Opinion
No. HHB CV 05 500252S
May 16, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#108)
The plaintiff insurance company alleges that a tree, located in a park owned by the defendant city, fell onto and damaged an automobile that was parked on adjacent private property. The owner of the automobile has subrogated to the plaintiff, and the plaintiff seeks damages. The defendant moves for summary judgment on the grounds that there are no genuine issues of material fact and it is entitled to judgment as a matter of law on the basis of governmental immunity. The court concludes that based on governmental immunity, the defendant is entitled to judgment on both counts of the complaint.
In count one of the amended complaint, the plaintiff claims, in part, that the incident was proximately caused by the negligence of the defendant and "its employees, officers or agents acting within the scope of their employment or official duties within the meaning of § 52-557n of the Connecticut General Statutes in that they failed to make periodic inspections of their property and failed to remove the tree which posed a serious threat." In count two of the complaint, the plaintiff recites the previous allegations, and claims that the defendant's alleged "acts and omissions . . . created a nuisance." In addition, in both counts one and two of the amended complaint, the plaintiff alleges that the defendant derives pecuniary benefit from the property on which the tree was located.
General Statutes § 52-557n(a)(1)(A) provides: "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."
Standard of Review
"Practice Book § 17-49 provides that summary 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 the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts." (Citation omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 589 A.2d 785 (2006). "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).
Count One: Negligence
"[A]t common law, Connecticut municipalities enjoy governmental immunity in certain circumstances, from liability for their tortious acts." (Emphasis in original; internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991). "Section 52-557n [of the General Statutes] abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit, and acts which constitute the creation or participation in the creation of a nuisance . . . The section goes on to exclude liability for acts or omissions of any employee or agent which constitute . . . negligent acts that involve the exercise of judgment or discretion . . . The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property." (Citations omitted; internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). "The public duty doctrine provides the starting point of the analysis with regard to the question of municipal liability . . . Thus, the court looks to see whether there is a public or private duty . . . This determination involves a question of law." (Citations omitted; internal quotation marks omitted.) Roman v. Stamford, 16 Conn.App. 213, 219-20, 547 A.2d 213 (1988), aff'd, 211 Conn. 396, 559 A.2d 710 (1989).
The defendant asserts, and the plaintiff does not contest, that the maintenance and care of municipal trees is a public duty. See Roman v. Stamford, supra, 16 Conn.App. 220 (finding the maintenance and care for trees a public duty). "Once it is determined that the duty involved . . . is a public duty, the issue of municipal liability may also turn upon whether the specific act in issue was ministerial or discretionary." Roman v. Stamford, supra, 16 Conn.App. 221. Specifically, subdivision (2) of § 52-557n(a) 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 . . . (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 hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion . . . 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 where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49, 881 A.2d 194 (2005) (absent evidence of a policy or directive, oversight of park trail discretionary as a matter of law).
In DeConti v. McGlone, 88 Conn.App. 270, 896 A.2d 271 (2005), the plaintiff was injured while driving on a public highway when a rotted tree fell onto the plaintiff's automobile. Id., 271. The tree had been located on municipal-owned property, and the plaintiff sued the town superintendent of parks for negligence and the town for indemnification. Id. The Appellate Court found that "the duty to inspect and to care for trees undoubtedly involves the exercise of judgment, and, as such, is properly classified as a discretionary act. See, e.g., Roman v. Stamford, [ supra, 16 Conn.App. 213]." DeConti v. McGlone, supra, 273.
The court concludes the doctrine of governmental immunity is implicated by the facts of this case, however it must be determined if a qualified exception applies. "A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: first, where 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 . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Emphasis added; internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 49 n. 7, citing to Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003).
In this case, the plaintiff argues that the "identifiable person-imminent harm exception applies not only to individuals but also to narrowly defined classes of foreseeable victims;" Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); and asserts that the plaintiff was part of such a class.
The court finds the identifiable person-imminent harm exception does not apply to this direct action case. "[T]he common-law identifiable person/imminent harm [exception] . . . has been determined to be inapplicable to any direct liability imposed against a municipality under [§ 52-557n of the General Statutes] . . . [T]he proper means to expose a municipality to liability in cases alleging imminent harm to identifiable persons is through the indemnification provisions of [§]7-465." (Internal quotation marks omitted.) Reed v. Granby, Superior Court, judicial district of Hartford, Docket No. CV 04 5000225 (February 21, 2006, Keller, J.); Mangles v. Yale, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0389790 (February 15, 2006, Gilardi, J.) (exception does not apply when municipal employee is not named in the complaint); 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).
Here, the plaintiff has only brought suit against a municipality and has not named a municipal employee in the complaint. Therefore, the identifiable person-imminent harm exception to the doctrine of governmental immunity does not apply and the court need not reach the issue of whether the plaintiff was within a class of foreseeable victims. The plaintiff argues that the defendant may be held liable for negligently performing functions for which the defendant derives a pecuniary benefit. General Statutes § 52-557n(a)(1)(B), provides: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit."
The issue of pecuniary benefit and oversight of recreational property was addressed in Hannon v. Waterbury, 106 Conn. 13, 136 A.2d 876 (1927). In that case, the plaintiff was injured when she slipped in a pool locker room and was cut by a sharp edge on the locker, after which she brought suit against the city of Waterbury. Id., 14. The defendant charged a fee for use of the pool and swimming lessons, and these fees were kept in a special fund for operation of the pool. Id. The court noted that "[p]ublic parks, playgrounds, swimming pools, and public baths or bathing houses are all examples of municipal functions undertaken for the public benefit, and unless maintained for the corporate profit of the municipality are within the rule of governmental immunity." Id., 17. The court went on to hold that "[t]he charge of a small fee covering a part of the cost of the maintenance of the pool . . . did not except the maintenance of the pool from the rule of governmental immunity." Id., 17-18; see also Miller v. South Windsor, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 99 70122 (October 27, 2000, Sferrazza, J.) (finding fees to defray the costs of maintaining and operating recreational facilities insufficient to remove governmental immunity).
The defendant has submitted by affidavit evidence that while the defendant charges a fee for rental of picnic areas and the use of pools and baseball fields, these fees do not amount to a profit, nor cover the costs of operating the park generally. The court concludes the fees charged by the defendant are a mere incident of the public service rendered in the performance of a governmental duty and therefore "[do] not create a proprietary activity sufficient to remove governmental immunity." Miller v. South Windsor, supra, Superior Court, Docket No. CV 99 70122. The defendant is entitled to judgment as a matter of law on this count.
Count Two: Nuisance In count two of the complaint, the plaintiff raises a claim for nuisance. The defendant moves for summary judgment on the basis that the condition that caused the plaintiff's injuries was not created by some positive act of the defendant. General Statutes § 52-557n(a)(1)(C) of the General Statutes states in relevant part that a "[municipality] shall be liable for damages to person or property caused by . . . acts of the [municipality] which constitute the creation or the participation in the creation of a nuisance." In Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996), our Supreme Court stated that "liability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality." (Emphasis added; internal quotation marks omitted.) Id., 164. Moreover, the "failure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Internal quotation marks omitted.) Id.Taking the allegations as true, the complaint recites facts amounting "at most to a permissive continuation of the alleged unsafe condition." Metropolitan Property Casualty Ins. Co. v. Fairfield, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0339264 (September 4, 2002, Gormley, J.). The plaintiff has failed to allege that the alleged dangerous condition was created by some positive act of the defendant, but rather argues that the defendant created the park, owned the park and had a duty to maintain the park in a safe condition. Despite this assertion, the plaintiffs have not alleged that the defendant created the alleged dangerous condition presented by that tree other than having failed to abate the condition that was in existence. See, e.g., Gray v. Norwalk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0361454 (May 2, 2000, Skolnick, J.) ( 27 Conn. L. Rptr. 149, 150).
The defendant is entitled to judgment as a matter of law on count two of the amended complaint.