Opinion
FSTCV155014900S
04-17-2017
Saima Qamar v. Jodi Couture
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTIONS FOR SUMMARY JUDGMENT (#161.00, #163.00 and #166.00)
Kenneth B. Povodator, J.
Procedural Background
This is a lawsuit brought by the self-represented plaintiff, against three Town of Greenwich officials/employees, arising from the plaintiff's interactions with the three individuals in the course of their duties relating to land-use regulation in the town. The original complaint sounded in three counts against the three individuals; the defendants each filed a motion to strike, and the court granted the motion as to the first and third counts. While those motions to strike were pending, the defendants also filed the pending motions for summary judgment, which necessarily did not take into account the effect of the court's ruling on the motions to strike, as well as the plaintiff's subsequent amendment of her complaint (at least as to the first count).
On March 27, 2017, several motions were scheduled to be heard, and prior to the hearing the court also indicated that it would address other issues, as there had been an issue about rescheduling a trial management conference that the plaintiff indicated she could not attend as scheduled. (See #224.00 for a detailed recitation of the events leading up to, and at, the March 27, 2017 hearing.)
Of relevance to this decision, the defendants were asked whether the subsequent amendment of her complaint affected or precluded any possible ruling by the court on the motion for summary judgment, at least with respect to that first count. In a technical sense, the first count, as had been the subject of the motion for summary judgment, no longer exists. It is clear that as a matter of pleading, a subsequent (amended) complaint supersedes the prior complaint; see, Wilson v. Hryniewicz, 38 Conn.App. 715, 663 A.2d 1073 (1995); Hryniewicz v. Wilson, 51 Conn.App. 440, 722 A.2d 288 (1999); Connecticut Bank of Commerce v. Giordano, 67 Conn.App. 79, 787 A.2d 9 (2001); the question is whether, with respect to a motion for summary judgment which focuses on the substance of the claims, rather than the specific manner in which the claims are alleged, the rule is or should be the same.
In this regard, the court notes that in her objection to the motions for summary judgment (#192.00) the plaintiff refers to her characterizing her first count as " entrapment" as an incorrect caption or label. (There is a similar statement in #188.00 at page 9, contending that she actually was alleging fraud, and that she was correcting that mislabeling.) Thus, she appears to agree that the gravamen of the first count remains the same, the only difference being a change of label.
Discussion
The court having granted the motion to strike as to the first and third counts, and there being an attempt to correct the first count, the summary judgment remains pending with respect to the first and second counts, only.
As the court discussed in its decision on the motion to strike (#128.02), the first count effectively is a claimed tort based on an attempt--an attempt that was not successful. Even as recharacterized as misrepresentation or some other variation on fraud, it again remains nothing more than an attempt. The plaintiff negates having actually relied upon the claimed misrepresentation(s), instead noting that she had been fortunate to avoid the adverse consequences that would have befallen her, had she relied upon those claimed misrepresentations. Whether characterized as an attempt that was unsuccessful, or characterized as a misrepresentation for which there was a missing necessary element--reasonable reliance--the first count cannot survive. (An alternate perspective is that the plaintiff did not cure the defect that was identified in the decision on the motion to strike, making no substantive change to her claims.)
The court recognizes that, to an extent, this appears to be almost a legal sufficiency issue rather than a true summary judgment analysis, involving the absence of any material issue of fact. In Larobina v. McDonald, 274 Conn. 394, 404-05, 876 A.2d 522 (2005), the court discussed the relationship between a motion to strike and a motion for summary judgment, and concluded that it was appropriate to use a motion for summary judgment to address legal insufficiency, in situations where the defect was not curable. (If the defect were deemed curable, the court might be compelled to treat the motion as a belated motion to strike.) While it is theoretically possible that the plaintiff could seek to amend her complaint to allege that she did, in fact, rely upon the alleged attempted misrepresentations, the court deems that to be too remote given the history of recitations to the opposite effect. (If the court has misread the situation, then the plaintiff can move to make such a correction, which would be addressed in due course.)
Accordingly, on multiple if interrelated grounds, the court must grant the motions for summary judgment with respect to the first count.
With respect to the second count, the defendants somewhat overstate the extent to which discretion is involved in their duties. Without questioning that there is substantial discretion in much of their activities, the extent to which there is or is not compliance with precise standards set forth in land-use regulations often is or would be ministerial in nature. For example, it would seem to be a relatively straightforward yes-or-no situation as to whether the plaintiff had removed the unauthorized stones from the right-of-way. Whether that was sufficient to say that a condition had been satisfied, considering the claimed fact that the plaintiff had said that she was not yet done, might warrant deferral of any final decision as to compliance, as a matter of judgment. The issue of lighting might well be a matter of judgment, unless the ordinance or land use regulation in question had specific protocols for measurements, as many noise-related ordinances do (e.g., prescribing maximum allowable decibels at the property line).
The court finds the analysis and discussion in Arnone v. Connecticut Light and Power Co., 90 Conn.App. 188, 878 A.2d 347 (2005), to be instructive and persuasive. The court also was addressing a claim of willful and wanton misconduct as a potential exception to immunity, although the context was different--fellow employee immunity in the firefighter context. (General Statutes § 7-308.) The court's discussion is illustrative of the interrelationship between the various forms of aggravated misconduct, and what must be shown to create a material factual issue as to the existence of such heightened misconduct. Simply putting a label associated with heightened misconduct does not convert negligence to such a form of heightened misconduct--there must be some element of aggravated disregard of the rights of others, bordering on intentional.
The plaintiff argues that the term wilful has become synonymous with the term reckless. Our Supreme Court has explained that [w]hile we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . .
Our Supreme Court has consistently defined the term recklessness. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of . . . action . . . Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury also must be intentional. (Internal quotation marks and citations, omitted.) 90 Conn.App. 196-97.
In Arnone, the court focused on the specific implications of the statute in question. Here, the controlling statute is General Statutes § 52-557n. Subsection (b) of the statute provides, in relevant part:
Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety . . .
In denying the motion to strike, the court expressed uncertainty as to precisely what approvals or clearances the plaintiff was claiming had wrongfully been denied, and whether they came within the broad scope of " any permit, license, certificate, approval, order or similar authorization." The defendants' submissions have " fleshed out" of this matter. It appears that the actions taken or not taken were based on the exercise of discretion, either directly or in a derivative manner. As noted earlier, notwithstanding an apparent or claimed satisfaction of a clear-cut requirement, the fact that the plaintiff had stated that she was still in the process of dealing with the claimed violations indicates that her activities were not at an end, and at that point, a decision to wait for all activity to end seemingly would be an exercise of discretion.
It appears that this case is a prototypical example of why § 52-557n(b)(7) was enacted Particularly with a homeowner, perceived unreasonableness by municipal officials with respect to the permitting process, or with respect to zoning enforcement activities, can be highly personal and sensitive. The nature of the conduct established by the defendants' submissions, and the nature of the alleged misconduct set forth in the plaintiff's submissions relating to obtaining site plan approval and curing conditions that had led to enforcement activities including court action, do not rise to the level of recklessness or willful and wanton misconduct, as established by appellate authority.
There is a further overlay.
This court routinely recites and attempts to adhere to the cautionary appellate statements relating to self-represented parties:
[C]onstruction of a self-represented party's pleading should not focus on technical defects, but should afford the [appellant] a broad, realistic construction of the pleading under review. Macellaio v. Newington Police Department, 145 Conn.App. 426, 431, 75 A.3d 78 (2013) (internal quotation marks and citation, omitted).
Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice; the purpose of which is to provide a just determination of every proceeding. Argentinis v. Fortuna, 134 Conn.App. 538, 539, 39 A.3d 1207 (2012) (citations and internal quotation marks, omitted).(See, also, per curiam decision in Hill v. Williams, 74 Conn.App. 654, 655, 813 A.2d 130 (2003).)
The court is not dealing with liberality of interpretation of pleadings, as was the case with respect to the motions to strike. The court is not dealing with liberality of rules relating to timeliness of pleadings, as in the case of the 15-day period in which to file a substitute complaint after the granting of a motion to strike. Prior to the March 27, 2017 scheduled hearing at short calendar, the court had been solicitous of requests by the plaintiff for additional time and/or for rescheduling of hearings. However, the court does not believe that it is proper to apply the quoted principles of liberality when considering admissibility of evidence and the need for admissible evidence. A represented party is entitled to rely on the rules of evidence; while there may perhaps be a level of laxity in issues of relevance, etc., especially to the extent that there often is a narrative presentation of evidence by a self-represented party, a represented party is entitled to sworn testimony, non-hearsay testimony, etc. as directed to issues being contested.
In #191.00, captioned as an objection to the motion for summary judgment, the plaintiff expresses her position with respect to the affidavits and other submissions of the defendants. She also alludes to the proper standard--material issue of fact. She further discusses the issues in her memorandum in support of her objection (#192.00), and in an earlier submission, she discussed the issues pertaining to the various defenses raised by the defendants (#188.00). Thus, the plaintiff demonstrated some level of familiarity with the issues involved in this dispute and especially this phase of the dispute.
The " problem" is that notwithstanding some level of familiarity with the issues and procedures associated with summary judgment, the plaintiff has not submitted any admissible/competent evidence in support of her challenge to the motions for summary judgment. The plaintiff, as the non-moving party, has no burden at all, unless and until the defendants met their burdens, Romprey v. Safeco Insurance Company of America, 310 Conn. 304, 320, 77 A.3d 726 (2013), but the defendants have established that their conduct with respect to approvals of corrective action and/or the issuance of orders finding there to have been violations, were at least discretionary, and they further have contended that to the extent there may have been any objective (non-discretionary) quality, they simply had been reporting what they observed, and based on discretion, decided to wait for the plaintiff to finish her activities before reaching any conclusions. They also have established that the conduct of which they are accused cannot be characterized as willful and wanton. At that point, it was incumbent upon plaintiff to submit competent evidence to the contrary.
Practice Book § 17-45 imposes a burden on a moving party to submit competent evidence: " (a) A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents."
That triggers an obligation on the part of the non-moving party: " (b) Unless otherwise ordered by the judicial authority, any adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence."
Practice Book § 17-46 sets forth the requirements for affidavits and attachments: " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." The plaintiff has submitted no affidavit and no otherwise-admissible or presumptively admissible evidence (e.g., certified copies of relevant documents). The court has nothing that it can consider, of a substantive nature, to refute the factual contentions of the plaintiff.
The plaintiff has recognized that to the extent governmental immunity might apply, there might be an exception based on status as an identifiable victim, and discussed this in some of her submissions. Assuming that she was identifiable--not able to be refuted by the defendants, given the one-on-one interactions--there would remain the need to establish a material issue of fact as to imminence of harm. Recently, in Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014), the Supreme Court overruled prior precedent in the area of the identifiable class of victims exception, relating to imminence, applying a standard that required a clear and unequivocal duty to act on the part of the defendant as a component of the concept of imminence. Although Haynes is an identifiable class of victims case, and this is an identifiable victim case, the concept of a " clear and unequivocal duty to act" can be found in numerous cases that involved status as a potential identifiable victim, rather than as a member of a class. " This would run counter to the purpose of governmental immunity, which is to protect a municipality from liability arising from a municipal officer's negligent, discretionary acts unless the officer's duty to act is clear and unequivocal, " Coley v. City of Hartford, 312 Conn. 150, 168, 95 A.3d 480, 492 (2014), in turn, quoting from Edgerton v. Clinton, 311 Conn. 217, 228 n.10, 86 A.3d 437 (2014), which in turn cited Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191, 197 (2006) wherein the court stated: " We have identified 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."
Once the defendants met their burden of establishing the lack of a material issue of fact as to the applicability of the defense of governmental immunity and/or no-factual-issue flaws in the complaint relating to whether the conduct as alleged could reasonably be perceived to rise to the level of wanton and willful misconduct, the burden was on plaintiff to establish the existence of a material issue of fact that would preclude the granting of summary judgment. An incomplete assertion of an exception to governmental immunity does not satisfy that burden.
Finally, the court must address the third count, alleging intentional infliction of emotional distress. The plaintiff has expanded on her prior allegations, including specifics relating to her claimed physical ailments, but the claims still do not rise to the requisite level of outrageousness. As quoted in the decision on the motion to strike:
Although the alleged actions of the defendants, if proven, could understandably upset and distress the plaintiff, the behaviors do not meet the high threshold required to sustain a claim based on intentional infliction of emotional distress.
Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, " Outrageous!" (Internal quotation marks and citations, omitted.) Gillians v. Vivanco-Small, 128 Conn.App. 207, 211-12, 15 A.3d 1200, 1203 (2011).
The anxiety as described in the new complaint (#189.00), the claimed need to increase the dosage of an over-the-counter antacid medication, the claimed need to take it easy on doctor's advice, etc., while attempting to demonstrate an injury, still fail to identify conduct exceeding the bounds of decency. The plaintiff had a series of vexing and unpleasant interactions with land-use officials, who may have made more difficult than necessary approval processes and establishing a record that she had cured land-use violations that had gone through not only an administrative process but also a judicial process (trial relating to failure to comply with an order duly issued). The court is required to perform something of a gatekeeper function with respect to claims of intentional infliction of emotional distress, and without regard to whether it might be provable that the conduct was intended to inflict emotional harm, the conduct simply cannot satisfy the threshold for outrageousness.
Conclusion
While the goal of the tort system may be to provide remedies to those who have been wronged, appellate-level decisions repeatedly have stated that not every wrong is remediable through the tort system. " While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world." (Internal quotation marks and citation, omitted.) Di Teresi v. Stamford Health Systems, Inc., 142 Conn.App. 72, 80, 63 A.3d 1011 (2013). Governmental immunity is premised on the notion that governmental actors should be allowed to exercise discretion in the performance of their duties, without constantly worrying about being second-guessed in the tort system. Section 52-557n and the case law interpreting and applying that standard, is a codification of those principles, and the net effect is that often a claimed or perceived wrong will go unremedied, when the actor is a governmental official. Thus, although predating the enactment of the statute but applying the same principles, Shore v. Town of Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), recognized governmental immunity with respect to a decision by a police officer not to arrest a drunken driver who shortly thereafter was involved in a fatal automobile collision. See, also, Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988), where a claimed inadequacy of police protection in a claimed high-crime area was held not to be actionable. Section 52-557n(b) recognizes that particularly with respect to regulatory conduct such as permitting and inspections, absent a " reckless disregard for health or safety, " such decisions and actions (and inactions) must be clothed with an immunity. Clearly, the land-use system in Connecticut would not be able to function if every decision made potentially could end up in civil litigation seeking damages. Adding labels of willfulness and wantonness does not truly change the situation, absent statutorily-recognized situations.
Finally, although the plaintiff has amended her claims relating to intentional infliction of emotional distress, the allegations remain insufficiently egregious. The defendants have denied wrongdoing or intent, and the plaintiff has submitted no competent evidence putting anything in issue.
For all these reasons, then, the court grants the motions for summary judgment filed by the defendants with respect to each of the counts of the plaintiff's complaint.