Opinion
No. CV 03-034 99 38 S
August 31, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiff, Joann Trezzino, brought suit against the City of Danbury (City), alleging that her injuries are the result of their negligent maintenance of public property. On March 10, 2004, the City moved for summary judgment on the ground of governmental immunity. On May 5, 2004, the plaintiff objected to the City's motion, arguing that the City's underlying act was ministerial, or in the alternative, the plaintiff falls within the identifiable person subject to imminent harm exception to discretionary acts. For the following reasons, the court finds that the City's acts were discretionary, but that there exists a question of fact of whether the plaintiff was subject to imminent harm.
On August 19, 2001, the plaintiff went to Hatters Park, a public park owned and maintained by the City, to attend a picnic. The plaintiff's license plate had the proper documentation to allow her to park in a handicapped parking space. She intended to park in the handicapped parking space adjacent to the picnic pavilion, but was directed by a state employee to park behind another building, located some distance away from the picnic pavilion. In order to reach her desired destination, the plaintiff was now required to walk upon a grassy pathway. While walking on the pathway, the plaintiff alleges that she stepped into a grass-covered hole, which caused her to lose her balance and place the opposite foot into another similar hole. The plaintiff further alleges that as a result of her situation, she fell to the ground and suffered various injuries.
The plaintiff has brought suit directly against the City pursuant to General Statutes § 52-557n(a)(1), alleging that the City's negligence, failure to maintain public property, caused her injuries. The City has moved for summary judgment on the ground that the maintenance of this public property was a discretionary act, and thus, the city is immune from liability due to the doctrine of governmental immunity. In response, the plaintiff argues that the, maintenance of the public property was not discretionary but ministerial, or in the alternative, if the court determines the act is discretionary, the plaintiff falls within the identifiable person subject to imminent harm exception.
General Statutes § 52-557n(a)(1) provides: "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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149."
The standard for granting a motion for summary judgment is well-settled. "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.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).
"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). "The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Webster Bank v. Oakley, supra, 265 Conn. at 545. "[T]he party opposing . . . a motion [for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
At common law, a municipality was generally immune from liability for its tortuous acts. See Spears v. Garcia, 263 Conn. 22, 28 (2003). "[H]owever, that governmental immunity may be abrogated by statute . . . Thus, the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Id. "Statutes that abrogate or modify governmental immunity are to be strictly construed . . . This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction." Segreto v. Bristol, 71 Conn.App. 844, 849-50 (2002).
General Statutes § 52-557n(a)(1) "clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents." Spears v. Garcia, supra, 263 Conn. 29. Yet, § 52-557n is not a complete abrogation of governmental immunity. See General Statutes § 52-557n(a)(2) (b). Specifically, § 52-557(a)(2)(B) permits immunity for the municipality's acts or omissions which required the exercise of judgment or discretion. In the present case, the City may assert immunity only if the act at issue required the exercise of discretion.
General Statutes § 52-557n(a)(2)(B) provides: "Except as other wise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) 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."
Whether an action is barred by the doctrine of governmental immunity, "the court looks to see whether there is public or private duty alleged by the plaintiff." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988). The defendant states, and the plaintiff impliedly concedes that this case involves a public duty. The court does not find it necessary to conduct any further inquiry. Moreover, "[a]lthough the public duty doctrine provides the starting point of the analysis, distinctions between discretionary acts and ministerial acts are often controlling without regard to whether the duty is ascertained to be public or private." Id.
Whether the doctrine of governmental immunity applies depends largely upon whether the act at issue is discretionary or ministerial. Our case law has defined a discretionary act as "[g]overnmental acts [that] are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature." Spears v. Garcia, supra, 263 Conn. at 36. "In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Id.
Here, the plaintiff argues that the acts at issue were ministerial, and therefore, she can hold the City liable for the negligent acts of its employees. In support, the plaintiff relies on Kolaniak v. Board of Education, 28 Conn.App. 277 (1992) for the proposition that the maintenance of the grassy walkway does not fall within the policy decisions usually afforded protection by governmental immunity. See Plaintiff's Memorandum of Law, p. 3-4. The facts of Kolaniak are distinguishable from the present case.
In Kolaniak, the Appellate Court affirmed the trial court's instruction to the jury that as a matter of law, the clearing of snow and ice pursuant to the board of education's express directive was a ministerial act. Id., 281-82. Thus, the school's failure to keep the school walkways free from ice and snow as directed precluded any defense of governmental immunity. Id. The critical fact in Kolaniak, which does not exist in the current case, was that there existed an express directive on how to maintain the property. In the present case, the evidence demonstrates that there was no directive, policy or procedure that governed the maintenance of the pathway. The affidavit of Robert Ryerson, the director of parks and recreation for the City, states that on August 19, 2001, "the [City] did not have a policy or procedure for maintaining, inspecting, and/or repairing" the pathway on which the plaintiff injured herself. In addition, the plaintiff has not alleged that any directive, policy or procedure exists.
In Segreto v. Bristol, 71 Conn.App. 844 (2002), the Appellate Court held that the negligent maintenance of municipally owned property is a discretionary act where the complaint fails to allege "that the [municipality] had some policy or directive in place regarding those duties with which it or its employees had failed to comply." Id., 857. There, the plaintiff fell on a stairway attached to the City of Bristol's senior center. Pursuant to General Statutes § 52-557n(a), the plaintiff brought suit against the city alleging that her injuries were due to the City's negligent maintenance of the property. The Appellate Court affirmed the trial court's granting of summary judgment on the ground that these acts were discretionary, and not ministerial, because: (1) "[t]he complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply[; (2)] . . . the affidavit of the city's claims and loss coordinator stated that the city had no such policy in place for the general maintenance and design of the stairway[; and (3)] the plaintiff failed to offer an affidavit that would have tended to put that fact in dispute." Id., 857.
Just like Segreto, the complaint in this case does not allege that the City had some policy or directive regarding the maintenance of the pathway. Such a conclusion is supported by the affidavit of Robert Ryerson. Moreover, the plaintiff has failed to provide any evidence which would put this fact in dispute. As a result, the court finds that the acts at issue were discretionary. Even though at a glance it appears that the doctrine of governmental immunity lends protection, the court's inquiry is not complete because certain discretionary acts do not fit within the purview of governmental immunity.
"The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where 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; . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505 (1989).
In this case, the plaintiff has alleged that the only applicable exception is the identifiable person subject to imminent harm exception. As the Supreme Court stated in Evon, "[t]he `discrete person/imminent harm' exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." Evon v. Andrews, supra, 211 Conn. at 507. This exception applies to both an identifiable individual or an identifiable class of foreseeable victims. See Burns v. Board of Education, 228 Conn. 640, 646 (1994).
"In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts; . . . whether the relationship was of a voluntary nature; . . . the seriousness of the injury threatened; . . . the duration of the threat of injury; . . . and whether the persons at risk had the opportunity to protect themselves from harm." (Citations omitted.) Id., 647-48.
"An individual may be `identifiable' for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition." Tryon v. North Branford, 58 Conn.App. 702, 710 (2000). In Tryon, the plaintiff sought damages for injuries sustained when she was bitten by a dog owned by a volunteer firefighter for the defendant town, while she was in the staging area of a firefighters' parade. The court held that the plaintiff was an identifiable person because "the harm did occur within a framework limited in duration, place and condition." Id. However, the court set aside the trial court's granting of summary judgment for the town on the ground that the plaintiff failed to show that she was subject to imminent harm. Id., 717.
The plaintiff in the present case claims that she was not a member of the general public, but rather an individual attending a Sunday picnic, who was identified by being directed to park in a specific location, which forced her to tread upon a grassy walkway. See Plaintiff's Memorandum p. 6. The plaintiff then argues that the dangerous condition, grass-covered holes, was limited to the walkway and temporary since the walkway needed repair. Id. The defendant has not responded to the allegation of whether the plaintiff was an identifiable person subject to imminent harm.
The court holds that based on the evidence, the plaintiff is an identifiable person because "the harm did occur within a framework limited in duration, place and condition." Tryon v. North Branford, supra, 58 Conn.App. at 710. Under the circumstances, the plaintiff was a part of a foreseeable class of persons. She falls within this foreseeable class because, where a party has the proper documentation to park in a handicapped parking space, is denied the right to park there, and then directed to park a greater distance away from their destination, that person becomes someone who is identifiable and has an increased risk that harm. Moreover, this condition had a specific duration, it started from the time she parked and returned to her car. There has been no evidence or allegation to suggest that the unavailability of the handicapped parking space was anything but temporary.
The question now becomes whether the plaintiff was an identifiable person who was subject to imminent harm. Whether the identifiable person is subject to imminent harm is a question of fact for the trier of fact. Tryon v. North Branford, supra, 58 Conn.App. at 717. The plaintiff argues that there exists a question of fact to be decided by the jury as to whether the plaintiff was subject to imminent harm. The court agrees that there is a question of fact of whether under the circumstances, the plaintiff was in danger of an imminent harm. As such, the City's motion for summary judgment is denied.
BY THE COURT,
Richards, J.