Opinion
No. CV09-6000823S
August 5, 2011
MEMORANDUM OF DECISION
FACTS
The Plaintiff, Shirley Walker, brings this action against the City of Derby, for injuries and damages which she claims to have suffered as a consequence of a May 16, 2007 incident. On that date, at approximately 10 a.m., the Plaintiff was walking northbound on the Naugatuck Valley Greenway, between Division Street and Main Street, Derby.
While walking toward the shoulder of the trail, Shirley Walker fell, as she was stepping of the trail, and on to the shoulder of the road. She claims that the fall occurred at a point 170 feet north of the 1.1 mile marker, and 360 feet south of the trail's 1.2 mile marker, on top of a levee.
The Plaintiff claims that the site of her fall was maintained by the City of Derby in a dangerous, defective and unsafe condition. She also maintains that the area was not properly designed, and that the City of Derby created the "hazardous step off from the trail to the shoulder," at the point of the fall.
It is claimed that Shirley Walker suffered a fracture of the left hip as a result of the fall, accompanied by a shortening of the left lower extremity.
In her original complaint, the Plaintiff advanced four counts. In Count one, she claims to have been injured as a result of a defective road or bridge. She brings her claim pursuant to § 13a-149 of the General Statutes.
Section 13a-149, C.G.S. — "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair . . ."
Count two of the initial complaint was a negligence count against the City of Derby, while Count three alleges negligence by city employees, pursuant to § 52-557n(a)(1)(A) of the General Statutes, and Count four claimed the creation of a nuisance by the city, pursuant to § CT Page 17009 52-557n(a)(1)(C) of the General Statutes.
Section 52-557n(a)(1)(A), C.G.S. — "(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 . . ."
Section 52-557n(a)(1)(C), C.G.S. — "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to a person or property caused by . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . ."
Count one was withdrawn on March 9, 2010.
The Second Amended Complaint, dated September 17, 2010, maintains the two negligence counts and the nuisance count as Counts one, two and three. A fourth count, charging the City of Derby, acting through its agents and employees, with reckless and/or wanton conduct, is also included in the September 17, 2010 pleading.
The City of Derby has moved for summary judgment, concerning each of the four counts.
As to the negligence counts, counts one and two, it claims that inspection and maintenance of the greenway involve the exercise of judgment or discretion, and no cause of action can be maintained, pursuant to § 52-557n(a)(2)(B) of the General Statutes.
Section 52-557n(a)(2)(B), C.G.S. — "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damage to person or property, caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
The Defendant, City of Derby, claims that the nuisance count fails, because the Plaintiff has failed to show that the affirmative act of any city employee created or participated in the creation of a nuisance.
As to Count Four, the City of Derby claims that it is barred by the applicable statute of limitations, § 52-584 of the General Statutes. It is also claimed that the allegations in Count four are insufficient to support a claim of reckless or wanton misconduct.
Section 52-584 C.G.S. — "No action to recover damages for injury to the person . . . caused by negligence or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ."
STANDARD OF REVIEW — SUMMARY JUDGMENT
A trial court may appropriately render summary judgment, when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to a judgment as a matter of law. Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983); Practice Book § 17-49.
The burden is on the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded. Fogarty v. Rashaw. 193 Conn. 442, 445 (1984); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979). In determining a motion for summary judgment, a trial court must view all of the evidence in the light most favorable to the nonmoving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1995). The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict. United Oil Co. v. Urban Redevelopment Commission, CT Page 17010 158 Conn. 364, 380 (1969).
Although the purpose of a motion for summary judgment is to test for the presence of factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, where the complaint fails to set forth a viable cause of action, and the defect cannot be cured by re-pleading. Larobina v. McDonald, 274 Conn. 392, 401 (2005).
GENUINE ISSUE OF MATERIAL FACT IS PRESENT CONCERNING WHETHER THE ACTS OR OMISSIONS OF EMPLOYEES WERE DISCRETIONARY OR MINISTERIAL
The City of Derby maintains that the acts or omissions alleged by the Plaintiff involve the exercise of judgment or discretion. Therefore, it contends, judgment should enter in favor of the Defendant on Counts one and two of the Second Amended Complaint.
The Plaintiff maintains that whether some or all of the acts alleged are "ministerial" in character, presents a question of fact.
When dealing with discretionary acts, our courts have recognized three exceptions to the qualified immunity provided by § 52-557n(a)(2)(B) of the General Statutes: 1) where circumstances make it apparent to the public official that his or her failure to act will subject an identifiable individual to the threat of imminent harm, 2) where a statute specifically provides for a cause of action against a municipality or a municipal official for the failure to enforce certain laws, and 3) where the acts involve malice, wantonness or intent to injury rather than negligence. Spears v. Garcia, 263 Conn. 22, 36 (2003); Burns v. Board of Education 228 Conn. 640, 645 (1994).
The Plaintiff does not claim that a specific statute authorizes her action against the City of Derby, and no allegation of wanton or malicious conduct is alleged in Count one or Count two. Nor can Shirley Walker demonstrate that she is a member of a certain class of foreseeable victims; Sesito v. Groton, 178 Conn. 520, 527-28 (1979); such as school children attending class during regular school hours, when their presence at school is legally required. Durrant v. Board of Education, 284 Conn. 91, 106-07 (2007). Pruzycki v. Fairfield, 244 Conn. 101, 108-09 (1998).
Therefore, any successful claim sounding in negligence, depends upon her ability to demonstrate that the duties imposed upon municipal officials and employees were ministerial in nature. A ministerial act is one which is performed in a prescribed manner, without the exercise of judgment or discretion by an official or employee. Shore v. Stonington, 187 Conn. 147, 152 (1982); Fraser v. Henninger, 173 Conn. 52, 60 (1977). Although certain acts are clearly discretionary in character, the determination of whether an act is discretionary or ministerial is usually a question of fact. Segreto v. Bristol, 71 Conn.App. 844, 854-56 (2002).
The Plaintiff claims that the area where she fell is on top of a levee, and is subject to the "Operation and Maintenance Manuel for Flood Protection Works" approved on August 9, 1944. The manuel requires regular inspection of the entire system, prior to flood season and at intervals not exceeding ninety (90) days.
In general, the performance of duties involving inspection, maintenance and repair of hazards is discretionary, and entitled to the protection of governmental immunity. Evon v. Andrews, 211 Conn 501, 506 (1989); Grignano v. Milford, 106 Conn.App. 648, 656 (1992). However, an otherwise discretionary act may be rendered ministerial, if it is the subject of a policy or directive. Kolaniak v. Board of Education, 28 Conn.App. 277, 281 (1992).
Kolaniak involved a written bulletin to all custodians and maintenance workers, stating that sidewalks must be inspected and kept clean on a daily basis. The clearing of ice and snow from a sidewalk was thereby rendered ministerial. Kolaniak v. Board of Education, supra, 281-82.
Here, in light of the requirements contained in the Operation and Maintenance Manuel, it cannot be said, as a matter of law, that the allegations of negligence involve discretionary, rather than ministerial acts.
The motion for summary judgment, as to Count one and Count two of the Second Amended Complaint, is therefore denied.
GENUINE ISSUE OF FACT EXISTS CONCERNING PUBLIC NUISANCE CLAIM
The City of Derby claims that it is entitled to summary judgment regarding Count three, the public nuisance claim, it maintains that the Plaintiff cannot show the creation of any alleged nuisance through the positive act of any city employee, and that Shirley Walker cannot establish that she suffered harm which is different from that of other members of the general public.
These claims are not persuasive.
Section 52-577n(a)(1)(C) of the General Statutes recognize that a municipality may be liable in damages for "acts of the political subdivision which constitute the creation or participation in the creation of a nuisance."
This statute is in accord with case law, which has long recognized that a municipality may be held liable for injury resulting from a nuisance created and maintained by it. Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 462-63 (1999); Cyr v. Brookfield, 153 Conn. 261, 264 (1965); Marchito v. West Haven, 150 Conn. 432, 437 (1963).
The test which must be satisfied, when determining whether a public nuisance exists is four-fold: 1) the condition complained of must have a natural tendency to create danger and inflict injury to person or property, 2) the danger must be a continuing one, 3) the use of the land must be unreasonable or unlawful, and 4) the existence of the nuisance must be the proximate cause or the Plaintiff's injuries. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36 (1978); Kostyal v. Cass, 163 Conn. 92, 99-100 (1972). Whether the use of land is reasonable, involves an analysis of the particular facts of a case, and is a question for the jury. Walsh v. Stonington Water Pollution Control Authority, supra, 456; Wetstone v. Cantor, 144 Conn. 77, 80 (1956).
The City of Derby insists that the Plaintiff can point to no positive act of a municipal employee, which either created the alleged nuisance, or participated in its creation.
The Plaintiff responds by noting that the original design of the shoulder called for top soil and grass. That requirement was changed to processed stone by the contractor, a change which was accepted and agreed to by the City of Derby.
The Plaintiff contends that the design change process, in which the City of Derby participated led to erosion, thus causing change in the elevation of the shoulder.
Sufficient questions of fact exist, concerning the participation of the City of Derby in the creation of the alleged nuisance, to require that summary judgment be denied.
The City of Derby further claims that the Plaintiff cannot demonstrate that she suffered an injury different from that of other members of the public, when she fell, sustaining a broken hip, on May 16, 2007. This claim is belied by the evidence.
The Plaintiff was walking on a recreational trail, which is open to the public, at the time of her fall. She was exercising a right common to the public, rights which include, but are not limited to, such activities as using a public park, a public highway, a river, or a lake. Pesty v. Cushman, 259 Conn. 345, 356 n. 5 (2002); Restatement (Second) Torts, § 821D, comment C.
By suffering a traumatic fall, which resulted in a fractured hip, Shirley Walker suffered harm of a kind different from that of other hikers using a public trail (See Restatement (Second) Torts, § 821C(1)).
The City of Derby cannot prevail in its motion for summary judgment as to Count three.
RECKLESS AND WANTON CONDUCT COUNT WITHSTANDS SUMMARY JUDGMENT
The Defendant claims that the fourth count is barred by the applicable statute of limitations, because it was pled more than two years after the date of the incident, May 16, 2007.
The Plaintiff, on the other hand, claims that the original complaint gave fair warning to the City of Derby that a claim was being asserted, and that the claim involved a specific incident, the fall which occurred on May 16, 2007.
The court agrees with the Plaintiff.
The question, in determining whether the Amended Complaint relates back to the date of the filing of the initial claim, is whether the amendment amplifies or expands existing facts, or whether it presents a new and different factual situation. Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 808-09 (2008). Once a party has been notified of a claim based upon a particular occurrence, that party has been provided with notice which the statute of limitations is designed to afford. Gurliacci v. Mayer, 218 Conn. 531, 547 (1991). A mere change in legal theory does not prevent the operation of the doctrine of relation back.
Here, Count four pleads essentially the same facts as were set forth in the initial complaint, in support of the negligence and nuisance claims. While proving the requisite mental state to support a claim of wanton and reckless misconduct may prove monumental, it cannot be said that the claim fails as a matter of law.
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