Opinion
CV176037275S
04-02-2018
Roger ROUSSEAU v. TOWN OF SOUTHINGTON
UNPUBLISHED OPINION
OPINION
Morgan, J.
This action arises from a slip and fall incident that occurred on April 21, 2015. The plaintiff, Roger Rousseau, alleges that on that day he was in the Southington Town Hall to purchase a dump permit when he allegedly slipped and fell on a slippery floor outside the Town Manager’s office and sustained injuries.
On April 20, 2017, the plaintiff filed a one-count premises liability negligence complaint against the defendant. The defendant filed an answer on July 12, 2017 and asserted two special defenses. On January 16, 2018, the defendant moved for summary judgment on the ground that the plaintiff’s claim is barred by the doctrine of governmental immunity. The plaintiff objects to the motion on the grounds that (1) genuine issues of material fact exist as to whether the act of maintaining the hallways within the Town Hall was discretionary; and (2) the identifiable person-imminent harm exception to the governmental immunity doctrine applies.
On March 16, 2018 the defendant filed a supplemental motion for summary judgment to address the plaintiff’s claim at his deposition that he did not fall on a slippery floor inside the Town Hall, but rather fell when his foot got stuck on something on the floor. For purposes of the instant summary judgment motion, it is immaterial whether the plaintiff’s fall was caused by a slippery substance versus a sticky substance on the floor. The parties’ arguments with respect to governmental immunity and the exceptions to the doctrine are the same irrespective of the composition of the substance which allegedly caused the plaintiff’s fall.
DISCUSSION
I. Summary Judgment Standard
" [S]ummary 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.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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, entitle him to judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" Once the moving party has met its burden ... 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.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
II. Common-Law Negligence
The plaintiff alleges that the defendant, as controller or possessor of the hallway within Town Hall where the plaintiff allegedly fell, was negligent because it breached its duty to keep and maintain the hallway in a reasonably safe condition for pedestrians such as the plaintiff. The defendant moves for summary judgment on the ground that the plaintiff’s negligence claim is barred by governmental immunity because the defendant’s alleged acts and omissions were discretionary. Specifically, the defendant argues that actions such as maintenance, repair, and inspection are discretionary and the plaintiff has failed to allege the existence of any rule, policy, or directive that prescribed the manner in which the defendant was to conduct these actions. The defendant further argues that the plaintiff does not fall within an exception to the governmental immunity doctrine.
In response, the plaintiff argues that the defendant is not entitled to summary judgment because genuine issues of fact exist as to whether the defendant’s actions were ministerial, rather than discretionary in nature. Further, the plaintiff argues that he has alleged facts sufficient to fall within the " identifiable person-imminent harm" exception to the governmental immunity doctrine.
A. Governmental Immunity
Under the common law, a municipality was generally immune from liability for its tortious acts. Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). Our Supreme Court has " recognized, however, that governmental immunity may be abrogated by statute." (Internal quotation marks omitted.) Id. General Statutes § 52-557n(a)(1) provides in relevant part: " 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 ..." " [Section] 52-57n(a)(2)(B), however, it explicitly shields a municipality from liability for damages to person or property caused by the 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." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 312, 101 A.3d 249 (2014). Consequently, under the relevant statutory provisions, a municipality’s liability in negligence for its employees’ acts hinges on whether the act is ministerial or discretionary in nature. Thiverge v. Witham, 150 Conn.App. 769, 774, 93 A.3d 608 (2014).
" 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 ... If the acts or omissions complained of are not imposed in the form of a general legal duty, they must, in order to be characterized as ministerial, be required by [a] ... charter provision, ordinance, regulation, rule, policy, or any other directive ... that prescribe[s] the manner in which [they are to be performed]." (Citation omitted; emphasis in original; internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 271, 41 A.3d 1147 (2012). " 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 [in which] it is apparent from the complaint ... [that the nature of the duty] ... turns on the character of the act or omission complained of in the complaint ... Accordingly, [when] 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." (Internal quotation marks omitted.) Strycharz v. Cady, 323 Conn. 548, 565, 148 A.3d 1011 (2016).
In this case, the plaintiff alleges that the defendant failed to ensure that the area inside the Town Hall was reasonably safe for pedestrian traffic and particularly the plaintiff; that it failed to warn the general public and the plaintiff of the dangerous condition; that it created a hazardous and dangerous condition on the ground where it knew or should have known pedestrians including the plaintiff would walk; that it failed to post warning signs of the dangerous conditions; that it failed to barricade the area; that it failed to timely and properly inspect the area; that it caused or allowed and permitted the public area to remain unsafe; and that it failed to remedy or repair the condition of the hallway when it was reasonably necessary under the circumstances. However, the plaintiff does not allege that the defendant was required by any charter provision, ordinance, regulation, rule, policy, or other directive to clear, inspect, maintain, or repair the hallways at Town Hall.
" 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." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 224, 131 A.3d 771 (2016). See also Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (defendants’ acts discretionary in nature because what constitutes reasonable, proper, or adequate inspection involves exercise of judgment). Consequently, unless the plaintiff can identify a policy or directive limiting the exercise of such judgment and discretion, the defendant will be entitled to discretionary act immunity. See Martel v. Metropolitan District Commission, supra, 275 Conn. 50-51 (absent evidence of policy or directive, defendants’ determinations whether to supervise, inspect, and maintain trails and when to mark, close, or barricade trails, if at all, inherently required exercise of judgment); see also Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010) (" for the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists" ); Washburne v. Madison, 175 Conn.App. 613, 625, 167 A.3d 1029 (2017) (" [t]he plaintiff, in arguing that the defendants violated a ministerial duty, had the burden of demonstrating the existence of a clear and unequivocal policy or other written directive mandating the use of shin guards ..." ).
Here, it is apparent from the complaint that the defendant’s allegedly negligent acts or omissions involved the exercise of judgment and discretion. Moreover, there is simply no evidence that the maintenance and inspection of the hallways of Town Hall were to be completed in a prescribed manner. To the contrary, the unrefuted evidence before the court compels the conclusion that the defendant’s actions in maintaining and inspecting the hallways were discretionary rather than ministerial functions. In the affidavit of Mark Sciota, submitted by the defendant in support of its motion for summary judgment, Sciota attests that the defendant did not have any written ordinances, regulations, directives, or policies which prescribed the manner in which the defendant is to maintain the Town Hall or any of the related areas including the hallways. Sciota further attests that decisions concerning the matter in which the Town is to maintain the Town Hall and any associated areas are within town employees’ discretion. The plaintiff did not submit any evidence to contradict Sciota’s affidavit or to support the plaintiff’s argument that the defendant’s acts in maintaining and inspecting the hallways of the Town Hall are ministerial in nature.
Mark Sciota is the town Manager for the Town of Southington.
A ministerial duty cannot reasonably be inferred from the undisputed evidence before the court. In the absence of an ordinance, rule, or policy that " clearly compels a prescribed manner of action that does not involve the exercise of judgment or discretion" ; Northrup v. Witkowski, 175 Conn.App. 223, 242, 167 A.3d 443, cert. granted, 327 Conn. 971, 173 A.3d 392 (2017); the defendant’s acts and omissions as alleged by the plaintiff are discretionary, and, thus, are subject to governmental immunity.
B. Exceptions to Governmental Immunity
The plaintiff argues further that if the defendant’s actions are found by the court to be discretionary, he has alleged facts sufficient to fall within the " identifiable person-imminent harm" exception to the governmental immunity doctrine. Discretionary act immunity is subject to three well-recognized exceptions: (1) where the circumstances make it apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See Evon v. Andrews, supra, 211 Conn. 505. Only the first exception is relevant to the present case.
The parties’ memoranda of law do not address the second or third exceptions. Accordingly, the court will only address the first exception to governmental immunity, namely, the " identifiable person-imminent harm" exception.
The identifiable person-imminent harm exception, which our Supreme Court has characterized as " very limited" ; Strycharz v. Cady, supra, 323 Conn. 573; " applies when the circumstances make it apparent to the [municipal] officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... By its own terms, this test requires three things: (1) an 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 that victim to that harm ... If the [plaintiff] fail[s] to establish any one of the three prongs, this failure will be fatal to [his] claim that [he] come[s] within the imminent harm exception ... [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." (Citations omitted.; internal quotation marks omitted.) Brooks v. Powers, Supreme Court, Docket No. 19727 (February 2, 2018).
" The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals." Cotto v. Board of Education, 294 Conn. 265, 274, 984 A.2d 58 (2009). " Outside of the schoolchildren context, we have recognized an identifiable person under this exception in only one case [i.e., Sesito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979) ] that has since been limited to its facts. Beyond that, although we have addressed claims that a plaintiff is an identifiable person or member of an identifiable class of forseeable victims in a number of cases, we have not broadened our definition." (Footnotes omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 436-37, 165 A.3d 148 (2017).
" Generally ... a party is an identifiable person when he or she is compelled to be somewhere." Id., 436. " [E]ven outside the public school context, whether the plaintiff was compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims." (Emphasis added.) Grady v. Somers, 294 Conn. 324, 355, 984 A.2d 684 (2009). In fact, " Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred ..." DeConti v. McGlone, 88 Conn.App. 270, 274, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005); see Durrant v. Board of Education, 284 Conn. 91, 108, 931 A.2d 589 (2007) (plaintiff, parent of schoolchild, was not compelled statutorily to enroll child in the after school program).
In St. Pierre v. Plainfield, supra, 326 Conn. 437-38, our Supreme Court provided specific examples in support of a narrow definition of an identifiable person subject to imminent harm: " Cotto v. Board of Education, supra, 294 Conn. 267-68, 279 (director of community based summer youth program located in public school was not identifiable person when he slipped in wet bathroom because then so was every participant and supervisor in the Latino Youth program who used the bathroom, and anyone could have slipped at any time [emphasis in original] ); see also Coe v. Board of Education, 301 Conn. 112, 119-20, 19 A.3d 640 (2011) (student injured while attending middle school graduation dance occurring off school grounds did not qualify as member of identifiable class of foreseeable victims because she was not required to attend dance); Grady v. Somers, supra, 294 Conn. 328, 355-56 (permit holder injured at refuse transfer station owned by town did not qualify as identifiable person despite being paid permit holder and resident of town); Durrant v. Board of Education, [supra, 284 Conn. 96] (mother who slipped and fell while picking up her child from optional after-school day care program run in conjunction with public school did not qualify as member of i identifiable class of foreseeable victims because program was optional); Prescott v. Meriden, 273 Conn. 759, 761-62, 764-65, 873 A.2d 175 (2005) (parent voluntarily attending high school football game to watch his child play was not member of identifiable class of foreseeable t victims because he was not compelled to attend, school officials lacked similar duties of care to him as to child given his status as parent and exception is narrowly tailored [internal quotation marks omitted] ); Evon v. Andrews, [supra, 211 Conn. 508] ([t]he class of possible victims of an I ; unspecified fire that may occur at some unspecified time in the future is by no means a group of I identifiable persons.)" (Internal quotation marks omitted.)
Other Connecticut trial courts have addressed the issue as to whether an invitee who is injured on town property is an identifiable person under the exception. In Fox v. Thomaston, Superior Court, judicial district of Litchfield, Docket No. CV-16-6014055-S (December 18, 2017, Bentivegna, J.), the plaintiff, an invitee, was making a delivery to the school cafeteria when he suffered a severe laceration to his right elbow when his right arm leaned against an oversized metal cover plate attached to a surface mounted electrical switch box. The Superior Court reasoned that " [t]he plaintiff was in no way compelled [by law] to attend [the location of the accident.] Instead, he voluntarily decided to [attend the location]. Under established case law, this choice precludes [the court] from holding that the plaintiff was an identifiable person or a member of an identifiable class of persons." Id.
Similarly, in Chester v. Groton, Superior Court, judicial district of New London, Docket No. CV-13-6017004-S (October 21, 2014, Cole-Chu, J.), the plaintiff, an election moderator, slipped and fell when she entered the town building to attend a meeting. Although the plaintiff argued she was an identifiable person under the exception because she was required to attend a meeting at the building, the Superior Court agreed with the defendant that the class of possible victims in this case would then include every member of the public. Id. The Superior Court reasoned, " [t]he law should not distinguish, or require municipal officials to distinguish, between people attending meetings, as the plaintiff was doing, from people coming into a public place to get out of the rain. Absent this distinction, if the plaintiff was in a class of foreseeable victims, so would everyone coming out of the rain and entering town buildings. This exception should not be construed so broadly as to apply to any person entering a town building." Id. See also Gonzales v. Board of Education, Superior Court, judicial district of Hartford, Docket No. CV-12-6035171-S (July 21, 2014, Wagner, J.T.R.) (plaintiff, guest at high school, who slipped and fell when attending daughter’s audition is not an identifiable victim because if she were " then so too was everyone who used that hallway. Anyone walking in the area could have slipped at any time." ).
In the present case, the plaintiff was not statutorily required or legally compelled to be at the Town Hall. Under established case law, the plaintiff’s voluntary choice to be on the Town Hall premises, even within the context of obtaining a permit as a town resident, precludes this court from holding that he was an identifiable person or a member of an identifiable class of persons. Consequently, the identifiable person-imminent harm exception to the doctrine of governmental immunity does not apply in this case. The court’s analysis of this issue ends here. See St. Pierre v. Plainfield, supra, 326 Conn. 420 (as identifiable person-imminent harm exception requires conjunctive proof of both, court’s determination that plaintiff does not qualify as identifiable person ends court’s analysis, and it need not consider whether imminent harm existed).
CONCLUSION
For the reasons stated above, the court finds as a matter of law that the plaintiff’s claim of negligence against the defendant is barred by governmental immunity. The defendant’s motion for summary judgment is therefore GRANTED.
Judgment shall enter in favor of the defendant on the plaintiff’s complaint.