Opinion
No. TTD CV07 5001240 S
October 20, 2008
MEMORANDUM OF DECISION
The defendants, Amston Lake Tax District (District) and Reginald Miles, move for summary judgment in this personal injury case filed by the plaintiff, Robert Beaudette. The basis for the motion is that these defendants possess governmental immunity.
Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that no genuine dispute as to material facts exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
At oral argument, the parties acknowledged that the liability of the District hinges on the liability of its employee Miles under an indemnification claim. Consequently, the dispositive issue in this motion is whether qualified, governmental immunity protects Miles from liability for the plaintiff's injuries.
The following facts appear undisputed for purposes of this motion. Miles was an employee of the District in charge of storing and permitting lake-front property owners to borrow a lake mower. A lake mower is a piece of power equipment used to clear the lake of unwanted aquatic weeds. On July 23, 2005, Miles allowed Anita and John Connor, sister and brother-in-law of the plaintiff, to take the lake mower. They attached the mower to their boat and motored to their lakefront property. The next day, July 24, 2005, the plaintiff visited the Connors. While attempting to use the Connor's boat, the plaintiff entered the water and cut himself on the blades of the mower which was still attached to the craft.
The plaintiff alleges that Miles was negligent in giving the mower to the Connors without a blade guard; in failing to warn the Connors of dangers of an unguarded mower blade; in failing to supply the Connors with a user manual for the mower; and in failing to train the Connors in the safe use of the mower.
The court first addresses whether the taxing district is a political subdivision of the state as that phrase is used in General Statutes § 52-557n. The parties all regard the District as equivalent to a municipality for purposes of governmental immunity analysis. The court also adopts this position.
General Statutes § 1-1(m), a general definitions statute, treats taxing districts in the same manner as towns for interpretation of the term "legislative body." Taxing districts have been held to be political subdivisions of the state under other statutory provisions. In State ex rel. Maisano v. Mitchell, 155 Conn. 256 (1967), a taxing district was recognized as a political subdivision of the state for application of the minority party representation law, General Statutes § 9-167, Id., 264. That decision, in turn, relied on the holdings of other cases which had also determined that tax districts were political subdivisions of the state. Id., 263-64. "The term `political subdivision' is broad and comprehensive and denotes any division of the State made . . . for the purpose of carrying out a portion of those functions of the State which by long usage and the inherent necessities of government have always been regarded as public." Id., 263. See also, Stroiney v. Crescent Lake Tax District, 205 Conn. 290 (1987).
Tax districts are specifically authorized and sanctioned by General Statutes § 7-324 et seq. Unquestionably, a lake tax district serves a traditional governmental function. Therefore, the court will analyze the presence or absence of qualified, governmental immunity for Miles in the same way it would for any municipal employee.
Unlike sovereign immunity, governmental immunity fails to implicate subject matter jurisdiction and usually must be affirmatively pleaded. Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24 (1995). These defendants have raised this special defense.
At common law, municipalities possessed governmental immunity generally. Williams v. New Haven, 243 Conn. 763, 766 (2001); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165 (1988). Municipal employees, on the other hand, had no immunity from negligence liability, Purzycki v. Fairfield, 244 Conn. 101, 107 (1998). Around 1920, our Supreme Court afforded qualified, governmental immunity to municipal employees engaged in discretionary, public action. Gordon v. Bridgeport Housing Authority, supra, 166. Later, three exceptions to qualified, employee immunity developed so that liability might be incurred for wanton or intentional misconduct, by virtue of specific statutory provisions, or where imminent harm to identifiable persons was present. Purzycki v. Fairfield, supra.
In the present case, the plaintiff makes no claim that Miles was engaged in a ministerial act in lending the mower to the Connors. It is conceded that no statute, regulation, ordinance, bylaw, code, guideline, or instructive policy was promulgated which dictated to Miles the manner in which he was to act with reference to the lake mower. His conduct was, therefore, the result of the exercise of discretion and judgment. As noted earlier, the common law will cloak Miles with governmental immunity unless one of the three exceptions listed above applies. The only colorable claim of exception involves imminent harm to an identifiable victim or class.
The "imminent harm" aspect of this exception is very restrictive and applies only to risks that are temporary and confined in space. See Purzycki v. Fairfield, supra, 110. "Imminent harm" excludes perils that might occur, if at all, at some unspecified time in the future. Evan v. Andrews, 211 Conn. 501, 508 (1989). In that case, several alleged fire and building code violations proved fatal for five persons. Id., 501. Because the danger posed by the negligent acts was liable to occur at some "unspecified time in the future," there was no imminent harm. Id., 508.
Similarly, our Appellate court held that the negligent failure to secure or supervise a vacant classroom during school hours failed to create "imminent harm." Doe v. Board of Education, 76 Conn.App. 296, 305 (2003). Even though a student was raped in the unguarded classroom, governmental immunity foreclosed liability against municipal employees, Id.
In Sestito v. Groton, 178 Conn. 520 (1979), a police officer lost qualified, governmental immunity because he failed to intervene to stop an ongoing fistfight that resulted in the fatal shooting of one of the disputants. Id., 526.
From such case law, the court gleans a "then and there" characteristic of "imminent harm." One must distinguish between negligent conduct which creates foreseeable and even continual exposure to harm at some unknown future time and place, and "imminent harm." "Imminent harm" is a risk of injury confined to a particular place and of short duration. Purzycki v. Fairfield, supra.
Recently, our Supreme Court has stressed that this exception to immunity also contains an "apparentness" element. Doe v. Peterson, 279 Conn. 697, 619 (2006). A municipal employee has no duty to act to protect even an identifiable victim if the imminent harm was not reasonably apparent to the governmental agent. To overcome qualified, governmental immunity, the plaintiff must establish that he was an identifiable person, subjected to imminent harm by Miles' conduct, despite the apparent likelihood of that harm. Id., 620.
The uncontroverted facts demonstrate that Miles' qualified, governmental immunity remains intact and bars recovery against Miles and the District by the plaintiff.
First, it must be observed that Miles entrusted the mower to the Connors on July 23, 2005, and not to the plaintiff on July 24, 2005. The plaintiff was merely a visitor to a lake property owner's residence. It is very difficult to see that he was an identifiable victim or a member of a specific and limited class of victims relative to the act of giving the mower to the Connors. See Shore v. Stonington, 187 Conn. 147, 152 (1982).
Second, the possibility of harm to the plaintiff was not "imminent" when Miles lent the mower to the Connors the day before the accident. The plaintiff's claim lacks the "then and there" quality necessary to establish imminency.
Finally, it is difficult to apprehend how the danger to the plaintiff using his sister's boat with the mower still attached was reasonably apparent to Miles who was not present and whose last contact with the mower was at some other location on the day before the injury.
Because qualified, governmental immunity protects Miles, and derivately the District, from liability, the motion for summary judgment is granted in favor of these defendants.