Opinion
No. CV 05 5000054.
November 30, 2006.
MEMORANDUM OF DECISION
In this action, the plaintiff alleges that she suffered injury while accompanying her seven-year-old stepson to football practice and tripped over a steel cable that extended into a pathway leading to and from a football field allegedly "owned, operated, controlled and maintained" by the defendant. Revised Complaint, ¶ 3. Specifically, the plaintiff alleges that the defendant's construction of the guardrail and steel cables at the pathway to the football field was inherently dangerous, and that the defendant failed to provide adequate lighting, designate a safe pathway, warn pedestrians of the condition, and/or remedy the condition.
The first and second counts of the revised complaint allege negligence and nuisance, respectively. By way of special defenses, the defendant asserts that it is immune from liability under the theory of governmental immunity and that the plaintiff's injuries were caused by her own negligence. The defendant moves for summary judgment on the first count on the ground that the plaintiff's claim of negligence is barred by governmental immunity.
"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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"[A] municipality itself was generally immune from liability for its tortious acts at common law . . ." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). "The state legislature, however, possesses the authority to abrogate any governmental immunity by statute . . ." (Internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). "Statutes that abrogate or modify governmental immunity are to be strictly construed." Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988).
"The legislature . . . has set forth general principles of municipal liability and immunity in General Statutes § 52-557n." Williams v. New Haven, 243 Conn. 763, 767, 700 A.2d 1251 (1998). Section 52-557n(a)(1) provides: "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 . . ." General Statutes § 52-557n. "The section . . . exclude[s] liability for acts or omissions of any employee or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct and negligent acts that involve the exercise of judgment or discretion." (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).
In support of its motion for summary judgment, the defendant claims that it has no pecuniary interest in the football program, and that since acts or omissions alleged by plaintiff are discretionary in nature, it is immune from liability unless the plaintiff can establish one of the exceptions to governmental immunity. The defendant further argues that none of the exceptions apply because the plaintiff was not an identifiable victim subject to imminent harm because she was neither required to be at the field as a participant in the practice or otherwise compelled to be there.
Although the revised complaint contains an allegation that the defendant charged money, received a pecuniary benefit and derived a profit, implicating § 52-557n(a)(1)(B), the defendant submitted the affidavit of Thomas Ainsworth, the director of recreation, attesting that the town does not run the football program, nor does it charge any money or derive any profit therefrom. Since the plaintiff has not submitted any evidence to dispute this fact, the court does not address it.
In response, the plaintiff asserts that the issue of imminent harm is a factual issue for the jury. She argues that the imminent harm/foreseeable victim exception applies where there is a limited duration, place and time. To support her argument, the plaintiff submits that: (1) the pathway where the accident occurred leads only to the particular field where the practice was located; (2) the path was not used by the public at large; and (3) she was part of the foreseeable group of persons expected to use the field.
The plaintiff submits photographs of the location, an affidavit by her husband stating that the guardrail was constructed after 1982, and an excerpt from her deposition transcript stating that the pathway was used by all parents and participants of the program between 6:00 and 8:00 p.m. daily.
In order to overcome the defendant's claim of governmental immunity as to count one, the plaintiff must demonstrate that the acts or omissions of the defendant did not involve discretion, or alternatively one of the three exceptions apply. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "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, supra, 275 Conn. 48-49. Where the plaintiff, in opposing a summary judgment motion, fails to present evidence of the existence of a policy or directive requiring the defendant to perform certain duties, the defendant's decision to perform the duties is discretionary as a matter of law. Id., 50-51.
In the present case, the plaintiff alleges that her injuries were caused by the defendant in that it designed, constructed and/or erected the cable guardrail in an inherently dangerous manner, failed to provide adequate lighting, designate a safe route to the football field, warn pedestrians, and/or remedy the condition(s). Since plaintiff has not presented any evidence, nor even alleged, that there was a policy or directive in place requiring the defendant to perform these duties, the court finds that the acts or omissions alleged in the complaint are discretionary as a matter of law.
"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." (Internal quotation marks omitted.) Id., 49 n. 7. The only exception arguably relevant to the present case is the identifiable person/imminent harm exception. "[T]he core requirements of [this] 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.) Doe v. Petersen, 279 Conn. 607, 620, 903 A.2d 191 (2006). "[T]he issue of governmental immunity is simply a question of the existence of a duty of care, which is a question of law. 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." (Emphasis in original; internal quotation marks omitted.) Id., 621.
The court must first determine whether the plaintiff is an identifiable victim or a member of a "narrowly defined" identifiable class of "foreseeable victims." Id., 618. "Thus far, the only identifiable class of foreseeable victims that [the Supreme Court has] recognized for these purposes is that of schoolchildren attending public schools during school hours." Prescott v. Meriden, 273 Conn. 759, 764, 873 A.2d 175 (2005); see also Durrant v. Board of Education, 96 Conn.App. 456, 466-67, 900 A.2d 608, cert. granted, 280 Conn. 915 (2006). "In delineating the scope of a foreseeable class of victims exception to governmental immunity our courts [consider] numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the . . . victim." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 573, 839 A.2d 1259 (2004).
The Supreme Court has held that a student who slipped and fell on a patch of ice on school grounds was a foreseeable victim because, "school children attending public schools during school hours are intended to be the beneficiaries of certain duties of care." Burns v. Board of Education, 228 Conn. 640, 648, 638 A.2d 1 (1994). The court reasoned that the student was "statutorily compelled to attend school" and was not there voluntarily. Id., 649; see also Purzycki v. Fairfield, 244 Conn. 101, 109, 708 A.2d 937 (1998). The court emphasized that the "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." Burns v. Board of Education, supra, 228 Conn. 650.
The Supreme Court, however, refused to find that a father, injured in the bleachers of his son's high school football game, was a foreseeable victim. Prescott v. Meriden, supra, 273 Conn. 764-65. The court reasoned first that the father's "presence at the game was purely voluntary. He was not compelled to attend by any statute, regulation or other legal command. In this respect, he was no different from any of the other spectators . . . Second, the plaintiff was entitled to no special consideration of care from the school officials because of his status as a parent. Thus, he was unlike the schoolchildren in both Burns and Purzycki. Third, [the court has] characterized the classes of foreseeable victims as narrowly defined . . . Recognizing the plaintiff as establishing a cognizable class of foreseeable victims, namely, parents of students on the team, would be contrary to this characterization, especially given the close resemblance of the plaintiff as spectator to all of the other members of the public similarly situated. Moreover, to do so would mean that all spectators at a public municipal event would constitute a class of foreseeable victims for these purposes, thus making the exception so broad that it would threaten to swallow the rule." (Citation omitted; internal quotation marks omitted.) Id.; see also Hetrick v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 03 0823772 (June 28, 2006, Scholl, J.) (parent attending child's graduation not foreseeable victim because duty not to plaintiff, but rather to all members of public).
Recently, however, the Appellate Court found that a parent who slipped in a puddle while picking up her child from an after-school day care program was a foreseeable victim. Durrant v. Board of Education, supra, 96 Conn.App. 471-72. The court found that "the presence of the plaintiff at the school was not purely voluntary. She was there to escort her six year old child out of the school building safely because parents have a common-law duty to protect their children . . . The plaintiff's presence at the school to ensure the safe departure of her child was reasonably to be anticipated . . . She was not on the premises along with other parents and members of the public to watch a sporting event, but to escort her child out of the building safely . . ." (Citation omitted.) Id., 469. The court held that the "harm that may come to a six year old child in an urban setting if permitted to leave a school building, unattended, after a school program . . . is reasonably foreseeable." Id., 472. The court was further influenced by General Statutes § 17b-737, which "allows grants to municipalities and boards of education to encourage the use of school facilities for the provision of child day care services before and after school." (Internal quotation marks omitted.) Durrant v. Board of Education, supra, 96 Conn.App. 470.
The plaintiff contends that because her stepchild was of such a young age, it was necessary for her to accompany him. While the court in Durrant was willing to distinguish Prescott and hold that the parent was not among other spectators present to watch a sporting event, but rather was there to escort her child out of the building, the law remains unsettled because the Supreme Court has granted certification on the issue of whether or not "plaintiff was a member of an identifiable class of persons subject to imminent harm."
The defendants' petition for certification for appeal from the Appellate Court, 96 Conn.App. 456 (AC 26437), was granted, limited to the following issue: "Did the Appellate Court properly conclude that the plaintiff was a member of an identifiable class of persons subject to imminent harm?" Durrant v. Board of Education, supra, 280 Conn. 915. The difficulty with the court's decision in Durrant was addressed by Judge Schaller, in his dissent. "[A]t first blush, it may seem compelling to adopt a policy that allows this plaintiff to recover damages for her alleged injuries. When the purpose for doing so is put in terms of avoiding the harm that may come to a six year old child in an urban setting if permitted to leave a school building unattended after a school program, the action seems even more persuasive . . . It is difficult, however . . . to envision such a policy being rationally limited to situations arising in urban settings. If such a policy were to be adopted, it would likely involve expanding the exception to immunity, not only to virtually all schoolchildren — in urban and nonurban settings alike — attending all extracurricular programs, but also to individuals other than parents on school premises for designated purposes. Truly, the exception would threaten to swallow the rule." (Internal quotation marks omitted.) Durrant v. Board of Education, supra, 96 Conn.App. 487 (Schaller, J., dissenting).
Nevertheless, even if Durrant is upheld, it is distinguishable from the present case. The Appellate Court in Durrant was influenced by a statute encouraging schools to provide day care services for children. Durrant v. Board of Education, supra, 96 Conn.App. 470. General Statutes § 17b-737 is designed to provide social services to Connecticut citizens. No such statute is implicated in this case. Extracurricular activities provided by organizations not associated with the school are not equivalent to state-sponsored day care. There is a strong public policy for social services such as day care, as evidenced by § 17b-737. Extracurricular activities do not garner such support. Thus a parent picking up a child from a state-sponsored day care program is not similarly situated to a parent attending an extracurricular football practice.
This case is also distinguishable from Durrant in that the Appellate Court only slightly broadened the exception in the context of the urban city of Hartford. The incident here occurred on the football fields in Tolland, a more rural area situated twenty miles northeast of the city of Hartford. The dangers feared by the Appellate Court in Durrant are not so apparent in the town of Tolland.
Based on the foregoing cases, the court finds that the plaintiff herein was not a foreseeable victim. She was not a schoolchild or a participant in the football program, and thus she was not the intended beneficiary of the duty of care. It is unlikely that her stepson would even have been the intended beneficiary as his presence at the field was not compelled by statute, but rather was completely voluntary. If a duty cannot be extended to the plaintiff's stepson, certainly it cannot be extended to her. The plaintiff's situation is similar to that of the plaintiff in Prescott where the Supreme Court held that a parent, voluntarily attending his son's football game, was not owed a special duty of care.
Although the plaintiff argues that the pathway she took was used only by persons seeking access to the football field and that the low lying steel cable stretching across it subjected users to "the imminent harm presented by the serious tripping hazard," this argument is fallacious. The plaintiff was no more identifiable than any member of the general public seeking to access the football field for any reason at any time and the "low lying cable" was continuously present.
Further, the plaintiff was not subject to imminent harm. " ' Imminent' is defined as something about to materialize of a dangerous nature." Durrant v. Board of Education, supra, 96 Conn.App. 468. "Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future. Lyon v. Andrews, [ 211 Conn. 501, 508, 559 A.2d 1131 (1989)]. In order to meet the imminent harm prong of this exception . . . the risk must be temporary and of short duration. Purzycki v. Fairfield, supra, [244 Conn.] 110." (Internal quotation marks omitted.) Eberle v. Coventry, Superior Court, judicial district of Tolland, Docket No. CV 02 0078407 (July 21, 2003, Sferrazza, J.) Such conditions that have been identified as "imminent" include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door. See Purzycki v. Fairfield, supra, 244 Conn. 111; Burns v. Board of Education, supra, 228 Conn. 650; Colon v. New Haven, 60 Conn.App. 178, 187, 758 A.2d 900 cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). By contrast, the potential risk of a fire is not imminent, because a "fire could have occurred at any future time or not at all." Lyon v. Andrews, supra, 211 Conn. 508; see also Violano v. Fernandez, 280 Conn. 310 (2006) (risk of theft not imminent); Eberle v. Coventry, supra, Superior Court, Docket No. CV 02 0078407 (no imminent harm where lockers fell on student because lockers installed months prior implicating design defect not temporary occurrence). "[T]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Emphasis added; internal quotation marks omitted.) Purzycki v. Fairfield, supra, 244 Conn. 124.
In the present case, the harmful condition was a stationary guardrail present on public property. The condition was continuous and permanent. There was no harm about to materialize at a specified period of time. A person could have tripped over the steel cables at "any future time or not at all." The alleged dangerous condition is more alike a design defect in the construction than a temporary condition of short duration. A design defect does not produce the type of imminent risk intended by the Supreme Court to abrogate governmental immunity. Eberle v. Coventry, supra, Superior Court, Docket No. CV 02 0078407. To find otherwise would broaden the scope of this narrow exception in conflict with public policy.
CONCLUSION
For all of the foregoing reasons, the plaintiff does not fit within any of the narrow exceptions to governmental immunity. The defendant's motion for summary judgment as to count one of the revised complaint is hereby granted.