Opinion
HHBCV156027884S
11-10-2015
The Connecticut Light & Power Company dba Eversource v. Town of Avon
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Robert E. Young, J.
From Friday, February 8 through Saturday, February 9, 2013, Connecticut suffered a blizzard that left up to forty inches of snow in its wake. In its revised complaint, dated March 6, 2015, the plaintiff, The Connecticut Light & Power Company [CL& P], alleges that on February 10, 2013, while removing or clearing snow from Garnet Hill Lane, the defendant Town of Avon [town]'s agents, servants and/or employees negligently damaged the plaintiff's equipment, located on a pad at 10 Garnet Hill Lane.
The town has moved for summary judgment on its first special defense, asserting that it is entitled to governmental immunity. CL& P has filed an objection to the motion and asserts that, in performing its snow removal, the town was excavating without notifying the central clearinghouse of the Connecticut Public Utilities Regulatory Authority, in violation of General Statutes § 16-346. In its objection to the motion, CL& P intimates, but does not directly state, that this statute created a ministerial duty for the town. The town has filed a reply brief. The parties argued their respective positions on November 2, 2015.
At the time of the incident alleged in the revised complaint, General Statutes § 16-346 stated, " No person, public agency or public utility shall engage in excavation or discharge explosive at or near the location of a public utility underground facility or demolish a structure located at or near or containing a public utility facility without having first ascertained the location of all underground facilities of public utilities in the area of such excavation, discharge or demolition in the manner prescribed m this chapter and in such regulations as the [Public Utilities Regulatory Authority] shall adopt pursuant to section 16-357." Subsequently, § 16-346 and other related statutes were amended by No. 14-94, § 39, of the 2015 Public Acts, to be effective October 1, 2015.
" 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.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" 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 a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in . . . § 52-557n." (Internal quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn.App. 638, 646-47 (2015). General Statutes § 52-557n(a)(2)(B) states, " 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."
" 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 where it is apparent from the complaint . . . [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to . . . § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint . . . Accordingly, where 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." (Footnote omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307-08, 999 A.2d 700 (2010).
The town has provided an affidavit of its director of public works, which sets forth that the manner of snow removal was left to his discretion and that of the snow plow operator. CL& P does not contest the affidavit and offers no evidence contrary to the town's assertion that it was conducting a governmental or discretionary act.
" General Statutes § 52-557 abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. General Statutes § 52-557n(a)(1)(A). General Statutes § 52-557n(a)(2)(B), however, 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006).
" Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 614-15.
Our Supreme Court has " 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 . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when 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 . . ." (Citations omitted; internal quotation marks omitted.) Id., 615-16.
In the present case, CL& P has not argued, and has not established, that any of the three exceptions to discretionary act immunity apply. Instead, CL& P asserts that the town can be held liable for violation of § 16-346. This assertion is problematic, both because violation of the statute is not alleged in the operative complaint and because a plain reading of the statute does not equate snow removal to excavation.
The operative complaint sounds only in negligence and does not assert a statutory cause of action. CL& P filed a request for leave to amend the revised complaint to add the statutory violation as a claim of negligence. The town has objected to the motion to amend and argues that this is a new cause of action and outside the statute of limitations. Additionally, the court's review of the relevant statutes, General Statutes § 16-345 et seq., does not reveal a private cause of action for violation of § 16-346. Rather, violation results in a civil penalty paid to the state. See General Statutes § 16-356.
Since the request for leave to amend was filed, neither party has sought adjudication on the town's objection to it. Instead, the parties have proceeded on the motion for summary judgment and objection to same. CL& P cites Spears v. Garcia, 66 Conn.App. 669, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003), in support of its assertion that the court should nevertheless consider its assertion that the town violated § 16-346 in its proposed amended complaint.
Spears is distinguishable from the case at bar. In Spears, the plaintiff raised the applicability of General Statues § 52-557n for the first time in its opposition to the defendant's motion for summary judgment. Here, it is not applicability of § 52-557n, abrogating municipal liability, which is being raised for the first time. Rather, it is a claim of violation of a statute as an independent basis for negligence which is being raised for the first time. Instead of raising an issue as to why governmental immunity is abrogated, as in Spears, CL& P merely asserts in its proposed amended revised complaint that the town was negligent in that it violated § 16-346 and argues without legal support that the town's acts were " non-discretionary." Because neither party has sought adjudication of the objection to the proposed amended revised complaint prior to adjudication of the motion for summary judgment, the proposed amended revised complaint is not the operative complaint and, for the purposes of the motion for summary judgment, the claim of violation of § 16-346 is not before the court.
Even if the court considered the proposed revised amended complaint as the operative complaint, the claim of violation of § 16-346 has no merit. Snow removal after a storm is not the calculated excavation contemplated by General Statutes § 16-345 et seq., nor has CL& P offered any legal support for such a claim. Section 16-345(5) states, in applicable part, " 'Excavation' means an operation for the purposes of movement or removal of earth, rock or other materials in or on the ground, or otherwise disturbing the subsurface of the earth, by the use of powered or mechanized equipment . . ." This definition does not encompass the shifting of snow from a roadway onto an adjacent pad upon which CL& P has mounted its equipment. While it does encompass the disturbance of the ground or earth, it does not encompass the surface removal of snow from pavement.
To accept CL& P's definition of excavation to include snow removal would require every municipality, every private contractor and every property owner to contact the clearinghouse before every snow removal operation on the chance that a public utility's equipment might be struck in the act of clearing snow. With every such contact, pursuant to § 16-351, CL& P and other public utilities would be obligated to run out in the aftermath of every snowstorm to mark each of its facilities before the municipalities were permitted to conduct snow removal. Necessarily, it would also preclude a municipality from engaging in any snow removal during a storm. CL& P's interpretation of the applicability of § 16-345 et seq. to snow events is simply untenable.
Based on the foregoing, governmental immunity precludes liability because the acts complained of are discretionary in nature, and none of the three recognized exceptions to discretionary act immunity apply.
The defendant's motion for summary judgment (114.00) is granted. The plaintiff's objection to the motion (119.00) is overruled.