Opinion
No. CV 07-5003829
July 8, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #138
I. Nature and History of the Proceedings
This case arises out of a slip and fall on ice that allegedly occurred on January 9, 2006, while the plaintiff was walking to his car in the parking lot at Plainville's municipal center. Although the plaintiff's initial complaint was returnable on April 10, 2007, the operative revised complaint, which is brought in four counts, was filed on July 7, 2009. The first count, which is not a target of the defendant's (town) motion for summary judgment is based upon the so-called municipal highway and bridge statute. The plaintiff provided the required notice to the town. The second, third and fourth counts, all of which are the subject of the town's motion are each based on various provisions of General Statutes § 52-557n(a), which provides as follows:
§ 13a-149 provides, in pertinent part: Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.
(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. (Emphasis added.)
Count two is based upon a claim that the injuries suffered by the plaintiff from the fall on the ice in the parking lot, that serves both the municipal center and the police department, was due to certain negligent acts and/omissions of the town via its agents, servants, etc. This count thus invokes subparagraph (1)(A) and the exclusionary language of subparagraph (2)(B) of the statute. The plaintiff asserts that the town is mandated by it's charter to "maintain, repair, clean and remove snow from all public streets and ways." It was therefore legally obligated to remove and/or remediate snow and ice from the subject parking lot. In paragraph #7 of said count, the plaintiff alleges that: "At that time and place the plaintiff was caused to fall and be thrown to the ground by ice which had accumulated from a melt-freeze condition", as a result of which the plaintiff sustained certain injuries, including a fractured left distal fibia that required surgical repair. The plaintiff further alleges that the area where he fell was a "public street and way" within the meaning of the charter provision, which obligated the town, via its department of public works, to keep the lot free of snow. The plaintiff claims that the town was negligent in failing to maintain the lot in a safe condition, to properly inspect the lot, to warn the plaintiff of the unsafe condition and to keep the parking area free of snow. Specifically, in paragraph #9d., the plaintiff, referring to the town, alleges: "it created the melt-freeze condition by plowing previously fallen snow to a higher elevation in the parking lot which it knew or should have known would melt and flow to the lower elevated drain in the parking lot and re-freeze when weather conditions permitted, causing individuals such as the Plaintiff to fall and to be injured."
Based upon the allegation that the lot was a "public street or way", it would appear that a § 13a-149 action (plaintiff's first count), per the proviso in subparagraph (1)(C) of § 52-557n(a) is the exclusive remedy. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192 (1991). This issue, however, was not raised by the town in its motion for summary judgment. Therefore, the court will address only those issues which were raised and briefed by the parties.
Count Three is brought pursuant to Section (1)(B) of the statute and is based upon a theory of proprietary negligence. The plaintiff alleges that a certain parcel of property known as 49 E. Main St. abutted the municipal lot. That property was owned by "Cesana and Williams, LLC and/or Cesana and Williams Partnership" and was occupied by a tenant who operated the Old Canal Veterinary Clinic under the trade name, Vet Care, P.C. The plaintiff relates that in February 2000, the owner obtained approval for a site plan to install a one-way entrance to the municipal lot so as to allow the customers of the veterinarian clinic to park their vehicles in said lot. The plaintiff alleges that this arrangement benefitted the town as the municipal parking lot was significantly improved at no cost to the town and the owner, by way of an executed licensing agreement, was obligated to maintain the lot, also at no cost to the town. The plaintiff alleges that on the date of the accident he had been a customer of the veterinarian from where he was returning to his vehicle after the clinic administered to his cat. He further alleges that while returning to his car, which was parked in an area covered by the licensing agreement, he slipped on the ice that formed due to the alleged melt-freeze condition. Again, the plaintiff alleges that the same negligent acts and or omissions by the town, as alleged in the previous count, caused his injuries and other damages.
It should be noted that there are two additional pending companion actions arising out of the incident which is the subject of the plaintiff's complaint in this case, each bearing the caption Nadolney v. Cesana and Williams, LLC, et al. (CV07-5005959 and CV07-5006224) and each claiming that the plaintiffs fall was due to the negligence of the owner and the tenant at 49 East Main St., Plainville.
Count-Four invokes sub-paragraph (1)(C) of the statute and is brought upon a theory of public nuisance. Specifically, in paragraph #9 of said count the plaintiff alleges that the melt-freeze condition that caused his fall, injuries and other damages, "was a public nuisance or in the nature of a public nuisance which the defendant created, permitted, continued or maintained all or which the defendant knew or the exercise of due care should have known, or foreseen or guarded against, and the defendant failed to abate, remedy or guard against entry from the same to the Plaintiff and others lawfully using said parking lot."
On July 22, 2009, the town moved to strike the second and third counts from the complaint, which, after argument, was denied by the court (Tanzer, J.). The court found that the issue of governmental immunity and the question of whether the town derived a pecuniary benefit from the modifications made to the parking lot per the licensing agreement were best resolved via the summary judgment vehicle, after appropriate special defenses were inserted into the case by the town. See #131.01. On January 19, 2010, the town filed its Answer and Special Defenses, consisting of claims of governmental immunity, discretionary actions by town employees and contributory negligence of the plaintiff. The plaintiff filed his reply on February 2, 2010.
On February 16, 2010, the town filed its motion for summary judgment as to counts two, three and four. The motion was accompanied by a forty-two page memorandum of law, seven exhibits and numerous trial court decisions. The exhibits consisted of affidavits from the town attorney (Michalik), its superintendent of building and grounds (Emery), and it's director of physical services (Matteo); the entire Plainville charter; the licensing agreement and accompanying map or plot plan; several photos of the area where the plaintiff fell and the plaintiff's 130-page deposition. On March 9, 2010, the plaintiff filed his oppositional memorandum (#143), consisting of twenty-one pages along with the licensing agreement and map and the depositions of Emery and Matteo. On March 17, 2010, the town filed its reply memorandum (#147) followed eight days later by an additional copy of the plaintiff's deposition. The court heard argument from counsel at short calendar on May 10, 2010. The court, after reviewing the entire file, including the memoranda, cases cited therein and exhibits submitted by counsel, will grant the defendant's motion for summary judgment in its entirety.
II. Summary Judgment
In Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593-94 (2008), Judge McLachlan offers an instructive statement of the well-settled law in Connecticut governing summary judgments:
. . . The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . 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.
It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue.
. . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.
Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. (Internal quotation marks omitted; citations omitted; emphasis added.)
In Little v. Yale University, 92 Conn. 232, 235 (2005), cert. denied, 276 Conn. 936 (2006), the court instructed as follows: "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting summary judgment, assuming that the movant has met his burden of proof . . ." The use of summary judgment is appropriate in order to decide the issue of governmental immunity, which is at the core of the defendant's motion and is implicated by all three of the challenged counts. Doe v. Peterson, 279 Conn. 607, 613 (2006). The issue involves the existence of a duty of care which the court is permitted to consider and to rule upon as a matter of law. Gorden v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988).
III. As To Count Two — Negligence of the Municipal Employees A. The Issue
As noted, the cause of action upon which the plaintiff's second-count is based consists of a claim that the melt-freeze condition which allegedly formed the ice upon which the plaintiff fell was caused by several specific negligent acts and/or omissions of town employees. Those acts/omissions allegedly consisted of failure to properly maintain the lot so as to prevent the icy condition, failure to properly inspect the premises in order to discover that condition and failure to warn persons, including the plaintiff, of the dangerous condition created by the town. Each of those allegations invoke subparagraph (1)(A) of the statute. In order to decide the issue of whether governmental immunity would negate this count, this court must address subparagraph (2)(B) and determine whether the alleged negligent acts/omissions of certain town employees required the "exercise of judgment or discretion" or were ministerial in nature.
B. Claims of the Parties
The defendant municipality seeks summary judgment on this count based upon the claim of governmental immunity asserting that all of the duties allegedly owed by the town to the plaintiff were discretionary as there is no concrete evidence that there were any policies or directives in place at the time of the plaintiff's fall that prescribe the manner in which the duties of town employees were to be performed relative to the winter maintenance of the municipal lot. The town cites, inter alia, Colon v. New Haven, 60 Conn.App. 178, 180, cert denied, 255 Conn. 908 (2000), which held that the hallmark of a ministerial act, for which governmental immunity is not available as a defense, is an action or duty that is to be performed in a prescribed manner without the exercise of judgment or discretion. The town offers the affidavit of David Emery, who was at the time of the plaintiff's fall the superintendent of building and grounds and who currently holds that position in the town of Plainville. See Defendant's Exhibit A. Emery asserts that one of the responsibilities of his department was the cleaning and removal of snow from the subject municipal parking lot. He avers that during the month of January 2006, there were no mandated policies or directives in place that prescribed how employees of his department and other resources were to be allocated; nor were there any directives that prescribed when and how the lot was to be plowed or when and where to apply sand or salt to remediate a snowy or icy condition. He states that the employees in his department were expected to use "judgment and discretion" as to the manner in which snow and ice in the municipal lot were to be addressed. He states that it depended on the general weather conditions, the quantity of snow and the equipment available. He further states that the lot was inspected on an "as needed basis" and was typically checked daily, however, "there was no requirement that an employee do so." In paragraph #16 of his affidavit Emery declares: "Similarly, once a particular condition was observed, or notice was otherwise provided of a particular condition, the response to that particular condition would depend upon a number of variables, including the availability of resources, the severity of the condition, the location of the condition, weather conditions and other demands for resources[.]" In addition to Emery's affidavit the town supplied an affidavit from his boss Carmen Matteo, who was and is the director of physical services for the town of Plainville. See Defendant's Exhibit B. His affidavit is virtually identical to that of Mr. Emery.
Thus, the town, based upon the aforementioned affidavits, offers that there can be no factual dispute that in January 2006, the manner in which snow and ice that accumulated in the subject municipal lot was removed or remediated was totally discretionary with the employees of the department of building and grounds and that there were no mandates or directives in existence that governed the removal/remediation thereof. In paragraph # 9 of the second count of the plaintiff's complaint the plaintiff alleges that the town charter provided a mandate relative to the removal of snow and ice from Plainville's public streets and ways. The town, citing Grignano v. Milford, 106 Conn.App. 648 (2008), correctly points out that although Chapter VI, Section 4 of Plainville's charter, entitled "Department of Public Works", provides that "[it] shall be the duty of the Department of Public Works to maintain, repair, clean and remove snow from all public streets and ways . . .", nowhere in the entire charter, including the quoted provision, is it prescribed as to how and when any inspection or removal or remediation of snow/ice is to be done, all of which, the town asserts, involve duties which are discretionary in nature. See Defendant's Attachment I.
The plaintiff claims that despite the sworn statements submitted by Emery and Matteo, there is a genuine issue of material fact as to whether the alleged negligent acts and/or omissions of town employees were ministerial or discretionary in nature. The plaintiff refers to testimony given by Matteo during his deposition. See Plaintiff's Exhibit #1. On pages 22-26 of his deposition Matteo describes a routine in effect in January 2006, with regard to the subject municipal parking lot. According to Matteo the foreman would arrive at about 7:00 a.m. to open the municipal building and would check the condition of the lot. If he found an accumulation of snow and/or ice he would then call the department of building and grounds and request the application of sand or salt. The plaintiff also points to page 41 of said deposition, wherein Matteo testified that the accumulation of snow and ice in the municipal lot was considered a safety hazard and was always treated, especially ice on the blacktop area. These statements by the town's director of physical services, the plaintiff argues, contradict Matteo's "self serving affidavit" and establishes that the functions of inspection and remediation of ice and snow at said lot required no exercise of discretion and was ministerial in nature. The plaintiff claims that these statements contained in his sworn deposition create an "internal conflict" between Matteo's sworn affidavit and his deposition, thereby creating a genuine issue of material fact, that would negate the granting of summary judgment to defendant.
In its reply memorandum (#147), the town denies any alleged internal conflict between Matteo's affidavit and his deposition. The town points to page 22 of said deposition, wherein Matteo testified that the forman "usually" unlocks the building and checks the lot. Matteo also testified that the forman had "significant discretion" as to the nature of his inspection depending upon such factors as the weather and temperature. The town argues that, as per Matteo's statements in his affidavit, there is no concrete evidence of the existence of any directive or requirement as how, when, and under what circumstances any snow and ice that accumulated in said lot would be removed or remediated. The town asserts that the plaintiff has not submitted any provision, ordinance, rule, regulation or policy that the defendant failed to follow; the plaintiff has not alleged any directives or mandates relative to the manner in which the accumulation of snow and ice in the municipal lot was to be addressed by town employees. The town argues that all of the duties involved the exercise of judgment and discretion; they were not ministerial in nature, therefore, the court should strike the second count of the plaintiff's complaint.
C. Discussion
Our Supreme Court reviewed the principle of government immunity and the impact of General Statutes § 52-557n in Violano v. Fernandez, 280 Conn. 310, 318-20 (2006):
The following principles of governmental immunity are pertinent to our resolution of the claims raised by the plaintiffs on appeal. "The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Municipal officials are immunized 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; internal quotation marks omitted; emphasis added).
The complaint in this case makes it clear that the town's alleged negligent acts or omissions, in particular, it's alleged failure to properly maintain the lot in order to prevent the icy condition from forming, its failure to properly inspect the lot in order to discover that condition, and its failure to warn persons such as the plaintiff of the existence of the dangerous condition, each involved discretion and the exercise of judgment on the part of town employees. There is no allegation contained in the second count of the plaintiff's complaint to the effect that any employee of the town of Plainville failed to perform a specified duty in a prescribed manner. In Violano, the supreme court reviewed prior appellate decisions, including Evon v. Andrews, 211 Conn. 502, 504 (1989) and Segreto v. Bristol, 71 Conn.App. 844, 857-58 (2002), each of which are cited by the town. In Evon, the supreme court upheld the trial court's granting of the city of Waterbury's motion to strike, finding that the city's alleged negligent failure to properly inspect a multi-family apartment building and to remediate code violations which allegedly caused a fire that destroyed the building involved discretionary acts. In Segreto, the appellate court upheld the trial court's entry of summary judgment finding that the city's alleged negligent design and maintenance of a stairway located at the senior center involved the exercise of discretion and judgment. Thus, the plaintiff's personal injury action was barred by statutory governmental immunity.
In Grignano v. City of Milford, supra, 106 Conn.App. 656, the appellate court held that the duty to inspect a patio at a marina upon which the plaintiff tripped was discretionary on the part of the city, as "[a] municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs." Citing Evon and Segreto, the appellate court held: "the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity." Id. In that case, the substitute plaintiff argued that a town ordinance obligating it to maintain the marina "in a safe condition at all times" converted an ordinarily discretionary duty into a ministerial mandate. In rejecting the plaintiff's argument the court observed: "Neither the common law nor the ordinance prescribes the manner in which the defendant is to perform reasonable and proper inspection and maintenance activities. What is reasonable and proper is left to the discretion of the defendant." Id., page 657. As noted, in this case, the plaintiff argues that the town of Plainville is mandated by the quoted portion of the charter to "maintain, repair, clean and remove snow from all public streets and ways." As in Grignano, however, there is nothing in the charter that orders or prescribes the manner of snow/ice removal or remediation. It is left to the judgment and discretion of town employees. In Martel v. Metropolitan District Commission et al., 275 Conn. 38, 50 (2005), the plaintiff sought damages for personal injuries he sustained when he crashed his mountain bike on an unpaved, dirt trail on recreational land owned by the defendant commission. In upholding the trial court's granting of the defendant's motion for summary judgment, the Supreme Court concluded:
In the present matter, the plaintiff's complaint essentially alleges that the defendants were negligent in their: (1) design, supervision, inspection and maintenance of the trail on which the plaintiff was injured; (2) failure to warn recreational users of the trail's dangerous and unsafe condition; and (3) failure to barricade or close the trail. The plaintiff, in its opposition to the defendants' motion for summary judgment, did not present any evidence demonstrating that a policy or directive existed requiring the defendants to perform these duties. Absent evidence of such a policy or directive, we conclude that the defendants', in determining whether to supervise, inspect and maintain the trails in Greenwoods and when to mark, close or barricade the trails, if at all, were engaged in duties that inherently required the exercise of judgment.
Based upon the precedents cited herein, there is no question, therefore, no genuine issue of material fact, that the alleged negligent acts/omissions attributed to the town via its employees in the second count of the plaintiff's complaint were discretionary, involved the exercise of judgment and are barred by statutory governmental immunity.
V. As To Count III-Proprietary Negligence A. The Issue
In the third count of the plaintiff's complaint (Paragraphs #4-#13), he describes the circumstances that resulted in the approval of the "site plan modification" submitted by the owner of the veterinarian clinic in April 2000, which resulted in the execution of a licensing agreement and certain modifications to the subject municipal lot. In paragraph #10 the plaintiff alleges that the licensing agreement "inured to the Defendant Town of Plainville's benefit" in that the subsequent site improvements were performed at no cost of the town and the responsibility of the maintenance of the affected portion of the lot was shifted to the owner of the clinic building. In paragraph #13 the plaintiff alleges that among the "improvements" to the municipal lot that were made by the private owner were the relocation of parking for the handicapped, the placement of traffic control signs, the removal of pavement and curbing and the grading and landscaping of the lot. The plaintiff claims that all of these improvements, made at no cost to the town and the obligations assumed by the owner via the licensing agreement convert this venture by the town's government into one that is proprietary in nature and, therefore, subparagraph (B) of Section 52-557n(a)(1) would allow this cause of action against the town.
In paragraph #20, however, the plaintiff alleges: "At that time and place [referring to the date of the plaintiff's fall], the Town of Plainville was responsible for the maintenance and upkeep of the parking lot, including the removal of snow and ice from the parking lot." Emphasis added.
B. Claims of the Parties
In its memorandum supporting its motion for summary judgment relative to this count, the town argues that it has not received any "special corporate profit or pecuniary benefit" from the licensing agreement or the improvements made to the parking lot in 2000 as a result of that agreement. Along with the exhibits previously discussed herein, the town has submitted an affidavit from attorney Robert A. Michalik. Plaintiff's Exhibit C. Atty. Michalik, who is and has been for many years the town attorney for the defendant, describes the subject lot as open to the public, meaning that it was open to anyone free of charge and provided 200 parking spaces used by the public, including town employees and employees and "clients" of the veterinary clinic. Several entrances and exits are provided. No gates regulate the entrances or the exits. In the affidavit Michalik explains the process that took place in 2000, resulting in the modifications in the lot and the execution of the licensing agreement by the owner of the building from which the clinic operated. See Defendant's Attachment #2 (the licensing agreement and accompanying site modification plan). He avers that the purpose of the proposal, approved by the appropriate town authorities, was to extend the veterinary clinic's limited parking area by allowing the building owner to tie into the municipal lot for the purpose of alleviating traffic congestion and a safety hazard caused by customers of the clinic backing out onto East Main Street, a main thoroughfare in the town of Plainville. The improvements permitted the customers of the clinic to enter the municipal lot in one way only and to exit via another outlet. One-way signs were erected, thus making it illegal to back out onto the busy street.
Thus, the town asserts that it received no pecuniary benefit from the licensing agreement and that the modifications to the lot protected the health and safety of the general public. The town points out that none of the modifications to the lot constituted an improvement, as alleged by the plaintiff. The town asserts that it continues to maintain the lot, as it did prior to the execution of a licensing agreement. The town refers to paragraph #19 of Emery's affidavit (Defendant's C) wherein he states: "The town of Plainville provides maintenance with regard to the public parking lot referenced in the plaintiff's complaint, including the area in which the plaintiff claims to have fallen; no change has been made as to the area maintained by the Town as a result of the license agreement with 49 East Main Street [the clinic owner]." The town, citing the supreme court's test established in Considine v. Waterbury, 279 Conn. 830, 842 (2000), argues that there is no "inextricable link" between the town's alleged tortious conduct and any proprietary function. The lot is open to all members of the public. The purpose of the modifications to the lot was to alleviate serious safety and traffic concerns, which furthers the interest of the public at large. The venture in 2000 was not proprietary in nature; it was a traditional governmental function the purpose of which was to improve the general health and welfare of the town's inhabitants and all other members of the public who make use of the lot, including the customers of the veterinarian clinic.
The plaintiff concedes that Considine is the leading case on the issue raised, however, the plaintiff argues that it is not a prerequisite for finding that a municipal activity is proprietary that the municipality receive revenue or derive a profit therefrom. The plaintiff asserts that an activity can be considered as proprietary in nature if the municipality derives some benefit from the activity. Thus the plaintiff, pointing to the licensing agreement, argues that there can be no question that the arrangement with the owner of the veterinarian clinic, via the improvements it made to the municipal lot, provided a benefit to the town by paying for construction and maintenance, which ordinarily would be a burden on the taxpayers. The plaintiff asserts that he was acting within the scope of the licensing agreement when he parked his car, visited the clinic with his cat and, while returning to his car, slipped on the ice from the melt-freeze condition allegedly created by the town of Plainville. The plaintiff asserts that the licensing agreement was for the benefit of a private (profit-making) entity which solved for the town a long-standing traffic problem at no cost to its citizens — a clear benefit to the town of Plainville. Therefore, the plaintiff concludes and asked the court to agree that there is a genuine issue of material fact as to whether the actions and/or omissions complained of by the plaintiff were proprietary and nongovernmental in nature.
In response the town argues that the activity or arrangement evidenced by the 2000 licensing agreement did not result in any benefit to the town as claimed by the plaintiff. The town refers to Atty. Michalik's affidavit (Defendant's C), wherein he states that a handicapped space preexisted the agreement and was simply moved from one area to another and that the placement of the traffic signs was an accommodation to the customers of the veterinarian clinic as well as to the general public. Michalik avers that the changes to the municipal lot evidenced by the licensing agreement and the site plan modification were made to accommodate driveway access, to remediate traffic congestion and to address safety concerns. In paragraph #40 of said affidavit, Michalik states: "The license agreement and its provisions were in furtherance of the interest of the public at large in reducing the possibility of automobile accidents and injuries at the location in question and in reducing traffic congestion." The town therefore asserts that the modifications to the municipal lot benefitted all members of the public, clearly, a governmental function.
C. Discussion
As noted, both parties agree that the application by this court of the test established by the supreme court in Considine as to whether an activity conducted by a municipality is proprietary or governmental in nature will resolve the issue presented by the third count of the plaintiff's complaint. In Considine the plaintiff sought damages from the city of Waterbury as a result of injuries he sustained when he fell through a glass window panel or sidelite at the entrance of the Western Hills golf course, which was owned by the city. The plaintiff's injuries occurred in March 2000, when the golf course was closed for the season, however, a restaurant which was located inside the municipal building, was open throughout the year. The plaintiff was a patron of the restaurant who, while waiting for a friend outside the entrance, fell through the sidelite after his leg for no apparent reason collapsed, sustaining numerous lacerations as a result of shattered glass. The plaintiff claimed that the side window panel should have been earlier replaced by shatter-proof glass in compliance with current building code standards which would have prevented him from sustaining the cuts and bruises that resulted from his fall. The case was tried before a judge trial referee (Hon. Howard J. Moraghan) who awarded money damages to the plaintiff and who rejected the city's defense of governmental immunity finding that the city received a pecuniary benefit from its lease of the restaurant to private owners.
The supreme court affirmed the trial court's finding that § 52-557n(a)(1)(B) codified the common-law rule that municipalities are libel for their negligent acts committed in their proprietary capacity. The court agreed with the trial court that by leasing a portion of the municipal building to a private entity for a substantial annual rental ($29,000.00), the city was engaged in a proprietary function. In concluding that at common law a municipality's actionable negligence is dependent upon whether the activity that resulted in the plaintiff's injury was proprietary or governmental, Justice Vertefeuille, writing for the majority, observed:
Thus, this court has stated that a municipality's immunity from liability for injuries applies only when it "is engaged in the performance of a public duty for the public benefit, and not for its own corporate profit . . ." Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11 (1921). Accordingly, the distinction between whether the municipality was acting in its governmental capacity, or in its corporate or proprietary capacity, was, under the common law, the litmus test for whether the municipality would be held liable for its negligence.
Considine v. City of Waterbury, supra, 279 Conn. 842.
The court then concluded when the General Assembly enacted that portion of the statute, which was Sec. 13 of the Tort Reform Act of 1986, the legislature intended to codify the common-law distinction. The court then established the test for activities which are not pecuniary in nature:
We begin with municipal activities that are not for a municipality's special corporate benefit or pecuniary profit. If a municipality is acting only as the agent or representative of the state in carrying out its public purposes; then it clearly is not deriving a special corporate benefit or pecuniary profit. Two classes of activities fall within the broader category of acting as the agent of the state: "[1] those imposed by the [s]tate for the benefit of the general public, and [2] those which arise out of legislation imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large . . .
While the distinction remains clear with regard to the first class of activities, it becomes more difficult to discern in the second class of activities. For example, the second class of activities encompasses functions that appear to be for the sole benefit of a municipality's inhabitants, but nevertheless provide indirect benefits to the general public because the activities were meant to improve the general health, welfare or education of the municipality's inhabitants. (Internal citations omitted; quotation marks omitted; emphasis added.)
Id., page 845-46.
The court then provided the test for activities which are proprietary in nature: "On the other side of the distinction, a municipality generally has been determined to be acting for its own special corporate benefit or pecuniary profit where it engages in an activity for the particular benefit of its inhabitants or if it derives revenue in excess of its costs from the activity." (Internal citations omitted.) Id., page 847. Examples of those activities that fit the first category of non-proprietary governmental activities are the maintenance of public peace and the prevention of disease. Those activities which would be included in the second category are the maintenance of a municipal park, the construction of storm sewers, the operation of a municipal swimming pool and the celebration of Independence Day. As an example of activities that had been considered as proprietary, the court referred to the operation of a water utility for profit. The court, citing Carta v. Norwalk, 108 Conn. 697, 702 (1929), noted that if a municipality derives revenue or profit from renting its property the fact that some of that revenue is directed toward the reduction of the debt incurred when the property was acquired does not create governmental immunity. Id., page 848. The court, finding that the rental of a portion of the golf clubhouse to the restaurant was a proprietary function that "very much resembled private enterprise" and further that there was "an inextricable link or inherently close connection" between the city's alleged negligent maintenance of the sidelite and the lease of a portion of the clubhouse to private enterprise. The court concluded: " By examining the character of the activity at issue, it is apparent that leasing a portion of a municipal building as a restaurant stands in stark contrast from those activities in which this court has determined that the municipality was acting as the state's agent for the direct or indirect benefit of the general public." Id., page 850-51. Emphasis added. The court then instructed: "[T]he inquiry of whether the state's sovereign immunity extends to shield the municipality turns on the nature and character of the act and not its location." Emphasis added.
This court, after examining the character of the activity at issue, i.e., the maintenance by the town of Plainville of its municipal center parking lot before and after the so-called improvements made in 2000 by private enterprise, in light of the test established in Considine, has concluded that the activity that formed the basis of the plaintiff's complaint was "in stark contrast" from those in which our supreme court has determined were proprietary. The maintenance of its municipal parking lot by the town of Plainville clearly falls into the second category of those activities which the courts have determined are not proprietary; the operation of that lot was clearly a governmental function. The venture undertaken by the town and the owner of the veterinarian clinic in 2000 did not convert this obviously governmental function into one from which the town derived "a special corporate profit or pecuniary benefit" within the meaning of § 52-557n(a)(1)(B).
It is clearly evident from an examination of each of the exhibits submitted by the town, in particular that of Atty. Mahalik, that the town derived no profit from the ownership, operation and maintenance of the subject parking lot at its municipal center. It was open to all members of the public and no parking fee was assessed for its use. It is also evident from the town's submissions that although the customers and owner of the veterinarian clinic building may have received some benefit, the town's approval of the venture was motivated by concerns over the traffic hazard occasioned by the clinic's customers backing onto his Main Street. The town was motivated by the public policy that obligates it to promote the health and welfare of its citizens. The uncontradicted evidence clearly shows that the town's actions in approving the modified site plan and in executing the licensing agreement were not motivated by profit or desire to provide a benefit to a private entity, but to preserve and protect its inhabitants and the general public. Moreover, it is evident from the affidavits submitted by Emery and Matteo that despite some obligation undertaken by the owner of the clinic property to maintain the portion of the lot affected by the licensing agreement, the maintenance of the lot, including the responsibility for the winter snow and ice removal and remediation continued to be performed by the town crews and was the responsibility of the building and grounds department at the time of the plaintiff's fall. Under the Considine test there is no proprietary activity involving the use of the subject municipal parking lot; it is clearly a governmental activity.
The plaintiff points out that prior to 2000 the town did nothing on its own initiative to alleviate the traffic hazard but delayed action, relying upon a private entity to solve the problem at no cost to the taxpayers. Whatever the town's motivation to solve the traffic congestion, the modifications made in 2000 did not alter the character of the use of the municipal lot; it did not convert this purely governmental function into one that would be deemed proprietary as the use of the municipal lot, both before and after the modifications, continued to benefit the public at large. There is no genuine issue of material fact as to whether the activity that gave rise to this action was governmental or proprietary; summary judgment is therefore justified as to this count.
VI. As To Count Four — Public Nuisance A. The Issue
As noted the fourth count of the plaintiff's complaint implicates § (1)(C) of 52-557n(a), which establishes that the maintenance of a "public nuisance" by a municipality does not entitle it to the protection of governmental immunity. The plaintiff alleges that the melt-freeze condition of the snowbank, which caused his injury, was a public nuisance that at the time of his fall was created and maintained without abatement by the town of Plainville.
B. Claims of the Parties
In its memorandum the town asserts that it was the ice upon which the plaintiff slipped that was the "condition" which allegedly caused his injury and that the ice was created by a change in the weather, which was an occurrence of nature and not of the town's making. Thus, the town could not have created the condition, which allegedly caused the plaintiff's injuries. The defendant refers to the remaining allegations in the fourth count that attribute negligence to the town: that the town failed to inspect the lot in order to discover the ice; failed to remediate the icy condition that it knew or should have known had formed; and failed to warn persons such as the plaintiff of the dangerous condition located in that portion of the lot where the plaintiff fell. The defendant, citing Lucas v. New Haven, 184 Conn. 205 (1984), and several trial court decisions, asserts that a municipality's failure to take remedial action is not the equivalent under the statute of positive acts required to hold the municipality accountable.
The plaintiff concedes that the cases cited by the town require some positive act on it's part, however, the plaintiff argues that what he alleges is that the town created the condition by plowing the snow to an area where it knew that it would, upon melting, flow toward a drain in the lot and, upon re-freezing would constitute a hazard to those who made use of that portion of the municipal lot. The plaintiff cites no case to support his position, but does pose a "query" via the following analogy:
Assume, arguendo, that the facts in this case were that the defendant ran a garden hose to the area where it had plowed the snowbank turned on the garden hose and allowed water to run towards the drain across the area where the Plaintiff alleges he fell. Assume further the water froze and that the plaintiff was injured when he slipped and fell on the frozen accumulation within the parking lot. The defendant's argument is tantamount to arguing that it did not create the defective condition, because all it did was leave a garden hose running through the parking lot, and "natural conditions," i.e. temperatures below freezing, created the defect upon which the plaintiff was injured.
The plaintiff then asserts that he has alleged that positive actions by the town created the defect in that it plowed the snow to an area where it knew or should have known that the melt-freeze runoff would create the condition which caused the plaintiff's fall and injury.
C. Discussion
Recently our supreme court has had occasion to address a claim of public nuisance. In Picco v. Town of Voluntown, 295 Conn. 141 (2010), the plaintiff sought to recover money damages against the town as a result of injuries sustained by her when a portion of a rotted tree fell on her while she was watching a soccer game at a local school field. The plaintiff alleged that the tree had a natural tendency to pose a danger due to its size and certain structural defects, defects of which the town had become aware as its employees had previously evaluated the condition of the tree. The specific issue which was presented to the court on appeal was whether the town could be held liable pursuant to § 52-557n(a)(1)(C) for damages caused by its failure to act in order to abate the alleged public nuisance. Justice Zarella, writing for the full court, first described, at page 146, the long-standing common-law relating to public nuisance:
This court has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance. See, e.g., Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). (Emphasis added.)
The court then found, by statutory interpretive analysis, that the legislature intended to codify the common-law of public nuisance when it enacted subparagraph (C) of the statute. The court held that the trial court properly granted the town's motion to strike the nuisance count as the plaintiff had not alleged any facts that indicated that the town created the alleged nuisance by some positive act. The court found, in particular, that the evaluation of the tree did not create the condition that caused the plaintiff's injuries, i.e. the rotted tree; that condition was created by "natural tendencies." Id., page 152.
In Lukas v New Haven, 184 Conn. 205 (1981), a case analogous to this one, plaintiff sued the city as a result of injuries sustained when he slipped and fell on ice while retrieving his trash barrel. Like the plaintiff in this case, the plaintiff in Lukas argued that the icy condition that caused his injury constituted a public nuisance that was intentionally, i.e., via a positive act, created and maintained by the city. The plaintiff alleged that it was the city's practice to plow the center of the street, a one-way street with sanctioned parking on both sides, thus creating icy ruts on the unplowed areas. The plaintiff claimed, therefore, that the condition in which the city repeatedly left his street had a tendency to inflict injury upon individuals when the city knew that the residents thereof, such as the plaintiff, were forced to traverse the area in order to retrieve their trash barrels. In its per curiam opinion, the court rejected the plaintiff's argument, pointing out that the "condition" that caused her injuries, i.e., the icy rut, was "essentially natural in origin" and was not of the city's making. Id., page 210.
In this case, the plaintiff has failed to cite any case, that would support his position or provide an answer to his "query" in a manner to his liking. As the court reasoned in Lukas, in order to justify a finding by a trier of fact that a municipality created a public nuisance, the plaintiff must allege and prove that the condition which caused the plaintiff's injuries was put there by some positive act of that municipality. It is clear to this court that the patch of ice upon which the plaintiff fell was not created by the manner in which the employees of the building and grounds department of the town of Plainville plowed the snow into a snow bank. The condition, which allegedly caused the plaintiff's injury was created by mother nature and the elements. In light of the cited cases, and the allegations contained in the fourth count of the plaintiff's complaint there is simply no evidence from which a trier of fact could conclude, as a matter of law, that the alleged dangerous condition that caused the plaintiff's injuries was created by some positive act of the town. The fourth count must therefore be stricken.
VII. Conclusion
As initially noted herein, the defendant in its motion for summary judgment did not challenge the first count of the plaintiff's revised complaint that is brought pursuant to the defective highway statute and does appear to this court to afford the plaintiff the appropriate if not exclusive vehicle to pursue his claim. As to the remaining three counts, the defendant's Motion For Summary Judgment is granted for the reasons stated herein.