Opinion
NNHCV176069339S
08-07-2019
Angel AVILES v. CITY OF NEW HAVEN et al.
UNPUBLISHED OPINION
Wahla, J.
Synopsis
Before the court are two motions for summary judgment, one by the defendant, Morris and McDaniel, Inc., (the defendant testing company) and the other by the defendants, the city of New Haven and the city’s manager of human resources, Stephen Librandi (the city defendants) against the amended complaint (#142.00) filed by the plaintiff, Angel Aviles.
Hereinafter the defendants, the city of New Haven and Stephen Librandi will be referred to as the city defendants, collectively, and by name when referred to individually.
On May 30, 2018, pursuant to Practice Book § 17-49, the defendant testing company filed a motion for summary judgment against the plaintiff as to count two of the amended complaint sounding in negligence. The defendant testing company contends that there are no genuine issues of material fact. The defendant testing company argues that the court should grant its motion for summary judgment on the grounds that: (1) no legal duty exist between them and the plaintiff; (2) the plaintiff cannot demonstrate any negligence by them which caused a legally compensable injury; and (3) the plaintiff’s alleged loss is speculative. The defendant testing company filed an accompanying memorandum of law in support, as well as attached exhibits. In response, on September 18, 2018, the plaintiff filed a memorandum of law in opposition to the defendant testing company’s motion for summary judgment with attached exhibits. On January 30, 2019, the defendant testing company filed a reply memorandum. On August 6, 2018, pursuant to Practice Book § 17-44, the city defendants filed a motion for summary judgment against the plaintiff as to counts one and three of the amended complaint. The city defendants argue that there is no evidence to support a claim of negligence or negligence per se against Librandi. The city defendants contend that Librandi was not responsible for the video recorded portion of the plaintiff’s fire captain promotional examination and did not owe a duty to the plaintiff with respect to the second review (re-evaluation) process of that examination. The city defendants further contend that the plaintiff cannot establish actual injury and does not meet the necessary elements of his claim. Most significantly, the city defendants assert that the sections of the city charter relied on by the plaintiff do not set any particular standard of care and do not protect the health and safety of the general public. For this reason, the city defendants argue that the plaintiff cannot form the basis for a negligence per se action. Furthermore, the city defendants argue that Librandi is entitled to governmental immunity because the plaintiff has not alleged nor proven the existence of any ministerial duty breached by Librandi. Lastly, the city defendants assert that there are no allegations against the city of New Haven itself. The city defendants filed an accompanying memorandum of law in support as well as attached exhibits. In response, on October 2, 2018, the plaintiff filed a memorandum of law in opposition to the city defendants’ motion for summary judgment with attached exhibits. On January 30, 2019, the city defendants filed a reply memorandum.
Practice Book § 17-49 provides: "The judgment sought 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."
Practice Book § 17-44 provides in relevant part: "In any action ... any party may move for a summary judgment as to any claim or defense as a matter of right ..."
The court did not consider the plaintiff’s surreply memorandums filed April 24, 2019 and April 25, 2019. See Teodoro v. Bristol, 184 Conn.App. 363, 383, 195 A.3d 1 (2018) ("Practice Book § 11-10 was amended on June 12, 2015 ... According to commentary accompanying the amendment, [t]his change ... [clarified that] [n]o surreply memoranda can be filed without the permission of the judicial authority ... The court therefore had discretion under the rules of practice not to consider this additional briefing" [citation omitted; internal quotation marks omitted]).
Both motions for summary judgment are granted for the reasons set forth below.
I
Procedural and Factual Context
The record reveals that the plaintiff is a lieutenant with the New Haven Fire Department. On or about January 31, 2017, the plaintiff participated in the promotional process for the rank of fire captain. The plaintiff alleges that the city of New Haven hired an outside testing company, the defendant testing company, through a professional services contract to administer the professional exam. The heart of the plaintiff’s claim is that a portion of the videotape of his interview (one component of the fire captain test) was erased and he was denied the right to request confirmation of the accuracy of his oral test score.
On March 31, 2017, the plaintiff initiated this action by summons and two-count complaint. Count one sounds in common-law negligence against Librandi. Count two sounds in negligence and is brought against the defendant testing company. On July 23, 2018, the plaintiff filed a three-count amended complaint (#142.00). Count one sounds in negligence and is directed against Librandi. It specifically asserts, inter alia, that Librandi was negligent for failing to provide the plaintiff with a genuine opportunity to confirm the accuracy of his test score in violation of Section 13(b) of the Civil Service Rules and Regulations. Count two sounds in common-law negligence and is directed against the defendant testing company. Count two specifically alleges, inter alia, that the defendant testing company was negligent in failing to preserve the entirety of the videotape of the plaintiff’s oral component of the promotion process for captain, effectively denying the plaintiff his opportunity at promotion.
Count three sounds in negligence per se and is directed against Librandi. Count three alleges, among other things, that Librandi has a duty or duties pursuant to the New Haven city charter, § 125/8.4(d) which provides that "[p]ublic officials and municipals employees shall not give special treatment or consideration to any person or group beyond that which is available to any other person or group." Count three also alleges that Librandi has a duty pursuant to the New Haven city charter § 125/8.4(e) which provides that "[r]ecognizing the value of boards, and commissions, and task forces in the public policy decision-making process, public officials and municipals employees shall refrain from using their public position to improperly influence the proceedings, deliberations, decisions, actions or administration of any board, commission or task force." Count three further alleges that Librandi has a duty pursuant to the New Haven city charter § 125/8-2(a) which provides that "[t]he proper operation of the municipal government of the City of New Haven requires employees, whether elected or appointed, paid or unpaid, shall be impartial and responsive to the public interest; that public office and employment shall not be used for personal gain or advantage; and, that the public have confidence in the integrity the municipal government." Count three goes on to allege that Librandi is being sued in his individual and official capacity.
On July 10, 2017, The defendant testing company filed an answer and special defenses to the original two-count complaint. The defendant company filed two special defenses to count two.
On July 30, 2018, the city defendants filed an answer, denying all allegations of count one and count three and asserting that the plaintiff is not entitled to relief as requested in the amended complaint. The city defendants also filed eight special defenses as to count one and count three.
A. Brief Overview of the 2017 New Haven Fire Department Promotional Process for the Rank of Fire Captain
A review of the various parts of the record reveals the following as it pertains to the fire department promotional process. The promotional process consists of two parts: (1) a written examination that counted towards 35 percent of the grade, and (2) a performance based assessment that counted towards 65 percent of the grade. The performance based assessment is comprised of two separate and distinct oral examinations; the situational exercise and the tactical exercise. The written and oral examination are administered by the defendant testing company according to a contract it has with the city of New Haven. All performances by the candidates on the two oral examinations are audiotaped and videotaped by the defendant testing company. The performances are scored by a three-member panel known as the "assessment council." Each of these individuals holds the rank of captain or above and come from throughout the United States.
After reviewing their scores assigned by the assessment council, the candidates have the option of reviewing their own recorded performance on each of the oral examinations at the New Haven Fire Department. If a candidate is of the opinion that the assessors were significantly wrong in their scoring, the candidate can request a second review. A panel of assessors is drawn from the original assessment council for the second review. The outcome of the second review would result in the candidate’s score increasing, decreasing, or remaining the same. The second review assessment is the final test score.
B. The Plaintiff’s Participation in the 2017 Promotional Process for the Rank of Fire Captain
The record indicates the following factual aspects of the plaintiff’s participation in this process. After participating in the written component of the promotional process, the plaintiff was invited to participate in the performance based assessment of the promotional process. The plaintiff’s performance on each of the two oral examinations was audiotaped and videotaped by the defendant testing company. According to the affidavit of the assessment council, the plaintiff’s oral examinations were scored by the evaluators based on the complete video file. According to the plaintiff’s deposition testimony attached to the motion for summary judgment, the plaintiff’s raw score on the situational examination was 4.42, and the average score was 4.9. The plaintiff’s raw score on the tactical examination was 3.8, and the average score was 3.5658.
The record further reflects that after the plaintiff had received his scores for each of the oral examinations, the plaintiff reviewed his complete performance on the situational exercise. During the plaintiff’s review of his tactical exercise performance, it was discovered that a portion of the video for tactical exercise had not been preserved. Specifically, there were three questions asked on the tactical examination. The first question and the plaintiff’s answer thereto were fully intact on the video. The second question and majority of the plaintiff’s answer thereto were intact on the video. The third question and the third answer were not included on the video. Overall, approximately eight minutes out of the total thirty minutes of the plaintiff’s performance on the video was missing. See Def. Testing Company’s Memo. Mot. Summ. J., Ex. 2, ¶9.
The plaintiff’s claim is that he believed that his answer to the first question reflected a much higher score than the 3.8 that he received and that his video for the tactical exercise had been erased (inadvertently and/or negligently) from the video cameras memory card. The defendant testing company counters that even though the video footage of the oral tactical exercise could not be retrieved, it was able to locate and preserve the audio backup recording of the plaintiff’s entire presentation in the tactical exercise. The defendant testing company claims that it constructed a "hybrid video" of the plaintiff’s tactical exercise that consisted of audio and video up to the point where the original recording ended followed by a still shot of the candidate in the exercise accompanied by the full audio of the remainder of his presentation in that exercise.
The defendant testing company contends that the city of New Haven provided additional time to the plaintiff so that he could review the hybrid video and thereafter determine whether he wanted to elect a second review of the tactical exercise. The defendant testing company further contends that the plaintiff chose not to watch the hybrid video and declined a second review of the hybrid video.
The damages sought by the plaintiff as a result of the defendant testing company’s alleged negligence include: (1) the plaintiff’s loss of time in studying for the exam, including a loss of six weeks of vacation time; (2) loss of promotional opportunity; (3) loss of seniority; (4) loss of time-in-grade for the purposes of his eligibility for future promotional examinations; (5) loss of income; (6) loss of overtime for the position at issue; and (7) the costs and expenses of this action.
II
Standard of Review-Summary Judgment
"Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue, to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ..." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
"[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
"The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012). "Although the issue of causation generally is a question reserved for the trier of fact ... the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).
"The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) McDermott v. State, 316 Conn. 601, 616, 113 A.3d 419 (2015).
"Although [the Supreme Court has] recognized ... that, in complex cases, it may be more difficult to determine in advance of trial whether there exist any disputes regarding material facts, the opinions do not stand for the proposition that summary judgment is inappropriate in complex cases where the absence of disputes regarding material facts can be established. Succinctly stated, as a matter of law, no case is too complex for summary judgment." Gould v. Mellick & Sexton, 263 Conn. 140, 147, 819 A.2d 216 (2003), citing Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 375, 260 A.2d 596 (1969).
III
Discussion and Analysis
Evidentiary Objections
The plaintiff raises evidentiary objections to the affidavits (exhibits), depositions, and/or interrogatories responses, contesting the admissibility of documents submitted by the defendant testing company. The court addresses these objections in turn.
The plaintiff’s first objection is to the submission of the deposition excerpts of the plaintiff arguing that they are contrary to the common-law doctrine of incompleteness. The-defendant testing company counters that the plaintiff misconstrues the completeness doctrine. In support of its argument, the defendant testing company cites Beach Aircraft Corp. v. Rainey, 488 U.S. 153, 172, 109 S.Ct. 439, 102 L.Ed.2d 455 (1998), wherein the court concluded that "the rule of completeness was stated succinctly by Wigmore: [T]he opponent, against whom a party of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance ... The Federal Rules of Evidence have partially codified the doctrine of completeness in Rule 106: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." (Citation omitted; footnote omitted; internal quotation marks omitted.) The plaintiff had the option submitting the remaining deposition testimony excerpts of the plaintiff which he has failed to do. As such, the court finds this objection unpersuasive.
Second, the plaintiff objects to the entry of the "deposition testimony" and "interrogatory responses" into evidence because they are not a judicial admission, they are not conclusive, and cannot be relied upon in the context of summary judgment. The defendant testing company counters that the plaintiff’s argument confuses the distinction between a "judicial admission" and an "evidentiary admission." The defendant testing company cites § 8-3(1) of the Connecticut Code of Evidence and the Superior Court’s decision in Mechanics Savings Bank v. Walker, Superior Court, judicial district of New London, Docket No. CV-91-0500701-S (March 9, 1995, Axelrod, J.) (2 Conn.L.Rptr. 129) for the proposition that while the deposition testimony and discovery responses are not conclusive and may be contradicted by other evidence, that does not mean that they are not admissible as admissions of a party opponent. As such, the court finds this objection unpersuasive.
Third, the plaintiff argues that the affidavit of Roger McMillin is inadmissible because he does not have personal knowledge of the facts, as described in his affidavit, and he did not perform all of the conduct described in the affidavit. The defendant testing company counters that while an affiant who is a corporate officer must have personal knowledge of the facts he attests to, the personal knowledge of the facts he attests to can be established by his control of the company’s business records or familiarity with them citing Schumann v. Sylvester, Superior Court, judicial district of New Britain, Docket No. CV-90-385417-S (May 14, 1991, Corrigan, J.) and Eastham v. Garden State Life Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-05-4011444-S (June 7, 2007, Jones, J.). McMillin’s affidavit states that he is the General Counsel and Vice President for Operations of the defendant testing company, and in that capacity, he maintains control over the business records and is familiar with the information contained therein, which is sufficient to establish his personal knowledge.
Lastly, the plaintiff argues that the affidavits of David Boyette, David Goldman and Gail DeJarnett, speak in the first person, plural (we), not the first person singular (I), and because each affidavit speaks on behalf of all three, not just for themselves, they are inadmissible. Additionally, the plaintiff argues that these affidavits are inadmissible in that they do not contain relevant evidence and do not attest to personal knowledge of facts because they all attest to facts as a group. The defendant testing company counters that Boyette, Goldman and DeJarnett were each assessors that comprised a panel assigned to score the plaintiff in the oral tactical exercise, as stated in exhibit three submitted with the filing. Each affiant attests to actions taken by them together as a panel. The defendant testing company argues that being a member of the panel, each of them has personal knowledge of the facts, and those facts are relevant to the disputes in this case, as they have set forth in their respective affidavits. As far as the relevant evidence is concerned, the defendant testing company cites Jewett v. Jewett, 265 Conn. 669, 679-80, 830 A.2d 193 (2003), which states that "[t]he law defining the relevance of evidence is also well settled. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue ... [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree ... [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible ... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative." (Internal quotation marks omitted.) As such, the court finds this objection unpersuasive.
In light of all of the foregoing, the court finds that the evidentiary objections of the plaintiff, as raised herein, are misplaced and unpersuasive.
The Defendant Testing Company
At the outset, the court notes that it is undisputed that a portion of the video was not preserved. The defendant testing company conceded as much at oral argument. The defendant testing company emphasizes that the basis for summary judgment is that it does not owe a legal duty to the plaintiff. Whether a legal duty is owed as a matter of law is to be decided by the court. See Mozeleski v. Thomas, supra, 76 Conn.App. 290. And it is only after the court decides that there is, in fact, a duty that the trier of fact would go on to determine whether the duty was breached and whether there were damages flowing from the duty. See Sic v. Nunan, supra, 307 Conn. 407. But the initial determination for a claim of negligence is always if a duty is owed. The defendant testing company further argues that the test for the legal duty is several fold and in support of its argument cites Lawrence v. O&G Industries, Inc., 319 Conn. 641, 649-50, 126 A.3d 569 (2015), wherein our Supreme Court stated that "[d]uty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable ... [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.)
As the forgoing case law summarizes, the test for duty consists of two prongs, the foreseeability prong and the public policy prong. The defendant testing company concedes that it is foreseeable that if a testing company such as itself fails to preserve the video portion of a test, an applicant could be harmed by that. The defendant testing company highlights that its motion for summary judgment is based solely on the second prong, the public policy prong. The defendant testing company contends that the question of whether a duty exists requires an analysis of public policy. The defendant testing company argues that the public policy in Connecticut for a long time has been that claims sounding in negligence do not lie when the only damages sought are economic damages, and it again cites Lawrence v. O&G Industries, Inc., supra, 319 Conn. 641, which stands for that proposition.
In Lawrence v. O&G Indus., Inc., supra, 319 Conn. 655-56, our Supreme Court noted "[w]ith respect to the parties’ expectations, we also find instructive DeVillegas v. Quality Roofing, Inc. [Superior Court, judicial district of Bridgeport, Docket No. CV-92-0294190-S (November 30, 1993, Freedman, J.) (10 Conn.L.Rptr. 487) ] ... In DeVillegas, a correction officer sought to recover lost overtime pay and other purely economic damages incurred when a roofing contractor’s negligence caused a fire that damaged the facility where he worked. In striking the officer’s claim against the contractors, the Superior Court reviewed numerous decisions of other jurisdictions and cited, inter alia, Connecticut Mutual Life Ins. Co. v. New York & New Haven Railroad Co., [ 25 Conn. 265, 276-77 (1856)], for the proposition that the long-established common-law rule in this state is that in the absence of privity of contract between the plaintiff and [the] defendant, or of an injury to the plaintiff’s person or property, a plaintiff may not recover in negligence for a purely economic loss. DeVillegas v. Quality Roofing, Inc., supra, at 489. Accordingly, with no allegation to that effect, the Superior Court struck the correction officer’s negligence complaint against the roofing contractor." (Internal quotation marks omitted.)
The defendant testing company highlights and the court agrees that in the light of the long-standing common-law rule in Connecticut that in the absence of the privity of contract between the plaintiff and the defendant, or of an injury to the plaintiff’s person or property, a plaintiff may not recover in negligence for purely an economic loss. See Lawrence v. O&G Indus., Inc., supra, 319 Conn. 655-56.
In considering whether public policy requires the imposition of a duty the court considers the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation: and (4) the decisions of other jurisdictions. See Jaworski v. Kiernan, 241 Conn. 399, 404, 696 A.2d 332 (1997). In the present case, the defendant testing company argues and the court agrees that no duty of care exists from the defendant testing company to city of New Haven employees, and therefore, the plaintiff. The expectations of the participants, according to the existing case law in Connecticut is that the defendant testing company does not owe a duty to a city of New Haven employee, because there is no privity of contract and there is no claimed injury to the plaintiff’s person or property. See Lawrence v. O&G Indus., Inc., supra, 319 Conn. 655-56. The defendant testing company in support of its position cites to an old case, Gregory v. Brooks, 35 Conn. 437, 446 (1868), where our Supreme Court concluded that "[w]here one is injured by the wrongful act of another, and others are indirectly and consequentially injured, but not by reason of any natural or legal relation, the injuries of the latter are too remote to constitute a cause of action."
In the present case, the defendant testing company argues that the plaintiff cannot prove damages and such damages are speculative. The complaint seeks relief, inter alia, that the oral interview be repeated; that the oral interview for all other candidates be repeated; and that the plaintiff be given full credit for the "lost" portion of his videotaped interview. The court agrees that if the plaintiff is afforded the relief he seeks, a promotion and/or taking the test again, it will affect the rights of all other candidates. It can be reasonably and logically inferred that by providing the relief requested by the plaintiff additional litigation will likely arise against the defendant testing company.
The defendant testing company asserts that the plaintiff’s cited case law is not binding and factually not on point. The defendant testing company contends that the cases cited largely involve claims by civil services employees alleging that state/municipal entities responsible for the testing failed to comply with statutory and regulatory provisions. See Metro Sanitory District of Greater Chicago v. Huston, 9 Ill.App.3d 855, 863, 293 N.E.2d 425 (1973) (claims asserted by civil services employee challenging decision of civil service commission), and cases cited therein. As the defendant testing company correctly points out, the failure of the state/municipality to comply with statutory requirements for civil service testing is not the issue in the present case.
The defendant testing company makes the persuasive argument that the plaintiff’s reliance upon cases from other jurisdictions, specifically, the public policy concerns raised by false drug tests are different from the policy concerns raised in the present case. Because drug tests are administered on an individual basis, there is little to no risk of increased litigation. In the present case, the defendant testing company argues that affording a remedy to the plaintiff (including the granting of a promotion or retaking of the test) will increase litigation, as it affects the rights of all other candidates seeking the same promotion. Additionally, because the test is administered individually, an individual employee is more likely to expect that the testing company owes a duty specifically to said individual. The defendant testing company argues that there appears to be no authority in other jurisdictions recognizing a duty by an independent testing facility to a civil employee for alleged negligence in administering a civil service promotion test.
In light of all of the foregoing, the court concludes that the defendant testing company owes no legal duty to the plaintiff as a matter of law.
The City Defendants
The heart of the city defendant’s argument in seeking summary judgment is that Librandi is not liable because of the applicability of the doctrine of governmental immunity. The city defendants also argue that there are no allegations against the city for any wrongdoing. The only way in which a municipality would be held liable for the acts of its employees would be by way of General Statutes § 52-557n which has not been alleged in this case. Also, the city defendants argue that according to the requirements of Practice Book § 10-3, if there is a statutory claim in the complaint "the statute shall be specifically identified" which is not the case here. As far as damages are concerned, the city defendants adopt the position of the defendant testing company, that the plaintiff alleges economic damages, not damages to the person or property. Alternatively, the city defendants argue that liability will attach only if the employee of the municipality was performing a ministerial duty and not a discretionary duty. The city defendants argue that in the present case, there is no evidence presented, testimonial or otherwise from which a ministerial duty could be inferred to Librandi.
Section 52-557n(a)(1) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The 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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ..."
As far as the negligence per se claim is concerned, the city defendants argue that it appears that Librandi is being sued both in his individual and official capacity. In the amended complaint, including in paragraph 5, however, the plaintiff alleges "that all times mentioned herein Steven Librandi has been manager for the human resource for the [c]ity of New Haven." The city defendants argue that it can be logically and reasonably inferred that the amended complaint is directed at Librandi in his official capacity.
Finally, the city defendants argue that the claim of negligence per se brought against Librandi relates to violations of § § 125/8-2 and 125/8-4 of the city charter. These provisions deal with employees acting impartially within the context of their scope as employees. The city defendants claim that there are no allegations in the amended complaint based on Librandi acting in his individual capacity and that the real issue is the loss of video recording which was done by the defendant testing company, not by the city defendants. The city defendants also contend that the second review process is not a city of New Haven process and it is not found in any city policy. Rather, the city defendants contend that is the process of the defendant testing company. The city defendants at oral argument emphasized that the plaintiff in his deposition agreed that the loss of the portion of the video was not the error of the city of New Haven. The city defendants also emphasized that when the plaintiff was offered an opportunity to review the video that was reconstructed by the defendant testing company, he refused to do so. The city defendants also pointed out at oral argument that the plaintiff did not want to go through the second review process and would not sit in the room to watch it before making that decision. The city defendants argue that this goes to the aspect of what the plaintiff’s damages are. Hence, the city defendants argue that it has nothing to do with the second review process.
The plaintiff argues that summary judgment is not appropriate in negligence cases and this case should be resolved at trial. In support of this argument the plaintiff cites Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert denied, 267 Conn. 919, 841 A.2d 1190 (2004), wherein our Supreme Court noted "[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner ... Summary judgment is particularly ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law ..." (Citation omitted; internal quotation marks omitted.)
The city defendants persuasively counter by asserting that Busque is distinguishable from the present case. The city defendants also contend that if they can establish governmental immunity, then the question of whether the standard of care has been met will never be reached. The city defendants argue that it has produced ample evidence that the defendant testing company’s second review process, the city’s service rules, and the city charter do not impose any ministerial duty on them with respect to the examination process. Hence, they are both entitled to immunity and summary judgment as a matter law.
The plaintiff’s claim that § 13(d) of the Civil Service Rules and Regulations limits the city defendant’s discretion as far as the examination process is concerned. This limitation renders their acts as ministerial. Section 13(d) provides in relevant part: "Whenever an examination is developed by a testing agency or consultants, the examination review process shall be subject to and may be limited by the terms and conditions of any applicable agreement between the City and testing agency or consultant."
The city defendants counter that this theory was not pled in the amended complaint and therefore should not considered by the court. The city defendants cite Mccarthy v. St. Vincent’s Med. Ctr., United States District Court, Docket No. 3-05-CV-1696 (WWE) (D.Conn. June 26, 2008), wherein the court dealt with a similar issue "[i]n her opposition papers, plaintiff raises a claim for retaliation in violation of the ADA. Defendant asserts that plaintiff did not plead such a claim and that it is inappropriate to raise new claims in a response to a motion for summary judgment. This Court declines to consider this claim on the motion for summary judgment because plaintiff has not pleaded a retaliation claim in the complaint and has not filed a motion to amend the complaint."
The city defendants assert that even if the court were to consider this argument, there is no allegation whatsoever in the amended complaint identifying any provisions of that contract or, more importantly that Librandi or the city of New Haven breached that contract. Assuming arguendo, that § 13(b) of the Civil Service Rules and Regulations does create a ministerial duty, the plaintiff has not produced any evidence which establishes that such duty was breached. As such, the court agrees with the city defendants.
The plaintiff also argues that even though the defendant testing company is an independent contractor, the city is liable because the examination is a "non-delegable duty" and that "when a specific governmental function is carried out by heavily subsidized private films ... whose freedom of decision-making has, by contract and the reserved governmental power of continuing oversight and been circumscribed substantially more than that generally accorded an independent contractor, the coloration of state action fairly attaches." Henry Knox Sherill Corp. v. Randall, 33 Conn.Supp. 15, 17, 358 A.2d 154 (1975). The plaintiff argues that the city of New Haven is vicariously liable because the defendant testing company carried out the city’s function to administer the examination process when it specifically created the second review process for the city’s services examinations.
The city defendants persuasively counter, as noted above, that the plaintiff has failed to plead agency in his amended complaint. Moreover, General Statues § 7-474(g) deals with collective bargaining and is inapplicable to the facts of this case. The city defendants also argue that the plaintiff’s agency principles are not a sound argument and Henry Knox Sherill Corp. does not stand for the proposition of vicarious liability, rather it stands for the doctrine of state action with respect to a private entity.
The plaintiff also argues that there are further issues of facts that exist that render summary judgment inappropriate in the present case. First, the plaintiff argues that Librandi’s affidavit has created an issue of material fact by stating that his actions were "reasonable and fair." The court finds that the city defendants make a persuasive argument that the question of whether Librandi acted reasonably or not only arises if he had a duty. As discussed above, the city defendants have produced sufficient evidence that Librandi did not owe a duty to the plaintiff.
Second, the plaintiff additionally argues that the city defendants improperly raise and argue a motion to strike his claim of negligence per se. The plaintiff cites Theodore v. Lifeline Systems Co., Superior Court, judicial district of Hartford, Docket No. CV-12-6029978-S (August 19, 2014, Peck, J.), for the proposition that "[t]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Emphasis omitted; internal quotation marks omitted.) The plaintiff argues that the city defendants’ argument attacking his allegations through the use of a motion for summary judgment fail because (1) the pleadings are not closed; (2) the defendants waived the argument by not briefing or discussing the issue that the alleged defect in the plaintiff’s allegations could not be cured by repleading; and (3) the city defendants’ argument is meritless. The city defendants counter and court agrees that they have not waived anything. In the original complaint Librandi was not sued in his individual capacity, but in the amended complaint he is. The city defendants have properly raised this as the ninth special defense in its answer and special defenses (#143.00) to the amended complaint. The city defendant’s argument that there is no genuine issue as to any material fact as to the plaintiff’s claim of negligence per se is proper.
The plaintiff also objects to Librandi’s affidavit, specifically to paragraphs 13, 36, and 37, asserting that they contain conclusions that are not well founded and to paragraphs 17 and 30, asserting that they contain statements that are material facts for a trier to decide. The court’s review shows that paragraph 13 contains a factual description that relies on his personal knowledge of the second review process. In paragraphs 36 and 37, Librandi is rebutting the allegations against him, and thus, the court finds that they are not legal conclusions. Additionally, paragraphs 17 and 30 contain language that the plaintiff admitted in his deposition. The record also supports the city defendant’s position that the plaintiff never responded to Librandi’s March 31, 2017 e-mail and he never requested a second review of the reconstructed video, as described in paragraph 30.
The plaintiff objects to the affidavit of Noelia Marcano because it is unsigned. The plaintiff’s objection to the affidavit of Noelia Marcano is persuasive, but it is admissible in light of the review of the complete record and an email submitted along with it.
The plaintiff’s objection to the partial but not full submission of his own deposition transcripts by the city defendants is also misplaced because a full deposition is unnecessary in the present case. See Teodoro v. Bristol, 184 Conn.App. 363, 381, 195 A.3d 1 (2018) ("[t]here is therefore no requirement that the entire document be attached to make an excerpt admissible in support of a summary judgment motion").
Also, the plaintiff argues that deposition testimony cannot be sole basis for granting the summary judgment. The court finds this argument unpersuasive. The city defendants correctly point out that records supports its position and the court agrees that sufficient documentary evidence in support of their motion for summary judgment including affidavits, authenticated documents, interrogatories, and plaintiff deposition transcripts are submitted.
III
Conclusion
For all of the foregoing reasons, both motions for summary judgment are granted.
It is So Ordered.