Opinion
No. CV05 4004943-S
November 19, 2008
MEMORANDUM OF DECISION
The plaintiffs, Sandra Young and Lawrence McDermott, brought this action seeking damages from the various defendants on the basis of alleged careless and negligent repair of their home which had been damaged by fire. One of those defendants, the town of North Branford (the town), moves for summary judgment on count eight of the plaintiffs' revised complaint. In this count, the plaintiffs, Sandra Young and Lawrence McDermott, seek to extend liability to the town for harm they suffered as a result of its co-defendant Smalley Construction, Inc.'s allegedly careless and negligent repair of the plaintiffs' home, which was previously badly damaged by a fire. The third defendant in the action is Frederick J. Smalley, Jr., who allegedly owned Smalley Construction, Inc.
The crux of the plaintiffs' theory for extending liability to the town is that, following a series of inspections, an unnamed building official ultimately issued a certificate of occupancy, pursuant to General Statutes § 29-265, certifying that the plaintiffs' home substantially conformed to the State Building Code (the Code), despite the fact that there were several existing Code violations at that time. Specifically, the plaintiffs allege that "North Branford through its agents, servants and/or employees, was careless and negligent in the following ways: (a) They failed to perform a thorough re-inspection of the several items which had failed during the initial inspection; (b) They issued a certificate of occupancy despite the fact that the premises was for all intents and purposes, uninhabitable; (c) They permitted [Smalley Construction, Inc.] and its owner, the co-defendant, to continue the renovation/rehabilitation work at the subject property despite the fact that a reasonably thorough inspection would have readily revealed the unworkmanlike manner in which said work was being performed; (d) They failed to warn the plaintiffs of the defective and dangerous condition in which the subject property had been left in light of the unworkmanlike manner in which the rehabilitation work had been performed."
The town contends that count eight is legally insufficient as pleaded, that it is protected by governmental immunity, and that it is therefore entitled to judgment as a matter of law.
While our Supreme Court has recognized that "use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because `[t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case;' "the court has nevertheless approved the practice so long as two conditions are met. Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). First, the complaint must fail to set forth a cause of action, and, second, the defendant must be able to demonstrate the defect could not be cured by repleading. Id. Thus, summary judgment is appropriate "[i]f it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff." Id., 401-02.
I. General Statutes § 7-465 as a Source of Liability
The only statute that the plaintiffs mention in count eight that abrogates governmental immunity is General Statutes § 7-465. The town argues that count eight is legally insufficient to support a claim against it because § 7-465 is merely an indemnification statute and cannot be invoked without also naming a government employee as a defendant.
Paragraph thirteen of count eight reads as follows: "In accordance with Connecticut General Statutes § 7-465, notice of this incident and resulting injuries was provided to the codefendant, North Branford, on November 3, 2005."
General Statutes § 7-465(a) provides in relevant part: "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . Governmental immunity shall not be a defense in any action brought under this section . . ."
It is well established that "in order to comport with § 7-465, [a plaintiff] must have necessarily claimed liability on the part of [a government employee] individually and indemnity therefor by his municipal employer . . . § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment . . . [and] it is quite clear that the municipality does not assume the liability in the first instance . . . The municipality's liability is derivative." (Citations omitted; internal quotation marks omitted.) Kaye v. Manchester, 20 Conn.App. 439, 443-44, 568 A.2d 459 (1990).
As the Supreme Court has stated, "[a] plaintiff bringing suit under . . . § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification . . . Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual." (Citations omitted; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); see also Seibold v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 98 0078042 (January 6, 2000, Frazzini, J.) (26 Conn. L. Rptr. 610, 611) (where plaintiffs failed to sue an individual employee, municipality was entitled to summary judgment because § 7-465 is "solely [an] indemnification [statute] that [does] not create a right of action against [a] town . . . without a cause of action against an individual employee of that town").
In the present case, it is undisputed that the plaintiffs failed to assert a claim or allege that they have obtained a judgment against the building official charged with issuing certificates of occupancy or, for that matter, any other employee of the town. Therefore, as a matter of law, count eight does not properly assert a claim against the town pursuant to § 7-465, and the town is entitled to judgment in its favor.
In their memorandum of law in opposition, the plaintiffs nevertheless contend that summary judgment should be denied and they should be permitted to add the appropriate employees as additional defendants. While Larobina dictates that a motion for summary judgment is only appropriate to challenge the legal sufficiency of pleadings where the defect in the plaintiff's complaint could not be fixed by repleading; Larobina v. McDonald, supra, 274 Conn. 401; the town, however, correctly counters that more than three years have passed since the certificate of occupancy on the plaintiffs' home was issued on July 21, 2005, and that § 7-465(a) mandates that "[n]o action for personal physical injuries or damages to real or personal property shall be maintained against [a] municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose . . ." Accordingly, the plaintiffs cannot gain anything by repleading.
Nor can the plaintiffs rely on the relation back doctrine to save their action from being time-barred because our courts have determined that when a plaintiff fails to name an allegedly negligent employee as a defendant in a § 7-465 claim against a municipality, any subsequent claim brought against the employee is treated as "a new cause of action . . . and [does] not relate back to the date of the original complaint." Kaye v. Manchester, supra, 20 Conn.App. 446; see also Seibold v. New Milford Board of Education, supra, 26 Conn. L. Rptr. 611 ("an amendment adding additional defendants now would not, for statute of limitations purposes, relate back to the filing of the original complaint, as any individual defendants added now would not have had notice during the period of limitations that they were being sued in their individual capacity"); Anderson v. Hartford Housing Authority, Superior Court, judicial district of Hartford, Docket No. CV 92 0508411 (September 26, 1994, Sheldon, J.) (determining that amendment adding employee to § 7-465 claim would not, for statute of limitations purposes, relate back to date the original complaint was filed where employee was not expressly mentioned by name in original complaint).
Thus, the plaintiffs cannot now amend their revised complaint to add an allegedly negligent employee as an additional defendant, since the statute of limitations has expired and any such amendment would not relate back to the date this complaint was originally commenced. To this end, under Larobina, it is therefore apparent that allowing the plaintiffs to replead could not rectify the defect in the plaintiffs' § 7-465 claim, that a motion for summary judgment is, then, an appropriate vehicle for challenging count eight, and that the town is entitled to judgment as a matter of law.
II. General Statutes § 52-557n as a Source of Liability
In their motion in opposition and at short calendar, the plaintiffs, for the first time, raised General Statutes § 52-557n as a statutory basis for circumventing governmental immunity.
General Statutes § 52-557n(a) provides in relevant part: "(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . 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."
As a threshold issue, it is not clear that the plaintiffs can even rely upon this statute given that they have not previously expressly referenced it in their complaint or revised complaint. This court is aware that the Appellate Court has stated that "although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently appraised of the applicable statute during the course of the proceedings." Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). In Spears, however, while the plaintiffs failed to expressly mention § 52-557n in their complaint against municipal defendants, they did rely upon it in their memorandum of law and at oral argument and the Appellate Court determined that the defendants were not entitled to summary judgment on that basis. Id.
In opposition, the town points to Gaudino v. East Hartford, 87 Conn.App. 353, 358-59, 865 A.2d 470 (2005). In Gaudino, the Appellate Court determined that the trial court properly granted the defendant's motion for summary judgment where the plaintiffs, without concomitantly bringing an action against a city employee, mistakenly relied upon § 7-465, then attempted, for the first time, to rely upon § CT Page 18355 52-557n in their memorandum of law opposing the defendant's motion. Id. The Appellate Court explained that Spears was distinguishable because, "[i]n that case, the plaintiffs' complaint was ambiguous in that it did not mention any statutory authority that abrogated governmental immunity . . . In contrast, the plaintiffs in the present case included in their complaint a clear citation to § 7-465, the statute on which they were relying." (Citation omitted.) Id., 359. The Appellate Court determined the plaintiffs were not, therefore, entitled to alter the statute upon which they relied without amending their complaint, and since they had not sought to do so, summary judgment was appropriate. Id.
Moreover, as discussed below, the court finds that governmental immunity would shield the town from liability even if the plaintiffs were entitled upon § 52-557n and thus the town is still entitled to judgment as a matter of law.
Under the doctrine of governmental immunity "[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." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988). The doctrine has been codified in § 52-577n, which "extends . . . the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006). On the other hand, liability may attach if the duty performed is merely ministerial, a term that "refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). "In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity." Grignano v. Milford, 106 Conn.App. 648, 656, 943 A.2d 507 (2008).
The plaintiffs argue that the building inspector's issuance of a certificate of occupancy pursuant to § 29-265 is a ministerial act. In essence, the plaintiffs attempt to draw a line between the building inspector's determination of whether their house met the requirements of the Code — which they acknowledge "may have involved some limited discretion" and his act of actually issuing the certificate of occupancy, which they contend was ministerial. To support this argument, the plaintiffs point to Wright v. Brown, 167 Conn. 464, 471-72, 356 A.2d 176 (1975), which dealt with a dog warden's statutory duty to quarantine a dog for a prescribed period of time if the dog was found to have bitten a person on the premises of someone other than the dog's owner or keeper. Id., 466-67. The Supreme Court held that although the warden's initial determination as to whether a dog had bitten a person on the property of another involved the exercise of judgment, "the subsequent duty to quarantine for fourteen days was mandatory and, therefore, ministerial." Id., 472. The plaintiffs argue that just as the dog warden's duty to quarantine for a prescribed period of time following an initial exercise of judgment was ministerial, the town's decision to issue a certificate of occupancy following its judgment-based inspection of their home was ministerial.
This same argument was made and rejected by the court in Lewis v. Cox, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 95 0075021 (September 30, 1997, Hodgson, J.). The plaintiffs in Lewis alleged that a building inspector negligently performed an inspection of a foundation that was laid for their house, and then granted a certificate of occupancy despite various defects in the foundation and footings. Id. In rejecting the plaintiffs' argument that Wright was controlling, the court noted that the relevant statute in Wright eliminated any discretion the animal warden may have otherwise had when a dog was found to have bitten a person while not on the premises of the owner or keeper of the dog, because the warden was then required to quarantine the dog for a set period of time. Id. Conversely, the court noted that "[o]bservations and the drawing of conclusions concerning the soundness of construction require judgment and are discretionary, not ministerial, functions of a building inspector," and the building inspector's discretion and actions were not, therefore, similarly limited. Id.
Although the plaintiffs in Lewis did not rely upon a particular statute to allege a duty — as the plaintiffs in the present case have done with § 29-265 — an examination of § 29-265 demonstrates the applicability of the court's reasoning in Lewis to this case. In relevant part, § 29-265 states that "no building or structure erected or altered in any municipality . . . shall be occupied or used . . . until a certificate of occupancy . . . has been issued by the building official, certifying that such building, structure or work performed pursuant to the building permit substantially conforms to the provisions of the State Building Code . . ." (Emphasis added.) A determination as to whether the Code is "substantially" conformed to necessarily requires a degree of judgment on the part of the building inspector. See, e.g., Evon v. Andrews, supra, 211 Conn. 506 (determining that government officials' duty to "reasonably and properly" inspect buildings and enforce a fire prevention code was discretionary because "no matter how objective the standard, an inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment"). Therefore, any duty imposed by § 29-265 is discretionary.
The plaintiffs also argue that the town had a continuing duty to warn the plaintiffs about the dangers posed by the allegedly defective and dangerous condition in which their home was left, and that Grignano v. Milford, supra, 106 Conn.App. 655-57 establishes that a duty to warn is ministerial. Grignano, however, was a premises liability action in which a duty to warn was expressly established and imposed upon the defendant by a municipal ordinance. Id., 657-58. The plaintiffs have not pointed to a similar provision that would impose a continuing duty to warn upon the town in this case. While the plaintiffs refer to § 29-265, that statute "does not, on its face, impose an ongoing duty on the city to remedy a negligently issued certificate of occupancy." McKeon v. Estate of Rinaldi, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001110 (January 11, 2006, Brunettt J.).
The plaintiffs next contend that, even if the town's acts were discretionary, the town is nevertheless liable because the plaintiffs fit within a narrow exception that exposes municipalities to liability for negligently performed discretionary acts. This exception states that "liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm." (Internal quotation marks omitted.) Doe v. Peterson, 279 Conn. 607, 616, 903 A.2d 191 (2006). The exception "has received very limited recognition in this state"; Evon v. Andrews, supra, 211 Conn. 507; and "requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." Doe v. Peterson, supra, 616. The court finds that the plaintiffs cannot establish any of the elements of this exception.
"Imminent harm has been defined as `harm ready to take place within the immediate future.' Tryon v. North Branford, 58 Conn.App. 702, 712, 755 A.2d 317 (2000). Imminent harm requires the existence of a dangerous condition that is `limited in duration and geographical scope and that the risk of harm be `significant and foreseeable.' Purzycki v. Fairfield, 244 Conn. 101, 110,708 A.2d 937 (1998); Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994). The logic of this exception is that municipal officers only have a duty to a foreseeable victim to protect against `dangers that may be anticipated.' Id., 649. On the other hand, where a danger can occur at any time in the future or not at all, there is no imminence and no duty. Evon v. Andrews, supra, 211 Conn. 508." Bruno v. BBC Corp., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 00 00716343 (May 22, 2002, Lager, J.).
The harm that the plaintiffs complain of includes excessive leaking of water through the roof and foundation of their house, which caused water damage to the ceiling, walls and floors, as well as insect infestation. This is not the type of harm contemplated by the identifiable victim/imminent harm exception. See, e.g., id. (allegations that storm surface water flooded plaintiff's property as a result of municipality's negligent approval of subdivision development and construction not sufficient to meet identifiable victim/imminent harm exception because allegations did "not rise to the level of imminence" required by exception since risk of harm was not limited in duration or geographic scope); Lewis v. Cox, supra, Docket No. CV 95 0075021 (threat posed by building inspector's negligent issuance of a certificate of occupancy following inspection of building's footings and foundation not sufficient to meet exception because this form of negligence "could have resulted in harm occurring when the plaintiff no longer owned the house and the nature of the harm was not such that it was likely to occur imminently").
Even the plaintiffs' allegation that the excessive leaking resulted in a damp environment in areas where wire was exposed does not trigger the exception's applicability. This type of non-concrete, perspective, future harm has been removed from the purview of the exception. In Evon v. Andrews, supra, 211 Conn. 508, our Supreme Court stated that "[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. The class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of `identifiable persons' . . . Furthermore, the plaintiffs' decedents were not subject to `imminent harm.' . . . [T]he fire could have occurred at any future time or not at all . . . [T]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Citations omitted; internal quotation marks omitted.) Id., 509.
Here, any potential for harm stemming from the exposure of wiring to moisture — or, for that matter, any other form of harm associated with the alleged leaking — could have occurred at any given time in the future or not at all, and could have injured the plaintiffs or others. The exception is not met and the town is therefore entitled to governmental immunity.
For all the foregoing reasons, the defendant, Town of North Branford's motion for summary judgment is granted.