Opinion
No. CV06-5004770S
April 22, 2008
MEMORANDUM OF DECISION MOTION FOR SUMMARY RE JUDGMENT #123
On June 25, 2007, the plaintiff, Donald Shanley, filed a one-count amended complaint against the defendants: the town of Branford (Branford), Edward Masotta, director of the Branford Department of Public Works (DPW), and DPW employees Edward Fay, Mike Donadio and Chris MacKinnel (defendant employees). The following facts are undisputed in the evidence provided by the parties. The plaintiff resides at 18 Plant Road in Branford, Connecticut. Branford has a right-of-way across his property. Pursuant to a consent decree (Consent Decree) between Branford, the State of Connecticut and the United States Environmental Protection Agency (EPA), Branford needed to clear debris from an area behind the plaintiff's property. On the morning of December 18, 2004, the defendant employees arrived at the plaintiff's home to work on creating a temporary access road on the right-of-way. They asked the plaintiff to move his truck from the right-of-way. The plaintiff moved his truck and the defendant employees worked until approximately noon, then left. The equipment the defendant employees had used left ruts in the plaintiff's yard. A one-inch PVC was exposed between, and parallel to, the ruts. The plaintiff, who habitually parked his truck where the ruts were left, moved his truck back to that part of the yard on the following Monday and continued to park the truck there, On January 2, 2005, the plaintiff, while going to his truck from his home, tripped on the pipe, fell and sustained injuries.
The plaintiff's amended complaint alleges that the defendants were negligent in leaving the PVC pipe exposed. On November 13, 2007, defendants filed a motion for summary judgment on the ground that the negligence claim fails because the defendants are entitled to governmental immunity. The plaintiff filed a memorandum of law in opposition to the motion on January 14, 2007. The court heard oral arguments on the short calendar for February 19, 2008.
"[S]ummary 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." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "[T]he 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. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
In their memorandum of law supporting the motion for summary judgment, the defendants argue that the doctrine of governmental immunity shields government employees from claims of negligence that arise in the course of their discretionary duties. The defendants argue that in clearing the right-of-way, they were performing a discretionary duty. Therefore, the defendants assert, governmental immunity applies. They further argue that General Statutes § 52-557n(a)(2) shields municipalities from liability where the negligent performance of a government duty requires the exercise of discretion.
The plaintiff maintains in his memorandum of law opposing summary judgment that governmental immunity does not apply here. Specifically, he argues that the work on his property was a ministerial, not discretionary, function, and therefore not covered by governmental immunity. Furthermore, the plaintiff asserts that even if the work on the right-of-way was discretionary, this situation fits into the "imminent harm-identifiable victim" exception to governmental immunity and that this exception places into issue whether the exposed PVC pipe was an imminent harm, thus creating a disputed issue of material fact.
The first step in this inquiry is to determine whether the defendants' actions were discretionary or ministerial. Public officials engaged in governmental duties enjoy immunity "so long as they act in good faith, in the exercise of an honest judgment, and not in the abuse of their discretion, or maliciously or wantonly . . ." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 166, 544 A.2d 1185 (1988). "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 . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003). A ministerial act is an act which is "performed in a prescribed manner without the exercise of judgment or discretion . . ." Heigl v. Board of Education of New Canaan, 218 Conn. 1, 5, 587 A.2d 423 (1991). Discretionary acts are those which involve the exercise of judgment, interpretation or discretion and are acts not entitled to governmental immunity. Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989). "Whether the acts complained of . . . were governmental or ministerial is a factual question which depends upon the nature of the act complained of." (Citations omitted.) Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982). However, "[t]his court 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).
The key to distinguishing ministerial from governmental, or discretionary, acts is the presence of some rule of law addressing the act at issue. "If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance. For example, an official may be sued in a civil action for refusing to recognize a validly cast vote . . . or for releasing from quarantine a dangerous dog before the expiration of the time period required of the official." (Citation omitted.) Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982).
In Martel v. Metropolitan District Commission, 275 Conn. 38, 881 A.2d 194 (2005), the Supreme Court concluded that a plaintiff's failure to present any evidence of a policy or directive requiring the defendants to perform inspections of trails on their land was an indication that the defendants were to exercise their judgment as to how to supervise and maintain the trails, and thus maintenance of the trails was a discretionary duty. Likewise, in Segreto v. Bristol, 71 Conn.App. 844, 804 A.2d 928 (2002), the Appellate Court found that maintenance of a stairway in a senior center was a discretionary duty. "The complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply. Additionally, although it was not expressly relied on by the court, the affidavit of the city's claims and loss coordinator stated that the city had no such policy in place for the general maintenance and design of the stairway, and the plaintiff failed to offer an affidavit that would have tended to put that fact in dispute." Id., 857. See also Colon v. Board of Education, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) (court determined that governmental immunity applied in case brought against teacher for negligently opening door into plaintiff because complaint failed to allege directive informing teacher how to open the door); Degoursey v. Town of Branford, Superior Court, judicial district of New Haven, Docket No. CV 97 0399820 (August 28, 2001, Jones, J.) [30 Conn. L. Rptr. 326] (since there were no statutes, ordinances, regulations or directives specifically governing manner in which drain pipes and catch basins were to be designed, maintained or inspected within recreational facilities, duties in this regard were discretionary).
In contrast, courts may find duties to be ministerial where there are statutes, regulations or other rules of law that specifically apply to the act at issue. For example, the court found that governmental immunity did not apply in Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992), because the act of deciding when a school's sidewalks needed to be cleared was ministerial. The court reached this conclusion because a bulletin had been distributed that mandated that maintenance staff inspect sidewalks on a daily basis and, while on duty, keep the sidewalks clear of ice and snow. See also Pitsch v. City of Ansonia, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 5000152 (August 29, 2006, Shluger, J.) [41 Conn. L. Rptr. 882] (court was unable to construe obligation to provide handrails on bleacher stairways as discretionary because plaintiff provided witness affidavit stating that National Building Code, adopted by Connecticut, required that handrails be provided).
The existence of an applicable rule of law does not, however, necessarily lead to the conclusion that an act is ministerial. In Evon v. Andrews, supra, 211 Conn. 507, the court found that the enforcement of applicable regulations regarding inspections of multi-family rental units for fire safety hazards and the prescription of remedial action to be taken by owners of units were "acts . . . [that] required in some measure the exercise of judgment by a municipal employee" and "were not ministerial." See also Granby v. Schlicht, Superior Court, judicial district of Hartford, Docket No. CV 01 0811944 (November 18, 2002, Wagner, J.T.R.) (although there was statutory duty to maintain and repair roads, defendant's performance of repairs and alterations on specific road was found to be discretionary).
It is undisputed in the case at hand that the defendants performed the work on the right-of-way pursuant to the Consent Decree. The plaintiff claims that the Consent Decree enumerates specific objectives for Branford to fulfill in order to achieve compliance with the federal Clean Water Act. Virtually all of these directives require Branford to submit to the EPA and the Connecticut Department of Environmental Protection (CDEP) preliminary reports and plans for the work necessary to fulfill the objectives. The plaintiff maintains that since these plans were to be approved by the EPA and the CDEP, it follows that any work carried out in accordance with these plans, such as work on the right-of-way, was a ministerial act.
The Consent Decree is thirty-five-pages long and prescribes numerous tasks for Branford to carry out in order to comply with federal and state law. Yet there is no indication of how any of these tasks are to be performed, only that plans must be submitted to the EPA and the CDEP for approval. Presumably any directives on how the tasks were to be carried out would be contained in these plans — none of which are in evidence. Page fourteen, paragraphs 35-36, of the Consent Decree specifically addresses easements, mandating that Branford submit a schedule for the clearing of easements, which are identified in "Alternative Table 8." Defendants' Exhibit C, p. 14, ¶ 36. Neither this table, nor the easement-clearing schedule, nor any document addressing how the clearing of easements was to be carried out has been submitted as evidence.
While the evidence shows that there was a broad mandate to perform work in furtherance of the Consent Decree's objectives, including clearing easements, the plaintiff has not put forth any evidence that shows a directive specifying how such work should be carried out. Thus, this court finds that the nature of the defendants' work on the right-of-way was discretionary.
Discretionary acts are usually covered by governmental immunity although "[t]here are three exceptions to discretionary act immunity . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when 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 . . ." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006). It is the third exception — the "imminent harm-identifiable person" exception — that the plaintiff seeks to apply in the case at hand.
As an initial matter, this court notes that the exception is applicable both to municipal employees and municipalities. The Supreme Court, in Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004), suggested that the exception might not apply to municipalities when it commented in a footnote that the exception "applies to a municipal employee, as distinct from the municipality itself . . ." (Emphasis in original; internal quotation marks omitted.) Id., 677 n. 9. More recently though, the Supreme Court made it clear that the exception could apply to municipalities. "An exception to this immunity exists — and municipalities are exposed to possible liability — when 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." (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 609.
"The imminent harm exception to discretionary act immunity applies when 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 . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that ham." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329. In Doe v. Peterson, the Supreme Court emphasized that these three requirements "are analyzed conjunctively" and "the criteria of `identifiable person' and `imminent harm' must be evaluated with reference to each other." Doe v. Petersen, supra, 279 Conn. 620.
Both parties have agreed that the plaintiff was an identifiable person. Regarding the imminent harm requirement, the plaintiff argues that whether he was subject to an imminent harm — tripping on the exposed PVC pipe — is a question of fact for the jury and summary judgment is inappropriate. The defendants argue that whether the plaintiff was subject to an imminent harm may be determined as a matter of law.
Black's Law Dictionary defines imminent as: "near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous. Something which is threatening to happen at once; something close at hand; something to happen upon the instant; close although not yet touching, and on the point of happening." Black's Law Dictionary (6th Ed., 1990). Connecticut courts "have utilized criteria including the duration, geographic scope, significance and foreseeability of the risk of harm to gauge whether that risk correctly may be considered imminent." Doe v. Petersen, supra, 279 Conn. 618 n. 10.
The archetypal imminent harm case is Sestito v. Groton, 178 Conn. 520, 523, 423 A.2d 165 (1979). "In Sestito, the Supreme Court applied the imminent harm exception when a participant in a donnybrook outside of a bar was shot and killed; the court found that immunity did not apply to an officer who observed the fight in progress yet failed to intervene. In that case, the dangerous situation was apparent to the officer: the officer knew there was a fight in progress, which posed imminent harm to the participants." (Internal citations omitted.) Carangelo v. FCT, LLC Sliders Sports Bar, Superior Court, judicial district of Waterbury, Docket No. CV 04 0183954 (November 7, 2007, Upson, J.) [44 Conn. L. Rptr. 495].
The Supreme Court has also found that the exception applied in less dramatic circumstances. In Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), the court held that the plaintiff, a schoolchild who had slipped and fell due to ice on a main walkway of the school campus, was an identifiable victim of an imminent harm. Id., 650. In reaching this conclusion, the court noted that "the danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus. Further, the potential for harm from a fall on ice was significant and foreseeable." Id. Then, in Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), the court concluded that a plaintiff child, who had been tripped when walking down a school hallway en route from lunch to recess, also fell within the exception. The court reasoned that the danger involved "a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the [school] principal testified that every other aspect of the lunch period involved supervision." Id., 110.
The Appellate Court, in Tryon v. Town of North Branford, 58 Conn.App. 702, 712, 755 A.2d 317 (2000), defined imminent harm as "harm ready to take place within the immediate future." The plaintiff in Tryon was bitten when she grabbed a dog brought to a firemen's parade by a municipal employee. The court noted that the "harm caused was not of an unspecified type that could have occurred at any time or at any place in the future or to anyone." Id., 717.
A harm is not imminent when the risk may materialize at some unspecified time. In Violano v. Fernandez, supra, 280 Conn. 310, the Supreme Court refused to apply the exception because the risk of the harm at issue — theft of the plaintiffs' personal property from a property which had been taken by eminent domain by defendant city — was not subject to a limited time period. The theft had occurred about seven months after the defendants took title and control of the property. Id., 331-32. See also Evon v. Andrews, supra, 211 Conn. 508 (court concluded that imminent harm exception did not apply to plaintiffs' decedents who were killed in apartment house fire. "The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future"); Shore v. Stonington, 187 Conn. 147, 148-49 and n. 1, 154, 444 A.2d 1379 (1982) (plaintiff, whose decedent was killed by drunk driver who had been stopped earlier by municipal police officer, brought negligence action against municipality and police officer; exception did not apply because police officer could not have been aware that driver's conduct threatened identifiable victim with imminent harm).
In the case at hand, the parties do not dispute the fact that the pipe was exposed for fifteen days between the day the defendant employees worked on the right-of-way and the day on which the plaintiff tripped and fell. The duration of this risk of harm stands in sharp contrast to the short duration of the risk of harm in Burns, which was limited to the brief duration of temporary icy conditions. Burns v. Board of Education, 228 Conn. 651. The plaintiff's risk of tripping on the PVC pipe was not a harm ready to take place within the immediate future. Moreover, not only may the plaintiff have tripped, or not tripped, at any time during this fifteen-day period, whether he did so, like the outbreak of the fire in Evon, implicated "a wide range of factors that can occur, if at all, at some unspecified time in the future." Evon v. Andrews, supra, 211 Conn. 508. These factors might include the time of day and the pace at which the plaintiff was making his way to the truck. The plaintiff has put forth no evidence that indicates a material issue of fact exists as to whether the risk of tripping on the PVC pipe comprised an imminent harm.
Furthermore, as noted above, the identifiable person-imminent harm exception requires not just that there be an imminent harm to an identifiable victim, but "a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." Doe v. Peterson, supra, 279 Conn. 616. The plaintiff has presented no evidence that a public official knew that the work on the easement would subject him to an imminent harm.
In his deposition (Defendants' Exhibit A, pages 24-26, 28-29, 60), the plaintiff testified that he informed an official of the ruts and exposed pipe in his yard. However, he did not tell the official that the pipe presented a tripping hazard. In addition, the plaintiff identified this official as being in the "Sewer Department" and not in the DPW. Exhibit A, p. 24.
CONCLUSION
"[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803 (2004). The evidence presented by the parties shows there to be no genuine issue of material fact regarding the applicability of governmental immunity. The defendants' motion for summary judgment is therefore granted.