Opinion
No. 03-0565386S
May 17, 2005
MEMORANDUM OF DECISION ON DEFENDANT CITY OF NEW LONDON'S MOTION FOR SUMMARY JUDGMENT (NO. 117)
I. BACKGROUND FACTS
In her amended complaint, filed on April 21, 2003, the plaintiff, Vickie Videll, alleges the following facts. On March 28, 2001, while at her place of work in the Richard Martin Center in New London, the plaintiff was struck on the head and injured by a window that fell out of its casing. The plaintiff was employed by US Filter/PSG. The city of New London owned and maintained the Richard Martin Center at the time of the accident. The plaintiff claims that the city had notice of the defective condition of the window because it had previously fallen twice on Cathy Foster, the plaintiff's coworker, before it fell on the plaintiff.
On April 24, 2003, US Filter Operating Services, Inc., filed a motion to intervene as a plaintiff, which the court granted on May 16, 2003. The present motion relates solely to the amended complaint filed by the original plaintiff, Vickie Videll, who is referred to in this memorandum as the plaintiff.
In the first count of the amended complaint, the plaintiff alleges that the defendant city of New London is liable pursuant to General Statutes § 52-557n(a) because it was negligent in its inspection, maintenance and repair of the window that injured the plaintiff. The plaintiff also alleges that the city of New London was negligent in failing to maintain the window in conformity with the BOCA National Property Maintenance Code, which it had adopted by ordinance.
General Statutes § 52-557n(a) provides: "Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions.
(a)(1) 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. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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.
The second count of the plaintiff's amended complaint alleges that the city of New London is liable for negligence and recklessness pursuant to General Statutes § 52-557n(b)(8). The plaintiff alleges that the city violated § 52-557n(b)(8) by failing to inspect the window even though it had notice of the violations of law and building codes. The plaintiff alleges that this constituted a reckless disregard for the health and safety of the employees, creating liability under the statute.
General Statutes § 52-557n(b)(8) states: "(b) 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: . . . (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances . . ." (Emphasis added.)
On November 15, 2004, the city of New London moved for summary judgment on the first three counts of the plaintiff's amended complaint. The city submitted a memorandum of law in support of its motion for summary judgment. On December 9, 2004, the plaintiff filed a memorandum of law in opposition to the city's motion for summary judgment. On November 23, 2004, the co-defendant, All-Time Manufacturing Company, Inc., also filed a memorandum of law in opposition to the city's motion for summary judgment. At oral argument, the plaintiff conceded that the motion for summary judgment should be granted on count three.
II. APPLICABLE LAW
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." Practice Book § 17-49. "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]." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
III. GOVERNMENTAL IMMUNITY CT Page 8823
The city argues that the plaintiff's first count is barred by the doctrine of governmental immunity. The city claims that the authority cited by the plaintiff for the purpose of abrogating governmental immunity does not eliminate the city's immunity because General Statutes § 52-557n(a)(2) provides that "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 . . ." The city argues that acts of inspection, repair mid maintenance require the exercise of judgment or discretion, and cites to Segreto v. Bristol, 71 Conn.App. 844 (2002), and Evon v. Andrews, 211 Conn. 501 (1989), to support this proposition.
In response, the plaintiff argues that the city's acts were ministerial because of a city ordinance adopting the BOCA National Property Maintenance Code and because the city did not have discretion not to repair the window property after the city was aware that the window was defective. Furthermore, the plaintiff argues that the determination of whether an act or omission is discretionary or ministerial is a question of fact for the jury. Lastly, the plaintiff argues that the city falls under the proprietary function exception to the governmental immunity rule because the city benefits from its contract with the plaintiff's employer, US Filter Operating Services, Inc.
The plaintiff has alleged, and the defendant has conceded in its memorandum of law, that the BOCA National Property Maintenance Code was adopted by the city prior to the accident. The code states that windows should be securely held in their casings. However, the Code only sets the standard to which the window should be maintained, not a maintenance procedure or schedule. Therefore, the city argues that the BOCA National Property Maintenance Code does not make the acts of inspection, repair and maintenance ministerial because it does not dictate how the inspection is to be performed.
"[A]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts." (Emphasis in original; internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991). "Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit and acts which constitute the creation or participation in the creation of a nuisance. General Statutes § 52-557n(a). The section goes on to exclude liability for acts or omissions of any employee or agent which constitute . . . negligent acts that involve the exercise of judgment or discretion. General Statutes § 52-557n(a). The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property. General Statutes § 52-557n(b)." (Internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 850 (2002).
"[A] municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts . . ." (internal quotation marks omitted.) Elliot v. Waterbury, 245 Conn. 385, 411 (1998). "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Heigl v. Board of Education, supra, 218 Conn 5.
"An example of such a ministerial duty is that of a town clerk to record an instrument which he has accepted for recordation in the land records," Pluhowsky v. New Haven, 151 Conn. 337, 347, 197 A.2d 645 (1964). Similarly, "an official may be sued in a civil action for refusing to recognize a validly cast vote . . . or for releasing from quarantine a dangerous dog before the expiration of the time period required of the official." (Citation omitted.) Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982). The deployment of police forces is a quintessentially discretionary act. See generally Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988).
In Evon v. Andrews, supra, 211 Conn. 501, the plaintiffs' decedents were killed when a fire destroyed their residence. The plaintiffs sued the city of Waterbury, alleging that the city had been negligent in inspecting the apartment building and enforcing the fire code. The Supreme Court explained that "what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment. Further, no matter how objective the standard, an inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment. It is axiomatic that ministerial acts [are those that] are performed in a prescribed manner without the exercise of judgment . . . Since the acts alleged . . . required in some measure the exercise of judgment by a municipal employee . . . they were not ministerial and therefore the defendants were immune from liability." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 506-07.
In Segreto v. Bristol, 71 Conn.App. 844 (2002), the plaintiff alleged that "she had sustained injuries in a fall on a stairway located on the premises of a senior center that was owned and operated by the city. She further alleged that her fall and resulting injuries were due to the negligence of the city or its employees." Id., 845 "The sole issue on appeal [was] whether the trial court properly determined that the city was entitled to judgment as a matter of law because the plaintiff's complaint alleged that the city negligently had performed a discretionary act, rather than a ministerial act, and the city was, therefore, immune from liability pursuant to General Statutes § 52-557n(a)(2)(B)." Id., 845. The city argued that the plaintiff's claim was "barred by the doctrine of governmental immunity both at common law and pursuant to § 52-557n. Thereafter, the city filed a motion for summary judgment claiming that it was entitled to judgment as a matter of law on its special defense of governmental immunity." Id., 846-47. The plaintiff argued that the failure to maintain the stairway was a ministerial act. The city maintained that it was a discretionary act. See id., 847.
The Appellate Court held that a municipality's actions in maintaining property are not always ministerial. Id., 851. "[T]he relevant case law on governmental immunity does not demonstrate that a municipality's failure to maintain its property in a reasonably safe condition is, as a matter of law, a ministerial function. Instead . . . the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint . . . And although the general rule is that a determination as to whether the actions or omissions of municipality are discretionary or ministerial is a question of fact for the jury, there are cases where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Id., 854-55; see also Violano v. Fernandez, 88 Conn.App. 1, 10 n. 9 (2005). "Determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature." Segreto v. Bristol, supra, 71 Conn.App. 857. The Appellate Court held that the trial court "was correct in concluding, as a matter of law, that the complaint alleged that the city negligently failed to perform a discretionary duty." Id., 857-58.
However, in Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992), the defendant board argued that its employees were engaged in a discretionary act because they had the responsibility of deciding whether there was sufficient snow accumulation before beginning to clear a walkway. Id., 281. The Appellate Court held that "[a] determination as to when to clear a sidewalk, however, is not a discretionary function. Every voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor. In the present case, the board of education's bulletin to all custodians and maintenance personnel was clear — they were to keep the walkways clear of snow and ice. We will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity." Id. The Appellate Court then held that the trial court was correct in concluding, as a matter of law, that the act of snow removal was ministerial in nature. Id., 281-82.
"Connecticut appellate courts have previously approved the practice of deciding the issue of governmental immunity as a matter of law." Id., 279. For example, in Gordon v. Bridgeport Housing Authority, the Supreme Court concluded "that the general deployment of police officers is a discretionary governmental action as a matter of law." (Internal quotation marks omitted.) Id., 180.
However, there is also authority that supports the plaintiff's claim that whether an act is discretionary or ministerial is a question of fact for the jury. "Whether the act complained of . . . [is] governmental or ministerial is a factual question which depends upon the nature of the act complained of." Couture v. Board of Education, 6 Conn.App. 309, 311, 505 A.2d 432 (1986). "[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . ." (Citations omitted.) Lombardi Rest Home, Inc. v. Richter, 63 Conn.App. 646, 656, 778 A.2d 230 (2001).
An issue of fact remains regarding whether the city of New London's failure to adequately inspect and repair the window was ministerial or discretionary in nature. In the present case, the city has a maintenance code that would have prevented the accident if it had been followed, but the code does not dictate how or when to fix the problem with the window. There are no Connecticut cases that have decided such an issue by law. Therefore, the defendant's motion for summary judgment is denied because an issue of fact remains as to whether the city's actions were ministerial or discretionary.
The city argues that the proprietary function exception to the governmental immunity rule is not applicable where the act engaged in is for the corporate benefit or pecuniary profit of the municipality. The city submitted the affidavit of Angela Nenni to support its contention that the Martin Center is operated for the public benefit and the promotion of public health.
"[T]he common thread in the cases that found a municipal function to be proprietary in nature [is] that in all the cases the municipality's actions appeared to be commercial in nature." LeClaire v. Vernon, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 90-0044254 (August 4, 1992, McWeeny, J) ( 7 Conn. L. Rptr. 192). When a municipality is engaged in a proprietary function, the "municipality acts not as a governmental entity but as a private entity." Drago v. Madison, Superior Court, judicial district of New Haven, Docket No. CV 03 0478215 (July 9, 2004, Corradino, J.). A proprietary function involves "special corporate benefit or pecuniary profit of the municipality affected." (Internal quotation marks omitted.) Hannon v. Waterbury, 106 Conn. 13, 17, 136 A 876 (1927). Examples of proprietary activity are the construction of a water tank for the exclusive use and benefit of town residents, Abbott v. Bristol, 167 Conn. 143, 150, 355 A.2d 68 (1974) or the holding of land for the purpose of generating a profit for the town, Hannon v. Waterbury, supra, 106 Conn. 18. With regard to the proprietary function argument, "[t]he leasing of property may appear commercial in nature, but it is a close issue which should be developed at trial." LeClaire v. Vernon, supra, Superior Court, Docket No. 90 0044254.
In this case, a question of fact remains as to whether the city is engaged in a proprietary function in leasing the Martin Center to US Filter Operating Services, Inc., which is New London's sewer company. The city has submitted the affidavit of Angela Nenni, which states that New London does not generate a profit from operating the Martin Center, and that it is operated for the public benefit and the promotion of public health. However, revenue is generated by the lease payments made from US Filter Operating Services, Inc., to the city. In this case, neither party has submitted sufficient evidence that would remove this issue from the province of the trier of fact. Therefore, the defendant's motion for summary judgment of the first count of the plaintiff's complaint is denied because an issue of fact remains as to whether the city is engaged in a proprietary function in owning and maintaining the Martin Center.
IV. VIABILITY OF CLAIM UNDER GENERAL STATUTES § 52-557n(b)
The city moves for summary judgment on the plaintiff's second count on the grounds of legal insufficiency. "While the motion before the court requests summary judgment, the appropriate procedural vehicle here is a motion to strike." Capasso v. Good News Transport, Superior Court, judicial district of New Haven, Docket No. CV 02 0469553 (Oct. 7, 2004, Skolnick, J.) "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Nonetheless, "Connecticut courts have allowed the use of a motion for summary judgment to test the legal sufficiency of a plaintiff's complaint . . . even though a motion to strike is the more appropriate vehicle for challenging the legal sufficiency of such a claim . . . Under such circumstances, the motion for summary judgment is treated as if it were properly presented as a motion to strike . . . However, the motion should only be granted if it meets the standard for a motion for summary judgment, not for a motion to strike." (Internal quotation marks omitted.) Capasso v. Good News Transport, supra, Superior Court, Docket No. CV 02 0469553, quoting Martin v. McHugh, Superior Court, judicial district of New Haven, Docket No. CV 03 0474217 (March 30, 2004, Skolnick, J.).
The city argues that General Statutes § 52-557n(b)(8) does not create a cause of action. The defendant argues that the plaintiff is claiming liability by way of negative implication under § 52-557n(b)(8), and that this is impermissible under several Connecticut cases. The defendant argues that courts have rejected claims that General Statutes § 52-557n(b) affirmatively authorizes a cause of action. The city cites Jewett City Savings Bank v. Canterbury, Superior Court, judicial district of Windham at Putnam, Docket No. CV 97 0056725 (October 16, 1998, Sferrazza, J.) ( 23 Conn. L. Rptr. 332.) and Gonzalez v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 97 0143396 (July 17, 1998, Hodgson, J.) (22 Conn. L. Rptr 446.). The city argues that the subsections of General Statutes § 52-557n(b) do not create a cause of action by negative implication.
In response, the plaintiff argues that she has stated a viable claim pursuant to General Statutes § 52-577n(b)(8). The plaintiff argues that this statute is an exception to the exceptions stated in § 52-557n(b). The plaintiff argues that the meaning of § 52-557n(b)(8) is that, where the city has notice of a defective condition, or where the inadequate inspection is negligent and thereby constitutes a reckless act that endangers a person, then governmental immunity is waived. The plaintiff distinguishes cases cited by the defendant by noting that they apply to different subsections of § 52-577n(b), not to § 52-577n(b)(8). The plaintiff distinguishes her case from the Superior Court cases that have held that § 52-577(b) does not authorize a cause of action by arguing that her construction of § 52-577n(b) is based on the plain meaning of the statute, not on negative implication.
General Statutes § 52-557n(b)(8) states: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, or 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 . . . failure to make an inspection or making an inadequate inspection or negligent of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances . . ." Based on the plain language of this statue, subsection (8) is not applicable to this case because it exempts property owned by the city. The city's ownership of the Martin Center was alleged in the complaint and admitted in the answer. The city owned the Martin Center, where the accident allegedly occurred. Therefore, this situation is not covered by this subsection. The plaintiff's argument that the present case is within the plain meaning of the statute is erroneous.
Furthermore, Connecticut courts have consistently rejected the argument that a cause of action may be based on § 52-557n(b). In Gonzalez v. Waterbury, supra, 22 Conn. L. Rptr 446, the court rejected the argument that § 52-557n(b)(2) creates an affirmative cause of action. "[T]he effect of § 52-557n(b)(2) is to restrict liability for proprietary operations or ministerial functions at reservoirs to situations in which the injured party was using the property in a foreseeable manner, not to remove immunity in general with regard to reservoirs. This provision does not, by negative implication, create liability for discretionary government acts with regard to operation of a reservoir that is not claimed to be a corporate or proprietary activity of the municipality." Id., 448 "As the defendant has pointed out in its brief, if the provisions of § 52-557n(b)(2) are read as creating affirmative liability rather than clarifying the scope of immunity, the other provisions of subsection (b) would have to be read in the same way, an unlikely construction given the nature of these other provisions." Id.
In Jewett City Savings Bank v. Canterbury, supra, 23 Conn. L. Rptr. 332, the court recognized a "distinction between § 52-557n(a) and § 52-557n(b). The former subsection defines those circumstances in which a town may be liable; the latter those circumstances when it is definitely not liable." Id.
These cases are analogous to the present case, and stand for the proposition that a cause of action may not be based on § 52-557n(b). Because the plain meaning of § 52-557n(b) is not consistent with its application to these facts, and because a cause of action may not be based on this statute, the city's motion for summary judgment on count two of the plaintiff's complaint is granted.
V. CONCLUSION
The city of New London's motion for summary judgment on count one of the plaintiff's complaint is denied. The city's motion for summary judgment on count two of the plaintiff's complaint is granted.
D. Michael Hurley Judge Trial Referee