Opinion
FSTCV166028449S
02-13-2018
Todd COLLINS v. TOWN OF GREENWICH
UNPUBLISHED OPINION
OPINION
POVODATOR, J.
Nature of the Proceeding
This is a personal injury case in which the named plaintiff sustained serious injuries as a result of a tree falling on him. The plaintiff claims that the town of Greenwich is responsible, based generally on the failure of the town to properly address a known hazard (and related claims). Currently before the court is the motion for summary judgment filed by the town, claiming that governmental immunity as set forth in General Statutes § 52-557n entitles the defendant to judgment in its favor, as a matter of law. The plaintiff claims that there are exceptions to immunity that are applicable in this case.
In terms of nomenclature, the court recognizes that certain family members of the plaintiff have asserted derivative claims; as all such claims are dependent upon the viability of the named plaintiff’s claims, for simplicity, the court refer to the plaintiff in the singular, with the understanding that any fatal flaw would be applicable to those derivative claims as well. Similarly, the town has been sued based on the conduct (or inaction) of the tree warden, including the deputy tree warden. Therefore, references to the tree warden will include conduct of the deputy tree warden, and references to the town will encompass the conduct of either or both of those officials.
Before getting into the facts and legal principles that are applicable, the court must note a somewhat unusual circumstance. In recent years, the Connecticut Supreme Court repeatedly has been called upon to provide direction to trial courts with respect to proper application of General Statutes § 52-557n, the statutory codification of governmental (municipal) immunity. In the last five years (since January 2013), there have been approximately 15 such Supreme Court decisions, six of which were decided in the approximate six months leading up to this decision (August 2017 to the present). Of note, on December 26, 2017, the Supreme Court officially released its decision in Williams v. Housing Authority of the City of Bridgeport, 327 Conn. 338, 174 A.3d 137 (2017). What makes that decision especially notable is that the parties, in presenting their respective arguments to the court on the pending motion for summary judgment, relied upon the Appellate Court decision in that same case, 159 Conn.App. 679 (2015), which had reversed the trial court decision granting summary judgment in favor of the municipal defendants. The Supreme Court decision overruled (rejected) portions of the Appellate Court analysis, and then proceeded to clarify proper application of the statutory language that is applicable in this case (§ 52-557n(b)(8) ). Neither side has requested an opportunity to submit additional arguments by way of a brief or oral argument relating to the possible/probable ramifications of the Supreme Court decision, but to the extent that the parties relied upon that earlier Appellate Court decision, the court must attempt to reconcile the arguments of the parties with the latest pronouncements of the court.
Facts
Although adjectives, qualifiers, and various limitations are very much in dispute, the actual events and timeline of events is essentially undisputed. (The court, of course, must give the plaintiffs the benefit of all reasonable favorable inferences, a proposition that, as discussed below, does not appear to have been given appropriate consideration by the defendant.)
Prior to 2010, the town approved modifications to the driveway at 44 Benjamin Street, resulting in the creation of a U-shaped semicircular driveway with a large (mature) red maple tree located in what amounted to an island, in turn along the public road. This modification was done with the approval of town officials. (All references to " the tree" are intended to be references to this particular tree.)
As determined/confirmed later, the tree was within the public right-of-way, and therefore subject to control by the town through its tree warden, pursuant to General Statutes § 23-59. By virtue of that statute, the town, through the tree warden, was responsible for the care and control of the tree.
On or about May 3, 2010, the abutting property owner contacted the Town of Greenwich Tree Department to report that the tree was " dying" and expressing his concern that the tree " will become a hazard soon." No documented action was taken by the town with respect to following up on this complaint. More than two years later, on or about September 28, 2012, the abutting property owner again contacted the Town of Greenwich Tree Department to report that the tree was " half dead" and that he had been told by an arborist that the tree should be inspected by the Town of Greenwich.
There was documentation that the work order was closed out in 2013, with some question as to whether the person identified as closing it out was authorized to do so.
In response to this second complaint, on or about October 16, 2012, the tree warden went to the scene to inspect the tree and initially there was uncertainty as to whether the tree was one for which the town bore responsibility for care and control (colloquially, was it a town tree). Within approximately a week, the town confirmed that the tree was one for which the town was responsible; on or about October 22, 2012, the tree warden concluded that the tree was a town tree under the care and control of the Town of Greenwich, and then designated the tree for removal. The associated work order did not indicate that some activity less than removal of the tree might be sufficient or necessary, indicating that removal and not pruning was deemed the appropriate remedial action. Additionally, the work order contained an option (box) to indicate that " [t]here is no high priority tree work needed at this time," which box was not checked. Consistent with the provisions of § 23-59, a notice was posted concerning removal of the tree, providing the required 10-day (minimum) notice required by the statute for any tree removal within the scope of the statute.
The statute requires that any objection to removal be provided in writing, which would trigger the obligation of town officials to conduct a public hearing, in turn triggering a right of appeal. The town only received an oral objection from the abutting property owner, and based on that oral objection, without any public hearing or other formality, consideration of removal was abandoned, and the decision to remove (or possibly remove) the tree was effectively reversed.
The tree was not removed, and no other corrective action or interim examinations/inspections appear to have been taken, prior to September 4, 2015. There is evidence that concern had been expressed as to the possible need for further investigation, based on uncertainty as to what the true situation was- the plaintiff quotes an email exchange, in October 2012, between the deputy tree warden and the tree warden, suggesting a further visit (" we should go out there" ), but no such further investigation appears to have been performed.
On September 4, 2015, while at the property to perform unrelated work for the property owner, the tree fell on the plaintiff, causing severe injuries.
It was subsequently determined that the tree was substantially impaired in a structural sense by rot, only visible to a limited extent by purely-visual inspection. It was also determined that the tree had sustained significant impairment to the root system as a not-unexpected result of the driveway modification.
Legal Principles
In moving for summary judgment, the defendant has assumed the burden of proving that there are no material issues of fact, and that based on the undisputed facts, it is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the court cannot resolve factual issues, but rather is compelled to deny the motion should it identify any material issue of fact that needs to be resolved (or has been left open). To the extent that the defendant is relying upon an affirmative defense of governmental immunity, the burden on the defendant is not only to establish the applicability of governmental immunity to the situation at hand, but it also must negate any exceptions that may have been identified by the non-moving party. Specifically, in this case, not only must the defendant establish entitlement to protection for discretionary acts/decisions, but it also must negate the claim that an exception to immunity set forth in § 52-557n(b)(8) is applicable as an alternative basis for liability.
In light of the disparate views of the more detailed facts, and inferences to be drawn from undisputed " events" in the history of this particular tree, the court notes an additional consideration. As recited in the recent case of Ferri v. Powell-Ferri, 317 Conn. 223, 116 A.3d 297 (2015), in connection with summary judgment, " [t]o satisfy [its] burden the movant must make a showing that it is quite clear what the truth is." 317 Conn. 228, 116 A.3d 302.
There does not appear to be any dispute- § 52-557n generally provides protection for decisions made that involve the exercise of discretion. There also does not appear to be any dispute that some of the conduct of the tree warden implicates discretion. Much of the issue for the court is resolving the dispute between the parties as to which conduct properly implicates discretion for which immunity might apply, and which conduct (if any) is outside the scope of discretion, at least in the context of this case.
Recognizing that subsection (a) generally provides immunity for discretionary acts, the additional relevant (if less frequently invoked) language of § 52-557n is contained in subsection (b):
(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: ... (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances.
The recent decision in Williams provides the court with authoritative guidance relating especially to the recklessness prong of § 52-557n(b)(8).
Discussion
The classic formulation of a motion for summary judgment is that based on the undisputed facts- where the concept of " undisputed facts" negates the existence of any material issue of fact- the moving party is entitled to judgment as a matter of law. In most instances, the decision requires a close analysis of the facts, and where they lead. As the court is required to view the facts in a light most favorable to the non-moving party, the moving party often adopts an analysis starting with the premise " even if the plaintiff is correct as to the facts." In this case, despite the multiple opportunities for interpretation of facts and drawing inferences, the defendant does not appear to adopt such an approach. Instead, the defendant relies on characterizing everything as discretionary- not recognizing any facts/events that might be ambiguous and subject to interpretation in favor of the plaintiff- thereby claimed to entitle the defendant to judgment on that basis.
In this case, the court believes that the facts cannot be evaluated absent a detailed statutory/legal analysis. This requires an analysis of General Statutes § 52-557n, and the legal principles governing the conduct of a municipal tree warden set forth in statutory and local provisions.
I. Discretionary Versus Ministerial Functions- Legal Considerations
A key issue in this case is the concept of a ministerial duty, as opposed to a duty implicating the exercise of discretion. In its reply to the objection to the motion for summary judgment, the defendant contends that the plaintiffs have conflated the concept of ministerial and mandatory. An understanding of terminology being used would seem to be an appropriate starting point, even if raised via a reply.
The defendant is correct to the extent that it contends that the terms are not totally synonymous; the defendant is incorrect to the extent that it may be arguing that they are wholly independent concepts. The term " ministerial" can be applied at different levels. " Ministerial" is often used to indicate the opposite or negation of discretionary. If a duty or task is " mandatory" then there is essentially no discretion as to whether the task needs to be performed. However, there may be discretion as to how the task is to be performed and there may be discretion as to how frequently the task needs to be performed. Conversely, although perhaps not often articulated in the realm of governmental immunity, a total failure to exercise discretion generally is not deemed protected as an exercise of discretion which otherwise might exist, had the task been performed through the use of discretion. Indeed, it is virtually a tautology to say that the failure to exercise discretion cannot be characterized as the exercise of discretion. See, e.g., US Bank National Association v. Christophersen, 179 Conn.App. 378, 393 (2018). In other words, a failure to exercise discretion is not an exercise of discretion (although a decision not to do anything, if affirmatively made, can be a proper exercise of discretion).
A number of cases rely upon or recite an overlap of ministerial and mandatory. For example, in the discussion related to duties of tree warden in Wisniewski v. Town of Darien, 135 Conn.App. 64, 375, 42 A.3d 436, 443 (2012), the characterization of a duty to inspect as nondiscretionary was deemed supported by evidence demonstrating the mandatory nature of the duty to inspect. Thus, the terms are not always interchangeable but can substantially overlap, depending on context. The defendant’s discussion of that case (pp. 21-24) implicitly recognizes the point, albeit using alternative language- instead of describing a scenario as involving a duty to perform a mandatory act, the defendant frames it as " a ministerial duty to take an action and thereby failing to place [oneself] in a position from which he could exercise his discretion." Is there a meaningful distinction between " a mandatory act" and " a ministerial duty to take an action" ?
At page 13 of the memorandum in support of the motion, the defendant attempts to distinguish Wisniewski .
Indeed, in the Supreme Court decision in Williams, the mandatory nature of the obligation to perform inspections was a theme running through the decision, if nothing else, constituting a component of " all the relevant circumstances" which might be subject to consideration under the statute’s treatment of recklessness. The court cited with approval a trial court decision in which the failure to perform required inspections (required=mandatory) was deemed sufficient to raise an issue of recklessness for purposes of § 52-557n(b)(8), Pinos v. Mystic Fire Dist., No. CV 095012096, 2011 WL 1565874 (Conn.Super.Ct. Mar. 30, 2011); see, 327 Conn. 374.
More directly linking mandatory and ministerial is a discussion in another recent appellate-level decision:
As we have already indicated, there is now a well-established legal distinction between laws that impose general duties on officials and those that mandate a particular response to specific conditions. Under our existing jurisprudence, a ministerial duty on the part of a municipality or its agents ordinarily will be found only if some municipal ordinance, rule, policy, or other official directive clearly compels a prescribed manner of action that does not involve the exercise of judgment or discretion." (Internal quotation marks and citations, omitted; emphasis added.) Northrup v. Witkowski, 175 Conn.App. 223, 242 (2017).
The precise issue of the consequences of the failure to perform a mandatory act (especially, an inspection) which act, when performed, requires exercise of discretion, does not appear to have been addressed in a direct sense in reported decisions. That may be a consequence of the fact that especially for inspection-related activities, the discretionary versus ministerial distinction presented by subsection (a) of § 52-557n is superseded by subsection (b), by virtue of the introductory language to subsection (b): " Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ..." In other words, there may not be a need for a separate analysis of discretionary vs. ministerial in the context of inspections, given the " notwithstanding" language of subsection (b) (and subdivision (8) in particular). Nonetheless, the parties have discussed the issue at length, and the court will address the issue as it has been raised as a claimed basis for judgment.
The recurring theme of the motion before the court is that the tree warden had discretion, was exercising discretion, etc., effectively assuming that the tree warden had such discretion. Thus, after a recitation of claimed undisputed facts, the defendant proceeds to recite potentially relevant rules and policies regarding tree removal, followed by a recitation of obligations regarding immediate hazards and unreasonable risks. That is followed by a recitation of the extent of discretion regarding trees that are neither an immediate hazard nor an unreasonable risk. Paragraph 38, the first paragraph in this last category, is perhaps an appropriate focal point. That paragraph recites that " [t]here is no statute, ordinance, rule, or policy which creates a ministerial duty requiring the Tree warden or his deputy to remove a tree just because it was posted if they decide the tree is not a hazard" (emphasis in original).
The court believes that the appropriate threshold question is not whether there is a provision creating a ministerial duty but rather whether the tree warden was exercising discretion in a manner that presumptively entitled him to the protection of governmental immunity. The statutory immunity for discretionary acts has qualifying language, often if not usually not of concern, but of concern here. Section 52-557n(a)(2)(B) provides for non-liability for " 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." Therefore, for the defendant to assert governmental immunity based on discretionary acts, the acts (or mission) in question must be in connection with " an official function of the authority expressly or impliedly granted by law." Therefore, while the issue often is whether there is some directive converting what appears facially to be a discretionary function into a ministerial function, the true starting point, and necessary here, is the basis for claiming a discretionary function for which immunity might apply.
For example, in Letowt v. City of Norwalk, 41 Conn.Supp. 402, 579 A.2d 601 (1989), the court found that the activity in question did not meet the threshold for consideration as an inherently discretionary function (operation of a motor vehicle by a police officer). The court is aware that there have been some recent trial court decisions on this issue; while the court need not address the merits, it demonstrates that the initial step in a rigorous immunity analysis is the threshold determination as to whether the activity implicates a discretionary function for which immunity does or might apply; only if that threshold is satisfied does the burden then shift to the plaintiff to establish an exception. (Often, that threshold is presumed or acknowledged.)
Again, the defendant claims that everything done by the tree warden was discretionary, and subject to protection under the statutory language quoted above. The defendant claims that the posting of the tree for removal was a discretionary act, subject to the right to a discretionary revocation, whereas the plaintiff claims that the posting of the tree triggered legal obligations that could not be disregarded based on claims of discretion and/or the conduct at least gives rise to an implication of a non-discretionary duty. In order for the court to grant summary judgment, the court would have to be satisfied that there was an appropriate discretionary function involved, before addressing the contention that there was " no statute, ordinance, rule, or policy which creates a ministerial duty requiring the tree warden or his deputy to remove a tree just because it was posted if they decide the tree is not a hazard."
Paragraph 17 of the defendant’s listing of claimed-to-be-undisputed facts, is an appropriate starting/focal point. In that paragraph, the defendant states that the " Deputy Tree Warden had no concerns about health of tree and posted it ‘because [he] was under the impression that the homeowner wanted it removed.’ " Inferentially, then, the defendant is arguing that the tree warden had authority to remove a tree, based on the perception " that the homeowner wanted it removed," explicitly in the absence of any concern about the health of the tree or public safety.
The plaintiff counters by arguing that the posting of the tree for removal at least implies a determination that the tree presented a hazard, if not an imminent one. He points to the work order indicating that removal was needed, and the unchecked box relating to lack of any urgency (priority attention), with the reinforcing inference to be drawn from emails between the deputy tree warden and the tree warden as to the desirability of further investigation. The plaintiff also contends that the tree warden has oversimplified the facts for presentation to the court- the abutting property owner was concerned about safety (the tree was dying or partially dead) but wanted the town to see if it could be saved.
Is there any explicit or implicit authority for the tree warden to order removal of a tree, or possible removal of a tree, based solely on " the impression that the homeowner wanted it removed" especially with the explicitly stated absence of any concern about the health of the tree? (That defers, for the moment, whether a factual issue as to whether the abutting owner’s concerns about the tree- was it partially dead or dying- alone would create a material issue of fact.)
Section 23-59 does not appear to contain explicit authority for removal of a tree, based on a perception that an abutting property owner wants it removed, absent valid safety concerns. The defendant has not provided any analysis suggesting that the statute implicitly provides such authority. The statute provides authority for the tree warden to remove trees if, in his discretion, public safety requires such removal. If the condition of the tree presents an immediate hazard, the tree may be removed without any further notice; if the tree does not present an immediate hazard, then notice must be provided, with a 10-day opportunity for objection, and if a formal objection is submitted, a public hearing is required. After such a hearing and a resulting decision, there is a right of appeal.
Emphasizing the lack of inherent discretion of the tree warden to remove non-hazardous trees for any reason however insubstantial, the final sentence of the statute provides that " [t]he tree warden may, with the approval of the selectmen or borough warden, remove any trees or other plants within the limits of public highways or grounds under the tree warden’s jurisdiction that are particularly obnoxious as hosts of insect or fungus pests." If the tree warden truly had discretion to remove a tree based on " the impression that the homeowner wanted it removed," it would make no sense to require approval of an external (higher) authority (selectmen or Borough Warden) to remove trees deemed to be " particularly obnoxious as hosts of insect or fungus pests."
Based on the statute, the defendant’s interpretation would seem to invert any rational sense of priorities. If a tree presents a non-imminent hazard, there is a due-process-type requirement of notice and an opportunity to appeal the decision. If a tree is particularly obnoxious- in the sense of being a nuisance- there remains an obligation to obtain approval from other town authorities. The statute is silent as to any requirement for any notice or outside approval in connection with what is claimed to be a purely discretionary decision to remove a tree based on " the impression that the homeowner wanted it removed." In other words, if a tree warden has the discretion to remove a tree based on a perception that that is what the abutting property owner wants, how can that be reconciled with some need for approval for a more substantial perceived reason to remove a tree?
The defendant relies on the presence of the term " may" in the statute- " Whenever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under the tree warden’s control, the tree warden may cause such tree, shrub or group of shrubs to be removed or pruned at the expense of the town or borough ..." This use of " may" follows the imperative of a determination that " public safety demands the removal or pruning ..." The defendant’s interpretation is self-contradictory- after the tree warden has determined that public safety demands action, he has a choice of whether to take any action. A more rational interpretation is that " may" gives the tree warden the option as between removal or pruning, i.e., after a determination that public safety " demands" action, he " may cause such tree, shrub or group of shrubs to be removed or pruned" - giving him the discretion to determine the more appropriate remedy. The defendant does not explain how it is rational to provide for a determination that " public safety demands the removal or pruning" without expecting and requiring that some appropriate action to be taken. (If no action is needed, then public safety does not demand removal or pruning.)
Given the claimed scope of discretion going beyond the statute, what is the basis for posting and notice of an opportunity to object (with a public hearing should a written objection be filed)? While it may be prudent to " borrow" that procedure from the statutory scheme for removal of non-imminently hazardous conditions, there is no identified authority for such a requirement in non-hazardous scenarios (imminent or otherwise).
There also does not appear to be anything in the Town ordinances that authorize (explicitly or implicitly) removal of a tree based on " the impression that [an abutting] homeowner wanted it removed" especially in the absence of any concern about the health of the tree or concerns about safety. To the contrary, § 13-1 of the states the purposes of the ordinance (Chapter 13):
The purposes of this Ordinance are:
a) To promote and protect the public health, safety and general welfare of the residents by providing for the regulation of the planting, maintenance, protection and removal of trees, shrubs and woody vegetation within the Town of Greenwich.
b) To recognize and appreciate that trees produce oxygen, capture carbon dioxide from the atmosphere, provide air purification, prevent soil erosion, control flooding, assist in water purification, contribute to the quality of life by providing cooling shade, provide habitat for wildlife, reduce noise levels, and aesthetically enhance the landscape.
c) To preserve and protect trees and their canopies as an important environmental and cultural resource that enhances the Town of Greenwich’s natural character and heritage.
d) To protect the people in the Town of Greenwich from personal injury and property damage caused by the improper planting, maintenance, protection or removal of trees, shrubs and woody vegetation located on Town-owned property.
e) To protect property values by maintaining a healthy and vigorous community forest.
Other than safety-related concerns, this section emphasizes a focus on preservation, with safety the only stated countervailing consideration. Most of the other provisions in Chapter 13 are dedicated to limiting and controlling activity of third parties, including utilities. Section 13-17 authorizes the removal of any tree (and shrub) deemed to constitute a nuisance- and even then, invoking the procedures in other ordinances relating to abatement of nuisances in general, rather than the procedure set forth in § 23-59. Again, going back to the discussion of inversion of priorities, abatement of a nuisance requires application of formal nuisance abatement procedures, but there is a claimed discretionary authority to remove a tree (or not) based on the preferences of an abutting property owner, with no specified procedure to be used.
Finally, the defendant has submitted the Town’s " Public Tree Policy." This was promulgated under authority of § 13-3(b) of the ordinance, directing the tree warden to " prepare and maintain a manual containing regulations and standards for the planting, maintenance, removal and protection of trees, shrubs and woody vegetation upon town-owned property which shall be known as the Greenwich Arboricultural Specifications and Policy Manual." The policy creates/recognizes different priorities of work, and the defendant relies extensively on these categories. This claimed authority provides arguable support, but there are problems/issues arising from such reliance.
The highest priority is for work relating to trees deemed to be hazardous. The definition of " hazardous tree" used, however, is the definition in § 13-17 of the Town ordinances, which is a definition premised on characterization of a condition as a nuisance- and as noted earlier, § 13-17 explicitly invokes the procedure under other provisions of the Code relating to nuisances in general. (There also is an apparently erroneous citation to General Statutes § 23-65(a) relating to situations in which notice is not required- presumably an intended reference to § 23-59.) There is no presumptive congruence between a hazard defined as a nuisance under the ordinance, and a hazard as contemplated by § 23-59, especially given two categories of statutory hazard (imminent or not).
The defendant relies on the existence of lower levels of priority, notably a medium level of priority, also referred to as priority 2. Work in this category is deemed not for situations involving hazardous trees. Nonetheless, such work is to be placed on a list and " attended to in the order received." Although not denominated hazards, the conditions generally implicate a level of safety consideration- as emphasized by the description of still-lower priority work designated as priority 3 and explicitly described as " non-safety related tree work." No analysis- or even conclusory statement- has been provided concerning the relationship (or non-relationship) between this category of work and non-imminent hazardous conditions as contemplated by § 23-59.
Nowhere in any of these provisions discussing priorities of work is there any recognition of authority for removal of a tree based on the wishes of the abutting property owner, again with the explicit negation of any concern about the health of the tree. The defendant also does not harmonize the claim being advanced that the work anticipated by the posting in October 2012 was a lower level of priority, with the absence of the corresponding entry on the work order (box unchecked relating to " no high priority tree work needed at this time" ).
The court recognizes that it is reasonable for the tree warden to have established some sense of priority of work, especially as generally directed by ordinance. However, in addition to concerns and considerations outlined above, there appears to be a more fundamental problem with reliance on the tree policy as a basis for determination that the work proposed for the subject tree was- or might have been- purely discretionary rather than based on a determination that it was a non-imminent hazard. The court is unaware of authority for the proposition that a municipal officer or employee can self-designate what duties he/she performs are discretionary.
When courts look to policies and procedures, that usually is in the context of a search for any provision that might be deemed to create or identify a ministerial duty, in a situation where there is or may be a perception of an otherwise discretionary duty. However, when dealing with discretionary functions, it would see that at most, a policy or procedure might be perceived as consistent with a pre-existing discretionary quality. In other words, the court does not believe that a policy or procedure promulgated by an official can be a primary authority for the existence of a discretionary duty on the part of that official, for purposes of § 52-557n(a)(2)(B).
This policy was created by the tree warden- one ordinarily does not impose duties on oneself and an official ordinarily cannot expand the scope of his authority- from ministerial to discretionary- by fiat. An official might well create a policy that recognizes that certain duties, imposed or created by some higher authority, are discretionary or ministerial, but in this situation, the tree warden is relying on policies he (or his predecessors) created, and not on any specific provision of the ordinances or statutes for that characterization. This is emphasized by the seeming mismatch between statutory hazards and medium priority work, especially subdivision iii of the description of priority 2 tree work- " removal of a declining or dying tree that does not have any major defects that might predispose this tree to failure." It is not clear how broad a category there might be for trees that do " have major defects that might predispose this tree to failure" but would not be deemed an imminent hazard. From a reverse perspective: Priority 1 certainly encompasses imminent hazards, but if it is claimed that priority 1 also encompasses non-imminent hazards, why would that not also include " removal of a declining or dying tree that does not have any major defects that might predispose this tree to failure" ?
Even if the court were to accept the defendant’s position that the creation of the priority 2 category of work would be deemed discretionary in scope (as opposed to non-imminent hazardous conditions within the contemplation of the statute), there would then remain the question as to the existence of discretion, under the policy, to post a tree for removal, based on " the impression that the homeowner wanted it removed." Again, most of the priority 2 types of work specified in the policy relate in some sense to safety. Even priority 3 services identified in the policy do not provide for removal of trees other than in connection with construction projects involving contractors on private projects (which also would require a permit). (Paragraph six of the policy addresses the removal of trees in connection with town projects.)
As noted earlier in connection with the discussion of the town ordinance, here too, almost simplistically, a removal of the tree because the abutting property owner gave the impression that he wanted it removed would inherently be in conflict with the purpose for the policy- assuring citizens of " fair and consistent treatment and responses regarding the services provided" relating to trees. More narrowly, it would seem to be in direct conflict with paragraph 5 of the policy, providing that " [t]rees are not to be removed ‘for doing what trees do naturally.’ Trees are not to be removed for shedding fruit, nuts, leaves, twigs and small branches, or for sheltering wildlife." Removing a tree because the abutting property owner seemed to want it removed, would be the ultimate violation of that policy, effectively removing a tree simply because it is there (trees exist and grow in a fixed location) and somebody does not want it there.
II. Discretionary Versus Ministerial Functions- Factual Considerations
Returning to the actual facts as opposed to a narrower legal analysis, the contention of the defendant that the initial decision to remove the tree have been based on " the impression that the homeowner wanted it removed," is substantially incomplete. The abutting property owner had made a complaint in 2010, and again in 2012. The 2012 complaint had indicated a belief that the tree was dying or dead, and also was based on a recommendation from a private arborist that the town needed to be contacted about the tree. In that context, coupled with issues relating to records as identified by the plaintiffs, would seem to be sufficient to allow a factfinder (the jury) to conclude that the order for removal of the tree had been based on safety concerns. Other than a claimed inherent authority, the town has not cited any authority for an ability to " unpost" a tree that had been posted for removal, as a pure matter of discretion, and the statute suggests that the process for revisiting a decision to post a tree for removal because of safety concerns, requires a public hearing to ensure an informed decision with public participation and notice (and an opportunity to appeal any such reversal of decision).
The town generally states that " the Town of Greenwich had discretion to decide whether to remove a tree," and then more narrowly states that " the evidence shows the deputy tree warden exercised his discretion in determining that the tree was not hazardous." Absent a context, the statements appear to be correct, but the issue is whether they are correct in context. There are two inter-related considerations that are part of the context that would need to be resolved in the defendant’s favor, in order to conclude that the defendant is entitled to summary judgment in this respect.
The common aspect of the two considerations simplistically can be identified as " when?" An initial determination of whether a tree is hazardous would appear to be entrusted to the discretion of the tree warden. However, in this case, there is a claim, and conflicting evidence (or inferences from evidence), that the determination that the " tree was not hazardous" and did not need to be removed was made after an initial determination that the tree was hazardous. The town, in its argument, repeatedly denies any possibility that an initial determination (if implied) that the tree was hazardous had been made, or that there is any evidence supporting such a contention, instead couching the initial determination in terms of a determination of a possibility of removal. (The court will not repeat, yet again, the evidence giving rise to an inference that safety was a concern, coupled with the absence of unlimited discretion to remove a tree simply because an owner was perceived to want it removed.)
The determination of whether a particular function or conduct properly is characterized as discretionary or ministerial often if not usually can be made as a matter of law. The defendant may not say so in these terms, but the position of the defendant comes close to a statement that the tree warden has essentially unfettered discretion as to if and when to remove a tree, for any reason. The town’s ordinance and policies reflect a strong public policy in favor of preservation of trees, allowing aggressive pruning and/or removal only in cases of necessity, such as hazardous conditions, minimizing interference with utility lines, etc. Before a decision is made to remove a tree, then, inferentially there must be a somewhat compelling reason to do so, and not merely a reflexive response to a complaint. That, of course, in turn militates against allowing ad hoc reversals in the manner that occurred here, based on the facts as viewed most favorably to the plaintiff’s position.
III. Statute of Limitations
The defendant contends that the claims asserted by the plaintiffs, alleging negligent inspection and failure to inspect, are barred by the statute of limitations. It claims that even under the discovery prong of the negligence statute of limitations, General Statutes § 52-584, the plaintiff had three years in which to bring suit, measured from the date of the wrongful act or omission of the defendant, and the benchmark date is claimed to have been October 23, 2012, the date of the final visit/inspection of the tree by the tree warden, prior to the subject accident. The defendant further argues that there is no basis for any extension or tolling of the statute of limitations, such as continuing course of conduct.
The court cannot grant a motion for summary judgment on issues and arguments not actually advanced by the moving party. Greene v. Keating, 156 Conn.App. 854 (2015). The defendant claims that the plaintiff is relying on negligent inspections in 2012 and 2010 which are claimed to be the appropriate benchmark dates for evaluating applicable in a statute of limitations. The plaintiff, however, contends that there was relevant/continuing conduct on and after October 23, 2012, up to and including the date of the plaintiff’s injury in September 2015, such that the statute of limitations had not expired.
Putting aside, for the moment, the various dates proposed by the plaintiffs, it is clear to the court that October 23, 2012 could not be the benchmark date for the statute of limitations, for the simple reason that the court does not see any possible basis to claim wrongful conduct by the defendant on October 23, 2012. October 23, 2012 is the date on which the tree was posted for removal. There is no claim that there was anything negligent about posting the tree for removal. To the contrary, the position of the plaintiff is quite the opposite- it was proper, the problem being that the defendant never followed through on removal and actually reversed that determination (inappropriately).
Therefore, the earliest possible date for commencement of the running of the statute of limitations would have to have been at a later date, no earlier than the date that the tree was unposted.
There are a number of possible scenarios which would potentially result in differing trigger dates, and the dates may differ depending upon the specific theory of liability.
1. If the defendant’s position is correct, insofar as the claim is made that the tree warden did not determine that the tree was hazardous, then October 23, 2012 is simply the date on which he first became aware of facts that may have put him on notice of a condition that required arguably monitoring, which could implicate either prong of § 52-557n(b)(8);
2. if the tree warden did determine that the tree was hazardous as of that date, then that would appear to trigger a mandatory obligation for removal of the tree, inferentially including monitoring to make sure that it did not become an imminent hazard requiring immediate removal, prior to scheduling and actually performing a non-emergency removal- but absent imminence, any duty would not have been breached until sometime thereafter;
3. if the tree warden did determine that the tree was hazardous as of that date, but subsequently (properly) rescinded that determination, then at least as of the date on which the order was rescinded, the tree warden was on notice of a condition that could implicate liability under either prong of § 52-557n(b)(8);
4. if the tree warden did determine that the tree was hazardous as of that date, and subsequently improperly rescinded that determination, then the date on which the order was rescinded was an unauthorized and therefore arguably tortious act which could be a benchmark date, but would then also be coupled with his actual notice of a hazardous condition which could/would trigger liability under either prong of § 52-557n(b)(8).(Other scenarios are possible.)
The defendant’s argument relating to the absence of a continuing duty of inspection may have some general applicability, but loses persuasiveness in this type of situation. Analogizing to Williams illustrates that point.
In Williams, there had been a failure to perform any inspections over a period of years, notwithstanding a mandatory duty to perform annual inspections. Is the defendant suggesting that the proper benchmark for any statute of limitations defense (were it to be asserted) would be the first year in which there had been a failure to inspect, with subsequent failures being but a continuation of an initial failure? Was the injury from an initial date of failing to inspect, or was each day of continuing failure to inspect a further breach (if not in a progressively more blameworthy sense)? An argument could be made that it is worse in the current situation, involving a tree whose condition might well have been deteriorating- as opposed to the relatively static (but no less serious) failure to verify the presence and maintenance of fire protective devices/equipment.
Conversely, the existence of a mandatory nondiscretionary function does not mean that the duty must be performed instantaneously. For example, in Kolaniak v. Board of Educ. of City of Bridgeport, 28 Conn.App. 277, 610 A.2d 193 (1992), despite the finding of a ministerial duty, it is unlikely that anyone would have argued that every square foot of the property subject to the maintenance directive had to be cleared or treated at the same time, and that maintenance activity had to be done on a literally continuous basis from start of precipitation until it ceased. See, also, Bazinet v. Hartford, 135 Conn. 484 (1949), in which the court determined that a municipality’s obligation to maintain its streets with respect to snow had to take into account the city-wide nature of the responsibility, recognizing that there might be some period of time required for the full obligation to be satisfied (inferentially allowing for prioritization of some streets over others). In other words, putting aside the defendant’s denial of any obligation to remove the tree at all, a determination that the tree was hazardous and required removal (on a non-imminent-hazard basis) would still allow for some measure of reasonableness in prioritizing that removal- but that clearly would be a factual issue.
The defendant’s argument appears to lead to absurd results. Again, assuming that there was no mandatory duty to remove the tree as of October 2012, but merely that there was notice of a possibly-hazardous tree as of that date- under the defendant’s apparent analysis, the failure to do anything about a known possibly-hazardous tree, without any follow-up inspection or other action, would become increasingly unreasonable if not reckless (especially if the condition of the tree was deteriorating), until the three-year mark at which point the defendant would be totally exonerated based on the statute of limitations.
In Williams, the centerpiece of the analysis was the open-ended quality of consideration of the statutory phrase " under all the relevant circumstances ..." The existence of an extended period of time in which no inspection had been performed, once the town was on notice of a condition that might have needed follow-up monitoring, would appear to be a relevant circumstance under this analysis. Indeed, is the town actually arguing, in this context, that the town knew enough about the potential hazard as of October of 2012, such that the benchmark date for actual notice and especially reckless disregard is October 23, 2012? It seems unlikely that there might be a plausible defense in Williams (after remand) that the failure to detect the absence of inter-connected smoke detectors had been a failing of such a long-standing nature that the statute of limitations bars any claim that the condition should have been identified and remedied at or before a date too far before the eventual tragic fire in that case to be actionable.
The plaintiff notes the importance of determination of the date on which any duty ceased to exist, relying on Watts v. Chittendon, 301 Conn. 575 (2011) and Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 746 A.2d 753 (2000). If the town had an obligation to remove the tree, the duty to follow through did not end on October 23, 2012; as discussed above, any wrongfulness almost certainly had to be at a later date. Further, if the condition were hazardous but not imminently so, there would have been a duty to address the problem but on a potentially longer time scale. Thus, for purposes of a definitive statute of limitations analysis, there would be a need for particularity as to the proper characterization of the triggering event, when the resulting conduct should have occurred, and then whether other factors warrant extension of the deadline under a continuing course of conduct analysis. And there would be a need to consider the interplay between the statute of limitations and a claimed failure to inspect under § 52-557n(b)(8) where elapsing time without an inspection itself is a possible relevant consideration for purposes of determining recklessness.
The court must analyze the situation in a manner giving the plaintiff the benefit of all favorable inferences, and there is a reasonable basis to interpret the events of September and October of 2012 as putting the defendant on notice of a current or likely hazardous condition, based on a (second) complaint that a tree appeared to be dying or half dead, in turn from an abutting property owner who already had consulted with his own arborist. The circumstance of the location of the tree, effectively an island surrounded by pavement, was presumably known to be conducive to potential damage to the root system. The court need not conclude that the town should have taken further action; the issue is whether it is so clear that there was a " case closed" quality after that October 2012 inspection that no reasonable factfinder might deem that to have warranted further follow-up- under either prong of § 52-557n(b)(8).
To prevail on a statute of limitations defense by way of summary judgment, the defendant must establish the absence of any material issue of fact. Here, there are issues as to the proper commencement date for the running of any statute of limitations, whether there was a continuing quality to the wrongful act running through to the date of injury; and if there was a termination date, what that date was.
IV. Possible Merits of Claims Under § 52-557n(b)(8)
The defendant challenges the viability of any claim under § 52-557n(b)(8). The defendant identifies certain required elements that must be proven, and contends that the plaintiff cannot prove any of the elements that it has identified: " (1) A failure to inspect or negligent inspection; (2) of property that is not owned by the Town of Greenwich; (3) with prior notice of a hazard to health or safety or with reckless disregard for health or safety. Gen. Stat. § 52-557n(b)(8)" (emphasis in original).
(1) A failure to inspect or negligent inspection; After stating that there is no dispute but that in October 2012, the town did inspect the subject tree, the defendant goes on to state there is no evidence of any inadequacy of that inspection.
A fundamental problem appears to be that the defendant is taking an overly-literal approach to the concept of an inspection. " It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 778 (1992); see, also, State v. Siering, 35 Conn.App. 173, 184 (1994) and cases cited therein. A governmental inspection, to be meaningful, has to be more than merely an examination of the conditions existing- there must be some steps taken to remediate or ensure remediation of any deficiency capable of correction. Otherwise, the situation is analogous to recent commercials by a credit protection organization in which the company’s affirmative efforts to correct problems after they are detected are compared to someone merely identifying a problem without doing anything about it. Williams provides an appropriate context for this point. In Williams, the city fire officials had failed to perform required inspections over a period of years- would it have been sufficient for the City simply to have literally inspected the various apartments, noting deficiencies (especially as to fire alarms), without doing anything more? Would it be a sufficient inspection if inspectors did not also take some measures towards remediation, such as ordering installation of proper alarms, and probably with a follow-up to make sure that corrective measures actually are taken? Or. is the defendant suggesting that merely chronicling deficiencies is all that is required of an inspection, under General Statutes § 52-557n?
Having implicitly if not explicitly determined that the tree was hazardous (if not imminently so)- giving the plaintiff the benefit of all reasonable inferences- appropriate follow-up was implicitly required; unless there was a reasonable possibility (not articulated by anyone) that the tree’s condition might improve spontaneously, the hazardous condition could only get worse, over some unknown/unspecified period of time. The town cannot have it both ways- while there is a discussion of differing levels of priority of work, with the implication that lesser priorities eventually would be addressed, the contention here is that instead of monitoring the condition, which would allow updated priority evaluations, the tree had been removed from all consideration for removal (or other remediation) by virtue of the subsequent decision of the tree warden.
The record reflects that cables had been used to improve structural integrity/stability at some time in the past. The presence of the cable was noted in the course of the October 2012 inspection. There was evidence that the very presence of cabling was indicative of structural issues needing some level of monitoring.
Again, Williams emphasizes the broad scope of circumstances that appropriately can be taken into account with respect to the recklessness prong of § 52-557n(b)(8). Applying the actual-notice-negligence prong to a Williams -type scenario, if an initial inspection revealed issues actually or potentially needing attention, the failure to perform a follow-up inspection- whether to determine whether there had been remediation or to determine whether conditions had become more serious- would seem to be sufficient to constitute a negligent inspection. The explanation that the town originally thought the tree was not hazardous, and that the abutting owner had been perceived as wanting it removed, followed by a standardless decision to reverse the decision to remove the tree, could be perceived to be so far a departure from reasonable conduct as to constitute recklessness.
(2) Of property that is not owned by the Town of Greenwich.
General Statutes § 52-557n(b)(8) contains language excluding from its scope municipally owned property (" other than property owned or leased by or leased to such political subdivision" ), and the defendant claims that this provision applies to the subject tree.
Assuming that that exclusion applies to trees and shrubbery in addition to more obvious applicability to land and improvements, the defendant has not established that it is the owner of the tree. To the extent that the defendant claims that it owns the land on which the tree was located, the plaintiffs correctly note that with respect to a public right-of-way, the fee interest presumptively is owned by the abutting property owner to the centerline of the road, subject to that easement/public right-of-way.
The relevant town ordinance (§ 13-2(d) ) defines " town-owned property" as " [a]ny and all real property owned by the Town of Greenwich." The town may " own" the right of way but at least presumptively not the property itself, and there has been no demonstration that the ordinance was intended to address anything other than fee-ownership interests. Note that while the ordinances refer to sections within Chapter 451 of the General Statutes, those statutes explicitly refer to municipal grounds and municipal roads (rights of way) explicitly- § 23-59 refers to " all trees and shrubs in whole or in part within the limits of any public road or grounds and within the limits of his town or borough" and the penalty provision, § 23-65, repeatedly refers to " public way or grounds" as the areas encompassed. The statutes distinguish between property owned by a municipality and those areas where the municipality has a right of way.
Pursuant to § 23-59, the authority of the tree warden includes limbs and roots that extend into or over the right of way, even if the tree nominally is located on purely private property.
Conversely, even if the right-of-way, itself, were deemed Town-owned property, § 13-6 sets forth a procedure whereby an individual can obtain a permit authorizing the planting of a tree within the confines of town-owned property, and then, pursuant to § 13-7, such a newly-planted tree becomes " property of the Town," implicitly recognizing that ownership of a tree within the confines of town property is separate from ownership of the property on which the tree is located. Still further, this " transfer" of ownership is made, effectively, a condition of permission to plant the tree- the subject tree was a mature tree (by one estimate- 200 years old), and likely predated the effective date of this ordinance, such that the ordinance would not be a condition of the planting of the tree. The court has not been presented with evidence removing that from the realm of material issues of fact.
Any claim that the enactment of the ordinance would have effected a transfer of ownership of existing trees likely would implicate issues of confiscation of property without due process/compensation. In any event, the town has not made any claim in this regard, and therefore the court cannot base a decision in favor of the defendant on such a basis.
The burden may be on the plaintiff at trial, but for purposes of this motion, the defendant must prove the absence of any material issue of fact as to the negative proposition upon which it relies- that this was not non-town-owned property. The defendant cannot prevail on this basis.
(3) With prior notice of a hazard to health or safety or with reckless disregard for health or safety.
The defendant’s argument in this regard fails to address, adequately, that there are two alternatives, and both may be applicable. The actual language is in the disjunctive, and the court will reformat the language to make that clear:
... unless the political subdivision had notice of such a violation of law or such a hazard
or
unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances ...
Actual notice of the hazardous condition and recklessness are distinct alternate predicates to liability under § 52-557b(a)(8), as recognized by the Appellate Court decision in Williams, in turn noted by the Supreme Court, 327 Conn. 353 and affirmatively stated at 327 Conn. 356. Having plausibly (viewing the evidence most favorably for the plaintiff) made an initial determination that the condition of the tree presented a hazard, but not an imminent one, the town had actual notice. Further, the Supreme Court decision in Williams emphasizes the broad range of factors that can come within the scope of " under all the relevant circumstances ..." And while the Appellate Court had determined that the trial court had erred in requiring notice as part of the recklessness prong of this statutory language, notice would certainly seem to be a highly probative " relevant circumstance" in determining whether there was recklessness. Accepting the characterization of the tree as hazardous in 2012, a decision to declassify the tree as hazardous, without any change in condition but rather based on an informal objection of the abutting property owner, and without any formal complaint or new evidence presented at a resulting public hearing, against a backdrop of the abutting owner’s apparent concern about safety but hoping that the tree could be saved, would seem to satisfy the minimum evidence necessary for a conscious disregard of the consequences, given the breadth of " under all the relevant circumstances" as articulated by the Supreme Court in Williams. The Supreme Court repeatedly adverted to the role of the jury in making the final determination as to whether there was recklessness " under all the relevant circumstances" that were presented to it.
Beyond challenging the plaintiff’s ability to satisfy requirements for a viable claim, the defendant returns to the contention that it " had discretion to decide whether to remove a tree." Framed in that fashion, it is not clear that its discretion is as absolute as stated. It is closer to correct (in an absolute sense) to say that that the town had discretion to decide whether a tree needed to be removed. As discussed above in connection with the proper interpretation of the controlling statute and its use of the term " may," the town had authority to determine whether a tree presented a hazard, and under other provisions might have authority to remove a tree constituting a nuisance, but there is no identified authority for removal of a tree for any conceivable (or no) reason. Conversely, if safety demanded corrective action, the statute seems to deprive the tree warden of discretion to decide to do nothing. That of course would be especially so if the danger were deemed imminent. The defendant has not established that the claimed discretion was boundless.
Indeed, notwithstanding the defendant’s concern that the plaintiffs have conflated mandatory and ministerial, part of the defendant’s argument effectively incorporates a similar failure to recognize the distinction. The defendant states: " The only way that a tree warden or his deputy might be deemed to have a ministerial duty to remove a tree is if some statute, ordinance, rule, or policy clearly compels the removal of the tree ‘in a prescribed manner’ without the exercise of discretion." The defendant cites authorities for the general proposition that a ministerial duty is one for which there is a prescribed manner of performance, but neglects to discuss the level at which discretion operates. The tree warden may have discretion to determine if a tree presents a hazard, but if he fails to act on such a determination, or if there was notice of a potential problem that was ignored, or if the circumstances demonstrate a reckless disregard for safety, the existence of discretion at some level becomes irrelevant. Again, the introductory language of § 52-557n(b) indicates an override of the provisions of subsection (a).
The fact that there may well be discretion as to how to remove the tree- chainsaw, hand saw, axe, etc. focuses on the wrong level of conduct. Is there some authority for the broad discretion claimed, and if so, is it then subject to limits under some statute, ordinance, rule or policy that becomes operative if a decision is made to remove a tree (due to perceived dangerous condition)? In Williams or other inspection scenarios, the fact that there may have been some discretion in terms of the precise details of an inspection would/could not reasonably be claimed to constitute a complete defense to the failure to conduct any inspections. An initial inspection resulting in a decision for action- and again, the work order indicates that removal of the tree was necessary- would seem to require further action for that inspection not to be subject to possible characterization as negligent or the initial step in recklessness.
The defendant posits a situation in which the tree warden effectively has unfettered discretion:
A municipality like the Town of Greenwich benefits from governmental immunity when performing jobs requiring the exercise of discretion as opposed to a ministerial duty. Decisions of a tree warden or his deputy regarding whether to remove a tree generally require discretion and are therefore immune from liability. The only way that a tree warden or his deputy might be deemed to have a ministerial duty to remove a tree is if some statute, ordinance, rule, or policy clearly compels the removal of the tree " in a prescribed manner" without the exercise of discretion. In this case, virtually every step and decision involves the use of judgment and discretion; once the Greenwich Tree Warden or his deputy inspected the Subject Tree, there was no directive creating a ministerial duty to remove the tree and prescribing how to do so. The fact that the Deputy Tree Warden briefly chose to post the tree for possible removal enhanced his discretion and enabled him to remove the tree later if he so chose; the act of posting does not limit his discretion to change his mind, reconsider, or unpost the tree if he later decides the tree is not a hazard or removal is not necessary. (Citations to references, omitted.)
The defendant cites to deposition testimony and affidavits in this regard, including transcript references " explaining that if no written objection is filed after posting a tree that is not high priority work, the tree ‘can stay in place or it can- can go’ and " that if the Tree Warden or his deputy decide a tree is not a hazard and no resident wants the tree removed, the general policy is not to remove the tree."
As discussed earlier, the only explicit authorities for tree removal appear to be § 23-59 and Chapter 13 of the Greenwich ordinances- but the latter authority only addresses removal of trees in the context of a tree being deemed a nuisance (§ 13-17 of the Greenwich ordinances). If the posting that is acknowledged to have occurred was not the posting anticipated/authorized by § 23-59, what was its origin and authorization? Other than safety, what was the authorized basis for posting a tree as was done in this situation? (Utility maintenance and public or private construction projects are other recognized reasons for possible removal of trees, but those and similar situations have no bearing here.) But if safety had been the basis for the posting and anticipated (if never scheduled) removal, how is the (unofficial) objection by the party who originally had complained about the tree- articulating a preference to keep the tree (hoping it could be saved, inferentially not preserved in its then-current condition)- a basis for determining that it was no longer hazardous, and without the safeguards of a public hearing and right of the public to object?
The Court cannot resolve factual issues, only identify their existence (assuming them to be material). The defendant characterizes the conduct in a tentative manner, that the Deputy tree warden " briefly chose to post the tree for possible removal." The court must view the evidence in a manner giving the plaintiffs the benefit of all favorable (reasonable) inferences, and they characterize the same events and exhibits in a far less tentative manner- there had been a determination that the tree presented a hazard, not sufficiently imminent to warrant waiver of the posting process but a sufficient hazard to warrant removal, a removal that did not happen because of an informal objection.
The defendant then proceeds to emphasize that discretion was exercised, thereby ensuring immunity and distinguishing Wisniewski . As already noted, however, the issue is not whether, at some point or level, discretion was exercised but rather whether the conduct (or failure to act) came within the scope of performance of a function implicating discretion, or whether there was another layer of conduct- higher or lower- in which there was no discretion, with the corollary concern as to whether a failure to act at all, when discretion is required, is consonant with that discretion or is an abdication of responsibility. And, in the context of § 52-557n(b)(8), which is operative notwithstanding the language of subsection (a), the issues become whether there was negligence in the face of actual notice or whether the failure to act constituted recklessness.
Note that the actual notice prong of § 52-557n(b)(8) bears some similarity to the identifiable victim exception to immunity. Although this is situational rather than personal, it nonetheless reflects a policy whereby the narrowing of a public duty by actual knowledge of specific circumstances may warrant allowance of liability.
Conclusion
The dominant and recurring theme of the defendant’s motion is that the tree warden was exercising a discretionary function. The response of the plaintiff is that there is evidence warranting characterization as a ministerial function. The court has noted that even if the defendant were correct in some functional sense, there is a serious and unresolved issue as to whether the discretion claimed was a legally cognizable discretion for which governmental immunity applies (can apply). Section 23-59 identifies two situations in which a tree warden is authorized to remove a tree, with certain procedural limits and safeguards. The defendant is arguing that for less demanding situations (including an abutting property owner’s perceived preferences), he has presumptive discretionary authority to order removal of a tree without any mandated safeguards, with nothing approaching a defensible reason. (Absent this litigation, would the town have welcomed a newspaper headline stating that the tree warden had ordered removal of a 200-year-old tree because the tree warden thought that that was what the abutting property owner wanted?) As an operational default, the tree warden may have discretion, but in terms of legal duties, § 23-59 does not give the tree warden legal discretion to remove a tree for any matter of convenience he finds sufficient.
The defendant has tried to portray a clean and simple scenario- town officials initially authorized removal of an untroubled tree, and then when told that the abutting property owner wanted the tree to remain, attempted to accommodate his wishes, reversing that decision. A more detailed review of the facts reveals a less clean and less simple situation. After consulting his own arborist, for a second time, the abutting owner complained about a tree that appeared to be dying or half dead, and only expressed a wish for non-removal in terms of seeking remediation. The emails between the tree warden and his deputy, contemporaneous with these events, demonstrate a situation that was not yet concluded. The existence of existing cabling, itself, was a sign of structural issues for the tree, and the tree warden, in conducting the October inspection, observed the presence of cabling (of unknown origin). There also was evidence that the tree was noticeably leaning, an outward manifestation of possible compromise of the root system. No immediate action was taken consistent with a potential hazard, and even if the tree had been deemed less urgent (priority 2), the protocol was putting the tree on a list for eventual attention- precluded by the decision to revoke any determination of need for attention.
The court recognizes that workers " in the field" often just want to get the job done, without regard to formalities (dotting i’s and crossing t’s), but with some unfortunate regularity, such a failure to adhere to required procedures- in situations where something has gone terribly wrong- becomes problematic. Here, there is an overlay of trying to accommodate the wishes of residents, in the sense of providing customer service. There are records, some of uncertain reliability as to closing out of work orders, supporting a claim that the tree had been perceived to be a safety hazard at the time of inspection, if not an immediate one. At this stage, all that is needed is sufficient evidence to create a material issue of fact.
If the tree warden did not have unlimited authority to remove a tree just because an abutting property owner complained, and if he did not have unlimited authority to reverse a decision to remove a tree (especially with evidence suggesting an initial determination based on safety), the situation does not automatically involve the safe harbor of lawful discretion. There does not appear to be any dispute that there was an obligation to follow up on a safety-based complaint, and if there were a finding of a hazardous condition, then the failure to follow through, and instead cancelling remedial action, can be characterized as negligence relating to an inspection, negligence in light of a risk with actual notice. The continued disregard of the condition of the tree, even if there were no outward appearance of major problems at the time of the inspection, could be consistent with recklessness. Evidence that the tree was leaning, had been cabled, all are external and relatively obvious conditions, which the plaintiff, through his expert, identify as warning signs that needed to be heeded. This was not an isolate complaint, but the second made, with the complaint having been based in part on input from a private arborist, and the topography conducive to root failure.
Indeed, while not clear as to consequences, as opposed to characterizing his conduct as discretionary, there may be a question as to whether the conduct of the tree warden technically may have exceeded his authority- ordering a tree removed without any cognizable basis (if the submission in support of summary judgment is accepted at face value) and/or rescinding an order for removal of a tree without any public hearing (if the plaintiff’s version of events, including inferences from the work order and emails is accepted).
The court need not, cannot and should not resolve any of these issues in a definitive sense against the defendant; the absence of a basis to rule in the defendant’s favor is all that is required, at this time.
Unfortunately, when an accident occurs, the legalities start crowding out the practical approach often dominating field decisions. The paperwork suggests a determination of a hazardous condition; emails suggest recognition of the need for further examination/investigation; the closing out of work orders suggest some level of laxity, either in following through on complaints or the paperwork documenting closing out of work orders (based on complaints). Thus, the plaintiff notes that in his deposition, the deputy tree warden who is indicated on the relevant record as having closed out the work order generated by the 2012 complaint, stated that he did not believe that he had done so as supposedly done in 2014.
This is not a situation that can be discounted as merely one involving claims akin to those in Northrup, supra, 175 Conn.App. 250, (" the plaintiffs’ frustration with what they viewed as ineptness and a lack of urgency by the town and the individual defendants to alleviate the [problem]" ).
Application of the statute of limitations often is a simple matter of comparing dates- but here, it is not even clear what the baseline date was, much less whether the inherently continuing nature of a failure to inspect, within the scope of § 52-557n(b)(8), is ill-suited to summary judgment given the inherently continuous nature of a claim predicated on a failure to inspect.
For all of these reasons, the motion for summary judgment is denied.