Opinion
No. LLI CV 06 5000208S
February 21, 2008
MEMORANDUM OF DECISION
The plaintiff, Edward Niemitz, claims damages for personal injuries against the defendant, Rich Novak ("Novak"), and his employer, Town of Barkhamsted ("Barkhamsted"), as a result of a slip and fall on a patch of ice in the parking lot of the Barkhamsted Highway Department ("Department"). The defendants have moved for summary judgment (#109). The basis of the motion is that the plaintiff's common-law negligence claim against Novak and Barkhamsted is barred by the doctrine of governmental immunity, and the plaintiff's indemnification claim against Barkhamsted necessarily fails as a matter of law. For the reasons that follow, the motion must be granted.
I. Facts
Novak is employed by Barkhamsted as the Director of the Highway Department. He works at the Highway Department garage which has an adjoining parking lot. Mixed precipitation fell from the morning until the evening on December 17, 2003, and left a light covering of snow on the ground. No precipitation fell from 10 p.m. onward. On December 18, 2003 at about 9:30 a.m. the plaintiff was at the highway department garage to obtain free sand and salt offered by the Barkhamsted to town residents. Barkhamsted had posted signs in town encouraging residents to obtain sand and salt at the town garage. The plaintiff exited his vehicle, and in the process of doing so, his left foot slipped on the patch of ice covered by light snow, and he fell to the ground and injured himself. There was no sand or salt on the patch of ice.
The plaintiff's affidavit states that the ice had been present since at least December 15, 2003. This statement can not be considered by the court because the plaintiff does not state the basis of the statement and that it was based upon personal knowledge. In summary judgment proceedings affidavits made by parties must aver or affirmatively show personal knowledge of the matters stated therein. Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 515 (1978).
Barkhamsted and the Department do not have any written policies or procedures which mandate or prescribe the manner in which Department employees perform their snow removal activities. There are no policies that mandate the number of Department employees assigned to any particular snow removal job. There are no policies that mandate the number of times a particular location or area receives snow removal servicing. Nor are there any records kept that indicate the amount of time spent, or amount of sand or salt applied to any particular location. There are no written policies or procedures related to the method and means of inspection of maintenance of any of the areas serviced for snow removal by the Department.
II. Standard of Judicial Review
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253 (2007). "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.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
III. Discussion A. Procedural Background
The plaintiff sued Barkhamsted and Novak alleging that the patch of ice, covered by light snow, was a defective and dangerous condition which had existed for an unreasonable period of time. In the first count against both defendants the plaintiff alleges that Novak as an agent of Barkhamsted was negligent in failing to properly sand or salt the lot. In the second count the plaintiff sets forth a claim against Barkhamsted under C.G.S. § 7-465 for assumption of the liability of its employee, Novak.
The second special defense filed by the defendants states: "Plaintiff's claim is barred by the Doctrine of Governmental Immunity pursuant to both common law and Connecticut General Statutes § 52-557n." The defendants have moved for summary judgment on this issue.
Section 52-557n provides in relevant part: "(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."
In their memorandum of law in support of the motion the defendants argue that there is no genuine issue about the fact that Novak's acts and omissions were discretionary acts and that they were not in performance of functions from which Barkhamsted derives a special corporate profit or pecuniary benefit. The plaintiff counters that Novak's acts or omissions did not require the exercise of judgment or discretion, and that the maintenance of a free sand pile is a proprietary function from which Barkhamsted derives a special corporate profit or pecuniary benefit. The plaintiff also argues that the defendants cannot claim immunity for the failure to inspect their own property, and that the jury should decide whether the plaintiff was an identifiable person subject to imminent harm. Each of these arguments will be discussed in turn.
B. Discretionary/Ministerial
The special defense refers to the common law and to C.G.S. § 52-557n. Subsection (a)(2)(B) precludes municipal liability for "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 Supreme Court has explained that, "as a general matter, § 52-557n was enacted to codify the common law and to limit the scope of governmental immunity." Conway v. Wilton, 238 Conn. 653, 672 (1996). "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, . . . Governmental acts are performed wholly for the 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 [that] is to be preformed 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 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 preformed 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." Bailey v. West Hartford, 100 Conn.App. 805, 810-11 (2007).
"The determination of whether official acts or omissions are ministerial or discretionary is a question of fact for the fact finder." CT Page 2810 Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165 (1988). Governmental immunity must be raised by special defense although the Supreme Court has recognized that the issue may be raised by motion to strike in those cases where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff. Violano v. Fernandez, 280 Conn. 310, 321 (2006). Here, the defendant has raised governmental immunity by special defense followed by this motion for summary judgment on the ground that there is no genuine issue of material fact on this issue and that the court must find that the acts or omissions complained of were discretionary.
The plaintiff argues that Novak's failure to sand or salt the patch of ice was an omission which did not require an exercise of judgment or discretion. The cases cited by the parties indicate otherwise. In Violano v. Fernandez, 280 Conn. 310 (2006), the Supreme Court affirmed the granting of a motion to strike a complaint alleging that the defendant municipal employee failed to adequately secure the plaintiff's personal property which was stored in a building which the municipality had taken by eminent domain. The court found that the alleged acts or omissions were discretionary because the plaintiffs did not allege that there was any provision, ordinance, rule, regulation, policy or other directive that the defendant failed to perform, or performed negligently. Id. at 322-24. Rather, the complaint only alleged that the defendant exercised poor judgment. Id. The same is true in the present case.
The court in Violano reviewed and relied upon prior cases including Evon v. Andrews, 211 Conn. 502, 504 (1989) (trial court properly granted motion to strike count against Waterbury officials alleging, in part, that the death of plaintiffs' decedents in a multifamily apartment house fire had been caused by the defendants' negligence in either failing to inspect properly the apartment house or to undertake remedial action to correct the apartment house's building code violations. The alleged negligent acts were discretionary); Segreto v. Bristol, 71 Conn.App. 844, 857-58 (2002) (concluding that trial court properly granted defendant's motion for summary judgment on ground of governmental immunity because plaintiff's allegation that defendant negligently designed and maintained stairway involved exercise of discretion and judgment); Colon v. New Haven, 60 Conn.App. 178, cert. denied, 255 Conn. 908 (2000) (the trial court properly rendered summary judgment in favor of the defendant teacher who had negligently opened a door into a student while she was in a school hallway because this act was discretionary, not ministerial. There were no policies or directives in place describing the manner in which the teacher was to open the door.). CT Page 2811 Id. at 323.
The court in Violano distinguished Kolaniak v. Board of Education, 28 Conn.App. 277, 281-82 (1992), in which the Appellate Court concluded that governmental immunity was inapplicable where school maintenance personnel failed to comply with board of education bulletins directing them to inspect and keep walkways clean on daily basis. Id. at 324. In Violano the court concluded: "In the present case, the plaintiffs also have failed to alleged that there was any rule, policy, or directive that prescribed the manner in which Fernandez was to secure the property. Rather, the complaint alleges only that Fernandez exercised poor judgment in the manner in which he secured the building. We therefore conclude that the Appellate Court majority properly determined that the complaint alleged conduct that was solely discretionary in nature, and, accordingly, that qualified governmental immunity applied to Fernandez' alleged acts and omissions." Id.
Here, the acts and omissions set forth as negligence in the complaint amount to the failure to discover the ice patch and to treat it. They are all similar in nature to the acts or omissions alleged in Violano, Evon, Segreto, and Colon and must be found to be discretionary in nature. Further, the defendant has not produced any Department policies or procedures which would have dictated the manner in which Novak was to perform his duties. Therefore, this case is unlike Kolaniak.
During his deposition, Novak admitted that if he had seen a patch of ice it would have been his job to treat it, and that he would not have had any "leeway." The plaintiff argues that this admission is enough to convert his actions from discretionary into ministerial. I disagree. Novak's statement is no more than a common-sense acknowledgment that his job includes treating ice in the parking lot of the town garage. There are no policies which dictate when or how Novak would be required to treat the ice. His acknowledgment does not eliminate the fact that the manner in which his job is done involves the exercise of discretion.
C. Proprietary Function
The plaintiff argues that an issue of fact exists as to whether the maintenance of a free pile of sand for residents is a proprietary function which provides an exception to governmental immunity. The plaintiff points to C.G.S. § 52-557n(a)(1) which states: "a political subdivision of the state shall be liable for damages in person . . . caused by . . . B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." This section codified the common-law rule that municipalities are liable for their negligent acts committed in their proprietary capacity. Considine v. Waterbury, 279 Conn. 830, 844 (2006).
"In determining whether a municipality's activity was proprietary in nature [the court must examine] whether the activity generated a special corporate benefit or pecuniary profit inuring to the municipality." Id. (emphasis in original; internal quotation marks omitted). A municipality is engaged in a proprietary function when it acts very much like a private enterprise. Considine v. Waterbury, supra, 279 Conn. 847 (citations omitted).
"[T]he distinction between a municipality's governmental and proprietary functions has been criticized as being illusory, elusive, arbitrary, unworkable and a quagmire." Id., 845. Despite these difficulties, Considine offered guidance as to when a municipality is entitled to governmental immunity. Actions or omissions are not proprietary if they are either: (1) "imposed by the [s]tate for the benefit of the general public," or (2) arose "out of legislation imposed in pursuance of a general policy, manifested by legislation . . . for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large." (Internal quotation marks omitted.) Id., 846. The second class of actions or omissions "encompasses functions that appear to be for the sole benefit of a municipality's inhabitants, but nevertheless provide indirect benefits to the general public." Id. See also, e.g., Pope v. New Haven, 91 Conn. 79, 99 A. 51 (1916) (celebrating Independence Day was a governmental function); Hannon v. Waterbury, 106 Conn. 13, 136 A. 786 (1927) (maintenance of a park system and operation of a swimming pool wholly within the municipality were not proprietary actions). Conversely, the actions are proprietary if the municipality acts "for its own special corporate benefit or pecuniary profit where it engages in an activity for the particular benefit of its inhabitants." (Internal quotation marks omitted.) Id., 847. To determine whether the actions and omissions are proprietary, the court must look at the character of the activity involved. Id.
In Considine, the defendant's actions were proprietary because the city was leasing the premises to a private party and making a profit on the endeavor. Id. The court examined the character of the activity and found that "the leasing of a portion of a municipal building for a substantial rent to a private party to operate a business is an act that very much resembles private enterprise, and, accordingly, consistently has been determined to be a proprietary function." Id. 851. This is not the type of activity that is normally a traditional government function, rather, the city was acting like a private enterprise.
Conversely, in the present case, the defendant's alleged actions and omissions do not have the character of a private enterprise. There is no lease or contract with a private entity. Also, the character of this activity — providing free sand to residents during the winter — is similar to actions which are normally traditional government functions, not those of private entities.
The plaintiff's argument as quoted from his brief is: "Here the pecuniary benefit to the town coffers is obvious. The town is responsible under the law to maintain the public way including the public sidewalks. The town sands the public roads, i.e. the vehicular way, via its sand and its employees, and sands the public sidewalks, i.e. the footway, via its offer of free sand to residents, thus saving the labor costs which would be incurred by paying its own employees to sand them." It seems to me that this stretches the exception beyond the breaking point. There is no evidence that the residents use the sand to treat ice on public sidewalks in the rural town of Barkhamsted. But, even if they do, the free sand would not constitute a way of generating a profit for the town. Barkhamsted does not charge any fee for use of the sand pile. It is not acting as a private enterprise by providing the free sand. It is, rather, furthering the public health and safety of the residents and indirectly benefitting the public at large. I fail to see how providing free sand can be considered a proprietary activity.
Novak's affidavit says that the town offers the sand to taxpayers for personal use at their homes and businesses, and that it is not the town's purpose or intent that the sand be used on public walkways or roadways.
There is another reason why the plaintiff is unable to rely upon the proprietary use exception. "A municipal entity is subject to liability to § 52-557n(a)(1)(B), however, only if its allegedly tortious conduct was inextricably linked to a proprietary function." Martel v. Metropolitan District Commission, 275 Conn. 38, 53 (2005) (citations omitted; internal quotation marks omitted). Although the plaintiff claims that maintenance of the sand pile was a proprietary function, the plaintiff finds no fault in the way that the sand pile was maintained. The sand pile was the reason why the plaintiff was in the parking lot, but it really has nothing to do with the negligence alleged by the plaintiff. The proprietary function exception applies only where the tortious conduct is inextricably linked to a proprietary function. The allegedly tortious conduct of failing to discover and treat the patch of ice is not inextricably linked with the allegedly proprietary function of maintaining the sand pile.
D. C.G.S. § 52-557n(b)(8) CT Page 2814
The plaintiff next makes a very brief argument that C.G.S. § 52-557n(b)(8) must be interpreted to mean that a municipality cannot claim immunity for failure to inspect its own property. The plaintiff cites no case law for this proposition because there is none. This subsection of the statute provides a municipality and its employees with immunity in certain specific circumstances, regardless of subsection (a). It does not follow that there is no immunity in all other circumstances. Subsection (a) of the statute and the common law still apply to provide immunity for discretionary functions which are ministerial in nature, even if the alleged negligence involves property owned by the town.
Section 52-557n(b)(8) provides: "Notwithstanding the provisions of subdivision (a) of this section, a political subdivision of the state or any employee . . . 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 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 relevant circumstances."
E. Identifiable Victim/Imminent Harm
The final issue will be rejected without extensive discussion. The plaintiff argues that the "identifiable victim imminent harm" exception applies as an exception to governmental immunity. But, the recent case of Durrant v. Board of Education, 284 Conn. 91 (2007), eliminates this as a viable argument. Suffice it to say that post- Durrant it is not reasonable to argue that the plaintiff could be considered an "identifiable person." In Durrant, the court held that the plaintiff mother of a child attending an after-school day care program was not an identifiable person when she came to the school to pick up her child. Id. at 107-08. The court stated: "The only identifiable class of foreseeable victims that we have recognized for these purposes is that of school children attending public schools during school hours." Id. This is because school children are legally required to attend school rather than being there voluntarily. Id. The plaintiff in the present case was not required to be at the town garage and his actions were entirely voluntary. It is not possible that he could be an identifiable victim under current law.
Since the defendant was engaged in a discretionary function, it is entitled to governmental immunity unless one of the three exceptions to discretionary act immunity applies. See Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006). One exception is the "imminent harm" exception. Id. Under the "imminent harm" exception, "[d]iscretionary act immunity is abrogated when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Citation omitted; internal quotation marks omitted.) Id., 616. To prevail, a plaintiff must meet all three requirements, and "[d]emonstration of less than all of these criteria is insufficient." Id., 620.
IV. Conclusion
For all of the reasons given above, the motion for summary judgment is granted.