation marks omitted.) Contois v. Carmen Anthony Restaurant Group, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160287 (March 21, 2003, Holzberg, J.)
II Here, the first element of the plaintiff's prima facie case is not in dispute. It is undisputed that the plaintiff engaged in a protected activity. The defendant concedes in its memorandum of law in support of the motion that the plaintiff filed a workers' compensation claim for the work-related injury that he sustained to his back on March 18, 2002.
With respect to the second element, the Second Circuit Court of Appeals has defined "an adverse employment action as a materially adverse change in the terms and conditions of employment . . . To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities . . . Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." (Citations omitted; internal quotation marks omitted.) Sanders v. New York City Human Resources Administration, 361 F.3d 749, 755 (2d Cir. 2004).
While the defendant disputes that it undertook an adverse employment action that disadvantaged the plaintiff, both parties' evidence shows that the plaintiff was terminated. The plaintiff states in his affidavit that on August 10, 2004, he was informed that effective September 1, 2004, the defendant would pension him off. The defendant's affidavit from Edwards states likewise. In addition, both the plaintiff and the defendant submitted copies of the draft of the minutes from the public works pension board meeting, which explicitly states that the board approved the "disability retirement of Robert E. Martin, Jr. to retire effective September 1, 2004 with a monthly retirement benefit of $2,273.82." The court therefore finds that the plaintiff has established the second element of a prima facie case. For the third element of his prima facie case, the plaintiff must establish that there exists a causal connection between filing for workers' compensation benefits and his involuntary retirement. "[A] causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant . . . [A]dverse action directly follow[ing] the filing of an administrative charge is sufficient to establish the requisite causal connection . . . [A] causal connection may be established indirectly by showing that the protected activity was closely followed in time by the discriminatory treatment." (Citations omitted; emphasis in original; internal quotation marks omitted.) Gordon v. Yale-New Haven Hospital, supra, Superior Court, Docket No. 365472.
The defendant maintains throughout its memorandum of law in support of the motion that it did not terminate the plaintiff. "Section 31-290a(a) contains no requirement that any particular word be used in the process of terminating an employee's employment. Any words or conduct that an employee would reasonably understand to signify that his employment was terminated are sufficient." Loftus v. Vincent, 49 Conn.App. 66, 69, 713 A.2d 892 (1998). Here, viewing the evidence in the light most favorable to the plaintiff, the court finds that the plaintiff could reasonably understand the defendant's conduct to signify that the defendant had, in fact, terminated his employment.
Here, the plaintiff attempts to show that discriminatory treatment closely followed his injury and filing for benefits. He states in his affidavit and pleadings that the defendant assigned him equipment that aggravated his injuries. In his deposition testimony, he states that the defendant once "gave him a pair of loppers to go out and cut brush" when he had "a shoulder injury, arm injury." However, this suit arises from an injury to his back. The plaintiff has already litigated the events surrounding injury to his arm in a federal suit. The plaintiff also states that the defendant had him remove serial numbers from radios. He does not, however, recall the date that he was assigned this job. "To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Citations omitted; internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244-45, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).
See Martin v. Westport, 329 F.Sup.2d 318 (D.Conn. 2004) (alleging claims arising under Title VII of the Civil Rights Act. 42 U.S.C. §§ 1981 and 1983, the Americans with Disabilities Act 42 U.S.C. § 1201, and state statutory and common-law claims).
The plaintiff also alleges disparate treatment of fellow employees who were similarly situated. He states in his memorandum that he was not allowed to work while injured while coworkers Dale Wehmhoff, Douglas Meyers and Joe Battone were provided light duty assignments. He, however, fails to provide details as to his coworkers' duties, injuries or restrictions. The plaintiff refers to one letter in his deposition transcript regarding Wehmhoff but did not submit the letter into evidence. The defendant lists these employees' duties, injuries, and restrictions in the Edwards affidavit and states in the affidavit that "no employee has received a longer light duty assignment than the plaintiff." It does not suffice for the plaintiff to rely on mere assertions of fact that a genuine dispute of material facts exists. The plaintiff has the burden of demonstrating with evidence the existence of a genuine issue of material fact. "Mere conclusory allegations and assertions will not suffice to defeat a motion for summary judgment in this area of the law." (Internal quotation marks omitted.) Gordon v. Yale-New Haven Hospital, supra, Superior Court, Docket No. 365472.
The plaintiff also attempts to show that the defendant possessed retaliatory animus against him because he was injured and filed for benefits. He cites a November 3, 2003 incident in which his supervisor, Scott Sullivan, removed his fax machine from his office. The plaintiff, however, does not provide any evidence to support his claim that this incident was the result of improper motives. In contrast, the defendant has submitted the Sullivan affidavit, a copy of a letter from Sullivan to Edwards, and a copy of a letter from Edwards to the plaintiff about the incident, which provide a legitimate reason why Sullivan requested that the plaintiff remove his fax machine: the plaintiff's personal fax machine was on a town phone line, which is against town policy. As another example of the defendant's retaliatory animus, the plaintiff states that he did not receive pay for several days in August 2002. He, however, does not submit any evidence to support this statement. Solely conclusory allegations are not sufficient to defeat a motion for summary judgment. The evidence is insufficient to allow a rational finder of fact to infer the defendant had a retaliatory motive. In Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992), the Connecticut Supreme Court noted: "[E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Here, the plaintiff fails to present such a factual predicate, and as a result does not raise a genuine issue of fact.
The defendant has claimed its reason for terminating the plaintiff is nondiscriminatory. Two years had passed since the plaintiff was able to perform the duties of the master mechanic position without restrictions. During these two years, the defendant continued to provide the plaintiff light duty assignments, and the plaintiff continued to receive workers' compensation benefits. After two years, the defendant could no longer "justify the expense of continuing to pay the plaintiff for work he could no longer perform." General Statutes "§ 31-290a, like its counterpart in other workers' compensation schemes, does not require an employer to retain an employee unable to perform his or her work simply because that inability resulted from a work related injury or illness . . . Businesses would suffer significant losses if they were prevented from filling employment vacancies after the lapse of a reasonable period of time." (Citations omitted; internal quotation marks omitted.) Kopacz v. Day Kimball Hospital of Windham County, Inc., supra, 64 Conn.App. 269. The plaintiff has not offered evidence that raises an inference of discrimination and has failed to present a genuine issue of material fact that the defendant's real reason for termination was otherwise than the proffered one. "While courts have characterized plaintiff's prima facie burden as minimal and de minimis . . . that is not to say that the burden is nonexistent." (Citations omitted; internal quotation marks omitted.) Galligan v. Milford Public Schools, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085554 (January 27, 2006, Stevens, J.). The defendant's motion for summary judgment is granted as to counts one and two.
In their medical evaluations of the plaintiff, Drs Kramer, Garver, and Solomon all concluded that the plaintiff was properly restricted to light duty. Kramer stated that the plaintiff "should be on permanent restrictions with regard to the injury." Garver stated that the plaintiff "is able to work light duty. He would be unable to do heavy lifting or repetitively use the right upper extremity." Solomon concluded: "It is my opinion that Mr. Martin is not capable of performing full duty work as a master mechanic without restrictions due to persistent injuries to his right shoulder and right upper extremity."
III COUNT THREE
In count three, the plaintiff claims intentional and negligent infliction of emotional distress. The defendant argues that governmental immunity both at common law and pursuant to General Statutes § 52-557n(a)(2) precludes the claim of intentional infliction of emotional distress.
Section 52-557n(a)(2) provides: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, and, actual malice or wilful misconduct; or (B) 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 general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n." Bonamico v. Middletown, 47 Conn.App. 758, 761, 706 A.2d 1386 (1998), vacated on other grounds, 49 Conn.App. 605, 713 A.2d 1291 (1998). "[Section] 52-557n states in part that a municipality can be held liable for certain tortious acts (e.g.: negligence) of its employees, as long as those acts 1) take place while that individual is performing his duties as an employee of the political subdivision; 2) are not deemed to be the result of any criminal, fraudulent or wilful misconduct on the part of the employee himself; and 3) are not related to any claim arising under the highway defect statute, § 13a-149." (Internal quotation marks omitted.) Scholz v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 02 0050483 (July 3, 2003, Nadeau, J.).
In Pane v. Danbury, 267 Conn. 669, 654-86, 841 A.2d 684 (2004), the Connecticut Supreme Court unequivocally held that General Statutes § 52-557n(a)(2)(A) prevents a municipality from being held liable in an action for its employee's alleged intentional infliction of emotional distress.
The court next considers the defendant's argument that the doctrine of governmental immunity bars the plaintiff's claim for negligent infliction of emotional distress. The defendant claims that summary judgment should be granted as to the third count because a "municipality may not be sued directly for common-law negligence," and the plaintiff has not provided a statute that limits or abrogates the defendant's immunity. The court agrees.
In Williams v. New Haven, 243 Conn. 763, 764, 707 A.2d 1251 (1998), a mother sued the defendant city on behalf of her son for injuries her son sustained when he was struck by water from a fire hydrant that was opened by an unauthorized person. The defendant asserted the special defense of governmental immunity and argued that immunity barred the action since the plaintiffs "did not rely on any statute granting an exception to the governmental immunity . . ." The Connecticut Supreme Court held that governmental immunity barred the action. The plaintiffs did not allege a statutory exception to the doctrine of governmental immunity. Nor did they "name an agent, officer or employee of the municipality and . . . invoke indemnification pursuant to [General Statutes] § 7-465." The court stated: "Because it is clear that a municipality enjoys governmental immunity for common-law negligence unless a statute has limited or abrogated that immunity, the plaintiffs cannot prevail." Id., 769.
The court finds that the plaintiff cannot prevail on the claim of negligent infliction of emotional harm as set forth in its third count. The plaintiff does not cite any statute that would limit or abrogate the defendant's governmental immunity in his memorandum in opposition or in his complaint. In fact, the plaintiff fails to address the defendant's argument that immunity precludes this claim in any pleading. As a result, as required under Pane, supra, and Williams, supra, the court grants summary judgment on the plaintiff's third count.
CONCLUSION
For the reasons set forth above, the court grants the defendant's motion for summary judgment as to all three counts of the plaintiff's complaint.