Opinion
No. CV 07 5002093
February 20, 2009
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT NUMBERS 133 143
I. BACKGROUND
On April 21, 2005, David Williams is alleged to have been injured during a basketball practice for the Middletown Bulldogs. The injury occurred in the Middletown High School gymnasium during the April break from the regular school schedule. It is alleged that Williams slipped and fell on a dusty, unswept floor, causing him to sustain a serious knee injury.
On September 27, 2007, the plaintiff parent, Annette Williams-Crump, filed an amended twelve-count complaint on behalf of her minor son, Williams. The first and seventh counts are directed against Jeff Turro, the head custodian at Middletown High School; the second and eighth counts are against Robert Fontaine, the principal of Middletown High School; the third and ninth counts are pled against Carol Parmalee-Blancato and/or Michael Frechette, superintendent of Middletown High School; the fourth and tenth counts are directed at the Middletown board of education; the fifth and eleventh counts are pled against the Amateur Athletic Union (AAU), and the sixth and twelfth counts are against Bobby Dodd, AAU's president and chief executive officer.
The plaintiffs generally allege that the defendants had a duty to supervise the premises and maintain a safe environment for the basketball participants, and that they failed to do so. The plaintiffs further allege that the defendants breached their duty of care by failing to maintain the gymnasium floor in a safe condition, and by leaving it in a dusty, unswept condition, which caused Williams to slip and sustain his serious knee injury. In particular, the plaintiffs allege that the municipal defendants in this case owed a mandatory public duty to Williams to clean and safely maintain the gymnasium floor. The plaintiffs additionally allege that the Middletown Bulldogs were part of a league that the AAU was operating, managing or facilitating, and that it had possession or control of the Middletown High School gym at the time of the injury.
In their motion for summary judgment dated August 8, 2008, the board of education defendants assert that they are entitled to governmental immunity and that there are no issues of material fact. The plaintiffs reply that the board of education defendants owed a mandatory public duty to the plaintiffs, and that they breached their duty by failing to have the gym cleaned or maintained in a safe condition. They further allege that Williams was an identifiable person subject to imminent harm, and that the Middletown board of education was acting in a proprietary capacity, rather than in a purely governmental capacity, with respect to the AAU and its players.
In the second motion for summary judgment, filed on September 23, 2008, the defendants AAU and Dodd assert that they were neither in possession or control of the premises at the time of the incident, nor did they breach their duty of care to Williams in failing to maintain the premises in a safe condition.
II. DISCUSSION A. Summary Judgment
"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.) Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 168-69, 947 A.2d 291 (2008). "A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 450, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.
"It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically, [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact . . .
"An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 228-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). The court notes that both motions for summary judgment before the court have been filed by defendants to the action.
B. The AAU Dodd's Motion for Summary Judgment
The motion for summary judgment filed by AAU and Dodd asserts that neither had possession nor control of the Middletown gymnasium at the time of Williams' injury. In support of their motion, an affidavit by Dodd disclaims responsibility or control over the maintenance of the gym, the facility itself or the municipality. In opposition to both motions, Williams presented an affidavit claiming that his injury occurred in the Middletown High School gym while participating in an AAU basketball practice, as well as a check from the Middletown Bulldogs to the Middletown board of education in the amount of $112.50 for "gym usage." The check was dated April 8, 2005, and the injury is alleged to have occurred approximately two weeks later on April 21st.
Premises liability is based solely on control and possession, not title. See Rosa v. American Oil Co., Inc., 129 Conn. 585, 589, 30 A.2d 385 (1943). "Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee . . . [T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question . . . Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question [of control], then the issue should properly go to the jury for its determination." (Citations omitted; internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453-54, 857 A.2d 439 (2004).
Although our Supreme Court has indicated that "possession cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession;" Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939); the definition of the term "possession" may be more nuanced. According to the restatement of torts, for purposes of liability "[a] possessor of land is (a) a person who is in occupation of the land with intent to control it or (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b)." (Emphasis added.) 2 Restatement (Second), Torts § 328 E, p. 170 (1965).
The court finds the issue of control and possession of the Middletown High School gymnasium at the time of Williams' injury to be a material fact disputed by the parties in this case. As an issue of fact, it is within the province of the finder of fact at trial to determine the validity of this element of the plaintiffs' claim. For this reason, the AAU and Dodd's motion for summary judgment is denied.
C. The Board of Education's Motion for Summary Judgment
"The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct." Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). There are several well recognized exceptions to governmental immunity claimed by the plaintiffs in this case. They are: (1) the identifiable person — imminent harm exception; (2) the acting in a proprietary capacity exception; and, (3) the violation of a mandatory public duty exception.
CT Page 3847
1. The Identifiable Person — Imminent Harm Exception
The board of education defendants' motion for summary judgment claims that Williams was not an identifiable person subject to imminent harm. The court agrees. In light of the recent case of Durrant v. Board of Education, 284 Conn. 91, 931 A.2d 859 (2007), this exception to governmental immunity does not apply to a voluntary activity on school grounds. "No statute or legal doctrine required the plaintiff to enroll her child in the after school program; nor did any law require her to [be at] school on that particular day . . . The plaintiff's actions were entirely voluntary, and none of her voluntary choices imposes an additional duty of care on school authorities . . ." Id., 108. For this reason, the board of education defendants are immune based upon this theory of liability.2. The Proprietary Capacity Exception
In this case, the plaintiffs have presented a check from the Middletown Bulldogs to the Middletown board of education in the amount of $112.50 for "gym usage." As previously indicated, the check was dated April 8, 2005, and the injury is alleged to have occurred approximately two weeks later on April 21st. Although this is a small sum in the context of the Middletown board of education budget, it is evidence of the collection of fees, the scope and proprietary effect of which has yet to be determined.
In Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006), the Supreme Court established the applicable standard for the proprietary capacity exception to municipal immunity. "In determining whether a municipality's activity was proprietary in nature, this court, along with those of other jurisdictions, has examined whether the activity generated a special corporate benefit or pecuniary profit inuring to the municipality." (Emphasis in original; internal quotation marks omitted.) Id., 842. The court explained that "a municipality generally has been determined to be acting for its own special corporate benefit or pecuniary profit where it engages in an activity `for the particular benefit of its inhabitants' . . . or if it derives revenue in excess of its costs from the activity." (Citation omitted; internal quotation mark omitted.) Id., 847. Although the payment of an entry fee for an athletic event is cited by the court to be insufficient proof of the proprietary capacity exception; id., 847; municipal leasing of government property may give rise to this exception to immunity. "In the specific context of leasing municipal property, this court and courts of other jurisdictions generally have concluded that a municipality acts in its proprietary capacity when it leases municipal property to private individuals." CT Page 3848 Id., 849.
A single payment of $112.50 for use of the Middletown High School gym by a private group is minimal proof of "special corporate benefit or pecuniary profit inuring to the municipality." (Internal quotation marks omitted.) Id., 842. The question then is whether this is sufficient proof of a material issue of fact for the purpose of prevailing on a motion for summary judgment. Generally, in seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Emphasis added; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "Also, [o]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion . . . A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citations omitted; internal quotation marks omitted.) Id., 558.
Considering the evidence of a "gym usage" fee in a light most favorable to the plaintiffs, it may be inferred that the gym has been used by the board of education for a proprietary function. The plaintiffs have therefore met their burden of establishing a material issue of fact between the parties, but only as to the board of education itself and not the individual defendants.
3. Mandatory Public Duty Exception
Generally, the distinction between a ministerial and discretionary duty is one of fact, however there are three instances when the decision can be made as a matter of law. The first instance is when the court determines that the municipality owes no duty to the plaintiff. "Whether the acts complained of . . . were governmental or ministerial is a factual question which depends upon the nature of the act complained of. Gauvin v. New Haven, [ 187 Conn. 180, 186, 445 A.2d 1 (1982)]; Couture v. Board of Education, 6 Conn.App. 309, 311, 505 A.2d 432 (1986). However, the Supreme Court also approved the practice of deciding the issue of governmental immunity as a matter of law. Gordon v. Bridgeport Housing Authority, [ 208 Conn. 161, 176, 544 A.2d 1185 (1985)]. In deciding the issue of governmental immunity as a matter of law, the court in Gordon noted, however, that in the cases holding that the ministerial/discretionary determination is a question of fact, under the facts pleaded in those cases, the existence of the duty of the municipality was not questioned. Id., 180-81." (Internal quotation marks omitted.) Esposito v. Sapia, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0103875 (July 1, 1993, Lewis, J.).
Both the second and third instances where the distinction between a ministerial and discretionary duty can be made as a matter of law focus on the nature of the acts alleged in the complaint. "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." (Citation omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "[T]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to [General Statutes] § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint. Segreto v. Bristol, [ 71 Conn.App. 844, 854, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002)]; see also Evon v. Andrews, [ 211 Conn. 501, 506, 559 A.2d 1131 (1989)]." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 51 n. 8, 881 A.2d 194 (2005).
The second instance when the distinction between a ministerial and discretionary duty can be made as a matter of law is when the basis of the complaint is that the city failed to act "reasonably," which necessarily involves the exercise of judgment. "[W]here it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Emphasis in original.) Martel v. Metropolitan District Commission, supra, 275 Conn. 51 n. 8. "In Evon v. Andrews, supra, 211 Conn. 505-07, the plaintiffs brought a common-law tort action against the defendant municipality and its employees for their allegedly negligent failure to inspect adequately a rental dwelling. We determined that the defendants' acts were discretionary in nature because `what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment.'" Id., 49-50. Furthermore, in Evon v. Andrews, the Supreme Court specifically noted: "The plaintiffs do not allege that the defendants failed to inspect the dwelling. They allege that the defendants failed `to make reasonable and proper inspections' of the premises." (Emphasis in original.) Evon v. Andrews, supra, 211 Conn. 506.
The third instance when the distinction between a ministerial and discretionary duty can be made as a matter of law is when the complaint contains no allegations that the defendant had some policy or directive in place regarding those duties with which its employees failed to comply. "In Colon [v. Board of Education, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000)], the plaintiffs sought to recover from the defendant board of education after the plaintiff student was struck by a door that allegedly was negligently opened by a teacher at her school. Id., 179-80. The complaint simply alleged that the teacher had acted negligently and that the defendant was liable for the negligence of its employees. Id., 180. The defendant raised a special defense of governmental immunity and then moved for summary judgment on that special defense. Id. The trial court rendered a summary judgment in favor of the defendant. Id. It held that the teacher's action in opening the door was discretionary rather than ministerial and, therefore, the defendant was not liable unless the action fell within an exception to the rule that employees of a municipality are not [to] be liable for their discretionary acts. Id. On appeal, the plaintiffs claimed that the trial court improperly determined that the teacher's actions were discretionary rather than ministerial. Id., 181. This court disagreed. We explained that `[a]lthough 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.' . . . Id., 181, citing Evon v. Andrews, supra, 211 Conn. 505-07. We stated that because the plaintiffs' complaint contained no allegation that the teacher was required to perform, i.e., open the door, in a prescribed manner and failed to do so, it was apparent from the complaint that the plaintiffs had not alleged that the teacher was performing a ministerial duty. Colon v. Board of Education, supra, 182-83." Segreto v. Bristol, supra, 71 Conn.App. 855-56.
In Segreto, the plaintiff alleged as follows: "The Plaintiff's fall and her consequent injuries were proximately caused by the negligence of the Defendant . . . in one or more of the following respects: . . . b. They allowed the exterior stairway to consist of single step-downs or risers in conjunction with sets of multiple risers; c. They failed to paint or otherwise visually mark the edges of risers so as to make them more nearly visible; d. They failed to provide continuous handrails for use by persons using the exterior stairway; e. They failed to post warnings regarding the presence and configuration of the stairs." (Internal quotation marks omitted.) Id., 857. The Appellate Court went on to state that "[t]he complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply. Additionally . . . the affidavit of the city's claims and loss coordinator stated that the city had no such policy in place for the general maintenance and design of the stairway, and the plaintiff failed to offer an affidavit that would have tended to put that fact in dispute." Id.
In the present case, the plaintiffs allege, inter alia, that the defendants failed to exercise due care pursuant to a "duty, school requirement or common practice." The board of education defendants nonetheless claim they are immune from liability because their acts are discretionary as they have established no policies, directives or mandatory procedures concerning the inspection, maintenance or repair of the Middletown High School basketball court. The court finds that the language of the complaint sufficiently alleges a mandatory duty. Further, the court finds there to be no basis for finding the tortious conduct alleged in the complaint to be discretionary by necessity, and therefore the question of whether a mandatory duty exists in this case must be determined by the court as a matter of fact.
Supporting the board of education defendants' claim for summary judgment is the affidavit of Turro. In addition to attesting to the lack of a mandatory duty, Turro also states in the affidavit that no custodian was present at the gym on the date of Williams' injury and that he was unaware of any prior complaints of dust on the gymnasium floor. In response to the motion for summary judgment and the assertions of fact made by Turro, Williams provided an affidavit, attesting to his fall due to noticeable dust on the floor of the Middletown High School gym on April 21, 2005. The plaintiffs further provided the "Policies Bylaws" of the Middletown public schools, including an application for the use of public school facilities, presented to the court for its consideration without objection. The Middletown Public School System Policies (Policies) provide for the rental of school system property, with fees set and administered in conformance with regulation number 1330. Regulation 2231(b). The Policies, in addition to requiring "high standards of safety"; Regulation 2231(b) make it "the responsibility of all school personnel . . . to be alert to any hazard . . . which may jeopardize the safety of students . . . or the public." Regulation 3280.1(b).
Regulation 1330(a) of the Policies provides for an application to use school buildings by community groups for "worthwhile purposes." The Application For Use Of Public School Facilities (Application) provides for a rental fee waiver for "Middletown based Non-Profit Organizations . . . however, Custodial Employees Fees . . . if applicable, cannot be waived under any circumstances. Custodial Fees are charged at $35.00/hour/employee assigned. A `Utility Fee' of $50.00 per function shall be charged for the use of any Auditorium, Gym or Cafeteria." According to the application form, the custodial fee of $35 per hour is calculated as follows: "In addition to the actual time of the function you will be charged a minimum of one-half (1/2) hour prior to the start of the function . . . and a minimum of one (1) hour after the function. The time after the function may vary depending on the clean up required."
In addition to supporting the court's conclusion that sufficient evidence has been presented to oppose the motion for summary judgment based upon the proprietary capacity exception, the Policies and Application language cited above also supports the mandatory public duty exception. The Policy and Application language cited appears to require a custodian to have been at the Middletown Bulldogs practice. According to Turro, this was not done. Moreover, the inference associated with having a custodian at the function one-half hour in advance is to not only ensure that the building is opened, but to address "any hazard . . . which may jeopardize the safety of students . . . or the public." Regulation 3280.1(b). Although the evidence presented is not conclusive proof of a mandatory duty, the court finds that it gives rise to a factual basis for the inference of a mandatory duty, sufficient to survive a motion for summary judgment. See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 556.
III. CONCLUSION
Based upon the nature of the allegations in the complaint and the material issues of facts disputed by the parties to this action, the motions for summary judgment are denied.