Opinion
No. CV 06 5001817 S
March 21, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The issue for this court to decide is whether it should grant the defendant's motion for summary judgment as to the plaintiff's complaint on the ground that there is no genuine issue of material fact as to the negligence claim, and the defendant is entitled to judgment as a matter of law.
FACTS
On July 3, 2006, the plaintiff, Maria Macri, filed a complaint against the defendant, city of New Britain. This action arises out of injuries allegedly sustained by the plaintiff at a parking garage operated by the city located at 35 Washington Street, New Britain, Connecticut. In her complaint, the plaintiff alleges the following facts: On July 20, 2004, the plaintiff allegedly attempted to enter an elevator in the garage when she tripped on the edge of the elevator floor. The plaintiff alleges that when the doors opened, the elevator floor was not level with the garage floor and that several inches separated the two surfaces. The plaintiff alleges that, as a result, her injuries and losses were caused by the negligence of the city because it was aware of the defect. The defendant's failure to take action to remedy the defect resulted in the elevator remaining in a dangerous condition for an unreasonable amount of time. Further, the plaintiff alleges that the elevator was not inspected, that users of the elevator were not provided with notice of the defect, the area was not cordoned off, and the defendant failed to train its agent to properly inspect the elevator.
On November 17, 2006, the defendant filed a motion for summary judgment of the plaintiff's complaint with a supporting memorandum of law. The defendant submitted the maintenance contract entered into with Thyssenkrupp Elevator and an affidavit of Denis Pellegrino, the facilities superintendent of the city of New Britain. On January 18, 2007, the plaintiff filed a memorandum in opposition to the motion to for summary judgment. The plaintiff submitted the transcript from a deposition taken of Pellegrino, a 2004 budget comparison report for the city of New Britain, a marketing document signed by Pellegrino, a lease entered into by the city of New Britain and the New Britain parking commission, the minutes from a February 20, 2002 parking commission meeting, a letter written by Pellegrino to Michael Washington, a letter written by Pellegrino to Robert Jarrett, a letter written by Pellegrino to "All DPM Security Guards," the maintenance contract entered into with Thyssenkrupp Elevator, and the affidavit of the plaintiff. On February 6, 2006, the defendant filed a reply to the plaintiff's memorandum objecting to the motion for summary judgment.
SUMMARY JUDGMENT
Practice Book § 17-49 provides in relevant part that 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 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, entitles 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 . . . When 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." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-6, 893 A.2d 422 (2006).
GOVERNMENTAL IMMUNITY
The defendant filed this motion on the ground that there is no genuine issue of material fact with regard to the claim for negligence on behalf of the city because the defendant cannot be held liable for common-law negligence due to governmental immunity. Even if the court applies General Statutes § 52-557n, which abrogates common-law municipal immunity, the defendant argues that it was engaged in a discretionary act so that immunity applies. Further, the defendant argues that the elevator was in the exclusive control of the Thyssenkrupp, a business contractually responsible for the maintenance of the elevator. In support of the motion, the defendant submitted the contract with Thyssenkrupp and an affidavit by Denis Pellegrino, the facilities superintendent of the city of New Britain. Pellegrino stated that Thyssenkrupp controlled the maintenance of the elevator at all times related to this matter.
The plaintiff counters that a genuine issue of material fact exists with regard to his claim because governmental immunity does not apply when a municipality is engaged in a proprietary function that is inextricably linked to the negligent act. Further, she argues that the defendant cannot benefit from governmental immunity because the discretionary acts affected the plaintiff as an identifiable person who was in imminent harm.
As a threshold matter, the defendant argues that the plaintiff's claim is grounded on common-law negligence and the common-law rule for governmental immunity because the complaint failed to indicate a statute abrogating that immunity. "While the defendant is correct in pointing out that the [plaintiff] did not cite § 52-557n in [her] complaint or amend [her] complaint to include such statute, the [plaintiff's] failure to do so does not necessarily preclude recovery. Although Practice Book § 10-3(a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory . . . As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Citations omitted.) Spears v. Garcia, 66 Conn.App. 669, 675-76, 785 A.2d 1181 (2001).
"[A] municipality itself was generally immune from liability for its tortious acts at common law . . ." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). "The state legislature, however, possesses the authority to abrogate any governmental immunity by statute . . ." White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). "Statutes that abrogate or modify governmental immunity are to be strictly construed." Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988).
"The legislature . . . has set forth general principles of municipal liability and immunity in General Statutes § 52-557n." Williams v. New Haven, 243 Conn. 763, 767, 700 A.2d 1251 (1998). Section 52-557n(a)(1) provides: "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 . . ." General Statutes § 52-557n.
General Statutes § 52-557n provides in relevant part: "Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions. (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 wilful 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."
"[A] municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts . . ." (Internal quotation marks omitted.) Elliot v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998). "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . 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." Heigl v. Board of Education, 218 Conn. 1, 5, 587 A.2d 423 (1991). Nonetheless, as a threshold matter, if it is determined that the municipality is "engaged in a proprietary act and not a governmental act, the distinction between discretionary and ministerial acts does not apply." Considine v. Waterbury, 279 Conn. 830, 854, 905 A.2d 70 (2006).
Section 52-557n establishes an exception to governmental immunity when a function produces "special corporate profit or pecuniary gain." General Statutes § 52-557n(a)(1)(B). "[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 . . . When a municipality derives substantial revenue from its commercial use of municipal property, it has been considered nonetheless to be engaged in a proprietary function even if it reinvests that revenue back into the property's maintenance expenses or to pay down debt related to the property . . . Accordingly, it has been stated that a municipality is engaged in a proprietary function when it acts very much like private enterprise . . ." (Citations omitted.) Id., 847-48. Further, "a municipality may be held liable if there is an `inextricable link or inherently close connection' between its negligent act or omission and the [proprietary act]." Id., 850.
Instances in which the court has found a municipality acting like a private enterprise include operation of a water utility for profit; see Martel v. Metropolitan District Commission, supra, 275 Conn. 53; and a property lease that produces rent that exceeds expenses, even when the profit is reinvested into the property. See Considine v. Waterbury, supra, 279 Conn. 851. In Doran v. Waterbury Parking Authority, 35 Conn.Sup. 280, 282, 408 A.2d 277 (1979), the court held that operation of a municipal parking garage is a proprietary function, stating, "such facilities by their inherent nature . . . [constitute] an adaptation of territory within a municipality to the purposes of business . . ."
"Connecticut courts recognize that if the act engaged in is operated for the corporate benefit or pecuniary profit of the municipality, governmental immunity is not applicable . . . [T]he fact that a small fee is charged does not necessarily deprive the municipality of governmental immunity . . . As long as a small or nominal fee is charged as a mere incident of the public service rendered and not as a means to derive a profit from the activity, the benefit of the principle should not be removed." Lisinski v. New London, Superior Court, judicial District of New London, Docket No. CV 03 0564377 (November 1, 2005, Jones, J.) [40 Conn. L. Rptr. 227]. "Where, however, the court finds that the fee charged indicates a commercial enterprise entered into for the corporate benefit of the municipality, [such a fee] goes beyond the mere incident of the public service rendered." (Internal quotation omitted.) Daniels v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0258721 (May 5, 2000, Robinson, J.).
In the present case, the city failed to submit evidence to show that no genuine issue of material fact exists as to whether the operation of the parking garage was wholly governmental and not proprietary. However, the plaintiff submitted evidence in the form of budget reports stating the budget allocations and revenue of the parking garage. Further, the deposition testimony of Pellegrino, the facilities superintendent of the city of New Britain, indicates that the garage offered discount rate incentives to new businesses in the city and to regular customers of the garage. This admission raises a genuine issue of material fact as to the garage operator's degree of participation in efforts to improve the business prospects of the city. Pellegrino also testified as to the profit making status of the garage and the desire to increase profit, although the plan admittedly lacked feasibility.
CONCLUSION
For the foregoing reasons, a genuine issue of material fact exists as to whether the defendant was engaged in a proprietary act so as to abrogate governmental immunity. Thus, the defendant is not entitled to judgment as a matter of law with regard to the negligence claim. Therefore, the motion for summary judgment is denied.