Opinion
MMXCV136009247
04-06-2016
Mary I. Williams et al. v. Macky Two, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S CLAIMS AND MOTION TO DISMISS APPORTIONMENT AND INDEMNIFICATION CLAIMS.
Julia L. Aurigemma, J.
The defendant, City of Middletown (" Middletown"), has moved to for summary judgment on the Second Count of the complaint dated September 17, 2013, and has moved to dismiss the Second Count of the apportionment complaint filed by the apportionment plaintiff/defendant, It's Only Natural Market, LLC (" Market") and the cross claim filed by the co-apportionment defendants, The Liberty Square, a Condominium Association and Liberty Square Owner's Association (" Liberty Square").
Middletown has provided a memorandum of law in support of its motions, as well as the portions of the transcript of the deposition of the plaintiff, Mary I. Williams and the affidavit of Geen Thazhampallath, director of the Parking Department for the City of Middletown. The plaintiff, Market and Liberty Square have also provided memoranda of law. Market and Liberty Square have provided the aforementioned affidavit of Mr. Thazhampallath, and Market has provided a copy of Parking Easement between defendant, Macky Two, LLC, and Middletown.
Facts
On September 4, 2012, the plaintiff parked her car in front of the Market, and began walking into that store when she tripped on a concrete tire stop and fell. Middletown is responsible for maintaining the parking lot on which the plaintiff fell. A certain Parking Easement, dated March 10, 2008, between Macky Two, LLC and Middletown and recorded in Volume 1630, Page 641 of the Middletown Land Records, provides, in pertinent part:
For valuable consideration, receipt of which is hereby acknowledged, MACKY TWO, LLC, a Connecticut limited liability company, acting herein through PETER A. HARDING, Member, duly authorized, hereinafter called Grantor, hereby grants to THE CITY OF MIDDLETOWN, a body politic with its territorial limits within the County of Middlesex and State of Connecticut, its successors and assigns, forever, hereafter called Grantee, the non-exclusive and perpetual easement and right to park on, and travel traverse and cross over, in common with the Grantor, the parking area as depicted on Schedule A attached hereto and made a part hereof (the " Easement Area"), comprising certain parking spaces associated with the development known as LIBERTY SQUARE and located at 575 Main Street, Middletown, Connecticut, for use by Grantee, its employees, agents, invitees and guests . .
The Grantee at its own cost and expense, shall maintain, repair, operate (including lighting and electricity for lighting), refurbish and replace (including capital items) the entire parking area, including parking spaces allocated to the Grantor, its tenant and visitors . . .
Emphasis added.
Discussion of the Law and Ruling
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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 589 (2003); Mytych v. May Dep't Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book § § 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995). Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stamm, 224 Conn. 524, 530, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). 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. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
" As a general rule, then, '[w]hen a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by . . . [the rules of practice], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him.' (Footnote omitted.) Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980). 'Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial.' Great Country Bank v. Pastore, supra, 241 Conn. at 436, 696 A.2d 1254." Squeo v. The Norwalk Hospital Association, 316 Conn. 558, 594, 113 A.3d 932 (2015).
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011). " 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. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Id.
The defendant moves for summary judgment on the Second Count of the complaint on the ground that the negligence claim is barred by governmental immunity. The plaintiff, Market and Liberty Square argue that in obtaining a parking easement from Macky Two, LLC, Middletown was engaged in proprietary activity within the meaning of Connecticut General Statutes § 52-557n(a)(1)(B). " General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages."
(Footnote omitted.) Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006).
Section 52-557n, provides in pertinent part
(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 .
Emphasis added.
In this case the plaintiff's allegations are based on Middletown's acts or omissions relating to the maintenance of the tire stops in the parking lot. Generally, " the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity. A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extend of inspections, maintenance and repairs." Grignano v. City of Milford, 106 Conn.App. 648, 656, 943 A.2d 507 (2008).
The plaintiff, Market and Liberty Square all argue that Middletown is not entitled to governmental immunity under § 52-557n(a)(1)(B) because Middletown derived a pecuniary interest out of maintaining the parking lot. They all rely on the case of Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006). In that case a restaurant patron brought a negligence action against the city, after he fell into a glass window panel in a common entryway of the clubhouse of a public municipal golf course owned and operated by city. The fall occurred after the patron had left the privately-owned restaurant located in portion of clubhouse leased by the city to the restaurant.
After observing that the § 52-557n did not define the phrases " special corporate benefit" or " pecuniary profit, " the Considine court held that that statute was meant to codify the common law, and provided the following compilation of cases from this jurisdiction and others:
We begin with municipal activities that are not for a municipality's special corporate benefit or pecuniary profit. If a municipality is acting only as the 'agent or representative of the state in carrying out its public purposes'; Winchester v. Cox, supra, 129 Conn. at 109, 26 A.2d 592; 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; Keefe v. Union, 76 Conn. 160, 166, 56 [A.] 571 [(1903)]; while the maintenance of a park system would fall within the second class." (Citations omitted; internal quotation marks omitted.) Hannon v. Waterbury, supra, 106 Conn. at 16, 136 A. 876; see also Spitzer v. Waterbury, 113 Conn. 84, 87-88, 154 A. 157 (1931) (construction of storm water sewers is governmental function because it is part of duty imposed by state on municipality to maintain highways within its limits); Epstein v. New Haven, 104 Conn. 283, 284, 132 A. 467 (1926) (use of municipal property as public park is governmental function because " control of public parks belongs primarily to the [s]tate and municipalities in operating and managing them act as governmental agencies exercising an authority delegated to them by the [s]tate"). 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. See Hannon v. Waterbury, supra, at 18, 136 A. 876 (operating swimming *847 pool was governmental function because it was for " education of the people of the city in teaching them to swim and thus guarding their lives against the accident of drowning, promoting a most useful and beneficial form of exercise, and teaching cleanliness of habits of living and thus preserving their health"); Pope v. New Haven, 91 Conn. 79, 81, 99 A. 51 (1916) (celebration of Independence Day was governmental function because its aim was to " instruct the people generally and to arouse and stimulate patriotic sentiments and love of country"). 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. See Hannon v. Waterbury, supra, at 17-18, 136 A. 876 (charged small fee to use municipal pool, but fee did not cover maintenance expenses); see also Couture v. Board of Education, 6 Conn.App. 309, 312-13, 505 A.2d 432 (1986) (sponsoring high school football game, at which small charge was paid to be spectator, was governmental act because part of delegated duty from state to provide education).
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"; Winchester v. Cox, supra, 129 Conn. at 109, 26 A.2d 592; or if it derives revenue in excess of its costs from the activity. Martel v. Metropolitan District Commission, 275 Conn. 38, 53, 881 A.2d 194 (2005) (operation of water utility for profit is proprietary function); Elliott v. Waterbury, 245 Conn. 385, 412-14, 715 A.2d 27 (1998) (same); Richmond v. Norwich, supra, 96 Conn. at 584, 588, 115 A. 11 (same); see also Tadjer v. Montgomery County, supra, 300 Md. at 549-50, 479 A.2d 1321 (if income derived from activity substantially exceeds expenses, such as rent and operational costs, then it is proprietary in nature). When a municipality derives substantial revenue from its commercial use of municipal property, it has been considered nonetheless to be engaged in a proprietary function even if it reinvests that revenue back into the property's maintenance expenses or to pay down debt related to the property. See Carta v. Norwalk, supra, 108 Conn. at 702, 145 A. 158 (if municipality is deriving revenue or profit from renting its property, fact that it 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"); Hourigan v. Norwich, supra, 77 Conn. at 365, 59 A. 487 (municipality " uses works constructed for the public benefit for its corporate profit, when the profits are to be applied to the maintenance of the works and the reduction of the debt incurred by the corporation in their construction"); but cf. Coleman v. Kootsillas, 456 Mich. 615, 621, 575 N.W.2d 527 (1998) (if revenue generated from activity " is used only to pay current and long-range expenses involved in operating the activity, this could indicate that the primary purpose of the activity was not to produce a pecuniary profit"). Accordingly, it has been stated that a municipality is engaged in a proprietary function when it acts " very much like private enterprise . . ." W. Prosser & W. Keeton, supra, at § 131, p. 1053. In the specific context of leasing municipal property, this 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 . See Carta v. Norwalk, supra, 108 Conn. at 699-702, 145 A. 158 (lease of concession facilities at municipal beach for $2, 500 was prima facie evidence that municipality was engaged in proprietary function); see also District of Columbia v. Richards, 128 F.2d 297, 299, 75 U.S.App.D.C. 349 (D.C.Cir. 1942) (municipality was liable for negligence as owner and operator of building in which it leased market stands to merchants); Chafor v. Long Beach, 174 Cal. 478, 489-90, 163 P. 670 (1917) (municipality's maintenance of auditorium that it leased to private individuals was proprietary function regardless of whether it charged rent); Madisonville v. Poole, 249 S.W.2d 133, 134 (Ky. 1952) (municipality concedes that leasing clubhouse to private individuals was proprietary function); Wood v. Oxford, 290 Mass. 388, 388-91, 195 N.E. 321 (1935) (municipality liable for injuries caused by negligent maintenance of town hall because rooms in town hall were rented out to private parties); Oliver v. Worcester, 102 Mass. 489, 502 (1869) (no municipal immunity when it rented substantial portion of municipal building to private persons); Stephenson v. Garner, 136 N.C.App. 444, 454, 524 S.E.2d 608 (lease of municipal property for construction of cellular telephone tower was proprietary function), appeal denied, 352 N.C. 156, 544 S.E.2d 243 (2000); Chupek v. Akron, 89 Ohio App. 266, 269, 101 N.E.2d 245 (1951) (lease of municipal stadium to private individual to hold automobile race was proprietary function); Dean v. Board of Trustees of Soldiers & Sailors Memorial Building, 65 Ohio App. 362, 364-65, 29 N.E.2d 910 (1940) (no governmental immunity when portions of building are leased to private entities and operated as movie theater, storerooms and office space); Richmond v. Grizzard, 205 Va. 298, 301, 136 S.E.2d 827 (1964) (lease of portion of municipal building to church was not governmental function); 18A E. McQuillin, supra, § 53.91.10, p. 129 (" liability applies where a municipality deals with property, bought or used in connection with a governmental activity, for a corporate activity, as by renting it"); but cf. Hartness v. Allegheny County, 349 Pa. 248, 252-53, 37 A.2d 18 (1944) (immunity applied for negligent maintenance of county courthouse where only proprietary uses of building were few pay telephones, bootblack stand, and some clerks, part of whose job was to order supplies for county's restaurants and amusement enterprises). 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. Martel v. Metropolitan District Commission, supra, 275 Conn. at 56, 881 A.2d 194 (municipality liable only if there is " inextricable link or inherently close connection" between alleged negligence and municipality's operation of proprietary function); Carta v. Norwalk, supra, 108 Conn. at 702, 145 A. 158 (municipality " is responsible for its negligent acts or omissions in connection with the property rented").
Turning to the present case, we conclude that the defendant can be held liable for the plaintiff's injuries because it was acting in its proprietary capacity when it leased a portion of the clubhouse to the restaurant and there is an inextricable link or inherently close connection'; Martel v. Metropolitan District Commission, supra, 275 Conn. at 56, 881 A.2d 194; between the defendant's allegedly negligent maintenance of the sidelite in the clubhouse's entryway and the rental of the restaurant. By examining the character of the activity at issue, it is apparent that leasing a portion of a municipal building as a restaurant stands in stark contrast from those activities in which this court has determined that the municipality was acting as the state's agent for the direct or indirect benefit of the general public. See, e.g., Spitzer v. Waterbury, supra, 113 Conn. at 87-88, 154 A. 157 (storm water sewers); Vezina v. Hartford, 106 Conn. 378, 379-81, 138 A. 145 (1927) (fire department); Hannon v. Waterbury, supra, 106 Conn. at 17-18, 136 A. 876 (municipal swimming pool); Epstein v. New Haven, supra, 104 Conn. at 283, 132 A. 467 (public park); see also Schmidt v. Breeden, 134 N.C.App. 248, 253, 517 S.E.2d 171 (1999) (recounting other traditional governmental functions as including " operation of jails, public libraries . . . and city garbage services"). Rather, the leasing of a portion of a municipal building for a substantial rent to a private party to operate a business is an act that very much resembles private enterprise, and, accordingly, consistently has been determined to be a proprietary function. See District of Columbia v. Richards, supra, 128 F.2d at 299; Oliver v. Worcester, supra, 102 Mass. at 502; Stephenson v. Garner, supra, 136 N.C.App. at 454, 524 S.E.2d 608; Chupek v. Akron, supra, 89 Ohio App. at 266, 269, 101 N.E.2d 245; Dean v. Board of Trustees of Soldiers & Sailors Memorial Building, supra, 65 Ohio App. at 364-65, 29 N.E.2d 910; Richmond v. Grizzard, supra, 205 Va. at 301, 136 S.E.2d 827.
In addition to the fact that the defendant's leasing of the restaurant is of a similar nature and character as private enterprise, it appears that the defendant was, in fact, deriving a pecuniary benefit from the lease. The defendant's acting deputy director of public works, Joseph A. Geary, testified that the proceeds of the lease were reinvested into a fund that is used to operate the golf course. Thus, the defendant received a pecuniary benefit from the lease because it was able to use the proceeds from the lease to offset its costs in maintaining the golf course. Moreover, even if we were to assume that the golf course is such an interrelated function to the restaurant that we must view its revenues and expenses in the aggregate, the fact that the revenue or profit derived from the commercial use of municipal property " 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 [governmental] immunity." Carta v. Norwalk, supra, 108 Conn. at 702, 145 A. 158. We therefore conclude that the defendant's leasing of a portion of the clubhouse to the restaurant is a proprietary function.
Emphasis added. Considine v. Waterbury, supra, at 845-52.
Based on the foregoing, it does not appear that Middletown was engaging in a proprietary function or deriving any pecuniary benefit from its easement with Macky Two, LLC. Rather than leasing out municipal property to a private party, Middletown was paying for the right to, essentially, use private land for the municipal purpose of extra parking for Middletown employees and, in exchange for that right, was obligated under the terms of the easement to expend money maintaining the entire parking lot. Neither the plaintiff, Market, nor Liberty Square have produced any evidence that Middletown derived any " special corporate benefit" or " pecuniary profit." Therefore, Middletown enjoys immunity under § 52-557n(a)(2)(B) and summary judgment is granted on the Second Count of the complaint.
In the Second Count of its apportionment complaint, Market seeks apportionment of negligence with Middletown pursuant to Connecticut General Statutes § 52-572h. Under Connecticut General Statutes § 52-102b(c) " No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to § 52-572h." Market's claim for apportionment is barred under § 52-572h because Middletown is immune from liability for the plaintiff's injuries. The motion to dismiss the Second Count of Market's apportionment complaint is granted. See Bloom v. Gershon, 271 Conn. 96, 114, 856 A.2d 335 (2004).
Liberty Square seeks indemnification from Middletown. However, the easement between Middletown and Macky Two, LLC contains no provision for indemnification for Liberty Square. Therefore, Liberty Square's right to indemnification arises under common law. " [T]he common-law doctrine of indemnification permits a tortfeasor to assert a claim only against another liable tortfeasor . . . [I]ndemnity is not allowed against one who has a defense, such as family immunity against the original plaintiff." Crotta v. Home Depot, Inc., 249 Conn. 634, 642, 732 A.2d 767 (1999). Based on the foregoing, Liberty Square's Cross claim against Middletown is dismissed.