Opinion
No. CV98-0584642 S
April 28, 2003
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
In this case, plaintiff Ramonita Rivera, as administratix of the estate of Tiffany Murria, plaintiff Jesus Garcia, as administrator of the estates of Maria M. Montanez and Jesus Garcia Ocasio, and plaintiff Antonio Garcia, Jr., on his own behalf ("plaintiffs"), have brought suit against five defendants — John Sitaris, the owner of a residential apartment building in East Hartford, Connecticut, former East Hartford Deputy Fire Marshal David Dagon, East Hartford Fire Marshal David Roth, former East Hartford Fire Marshal Richard Metcalf ("the Fire Marshals"), and the Town of East Hartford ("the Town") — to recover money damages for injuries and deaths they claim to have been caused, to themselves or their decedents, by a fire that swept through defendant Sitaris' apartment building on the night of October 20, 1996. In their twenty-count Fifth Revised Complaint dated November 6, 2000 ("Complaint"), the plaintiffs make claims of negligence, reckless misconduct and wrongful death against the Fire Marshals, and associated claims for indemnification and direct statutory liability against the Town, based upon the following allegations of fact.
On October 20, 1996, plaintiff Ramonita Rivera was a tenant in defendant John Sitaris' four-unit apartment building (the "Subject Premises") located at 117-123 Cannon Road, East Hartford. She was, more particularly, the lessee and occupant of 123 Cannon Road (the "Subject Unit"), a separate rental unit within the Subject Premises, where she lived with her co-plaintiff, Antonio Garcia, and her dependent children, including infant daughter Tiffany Murria.
On the night of October 20, 1996, when Jesus Garcia Ocasio and Maria Montanez were visiting the Subject Unit, "an uncontrolled, destructive fire occurred" therein. The fire caused "severe and permanent injuries, prolonged pain and suffering, and injuries which ultimately resulted in the demise" of Tiffany Murria, Maria M. Montanez, and Jesus Garcia Ocasio; Complaint, Count I, ¶ 30, Count II, ¶ 43, and Count III, ¶ 56, including "severe burn injury, asphyxia, oxygen denial, respiratory distress, smoke inhalation, and other medical conditions causing death." Id. It also caused Antonio Garcia to suffer "severe and permanent injuries while attempting to escape the fire, including . . . fractures of the lower extremity, requiring open reduction and internal fixation procedures; injury to the muscles, . . . antalgic gait; [and] limitation of range of motion, with prolonged pain and suffering." Id. Count IV, ¶ 69.
At the time of the fire, the Subject Premises constituted a "residential building designed to be occupied by two or more families," within the meaning of General Statutes § 29-292. It was thus a building in which smoke detection and warning equipment were statutorily required, under Section 29-292 (a) and the State Fire Safety Code, and for which a certificate of occupancy could not be issued "unless the local fire marshal or building official . . . certified that the building [wa]s equipped with smoke detection and warning equipment complying with the Fire Safety Code." Conn. Gen. Stat. § 29-292 (b). To ensure compliance with these requirements, local fire marshals are statutorily responsible, under General Statutes § 29-305, for conducting yearly inspections of all residential buildings within their respective jurisdictions which are designed to be occupied by two or more families.
At all times relevant to this case, Section 29-292 has provided as follows:
(a) The State Fire Marshal and the Codes and Standards Committee shall adopt, promulgate and administer a Fire Safety Code and at any time may amend the same. The code shall be revised not later than January 1, 1987, and every four years thereafter to incorporate advances in technologies and improvements in construction materials unless the State Fire Marshal and the committee certify that a revision is not necessary for such purpose. The regulations in said code shall provide for reasonable safety from fire, smoke and panic therefrom, in all buildings and areas adjacent thereto except in private dwellings occupied by one or two families and upon all premises except those used for manufacturing, and shall include provision for smoke detection and warning equipment in (1) residential buildings designed to be occupied by two or more families, (2) new residential buildings designed to be occupied by one family for which a building permit for new occupancy is issued on or after October 1, 1978, requiring equipment complying with the Fire Safety Code, and (3) new residential buildings designed to be occupied by one or more families for which a building permit for new occupancy is issued on or after October 1, 1985, requiring equipment capable of operation using alternating current and batteries. Said regulations shall provide the requirements for markings and literature which shall accompany such equipment sufficient to inform the occupants and owners of such buildings of the purpose, protective limitations and correct installation, operating, testing, maintenance and replacement procedures and servicing instructions for such equipment and shall require that smoke detection and warning equipment which is installed in such residential buildings shall be capable of sensing visible or invisible smoke particles, that the manner and location of installing smoke detectors shall be approved by the local fire marshal or building official, that such installation shall not exceed the standards under which such equipment was tested and approved and that such equipment, when activated, shall provide an alarm suitable to warn the occupants, provided each hotel, motel or inn shall install or furnish such equipment which, when activated, shall provide a visible alarm suitable to warn occupants, in at least one per cent of the units or rooms in such establishment having one hundred or more units or rooms and in establishments having less than one hundred units or rooms, it shall install or furnish at least one such alarm.
(b) No certificate of occupancy shall be issued for any residential building designed to be occupied by two or more families, or any new residential building designed to be occupied by one or more families for which a building permit for new occupancy is issued on or after October 1, 1978, unless the local fire marshal or building official has certified that said building is equipped with smoke detection and warning equipment complying with the Fire Safety Code.
At all times relevant to this case, Section 29-305 has provided in relevant part as follows:
Each local fire marshal and the state fire marshal, for the purpose of satisfying themselves that all pertinent statutes and regulations are complied with, may inspect in the interests of public safety . . . all occupancies regulated by the Fire Safety Code within their respective jurisdictions. Each local fire marshal shall inspect or cause to be inspected, at least once each calendar year and as often as may be necessary in the interests of public safety, all buildings and facilities of public service and all occupancies regulated by the Fire Safety Code within his jurisdiction, except residential buildings designed to be occupied by one or two families which shall be inspected, upon complaint or request of an owner or occupant, only for the purpose of determining whether the requirements specified in said code relative to smoke detection and warning equipment have been satisfied . . .
Notwithstanding these requirements, the Subject Unit was not equipped with smoke detection devices on October 29, 1996, and was thus in a hazardous and unreasonably dangerous condition. This condition of danger was compounded by a lack of fire prevention equipment in the Subject Unit, or any other equipment necessary to prevent the onset and dangerous spread of hazardous smoke and fire within the unit.
Counts One through Four of the Complaint are directed to defendant Sitaris. In those counts, the plaintiffs allege, inter alia, that the fire here at issue and all injuries and deaths resulting from it were caused by the negligence of Mr. Sitaris in failing to equip his apartment building with safe and operable smoke detectors, fire sprinklers, fire extinguishers, fire protection devices, alarms and other fire protection and/or fire prevention equipment.
Counts Five through Twelve of the Complaint are brought directly against the defendant Fire Marshals. In Counts Five through Eight, the plaintiffs allege, inter alia, that the Fire Marshals negligently caused the injuries and deaths for which they seek to recover damages in the following ways: "fail[ing] to conduct inspections of the Subject Unit and the Subject Premises," Complaint, ¶ 80(g), Count VI, ¶ 90(g), Count VII, ¶ 100(g), Count VIII, ¶ 110(g); improperly preparing for, conducting, and supervising such inspections, id. Count V, ¶¶ 80(a) — (f), (h), Count VI, ¶¶ 90(a) — (f), (h), Count VII, ¶¶ 100(a) — (f), (h), Count VIII, ¶¶ 110(a) — (f), (h); and "permitt[ing] and allow[ing] a dangerous condition to exist at the Subject Unit for an unreasonable period of time, despite actual knowledge [that] the Subject Unit did not have working, activated and/or properly placed and secured fire detection equipment," id. Count V, ¶ 80(o), Count VI, ¶ 90(o), Count VII, ¶ 100(o), Count VIII, ¶ 110(o). In Counts Nine through Twelve, the plaintiffs allege, inter alia, that the Fire Marshals recklessly caused the injuries and deaths here complained of by the following "actions and/or inactions" by them in the performance of their official duties for the defendant Town:
the failure to conduct statutory inspections[;] the failure to follow or enforce violations of the Connecticut Fire Code regarding the installation and maintenance of smoke detectors and fire protection devices[;] reckless indifference to the performance of duties and obligations mandated by law, despite actual notice that other properties owned by co-defendant John Sitaris failed to have operating and effective smoke and fire detection devices, required under the law; [and] inexplicably fail[ure] to conduct statutory (sic) mandated inspections despite actual notice of inoperative smoke and/or fire detection devices located at the Subject Premises and other adjacent properties[.]
Complaint, Count IX, ¶ 120, Count X, ¶ 130, Count XI, ¶ 140, Count XII, ¶ 150.
Counts Thirteen through Twenty of the Complaint are directed to the defendant Town. In Counts Thirteen through Sixteen, the plaintiffs claim that the Town is liable to indemnify them for the alleged negligence of the Fire Marshals under General Statutes § 7-465, the Municipal Indemnification Statute. In Counts Seventeen through Twenty, the plaintiffs allege that the Town is directly liable to them under General Statutes § 52-557n (a), for alleged negligence by the Fire Marshals, as pleaded in Counts Five through Eight.
At all times relevant to this case, Section 7-465 has provided in relevant part as follows:
(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . Any employee of such municipality, although excused from official duty at the time, for the purposes of this section shall be deemed to be acting in the discharge of duty when engaged in the immediate and actual performance of a public duty imposed by law. Such municipality may arrange for and maintain appropriate insurance or may elect to act as a self-insurer to maintain such protection. No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefore arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section . . .
The parties acknowledge that the Town is only liable to indemnify its employees under Section 7-465 for their proven acts of negligence while acting in the performance of their duties and within the scope of their employment, since the statute expressly bars recovery for any occurrence, accident, physical injury or damage that results from "any wilful or wanton act of such employee in the discharge of such duty."
At all times relevant to this case, Section 52-557n has provided in relevant part as follows:
(a) 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.
(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: (1) The condition of natural land or unimproved property; (2) the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person in a manner which is not reasonably foreseeable; (3) the temporary condition of a road or bridge which results from weather, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (4) the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568; (6) the act or omission of someone other than an employee, officer or agent of the political subdivision; (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (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 a 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 the relevant circumstances; (9) failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision; or (10) conditions on land sold or transferred to the political subdivision by the state when such conditions existed at the time the land was sold or transferred to the political subdivision.
The defendants have responded to the Complaint by denying all of the plaintiffs' essential allegations of negligence and recklessness against them and interposing several special defenses, including: (1) as their Second Special Defense, that the plaintiffs do not have a private cause of action under General Statutes §§ 29-292 and 29-305; (2) as parts of their Third Special Defense, that they are immune from liability under General Statutes §§ 29-298 (b) and 52-557n (b)(8); and (3) as their Sixth Special Defense, that they have no liability for the performance of public or governmental duties. Answer and Special Defenses to Fifth Revised Complaint (12/21/01).
The Fire Marshals and the Town have now moved this Court for summary judgment on Counts Five through Twenty of the Complaint. As grounds for this Motion, which was filed under the authority of § 17-44 et seq. of the Connecticut Practice Book, the movants first assert that they are entitled to judgment as a matter of law on all challenged counts under the "public duty doctrine," because all claims made in those counts are assertedly based upon alleged violations of duties owed to the general public, not duties owed directly and individually to any of the plaintiffs or their decedents. Second, the movants claim that under General Statutes § 29-298 (b), the Fire Marshals are immune from personal liability for all of the plaintiffs' claims against them, as pleaded in Counts Five through Twelve of the Complaint, and thus that they are entitled to summary judgment on those Counts and the Town is entitled to summary judgment on the plaintiffs' associated claims for indemnification based upon alleged negligence by the Fire Marshals, as pleaded in Counts Thirteen through Sixteen. Third and finally, the movants claim that the plaintiffs' negligence claims against the Fire Marshals, as presented in Counts Five through Eight of the Complaint, and all associated claims for indemnification and direct liability claims against the Town based upon alleged negligence by the Fire Marshals, as pleaded in Counts Thirteen through Twenty, are barred by the immunity extended to municipalities and their employees under General Statutes § 52-557n (b)(8).
The instant Motion is not supported by sworn affidavits, certified transcripts, disclosures, written admissions, or other evidentiary material. Instead, it challenges only the legal sufficiency of the plaintiffs' claims against the movants, as pleaded in their Complaint. For the following reasons, the Court concludes that the Motion must be DENIED.
I. SUMMARY JUDGMENT RULES AND STANDARDS
"Summary judgment is a method of resolving litigation when 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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989) (citations omitted). The burden of proof on a motion for summary judgment is on the moving party; Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A.2d 582 (1984); who must clearly show that there is no genuine dispute either as to the existence of one or more facts which, if established, would entitle him to judgment as a matter of law, or as to the nonexistence of one or more facts upon which his opponent's right to judgment materially depends.
In deciding a motion for summary judgment, the trial court must employ the same standard it would use in deciding a motion for a directed verdict. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). In Connecticut, the direction of a verdict is only justified if upon the evidence the jury could not reasonably and legally have reached any other conclusion than that embodied in the verdict as rendered." Bernardo v. Hoffman, 109 Conn. 158, 159, 145 A. 884 (1929). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Cunha v. Colon, 260 Conn. 15, 18, 792 A.2d 832 (2002). However, "the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Buell Industries v. Greater New York Mutual Ins., 259 Conn. 527, 550, 791 A.2d 489 (2002). If there is no question of fact, and the moving party is entitled to judgment as a matter of law, then a motion for summary judgment will be granted.
A question of intent usually raises an issue of material fact, which cannot be resolved on a motion for summary judgment. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). "Summary judgment procedure is particularly inappropriate where the inferences the parties seek to have drawn deal with questions of motive [and] intent." Id.; Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198, 319 A.2d 403 (1972).
In the typical case, where the moving party challenges the sufficiency of the non-movant's evidence to support his claim or cause of action, the question presented for decision is whether that evidence, when viewed in the light most favorable to the non-movant, is reasonably capable, if credited, of sustaining a verdict in his favor. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969). This case, however, is not typical, for here the moving party does not contest the sufficiency of the plaintiffs' evidence to prove the claims allegedly presented in the challenged counts, but rather the sufficiency of the allegations of those counts to state valid claims upon which relief can be granted. The threshold question thus arises whether such a challenge, which is traditionally presented in a motion to strike, is an appropriate basis upon which to seek or grant summary judgment.
In Burke v. Avitabile, 32 Conn. App. 765, 772, 630 A.2d 624 (1993), the Appellate Court flatly stated that it was not, observing that "[t]he office of a motion for summary judgment is not to test the legal sufficiency of the complaint, but is to test for the presence of contested factual issues. Practice Book § 384 [now § 17-49]." However, in the earlier case of Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409, 279 A.2d 540 (1971), cited by the Burke Court but described as "anomalous," id. at 772 n. 9, the Supreme Court disagreed, clearly stating that in the case before it, "[t]he proper way to have tested the legal sufficiency of the complaint . . . would have been, . . . after an answer had been filed, by a motion for summary judgment." Boucher Agency, Inc. v. Zimmer, supra, 160 Conn. at 409. Since lower court judges are bound by Supreme Court precedents, prudence suggests that they follow such precedents, however "anomalous" they may seem. Accordingly, this Court will follow Boucher rather than Burke, and will treat the defendant's challenge to the legal sufficiency of the plaintiffs' complaint as a proper basis upon which to consider granting summary judgment.
More, however, than simple prudence supports the Court's conclusion that the defendant's motion may properly be considered on the grounds alleged. In fact, the appropriateness of granting summary judgment on the ground of failure to plead a valid claim or cause of action finds support both in our law governing the direction of verdicts and in the logic of our summary judgment rules, as traditionally described and formulated.
Over seventy years ago, in Sedita v. Steinberg, 105 Conn. 1, 5, 134 A. 243 (1926), our Supreme Court explained that a civil verdict may properly be directed for reasons other than insufficiency of the evidence. It observed, in particular, that:
A verdict may be directed where the evidence is undisputed, where the only question is one of law. where the plaintiff's evidence is such that if a verdict was rendered in his favor it would properly be set aside, where reasonable men cannot differ as to the verdict which ought to be rendered or where more than one conclusion is not reasonably open to the jury upon the evidence.
Id. (emphasis added).
Over the years, the rule that a verdict can be directed where the decisive issue is one of law, not one of fact, has never been abandoned. See, e.g., Rich v. Dixon, 153 Conn. 52, 61-62, 212 A.2d 417 (1965) (noting that "[a] verdict may be directed where the decisive question is one of law"); Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979) (same); Red Maple Properties v. Zoning Commission, 222 Conn. 730, 735, 610 A.2d 1238 (1992) (same). To the contrary, it has frequently been cited as a proper legal basis for directing a verdict when a challenged count or pleading fails to state a valid claim or cause of action. See, e.g., Stavnezer v. Sage-Allen Co., 146 Conn. 460, 462, 152 A.2d 312 (1959) (holding that the trial court erred by failing to grant the defendant's motion, made at the close of all the evidence, to direct a verdict "on the ground . . . that the only cause of action set forth in the complaint was [a] . . . defective one sounding in slander"); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 573, 479 A.2d 781 (1984) (holding, inter alia, that where the facts alleged in the first count of the plaintiff's complaint were inadequate to establish a legally cognizable breach of the implied covenant of good faith and fair dealing, a verdict should have been directed on that count); Red Maple Properties v. Zoning Commission, supra, 222 Conn. at 735 (upholding the trial court's direction of a verdict on the ground that the plaintiff's claim did not constitute a substantive due process violation as a matter of law). Logically, if our standard for granting summary judgment is identical to that for directing a civil verdict, and a civil verdict can lawfully be directed because the pleader has failed to state a valid cause of action, summary judgment can be lawfully granted where the challenged count or pleading is legally deficient.
The wording of our traditional standard for granting summary judgment is entirely consistent with the foregoing conclusion. Under that standard, to restate it, summary judgment can be granted when the moving party proves 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." Wilson v. New Haven, supra, 213 Conn. at 279.
Whether or not there is a "genuine issue" as to any "material fact" is a two-part inquiry. The first question to be answered is whether or not the fact as to which the moving party claims there is no genuine issue is indeed a "material fact" — that is, "a fact which will make a difference in the result of the case[.]" Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 494 A.2d 573 (1979). Such a fact, to reiterate, is one whose demonstrated existence or nonexistence would conclusively establish the moving party's right to judgment as a matter of law.
Once it is established that a particular fact is "material" to the outcome of the case, it must be determined whether or not there is any "genuine issue" as to that fact. This, in turn, depends both on the contents of the challenged pleading and on the nature and quality of the parties' competing proof. The role of the pleading in answering this question is itself twofold. First, the pleading sets forth the ultimate facts upon which the plaintiff bases its claims and causes of action. Second, the pleading states, with greater or lesser specificity, the particular historical facts upon which proof of those ultimate facts will be attempted. It is a matter of axiom that a party can prove no more at trial than he has duly pleaded in his operative pleadings. Therefore, if a party omits from his complaint an essential element of his claim or cause of action, he can be barred by timely objection from introducing any proof of that element at trial. There can be "no genuine issue" as to any unpleaded fact because that fact has not been placed in issue at all.
Similarly, there can be no genuine issue as to any material fact which, though duly pleaded, is claimed to exist based solely upon predicate facts which do not establish it as a matter of law. When a party pleads his case under a single theory of liability, he restricts himself to proving the case under that theory to the exclusion of all others. When a party so restricts himself in his pleading, and the facts alleged in the pleading are legally insufficient to support his claim, the claim may appropriately be disposed of by summary judgment. In that event, it is irrelevant whether or not the pleader has evidence that would support a properly pleaded claim.
Where, by contrast, any facts provable under the allegations of a challenged count would be legally sufficient, if proved at trial, to establish all the essential elements of a valid claim or cause of action, the Court must deny a motion for summary judgment challenging the sufficiency of those allegations even though other theories of liability also provable thereunder are completely without merit. Absent any authority for the proposition that summary judgment may enter as to some, but not all, of the allegations of a challenged claim or count; Schofield v. Bic Corp., Superior Court, judicial district of Ansonia-Milford at Ansonia, Docket No. 021244 (January 31, 1991) (Fuller, J.), 3 Conn.L.Rptr. 229, 1991 Conn. Super. LEXIS 241; the Court must deny the movants' pending Motion For Summary Judgment just as it would deny a comparable challenge to the legal sufficiency of the plaintiffs' pleading on a motion to strike. Therefore, here, as on a motion to strike, the Court's task in determining the legal sufficiency of any challenged count must be to decide if any facts provable under that count would support a valid legal claim.
II. THE MOVANTS' CHALLENGE TO ALL CLAIMS AGAINST THEM UNDER THE PUBLIC DUTY DOCTRINE
The movants' first claim on this Motion is that they are entitled to judgment as a matter of law on all of the plaintiffs' pending claims against them (Counts Five through Twenty) because each such claim is based expressly upon alleged breaches of public duties owed to the community at large rather than private duties owed to the individual plaintiffs or their decedents. This argument is based on a long line of cases in which our Supreme Court has endorsed the general rule that
if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.
Leger v. Kelley, 142 Conn. 585, 589-90, 116 A.2d 429 (1955), quoting 2 Cooley, Torts, 4th. Ed. p. 385 (noting that the public duty doctrine is "well settled"). Here, claim the movants, the plaintiffs have failed to plead any viable claims against them because each of their claims is based upon alleged breaches of statutory fire safety inspection duties which were imposed upon local fire marshals for the general benefit of the community at large rather than the special benefit of particular persons, such as the plaintiffs and their decedents.
The central problem with this argument is that it ignores an established exception to the public duty doctrine for alleged violations of public duties of a ministerial nature. Under this exception, as explained in Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-70, 544 A.2d 1185 (1988), and Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982), any municipal employee who causes injury to another person by breaching any of his ministerial duties — that is, any duty whose performance does not require the exercise of judgment or discretion — may be sued for damages by the injured person even if the duty he breached was a "public duty," as defined in Leger v. Kelly and related cases. In light of this exception, the modern rule can be stated as follows: "If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance." Shore, supra, 187 Conn. at 153.
Against this background, the movants cannot prevail on their public duty doctrine challenge as to any count of the plaintiffs' Complaint unless they can demonstrate, for that count, that no claim provable thereunder is based upon the alleged breach of a ministerial duty. Otherwise stated, the movants' challenge under the public duty doctrine must be rejected as to each count that is based, at least in part, upon the alleged breach of a ministerial duty.
Here, in fact, it is clear beyond question that each challenged count of the Complaint is based, at least in part, upon alleged breaches by the Fire Marshals of at least one ministerial duty. The duty in question, the breach of which is generally pleaded in, and thus made specifically provable under, the allegations of each challenged count, is the Fire Marshals' statutory duty to conduct annual fire safety inspections of the Subject Premises, as required by General Statutes § 29-305. The statutory language under which this duty arises, as previously noted in this Memorandum of Decision, is as follows:
Each local fire marshal shall inspect or cause to be inspected, at least once each calendar year and as often as may be necessary in the interests of public safety, all buildings and facilities of public service and all occupancies regulated by the Fire Safety Code within his jurisdiction, except residential buildings designed to be occupied by one or two families which shall be inspected, upon complaint or request of an owner or occupant, only for the purpose of determining whether the requirements specified in said code relative to smoke detection and warning equipment have been satisfied.
Conn. Gen. Stat. § 29-305. So worded, Section 29-305 imposes a mandatory duty upon each local fire marshal to conduct annual fire safety inspections of "all occupancies regulated by the Fire Safety Code within his jurisdiction, except residential buildings designed to be occupied by one or two families[.]" Plainly, this statute imposed a mandatory duty upon each of the defendant Fire Marshals to conduct an annual fire safety inspection of the Subject Premises, or cause such an inspection to be conducted, in each year of his service for the defendant Town. This is so, quite simply, because at all times relevant to this case, the Subject Premises have been a four-family residential apartment building located in East Hartford.
The statute does not prescribe the precise manner in which such mandatory inspections are to be conducted, though by necessary implication they must be conducted in a thorough, competent manner, adequate to the task of ensuring compliance with all relevant provisions of the Fire Safety Code. Since such details are necessarily left to the judgment and discretion of local fire marshals, the duty to conduct such an inspection in a thorough, competent manner is plainly not ministerial.
By contrast, a local fire marshal's mandatory duty under Section 29-305 to conduct at least some type of annual inspection of "all occupancies regulated by the Fire Safety Code within his jurisdiction" leaves absolutely nothing to his judgment or discretion. Instead, the statute's unambiguous requirement that such inspections be conducted annually sets a mandatory timetable that no local fire marshal has discretion not to follow for any reason. Therefore, the statutory duty to conduct annual inspections of multi-family dwellings like the Subject Premises is a ministerial duty, whose breach may be asserted in a civil damages action by any person thereby harmed.
Here, because the plaintiffs have based their claims of negligence and recklessness against the Fire Marshals, as well as their associated claims for indemnification and direct statutory liability against the Town, upon the Fire Marshals' alleged failure to conduct mandatory annual inspections of the Subject Premises — a ministerial duty imposed upon them by General Statutes § 29-305 — each such claim is actionable by them, as an exception to the public duty doctrine, for breaches of ministerial duties that caused personal injuries to themselves or their decedents. Accordingly, the Court must reject the movants' challenge to the plaintiffs' claims against them under the public duty doctrine.
III. THE MOVANTS' CLAIM OF IMMUNITY UNDER GENERAL STATUTES § 29-298 (b)
The movants next argue that each of the plaintiffs' negligence and recklessness claims against the Fire Marshals (Counts Five through Eight and Nine through Twelve, respectively), and associated indemnification claims against the Town based upon alleged negligence by the Fire Marshals (Counts Thirteen through Sixteen), is completely and irrevocably barred by the immunity afforded to local fire marshals and their agents under General Statutes § 29-298 (b). At all times relevant to this case, Section 29-298 (b) has provided as follows:
No local fire marshal, deputy fire marshal, fire inspector or other inspector or investigator acting for a local fire marshal, who is charged with the enforcement of the Fire Safety Code and this chapter, may be held personally liable for any damage to persons or property that may result from any action that is required or permitted in the discharge of his official duties while acting for a municipality or fire district. Any legal proceeding brought against any such fire marshal, deputy fire marshal, fire inspector or other inspector or investigator because of any such action shall be defended by such municipality or fire district. No such fire marshal, deputy fire marshal, fire inspector or other inspector or investigator may be held responsible for or charged with the costs of any such legal proceeding. Any officer of a local fire marshal's office, if acting without malice and in good faith, shall be free from all liability for any action or omission in the performance of his official duties.
General Statutes § 29-298 (b) (emphasis added).
Plainly, two types of immunity are granted to local fire marshals and their agents under this subsection. The first, addressed in the Court's earlier denial of the movants' motion to strike the negligence counts against the Fire Marshals and the associated indemnification counts against the Town, is set forth as follows in the first sentence of the statute, which is emphasized above. This sentence offers the Fire Marshals immunity from personal liability for any affirmative action they are "required or permitted" to take in the discharge of their official duties. By its terms, however, the sentence does not confer immunity upon local fire marshals for their failures or omissions to perform acts required in the performance of their official duties, for such failures or omissions to act are obviously not permitted or required in the exercise of their official duties.
The final sentence of the subsection, however, affords important additional protection from civil liability to all officers of local fire marshals' offices. That sentence, which is emphasized above, confers complete immunity from civil liability upon all local fire marshals and their agents for "actions or omissions" they engaged in, while "acting without malice and in good faith . . . in the performance of [their] official duties." Id. (emphasis added).
The broad immunity from liability afforded to local fire marshals and their agents under the final sentence of Section 29-298 (b) must typically be asserted, as these movants have done, as a special defense. This is so because certain facts upon which availability of such statutory immunity depends are not inconsistent with the essential elements of a plaintiff's immunized claim, and thus provable under a general denial of that claim; instead, they are consistent with proof of those elements, yet inconsistent with the defendant's liability for the claim if the elements are proved. Under our law, it is well settled that facts consistent with a plaintiff's factual allegations but inconsistent with the defendant's liability if those allegations are proved must be specially alleged and proved. Conn. Prac. Bk. § 10-50 ("No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are inconsistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially pleaded").
The movants note, as the basis of their Section 29-298 (b) statutory immunity claim, that the plaintiffs have not alleged that the Fire Marshals "were acting with malice and in bad faith" when they engaged in the negligent or reckless conduct they are here accused of. This omission, however, cuts against the movants, not for them. The plaintiffs have no burden of proof on the instant Motion. Instead, it is the movants who must demonstrate, to prevail on this aspect of their Motion, that some or all of the plaintiffs' challenged claims against them are so pleaded as to bring them clearly and unequivocally within the scope of the immunity established by Section 29-298 (b). To make such a showing as to any of the plaintiffs' challenged claims, the movants must demonstrate, more particularly, that the claim in question is based upon alleged acts or omissions by the Fire Marshals, in the performance of their official duties, which the plaintiffs themselves allege, and thus admit, that the Fire Marshals engaged in while "acting without malice and in good faith."
The plaintiffs have certainly pleaded, and thereby admitted, the first two elements of this statutory immunity in their Complaint. That is, they have expressly based each of their challenged claims against the movants upon alleged omissions by the Fire Marshals to perform official duties imposed upon them by state statute. However, as the movants have correctly noted, the plaintiffs' claims are all silent as to whether such omissions to perform official duties were engaged in without malice and in good faith. The plaintiffs therefore have not pleaded facts establishing the movants' special defense of statutory immunity under Section 29-298 (b), or thereby defeated their own action as a matter of law. An actor can engage in negligent or reckless conduct either with or without malice, either in good faith or in bad. Hence, by bringing claims of negligence and recklessness against the defendants, the plaintiff has not admitted or conclusively established that they acted without malice and in good faith, as required to make them immune from liability under Section 29-298 (b) as a matter of law.
For the foregoing reasons, the Court concludes that the movants are not entitled to summary judgment on any of the plaintiffs' challenged claims under the immunity provisions of Section 29-298 (b). Accordingly, the second claim presented in the movants' instant Motion must be denied as to each count to which it is addressed.
IV. THE MOVANTS' CLAIM OF IMMUNITY UNDER GENERAL STATUTES § 52-557n (b)(8)
The movants finally argue that they are entitled to judgment as a matter of law on each of the plaintiffs' claims of negligence against the Fire Marshals (Counts Five through Eight), as well as each of their associated claims for indemnification and direct statutory liability against the Town based on alleged negligence by the Fire Marshals (Counts Thirteen through Sixteen and Seventeen through Twenty, respectively), because as pleaded in the Complaint, those claims are barred by the immunity afforded to municipalities and municipal employees, officers and agents under General Statutes § 52-557n (b)(8). Section 52-557n, which was originally enacted in 1986 as Section 13 of Public Act 86-38 ("Tort Reform I"), was generally intended to codify and modify the pre-1986 common law of municipal liability and qualified governmental immunity from liability. Elliot v. City of Waterbury, 245 Conn. 385, 397, 715 A.2d 27 (1998), quoting Sanzone v. Board of Police, 219 Conn. 179, 188, 592 A.2d 912 (1991). The statute was originally cast in two subsections, with subsection (a) generally describing the circumstances in which persons injured by the conduct of municipal agents or employees could bring direct liability claims against the municipality for money damages, and subsection (b) specifically enumerating ten situations in which neither a municipality nor its employees, officers or agents could be sued for money damages under either the provisions of subsection (a) or at common law.
Subsection (c) of the current statute, which was added in 1992, has no bearing upon the issues in this case, and thus will not be described or discussed herein.
Subsection (b)(8) of Section 52-557n expressly immunizes municipalities and their employees, officers and agents as follows from all civil liability for damages to person or property resulting from failure to make an inspection of any private property to determine if the property is in compliance with or in violation of any law or contains a hazard to health or safety:
(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent 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 a 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 the relevant circumstances[.]
(Emphasis added.) So written, this subsection bars all damages actions against municipalities and municipal employees, officers and agents for damages to persons or property resulting from the failure to inspect private properties for possible violations of the Fire Safety Code "unless the political subdivision had notice of such a 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 the relevant circumstances." Id.
The broad immunity from liability afforded to municipalities and their employees, officers and agents under Section 52-557n (b), like that afforded to local fire marshals and their agents under Section 29-298 (b), must typically be asserted, as these movants have done, as a special defense. This is so, to reiterate, because certain facts upon which the availability of such immunity depends are consistent with the elements of the plaintiffs' immunized claims, yet inconsistent with the defendant's liability on those claims even if their elements are proved at trial. Such facts must be specially pleaded in a special defense. Conn. Prac. Bk. § 10-50.
To prevail on this aspect of their Motion as to any of the plaintiffs' challenged counts, the movants must demonstrate that the claim presented in that count, as pleaded by the plaintiff, falls so clearly and unequivocally within the scope of the immunity established by Section 52-557n (b)(8) as to entitle them to judgment on that claim as a matter of law. To make such a showing in this case, where each of the plaintiffs' claims is based expressly upon conduct falling within the general scope of the immunity established by Section 52-557n (b)(8) — to wit, alleged failures by the Fire Marshals to conduct annual fire safety inspections of the Subject Premises to ensure compliance with the State Fire Safety Code — the movants must demonstrate that the conduct in question, as pleaded by the plaintiffs, did not take place under any special circumstances enumerated in the subsection in which immunity is unavailable. Here, more particularly, the movants must demonstrate that the Fire Marshals' alleged failures to conduct annual inspections of the Subject Premises to determine compliance with the State Fire Safety Code, as pleaded by the plaintiffs, did not take place either (1) when the Town "had notice of . . . a violation of law or . . . a fire safety hazard" in the Subject Premises or (2) when "such failure to inspect . . . constitute[d] a reckless disregard for health or safety under all the relevant circumstances." Unless a challenged count is so drafted as to eliminate any possibility that the Fire Marshals' alleged conduct fell within either such statutory exception, this aspect of the movants' Motion must also be denied with respect to that count.
A review of the challenged counts reveals that the plaintiffs have anticipated the movants' Section 52-557n (b)(8) immunity claim by specially pleading facts designed to defeat it. In each such count, more specifically, the plaintiffs have expressly alleged that the movants were negligent in the performance of their duties by "permitt[ing] and allow[ing] a dangerous condition to exist at the Subject Unit for an unreasonable period of time, despite actual notice of (sic) the Subject Unit did not have working, activated and/or properly placed and secured fire detection equipment[.]" Complaint, Count V, ¶ 80(o), Count VI, ¶ 90(o), Count VII, ¶ 100(o), Count VIII, ¶ 110(o), Count XIII, ¶ 80(o), Count XIV, ¶ 90(o), Count XV, ¶ 100(o), Count XVI, ¶ 110(o), Count XVII, ¶ 80(o), Count XVIII ¶ 90(o), Count XIX, ¶ 100(o), and Count XX, ¶ 110(o). This allegation, if proved at trial, would take the movants out from behind the shield of Section 52-557n (b)(8) immunity by establishing two statutory exceptions to its application. Since the absence of working fire detection equipment in the Subject Unit would clearly constitute both a violation of General Statutes § 29-292 (a) and the State Fire Safety Code and a hazard to public safety, actual notice of that condition would clearly establish that the Town "had notice of . . . a violation of law or . . . a fire safety hazard" in the Subject Premises, within the meaning of Section 52-557n (b)(8). The plaintiffs' challenged claims of negligence against the Fire Marshals and associated claims for negligence and direct statutory liability against the Town based upon alleged negligence by the Fire Marshals have thus been so pleaded as to state valid legal claims which, if proved as alleged, will not be barred by the immunity provisions of Section 52-557n (b)(8). Accordingly, the final claim presented in the movants' instant Motion must be also be denied as to each count to which it is addressed.
CONCLUSION
For all of the foregoing reasons, the movants' Motion For Summary Judgment on Counts Five through Twenty of the Complaint is hereby DENIED.
IT IS SO ORDERED this 28th day of April 2003.
Michael R. Sheldon, J.