Opinion
CV166029604S
07-17-2018
Wellington FERREIRA v. CITY OF WATERBURY et al.
UNPUBLISHED OPINION
File Date: July 18, 2018
Brazzel-Massaro, J.
INTRODUCTION
The plaintiff filed an Amended Complaint dated November 2, 2016. The defendants City of Waterbury and the Waterbury Board of Education have filed a motion for summary judgment as to both counts in the complaint. The defendants contend that they have immunity pursuant to Connecticut General Statutes § 52-557n. The defendants argues that the acts are discretionary and thus C.G.S § 52-557n prevents the finding of liability for this cause of action. The plaintiff has filed a memorandum in opposition dated January 19, 2018 arguing that the acts alleged are ministerial based upon their interpretation of the duties in conjunction with their application of the Code of Ordinances, the Waterbury City Charter and the Board of Education Bylaws. The defendants submitted a reply dated January 22, 2018.
FACTUAL BACKGROUND
The plaintiff is a school bus driver for the Durham School Services for the students in the City of Waterbury. On January 16, 2014, the plaintiff drove students in the course of his employment to the West Side Middle School in Waterbury in the morning. After leaving the students at the school he asked permission to use the rest room in the school. He was permitted to enter the school and went to the restroom. The restroom was located on the second floor. As he was leaving the school and descending the stairs he fell on the stairway. He alleges that the City of Waterbury was negligent in that: 1) the City knew or in the exercise of reasonable care should have known of the existence of the dangerous and defective condition of the stairway yet took no action to correct it; 2) that the defective condition was permitted to remain for an unreasonable period of time; 3) that the area was not inspected to discover said hazardous condition; 4) that the area was not cordoned off to prevent its use by lawful users such as the plaintiff; 5) that they failed to provide notice to the plaintiff of the defective and dangerous condition; 6) that the defendant failed to adopt, promulgate and/or enforce rules, policies, regulations or procedures concerning the prompt response to address the dangerous condition of the stair; and/or that the nosing on the stair was broken, cracked and uneven in violation of State of Connecticut Basic Building Code Section 1009.7.2 (formerly 1009.3.2 and 1009.3.3). The plaintiff contends that his injuries were caused by the defect. The defendants have alleged that the plaintiff does not have a claim because the maintenance of the staircase and the related duties are discretionary and thus they have immunity from suit pursuant to C.G.S. § 52-557n. Additionally, the defendants argue in their reply that even if discretionary, the exceptions as to identifiable person in imminent harm pursuant to the law do not apply to the factual circumstances in this action. The plaintiff has argued that the duty is ministerial and thus immunity does not apply. He argues that if in the alternative the court determines that the duty is discretionary the plaintiff is an identifiable person subject to imminent harm and the law should be applied to find that in the circumstances of this action he is an identifiable person subject to imminent harm thus entitled to an award.
DISCUSSION
A. Legal Standard
Practice Book § 17-49 provides that "summary judgment shall be rendered forthwith if the pleadings, affidavits and 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 motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion "the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 786, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o 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 ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue ..." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"A genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2008).
B. Immunity
In this action the defendants argue that any duty to repair or maintain the stairway is discretionary and thus immunity applies. At common law, a municipality generally was immune from liability for its tortious acts. Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). The Supreme Court has recognized however, "governmental immunity may be abrogated by statute." (Internal quotation marks omitted.) Id. The tort liability of a municipality has been codified in § 52-557n. The statute provides: "[e]xcept 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." Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by "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." The defendants rely upon C.G.S. § 52-557n(a) in this motion.
The plaintiff argues that the duty in question is ministerial and thus the immunity does not apply. The defendants contend that the duty as alleged in the plaintiff’s complaint is discretionary and also contends that in accordance with the case law the plaintiff does not satisfy one of the three exceptions for immunity.
The court first examines the claim that the allegations involve discretionary duties that are protected by immunity if the exceptions do not apply. The claims in the complaint clearly allege that the defendants failed to correct what plaintiff contends was a defective condition in a reasonable time, failed to inspect, did not cordone off or identify an alleged defect in a reasonable time and failed to adopt, promulgate or follow policies, procedures or regulations to address the alleged defect. The defendants contend that these allegations are clearly discretionary duties and thus there is immunity. "The hallmark of a discretionary act is that it requires the exercise of judgment. In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. In order to create a ministerial duty, there must be a city charter provision, regulation, rule, policy or any other directive [compelling] a municipal employee to [act] in a prescribed manner ..." "In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity ... A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs ... 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 [such a determination] is apparent from the complaint ... [W]hether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to § 557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ... Accordingly, where 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." (Citations omitted; internal quotations omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 224-25, 131 A.3d 771 (2016).
In the instant action, the plaintiff in his opposition attempts to create a specific requirement for inspection by grouping together ordinances, charter provisions, the bylaws of the Board of Education and a building code to create a duty of inspection or maintenance but the plaintiff interprets the provisions beyond the language or the intent of the ordinance, regulation, by law or code. The plaintiff argues that the defendant "has a ministerial duty to inspect, maintain and warn of hazards relating to the staircase in question." (Memorandum at page 5.) Thereafter, the plaintiff cites very general provisions and attempts to extend their language and intent to create some duty which is not there. For instance, the plaintiff cites to the Code of Ordinances Section 154.018 that refers to inside and outside stairs or a porch and appurtenance thereto shall be maintained and kept in sound condition and good repair but fails to recognize that the ordinance leaves the application of the ordinance to the discretion of the individual responsible for the structure. There are no methods or time for inspections or repairs. There are no guidelines as to what would constitute "good repair or maintenance." Is the ordinance referring to structural safety? The plaintiff fails to demonstrate that any ordinance speaks to this defect. The plaintiff utilizes a number of ordinances, codes, bylaws but never addresses the application to the facts known or more importantly unknown in this action. The defect which plaintiff cites is the nosing on a stair. There is no evidence or affidavit testimony to indicate more particularly where the defect is specifically located in the stairwell, how long the nosing chip had been present, whether there were any reports of the condition, or any other information to determine the reasonableness of the maintenance of the defendants. The plaintiff attempts to place a burden on the defendants to introduce or explain what process of inspection or maintenance is in place but this is not the responsibility of the defendants in filing their motions or in responding to the objection.
The plaintiff then proceeds to address the provisions of the Charter which place the responsibility to manage the construction and repair of school buildings to the Board of Education along with control of the money appropriated for such use. None of these provisions create any mandatory duty to perform inspections in a prescribed manner or in a limited or defined period of time or based upon particular protocol for ongoing supervision. These provisions even if applicable to the claims by the plaintiff are a prime example of discretionary acts and thus place responsibility for a discretionary act upon the defendants.
In addition, the plaintiff argues that the building officials and the Department of Inspection ordinances create some obligation but the sections cited relate to the qualifications and the officials. The plaintiff refers to a Building Code Section but does not relate this section specifically to the school or to a prescribed manner of inspection for the nosing of the stair.
Nevertheless, the plaintiff also argues that even if the defendants were engaged in a discretionary act, the identifiable person-imminent harm exception to governmental immunity applies. There are "three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official’s duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity- to encourage municipal officers to exercise judgment- has no force ... First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure ... Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ... Third, liability may be imposed when 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." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006).
The plaintiff argues that the third exception applies. "This identifiable person-imminent harm exception has three requirements: (1) imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject the victim to that harm ... All three must be proven in order for the exception to apply." Haynes v. Middletown, 314 Conn. 303, 312-13, 101 A.3d 249 (2014).
"[T]he criteria of ‘identifiable person’ and ‘imminent harm’ must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." Doe v. Petersen, supra, 279 Conn. 620-21. "[T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." Haynes v. Middletown, supra, 314 Conn. 323.
In the absence of a specific, identifiable person, "Connecticut appellate courts ... have declined to extend the identifiable person in imminent harm exception to the general public using roads and highways. Chirieleison v. Lucas, 144 Conn.App. 430, 442, 72 A.3d 1218 (2013). In Chirieleison, the Appellate Court held that the exception was inapplicable in the context of an accident allegedly caused by a firetruck that blocked two lanes of a highway at the scene of a prior accident The court held that because the plaintiff did not argue that the victim was identifiable as an individual; id., 442; but rather argued that she was within a class of foreseeable victims; id., 442; the alleged threat was to the entire class of the general public travelling on the highway, a group to which the court declined to extend the exception." Similarly, in Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), the Supreme Court held that the exception was inapplicable where a police officer allowed an intoxicated driver to continue driving, and one hour later, the driver struck and killed another driver. The court reasoned that "[t]he adoption of a rule ... where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." Id., 157. The plaintiff in the instant action has attempted to place himself within the group of identifiable victims within a school setting. His argument attempts to have the court extend the identifiable group of school children as a protected class to also extend to visitors within the school grounds. However, such an extension is not consistent with the law or the intent because in effect the recognition would apply to everyone who is in the school and thus is inconsistent with the case law which created a specific class that needed the protections because of their unusual status as children who are mandated to be in the school.
The case of Durant v. Board of Education of the City of Hartford, 284 Conn. 91 (2007), is particularly instructive in determining the issues of identifiable person-imminent harm exception in a school situation such as the instant action. The courts have found on a consistent basis that school children in a school environment are treated as identifiable persons because their presence is necessary and in fact compelled. Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998); Burns v. Board of Education, 228 Conn. 640, 638 A.2d 608 (1994). In establishing this theory the cases stated that it "focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parent were thus statutorily required to relinquish their custody to those officials during those hours and as a matter of policy they traditionally require special consideration in the face of dangerous conditions." Prescott v. Meriden, 273 Conn. 759, 764, 873 A.2d 175 (2005); Purzycki v. Fairfield, supra, 244 Conn. at 108-09; Burns v. Board of Education, supra, 228 Conn. at 648-50, 638 A.2d 1. Therefore, the governmental immunity did not apply under circumstances in which the parents are statutorily compelled to relinquish protective custody of their children to the school and the employees to preclude liability.
The Durant action follows the reasoning of prior courts which applied a very specific and narrow exception in the school environment. The plaintiff seems to espouse a view that because the accident occurred in a school facility during the school day, that he should be included as a forseeable class to be protected. In the Durant action, the plaintiff was not a student but was the parent of a student who picked her child up at an after school program. She was exiting and slipped on a puddle of water on the stairway. The court recognized that the question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly defined exception is limited.
To recognize the plaintiff in this action as an identifiable victim in imminent harm would require that this court totally ignore the Durant decision as well as the Prescott decision which involved individuals who were not school children and were not in any way required to be within the school grounds. The plaintiff in Durant attempted to connect her presence in the school with a requirement to pick her child up at the school upon completion of an after school program. The court refused. The plaintiff drives the school bus which brings the school children to the doors of the school but the job does not require that the plaintiff have any access to the building itself. It is telling that the plaintiff in the action asked permission to enter the school to use the facilities. In other words, the plaintiff was not an individual who would enter the building even as did the plaintiff in Durant to pick up her child. The facts in the instance case are even more attenuated. The Prescott court expressed a concern that "allowing the category to extend to a parent who was attending a sporting event would open the door to spectators at a public municipal event would constitute a class of foreseeable victims for these purposes, thus making the exception to broad that it would threaten to swallow the rule." Id. at 765, 873 A.2d 175. This concern is more exaggerated in the instant action in which the exception would apply to any individual who was given permission to enter the building whether it is the school bus driver, a volunteer to read to the children, a parent bringing a child forgotten lunch, book or other items, an individual delivering goods to the school or any number of unending individuals entering the school. Here, the plaintiff has not defined a special or particular connection to the school itself which would merit an extension of the class of foreseeable victims. To extend the class to include the plaintiff as an exception eliminates any distinction or parameters to limit governmental immunity and literally opens the door to anyone who steps in.
Therefore, in following both Prescott and Durant and based upon the facts in this action the court does not find that the plaintiff is within a forseeable class of victims to preclude immunity.
CONCLUSION
Based upon the above, the court grants the motion for summary judgment. The acts of the defendant in repairing, maintaining, and inspecting the stairway are discretionary and the plaintiff does not fall within the exception to immunity as an identifiable person in imminent harm.