Opinion
No. CV01 0453299S
July 7, 2004
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #172.01
The defendant Town of New Milford (Town) has moved for summary judgment on Count One of the plaintiff's Amended Complaint, dated March 11, 2003. Count One sets forth a cause of action for negligence against the Town pursuant to General Statutes § 52-57n. The defendant claims that there is no genuine issue of material fact that the negligent acts or omissions complained of require the exercise of discretion, and, therefore, the Town is entitled to qualified governmental immunity on said claims. The Town additionally argues that because the Town was providing a service pursuant to a mandate of the state, namely the provision of Public Education, the doctrine of sovereign immunity applies to bar the plaintiff's claims.
This action arose out of an incident which occurred on October 24, 2000, at the Old New Milford High School, wherein the decedent, Luis Ernesto Perez Cancinos a/k/a/ Juan Flores fell through the surface of the roof of the subject high school, sustaining injuries which resulted in his death. The plaintiff administratrix brought suit alleging separate causes of action in five separate counts against the Town, OG Industries, Inc., ACM Consulting Corporation, Fletcher-Thompson, Inc. the architect and Premier-New York, Inc, a roofing company. The writ, summons and complaint was dated July 3, 2001, and the complaint was thereafter amended on March 11, 2003.
The plaintiff alleges that the fall, losses and damages suffered by the decedent occurred as a direct and proximate result of the negligence, omissions, carelessness and/or heedlessness of the Town, its agents, servants or employees. Essentially, the plaintiff claims that the Town was negligent in that it permitted the roof to sustain water damage over a period of time, and that when it made the decision to remove and replace the existing roof the Town failed to take the necessary steps to ensure that the roof was safe to walk upon. The plaintiff further claims that the Town's negligence subjected the decedent Flores, who was an identifiable person, to imminent harm. At the time of his fatal fall, Flores was employed by Premier-New York, Inc., who had been contracted to perform roof renovations to the school.
The standard for granting a motion for summary judgment is well-settled. "Pursuant to Practice Book § 17-49, 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 mailer of law . . . A material fact is a fact which will make a difference in the result of the case." Krevis v. Bridgeport, 80 Conn. App. 432, 434-35, 835 A.2d 123 (2003), quoting Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003); see also Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998).
In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id.
I GOVERNMENTAL IMMUNITY A. MINISTERIAL ACTS AND DISCRETIONARY ACTS
At common law, Connecticut municipalities enjoy governmental immunity from liability for the tortious acts of its officers, agents and employees. "A municipality itself was generally immune from liability for its tortious acts at common law . . . Gordon v. Bridgeport Housing Authority, [ 208 Conn. 161, 165, 544 A.2d 1185 (1988)]. The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity. Williams v. New Haven, [ 243 Conn. 763, 766-67, 707 A.2d 1251 (1998)]." CT Page 10514 Segreto v. Bristol, supra, 71 Conn. App. 844, 849-50, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). Governmental immunity may, however, be abrogated by statute. The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities. Ryskiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). General Statutes § 52-557n creates an exception to governmental immunity and allows a plaintiff to bring a direct cause of action against a municipality for the negligent acts of the municipality or any employee, officer or agent, therefore abrogating governmental immunity. Spears v. Garcia, 263 Conn. 22, 25-26, 818 A.2d 37 (2003). General Statutes § 52-557n provides:
(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.
"Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents; negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit and acts which constitute the creation or participation in the creation of a nuisance. General Statutes § 52-557n(a). The section goes on to exclude liability for acts or omissions of any employee or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct and negligent acts that involve the exercise of judgment or discretion. General Statutes § 52-557n(a)(2)(A)(B). The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property. General Statutes § 52-557n(b). (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 720-21, 755 A.2d 317 (2000)." Segreto v. Bristol, supra, 71 Conn. App. 850; see also Bazinet v. Barry, Superior Court, judicial district of Tolland at Rockville, No. CV 03-0082306 (Mar. 11, 2004) (Scholl, J.).
Pursuant to General Statutes § 52-557n the legislature has imposed liability on a town for the negligence of its employees and officials and waived its common-law immunity to that extent. However, while the legislature has abrogated common-law governmental immunity, it has retained the common-law doctrine of qualified immunity for negligent acts or omissions which require the exercise of judgment or discretion. "[A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Internal quotation marks omitted.) Doe v. Board of Education, 76 Conn. App. 296, 300, 819 A.2d 289 (2003). "The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Segreto v. Bristol, supra, 71 Conn. App. 851. The exercise of judgment is the hallmark of discretionary acts for which a public officer would have qualified immunity from a negligence claim. Lombard v. Peters, 252 Conn. 623, 628, 749 A.2d 630 (2000).
"[T]he case law demonstrates that the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint . . . The duty . . . will be governmental [and therefore discretionary] if the nature and character of act or function be such . . ." (Citations omitted; internal quotation marks omitted.) Segreto v. Bristol, supra, 71 Conn. App. 854-55.
Allegations that defendants failed to make reasonable and proper inspection of premises where a plaintiff lived to discover defective fire alarms constituted a discretionary act for which governmental immunity applies. Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989). In Evon v. Andrews, the court held that the inspector's actions were discretionary even though an inspection by definition involved the checking and testing in accordance with established standards. The court ruled that what constituted a reasonable, proper or adequate inspection involved the exercise of judgment. Id. Further, no matter how objective the standard, an inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of the inspector's judgment. Id.
In the present matter, the plaintiff has alleged that the Town was negligent. The defendant argues that the negligent actions alleged may be grouped into three categories: (1) that the Town permitted the existing roof to sustain water damage; (2) that the Town failed to ensure that the roof was in a safe condition before allowing people to work on it; and (3) that the Town failed to warn plaintiff's decedent of the unsafe condition of the roof. These allegations are similar to the allegations made in Evon v. Andrews, supra. The court agrees with the defendant Town of New Milford in finding that all of these allegations involve the use of discretion and, therefore, do not fall without the exception of governmental immunity. The plaintiff has failed to cite any statute, regulation, ordinance or directive which in any way would serve to create a basis for the necessary claim that the defendant Town's acts were not discretionary, but rather were ministerial. There is no document that states that the Town was required to have the existing roof demolished and replaced. The decision by the Town to replace the entire roof was a discretionary one.
B. GENERAL STATUTES § 52-557n(b)(8)
The plaintiff argues that even if the Town's actions were discretionary General Statutes § 52-557n(b)(8) is applicable. General Statutes § 52-557n(b)(8) provides:
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.
The plaintiff notes that regardless of whether the Town's actions were discretionary, the Town is liable under § 52-557n(b)(8), as the Town had notice of the hazardous condition of the roof of the school it owned when it was notified that the existing roof structure had sustained water damage and could no longer hold loads. The plaintiff contends that the only thing the Town could do once it received this notice of the damaged structure, was to have the existing structure demolished and replaced.
The defendant argues that § 52-557n(b)(8) does not create additional liability and cites the legislative debate surrounding the statute. See, e.g., 29 H.R. PROC, Pt. 16, 1986 SESS, p. 5930, remarks of Representative Jaeckle. The defendant refers to § 52-557n(b)(8) as a "blanket immunity." 29 H.R PROC. supra, pg. 5923. See Elliot v. Waterbury, 245 Conn. 385, 397-401, 715 A.2d 27 (1998) (discussing legislative history of § 52-557n(b), more particularly § 52-557n(b)(6)). The court agrees that § 52-557n(b)(8) immunizes a municipality from civil liability for damages to person or property resulting from the failure to make an inspection of 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, "unless the political subdivision had notice of such a violation of law or such 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." § 52-557n(b)(8). The defendant, however fails to comment on the words of the statute "other than property owned or leased by or leased to such political subdivision" when arguing that immunity applies and that § 52-557n(b)(8) is not applicable.
The court approaches the questions raised regarding the interpretation of statutes according to the well-established principles of statutory construction designed to further the fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986). The court must look to the words of the statute; to the legislative history; the circumstances surrounding its enactment; to the legislative policy it was designed to implement; and to its relationship to existing legislation and any common-law principles governing the same subject matter. Dart Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987); Texaco Refining Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987); State v. Jason B., 248 Conn. 543, 729 A.2d 760 (1999).
With any issue of statutory interpretation, our initial guide is the language of the statute itself. Frillici v. Westport, 231 Conn. 418, 430-32, 650 A.2d 557 (1994). If its language in drafting and enacting a statute is clear and unambiguous, there is no room for alteration of the legislative decision by the judicial branch . . . Ambriose v. William Raveis Real Estate, Inc., 226 Conn. 757, 764-65 (1993). It is assumed that the words themselves express the intent of the legislature. Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). "A corollary of the above rule of construction is that the intent of the legislature is to be found not in what the legislature meant to say, but in the meaning of what it did say." Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981).
Public Act 03-154, effective October 1, 2003, also provides:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
The legislature in enacting § 52-557n(b)(8) provided for municipal immunity in situations where the property is owned or leased by the municipality and the municipality 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.
The court therefore, must review the materials and affidavits provided by the parties to determine if (1) the Town of New Milford had notice of a violation of law or a hazard; (2) whether it failed to inspect or inadequately or negligently inspected; and (3) this constituted a reckless disregard for the decedent's health or safety.
On July 28, 2000, the Town was notified by the architect, Fletcher-Thompson, Inc., inferring that the roofs were safe and would support "live loads and equipment." (Affidavit of G. Peter Jennewein, Jennewein Architects and Planners, Inc.)
The Town received notice in early August 2000 of certain existing roof deck areas having suffered water damage. A structural engineer was sent to examine the roof decking. The report of the structural engineer does not state that the Town was required to have the entire existing roof structure demolished and replaced. The report concluded that many areas of the roof were undamaged and that even where damage had occurred, the roof decking did not need to be entirely replaced. There is, a factual dispute as to whether Fletcher-Thompson Inc.'s conclusions were accurate and whether it should have performed additional subsequent inspections to warn the Town that the roof was not safe, was dangerous and could not support person like the decedent without the use of safety devices.
Even if one were to concede the Town had notice of a hazard and that there was a negligent or inadequate inspection performed in its behalf, the plaintiff would need to show that the Town's actions constituted a reckless disregard for the decedent's health or safety under all relevant circumstances to enable the plaintiff to pierce the Town's governmental immunity.
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent. Begley v. Kohl Madden Printing Ink Co., 157 Conn. 445, 450-51, 254 A.2d 907 (1969), quoting 2 Restatement, Torts § 500, comment [g]." (Internal quotation marks omitted.) Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (1988). More recently, we have described recklessness as "a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence.
"The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . ." Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003).
"The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Id.; Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
The court, in reviewing the affidavits and materials submitted by the parties finds that the Town was not reckless in the manner it proceeded to replace the existing roof. The Town employed professionals to check the structural integrity of the school's roof structure and to make the appropriate repairs. Its reliance on these professionals was reasonable and prudent and was not reckless.
C. IMMINENT HARM TO IDENTIFIABLE PERSON
Lastly, the plaintiff argues that even if the court finds that the acts of the defendant Town of New Milford were discretionary and therefore entitled to protection from liability, the plaintiff has alleged the necessary elements to seek an exception to the immunity by alleging that the failure of the Town to act, subjected an identifiable person (the decedent) to imminent harm.
"The [identifiable person-imminent harm] exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 710, 755 A.2d 317 (2000). "Our courts have, however, applied that exception in a series of cases involving injuries to schoolchildren." Prescott v. Meriden, 80 Conn. App. 697, 702, 836 A.2d 1248 (2003). See, e.g., Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998); Burns v. Board of Education, 228 Conn. 640, 648-49, 638 A.2d 1 (1994); Colon v. Board of Education, 60 Conn. App. 178, 184-85, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). Our courts have determined that "schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." Purzycki v. Fairfield, supra, 109. In addition, the exception has been applied to a firefighter in uniform waiting in the staging area one block away from where the firefighter would march in a parade. Tryon v. North Branford, supra, 710. "The decisions also make clear . . . that in order to be an identifiable or foreseeable victim, there must be some basis upon which the defendant could have distinguished the plaintiff from other members of the general public." Skrobacz v. Sweeney, Superior Court, judicial district of Danbury, Docket No. CV 01 0344015 (October 2, 2003, White, J.). See also, Johnson v. City of New Haven, Superior Court, Judicial District of New Haven at Meriden, No. CV 02 0282191-S, (Feb. 23, 2004) (Tanzer, J.).
"In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." Burns v. Board of Education, supra, 228 Conn. 647. An imminent harm is a "harm ready to take place within the immediate future." Tryon v. North Branford, supra, 58 Conn. App. 712. The dangerous condition also must be of limited duration and geographical scope and the risk of harm must be significant and foreseeable. Purzycki v. Fairfield, supra, 244 Conn. 110.
Our Supreme Court in Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979), suggested that the proper means to expose a municipality to liability in cases alleging imminent harm to identifiable persons is through the indemnification provisions of § 7-465. See Gaudino v. Town of East Hartford, Superior Court, Judicial District of Tolland, Complex Litigation Docket at Tolland, No. X07-CV01 0081310S (Sep. 10, 2003) (Sferazza, J.), 35 Conn. L. Rptr. 448; see also, Johnson v. City of New Haven, supra, Superior Court, Judicial District of New Haven at Meriden, No. CV 02 0282191-S (Feb. 23, 2004) (Tanzer, J.).
"Indeed, under Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), the town has no direct common-law liability. The holding of Williams is that town liability only arises by statute. Therefore, one must look to § 52-557n to define that direct liability and cannot rely on common-law exceptions regarding employee immunity." Gaudino v. Town of East Hartford, supra.
"When the Tort Reform Act of 1986, which spawned § 52-557n, was enacted, our legislature chose to omit the imminent harm to identifiable persons exception, applicable under the common law to employees, from § 52-557(n)(a) which pertains to the municipality itself. That exception to qualified immunity for town servants has existed since Sestito v. Groton, supra, was decided in 1979. If the legislature wished municipalities to be subject to such an exception to governmental immunity, one would have expected to see that exception explicitly stated along with the other exceptions which were set forth. In short the common-law imminent harm exception to qualified immunity for municipal employees is inapplicable to the direct liability imposed against a municipality under § 52-557n." Id.
This issue appears to have been put to rest in the recent Supreme Court case of Pane v. City of Danbury, 267 Conn. 669, 841 A.2d 684 (2004). In Pane, supra, at 686 n. 9, the Court stated ". . . that there is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself `where 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' . . . That exception does not apply in this case because the claims against Merullo (the employee) have been withdrawn." Id.
"In Spears v. Garcia, supra, 263 Conn. 29, we concluded that General Statutes § 52-557n allows a plaintiff to bring a direct cause of action for negligence against a political subdivision of the state. Section 52-557n provides in relevant part that 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 . . . The plaintiff makes no claim, however, that the tort of invasion of privacy belongs to the class of negligent acts or omissions covered by the statute.
"We note that there is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself `where 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 . . .' (Citation omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). That exception does not apply in this case because the claims against Merullo have been withdrawn." Pane v. City of Danbury, 267 Conn. 669, 686 n. 9, 841 A.2d 684 (2004).
Thus, the exception to the defense of governmental immunity relied upon by the plaintiff does not apply in this case since the only defendant is the Town of New Milford. Since the exception does not apply, the defense of governmental immunity is applicable to the plaintiff's claim. See Coggins v. City of New Haven, Superior Court, Judicial District of New Haven at New Haven No. CV00-0443858 (May 26, 2004) (Thompson, J.); 37 Conn. L. Rptr. 3 (July 5, 2004).
Even if the imminent harm qualification applied to direct liability of towns under § 52-557n generally, it would be unavailable to the plaintiff because the Town and its Building Committee were unaware of exactly what areas of the roof had suffered water damage in the past and it was not determined how much and in what areas this damage had occurred. Likewise, it was unknown whether the roof would ever give way. It was similarly unknown that the decedent would be an employee of the roofer and would be on the roof at the time the roof portion gave way. It was unknown, in fact, that anyone would be on the roof when the particular section of roof collapsed on October 25, 2000.
II CONCLUSION
The court, for the reasons stated herein, finds that the defendant Town of New Milford is entitled to governmental immunity. Accordingly, the defendant's motion for summary judgment is hereby granted.
THE COURT
By Arnold, J.