Opinion
No. CV 07 50136020 S
March 30, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #126
This is a motion for summary judgment filed by the defendant Town of Cheshire.
FACTS
On August 24, 2008, the plaintiffs, William and Lisa Baker, commenced this action by service of process on the defendants, the Town of Cheshire ("Cheshire") and John and Debra Lanzl. "The plaintiffs brought this action after a sinkhole that developed on their Cheshire property allegedly caused damage. The plaintiffs filed a nine-count complaint. In counts one through four, the plaintiffs allege claims against [Cheshire] for negligence, nuisance, failure to inspect in reckless disregard for public safety and violations of the Connecticut Unfair Trade Practices Act (CUTPA), respectively. In counts five and six, the plaintiffs seek injunctive relief and to bring a class action against [Cheshire]. In counts seven though nine, the plaintiffs bring claims against John and Debra Lanzls, the previous property owners, for negligent misrepresentation, intentional and/or reckless misrepresentation and violations of CUTPA, respectively." Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 07 5013602S (July 11, 2008, Robinson, J.).
The court, Robinson, J., has previously documented the facts of this case: "In their complaint, the plaintiffs allege that on August 25, 2005, they purchased from the Lanzls a parcel of land with a residence in Cheshire known as 395 Sheridan Drive (`the Property'); and that on October 15, 2005, a sinkhole developed in the yard of the Property. The sinkhole was allegedly caused by a barite mine shaft or adit that exists underneath the surface of the Property.
"The plaintiffs further allege that [Cheshire] commissioned an expert investigation of the existence of subsurface mine shafts and adits in various parts of Cheshire. The plaintiffs claim that the report, prepared in 1993, disclosed the existence of the main shaft of a mine approximately 500 feet from the Property, as well as the likelihood that a mine adit traversed beneath the Property and residence. The plaintiffs also claim that the report also disclosed a series of sinkholes that had formed above the adit in the vicinity of the Property.
"The complaint alleges that [Cheshire] did not put a notice of the contents of the report in the Town Clerk's Office or otherwise provide notice to potential buyers and the general public of the mines and any associated risks; and that [Cheshire] allowed development of property in the areas affected by the mines.
"The plaintiffs claim that they have expended money to repair the sinkhole and otherwise render the Property safe, and have been damaged by a diminution in value of the Property. The plaintiffs also claim that they have and will continue to suffer emotional distress." Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 07 5013602S (April 24, 2008, Robinson, J.) (45 Conn. L. Rptr. 452).
"On April 24, 2008, [the court, Robinson, J., granted Cheshire's] motion to strike counts two, three and four, and the Lanzls' motion to strike as to count nine . . . On June 2, 2008, the court, Bellis, J., granted the defendants' motions for judgment as to these counts. Still pending and unresolved are all the remaining counts, consisting of the plaintiffs' claim against [Cheshire] for negligence, their request for injunctive relief and their assertion of a class action against the town, as well as their claims against the Lanzls for negligent and intentional misrepresentation." (Citation omitted.) Baker v. Cheshire, supra, Superior Court, Docket No. CV 07 5013602S.
On August 4, 2008, Cheshire filed a motion for summary judgment on the ground that "the plaintiffs cannot prove a basic element of negligence — duty" and that furthermore, the action is time barred by the statute of limitations. On November 17, 2008, the plaintiffs filed a memorandum in opposition to the motion for summary judgment in which they argue that "there are at least three factual issues that must be decided by a jury to determine whether there was a duty or not — the fact issues of foreseeability, control, and whether the `imminent harm' exception to governmental immunity applies." On December 10, 2008, Cheshire filed a reply memorandum and on December 15, 2008, the plaintiffs supplied the court with a supplemental brief. The matter was heard at short calendar on December 15, 2008.
DISCUSSION CT Page 5937
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." Practice Book § 17-49. "[I]n 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 material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"A material fact is a fact that will make a difference in the outcome of the case." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 294, 830 A.2d 346 (2003). "Once the moving party has met its burden . . . 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 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). The defendant first moves for summary judgment on the ground that, as a matter of law, Cheshire owed no duty of care to the plaintiffs. Furthermore, Cheshire contends that it is immune from this cause of action and that the plaintiffs' claim is additionally time barred pursuant to the applicable statute of limitations. In their memorandum in opposition, the plaintiffs counter that there are genuine issues of material fact in this case regarding the existence of Cheshire's duty of care, as well as the availability of the imminent harm exception to municipal immunity. Finally, the plaintiffs contend that the continuing course of conduct doctrine tolls the statute of limitations in this case.
Cheshire also claims that the plaintiffs' "claims do not fit within the exception for imminent harm to an identifiable person because this lawsuit is only against [Cheshire] and not against any of its individual employees or officials." The court acknowledges that there was once confusion in Connecticut regarding this issue, but since Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006), this ambiguity has essentially been resolved. See Seri v. Newton, 573 F.Sup.2d 661, 673 (D.Conn. 2008) ("[s]ince the Petersen decision, the prevailing opinion of the lower courts in Connecticut appears to be in favor of applying the identifiable victim/imminent harm exception to municipal immunity, too"). The court, therefore, finds that the imminent harm exception to governmental immunity is applicable to Cheshire directly, without a lawsuit against any of its individual employees or officials.
We began our discussion by acknowledging that in Connecticut, it is overwhelmingly accepted that "[t]he 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.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998); Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008). Generally, it has been said that "[t]he 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 which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Allen v. Cox, supra, 285 Conn. 610, quoting Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997). In cases that implicate municipal immunity, however, the Supreme Court has articulated a different standard. When a municipality is a named defendant, the existence of a duty of care and the availability of an exception to municipal immunity are synonymous issues. Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006) ("[t]he issue of governmental immunity is simply a question of the existence of a duty of care, and `this court has approved the practice of deciding the issue of governmental immunity as a matter of law'"); Burns v. Board of Education, 228 Conn. 640, 646-47, 638 A.2d 1 (1994). Although both parties address these issues as separate in their respective memorandums, the court recognizes that if it holds that Cheshire is entitled to municipal immunity, it will effectively be finding that Cheshire owed no duty of care to the plaintiffs.
"General Statutes § 52-557n abandons the common law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties . . . General Statutes § 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the 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.
"Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts . . .
"[The Supreme Court has] identified three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, 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 . . ." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 614-16. "(The Supreme Court has] construed the last exception to apply not only to identifiable individuals but also to narrowly defined identifiable classes of foreseeable victims." (Citations omitted; internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 100, 931 A.2d 859 (2007).
In the present case, the plaintiff conceded in his memorandum in opposition that the defendant's actions were discretionary in nature, but later withdrew this concession during oral argument. At short calendar on December 15, 2008, the plaintiffs' counsel suggested that whether the defendant's actions were discretionary should be determined by the jury and that specific correspondence dated June 18, 1992 between a deputy state historic preservation officer and the environmental planner of Cheshire evidences a ministerial act. Upon examination however, this evidence contains no language that prescribes a specific course of conduct without the exercise of judgment or discretion. Case law makes clear that without evidence of a specific directive describing the manner in which a defendant is to act, a jury cannot conclude that conduct is ministerial. Violano v. Fernandez, 280 Conn. 310, 323-24, 907 A.2d 1188 (2006); Colon v. New Haven, 60 Conn.App. 178, 182-83, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) (finding that a teacher's method of opening a door at school was discretionary because there was no directive describing the manner in which the teacher was to open the door). As a matter of law, therefore, neither this correspondence, nor any of the other evidence submitted by the plaintiffs, establish a ministerial act because there is no directive. Thus, for Cheshire to have a duty of care in this case, the evidence must support one of the three previously identified exceptions to municipal immunity for discretionary acts.
In correspondence dated June 18, 1992, Dawn Maddox, a duty state historic preservation officer advised James Sipperly, the environmental planner of Cheshire, that "[t]he SHPO concurs with the consensus reached by the onsite participants that the existing condition of the Peck barite mine poses potential health and safety hazards and that remedial action is required in order to facilitate the proposed 24-lot subdivision."
The court need not address the issue of whether such a person has the power to impose a ministerial act upon a municipality and, if so, whether this correspondence effectively invokes this power. This is because, even if the answer to both issues was "yes," the language used in this correspondence fails to prescribe a course of conduct befitting a ministerial act.
In his memorandum in opposition, the plaintiff identifies the imminent harm exception as "the one that applies in this case." The court's inquiry, therefore, must focus on the requirements to qualify for this exception as annunciated by the Supreme Court.
"Discretionary act immunity is abrogated 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 By its own terms, this test 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." (Citation omitted; internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 616. Furthermore, the Supreme Court has provided that "the core requirements of the imminent harm exception are analyzed conjunctively. To prevail, the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her. Demonstration of less than all of these criteria is insufficient." (Emphasis in original; internal quotation marks omitted.) Id., 620. A trial court's finding that any one of these three prongs is not satisfied, therefore, is a sufficient ground to grant a municipality's motion for summary judgment. Id.
In Doe v. Petersen, supra, 279 Conn. 618 n. 10, the Supreme Court noted that when analyzing the imminency of a physical risk of harm, certain helpful criteria have been identified in precedent. "A number of [Supreme Court] decisions . . . have utilized criteria including the duration, geographic scope, significance and foreseeability of the risk of harm to gauge whether that risk correctly may be considered imminent." Id. The court also acknowledged that the trial court had alternatively summarized this standard, finding "that the imminent harm exception only applies to temporary hazardous condition[s], confined to a limited temporal and geographical zone." (Internal quotation marks omitted.) Id. Finally, it has also been said that imminent harm is "harm ready to take place within the immediate future." Tryson v. North Branford, 58 Conn.App. 702, 712, 755 A.2d 317 (2000). The Supreme Court has warned, however, that while these criteria are helpful to determine the existence of immanency given a particular type of harm, courts may not use them to replace the core requirements of the imminent harm exception. Doe v. Petersen, supra, 279 Conn. 618 n. 10. The court, therefore, will examine the cases where the aforementioned criteria proved helpful to aid it in determining what relevance, if any, they have under the facts of this case.
In Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979), one of the earliest Supreme Court opinions containing a discussion relevant to the imminent harm exception, an on duty police officer observed several men in a parking lot outside of a restaurant. Two of the men were seen arguing, shoving and punching, but the officer did not intervene. Shortly thereafter, the officer heard gun shots and one of the men was killed. The Supreme Court held that, as a matter of law, based on this version of the facts, a jury could have found that the police officer breached his duty of care.
The facts of Sestito are often contrasted with those of Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), as an early illustration of the imminent harm exception. In Shore, a police officer stopped a speeding automobile after he observed it cross the center line of a highway multiple times. After a brief questioning and despite evidence of the driver's intoxication, the officer failed to arrest the driver. Later that night, the driver struck another vehicle and its operator was killed. Under these facts, the Supreme Court upheld the trial court's conclusion that the officer owed no specific duty to the deceased. Although neither opinion directly discussed the imminence of harm, in subsequent decisions, these cases have been interpreted as holding that the imminent harm exception applied or did not apply, respectively. See Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989).
In Evon v. Andrews, supra, 211 Conn. 502, the plaintiff's decedents were killed by a fire in their rental home. One of the counts of the complaint "alleged that the city and its officers had been negligent in failing properly to enforce various statutes, regulations and codes concerning the maintenance of rental dwellings." Id., 502-03. The Supreme Court held that the plaintiff was not an identifiable person and that "the plaintiff's decedents were not subject to imminent harm." Id., 508. Specifically, the court reasoned that, "[t]his is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot . . . The present allegations do not even rise to the level of the imminence [that the Supreme Court rejected when] a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiff's decedent. In the present instance, the fire could have occurred at any future time or not at all." (Citations omitted; internal quotation marks omitted.) Id.
The Supreme Court revisited the question of imminent harm again in Burns v. Board of Education, supra, 228 Conn. 640. In that case, a school child brought an action for negligence against a municipality after he slipped on a patch of ice in a school courtyard during regular schooling hours. Distinguishing this case from Evon, the Supreme Court provided that, "[u]nlike the incident in [that case,] . . . this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly treacherous area of the campus. Further, the potential for harm from a fall on ice was significant and foreseeable." (Citation omitted; internal quotation marks omitted.) Burns v. Board of Education, supra, 928 Conn. 650.
Four years later, in Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), the Supreme Court clarified that a harm can be imminent even if it could happen sometime in the infinite future, so long as it is restricted to a limited reoccurring time period. In Purzycki, a school child was tripped by a classmate in a hallway while getting his belongings from his locker. During trial, "the plaintiffs produced evidence that the principal knew, based upon his knowledge of the relatively minor degree of judgment and experience of young schoolchildren, that they repeatedly violated the rules and that they will engage in horseplay when left unsupervised. The plaintiffs also produced evidence that the students were supervised at all other aspects of lunch and recess, except when traveling in that hallway from the all-purpose room to the playground, and that the dismissal of children from the lunchroom was random in that they were given the discretion to leave on their own or in groups." Id., 113-14.
The majority reasoned that, "[u]nder the facts of the present case, we conclude that this case is more analogous to Burns than it is to Evon. In Burns, it was critical to our conclusion that governmental immunity was not a defense that the danger was limited to the duration of the temporary . . . condition . . . [and that] the potential for harm . . . was significant and foreseeable. . . . Similarly, the present case involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision. Finally, the risk of harm was significant and foreseeable, as shown by the principal's testimony." (Citation omitted; internal quotation marks omitted.) Id., 109-10. In addition, the court distinguished the facts of Purzycki from Evon by providing that, "the imminent harm was limited to a one-half hour period each day when the second grade students were dismissed to traverse an unsupervised hallway, when school administrators were aware that unsupervised children are more likely to run and engage in horseplay leading to injuries. Therefore, because the school administrators here had reason to foresee the danger that could occur on a daily basis, the harm in the present case was not as remote a possibility as was the harm in Evon." Id., 111.
Although none of the aforementioned opinions involve a municipality's duty to warn perspective home buyers or the issuance of building permits, trial court decisions have discussed this line of cases and applied them to similar factual circumstances to the one on hand. It has been said that a municipality is immune for its decision to approve the development and construction of a subdivision in a manner that caused excessive surface water runoff onto a neighboring property. Bruno v. BBC Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 00716343 (May 22, 2002, Lager, J.) ("[t]he condition of storm surface water is not limited in duration or geographical scope. The harms alleged, such as erosion and pollution, are ones that can occur at any time or not at all, depending on the weather conditions, and are also harms against which Bruno can protect himself"). Similarly, an alleged negligent or reckless approval of a building foundation did not qualify for the imminent harm exception because harm was not likely to occur immediately and could even occur at a time when the plaintiffs no longer owned the house. Lewis v. Cox, Superior Court, judicial district of Middlesex, Docket No. CV 95 0075021S (September 30, 1997, Hodgson, J.) ("[i]n this case, any negligent or reckless failure to make the conclusions the plaintiff claims were warranted 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"). Finally, a municipality's failure to warn the purchasers of a house that the house was previously damaged in a fire and negligently repaired did not qualify as an immanent harm. Young v. Smalley Construction, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4004943S (November 19, 2008, Fischer, J.) ("[t]his type of non-concrete, perspective, future harm has been removed from the purview of the exception . . . 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").
Considering then the abundance of case law, the court finds it difficult to accept the plaintiff's claim in his memorandum in opposition that "[t]here is evidence from which a jury could reasonably conclude that the `imminent harm' exception applies here." The mines were built over one hundred years ago, certificates of occupancy were issued nearly forty years ago, and since that time, several sinkholes have randomly occurred. These sinkholes vary in size and in location. Although the study in the early nineties could support a finding that the harm was significant and foreseeable by a jury, the imminent harm case law makes it clear that more is required to qualify for this exception. Precedent indicates that both temporal and geographic limitations are necessary to establish an imminent harm. The facts of this case suggest no such limitations, the danger was not a temporary condition. Nor was the harm ready to take place within the immediate future, twelve years elapsed between the report and the formation of the sinkhole on the Property.
The evidence demonstrates that the sinkholes could occur at any time at virtually any location or not at all. This case, therefore, is more analogous to the fire in Evon than the ice patch in Burns or the unsupervised hallway in Purzycki. To find that the formation of sinkholes qualifies as an imminent harm would be to replace the word imminent with foreseeable. Such an expansion would violate the narrowing and limited spirit behind the exception. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988) ("an official can be liable only if the act complained of is a ministerial act or one of the narrow exceptions to discretionary acts applies"); Evon v. Andrews, supra, 211 Conn. 501, 507 ("[t]he `discrete person/imminent harm' exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state"). [Although it is easy to sympathize with the plaintiffs' loss, the court must follow what the law clearly dictates.]
CONCLUSION
For the aforementioned reasons, the court finds that the imminent harm exception to governmental immunity is not available to the plaintiffs given these facts. As a result, the court need not reach the additional issue raised by the parties regarding the applicable statute of limitations. Accordingly, the defendant's motion for summary judgment is granted.