Opinion
No. CV 02-0518562
October 19, 2004.
MEMORANDUM OF DECISION Motion for Summary Judgment # 112
FACTS
The plaintiff, Edgar Morin, filed a complaint on December 10, 2002, alleging a single count of negligence against the defendant, the town of Farmington. According to the complaint, the action was commenced as a result of a fall by the plaintiff at a dance recital sponsored by the town of Farmington parks and recreation department. The recital took place at the Farmington High School. The plaintiff alleges that the defendant failed to take reasonable measures to ensure the safety of guests and invitees and that its negligence caused the plaintiff's injuries.
On March 15, 2004, the defendant filed a motion for summary judgment on the grounds that it does not owe a duty of care to the plaintiff and that the plaintiff's claim of negligence is barred by the doctrine of governmental immunity. The defendant filed a memorandum of law in support of the motion and the plaintiff has timely filed a memorandum in opposition.
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 . . . 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 evidentary 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, 849 A.2d 839 (2004). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
Governmental Immunity Statutory Abrogation
The defendant argues that summary judgment should be granted because the plaintiff failed to plead any statute that abrogates governmental immunity. "A municipality itself was generally immune from liability for its tortious acts at common law . . . Gordon v. Bridgeport Housing Authority, [ 208 Conn. 161, 165 544 A.2d 1185 (1988)]. Governmental immunity may, however, be abrogated by statute. The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities. The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity. Williams v. New Haven, 243 Conn. 763, 766-67, 707 A.2d 1251 (1998)." (Citation omitted; internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 849, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
In Williams v. New Haven, supra, 243 Conn. 763, the plaintiffs sued the city in common-law negligence. Id., 766. At no time, in either the trial court or the Appellate Court did the plaintiffs rely on any statute granting an exception to governmental immunity. Id. In ordering that judgment be directed for the city, the court held that "[b]ecause it is clear that a municipality enjoys governmental immunity for common-law negligence unless a statute has limited or abrogated that immunity, the plaintiffs [could not] prevail." Id., 769. Since the plaintiffs did not rely on any such statute, the court determine that the doctrine of governmental immunity was fatal to their cause of action. Id., 769-70.
"The failure to rely on a statute as the basis for municipal liability was again addressed in Tryon v. North Branford, 58 Conn.App. 702, 755 A.2d 317 (2000) . . . [In Tryon] [a]lthough the court denied summary judgment in other counts where the plaintiff had relied on a statute as the basis for municipal liability, summary judgment was granted as to three counts where the plaintiff had not cited any statute that would abrogate the governmental immunity for common-law negligence enjoyed by [the] defendants.
"If a plaintiff does not plead reliance on a statute as the basis for a town's liability, the plaintiff must at least raise its reliance on a statute at some point in the proceeding. In Colon v. Board of Education, 60 Conn.App. 178, 188 n. 4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), the court stated, `[i]n this case, unlike in Williams v. New Haven, supra, 243 Conn. 763 the plaintiffs raised General Statutes § 52-557n, which sets forth general principles of municipal liability and immunity, in opposing the defendant's motion for summary judgment.' . . . As long as the plaintiff raised its reliance on the statute, the defendant was apprised of the nature of the action and it was not mandatory that the plaintiff specifically pleaded the statute in the complaint . . .
"Similarly, in Spears v. Garcia, 66 Conn.App. 669, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003) the defendant, city of Bridgeport . . . moved for summary judgment claiming governmental immunity, as the plaintiffs had not pleaded any statute on which liability was based. The court noted that the plaintiffs `filed a memorandum in opposition to the motion for summary judgment. In the memorandum, the plaintiffs mentioned for the first time § 52-557n as abrogating the defendants' immunity.' Id. 672." (Citations omitted; internal quotation marks omitted.) Caruso v. Board of Education, Superior Court, judicial district of Ansonia-Milford at Milford. Docket No. CV 99 0067957 (December 10, 2001, Moran, J.). aff'd sub nom. Caruso v. Milford, 75 Conn.App. 95, 815 A.2d 167, cert. denied, 263 Conn. 907, 819 A.2d 838 (2003). Although the plaintiffs in Spears failed to plead § 52-557n in their complaint, they, unlike the plaintiffs in Williams, "relied on the statute in their memorandum of law in opposition to the motion for summary judgment and in oral argument before the trial court. The court determined that [t]hat sufficiently apprised the defendants that the plaintiffs were relying on § 52-557n to abrogate governmental immunity." Spears v. Garcia, supra, 676. Thus, failing to plead a statute that abrogates governmental immunity in a complaint "will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." Id.
Most recently, the Appellate Court affirmed the aforementioned Superior Court decision in Caruso v. Board of Education, granting the defendant's motion for summary judgment based on the plaintiffs' failure to plead a statutory basis for the abrogation of governmental immunity. In Caruso v. Milford, 75 Conn.App. 95, 815 A.2d 167, cert. denied, 263 Conn. 907, CT Page 15269 819 A.2d 838 (2003), the defendant relied on the immunity granted to municipalities through General Statutes § 52-557n and raised that immunity as a special defense to the plaintiffs' negligence claim. Id., 102. The plaintiffs, however, did not at any stage in the trial court proceedings proffer a statutory basis to abrogate governmental immunity. Id., 101-02. The court stated that "the defendant is entitled to notice of any statute on which the plaintiffs rely to defeat governmental immunity so as to avoid unfair surprise and to allow time to prepare a defense . . . The plaintiffs cannot rely on the defendant's citation to § 52-557n . . . as serving to apprise the defendant of the exact statutory basis of the plaintiffs' claim." Id., 102. The court held that "because the plaintiffs failed to cite a specific statute in their pleadings and did not cite to such in their memorandum of law in opposition to the motion for summary judgment or at oral argument on the motion so as to fall under the holdings of Spears and Colon . . . as a matter of law, the plaintiffs' claims [are] barred by the doctrine of governmental immunity." Id., 103.
The present case is procedurally similar to Caruso and Williams. In the memorandum of law in support of its motion for summary judgment, the defendant argues that it is immune from suit under General Statutes § 57-557n(a)(2)(B). The plaintiff, however, did not rely on § 57-557n or any other statute that would abrogate governmental immunity in his memorandum in opposition or at oral argument. In fact, the plaintiff failed to address the issue of governmental immunity entirely. Because the plaintiff failed to apprise the defendant of any statutory basis for abrogating its governmental immunity, as required under Caruso and Williams, the plaintiff's claim is barred.
Governmental Immunity Analysis
Although the plaintiff's claim is barred under the doctrine of governmental immunity because he failed to plead an abrogating statute, the plaintiff's claim would also fail under a conventional governmental immunity analysis. "[T]he case law demonstrates that the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint." Segreto v. Bristol, supra. 71 Conn.App. 854. A municipality may be liable for the misperformance of a ministerial act, as opposed to a discretionary act. Doe v. Board of Education, 76 Conn.App. 296, 300, 819 A.2d 289 (2003). "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.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . ." (Citations omitted; internal quotation marks omitted.) Id. "It becomes a question of law if the nature of the acts complained of is apparent from the complaint." Duncan v. Groton, Superior Court, judicial district of New London, CV 03 0565060 (August 3, 2004, Martin, J.), citing Lombard v. Edward J. Peters, Jr., P.C., supra, 252 Conn. 628.
In Segreto v. Bristol, supra, 71 Conn.App. 845, the plaintiff alleged that negligence was the cause of injuries she sustained from a fall on a stairway located in a senior center owned by the city. In response, the city asserted that the plaintiff's claim was barred by the doctrine of governmental immunity. Id., 846. The court concluded 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." Id., 857. In addition, "because `the plaintiff's allegations all relate[d] to whether the city's design and maintenance of the stairway were reasonable and proper under the circumstances' . . . [the court determined that] the complaint alleged discretionary activity as a matter of law." Cousins v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0467165 (February 13, 2004, Skolnick, J.), quoting Segreto v. Bristol, supra, 71 Conn.App. 857.
The city relied on the common law and General Statues § 52-557n for its special defense of governmental immunity against the plaintiff. "Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents . . . General Statutes § 52-557n(a). The section goes on to exclude liability for acts or omissions of any employee or agent . . . that involve the exercise of judgment or discretion. General Statutes § 52-557n(a)." (Internal quotation marks omitted.) Segreto v. Bristol, supra. 71 Conn.App. 850. The defendant in the present case also relies on § 52-557n as a statutory basis for governmental immunity. As previously discussed, the plaintiff does not rely on § 52-557n, or any other statute, to abrogate that immunity.
The court in Cousins v. New Haven, supra, Superior Court, Docket No. CV 02 0467165, followed Segreto when it decided to grant summary judgment in favor of the defendant city. "Under Segreto, the plaintiff in order to avoid the granting of summary judgment for the defendants, must show that the defendants were required to inspect or maintain the [premises] in a prescribed manner . . . The use of the word `reasonably' suggests discretionary activity because what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment." (Citation omitted; internal quotation marks omitted.) Id.
The allegations of negligence set forth in the complaint in the present case are very similar to those in Segreto and Cousins. Here, the plaintiff alleges that the accident and resulting injuries were caused by the negligence of the defendant, including the defendant's failure to properly light the area where the accident occurred, erect safety railings or signs, exercise due care in the operation and maintenance of the auditorium and take the reasonably necessary steps to ensure the safety of guests and invitees. The plaintiff does not allege, however, that the defendant failed to comply with a prescribed policy or directive concerning the use and maintenance of the auditorium. Additionally, the alleged acts or omissions by the defendant involve some exercise of judgment and discretion. The alleged actions of the defendant, therefore, cannot be categorized as ministerial; rather, they are discretionary in nature. Thus, because the plaintiff failed to provide evidence that the acts of the defendant were ministerial, no genuine issue of material fact exists as to the character of the defendant's conduct.
If the plaintiff had argued that the defendant's acts, although discretionary, fell under one of the exceptions to governmental immunity, further analysis would be appropriate in order to determine whether an exception applies. "The immunity from liability for the performance of discretionary acts by a [municipality] is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: 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." (Internal quotation marks omitted.) Doe v. Board of Education, 76 Conn.App. 296, 300, 819 A.2d 289 (2003). Since the plaintiff failed to raise any of these exceptions, however, no additional analysis is necessary to resolve the defendant's motion for summary judgment.
Therefore, the motion for summary judgment is granted.
As previously noted, the defendant also moved for summary judgment on the ground that it does not owe a duty of care to the plaintiff. Although the defendant's motion for summary judgment is based on the issues of duty and governmental immunity, the defendant addresses the issue of duty under a motion to strike standard. "[A] motion to strike, rather than a motion for summary judgment is ordinarily the proper procedural vehicle for challenging the legal sufficiency of a complaint. See Practice Book § 10-39(a)." (Internal quotation marks omitted.) Jensen v. DePaolo, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0277460 (March 8, 2004, Wiese, J.) ( 36 C.L.R. 665). The appellate courts have "not clearly established whether a motion for summary judgment may also be used to challenge the legal sufficiency of the allegations of a complaint" and there is a split of authority in the Superior Court regarding whether a motion for summary judgment may be used for such a purpose. (Internal quotation marks omitted.) Id. The defendant may have framed its argument in terms of the legal sufficiency of the plaintiff's complaint because, procedurally, the defendant waived its right to file a motion to strike. On January 20, 2004, the plaintiff filed a motion for default for failure to plead against the defendant, which was subsequently granted by the clerk of the court. Practice Book § 17-32(b) provides the defaulted party with an opportunity to file an answer and have that default set aside so long as the answer is filed before judgment is rendered. Here, the defendant filed an answer and special defenses before judgment, which saved the case from default but foreclosed any opportunity for the defendant to file a motion to strike. For that reason, the defendant's motion for summary judgment is granted on the ground that the plaintiff's claim is barred by the doctrine of governmental immunity, and the court need not address the issue of duty as an alternative ground for granting the motion.
BURKE, J.