Opinion
No. CV01-0447998S
December 30, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S' MOTION FOR SUMMARY JUDGMENT (#119)
This is a slip and fall personal injury case brought by the plaintiff, Joan M. McFarlane, for injuries she received on February 4, 2000 allegedly due to ice and snow that had accumulated in an area of a parking lot owned by the Town of Branford. The plaintiff asserts negligence on the part of Edward Masotta, Branford's Director of Public Works and indemnification by the Town pursuant to General Statutes § 7-465. The plaintiff also asserts negligence against the Town directly pursuant to General Statutes § 52-557n.
The defendants have moved for summary judgment based on governmental immunity. Although the present motion was filed prior to the plaintiff's amended complaint adding a negligence count directed at the Town, the parties agree that, if governmental immunity applies, it applies to all three counts. The plaintiff objects to summary judgment asserting (1) that Masotta's actions were ministerial and therefore outside the scope of governmental immunity and (2) even if Masotta's actions are deemed discretionary, the imminent harm to an identifiable person exception applies to this case.
For the reasons set forth below, the motion for summary judgment is denied.
BACKGROUND
As required, the facts are construed most favorably to the plaintiff. Appleton v. Board of Education, 254 Conn. 205, 209 (2000).
The parking lot behind 30 Harrison Street, Branford, Connecticut is an area owned, possessed and maintained by the town. The area is used by the Branford Police Department as a parking area for the police cars and other vehicles. In addition, the town permitted a volunteer organization for the needy, Harbor Health Services, to keep walk-in containers on the property to receive, store and distribute clothing to needy persons. Volunteers at the location operated this "clothes bank."
On the date of the incident, the plaintiff was a volunteer overseeing the dispensing of clothing. This activity required her to walk in and out of the containers and between the two containers on the site. While performing these duties, she slipped due to an icy condition that existed directly in front of one of the containers. The plaintiff sustained physical injury.
The Branford Public Works Department is responsible for snow removal (and the application of sand/salt) in the area behind 30 Harrison Avenue near the storage containers. On February 3rd, 2000 the Public Works Department had employees servicing the roads and other public areas of the town due to a snow storm. This continued on February 4, 2000. There are no policies that mandate when, how or in what particular manner Public Works employees are to go about their snow removal activities. Edward Masotta supervises these employees, including the person tasked to clear the area in question. In practice, Masotta assigns an employee to a particular route and expects the employee to use common sense in plowing, sanding and salting. Masotta expected the driver assigned to the area near the containers to apply sand and salt as needed.
The plaintiff asserts that her fall was due to the negligence of Masotta and his agents in that they failed to treat the area with sand, salt or other material so as to make it safe.
DISCUSSION
The defendants assert that governmental immunity bars the lawsuit and they are entitled to summary judgment in their favor.
"Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct (citations omitted). The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. A municipal employee has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." Purzycki v. Fairfield, 244 Conn. 101, 107 (1998). An exception to the qualified immunity of a municipal employee permits a tort action in circumstances of likely imminent harm to an identifiable person. Id., 108. This exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. Burns v. Board of Education, 228 Conn. 640, 646 (1994).
Resolution of the present motion turns on whether the defendants' actions are discretionary or ministerial and, if discretionary, whether the exception applies.
A.
On the present record, this court finds the actions of Masotta and his agents are properly characterized as discretionary in nature. The plaintiff's reliance on Kolaniak v. Board of Education, 28 Conn. App. 277 (1992), while understandable, is not persuasive. In Kolaniak, the Board of Education issued a bulletin to school custodians directing them to keep school walkways clear of ice and snow. The trial court instructed the jury that the act of clearing ice and snow from the school walkways was ministerial and not protected by governmental immunity. The Appellate Court agreed. Id., 281. In Beach v. Regional School District No. 13, 42 Conn. App. 542, cert. denied, 239 Conn. 939 (1996), the Appellate Court found governmental immunity applicable where the plaintiff fell on a snow-covered school sidewalk. In finding the defendant's actions discretionary, Beach distinguished Kolaniak on the ground that there was no Board of Education directive regarding snow removal.
In the present case, Masotta was not under any mandate or directive from the town regarding snow/ice removal. Moreover, unlike Kolaniak where the custodians did nothing to remove snow, here Masotta and Public Works drivers did act to remove snow and ice from town roads and parking lots. Pursuant to Beach, the defendants' actions are properly deemed discretionary.
B.
Since Masotta's actions are discretionary and governmental immunity applies, the issue is whether the plaintiff comes within the exception applicable to foreseeable victims subject to imminent harm. This is a close question.
In order for Masotta, the individual defendant, to owe a duty of care to the plaintiff, she must be within an identifiable class of persons subject to imminent harm. Burns v. Board of Education, supra, 228 Conn. 646. In Burns v. Board of Education, our Supreme Court held that school children who are statutorily compelled to attend school during school hours on school property can be an identifiable class of victims. Id., 650. The defense essentially argues that absent such legal requirement to be in a certain place at a prescribed time, a person or class of persons are not "identifiable" for purposes of the exception.
The Appellate Court, however, has not limited the exception to this extent. In Tyron v. North Branford, 58 Conn. App. 702 (2000), a firefighter in the staging area of a parade who suffered a dog bite from a dog owned by another firefighter was held to be an identifiable person such that the exception applied. The Court stated:
An individual may be "identifiable" for purposes of the exception to qualified immunity if the harm occurs within a limited temporal and geographic zone, involving a temporary condition.
Tyron v. North Branford, supra, 58 Conn. App. 716. In Tyron, there was no indication that the plaintiff was required by law to attend the parade. The Court found that the plaintiff was within a narrowly defined class of foreseeable victims because she was a firefighter in uniform in the parade staging area as opposed to a member of the general public. Tyron v. North Branford, supra, 58 Conn. App. 710.
As a volunteer of a town-approved clothes bank permitted to be located on town property, the harm to the present plaintiff also occurred within a limited temporal and geographic zone. That is, it occurred when the clothes bank was open and within the immediate area outside the clothes container. In addition, her harm was due to a temporary condition — ice from a storm. Moreover, she was not a member of the general public but a volunteer of Harbor Health Services. Under Tyron, the individual defendant owed a duty to the plaintiff because she was an identifiable person.
Whether that duty was violated because the individual defendant placed plaintiff in imminent harm is a question of fact. Tyron v. North Branford, supra, 58 Conn. App. 716; accord Purzycki v. Fairfield, supra, 244 Conn. 105.
CONCLUSION
The court finds that there exists a genuine issue of material fact as to whether the individual defendant breached his duty of care to the plaintiff by placing her in likely imminent harm. Accordingly, the motion for summary judgment must be denied.
So Ordered at New Haven, Connecticut this 30th day of December 2003.
DEVLIN, JUDGE.