Opinion
No. X02 CV 02-0178124-S
April 14, 2005
RULING ON MOTIONS FOR SUMMARY JUDGMENT
The plaintiffs in these companion cases are six surviving passengers and the estate administrator of a seventh person killed when a tree from the side of the road fell onto the minivan in which they were driving. The defendants are town of Brookfield, the town's tree warden, and the owner of the property on which the tree was at least partly located. The defendants move for summary judgment on all counts.
I
The undisputed facts reveal that, in approximately 1990, John H. Austin, Jr., who resided at 81 Pocono Road in Brookfield, had the branches removed from a tree that stood about eight feet from the road partly on Austin's property but largely in the town's right of way. About ten years later, on or about July 12, 2000, Austin called the Brookfield public works department and left a message that a tree in front of his house was beginning to split. In response, Ronald Klimas, Brookfield's public works director, visited the property but did not remove the tree or call the tree warden. Tragically, on July 17, 2000, the tree fell on a minivan driven by Terese Kondrat, injuring her, killing her friend Rosanna Curtin, and physically and emotionally injuring five children in the Kondrat and Curtin families.
Alter the accident, the tree warden, Walter Loesch, inspected the tree. He stated that it was one of the most rotten trees he had ever seen. He added that, if he had inspected the tree before it fell, he would have ordered it cut down because it presented an immediate hazard.
II CT Page 6490
The plaintiffs allege that tree warden Walter Loesch was negligent in failing to inspect and cut down the tree in question. The defendants seek summary judgment on the counts against Loesch on the ground of a municipal employee's common-law immunity. See Violano v. Fernandez, 88 Conn.App. 1, 8-11, 868 A.2d 69 (2005). Summary judgment is available "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49.
In DeConti v. McGlone, 88 Conn.App. 270 A.2d (2005), the Appellate Court recently held, in a similar case of a rotted tree falling on an automobile, that "the duty to inspect and to care for trees undoubtedly involves the exercise of judgment and, as such, is properly classified as a discretionary act." Id., 273. The court reaffirmed Roman v. Stamford, 16 Conn.App. 213, 220-22, 547 A.2d 97, (1988), aff'd, 211 Conn. 396, 559 A.2d 710 (1989), which had held that this duty is a public rather than private one. The DeConti Court also confirmed that this type of action does not fit within the exception to municipal employee immunity for cases in which it is "apparent to the public officer that his or her failure to act would likely be to subject an identifiable person to imminent harm." (Internal quotation marks omitted.) Id., 272-75. In light of DeConti, the plaintiffs cannot prevail on the counts against Loesch, including the count seeking loss of consortium and the counts seeking indemnity from the town under General Statutes §§ 7-101a and 7-465 based on Loesch's actions. Accordingly, the court grants summary judgment on counts one through four, seven through nine, and ten through twelve in the Curtin complaint, and counts one through three and seven through fifteen in the Kondrat complaint.
The court rejects two arguments made by the plaintiffs to distinguish this case from DeConti and cases like it. First, the notice that the town received from Austin did not convert Loesch's duty to the public into a private duty to the plaintiffs. Loesch had no notice that the plaintiffs would be driving past Austin's house. Second, the plaintiffs cannot overcome immunity based on the exception applicable to "acts that involve malice, wantonness or intent to injure, rather than negligence." The plaintiffs do not plead that Loesch's actions were wanton. Moreover, it is undisputed that Loesch had no advance notice that the tree causing the accident was dead, rotten, or otherwise in need of attention. (Loesch affidavit, ¶ 5.) Under these circumstances, his failure to act could not have been wanton.
III
The plaintiffs sue the town in several counts for negligence under General Statutes § 52-557n(a)(1)(A). The defendants invoke municipal immunity for discretionary acts under § 52-577(a)(2)(B). See note 4 infra. The plaintiffs respond that there are issues of fact concerning whether the town had a ministerial duty to forward Austin's complaint to the tree warden, thus disabling the town from invoking municipal immunity for discretionary acts, and rendering it potentially liable for negligence.
Although our Supreme Court has approved the practice of deciding the issue of municipal immunity as a matter of law, Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988), it has also stated that whether acts are discretionary or ministerial is a factual question. See Guavin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982). See generally Kolaniak v. Board of Education, 28 Conn.App. 277, 279-80, 610 A.2d 193 (1992). In this case, the plaintiffs clarified at oral argument that they seek only a determination that there are triable issues of fact concerning whether the town's duty to forward the complaint to the tree warden was a ministerial one.
"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 the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 851, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). In this case, there is ample evidence, much of it undisputed, to support the conclusion that Klimas, as public works director, did not have to exercise judgment or discretion in handling the information he received about the tree in question. Klimas received a message that indisputably stated "[t]ree in front of house beginning to split." Klimas states in his affidavit that "[w]here in the judgment of the Tree Warden of the Town of Brookfield public safety demands the removal or pruning of any tree under his control, it is within his sole discretion to have such tree removed or pruned." (Emphasis added.) (Klimas affidavit, ¶ 6.) In fact, the job description for the Brookfield public works director identifies twenty-five duties, but not one of them includes any mention of trees. Loesch similarly avers that "[i]t was within my discretion to make any such examination, inspection, or designation [of trees] to be culled, trimmed, or cut down . . ." (Loesch affidavit, ¶ 7.) Loesch reported to Klimas every day during this time period, thus giving Klimas a readily available opportunity to relay the message about the tree to Loesch.
Given these facts, a jury could reasonably find that it was for the town tree warden, and not the public works director, to make the judgment call concerning how to care for the tree in question, and that Klimas therefore had a ministerial duty to contact Loesch. The court certainly cannot conclude under these circumstances that, as a matter of law, Klimas necessarily had discretion not to refer the matter. Because of this evidence of a ministerial duty, municipal immunity is not available to shield the town from trial on the plaintiffs' allegations that the town, through Klimas, negligently failed to act. Accordingly, the court denies the motion for summary judgment on those portions of counts thirteen through sixteen in the Curtin complaint, and counts sixteen through twenty in the Kondrat complaint, that allege liability under § 52-577n (a).
The court does not mean to suggest that it was improper for Klimas to visit Austin's residence and investigate the situation on his own. Ultimately, however, Klimas had a duty to turn the matter over to the tree warden.
The defendants do not present any evidence to show that the failure of Klimas to refer the matter to the tree warden was not a proximate cause of the accident. Because the party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute, Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000), the defendants cannot prevail at this point on proximate cause grounds.
IV
The plaintiffs also assert a cause of action against the town based on General Statutes § 52-557n(b)(8). The defendants argue that this subsection does not create a right of action. In order to evaluate this claim, the court must examine the language and structure of the entire statute. See State v. Courchesne, 262 Conn. 537, 563, 816 A.2d 562 (2003); Bender v. Bender, 258 Conn. 733, 741, 785 A.2d 197 (2001). Paragraph (a) of § 52-557n describes situations in which "a political subdivision of the state shall be liable for damages to person or property . . ." (Emphasis added.) The critical language of paragraph (b) provides that "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 . . ." (Emphasis added)
In pertinent part, § 52-577n provides:
(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to Section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct; or (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.
(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 plaintiffs rely on the fact that paragraph (b)(8) provides for nonliability for certain cases of failure to inspect "unless the political subdivision had notice of 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 plaintiffs claim that, by negative inference, this exception to the town's nonliability creates liability.
The plaintiff's interpretation, however, inverts the meaning of the paragraph. The plain language of paragraph (b), and especially the contrast between the language italicized above in (a) and (b), reveals that paragraph (b) literally addresses situations in which the town "shall not be liable." It simply flouts the language of the statute to convert paragraph (b) into one that would have the exact opposite meaning and create situations in which the town "shall be liable." Rather, the better meaning of the exceptions to nonliability in paragraph (b)(8) is that they are simply that — situations in which the nonliability of the town would not automatically apply. See Gonzalez v. Waterbury, Superior Court, judicial district of Waterbury, Docket No 143396 (July 17, 1998) (Hodgson, J.) ( 22 Conn. L. Rptr. 446).
The plaintiffs observe that paragraph (b) begins with the language "[n]otwithstanding the provisions of subsection (a) of this section . . ." The effect of this language, according to the plaintiffs, is to eliminate not only the provisions of paragraph (a)(1) that describe when a town "shall be liable," but also the various immunities in paragraph (a)(2), including the immunity relied on here for "negligent acts or omissions which require the exercise of judgment or discretion as official function of the authority expressly or impliedly granted by law." General Statutes § 52-577n(a)(2)(B). The plaintiffs contend that, by eliminating this immunity, there is no barrier to suit in cases, allegedly like the present one, in which the town omitted to make or negligently made an inspection and, under the exception to immunity in paragraph (b)(8), "the political subdivision had notice of such . . . a hazard."
Although the legislature should have been clearer, the only sensible interpretation of the "notwithstanding" clause that introduces paragraph (b) is to eliminate the cases in paragraph (a)(1) in which a town "shall be liable" without also eliminating the immunities in paragraph (a)(2). This construction produces a consistent legislative scheme in which paragraph (a) describes cases in which a town "shall be liable" and paragraph (b) describes cases in which, "[n]otwithstanding the provisions of subsection (a) of this section," a town "shall not be liable." The alternative, upon which plaintiff relies, is to read "shall not be liable" to mean "shall be liable." While our statutes are not always models of clarity, the court will not indulge in the assumption that the legislature meant the polar opposite of what it said. Nor will it presume that the legislature intended to create liability by negative inference. Accordingly, the court concludes that § 52-577n(b)(8) does not create a cause of action. The court therefore grants summary judgment on those portions of counts thirteen through sixteen in the Curtin complaint, and counts sixteen through twenty in the Kondrat complaint, that allege liability under § 52-577n(b). See Mazurek v. Great American Insurance Co., Inc., Superior Court, Docket No. 177433 (December 16, 2004, (Schuman, J.) ( 38 Conn. L. Rptr. 402) (authorizing partial summary judgment on portions of a count).
V
The town also moves for summary judgment on those counts against it arising under General Statutes § 13a-149, the municipal highway defect statute. The town relies principally on the Supreme Court's decisions in Hewison v. New Haven, 34 Conn. 136 (1867), and Comba v. Ridgefield, 177 Conn. 268, 413 A.2d 859 (1979).
Section 13a-149 provides:
Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982 shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.
In Hewison, the court held that a piece of cloth suspended above a street and attached to buildings on each side of the street by iron weights was not a highway defect. In its opinion, the court identified the following examples of matters that do not constitute highway defects: " trees or walls of a building standing beside the road, and liable to fall by reason of age and decay, or from other cause." (Emphasis added.) Id., 143.
Comba held that a tree limb that hung over a highway, stemming from a tree located within the limits of highway, was not a highway defect. The court reviewed the case law on this issue, including Hewison, and observed that it had historically held that "if there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair." Id., 271. The court concluded that the overhanging limb in the case before it "did not obstruct, hinder or operate as a menace to travel. It was a condition that could cause injury, but that injury could result even to one who was not a traveler on the highway. A person could be injured by the limb; but the use of the highway, as such, would not necessarily have led to the injury." Id.
Ordinarily, Hewison and Comba would resolve the issue here. In both Comba and the present case, the tree in question was at least largely rooted in the public right of way. If anything, the fact that, in Comba, the tree overhung the road, while in the present case the tree stood without branches about eight feet from the road, makes the tree in the present case less of a direct menace to travel. Although the decay of the tree in the present case perhaps made it more likely to fall on a passing motorist, Hewison counsels that a tree in this situation is simply not a highway defect. Thus, under Hewison and Comba, the plaintiffs cannot prevail on a highway defect theory. See also Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991) (question of "highway defect" is a question of law if facts undisputed).
The plaintiffs nonetheless rely on the Appellate Court's decision in Tyson v. Sullivan, 77 Conn.App. 597, 824 A.2d 857, cert. denied, 265 Conn. 906, 831 A.2d 254 (2003). Tyson held that a rock ledge located directly alongside the highway, from which boulders, rocks, and other debris broke loose, was a highway defect. The court distinguished Comba on the ground that a rock ledge was more likely than an overhanging tree branch to harm a highway traveler and because, in the case of rock ledges adjoining highways, there were more readily available and practical "remedial measures to alleviate the [inherent] dangers . . ." Id., 605-06. The court then added the following statement, the underlined portion of which the plaintiffs emphasize:
Absent specific notice as to a particular tree limb or such obvious signs of damage or rot sufficient to establish constructive knowledge on the part of the defendant, the danger imposed by any particular tree branch falling into the road likely is not susceptible to remedial measures that could be reasonably applied. In other words, it might be unreasonable as a matter of public policy to include in the defendant's duty to "keep in repair" the state's roadways the necessity to conduct thorough inspections of all trees located along the state's highways in an effort to avoid liability for accidents such as the one that occurred in Comba.
(Emphasis added.) Id., 606.
In the present case, of course, the town did have "specific notice as to a particular tree . . . or such obvious signs of damage or rot . . ." Nevertheless, there are two reasons why the court is not bound by this language from Tyson. First, of course, the language is dicta. Importantly, this dicta conflicts with the holding in Comba, by which the court is bound, that an overhanging tree limb is not a highway defect.
Second, the fact that the town had notice of the tree may have made it more susceptible to remedial measures, but it did not make the tree any more dangerous to travelers or otherwise change the condition of the tree. While part of the concept of a highway defect is its susceptibility to remedy, the other part is its property of being "so direct a menace to travel over the way." Comba, supra, 177 Conn. 271. Regardless of the notice that the town had, the tree in the present case, like the tree in Comba, "did not obstruct, hinder or operate as a menace to travel." Id. Thus, Tyson does not present a basis for the court to depart from the binding effect of Comba. Accordingly, the court grants summary judgment to the town on all defective highway statute and related loss of consortium counts. In the Curtin complaint, this ruling disposes of counts seventeen through twenty; in the Kondrat complaint, the ruling disposes of counts twenty-one through twenty-five.
The plaintiffs concede that, in any case, they may not claim loss of consortium in connection with the highway defect statute.
VI
Defendant Joseph Austin moves for summary judgment on the ground that, because the tree was located at least partly in the town's right of way, the tree warden had the exclusive responsibility for maintenance of the tree that fell on the plaintiffs' vehicle. There is no dispute of Austin's contention that the tree was located at least partly in the public right of way. The dispute instead focuses on the applicability of Muratori v. Stiles Reynolds Brick Co., 128 Conn. 674, 25 A.2d 58 (1942), which held that "the legislative intent [in General Statutes §§ 23-59 and 23-65] was to vest exclusive control in the tree warden of all trees standing within the limits of a highway or of any parts of trees extending within those limits, though the trees themselves stand on private grounds, except as other public authorities have jurisdiction." Id., 678. The Muratori court accordingly affirmed a judgment entered in favor of the private landowner on whose grounds the tree at least partly stood.
Initially, it is not clear that there is a live controversy. The plaintiffs plead that the counts against Austin apply "in the alternative" "[i]f liability does not rest with Walter Loesch and the Town of Brookfield." (E.g. Curtin complaint, count twenty-seven, p. 48.) Because the court has concluded that the town could be liable on at least some counts, the plaintiffs may not intend to go forward against Austin. In that event, this issue would be moot.
Assuming a live controversy, the plaintiffs contend that Muratori does not apply because Austin "intentionally created the hazardous condition within the [town's] right of way" by cutting off all the branches of the tree, thus effectively killing it, about ten years before the accident. (Emphasis in original.) (Plaintiff's brief, p. 7.) The court dogs not agree. Even if the court had authority to depart from the clear language of Muratori that the town has "exclusive control" over trees within the limits of a highway, this case is not an appropriate one for such a departure. The plaintiffs' theory might fare better in a case in which the town's "exclusive control" was illusory and the town in reality had no control over the tree in question or no means to remedy the problem created by the landowner. But that is not the case here. The plaintiffs themselves emphasize that Austin gave the town adequate notice of the defective tree in front of Austin's house. Under these circumstances, the town had a sufficient opportunity to remedy the defect, even if Austin created it. Thus, there is no reason not to follow Muratori's clear command that the town has "exclusive control" of, and its holding that towns have exclusive responsibility for, trees at least partly touching on a public highway.
Finally, the plaintiffs argue that, if Muratori applies, then the tree warden statutes are unconstitutional because they deprive them of a common law cause of action. The court rejects this argument for the reasons stated in Bernard v. Freitas, Superior Court, judicial district of Danbury, Docket No. 328642 (November 29, 2000) (Adams, J.) ( 29 Conn. L. Rptr. 51). Essentially, as illustrated by the decision in this case, the plaintiffs retain a reasonable alternative remedy by suing the town.
For these reasons, the court grants Austin's motion for summary judgment in its entirety, thus disposing of counts twenty-one through thirty-two in the Curtin complaint and counts twenty-six through forty-three in the Kondrat complaint.
VII
In sum, the court grants the motions for summary judgment of defendants Loesch and Austin, grants the town's motion for summary judgment on those portions of counts thirteen through sixteen of the Curtin complaint and counts sixteen through twenty of the Kondrat complaint that allege liability under § 52-577n(b), grants the town's motion on counts seventeen through twenty of the Curtin complaint and counts twenty-one through twenty-five of the Kondrat complaint, and denies the remainder of the town's motions.
It is so ordered.
Carl J. Schuman Judge, Superior Court