No. CV 07-5009180-S
May 7, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This is a seven-count second amended complaint seeking damages by plaintiff, arising from a fall on accumulated snow and ice on a walkway, while plaintiff was working for a subcontractor on the Stonington High School building on February 1, 2005.
Count five alleges claims against nine individuals, all alleged employees of the town of Stonington or its Board of Education, who were claimed to be in control of the premises and alleged to be negligent for failing to remove the snow and ice.
Count six and seven allege similar claims against the town and its Board of Education, as well as indemnification claims for the municipal employees.
On November 12, 2009 these Stonington defendants filed this Motion for Summary Judgment on counts five, six and seven as being barred by the doctrine of discretionary governmental immunity.
It is clear from the pleadings and evidence offered through depositions that there is a material question of fact as to whether these named defendants, or any of them, were responsible for snow removal or whether such snow removal was the responsibility of Gilbane Building Company, the general contractor for the project, named as defendant in counts one and two. Even if the Stonington defendants were found to be responsible for such snow removal they claim they have no liability because they have governmental immunity because any duty of snow removal by them was discretionary.
In Evon v. Andrews, 211 Conn. 501 (1989), our Supreme Court gave the following general description of the governmental immunity defense: "While [a] municipality itself was generally immune from liability for its tortious acts at common law . . . its employees faced the same personal tort liability as private individuals . . . [A] municipal employee [however,] has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . The word `ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion."
The parties have filed extensive briefs on the question of whether the act of snow removal in this situation was discretionary or ministerial, acknowledging that if the act is found to be discretionary, the Stonington defendants have no liability because of their governmental immunity. The defendants insist that the resolution of this issue is a matter of law for the court to determine, the plaintiff's claiming this is an issue of fact to be decided at trial.
There is an extensive history of different opinions by our Supreme Court and Appellate Court as to whether a municipality's actions should be found to be discretionary or ministerial as a matter of law or to be determined as an issue of fact.
Prior to Evon, the Supreme Court had said that "[w]hether the acts complained of . . . were governmental or ministerial is a factual question which depends upon the nature of the act complained of." Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982). In Gauvin, the court held that the trial court should have considered the defendant's governmental immunity defense and remanded the case after concluding that testimony at trial "could have provided an adequate basis for the trial court to determine whether the acts complained of were ministerial or governmental and whether the defense of governmental immunity could have been sustained." Id., 187.
It is true that the Supreme Court later said that "[n]otwithstanding the procedural posture of a motion to strike, this court has approved the practice of deciding the issue of governmental immunity as a matter of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). In that case, however the duty of the municipality was undisputed and the court concluded that no such duty existed, in part, because "the general deployment of police officers is a discretionary governmental action as a matter of law." Id.
In this case, the complaint makes no claim as to whether the duty of the Stonington defendants to remove snow was discretionary or mandatory.
The disputed claim in this case which creates an issue of material fact as to which party had the duty to remove the snow from the walkway impinges on the question as to whether that duty, if falling on the Stonington defendants was ministerial or discretionary or if discretionary, whether any of the recognized exceptions applied. This constitutes an additional question of material fact which is more appropriate to decide after hearing the considerable evidence offered by both sides rather than deciding it at this time as a matter of law. Gavin v. New Haven, 187 Conn. 180 (1982).
Motion for Summary Judgment denied.