Opinion
No. HHB CV 05 4007167
May 23, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The issue for this court to decide is whether the defendants' motion for summary judgment should be granted based on the claims that the plaintiff named the wrong municipal employee as a responsible party and that the defendants are not liable to the plaintiff as a matter of law on the ground of governmental immunity. For the reasons stated below, the defendant's motion is granted.
BACKGROUND
On October 25, 2005, the plaintiff, Ralph Cobuzzi, filed a two-count amended complaint against the defendants, the city of New Britain and Clarence Corbin. In the amended complaint, the plaintiff alleges the following facts: On or about February 13, 2004, while the plaintiff was walking inside New Britain's city hall in the area in front of the clerk's office, he was injured when he tripped and fell over an exposed base that was located at the foot of a column. The plaintiff alleges his injuries are due to the negligence of Corbin and the city of New Britain. The plaintiff brings count one against Corbin and the city of New Britain pursuant to General Statutes § 7-465 and count two against the city of New Britain pursuant to General Statutes § 52-557n.
A motion to cite in Corbin as a party defendant was filed along with the amended complaint and was granted September 11, 2006.
On October 19, 2006, the defendants filed a motion for summary judgment on the grounds that Corbin, the director of the department of public works for the city of New Britain, is not the municipal employee who is responsible for the area where the plaintiff fell, and that the defendants have governmental immunity. The defendants have filed a memorandum of law in support of the motion. On January 12, 2007, the plaintiff filed a memorandum of law in opposition. The matter was heard on the short calendar on February 13, 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.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "In 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 him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "[T]his 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).
Count One
In their memorandum of law in support of the motion for summary judgment, the defendants argue that judgment must enter in favor of Corbin as he is not the municipal employee who is responsible for the area where the plaintiff fell. As director of the department of public works for New Britain, Corbin is responsible for the construction and maintenance of roads, subways, sewers, street lifting, sidewalks, garbage and yard buildings. See Corbin affidavit § 5. The defendants assert that the department of property management attends to the repair, alternation and improvement of all public buildings and, in particular, the party responsible for the city hall facility is the facilities superintendent. They further argue that as this count is brought pursuant to Conn. Gen. Stat. § 7-465, judgment must enter in favor of the city of New Britain because this statute provides municipal employee indemnification and, as Corbin is not the correct defendant, the city does not have to indemnify him. In response, the plaintiff asserts that the city of New Britain is not immune from liability for this failure to name an individual city employee because, pursuant to § 52-557n, the plaintiff can bring a direct action against the city without naming a city employee.
Count two is brought pursuant to § 52-557n and is addressed under count two.
Section 7-465 provides, in pertinent part,:"(a) Any town, city or borough, not withstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for . . . damages . . . to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment . . ." "[T]he legislature has provided for indemnification by municipalities of municipal officers, agents or employees who incur liability for certain of their official conduct." Williams v. New Haven, 243 Conn. 763, 768, 707 A.2d 1251 (1998). "A plaintiff bringing a suit under General Statutes § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification . . . This is a personal liability requirement that calls for an inquiry independent of the statute itself, an inquiry into the factual matter of individual negligence . . . Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual." (Citations omitted; emphasis in original; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).
In order to properly plead an action under § 7-465, the plaintiff must bring a successful claim against an individual first before the municipality is obligated to indemnify the employee. See Gaudino v. East Hartford, 87 Conn.App. 353, 356, 865 A.2d 470 (2005) (affirming the trial court's ruling that the plaintiff's negligence claim failed because they sued the municipality without bringing an action against employees or agents of the municipality"); Iannotti v. Faughnan, Superior Court, judicial district of New Haven, Docket No. CM 94 0357157 (July 16, 1998, Flanagan, J.) [ 22 Conn. L. Rptr. 490] (granting defendant's motion for summary judgment as the plaintiffs failed to sue the individual police officer and were therefore precluded from recovering against the municipality). In Violano v. Fernandez, 280 Conn. 310, 901 A.2d 1188 (2006), the court affirmed the lower court's decision that, under § 7-465, the municipality was not liable to the plaintiff as the court found the individual employee not liable.
In this case, the plaintiff has erroneously named Corbin as the municipal employee who is responsible for the area of city hall where the incident occurred. The fact that the maintenance of city hall is not one of Corbin's duties does not appear to be in dispute. Therefore, he cannot be found negligent for failing to fulfill responsibilities that are not within his purview. As Corbin is not liable, New Britain is not liable because the city's liability is predicated on Corbin's liability.
Count Two CT Page 7330
With respect to count two, the plaintiff alleges negligence against the city of New Britain. The defendants argue that, pursuant to Conn. Gen. Stat. § 52-557n, judgment must enter in favor of the defendant as a municipality is not liable for the alleged negligent acts or omissions of its employee if the action involves the exercise of judgment or discretion. The plaintiff counters that inspecting and keeping the town hall in a safe condition is not a discretionary act but a ministerial one and, therefore, the defendant is not immune from liability. Although the plaintiff does not cite any law to illustrate the difference between a discretionary act and a ministerial act, he claims that the issue of whether the acts complained of were discretionary or ministerial presents a question of material fact and must be decided by a trier of fact.Section 52-557n "abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages." Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006). "The [common law] doctrines that determine the tort liability of municipal employees are well established . . . 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 . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . .
General Statutes § 52-557n states 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 . . . (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 . . . (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."
"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." (Citation omitted, internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318-19.
"Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citation omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "This court has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 613. The court has distinguished between acts that are discretionary versus ministerial. For example, the court in Violano affirmed the Appellate Court's determination that the defendant's failure to secure premises taken by eminent domain was a discretionary act and, as such, qualified immunity applied to the defendant's acts and omissions. Violano v. Fernandez, supra, 280 Conn. 311. See also Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989) (failure to enforce applicable statutes, regulations and/or codes regarding inspections of multi-family rental unit for fire safety hazards and prescribe remedial action to be taken by owner of units were "acts . . . [that] required in some measure the exercise of judgment by a municipal employee" and "were not ministerial"); Segreto v. Bristol, 71 Conn.App. 844, 857, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002) (city's allegedly negligent design and maintenance of stairwell was discretionary in nature as "[d]eterminations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment").
There are three exceptions to qualified immunity for discretionary acts, "first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 108, 708 A.2d 937 (1998). In the present case, the plaintiff has not raised any of these exceptions as none apply.
The court has found acts to be ministerial when there is a written policy, directive or guidelines given to the employees as to their actions in a particular situation. In Martel v. Metropolitan District Commission, 275 Conn. 38, 881 A.2d 194 (2005), the court concluded that because the plaintiff failed to present any evidence of a policy or directive requiring the defendants to perform inspections of the trails on their land, this was an indication that the defendants were to exercise their judgment as to how to supervise and maintain the trails. In Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992), the court found that governmental immunity did not apply as the act of deciding when the school's sidewalk needed to be cleared was ministerial as a bulletin that had been distributed mandating that the maintenance staff had to inspect the sidewalk on a daily basis and, while on duty, had to keep the sidewalks clear of ice and snow. In a case that was brought against a teacher for negligently opening a door into a plaintiff injuring her, the court determined that governmental immunity applied because the plaintiffs' complaint failed to allege a directive informing the teacher on how to open the door. Colon v. Board of Education, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000.)
The plaintiff in the present case does not offer any policy of the defendant's regarding the proper inspection and maintenance of the town hall facility. As there are no facts in dispute regarding such a directive issued by the city to the appropriate employees regarding the inspection and maintenance of the town hall, the court may interpret the act of inspection and maintenance to be discretionary rather than ministerial. As the act is interpreted as discretionary, the doctrine of government immunity applies and New Britain is not liable to the plaintiff.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted.