Opinion
No. CV 03-0828077
March 17, 2005
MEMORANDUM OF DECISION
FACTS
This case concerns an accident that allegedly occurred on the grounds of West Middle School at 927 Asylum Avenue in Hartford. The plaintiff alleges the following facts. On September 14, 2001, at approximately 4 p.m., the plaintiff arrived at the school to pick up her two children who were students there. When exiting the school, she slipped and fell on a puddle of water that had accumulated at the bottom of a back door stairway, sustaining several injuries. The plaintiff has named the school's principal and director of maintenance as defendants, in addition to the Hartford board of education and superintendent of education. The plaintiff alleges that the defendants failed to make reasonable inspection of the stairs, wrongfully permitted the water to accumulate and failed to have appropriate policies and procedures in place for the maintenance of such conditions. The defendants now move for summary judgment.
DISCUSSION
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 . . . 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, CT Page 4982 849 A.2d 839 (2004). "[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 . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
The defendants move for summary judgment on the ground that the action is barred by governmental immunity. The defendants argue that the omissions alleged by the plaintiff are discretionary, thus triggering immunity. They argue that General Statutes § 52-557n confers immunity to governmental officials, including towns and boards of education, for the performance of discretionary public acts. The plaintiff counters that this situation falls under an exception to governmental immunity, because the defendants failed to execute a ministerial, rather than discretionary, duty. She further argues that, because her presence on the school premises was a necessity, she was a foreseeable, identifiable person subject to imminent harm.
Because the defendants in the present case are the movants, they bear the burden of showing the absence of any genuine issue of material facts. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004). In their answer to the plaintiff's amended complaint, the defendants raise two special defenses sounding in contributory negligence and governmental immunity. The sole evidence submitted by the defendants in support of their motion is an uncertified deposition transcript. This court, however, has previously held that it will not consider such evidence in deciding a motion for summary judgment. Krider v. Zimmerman, Superior Court, judicial district of New London at Norwich, Docket No. CV 107282 (December 5, 1996, Booth, J.).
Nevertheless, the defendants have demonstrated that they are entitled to judgment as a matter of law. "The [common law] doctrines that determine the tort liability of municipal employees are well established . . . Although historically [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [municipal] employees faced the same personal tort liability as private individuals . . . Over the years, however, [t]he doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts." (Citations omitted; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 727, 643 A.2d 1226 (1994). The Supreme Court "has approved the practice of deciding the issue of governmental immunity as a matter of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
"Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citation omitted; internal quotation marks omitted.) Mulligan v. Rioux, supra, 229 Conn. 727. The issue in the present case is whether removing a puddle of water formed near a stairway outside a school is a duty to be performed without the exercise of judgment or discretion.
The Appellate Court has held that "although the general rule is 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." (Internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 855, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). The determination of the applicability of governmental immunity is apparent from the allegations in the present complaint, and, accordingly, this court may properly consider the motion for summary judgment.
In Segreto, the court held that the complaint alleged discretionary activity, because "the plaintiff's allegations all relate[d] to whether the city's design and maintenance of the stairway were reasonable and proper" and because the plaintiff failed to allege "that the city had some policy or directive in place regarding those duties with which it or its employees failed to comply." Id., 857. In the present case, the plaintiff alleges that the defendants failed to make reasonable inspection of the stairs on a regular basis, permitted the water to accumulate and failed to have appropriate policies and procedures in place for the maintenance of such conditions. As in Segreto, the plaintiff's allegations relate to whether the defendants' maintenance of the stairway was reasonable and proper. "[W]hat constitutes a reasonable, proper or adequate inspection involves the exercise of judgment." Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989). The plaintiff does not allege that the defendants failed to comply with a policy in place, but rather alleges that there was no policy in existence. Where, as here, a plaintiff's complaint contains no allegation that the government official failed to perform a required duty that must be done in a prescribed manner, it is apparent that the plaintiff has not alleged that the defendants were performing a ministerial duty. Segreto v. Bristol, supra, 71 Conn.App. 855. The plaintiff has failed to meet its burden of showing a genuine issue as to whether the activity in question was discretionary or ministerial.
The defendants cite Burns v. Board of Education, 228 Conn. 640, 628 A.2d 1 (1994), for the proposition that sanding or salting an icy outdoor courtyard is a discretionary matter. While the Supreme Court did not rule on that issue, the parties adopted the Appellate Court's determination that "the duty was discretionary and fell within the ambit of the doctrine of governmental immunity." Burns v. Board of Education, 30 Conn.App. 594, 599, 621 A.2d 1350 (1993), rev'd on other grounds, 228 Conn. 640, 628 A.2d 1 (1994). The defendants also distinguish the present case from Burns, because they argue that no exception to governmental immunity should apply. The Supreme Court held in Burns that the identifiable person exception applied, since students are "statutorily compelled to attend school and to obey school rules and discipline formulated and enforced pursuant to statute." Burns v. Board of Education, supra, 228 Conn. 649. There is no similar statutory requirement in this case. In the absence of a statutory mandate there is no showing that the plaintiff was required to be at the school.
Nevertheless, the plaintiff argues that, even if removing the puddle was discretionary, she is entitled to recovery because this case falls under the imminent harm exception to governmental immunity. "A municipal employee's immunity for the performance of discretionary governmental acts is . . . qualified by three recognized exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence . . . Thus, [t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." (Citation omitted; internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003).
The second and third exceptions do not apply to this case. The plaintiff claims, however, that she is entitled to recovery under the first exception, specifically because she was an identifiable person subject to imminent harm. "The [identifiable] person/imminent harm exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." (Internal quotation marks omitted.) Evon v. Andrews, supra, 211 Conn. 507. "In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." Burns v. Board of Education, supra, 228 Conn. 647.
The plaintiff's sole argument that she falls within the identifiable person exception is that her presence at the school was a necessity. She cites Burns as support for this contention. However, the plaintiff did not plead any facts indicating that her presence at the school was mandated, and makes that assertion for the first time in her memorandum of law. "The issue [as to any material fact] must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Citation omitted; internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). The plaintiff here may not raise a genuine issue as to a material fact that she is not entitled to litigate under her pleadings. The plaintiff is not entitled to litigate the issue of whether her presence was a necessity, because she failed to properly plead any such allegation. See Practice Book § 10-1.
Moreover, even if the court considers the plaintiff's argument, she does not fall within the exception. At the time of the accident, the plaintiff was allegedly picking up her then six-year-old son from an after-school activity conducted by West Middle School and the Boys and Girls Club. She argues that her presence at the school was involuntary, yet she admits that she knowingly allowed her child to participate in the after-school program. She explains this apparent paradox by arguing that attendance was "indispensable" to her child's safety, well-being and education. The plaintiff goes on to describe her son's participation in the program as "compelled" by his age and her presence as "required." The plaintiff also suggests that, because participation was encouraged by the school and because bus transportation for her child was unavailable, she was an identifiable person. She further argues that standing water, by its nature, presents an imminent harm. However, the plaintiff, in liberally reading the words identifiable and imminent, has misinterpreted the identifiable person/imminent harm exception.
Burns stands for the limited rule that, because they are statutorily compelled to be at school, students can be a foreseeable class of victims of harm resulting from negligent school maintenance. Burns v. Board of Education, supra, 228 Conn. 644. In Burns, the plaintiff student slipped on an icy patch in the school's courtyard. The Supreme Court held that, "[a]t least during school hours on school days, when parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees, the superintendent has the duty to protect the pupils in the board's custody from dangers that may reasonably be anticipated." Id., 649. In the present case, there was no statutory compulsion for the plaintiff to be at the school, nor was she a member of a class protected by statute for this type of harm. The plaintiff, therefore, was not an identifiable person under the exception to governmental immunity.
The Supreme Court also found that the danger to the plaintiff in Burns was imminent, because it was limited to the duration of the icy condition and "the potential for harm from a fall on ice was significant and foreseeable." Id., 650. The Supreme Court has not ruled on the foreseeability of danger from standing water in the context of the exception to governmental immunity. Nevertheless, neither party has presented evidence as to whether the potential for injury from the puddle was significant or foreseeable. Moreover, the plaintiff has neither pleaded facts nor provided evidence indicating that she was either an identifiable person or in a protected class, and she therefore cannot satisfy the first requirement for application of the exception.
The Connecticut Supreme Court has also held that an injury that may occur at some undetermined point in the future does not meet the level of imminency required for the exception. In Evon, the Supreme Court held that the possibility of a fire related to the defendants' alleged failure to enforce various statutes and regulations regarding rental property maintenance did not satisfy the imminence requirement. Evon v. Andrews, supra, 211 Conn. 508.
Prescott v. Meriden, 80 Conn.App. 697, 836 A.2d 1248 (2003), cert. granted, 268 Conn. 901, 845 A.2d 405 (2004), is directly analogous to this case. In Prescott the court noted that "[t]he plaintiff was a member of the general public who voluntarily attended a public function at a municipal athletic field. Having a son playing in the game motivated the plaintiff to attend, but that did not compel the plaintiff to be there. He had the same right to attend as any member of the public and was exposed to the same conditions as anyone else who attended the game. Because the decision to attend the game rested solely within the plaintiff's discretion, we cannot properly conclude that it was foreseeable that he would attend and that he consequently was an identifiable victim." Id., 703.
In the present case, the plaintiff has neither alleged facts nor submitted evidence demonstrating that she was anything but a member of the general public whose presence at the school was solely within her own discretion. Although her son's presence there may have motivated her to go to the school to pick him up, she was not required to be present.
CONCLUSION
The court may consider the motion for summary judgment on the basis of the allegations in the complaint, since the movant's special defense sounds in governmental immunity. As the plaintiff has not shown that any exception to the doctrine of governmental immunity applies, the defendants are entitled to judgment as a matter of law. Therefore, the motion for summary judgment is granted.
Kevin E. Booth, J.