Opinion
No. CV02-0467165
February 13, 2004
MEMORANDUM OF DECISION
Before the court is the defendants' motion for summary judgment on the ground that the defendants are entitled to governmental immunity.
On August 22, 2003, the plaintiff, Chiquita Cousins, filed the operative complaint against the defendants, the city of New Haven and James Welbourne, director of the New Haven public library. The plaintiff alleges that she was visiting the New Haven public library and was descending the interior first floor stairway leading to the basement when she came in contact with a separation in the carpeting, which caused her to fall and to sustain injuries. The plaintiff claims that the injuries were caused by the defendants' failure to inspect and maintain the stairway in a reasonable condition and by the defendants' failure to warn the plaintiff of a dangerous condition.
On October 11, 2002, the defendants filed an answer and four special defenses:
governmental immunity for discretionary acts under Connecticut General Statutes § 52-557n(a)(2)(B) as to the defendant city; the common-law doctrine of governmental immunity as to the defendant city; qualified immunity as to the defendant Welbourne; and comparative negligence.
On June 5, 2003, the defendants filed a motion for summary judgment on all three counts of the complaint on the ground that the defendants are entitled to governmental immunity. The defendants also filed a memorandum of law in support of their motion for summary judgment.
On October 16, 2003, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment. The parties have not submitted any affidavits or other evidence in support of their respective positions.
"Practice Book § 17-49 provided 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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003). "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003).
The defendants argue in their memorandum in support of the motion for summary judgment that they are entitled to governmental immunity under General Statutes § 52-557n, because the acts of alleged negligence required the exercise of discretion and that none of the established exceptions to governmental immunity are applicable. In opposition, the plaintiff argues that an issue of material fact exists as to whether the defendants' duty to inspect and maintain was ministerial in nature and thus not subject to immunity. The plaintiff further argues that governmental immunity does not apply because this case falls into the established "identifiable person-imminent harm" exception.
"[A] municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). "The language of 52-557n(a)(1) provides in relevant part: `Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political division or any employee, officer or agent thereof acting within the scope of his employment or official duties . . .'" Id., 29. "This language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents." Id. Section 52-557n(a)(2), however, provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) 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."
"While [a] municipality itself was generally immune from liability for its tortious acts at common law . . . its employees faced the same personal liability as private individuals . . . [A] municipal employee [however,] has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Internal quotation marks omitted.) Doe v. Board of Education, 76 Conn. App. 296, 300, 819 A.2d 289 (2003).
"The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "[T]he case law demonstrates that the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint . . . The duty . . . will be governmental [and therefore discretionary] if the nature and character of act or function be such . . . And although the general rule that a determination as to whether the actions or omissions of a municipality are discretionary or ministerial is a question of fact for the jury, there are cases where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Segreto v. Bristol, 71 Conn. App. 844, 854-55, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
Concerning whether the alleged failure to inspect or maintain was discretionary or ministerial, the facts of this case are on point with Segreto. In that case, the plaintiff filed a one-count complaint against the city alleging that she had sustained injuries in a fall on a stairway located on the premises of property that was owned and operated by the city. Id., 845. The plaintiff further alleged that her fall and resulting injuries were due to the negligence of the city or its employees. Id. The Segreto court determined that because "the plaintiff's allegations all relate[d] to whether the city's design and maintenance of the stairway were reasonable and proper under the circumstances" and because the plaintiff did not allege "that the city had some policy or directive in place regarding those duties with which it or its employees failed to comply," the complaint alleged discretionary activity as a matter of law. Id., 857.
The plaintiff in this case, likewise, alleges only discretionary activity. Under Segreto, the plaintiff, in order to avoid the granting of summary judgment for the defendants, must show that the defendants were required to inspect or maintain the staircase in a prescribed manner and failed to do so. See id., 856. The plaintiff's complaint alleges that the defendants "failed to carry out a program of routine maintenance to ensure that the stairway was kept reasonably safe, and if it did institute such a program, the same was not sufficient." The use of the word "reasonably" suggests discretionary activity because "what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment." (Internal quotation marks omitted.) Id. The plaintiff has also failed to offer supporting documentation or affidavits to establish the existence of a ministerial inspection and maintenance program. In fact, as a basis of its negligence claim, the plaintiff has suggested that no such program even existed. Therefore, the plaintiff has failed to show that defendants were required to inspect the staircase in a prescribed manner and failed to do so. Therefore, the plaintiff has failed to meet its burden to show that a genuine issue of material fact exists as to whether the activity was discretionary or ministerial.
The plaintiff further argues that even if the alleged activity was discretionary, the "identifiable person-imminent harm" exception to governmental immunity for discretionary actions by municipal employees applies.
"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 or 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.) Spears v. Garcia, supra, 263 Conn. 36. Under such circumstances, a clear and unequivocal duty to act exists, and the public official is subject to liability for his or her negligent failure to act. Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982). The identifiable person-imminent harm exception applies "not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 710, 755 A.2d 317 (2000). "Whether the plaintiff comes within a class of identifiable persons is a question of law for the court to decide absent unresolved factual issues material to the applicability of the defense." Prescott v. Meriden, 80 Conn. App. 697, 701-02, 836 A.2d 1248 (2003).
The present case is on point with Prescott v. Meriden, in which the Supreme Court affirmed the trial court's determination that the plaintiffs failed to establish that a member of the general public, who voluntarily attended a public function on public property, was an identifiable victim. Id., 703. In Prescott, the plaintiff alleged that he was injured when he slipped and fell on wet and muddy bleachers while attending his son's high school football game, which was held on a public field. Id., 699. The plaintiff filed a complaint alleging negligence against the city of Meriden and certain municipal employees for failure to inspect and maintain the bleachers and stairs. Id. The court recognized that, although the identifiable person-imminent harm exception has received very limited recognition in this state, courts have applied the exception in a series of cases involving injuries to school children, who can be an identifiable class of victims because they are statutorily compelled to attend school during school hours on school days. Id., 702; see also cases cited therein. The court also noted one additional case in which the Supreme Court upheld the application of the exception to a member of the fire department who was injured during an official function. CT Page 2089 Id.
In Prescott, the plaintiff argued that because parents are encouraged to take part in school functions, he was an identifiable victim at the football game. Id. The court affirmed the granting of the defendants' motion for summary judgment on governmental immunity grounds. Id., 703. The court concluded that as a matter of law, the plaintiff was not an identifiable person because he was a member of the general public who was not compelled to attend the football game, and the decision to attend rested solely within his own discretion. Id. 703.
As in Prescott, the plaintiff in the present case is not an identifiable victim. The plaintiff has not set forth any facts sufficient to establish that she was not a member of the general public whose decision to visit the library rested solely within her own discretion. Therefore, the plaintiff may not recover under the identifiable person-imminent harm exception.
For the reasons set forth above, the court concludes that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law. Accordingly, the defendants' motion for summary judgment is granted.
David W. Skolnick, Judge