Opinion
No. FST CV 07-5004775 S
November 22, 2010
Memorandum of Decision
On August 14, 2007, the plaintiffs, Mark Sanford, by and through his parent and next friend, Roseanne Sanford, and Roseanne Sanford, individually, commenced this action by service of process against, inter alia, the defendants Town of Greenwich (the Town) and the Greenwich Board of Education. In the operative pleading, which is the revised complaint dated January 15, 2010, the plaintiffs allege that on August 23, 2005, Mark Sanford, the minor son of Roseanne Sanford, was participating in a soccer practice on a field located on the grounds of Central Middle School in Greenwich. The practice was being conducted by a private soccer team that had secured permission to use the field from the Town. During this practice session, Mark Sanford caught his foot in a pot hole in the field, which caused him to fall and suffer physical injuries.
In her initial complaint, the plaintiffs also named the "Town of Greenwich Department of Parks and Recreation," "Central Middle School" and various town or board of education officials and employees as defendants. In her revised complaint, the only defendants named are the Town of Greenwich and the Greenwich Board of Education.
The plaintiffs allege that the Town operated Central Middle School and "was responsible for the care, maintenance, safety, supervision, and employing qualified personnel on the premises to ensure that the school environment was safe for individuals to enter, utilize and remain including but not limited to soccer fields, and [was] in possession of same." Moreover, the plaintiffs allege that the Town allowed the soccer field to be used for soccer practice and that it invited members of the public to use the field.
According to the operative complaint, Mark Sanford's injuries were caused by the negligence and carelessness of the Town, in that it: (1) caused, allowed and permitted the soccer field to be in a dangerous condition when it knew or should have known that it was unsafe; (2) failed to remedy the situation when it knew or should have known that the soccer field would create a dangerous and hazardous condition to those using the field; (3) failed to remedy or repair a large pot hole in the field; (4) failed to give warning or notice of the unsafe condition; (5) failed to supply a safe field for players to practice; (6) failed to make reasonable and proper inspections; (7) failed to have sufficient, adequate and reasonably trained personnel on duty to inspect, maintain, repair and keep the premises reasonably safe; (8) failed to provide adequate facilities and equipment and (9) failed to maintain adequately and properly the upkeep of the soccer field. Paragraphs eighteen through twenty of count one allege that the Town's governmental immunity, if any, has been abrogated by General Statutes § 52-557n(a)(1)(A), (B) and (C) because the Town: (1) is liable for the negligent acts and omissions of its employees who were acting within the scope of their employment at the time of the subject incident; (2) was performing acts from which it derived a special corporate profit or pecuniary benefit and (3) is liable for the creation and participation in the creation of a nuisance. As such, count one states a claim for negligence against the Town. In count three, Roseanne Sanford alleges, individually, that as a result of her son's injuries, she has been required to spend substantial amounts of money and "will continue in the future to have a loss of services and [incur] other expenses . . ."
The second count makes similar allegations against the Greenwich Board of Education. In the third count the plaintiff, Roseanne Sanford, seeks to recover the sums she expended in providing medical care to her son for his injuries.
On July 20, 2010, the Town and the Board of Education filed a motion for summary judgment on all counts, as well as a memorandum of law in support of their motion. The Town moves for judgment in its favor as a matter of law on the ground that there is no genuine issue of material fact that the acts alleged in the operative complaint are barred by governmental immunity. Attached to the Town's motion are: (1) the notarized affidavit of Joseph A. Siciliano, who is the director of parks and recreation for the Town; (2) the notarized affidavit of Timothy Coughlin, who is the "turf operations manager for the parks and trees division of the department of parks and recreation" in Greenwich; (3) an excerpt from the deposition transcript of Mark Sanford; (4) the notarized affidavit of Roland H. Gieger, who is the budget and systems director for the Town and (5) certified copies of the Town's budget for the period between July 1, 2007 — June 30, 2008.
The plaintiffs filed a memorandum of law in opposition to the Town's motion on September 22, 2010. Attached to the plaintiffs' memorandum of law in opposition are: (1) a series of applications to use the Town's soccer field that were filled out by U.K. Elite Soccer on August 10, 2005 and Summer Soccer Clinic on August 23, 2005, respectively; (2) a copy of a document depicting the Town's budget for the period between 2006 and the 2011 fiscal year; (3) uncertified excerpts from the deposition transcript of Peter Mandrus, the Town's recreation superintendent and (4) uncertified excerpts from the deposition transcript of Donald Mohr, the Town's recreation supervisor. On September 24, 2010, the Town filed a reply memorandum, which attaches an uncertified excerpt from the deposition transcript of Tom Greco, the Town's manager of business services for the department of parks and recreation; (2) uncertified copies of the Town's budget between the years 2006 and the 2011 fiscal year; (3) an uncertified excerpt from the deposition transcript of Mandrus and (4) an uncertified excerpt from the deposition transcript of Mohr. The court heard argument in this matter at short calendar on September 27, 2010. At that hearing the plaintiffs agreed that summary judgment could enter in favor of the Greenwich Board of Education on the second count of the complaint, conceding that the Board did not have control over the premises where the minor plaintiff was injured. The respective claims of the parties apply equally to the plaintiffs' first and third counts.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679 (2005). Nevertheless, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92 (2006). As neither side has raised any objection to the uncertified attachments offered by the opposing party, the court will consider all of the evidence presented by the parties.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006).
The Town's motion for summary judgment is based on its claims of governmental immunity. General Statutes § 52-557n(a)(2) provides in relevant part: "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." In Connecticut, municipalities have immunity "for the misperformance of ministerial acts, but [have] a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 306 (2010). Notably, on page fifteen of their memorandum of law in opposition, the plaintiffs concede that the allegations made in the operative complaint give rise to discretionary duties. Therefore, it is unnecessary for the court to delve into the issue of whether the operative complaint alleges ministerial or discretionary acts. Accordingly, it becomes evident that, in the present case, the Town will be immune from liability unless one of the exceptions to the governmental immunity doctrine applies. The plaintiffs argue that the Town is not entitled to governmental immunity for two reasons. First, the plaintiffs contend that the identifiable person-imminent harm exception applies. Second, the plaintiffs argue that the Town was engaged in a proprietary function because it received financial remuneration for renting the Central Middle School soccer field. Each of these arguments will be addressed in turn.
I
IDENTIFIABLE PERSON-IMMINENT HARM EXCEPTION
The Town first contends that there is no genuine issue of material fact that Mark Sanford does not qualify for the identifiable person-imminent harm exception to governmental immunity. In the memorandum of law in support of its motion, the Town notes that the Connecticut Supreme Court has only extended this exception to school children who are attending school during school hours, and Mark Sanford was not legally required to be on school grounds when he was injured. Consequently, the Town argues that the identifiable person-imminent harm exception does not apply to the present case. In response, the plaintiffs argue that Mark Sanford can be considered an identifiable person subject to imminent harm. Specifically, the plaintiffs argue that "the defendant knew exactly where the minor plaintiff would be expected to be performing (soccer field at Central Middle School), exactly the type of activity the minor plaintiff was to be doing there (soccer), and the exact time when he was allowed to be there pursuant to the field user permit issued to the soccer program." The plaintiffs further contend that it also was foreseeable that the minor plaintiff would suffer this type of injury because the Town's employees had failed to inspect properly the subject soccer field.
"By its own terms, [the identifiable person-imminent harm exception] requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Internal quotation marks omitted.) Cotto v. Board of Education, 294 Conn. 265, 273 (2009). "The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals . . . Thus far, the only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours . . . In determining that such schoolchildren were within such a class, we focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Citations omitted; internal quotation marks omitted.) Id., 274.
According to his deposition testimony, on the date of his injury, Mark Sanford was attending a soccer camp that he voluntarily signed up for in order to improve his soccer skills. Mark Sanford also testified that not all of the students enrolled in the camp were students of Central Middle School. Furthermore, according to the undisputed attestations in the affidavit of Ellen Flanagan, the deputy superintendent of the Greenwich public schools, the Greenwich schools were closed on August 23, 2005 due to summer vacation. Accordingly, it is clear that Mark Sanford was not legally required to be at Central Middle School on the date of the subject incident. As stated by our Supreme Court, when applying the identifiable person-imminent harm exception to governmental immunity, "[t]here is a significant distinction . . . between a program in which participation is encouraged and one in which it is compelled . . . Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred . . ." (Citation omitted; emphasis in original.) Grady v. Somers, 294 Conn. 324, 356-57 (2009). For instance, our Supreme Court has held that a parent picking up her child from an after school program did not qualify for the identifiable person-imminent harm exception even though her injuries occurred on school grounds. The reason for this decision was that "the plaintiff was not compelled statutorily to relinquish protective custody of her child. No statute or legal doctrine required the plaintiff to enroll her child in the after school program; nor did any law require her to allow her child to remain after school on that particular day . . . The plaintiff's actions were entirely voluntary, and none of her voluntary choices imposes an additional duty of care on school authorities . . ." Durrant v. Board of Education, 284 Conn. 91, 108 (2007). As Mark Sanford's presence at the soccer camp was completely voluntary, there is no genuine issue of material fact that he does not fit within the narrow contours of the identifiable person-imminent harm exception as articulated by the Connecticut Supreme Court.
II
PROPRIETARY FUNCTION
Next, the Town argues that there is no genuine issue of material fact that it was not engaged in a proprietary function when it permitted members of the public to use the soccer field at Central Middle School. While the Town admits that it charges a nominal fee for the use of its athletic fields, the Town contends that this fee does not come close to meeting its expenses in maintaining the facilities. Consequently, the Town argues that it could not have been engaging in a proprietary function as a matter of law. In response, the plaintiffs point to the fact that the Town has received substantial revenue from allowing outside organizations to use its athletic fields. Furthermore, the plaintiffs contend that because the Town "does not have a practice of inspecting its fields and turf before or after issuing a field user permit . . . the [Town does] not have any significant overhead related to their field user permit practice [and] the revenue generated from the field user permit practice, clearly and obviously, exceeded the costs of the activity, and as a matter of law, immunity is abrogated." The plaintiffs further argue that there is a close connection between the Town's proprietary acts and the injuries suffered by Mark Sanford. Consequently, the plaintiffs contend that the Town is not entitled to governmental immunity in the present case.
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 . . . (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . ." There is no definition of the terms "special corporate profit" or "pecuniary benefit" in § 52-557n. Nevertheless, according to the Connecticut Supreme Court, "the use of these phrases was an attempt to codify municipal common-law liability for acts performed in a proprietary capacity." Considine v. Waterbury, 279 Conn. 830, 844 (2006). When attempting to discern whether the Town was engaged in a proprietary or governmental function, it is helpful to examine the legal discussion provided by our Supreme Court in Considine. "If a municipality is acting only as; the agent or representative of the state in carrying out its public purposes . . . then it clearly is not deriving a special corporate benefit or pecuniary profit. Two classes of activities fall within the broader category of acting as the agent of the state: [1] those imposed by the [s]tate for the benefit of the general public, and [2] those which arise out of legislation imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large . . . For example, the maintenance of the public peace or prevention of disease would fall within the first class . . . while the maintenance of a park system would fall within the second class . . . While the distinction remains clear with regard to the first class of activities, it becomes more difficult to discern in the second class of activities. For example, the second class of activities encompasses functions that appear to be for the sole benefit of a municipality's inhabitants, but nevertheless provide indirect benefits to the general public because the activities were meant to improve the general health, welfare or education of the municipality's inhabitants . . . The municipality may even charge a nominal fee for participation in a governmental activity and it will not lose its governmental nature as long as the fee is insufficient to meet the activity's expenses." (Citations omitted; internal quotation marks omitted.) Id., 845-47.
"On the other side of the distinction, a municipality generally has been determined to be acting for its own special corporate benefit or pecuniary profit where it engages in an activity for the particular benefit of its inhabitants . . . or if it derives revenue in excess of its costs from the activity." (Citation omitted; internal quotation marks omitted.) Considine v. Waterbury, supra, 279 Conn. 847. "[I]t has been stated that a municipality is engaged in a proprietary function when it acts very much like private enterprise . . ." (Internal quotation marks omitted.) Id., 848. "In the specific context of leasing municipal property, [the Connecticut Supreme Court] and courts of other jurisdictions generally have concluded that a municipality acts in its proprietary capacity when it leases municipal property to private individuals." Id., 849. "Accordingly, a municipality may be held liable if there is an inextricable link or inherently close connection between its negligent act or omission and the rental of its property." (Internal quotation marks omitted.) Id., 850.
An examination of the evidence submitted by the parties reveals the following undisputed facts. According to the affidavit of Joseph Siciliano, the Town issued a field user permit to an organization known as Fairfield Holiday Camp, d/b/a Summer Soccer Clinic, for the use of the ball field at Central Middle School for the period between August 22 and 26, 2005. The Town charged a fee of $12 for each of the thirty-nine non-scholarship participants in the soccer camp run by Fairfield Holiday Camp. As such, the Town collected a total fee of $448 for the weekly rental of the Central Middle School soccer field. This $12 per person fee was charged for the use of all the athletic fields in the town of Greenwich. During the 2005-2006 fiscal year, the Town collected revenue totaling $136,759 for the use of its fifty-nine athletic fields. These funds were deposited into the Town's general operating account. During the 2005-2006 fiscal year, the Town also spent $1,046,851 for the upkeep of the athletic fields. Consequently, it is clear that although the Town derived revenue from allowing outside organizations to use its athletic fields during the 2005-2006 fiscal year, these collected funds did not come close to meeting the amount of money spent by the Town on field maintenance during that fiscal year. The Town's total budget for all of the other fiscal years from 2005 to the present date show that, on a regular basis the Town spends considerably more money on field maintenance than it collects in user fees. The information presented by the Town does not break down revenue and expenses with respect to each of the fifty-nine athletic fields.
The Town's 2005-2006 fiscal year began on July 1, 2005, and ended on June 30, 2006.
In paragraph twenty-one of his affidavit, Siciliano attests that in August 2005, the Town did not do an accounting based on individual fields. Gieger makes a similar attestation in paragraph eight of his affidavit.
The fact that the Town operated its athletic fields at a loss leads to the conclusion that Town was engaging in a governmental function. As stated by our Supreme Court, a "municipality may even charge a nominal fee for participation in a governmental activity and it will not lose its governmental nature as long as the fee is insufficient to meet the activity's expenses." Considine v. Waterbury, supra, 279 Conn. 847; see also Couture v. Board of Education, 6 Conn.App. 309 (1986) (holding that sponsoring a high school football game was a governmental function stemming from the town's duty to provide education even though spectators paid a small admission fee to watch the game).
The field application form has been attached to the plaintiffs' memorandum of law in opposition. From the text of this document, it appears that the Town did not lease its athletic fields to private organizations, but rather licensed their use. Our Supreme Court has stated that "if property is not held and used by the city for municipal purposes exclusively, but in considerable part as a source of revenue, the city is responsible, as a private owner would be, for injury sustained through its negligence . . . [T]he city is responsible for its negligent acts or omissions in connection with the property rented." (Citations omitted.) Carta v. Norwalk, 108 Conn. 697, 701-02, 145 A. 158 (1929). "In order to deprive a municipal corporation of the benefit of governmental immunity, the act or function must involve special corporate benefit or pecuniary profit inuring to the municipality. If this element is present, the fact that the revenue or profit is applied to the maintenance of the property and the reduction of the debt incurred in its construction or acquirement, or otherwise ultimately to the benefit of the public, is not sufficient to create the immunity." Id., 702. "To remove the benefit of the principle, however, the operation must contemplate and involve revenue of such amount and nature as to signify a profit resulting therefrom, as distinguished from the imposition of such a nominal or small fee or charge as may fairly be regarded as a mere incident of the public service rendered, such as the fees imposed for the use of the swimming pool facilities . . ." Id.
Although Carta v. Norwalk was decided long before the legislature passed § 52-557n(a)(1)(B), the discussion in this case is relevant because our Supreme Court has determined that § 52-557n(a)(1)(B) codified the common law. Considine v. Waterbury, supra, 279 Conn. 844. Moreover, the Supreme Court affirmatively cited Carta in its Considine opinion.
Under these principles, the issue of the Town's governmental immunity turns on the question of whether the revenue derived from allowing outside organizations to use its athletic fields is enough to reach the conclusion that the Town was potentially engaged in a proprietary function. In Williams-Crump v. Board of Education, Superior Court, judicial district of Middlesex, Docket No. CV 07 5002093 (February 20, 2009, Taylor, J.), the plaintiff, a player on an AAU basketball team, alleged that he suffered a knee injury while practicing in the Middletown High School gymnasium during April vacation week. The defendant Middletown Board of Education moved for summary judgment on the ground that it had immunity for its discretionary governmental acts. The plaintiff, however, argued that the Board of Education had engaged in a proprietary function because it rented the high school gymnasium to the AAU basketball team. In denying the Board of Education's summary judgment motion, the court stated that "the plaintiffs have presented a check from the [AAU team] to the Middletown board of education in the amount of $112.50 for gym usage . . . Although this is a small sum in the context of the Middletown board of education budget, it is evidence of the collection of fees, the scope and proprietary effect of which has yet to be determined . . . A single payment of $112.50 for use of the Middletown High School gym by a private group is minimal proof of special corporate benefit or pecuniary profit inuring to the municipality . . . Considering the evidence of gym usage in a light most favorable to the plaintiffs, it may be inferred that the gym has been used by the board of education for a proprietary function." (Citations omitted; Internal quotation marks omitted.) Id. However, in Williams-Crump, the court makes no mention of any evidence offered by the defendant municipality as to the costs it incurred in maintaining the high school gym in question. In the present case, the evidence offered by the Town clearly establishes a consistent and continuing pattern of operating its athletic fields at a loss. Such evidence establishes that the propriety function exemption to the Town's governmental immunity is not available to the plaintiffs in this case.
The court finds that the facts require a finding that the Town was not acting in a proprietary capacity when it allowed a soccer camp to use the Central Middle School field for a fee. Therefore, the court finds the Town's governmental immunity cannot be abrogated on the basis of the plaintiffs' claim that the Town was engaged in a propriety function.
III
NUISANCE
Paragraph twenty in count one of the operative complaint makes reference to General Statutes § 52-557n(a)(1)(C), which provides that municipalities can be held liable for the creation of a nuisance. However, there is no separate count alleging facts supporting a nuisance claim. In the memorandum of law in support of its motion for summary judgment, the Town argues that "to the extent the plaintiffs are deemed to have alleged a nuisance cause of action, judgment must enter in favor of the defendants as a matter of law because there is no allegation that the defendants by some positive act created the condition that is alleged to constitute a nuisance."
"[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages . . . In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance." (Citations omitted; internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146 (2010).
The court finds that the plaintiffs' complaint fails to allege that the Town created the condition which led to the minor plaintiff's injuries. Furthermore, the plaintiffs failed to brief the elements of a nuisance claim in her memorandum of law in opposition to the motion for summary judgment. Accordingly, the court finds that the plaintiffs have failed to sufficiently allege a nuisance claim.
The court finds that the defendants are entitled to summary judgment with respect to each of the three counts of the plaintiffs' revised complaint. Accordingly, the defendants' motion for summary judgment is granted.