Opinion
FBTCV156047702
10-05-2016
Camilla Peeples, Mother and Next Friend of Christopher Peeples v. North End Baseball League of Bridgeport, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT
Edward T. Krumeich, J.
Defendants have all moved for summary judgment. For the reasons stated below the motions of the North End Eastern Little League Baseball of Bridgeport, Inc. (" NELL" or the " League") and the City of Bridgeport (the " City") and its Director of Parks and Recreation, Charles Carroll, are denied. The motion of Scott Moutinho is granted.
The Standards for Deciding a Motion for Summary Judgment
" 'The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an **957 evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001).
1.) The City's Duty to Inspect the Outfield for Holes Was a Ministerial Act
The City and Mr. Carroll have moved for summary judgment asserting sovereign immunity under C.G.S. § 52-557n(a)(2)(B), which provides, in pertinent part, " . . . a political subdivision shall not be liable for damages to person or property caused by: . . . 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 DiMiceli v. Town of Cheshire, 162 Conn.App. 216, 223, 131 A.3d 771 (2016), the Appellate Court reviewed legal issues concerning municipal liability for failure to inspect a playground:
We begin by setting forth the well settled law of this state regarding the liability of municipalities and their agents. According to our Supreme Court, " [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [The court has] also recognized, however, that governmental immunity may be abrogated by statute . . . General Statutes § 52-557n(a)(1) provides in relevant part: 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 . . . [Our Supreme Court] previously [has] concluded that [t]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents . . . 'Subdivision (2) of § 52-557n(a) lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal provides: Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.' . . . The statute, thus, distinguishes between discretionary acts and those that are ministerial in nature, with liability generally attaching to a municipality only for negligently performed ministerial acts, not for negligently performed discretionary acts. 162 Conn.App. at 223-24 (citations omitted).
The DiMiceli Court repeated the oft-cited test for distinguishing ministerial and discretionary acts and the application of this rule in deciding motions for summary judgment:
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 . . . In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner 'In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity . . . A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs.' . . . 'Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint . . . '[W]hether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint . . . Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.' 162 Conn.App. at 224-25 (citations omitted).
The City relies on DiMiceli in arguing that its failure to inspect the outfield before plaintiff was injured by stepping into a hole in the outfield while playing baseball was discretionary conduct for which it is immune under C.G.S. § 52-557n. The City points to the absence of any " city charter provision, ordinance, regulation, rule, policy or other directive [compelling a municipal employee] to [act] in any prescribed manner." DiMiceli, 162 Conn.App. at 224, quoting Coley v. Hartford, 140 Conn.App. 315, 322, 59 A.3d 811 (2013).
In Wisniewski v. Town of Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012), the Appellate Court held that an informal policy may suffice and " [t]estimony of a municipal official . . . may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive." In Wisenewski the Tree Warden testified that when he received a complaint about a potentially hazardous tree " he has a nondiscretionary duty to perform an inspection." 135 Conn.App. at 443. Other courts have recognized that a written policy is not necessary if testimony establishes a ministerial duty. See Black v. Westport, 2013 WL 3388898 *6 (CT S.Ct. 2013) (Tierney, J.). Accord, Mazariegos v. Stamford, 2013 WL 5969146 *4-5 (CT S.Ct. 2013) (Jennings, J.) (custom and habit of municipal official in the exercise of his duties is a proper substitute for a written policy).
The DiMiceli Court distinguished Wisenewski and concluded no ministerial act could be inferred because " there is no indication that defendant ignored any request for inspection . . . and [no testimony] " that indicates that the defendant had any specific policy in place or had prescribed a nondiscretionary manner for inspecting and maintaining its playgrounds." 162 Conn.App. at 228.
Here, there is evidence from which a reasonable jury could infer the City was aware of safety hazards from potholes in the outfield and had established the policy and practice to inspect the outfield before the fields were used by permittees like NELL for league games. City employees, including Mr. Carroll and two supervisors, testified about the policy and practice to prepare the field before a game is played at Pilotti Field. The two supervisors testified that, as part of the regular process for preparing the ball field for play, an identified employee, Bob Karpus, was responsible for doing maintenance work before the game. Mr. Kadi testified if a City employee observed a hole in the outfield he would be expected to fix it. Mr. Negron testified Mr. Karpus on the morning of a game was supposed to inspect the outfield for potholes. If he spots a hole he was supposed to report it so it may be repaired before the game. Mr. Carroll testified if the employee preparing the field spotted a hole he was not permitted to walk right by it but was required to fix it or report it to his supervisor so it could be fixed.
In Virgulto v. Town of Guilford, 2009 WL 2784754 *4-5 (CT S.Ct. 2009), Judge Holden had a similar case in which plaintiff alleged she was injured when she fell in a hole on the town green; he held that there was a genuine issue of material fact whether the town's duty to inspect and repair any holes in the town green was discretionary or ministerial. He relied on appellate authority that under certain circumstances inspection, maintenance and repair of municipal property may be ministerial. " The Connecticut Supreme Court . . . has indicated that duties involving inspection, maintenance and repair of premises may be ministerial if policies, directives or mandatory procedures requiring such duties exist." Id. citing Martel v. Metropolitan District Commission, 275 Conn. 38, 50, 881 A.2d 194 (2005). " Moreover, the Connecticut Appellate Court has ruled that the existence of a specific directive regarding the maintenance of the premises precludes the defense of governmental immunity." Id. citing Kolaniak v. Bd. of Education, 28 Conn.App. 277, 279-82, 610 A.2d 193 (1992). Judge Holden denied the Town's motion for summary judgment:
The evidence submitted by the plaintiff, coupled with the evidence submitted by the defendant, indicates that when the plaintiff fell in the hole, the department had an informal policy regulating the timing, frequency, method and extent of inspections, maintenance and repairs and that under that policy, the department conducted or was obligated to conduct inspection and maintenance of the town green on a regular basis. The plaintiff has met her burden to demonstrate the existence of disputed factual issues regarding whether the defendants were engaged in discretionary acts, which would confer governmental immunity on them. Id. at 5.
The same is true here. The evidence submitted by the parties on these motions could be interpreted by a reasonable jury to set an informal policy that the outfield would be inspected by a City employee before the game for potholes and that any holes discovered would be reported and repaired by the City.
The Court rejects the City's argument that there is no ministerial duty because there is discretion as to how to conduct the inspection and that whether to report or repair a hole necessarily involves discretion based on its dimension and other factors relating to details concerning the specific hole in question. Judge Tierney in Black quoted from Ham v. County of Los Angeles, 46 Cal.App. 148, 162, 189 P. 462 (1920), which rejected the argument that the opening of a door was a discretionary act: " [i]t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved the driving of a nail." Here there is evidence Mr. Karpus was supposed to inspect the outfield for holes when he was preparing the field for play and, if he found any hole, he was supposed to report the hole so it could be repaired before someone could get hurt. He had no discretion to skip the inspection required by the City's policies and procedures to prepare the field before a league game. See Williams v. Housing Authority, 2013 WL 870260 *7 (CT S.Ct. 2013) (Sommer, J.) (" . . . when a . . . policy or directive does exist, and it clearly establishes that an inspection must be performed, the official is not free to exercise his or her judgment in determining whether to conduct the inspection"). He had no discretion to fail to act if he discovered a hole in the outfield. See Coleman v. Stamford, 2013 WL 4734849 *5 (CT S.Ct. 2013) (Karazin, J.) [56 Conn.L.Rptr. 653, ] (evidence of known hazard raises issue of fact whether duty discretionary or ministerial). The jury could find the inspection of the outfield was mandated and that, if a hole of the dimensions shown at trial was discovered, reporting and repair were mandated; the mechanism for inspecting, reporting and repairing the hole was set by policies already in place; neither inspecting, reporting nor repairing holes in the outfield called for the exercise of discretion and the informal policies fits the statutory test because the " timing, frequency, method and extend of inspection, maintenance and repairs" were established by the City's practices and procedures for preparing this field for league games. DiMiceli, 162 Conn.App. at 224, quoting Grignano v. Milford, 106 Conn.App. 648, 656, 943 A.2d 507 (2008).
This case is unlike Spada v. Middletown, 2015 WL 5894034 *4 (CT S.Ct. 2015), in which the Court determined that the City had no ministerial duty to report or repair a hole in a path mowed by the city, noting that the testimony established there was no directive to report or repair any hole discovered during mowing the grass along the path which " renders the decision of whether to report of repair such defects discretionary." The same is not true here. Mr. Karpus was directed to inspect the outfield and report any holes he discovered for repair. He had no more discretion to fail to inspect the outfield and to report any holes he found than the municipal employee mowing the grass in Mischke v. City of Hartford, 2016 WL 3912373 *3 (CT S.Ct. 2016) [62 Conn.L.Rptr. 535, ], who, Judge Epstein found as a matter of law, " had no discretion as to when and how to operate his mower in Bushnell Park."
I will leave the discretionary v. ministerial issue for the jury because the testimony does not establish that the City's policies and procedures for inspecting the outfield before a little league game and for reporting and repair of holes " necessarily were discretionary in nature" such that summary judgment is warranted. DiMiceli, 162 Conn.App. at 225. Accord, Koulouris v. Pomperaug Regional School District, 2014 WL 7271908 *3 (CT S.Ct. 2014).
Even if the Court were to accept the premise that the repair of any hole found in the outfield during a mandatory inspection was discretionary in the sense that how the repair was made involves discretion, it would still fall within the exception to the rule because it should have been obvious to the municipal employee charged with inspecting the outfield for hazards that the failure to locate and repair a hole in the outfield would be likely to place into imminent harm a member of an identifiable class of foreseeable victims, i.e. children playing outfield in the little league game for which the field was being prepared for play, like plaintiff. See Bonnington v. Westport, 297 Conn. 297, 313-14, 999 A.2d 700 (2010).
The City's and Carroll's motion for summary judgment is denied.
2.) The League Had a Duty to Inspect the Outfield Before the Game
The League quite rightly has pointed out that the City owns, operates and maintains Pilotti field. NELL argues it should be granted summary judgment because it " did not own, control or maintain Pilotti Field" and " there is no evidence that NELL was negligent . . ." To the contrary, a reasonable jury could conclude from the evidence that the League as permittee had possession and control of the field during the game. More importantly, NELL had a duty independent of the City to inspect the outfield for potholes before the game was played. There is no evidence such inspection occurred.
As permittee NELL had the right to possess the field during its game and to control the playing conditions by inspecting the field, by notifying the City of any discovered defects like a pothole in the outfield that would be hazardous to its players, by insisting that the defect be repaired and by deciding not to use the field until repairs were made, according to the evidence submitted on the motions. NELL's own policies required pre-game inspection by adults to protect against hazards like holes in the playing field. Although the League argued these policies only applied to fields owned by NELL, not fields owned by third parties, the documents do not support that limitation. Copies of the Manual were distributed to all coaches at the beginning of the season. Further, it stands to reason there would be more impetus to inspect less familiar third-party fields before subjecting players to the hazard of playing on fields not maintained by the League.
There is evidence of the League notifying the City of the hazardous condition of the field that resulted in plaintiff's injury. Jose Negron, the City supervisor responsible for the field, testified that if a problem with the field is reported by a coach it gets fixed.
The NELL Manual includes a safety code " dedicated to injury prevention" that emphasizes " responsibility for safety procedures should be that of an adult member of' NELL and states " No games or practices should be held when . . . field conditions are not good. Play areas should be inspected frequently for holes, damage, stones, glass and other foreign objects." The Manual also includes a guide to coaches which states " HEY COACH HAVE YOU: Walked field for debris/foreign objects." Later in the Manual the " Qualified Safety Plan Requirements" include " Require coaches/umpires to walk fields for hazards before use . . . common sense activity--look for rocks, glass, holes etc." Mr. Moutinho testified the Manual is handed out to all coaches.
Both sides cite Judge Arnold's decision in Zajaczkowski v. Connecticut State Soccer Association, Inc., 2010 WL 1052937 **4-10 (CT S.Ct. 2010), in which he granted summary judgment in a case alleging injury to a soccer player in an adult league game who collided with the opposing goalkeeper while scoring a goal. Some of the allegations related to the condition of the playing surface and the failure to inspect the field before allowing the game to be played, but most of the allegations concerned matters relating to training and in-game situations that have little relevance to this case. Judge Arnold set forth the typical elements of negligence in a premises liability case:
'Liability for injuries occurring on real property is grounded in possession and control of the property. There is no question that the playing field in this matter was owned by the City of Stamford, which is not a defendant in this case. However, it is the possession of land that imposes liability for injuries, rather than the ownership of the land because the person in possession is in a position of control and is best able to prevent harm . . .' The word 'control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the authority to manage, superintend, direct or oversee.' Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1958). Accordingly, a finding of negligence is reliant upon a showing of control . . . 'The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.' Id. at 4 (citations omitted).
" 'The question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question . . . Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question of [control], then the issue should properly go to the jury for its determination.'" Owen v. Kilic, 2010 WL 5491268 *4 (CT S.Ct. 2010) (Burke, J.). In Zalaczkowski Judge Arnold held that the evidence of a right to repair, possession and control presented by plaintiff was insufficient to create an issue of fact for trial. Id. at 5. Here, there was sufficient evidence of possession and control for a jury to find NELL culpable for allowing the game to be played without inspection of the outfield.
The Supreme Court in Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328-31, 107 A.3d 381 (2015), discussed the analysis required to determine whether defendant owed plaintiff a legal duty, which is a required element in a negligence case:
Our analysis of the defendant's claim is governed by the following principles. A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury . . . Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached . . .
'Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.' 315 Conn. at 328 (citations omitted).
The Supreme Court noted in Ruiz foreseeability is usually a jury issue: " whether the injury is reasonably foreseeable ordinarily gives rise to a question of fact for the finder of fact, and this issue may be decided by the court only if no reasonable fact finder could conclude that the injury was within the foreseeable scope of the risk such that the defendant should have recognized the risk and taken precautions to prevent it . . . In other words, foreseeability 'becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact.'" 315 Conn. at 330 (citation omitted).
The first question may be summed up as " whether the harm that occurred was sufficiently foreseeable that the defendant reasonably should have taken steps to prevent it." Ruiz, 315 Conn. at 334. Here, it is no great stretch to conclude that a foreseeable result of failing to inspect the outfield before a little league game may result in a child falling into a hole in the outfield. NELL's own safety rules warn about the hazards of holes in the field and call for a pre-game inspection.
There is a second question to be answered: whether public policy supports imposing a legal duty on defendant under the circumstances.
Of course, '[a] simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself . . . but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.' . . . '[I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions '[This] totality of the circumstances rule . . . is most consistent with the public policy goals of our legal system, as well as the general tenor of our [tort] jurisprudence.' Ruiz, 315 Conn. at 336-37 (citations omitted).
The first two factors are interrelated and evident from the evidence submitted on the motions, which includes a letter promising a " safe environment" to the parents of children participating in the program and the safety procedures requiring pre-game inspection of the field. Although avoidance of litigation is a concern, our civil tort system is a beneficial means of encouraging adherence to safety rules and procedures like those prepared by the Little League and promulgated by NELL. Imposing a legal duty to require the League to do that which NELL has already agreed to do will hopefully minimize future litigation by encouraging field inspections and avoidance of injury. Protecting children at play is a particularly important public policy goal recognized by our courts. See Ruiz, 315 Conn. at 338-39 (" [t]here is certainly a strong public policy in favor of facilitating and encouraging children to play and socialize without forcing an overly heightened degree of vigilance [on] parents").
Review of the law in other states reveals a willingness to protect players from hidden hazards in the field. " One of the more common causes of injury to a baseball player arises from holes on the field . . . Recovery has been allowed . . . where the hole was hidden or not visible to the player." " Baseball Players Right to Recover for Baseball-related Injuries from Non-Player" 55 A.L.R. 4th 664 § 2A. See generally, Lamphear v. State, 91 A.D.2d 791, 458 N.Y.S.2d 71 (N.Y.3d Dept. 1982) (liability for failure to inspect the field when player injured when her foot caught in concealed depression while sliding into second base); Schmerz v. Salon, 26 A.D.2d 691, 272 N.Y.S.2d 404 (N.Y.2d Dept. 1966) (liability to keep baseball field in reasonably safe condition where player injured by concealed holes in the base paths); Jackson v. City of St. Louis, 422 S.W.2d 45 (Mo.S.Ct. 1967) (liability for hidden steel pole adjacent to outfield run into by player chasing a fly ball). These cases demonstrate that public policy in other states protect ball players from concealed conditions like the hole in the outfield here.
All the factors identified by the Supreme Court in Ruiz support holding that NELL had a legal duty to inspect the field for holes in the outfield before the teams took the field. Under all the facts and circumstances presented in the evidence submitted on the motions a jury could reasonably conclude that NELL violated its legal duty to inspect the field and that was a substantial factor in causing the plaintiff's injury. The League's motion for summary judgment is denied.
3.) The Claims Against Moutinho Should Be Dismissed
At oral argument plaintiff did not oppose the dismissal of the claims against Mr. Moutinho, the then President of NELL, under the Federal Volunteer Protection Act, 42 U.S.C. § 14503(a). As a volunteer acting for a non-profit entity within the scope of his responsibilities, this defendant is protected by the Act. See Avenoso v. Mangan, 2006 WL 490340 *5 (CT S.Ct. 2006) . Further, plaintiff presented no evidence Mr. Moutinho did anything wrong. His motion for summary judgment is granted.