Opinion
HHDCV186103559
01-28-2020
Sherry Schwartz v. Newington Board of Education et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Taylor, Mark H., J.
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ##124 & 152
Mark H. Taylor, Judge
I
BACKGROUND
The defendants have filed motions for summary judgment, challenging their liability for serious injuries sustained by the plaintiff after falling in a corridor at Newington High School. Motion for summary judgment docket no. 124 was filed on April 1, 2019, by the Town of Newington, Newington Board of Education, Richard Vida and Pamela S. Muraca (municipal defendants). Motion for summary judgment docket no. 152 was filed on November 13, 2019, by the Greater Hartford Church of Christ (GHCC). The motions for summary judgment are opposed by the plaintiff and were heard by the court on December 23, 2019. Upon review of the evidence presented, as well as the law of municipal and premises liability, the motions are denied.
The plaintiff fell while walking to a bathroom from an auditorium, leased for church services by the GHCC from the Newington Board of Education (NBOE), on Sunday, July 15, 2018, at approximately 10:45 a.m. The evidence presented shows that the floor was wet from a leaking HVAC unit above the corridor, which is adjacent to the auditorium and classrooms specifically leased by the GHCC. The evidence also shows that the building was inspected by an NBOE custodian prior to the scheduled arrival of the GHCC congregation at 9:00 a.m.
The plaintiff alleges that the lease to the GHCC for the auditorium and classrooms for Sunday services included an additional charge for custodial services performed by municipal employees before and after they opened and closed the building for the GHCC members. The evidence reflects a weekly fee of approximately $1,300 over the course of the rental of the high school. The plaintiff provides evidence to support that the municipal defendants’ revenue escalated in the fiscal years preceding the injury. The plaintiff also submitted evidence of calendar year 2018 to highlight the revenue generated from the GHCC alone, compared with the operational costs expended over that same period. The municipal defendants do not deny this evidence, however, they calculate other operational costs over the same time periods to show that the revenue received did not exceed the entirety of these costs.
The high school’s/NBOE’s fiscal year begins on July 1 and ends on June 30 the following year.
The depositions of the municipal defendants’ employees also show there were no mandated procedures or protocols established for the high school custodial staff for the maintenance, inspection or repair of hazardous conditions. From these facts, the municipal defendants assert that governmental immunity is maintained, without exception, and the GHCC asserts that it had no possession and control of the premises.
A
Allegations of Negligence
Counts one, three, four and five of the plaintiff’s second amended complaint are directed against the municipal defendants. Count one alleges that the NBOE entered into a leasing agreement for a portion of the high school with the GHCC and, as an outside party, is subject to General Statutes § 52-557n(a)(1)(B), which precludes governmental immunity when a municipal defendant "derives a special corporate profit or pecuniary benefit" from, so-called, proprietary endeavors.
General Statutes § 52-557n(a)(1)(B) 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 ... negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit ..."
Count three alleges that the municipal defendants, Richard Vida (Vida) and Pamela S. Muraca (Muraca), are liable in their roles as Director of Maintenance and Superintendent of Schools, respectively, as they are vested with the responsibility of supervising NBOE maintenance staff who were negligent in the performance of their duties. Count four alleges that the Town of Newington (town) is liable because it was in possession and control of the high school at the time of the plaintiff’s injury, and is also subject to General Statutes § 52-557n(a)(1)(B), which precludes governmental immunity when engaged in proprietary endeavors.
Count five, also against the town, incorporates the allegations of count three against the individual municipal defendants, Vida and Muraca, and asserts indemnification for their negligence pursuant to General Statutes § 7-465.
General Statutes § 7-465(a) provides in relevant part: "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty."
Count two of the plaintiff’s second amended complaint is directed against the GHCC and alleges that, as a lessee, it "was in possession and control, and/or managed and/or maintained the said leased premises including the hallway floor at the Newington High School where the incident took place." As such, the second count further alleges the GHCC’s negligence through its agents, servants or employees in allowing or permitting the dangerous condition, and by failing to inspect and determine the custodians’ duties as well as the performance of those duties.
B
Municipal Defendants’ Summary Judgment
The municipal defendants contend, generally, that they were engaged in a governmental function at the time of the injury and, therefore, are not subject to the proprietary function exception to governmental immunity. They also assert there is no alleged violation of a rule or policy mandating a ministerial duty to maintain the building or inspect for and repair hazardous conditions. As the acts alleged are therefore discretionary, the plaintiff is not within the identifiable victim/imminent harm exception to governmental immunity, as set forth in § 52-557n(a)(2)(B). The municipal defendants further conclude that, categorically and as a matter of undisputed fact, the plaintiff is outside the only recognized exception to this rule, limited to schoolchildren attending public schools during school hours. See Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1 (1994) overruled on other grounds by Haynes v. Middletown, 314 Conn. 303, 326 n.18 (footnote 18 spans pages 325 and 326, but relevant language in footnote 18 is only on page 326), 101 A.3d 249 (2014) ("the superintendent of schools bears the responsibility for failing to act to prevent the risk of imminent harm to [schoolchildren] as an identifiable class of beneficiaries of his statutory duty of care").
General Statutes § 52-557n(a)(2)(B) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... 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." See Grady v. Somers, 294 Conn. 324, 333-34, 984 A.2d 684 (2009).
The municipal defendants highlight the fact that the GHCC was operating under a Building Use Permit, issued pursuant to Board Policy No. 1330, making school facilities available for non-commercial uses in the public interest, such as educational, cultural, civil, social, recreational, governmental, or of a general political nature benefitting the public at large. Although fees are associated with these permits, the municipal defendants allege they are neither intended nor in fact generate revenue or profits for the town or the NBOE. They instead cover the direct, incremental costs the NBOE would incur to support the event, without pecuniary benefit or special corporate profit.
General Statutes § 10-239 permits such uses, as follows:
(a) Any local or regional board of education may provide for the use of any room, hall, schoolhouse, school grounds or other school facility within its jurisdiction for nonprofit educational or community purposes whether or not school is in session.
(b) Any local or regional board of education may grant the temporary use of rooms, halls, school buildings or grounds or any other school facilities under its management or control for public, educational or other purposes or for the purpose of holding political discussions therein, at such time when the school is not in session and shall grant such use for any purpose of voting under the provisions of title 9 whether or not school is in session, in each case subject to such restrictions as the authority having control of such room or building, grounds or other school facility considers expedient.This statutory provision does not, however, influence the court’s analysis of whether such a permitted use is proprietary.
The plaintiff cites to other facts, giving rise to a material issue in dispute over the proprietary nature of leasing the high school for a fee that substantially exceeds the operating costs of the use of the building. The plaintiff cites escalating revenue from leasing the high school to private entities, generating $98,561.62 and $161,562.34 in FY 2018 and FY 2019, respectively. Although these fiscal years are subsequent to the year of the injury in FY 2017, they reflect evidence of the proprietary nature of the endeavor over the course of several years. The plaintiff specifically cites fees of $52,554.93 received by the NBOE from the GHCC between December 31, 2017 and December 31, 2018 (calendar year 2018), while disbursing only $10,388.77 during calendar year 2018 for custodial services. This results in excess revenue of more than $40,000 in calendar year 2018, for example, in excess of identifiable costs and expenses associated with maintaining the facility, not specifically accounted for by the municipal defendants, relative to the time the high school was actually used by private entities, such as the GHCC.
C
GHCC’s Summary Judgment
The GHCC contends in its motion for summary judgment that it did not lease the corridor where the plaintiff was injured and, otherwise, had no obligation to inspect, maintain or repair the premises. In fact, all the testimonial evidence shows that this duty has been admitted in depositions of the municipal defendants’ employees, albeit as a discretionary duty subject to immunity. The GHCC further points to the absence of any notice of the defective condition that would give rise to any duty to warn the plaintiff or the municipal defendants who were responsible for maintaining the premises.
II
DISCUSSION
A
Summary Judgment
"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 evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
B
Proprietary Function
The court must first determine whether there is a material issue of fact regarding the proprietary nature of the GHCC’s use of the high school. In Considine v. Waterbury, 279 Conn. 830, 844, 905 A.2d 70 (2006), the Supreme Court undertook a comprehensive analysis of municipal liability pursuant to General Statutes § 52-557n(a)(1)(B) and concluded that it "codifies the common-law rule that municipalities are liable for their negligent acts committed in a proprietary capacity," as opposed to governmental functions. After acknowledging that the distinction between governmental and proprietary functions may be a quagmire and thereafter citing a litany of examples, the court concluded that "[i]n the specific context of leasing municipal property, this court and courts of other jurisdictions generally have concluded that a municipality acts in its proprietary capacity when it leases municipal property to private individuals." Id., 849.
"[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." (Citation omitted; internal quotation marks omitted.) Id., 847. In the Considine case, although funds generated from a lease of a restaurant were reinvested in a public golf course, it was held to be sufficient to trigger an exception to governmental immunity. See id., 851. On the other hand, nominal fees for governmental activities that do not cover expenses, for beneficial activities such as swimming and lessons at a public pool, were distinguishable and governmental immunity remained intact. See id., 847. Nonetheless, the Supreme Court noted that "the leasing of a portion of a municipal building for a substantial rent to a private party to operate a business is an act that very much resembles private enterprise, and, accordingly, consistently has been determined to be a proprietary function." Id., 851; cf. St. Pierre v. Plainfield, 326 Conn. 420, 431, 165 A.3d 148 (2017) (agreed that a municipality acting "very much like private enterprise" constitutes a proprietary function, but not where municipality only charged a nominal fee for the use of a municipal pool for aquatherapy).
Although a non-stock religious corporation is not a business per se, it is a private enterprise that does not involve a traditional governmental function and would, otherwise, be required to compete for leased space in the open market. Although there is no clear evidence of a "profit" made by the NBOE from the GHCC lease in the present case, a substantial fee is charged for the use of the municipal space provided, and the plaintiff points to admissible evidence showing that revenue derived from the lease exceeds the direct expenses associated with maintaining the high school. Based upon the law and evidence presented, the court concludes there is a material issue of fact in dispute regarding the proprietary nature of the lease between the NBOE and the GHCC.
In addition to count one, the theory of liability in counts three, four and five appear to be dependent upon the proprietary nature of the lease arrangement between the GHCC and the NBOE which, if found, would subject these allegations to ordinary, premises liability analysis alone, as there is no violation of a ministerial duty alleged. As such, summary judgment on these counts is also denied.
C
Possession and Control
In its motion for summary judgment, the GHCC contends that, absent possession and control of the corridor at the high school and having no notice of the hazardous condition, it should not be held liable for the plaintiff’s injuries as a matter of law. The plaintiff opposes the motion as follows. First, she notes that the building use agreement did not specifically include corridors, leaving open the question of who possessed and controlled those areas. Second, she points to the fact that the municipal defendants specifically denied that the GHCC had no authority or control over the building custodian, Kevin Carragher, suggesting that they did. Third, she argues that the GHCC was required to have liability insurance to indemnify the "landlord."
"[T]he dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property ... The word control ... refers to the power or authority to manage, superintend, direct or oversee." Colon v. AutoZone Northeast, Inc., 148 Conn.App. 435, 438, 84 A.3d 1234 (2014). Where "the terms of control are not express between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances." LaFlamme v. Dallessio, 261 Conn. 247, 257, 802 A.2d 63 (2002). As such, the fact that the high school corridors were not within the lease does not appear to be conclusive evidence of possession and control. It is both logical and reasonable that the use of the corridor and bathrooms were inherent and necessary in a lease of the auditorium and classrooms for up to four hours. It is also logical and reasonable to require outside groups to provide proof of liability insurance, but doing so does not necessarily admit liability for damages, other than those for which they are legally responsible. The question of control of the custodial staff over the inspection of the corridor, however, remains a material issue in dispute in that the NBOE denied that the GHCC had no authority or control over the building custodian.
In the present case, neither the GHCC nor the NBOE had exclusive possession of the high school premises and control appears to be a material issue in dispute between the parties. "[L]iability in a premises liability case is based solely on control and possession, not title ... Moreover, in our cases involving claims of premises liability, it does not appear that we have required the plaintiff to show that the defendant had exclusive possession." (Citation omitted.) Lin v. National Railroad Passenger Corp., 277 Conn. 1, 16 n.10, 889 A.2d 798 (2006).
The GHCC is correct in concluding there is no evidence of actual notice of the alleged defect of water, apparently leaking from a puddle formed in an HVAC mechanical room above the corridor where the plaintiff slipped, fell and was injured. Although there is evidence that the building was inspected prior to the arrival of the GHCC by the custodial staff, the mechanical room was not included in the scope of the inspection and no intervening inspections occurred. In order for the plaintiff to recover in the absence of proof that the defendants created the condition or actually knew of it, the plaintiff must prove that the defendants had constructive notice of the hazardous condition and, using reasonable care, should have known of the unsafe condition in time to have taken steps to correct the condition. See Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007). Whether the inspection should have included the HVAC room and the intervals between inspections, including the corridor, are material issues for the trier of fact. These facts are only relevant, however, if the municipal defendants were acting in a proprietary capacity; otherwise, their liability is dependent upon the ministerial or discretionary nature of their duty, if any, to inspect and repair hazardous conditions. GHCC’s motion for summary judgment is therefore denied.
III
CONCLUSION
The defendants’ motions for summary judgment are denied.
BY THE COURT