Opinion
No. CV02-0172369S
September 21, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#174)
This is a case arising from the allegedly defective construction and inspection of a home in Watertown, Connecticut. The plaintiffs, Verdi and Anife Vejseli, have alleged the following relevant facts in their complaint dated June 17, 2002. The plaintiffs sought to purchase a newly-constructed residence from Gani and Myzejen Pasha (the Pashas). As part of the process for purchasing the home, Watertown building officials inspected the residence and represented to the plaintiffs that the property and structures therein were in substantial conformity with the regulations of both the town and the state. The town issued a certificate of occupancy for the residence. The plaintiffs and the Pashas completed the closing of sale on or about June 27, 2001. Thereafter, on or about February 5, 2002, the residence suffered severe water damage after an interior plumbing pipe burst. The plaintiffs maintain that the pipe burst as a result of freezing due to a complete absence of insulation surrounding the pipe, and allege that the Pashas constructed the house in violation of the building code, fire code, statutes, rules, laws, orders and ordinances of both the State of Connecticut and the Town of Watertown.
The plaintiffs filed a thirteen-count complaint against the Pashas; the building official for the Town of Watertown, Richard Fusco; the assistant building official for the Town of Watertown, Joel Skilton; and the Town of Watertown. The plaintiffs allege in count ten that Fusco and Skilton in their official capacities were reckless in their representations that the premises were in substantial compliance with applicable building codes; in count eleven that the Town of Watertown acted in a reckless and wanton disregard of health or safety pursuant to General Statutes § 52-557n(b)(7) in issuing the certificate of occupancy based on the building officials' representations; and in count twelve that the Town of Watertown acted in a reckless and wanton disregard for health or safety in the issuance of the certificate of occupancy, in the performance of its duty to hire employees, in its failure to require proper licensure and education of its employees, and in its failures to follow reasonable hiring policies and to supervise its employees.
On July 6, 2007, the defendants Fusco, Skilton and the Town of Watertown (defendants) filed a document seeking permission to file a motion for summary judgment, a motion for summary judgment with respect to counts ten, eleven and twelve, and a memorandum of law in support. On July 19, 2007 the plaintiffs filed an objection to the permission to file summary judgment, an objection to the summary judgment and a memorandum of law in support. Pursuant to the defendants' request, this court granted permission for the defendants to file the motion for summary judgment. The defendants move for summary judgment on the following grounds: That the plaintiffs' claims are barred by sovereign immunity; that the plaintiffs' claims are barred by governmental immunity under common-law principles as well as under General Statutes § 52-557n; that the claim against the defendants Fusco and Skilton in their official capacities is a claim against the Town of Watertown itself; and that General Statutes § 52-557(b)(7) does not create a private cause of action against a municipality. This matter was argued on the short calendar on July 23, 2007.
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.) Colangelo v. Heckelman, 279 Conn. 177, 182, 900 A.2d 1266 (2006). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006).
Our Supreme Court has stated that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
At the outset this court holds, in light of its decision on the defendants' motion to dismiss released this same day, that the plaintiffs' claims are not barred by sovereign immunity because there is no indication that the actions of the municipal defendants, or the municipality itself, operate to control the activities of the state or subject it to liability. No useful purpose would be served by further elaborating on this issue within the context of the present motion for summary judgment, as it is fully analyzed in this court's memorandum of decision on the motion to dismiss. The court will now address the defendants' additional grounds for summary judgment. The defendants argue that they are entitled to governmental immunity as to the tenth, eleventh and twelfth counts of the plaintiffs' complaint, and that the plaintiffs have failed to advance any statutory basis for abrogating the defendants' immunity. The plaintiffs counter that the relevant statutory sections under which the defendants have been sued unequivocally impose liability on municipalities for certain reckless acts or omissions. "The issue of governmental immunity is simply a question of the existence of a duty of care, and [the Supreme] [C]ourt has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). "[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . ." (Internal quotation marks omitted.) Colon v. Board of Education, 60 Conn.App. 178, 181, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).
"The tort liability of a municipality has been codified in [General Statutes § ]52-557n. Section 52-557n(a)(1) provides that `[e]xcept 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 . . .' Section 52-557n(a)(2)(B), extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by `negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.'" Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006).
"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Internal quotation marks omitted.) Violano v. Hernandez, supra, 280 Conn. 318-19. The first relevant inquiry, then, in deciding whether governmental immunity is applicable to the facts as alleged in the present case is whether the acts of the municipal defendants or municipality were discretionary or ministerial. "Generally, a municipal employee is liable for the misperformance of ministerial acts, but has 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 contract, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Id., 318.
In the present case, it is clear that the defendants' acts were discretionary, and not ministerial, in nature. The defendants' duties, including evaluating and inspecting properties to ensure compliance with applicable laws undoubtedly involve the exercise of judgment. See, e.g., Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (duties to conduct a reasonable and proper inspection, to proscribe remedial action if necessary, and to decide whether a building falls below a certain standard involve the exercise of judgment and are discretionary acts); Duffy v. Wallingford, 49 Conn.Sup. 109, 118, 862 A.2d 890 (2004) (issuing a building permit and certificate of occupancy considered discretionary acts); Tynik v. Redcoat Home Builders Inc., Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 98 0488994 (March 22, 2002, Aurigemma, J.) (holding that the acts of conducting building inspections and issuing certificates are analogous to enforcing health, housing and fire codes, and, as such, are discretionary acts). This court agrees with the ample authority on this issue, and the law is clear that the defendants were engaged in discretionary acts in carrying out their duties as municipal building officials. Consequently, governmental immunity is applicable in the present case.
The court now turns to the defendants' specific claim regarding General Statutes § 52-557n(b)(7). In their motion for summary judgment, the defendants argue that this statute does not create a cause of action against a municipality, while the plaintiffs counter that a private cause of action is created by the clear language of this section. The court begins its analysis with the language of the relevant statutes at issue. General Statutes § 52-577n(a)(1) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . ." General Statutes § 52-557n(b) provides in relevant part: "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 . . . (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 . . ." The issue in the present case is whether the "reckless disregard" clause in § 52-557n(b)(7) functions as an exception to municipal immunity.
The court is persuaded that the plain language of § 52-557n(b)(7) functions as an exception to municipal immunity. Under the plain meaning rule, "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes." General Statutes § 1-2z. Here, the plain meaning of subsection seven is clearly to provide immunity except in the delineated situation where the action or inaction constituted reckless disregard for health or safety. There is nothing unclear or ambiguous concerning § 52-557n(b)(7). The court notes that the present "reckless disregard" clause would be rendered completely meaningless if not given the effect of abrogating governmental immunity in the situation specifically delineated by the legislature. "Every word and phrase is presumed to have meaning, and [the Supreme Court] [does] not construe statutes so as to render certain words and phrases surplusage." (Internal quotation marks omitted.) Vibert v. Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002). Based upon the language of § 52-557n(b)(7) when compared with the other subsections comprising § 52-557n(b), it is evident that the legislature clearly intended § 52-557n(b)(7) to have a distinct and different effect or meaning.
The municipal immunity statute, § 52-557n et seq., and the interplay between subsections (a) and (b) of § 52-557n have previously been analyzed by both our Appellate Court and our Supreme Court. "[S]ubsection (a) of § 52-557n abrogates the common-law governmental immunity of a municipality . . . Subsection (b) of § 52-557n provides that `[n]otwithstanding . . . subsection (a),' a municipality `shall not be liable' if certain conditions are met. [The Supreme Court] [concludes] that this language plainly and unambiguously provides exceptions to the liability imposed by subsection (a) of the statute and, thus, functions to limit, rather than expand the legislative abrogation of common-law governmental immunity contained in § 52-557n." (Citations omitted; emphasis in original.) Martel v. Metropolitan District Commission, 275 Conn. 38, 59, 881 A.2d 194 (2005). In Spears v. Garcia, 263 Conn. 22, 33, 818 A.2d 37 (2003), our Supreme Court "[noted] that subsection (b) of § 52-557n, which references subsection (a), sets forth many exceptions under which an injured party may not pursue a direct action in negligence against a municipality." (Emphasis added.) In Elliott v. Waterbury, 245 Conn. 385, 395, 715 A.2d 27 (1998), our Supreme Court noted that "subsection (b) sets forth [ten] specific situations in which both municipalities and their officers are immune from tort liability." (Internal quotation mark omitted.) See also Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002) (stating that subsection (b) of § 52-557n "sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property"). It is also noted, however, that while our appellate courts have spoken in general terms concerning the ten subsections of § 52-557n(b) as a group, neither the Supreme Court nor the Appellate Court have specifically analyzed § 52-557n(b)(7) or (8), which differ significantly from the other eight subsections in that they contain clauses pertaining to situations where the political subdivision either acted in reckless disregard for health or safety or had notice of the alleged violations.
While § 52-557n(b)(7) and (8) have received little attention from our appellate courts, judges of the Superior Court have had occasion to interpret these provisions. In Duffy v. Wallingford, supra, 49 Conn.Sup. 117, the court stated: "Under § 52-557n(b)(7), a town or municipality may not be held liable for the discretionary issuance of a permit or certificate unless the issuance constitutes a reckless disregard for health and safety. Similarly, under § 52-557n(b)(8), a town or municipality may not be held liable for its failure to make an inspection or for making an inadequate inspection of the property, unless it had notice of a violation of law or hazard to health and safety or unless the failure to inspect or inadequate inspection constitutes reckless disregard for health and safety." (Emphasis added.) The court in Shukis v. Board of Education, Superior Court, judicial district of Middlesex, Docket No. CV 04 0104038 (June 24, 2005, Aurigemma, J.), acknowledged the existence of the "reckless disregard for health or safety exception" of § 52-557n(b)(7). Similarly, in Bruno v. BBC Corp., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 00 00716343 (May 22, 2002, Lager, J.), the court noted that § 52-557n(b)(8) is a "statutory exception to immunity . . ." Finally, in Tynik v. Redcoat Home Builders, Inc., supra, Superior Court, Docket No. X03 CV 98 0488994, the court stated that § "52-557n(b)(7) and (8) [codify] the `recklessness' exception to the rule of qualified immunity of city officials acting in government functions."
Consequently, judges of the Superior Court that have considered § 52-557n(b)(7) and (8) have generally categorized these subsections as "exceptions" to the rule of qualified municipal immunity. When examined carefully, such rulings are not inconsistent with our appellate jurisprudence on this issue for several reasons. First, it is indeed true, as stated in Martel, that all ten subsections provide exceptions to the municipal liability imposed by § 52-557n(a). To be sure, the first statement in § 52-557n(b)(7) outlines broad circumstances in which a municipality is immune from suit for the acts of a municipal employee. Second, in Spears, our Supreme Court stated that the ten exceptions prevented a plaintiff from pursing negligence actions against a municipality. The present case concerns recklessness. Finally, as previously stated, there has not been an appellate level case interpreting § 52-557n(b)(7) or (8). Martel involved subsection (b)(4); Spears involved § 52-557n(b) generally; Elliott involved subsection (b)(6); and, Segreto involved § 52-557n(b) generally. Though our appellate courts have spoken in general terms concerning § 52-557n(b), and have addressed subsections (b)(4) and (6), they have not spoken on subsections (b)(7) or (8). As previously stated, the differences between § 52-557n(b)(4) and (6), when compared with § 52-557n(b)(7) and (8), are considerable.
While the legislative history of § 52-557n has been described as "worse than murky," Sanzone v. Board of Police Commissioners, 219 Conn. 178, 188, 592 A.2d 912 (1991), this court finds the history instructive in at least one regard. Regarding § 52-557n(b)(8), which contains a "reckless disregard" clause, one of the drafters of this section, Representative Jaekle, was given a hypothetical case during debate on the floor and was asked how the plaintiffs might seek recovery. He stated: "I would certainly make a case that [the action in question] was more than mere negligence and would probably cite some statutes or . . . regulations . . . as an indication that that was reckless . . . Through you, Mr. Speaker, that I believe would at least get me into court to try that issue and see whether I could prove how bad that negligence was and whether that crossed the line into reckless action on the part of the municipality." (Emphasis added.) 29 H.R. Proc., Pt. 22, 1986 Sess., p. 5899-900, remarks of Representative Jaekle. This statement evinces a clear intent that the "reckless disregard" clause was intended to function as an exception to governmental immunity.
Based upon the plain language of the relevant statutory provisions, the relevant case law, and the portion of the legislative history that is instructive concerning the "reckless disregard" clauses, this court holds that, in order for § 52-557n(b)(7) to be given any meaning whatsoever, an exception to governmental immunity pursuant to § 52-557n(b)(7) is created in circumstances where the issuance, denial, suspension or revocation of a permit, license, certificate, approval, order or similar authorization under a discretionary function constitutes a reckless disregard for health or safety. In the present case, the plaintiffs have alleged that the actions of the municipal defendants constituted a reckless disregard for health or safety based upon the allegations that the building officials issued a certificate of occupancy despite the fact that there were numerous, flagrant, substantial and life threatening defects and deficiencies on the premises, and further based upon the fact that after being put on notice and despite having knowledge of such violations, the municipal defendants, and thereby, the municipality, have failed to take any subsequent action despite a continuing duty. Similarly, the plaintiffs have alleged that the municipality was reckless in issuing the certificate of occupancy, and was reckless in the performance of its duties of hiring employees, requiring proper licensure and education of its employees, following reasonable hiring policies and supervising its employees.
This conclusion necessarily dispenses with the defendants' arguments that the recklessness claims against the employees in their official capacity and the municipality are barred by § 52-557n, as this court holds that an exception to governmental immunity exists against an employee in their official capacity or the municipality under § 52-557n(b)(7) in circumstances constituting reckless disregard for health or safety.
This court cannot state, as a matter of law, that the allegations are insufficient to fit within the municipal immunity exception for recklessness. "Whether [the] [defendants'] conduct constituted heedless and reckless disregard of the plaintiffs' rights [is] a question of fact . . ." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277, 823 A.2d 1172 (2003). The allegations that the defendants failed to act with the full knowledge that there were life threatening defects and deficiencies on the property could satisfy the "reckless disregard" exception standard, and, at the very least, create a genuine issue of material fact. The defendants have not argued that the allegations themselves are insufficient, only that there exist no exceptions under § 52-557n(b). The defendants have not met their burden of demonstrating that no genuine issues of material fact exist concerning whether the defendants acted in reckless disregard for health or safety. For all the foregoing reasons, the motion for summary judgment is denied.
See, e.g., Moreino v. Kutra, Superior Court, judicial district of New London, Docket No. CV 05 4003227 (May 5, 2006, Jones, J.) (issue of defendants' alleged failure to ensure building permit was complied with, among other issues, established a genuine issue of fact of whether the defendants acted in reckless disregard); Duffy v. Wallingford, supra, 49 Conn.Sup. 120 (genuine issue of material fact created concerning whether the defendant's decision to issue a building permit and certificate of occupancy constituted reckless disregard where defendant failed to conclusively establish in the motion for summary judgment that the decision was not made in reckless disregard).
The court notes that no documents were submitted accompanying the motion for summary judgment which tend to show the facts or knowledge upon which the defendants allegedly relied in issuing the certificate of occupancy, or upon which the subsequent decisions not to take action, after having been notified of the alleged violations, were based.
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#175)
This is a case arising from the allegedly defective construction and inspection of a home in Watertown, Connecticut. The plaintiffs, Verdi and Anife Vejseli, have alleged the following relevant facts in their complaint dated June 17, 2002. The plaintiffs sought to purchase a newly-constructed residence from Gani and Myzejen Pasha (the Pashas). As part of the process for purchasing the home, Watertown building officials inspected the residence and represented to the plaintiffs that the property and structures therein were in substantial conformity with the regulations of both the town and the state. The town issued a certificate of occupancy for the residence. The plaintiffs and the Pashas completed the closing of sale on or about June 27, 2001. Thereafter, on or about February 5, 2002, the residence suffered severe water damage after an interior plumbing pipe burst. The plaintiffs maintain that the pipe burst as a result of freezing due to a complete absence of insulation surrounding the pipe, and allege that the Pashas constructed the house in violation of the building code, fire code, statutes, rules, laws, orders and ordinances of both the state of Connecticut and the Town of Watertown.
The plaintiffs filed a thirteen-count complaint against the Pashas; the building official for the Town of Watertown, Richard Fusco; the assistant building official for the Town of Watertown, Joel Skilton; and the Town of Watertown. The plaintiffs allege in count ten that Fusco and Skilton in their official capacities were reckless in their representations that the premises were in substantial compliance with applicable building codes; in count eleven that the Town of Watertown acted in a reckless and wanton disregard of health or safety pursuant to General Statutes § 52-557n(b)(7) in issuing the certificate of occupancy based on the building officials' representations; and in count twelve that the Town of Watertown acted in a reckless and wanton disregard for health or safety in the issuance of the certificate of occupancy, in the performance of its duty to hire employees, in its failure to require proper licensure and education of its employees, and in its failures to follow reasonable hiring policies and to supervise its employees.
On July 6, 2007, the defendants Fusco, Skilton and the Town of Watertown (defendants) filed a motion to dismiss counts ten, eleven and twelve on the basis of sovereign immunity and a memorandum of law in support. On July 19, 2007 the plaintiffs filed an objection and a memorandum of law in support. In their motion to dismiss, the defendants argue that the plaintiffs' claims must be dismissed because at all relevant times the town and its building officials were acting as agents of the state of Connecticut and are therefore entitled to the state's sovereign immunity. The plaintiffs counter that sovereign immunity is inapplicable in the present case, as the statutes under which the defendants were acting did not create a principal-agent relationship between the parties so as to confer sovereign immunity upon the municipality or the municipal defendants. This matter was argued on the short calendar on July 23, 2007.
The procedural history of this case is noteworthy. On May 5, 2006, the court, Gallagher, J., denied a motion to dismiss filed by Fusco, Skilton and the town of Watertown on governmental immunity grounds. Thereafter, the defendants appealed that decision to the Appellate Court, which dismissed the appeal on the basis that the trial court's denial of the motion to dismiss based on governmental immunity was not an appealable final judgment. Our Supreme Court recently affirmed the Appellate Court's decision, and noted that the defendants expressed an intent at oral argument to bring the present motion to dismiss on sovereign immunity grounds. See Vejseli v. Pasha, 282 Conn. 561, 923 A.2d 688 (2007).
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31.
"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) CT Page 15948 Cox v. Aiken, supra, 278 Conn. 211; Filippi v. Sullivan, supra, 273 Conn. 8; Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 815 A.2d 1188 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
"The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). "It is settled law in Connecticut that the state is immune from suit unless, by appropriate legislation, it authorizes or consents to suit . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." (Internal quotation marks omitted.) First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 293-94, 869 A.2d 1193 (2005). Additionally, "[a] suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . This is because a state can act only through its officers and agents . . . In suits, therefore, in which the officials or agents are being sued for actions that concern matters in which they represent the state, [the court] [considers] such suits as if they were solely against the state." (Citations omitted; internal quotation marks omitted.) Mercer v. Strange, 96 Conn.App. 123, 127-28, 899 A.2d 683 (2006).
As noted by our Supreme Court in its opinion on this matter, the key inquiry in determining whether sovereign immunity is applicable is whether the defendants' "[actions] would operate to control the activities of the state or subject it to liability . . ." (Internal quotation marks omitted.) Vejseli v. Pasha, supra, 282 Conn. 575 n. 12. "The protection afforded by [the doctrine of sovereign immunity] has been extended to agents of the state acting in its behalf." Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982). It is true that municipal building officials are appointed, and their duties are prescribed, pursuant to the General Statutes. See General Statutes § 29-260 et seq. Among other duties and responsibilities, municipal building officials are charged with inspecting buildings for compliance with regulations and issuing certificates of occupancy. General Statutes § 29-261(b); § 29-265(a).
In the present case, there is no indication that the defendants' actions or inactions would operate to control the state's activities or subject the state to liability. A brief examination of the regulations concerning municipal building officials clarifies this issue, and demonstrates that while the duties of a municipal building official may be both municipal and sovereign in nature, the doctrine of sovereign immunity is inappropriate in the present case. General Statutes § 29-262(e) is applicable to the present motion to dismiss, and provides: "For purposes of indemnification of any building official against any losses, damages or liabilities arising out of the performance of his official duties, the building official shall be deemed to be acting for the municipality in which be was appointed." (Emphasis added.) This section, then, explicitly provides that for purposes of damages or indemnification the building official acts on behalf of the municipality, and therefore provides through negative implication that the official is not acting on behalf of the state. There is no evidence to suggest that the state would ultimately be liable in the present case. The defendants have pointed the court to no statute or regulation by which the state retains ultimate liability for the actions of municipal building officials, or by which the municipality itself may seek indemnification from the state. Further, an examination of relevant case law reveals no appellate authority for the proposition that municipal building officials are agents of the state in executing their duties for the purposes of sovereign immunity.
In their memorandum of law in support of the motion to dismiss, the defendants did not exhaustively brief the specific issue of whether the defendants' actions operate to control the activities of the state. This court notes, however, that a municipality retains ample control over its building officials. See, e.g., § 29-260(b), which provides that in the event a building official fails to perform their duties, the local appointing authority — and not the state — is responsible for dismissing the official and appointing another in their place.
The court also notes that the legislative history of § 52-557n indicates that it was enacted, among other reasons, to limit municipal liability. 29 H.R. Proc., Pt. 22, 1986 Sess., p. 8116, remarks of Representative Jaekle.
Like local boards of education, it appears that municipal building inspectors "act as agents of the state when fulfilling the statutory duties imposed on them by the legislature" but are also "agents of the towns, subject to the law governing municipalities, when acting on behalf of the municipality . . ." R.A. Civitello Co. v. New Haven, 6 Conn.App. 212, 218, 504 A.2d 542 (1986). The role of a municipal building official is somewhat analogous to that of a municipal board of education, where sovereign immunity has been held inapplicable. See Cahill v. Board of Education, supra, 187 Conn. 101-02; R.A. Civitello Co. v. New Haven, supra, 6 Conn.App. 218 (holding the doctrine of sovereign immunity inapplicable to municipal boards of education because any damages resulting from breaches would be paid by the municipality or community — not the state). Similarly, in the present case, § 29-262(e) provides that the municipality is the responsible party for purposes of damages or indemnification.
Consequently, this court holds that while the municipal defendants do act, in some circumstances, pursuant to state statute, the doctrine of sovereign immunity is inapplicable to the present case, as there is no authority to support the proposition that the defendants' actions or inactions operate to control the activities of the state or subject it to liability. Because the building officials were not acting as agents of the state and are not entitled to sovereign immunity, the defendant Town of Watertown is also not entitled to sovereign immunity. See General Statutes § 29-262(e). The motion to dismiss is denied.