Opinion
UWYCV166029417
06-07-2018
David JAMELE v. TOWN OF WATERTOWN
UNPUBLISHED OPINION
RORABACK, J.
I
FACTS
On March 23, 2017, the plaintiff, David Jamele, filed a two-count amended complaint against the defendant, Town of Watertown, alleging that he was injured when he slipped and fell on an accumulation of ice and/or snow in the parking lot of the Watertown Water Department while he was on his way to pay his water bill. Count one has been brought pursuant to Conn. Gen Stat. Section 13a-149d. Count two is a negligence claim. The defendant has filed a special defense as to count two claiming governmental immunity, and on October 18, 2017, the defendant filed the present motion for summary judgment as to count two on this ground. The plaintiff filed an objection on December 12, 2017 arguing that governmental immunity does not apply in this case by virtue of Conn. Gen. Stat. Section 52-557n(a)(1)(B) because the plaintiff was injured in connection with the defendant’s performance of a proprietary function. The matter came before this court at the February 13, 2018 short calendar.
II
DISCUSSION
A
Summary Judgment Standard
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "The 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." (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, 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006). "[T]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court ... [unless] there are unresolved factual issues material to the applicability of the defense ... [where] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 313, 101 A.3d 249 (2014).
B
Governmental Immunity
The defendant claims that it is entitled to governmental immunity because its alleged acts of negligence were connected with its governmental function of providing water services to its inhabitants. In contrast, the plaintiff asserts that there is a genuine issue of material fact with regard to whether the defendant’s operation of the water department is governmental or proprietary.
General Statutes § 52-557n(a)(1)(B) provides, in relevant part, that "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 ..." "The principle that a municipality is relieved from liability for injuries resulting from acts done by it in the performance of a public duty, for the public benefit, and not for its own corporate profit, has been frequently and consistently recognized and applied in this State ... Public parks, playgrounds, swimming pools, and public baths or bathing houses are all examples of municipal functions undertaken for public benefit, and unless maintained for the corporate profit of the municipality are within the rule of governmental immunity ... However, if property is not held and used by the city for municipal purposes exclusively, but in considerable part as a source of revenue, the city is responsible, as a private owner would be, for injury sustained through its negligence ... In order to deprive a municipal corporation of the benefit of governmental immunity, the act or function must involve special corporate benefit or pecuniary profit inuring to the municipality. If this element is present, the fact that the revenue or profit is applied to the maintenance of the property and the reduction of the debt incurred in its construction or acquirement, or otherwise ultimately to the benefit of the public, is not sufficient to create the immunity ... To remove the benefit of the principle, however, the operation must contemplate and involve revenue of such amount and nature as to signify a profit resulting therefrom, as distinguished from the imposition of such a nominal or small fee or charge as may fairly be regarded as a mere incident of the public service rendered, such as the fees imposed for the use of ... swimming pool facilities ... and similar incidental charges ..." (Citations omitted; internal quotation marks omitted.) Carta v. Norwalk, 108 Conn. 697, 701-02, 142 A. 158 (1929). A nominal charge "indicates a charge made for the purpose of regulation and control rather than a plan on the part of the city to glean a return to its treasury. The charge, then, appears to be one incidental to the object sought rather than a part of a plan to accomplish an object." Curcio v. Bridgeport, 7 Conn.Supp. 334, 340 (1939).
Our Supreme Court has held that "the supply of water is proprietary whenever revenues are generated thereby ..." (Citations omitted.) Blonski v. Metropolitan District Commission, 309 Conn. 282, 290 n.6, 71 A.3d 465 (2013); see Martel v. Metropolitan District Commission, 275 Conn. 38, 53, 881 A.2d 194 (2005); Abbott v. Bristol, 167 Conn. 143, 150, 355 A.2d 68 (1974); Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11 (1921); Hourigan v. Norwich, 77 Conn. 358, 365-66, 59 A. 487 (1904). The defendant seeks to distinguish itself from the tenets of these cases by submitting the affidavit of Vincent Caterino, the Superintendent of the Water and Sewer Department, who attests that the defendant does not own its own water supply, but rather provides its residents with water it purchases from the City of Waterbury. Attached to this affidavit are excerpts from the defendant’s audited financial statements for fiscal years 2010-2014. Information for the water authority is shown under the heading "Business-Type Activities," and the statements show annual revenues well in excess of $1,000,000.00 for each of the five years. While the statements do show operating losses for all of those years, they also show positive cash flow net of depreciation for three of the five years.
In Hourigan v. Norwich, supra, 77 Conn. 365, our Supreme Court explained that "[a] corporation uses works constructed for the public benefit for its corporate profit, when the profits are to be applied to the maintenance of the works and the reduction of the debt incurred by the corporation in their construction." In analyzing whether the city was entitled to governmental immunity in its distribution of water, the court noted that the city, as a corporation, was authorized, but not required, "to acquire and use land and water rights outside its limits, and other property, for the purpose of storing, distributing and selling water to its inhabitants and to all persons on the lines of its water pipes, for its corporate profit; the profits to be applied to the enlargement of its plant or to the extinction of the debt it was authorized as a corporation to incur for the purchase of such property; and also to use the water thus brought into the city in the performance of its public duties of protecting its citizens from fire and promoting the public health." Id., 365-66. "[T]he land, including the reservoir and bank of earth mentioned in the complaint, was, at the time of the injuries mentioned, owned by the city and was being dealt with by its authority, by the board of water commissioners and the persons acting under their direction, for the purpose of providing a larger supply of water which the city was then engaged in selling for its profit." Id., 366. Thus, "[i]n collecting, distributing and vending water, [the city] was engaged in the performance of acts done in the management of its property or rights for its own corporate benefit or profit and that of its inhabitants, and for injuries caused by it through its negligent acts it cannot plead governmental immunity." Richmond v. Norwich, supra, 96 Conn. 588.
General Statutes § 7-148(c)(4)(G) grants to municipalities the power to "[p]rovide for the furnishing of water, by contract or otherwise." Municipalities are further authorized to acquire, construct and operate a municipal water supply system. General Statutes § 7-234. The court takes judicial notice of the ordinances of the Town of Watertown, and notes that the defendant elected to create a water and sewer authority, with the power "to establish, maintain, extend and develop the water and sewer facilities of the Town," and "establish just and equitable rates or charges for the use of the water and sewer works system ... Such rates or charges shall be sufficient in each year for the payment of the expenses of operation, repair, replacements and maintenance of such systems and for the payment of the sums herein required to be paid into the appropriate capital fund accounts." Ord. § § 32-36, 32-85(a); see General Statutes § 52-163 (permitting a court to take judicial notice of the ordinances of any town, city or borough of the state).
Although the defendant has presented evidence that the water department did not operate at a profit in several fiscal years, "actual pecuniary profit is [only] a factor in deciding whether the function is propriety." Considine v. Waterbury, 279 Conn. 830, 847 n.11, 905 A.2d 70 (2006). It is not conclusive evidence that the defendant is not engaged in a proprietary function. "The general object of the municipality is not to be measured by something which fluctuates from year to year ... which is dependent as to use and income upon a variety of circumstances ..." Curcio v. Bridgeport, supra, 7 Conn.Supp. 339-40.
In light of the foregoing, this court cannot conclude that there is no genuine issue of material fact that the defendant is entitled to summary judgment on count two of the plaintiff’s amended complaint. Accordingly, the defendant’s motion for summary judgment is therefore denied.