Opinion
No. CV 04-5000225S
February 21, 2006
RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The defendants, the Town of Granby and the Granby Board of Education, have moved for summary judgment on the basis of governmental immunity pursuant to General Statutes § 52-557n. This matter was scheduled for oral argument on the short calendar of February 14, 2006. The defendants appeared, through counsel. The plaintiff did not appear, however, defense counsel indicated to the court that the plaintiff was not objecting to their motion.
In the plaintiff's second revised complaint dated June 1, 2005, he claims that the defendants are liable to him for negligence because a high school gymnasium floor was unsafe for him as either an invitee or a licensee. Plaintiff avers that the floor was sticky because it had been recently lacquered. Plaintiff was playing basketball in an adult league when he allegedly fell due to the claimed defective condition of the floor. The basketball league was a drop-in program sponsored by the town Parks and Recreation Department and the program operated as a governmental, non-profit enterprise. Each count is alleged against the municipal defendants; there are no individuals named as defendants.
"[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. Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746 A.2d 363 (2000). The party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute. See Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). "When a party filed a motion for summary judgment and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." (Citations omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005). The Connecticut Supreme Court "has approved the practice of deciding the issue of governmental immunity as a matter of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
The court has reviewed the defendants' motion, memorandum of law and accompanying affidavits. The plaintiff has filed nothing in response to the defendants' motion.
First, the court concludes that the maintenance of the gymnasium floor at Granby Public High School, is, as a matter of law, a discretionary act. The activities required to properly maintain or inspect a gymnasium floor must necessarily devolve to discretionary acts and/or omissions. The decisions on procedures governing the maintenance of the floor are inevitably discretionary, based on the resources available, the use of the premises, the other demands on municipal personnel and the nature of the alleged hazard. See Fortune v. City of New London, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV97-0082795S, ( 27 Conn. L. Rptr. 637) (December 14, 1999, Shapiro, J.) and Burks v. Town of Wallingford, Superior Court, judicial district of New Haven at New Haven, Docket No. CV98-0262469 (June 8, 1999, Beach, J.). "A municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 167. General Statutes § 52-557n(2)(B) provides that "a political subdivision of the state shall not be liable for damages to person or property caused by negligent acts or omissions which required the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." The only possible exception to this statutory grant of immunity for a discretionary act is the "identifiable person/imminent harm" theory of liability. However, the plaintiff has not brought suit against any municipal employee and therefore, this theory cannot save his cause of action. "[T]he common-law identifiable person/imminent harm [exception] . . . has been determined to be inapplicable to any direct liability imposed against a municipality under [Section 52-557n]." Rodriguez v. New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. CV00-0437974 (June 25, 2004, Licari, J.). "[T]he proper means to expose a municipality to liability in cases alleging imminent harm to identifiable persons is through the indemnification provisions of Sec. 7-465." Gaudino v. East Hartford, Superior Court, judicial district of Tolland, Complex Litigation Docket at Tolland, Docket No. X07-CV 01-0081310S (September 10, 2003, Sferrazza, J.), ( 35 Conn. L. Rptr. 448), aff'd., 87 Conn.App. 353, 865 A.2d 470 (2005).
Therefore, since the governmental acts and omissions alleged by the plaintiff in both counts are discretionary, and because there is no individual employee named whose evaluation of an imminent threat to an identifiable victim could potentially support a viable exception to the doctrine immunity, the defendant's motion for summary judgment on all counts is hereby granted.