Opinion
No. CV 07-5009064-S
September 10, 2008
MEMORANDUM OF DECISION
Pending before the court is defendant's motion for summary judgment.
The plaintiff filed the above captioned matter against the Town of West Hartford (town) and John Petruck (Petruck), a town employee and dump truck operator. The action arose from a collision that took place on March 8, 2005, when Petruck, who was operating a dump truck owned by the town, collided with the plaintiff's vehicle, causing her damages. Petruck was sanding and salting the roads in his capacity as an employee of the town, when he collided with the plaintiff's vehicle that had been stuck on snow and ice.
On March 14, 2008, the defendants filed a motion for summary judgment. The defendants argue that Petruck was engaged in the maintenance of highways, which has been held to be a discretionary act, thereby affording Petruck and the town governmental immunity and requiring that the court grant judgment in the defendants' favor. However, the plaintiff presents case law that indicates that the act of operating a motor vehicle is aministerial act, which would prevent governmental immunity from attaching. While Petruck may have been performing a discretionary act prior to the collision, the plaintiff argues that Petruck and the town are not entitled to governmental immunity because Petruck was allegedly negligent in the operation of the motor vehicle, a ministerial act. The plaintiff states that it was not Petruck's maintenance of the highways that caused the plaintiff's damages, but rather his alleged negligence in operating the motor vehicle.
"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." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "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." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
The defendants argue that Petruck and the town are immune from liability for injuries arising from road maintenance, such as sanding and salting, because the conduct is protected by discretionary act immunity. "The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . 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." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49, 881 A.2d 194 (2005). Traditionally, "the construction and maintenance of highways is, by our common law, a governmental act, and for negligence in the performance of that act the municipality is not liable." Scoville v. Town of West Hartford, 131 Conn. 239, 241, 38 A.2d 681 (1944). However, in the present case, the issue of discretionary act immunity is not relevant because the plaintiff does not allege that she was injured as a result of the construction or maintenance of the highways, but rather that her damages were the result of Petruck's alleged negligent operation of a motor vehicle.
Connecticut caselaw supports the argument that the operation of a motor vehicle is, in fact, a ministerial act to which government immunity does not attach. In Letowt v. City of Norwalk, 41 Conn.Sup. 402, 579 A.2d 601 (1989), the plaintiff, who was involved in an initial collision, was struck by a police officer's vehicle as the officer approached the accident scene to respond to the collision. In Letowt, the court considered whether the officer's conduct should be characterized as discretionary or ministerial in view of the fact that the conduct involved both an official, police response, as well as, the ordinary operation of a motor vehicle. The court adopted the approach first articulated by the Rhode Island Supreme Court in holding that the operation of a motor vehicle is a ministerial act and government immunity is not afforded to government employees, who are found to be negligent in the operation of a motor vehicle. "We therefore hold that when the government or its agent engages in an activity normally undertaken by private individuals in the course of their everyday lives, a duty arises under the common law to exercise reasonable care in the performance of this task. Governmental employees, like ordinary citizens, must operate their vehicles in a reasonably safe manner and avoid creating foreseeably unreasonable risks of harm to the motoring public . . . Ordinary citizens drive their cars every day, not just [government employees], and hence the operation of a motor vehicle would be deemed ministerial." Id. at 405-06.
Numerous Superior Court judges have relied upon the reasoning in Letowt in finding that the operation of motor vehicles by municipal employees is considered a ministerial act, which therefore precludes governmental/discretionary act immunity. In Lee v. Perez, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 900108394 (June 20, 1991, Karazin, J.), the matter resulted from a collision between a police vehicle and the plaintiff's truck, and the plaintiff alleged negligence against the police officer driver. The court struck the defendant's first special defense of governmental immunity citing the Letowt case as persuasive authority for finding that the operation of a motor vehicle by a municipal employee is a ministerial act. See also Hurdle v. City of Waterbury, Superior Court, judicial district of Waterbury, Docket No. 0123428 (December 11, 1995, Sullivan, J.). Additionally, in Gagliardi v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV 950380916 (September 16, 1997, Zoarski, J.) [ 20 Conn. L. Rptr. 264], the court, relying upon Letowt, ruled that a municipal employee, who operates a motor vehicle negligently, is not afforded governmental immunity. Moreover, several Superior Court judges have previously decided motions for summary judgment based on nearly identical facts to the present case. In all of the instances, the motions for summary judgment raised issues of governmental immunity in the context of a municipal employee's operation of a motor vehicle and in each of the cases, the court relied upon the reasoning in Letowt in denying the motion for summary judgment. See Macmillen v. Town of Branford, Superior Court, judicial district of New Haven, Docket No. 374004 (March 30, 1998, Blue, J.) [ 21 Conn. L. Rptr. 561]; Sciuto v. State, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 950322569 (December 23, 1999, Melville, J.) [ 21 Conn. L. Rptr. 182]; Nunez v. VPSI, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 970347902 (February 20, 2001, Melville, J.) [ 29 Conn. L. Rptr. 371]; Vilton v. Burns, Superior Court, judicial district of Waterbury, Docket No. X06CV000169481 (June 22, 2004, Alander, J.) [ 37 Conn. L. Rptr. 425].
In viewing the facts in a light most favorable to the non-moving party, it is clear that material issues of fact exist regarding the nature of the acts alleged. There remain genuine issues of material fact in dispute as to whether the town or its employee were negligent in the performance of any ministerial acts, most specifically whether Petruck was negligent in the operation of the town's dump truck. Furthermore, issues of negligence are not properly decided by summary adjudication, but rather, should be resolved by trial. In view of the claims of negligence in the present matter, which inherently present genuine issues of material fact, the defendants' motion for summary judgment is denied.