Opinion
No. CV 01-045489S
June 30, 2006
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The defendants in this matter are the New Haven Board of Education, Dr. Reginald Mayo who is alleged to be responsible for the promulgation of regulations for the use of school facilities, staffing and maintenance of such facilities, and Leroy Williams who is also a defendant and is the principal of the Roberto Clemente School. In their answer the defendants admit to the characterization of the individual defendants' job responsibilities.
The complaint goes on to allege that the plaintiff Cotto on July 16, 1999 at 9:45 a.m. was in the process of using a lavatory at the school and he was caused to slip and fall on a wet floor which the defendants or their agent had or should have had notice of at the time of the fall. The complaint goes on then to set forth various claims based on premises liability negligence.
The complaint then says the defendants are liable to the plaintiff for any injuries and losses sustained pursuant to Section 7-465 and Section 10-235 of the general statutes.
The defendants have now filed a motion for summary judgment claiming they are entitled to governmental immunity and arguing that the plaintiff can rely upon no exceptions to bar application of the doctrine of governmental immunity.
The motion also states that the claims based an Sections 7-465 and 10-235 must fail as a matter of law. The defendants have submitted no affidavits or other documents besides case law in support of their motion.
The defendants rely on the allegations of the complaint to establish a defense of governmental immunity. As will be discussed it is claimed the alleged negligence of the Board, the city and the named agent defendants involved acts for failures to act which were discretionary; at common law and by statute a municipality can rely on such a defense, see § 52-557n(a)(2)(B), and a city employee can similarly rely on such a defense when the actions subject to complaint are governmental. Wadsworth v. Middletown et al., 94 Conn. 435, 439 (1920). The complaint is an admission by the plaintiff and the defendants can rely on its allegations to establish the basis for a defense.
The plaintiff has objected to the motion and has submitted an affidavit. It repeats the allegations of the complaint describing the accident and the cause of it. It also makes the following representations:
3. On July 16, 1999 (date of accident) the plaintiff . . . was employed by the Latino Youth Development Inc. as a camp director.
4. The Latino Youth Development Inc. leased space from the defendant Board of Education of the City of New Haven at the Roberto Clemente School.
These same allegations were made in paragraph 1 of the substitute complaint. In its answer the defendants responded by saying as to these matters the defendants had "insufficient knowledge and information to either admit or deny the allegations" — they left the plaintiff to its proof.
The standards to be applied in deciding a motion for summary judgment are well-known. If there is a genuine issue of material fact the court cannot decide it. If there is not, the motion should be granted to spare parties the expense and inconvenience of litigation.
(A)
The court will first set forth the framework of the dispute between the parties.
The defendants claim, and the plaintiff does not appear to dispute, that this action is brought pursuant to Section 52-557n of the general statutes. That statute in subsection (a)(2)(B) codifies common-law principles in granting immunity where injury is caused by "negligent acts or omissions which require the exercise of judgment or discretion." Although Lombard v. Edward J. Peters, Jr. P.C., 252 Conn. 623, 628 (2000), states that generally the issue of whether an act is ministerial or discretionary is a question of fact for the jury "there are cases where it is apparent from the complaint."
Here the defendants argue the alleged failure of the defendants to mop away or warn or inspect for the slippery condition of the lavatory floor all involve the exercise of discretion. See Evon v. Andrews, 211 Conn. 501, 506-07 (1989). The defendants' brief then goes on to say that there are three exceptions under which liability may attach to a city or an employee in the performance of discretionary acts. The defendants recognize that under the facts of this case the only exception applicable would be the "identifiable person/imminent harm exception." The defendants cite several cases which they claim support their position as to why this particular exception does not apply here. Evon v. Andrews, supra; Burns v. Board of Education, 228 Conn. 640, 646 (1994); Purzycki et al. v. Town of Fairfield, 244 Conn. 101, 110 (1998). It should be noted that although the defendant city does not raise the issue it is apparently true that the "identifiable person/imminent harm" exception does not apply to actions against the municipality itself, query whether it applies to a city agency or board. See Pane v. Danbury, 267 Conn. 669, footnote 9.
In most part the plaintiff responds to the defendants' argument by arguing that the "identifiable person/imminent harm" exception can be relied upon by him to defeat governmental immunity and cites Tryon v. North Branford, 58 Conn.App. 702, 710 (2000), and Prescott v. Meriden, 273 Conn. 559, 763 (2005). So far then, whether the defendants' motion is granted or not depends on how the court were to analyze the not always so easy question of whether this exception applies.
But in its brief the plaintiff appears to raise another issue which would avoid an immunity claim where it is said:
Moreover, the defendant Board of Education in leasing the space to the Latino Youth Development Inc. derived some financial benefit. The defendant can not at this point disclaim any responsibility for the care and maintenance at its facilities when it has specific knowledge of person [sic] being on property.
The court will first deal with this aspect of the case — in leasing the premises was the city acting in a proprietary manner not a governmental capacity.
Then the court will assume the city was acting as a governmental entity, and further accepting that discretionary acts or failures to act were involved here, which the plaintiff does not seem to dispute, will try to decide whether the "identifiable person/imminent harm" exception to immunity applies.
(B)
The concept of municipal immunity has an important exception — there is no immunity and there can be liability for actionable conduct in the performance of a city's proprietary functions.
To understand the exception to municipal immunity it is first necessary to understand why immunity is granted to municipalities and their employees in the first place. In "Municipal County, School and State Tort Liability" 57 Am.Jur.2d 1 cit § 2, page 42-42, the basis of the doctrine of governmental immunity is set forth:
Sovereign immunity is a rule of social policy that protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities. Additional, governmental decision makers exercising discretionary functions are immune from suit, because the courts should not chill legislative discretion in policy formation by imposing tort liability for discretionary decisions, nor should governmental employees be stripped of their independence of action or intimidation by the fear of personal liability and vexatious suits. Thus, immunity serves two policies: It shields those government acts and decisions impacting on large numbers of people in a myriad of unforeseen ways from individual and class actions, the continual threat of which would make public administration all but impossible, and it preserves the autonomy of coordinate branches of government.
See Horton v. Meskill, 172 Conn. 615, 624 (1977).
The notion of having this doctrine to preserve the autonomy of coordinate branches of government refers to separation of power concerns and it has been said that this concern is what really underlines the need to protect municipalities from suits for discretionary decisions. Owens v. City of Independence, 442 U.S. 622, 648 (1980).
These reasons for governmental immunity do not apply where the municipality or its agents do not act in a governmental capacity but perform the same proprietary functions as any private corporation. That being the case courts have long held that there is no immunity from liability where the city acts in a proprietary capacity; it is responsible for its torts just as any other private entity. Owen v. City of Independence, id. at page 645, 57 Am.Jur.2d at § 47, page 83. Permitting such suits does not open the way for courts to second-guess or control how municipalities carry out governmental functions because a proprietary not a governmental function is being performed.
As stated in the previously referenced Am.Jur. article, the law throughout the jurisdictions is as follows.
A common test for the applicability of governmental tort immunity is whether the act or function giving rise to potential liability can be characterized as governmental or proprietary in nature. Immunity is retained for governmental or public acts or functions but liability may be imposed if the act or function is deemed merely proprietary or private in nature. Thus acting in a proprietary mode is considered an exception to the general rule of governmental immunity.
57 Am.Jur.2d § 47 at page 83.
The Am.Jur. article goes on to discuss some of the tests used by the courts to determine whether a particular undertaking by a municipality is governmental or proprietary. At § 53, page 88 it is said that "Stated simply, if the undertaking of the government is one in which only a governmental agency could engage, it is governmental in nature; it is proprietary and private when any corporation, individual or group of individuals could do the same thing." Herring ex rel Marshall v. Winston Salem/Forsyth County Bd. Of Educ., 529 S.E.2d 458, 461 (N.C.App. 2000).
At Section 55, page 90 it says "In other words immunity is available for 'governmental functions' that are those public acts that the municipality performs as the agent of the state in furtherance of the general law for the interest of the public at large. An example of an act performed for the public good includes the hosting of high school sports as part of the secondary education process . . ." See Bailey v. City of Austin, 972 S.W.2d 180, 192 (Tex.App. 1998), cf. Junes v. Williams, 431 N.W.2d 419, 422 (Mich.App. 1988).
At Section 56, pages 90-91 it says that: "A corollary to the test for a general or common public benefit in distinguishing between governmental and proprietary acts or functions states that local governmental entities are not immune from tort liability for proprietary functions exercised in an enterprise of a commercial character or usually carried on by private individuals or for profit, benefit or the advantage of the governmental unit conducting it." See for example Flowing Wells Inc. Dist. v. City of Tucson, 863 P.2d 915, 916 (Ariz.TaxCt. 1993). A question under this test is the finding of a proprietary function "where the government charges fees in excess of amounts needed to offset related expenses." Kootsillas v. City of Riverview, 543 N.W.2d 356, 359 (Mich.App. 1995), aff'd., 564 N.W.2d 45 (1997).
The article goes on to discuss various types of proprietary functions as, for example, "acting as a landlord in a proprietary capacity," § 57 at page 93. For example the law in New York is to the effect that: "Generally, a public entity is immune from negligence claims arising out of the performance of its governmental functions . . . where, however, a public entity acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord . . ." Johnson v. NYC Bd. of Education, 177 Misc.2d 310, 312, 676 N.Y.2d 444 (1998); Preston v. State of N.Y., 59 N.Y.2d 997, 998, 453 N.E.2d 1241 (1983); Bonner v. City of N.Y., 73 N.Y.2d 930, 932, 536 N.E.2d 1147 (1989).
What is Connecticut's position on this? Section 52-557n(a)(1) provides that "except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . (B) Negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." In Martel v. Metropolitan District Commission, 275 Conn. 38, 53 (2005), the court "assume(d) without deciding" that § 52-557n(a)(1)(B) codifies the common law. At common law it was recognized in our state that where a municipality exercises a proprietary function it does not have immunity. Martel went on to say that, "It is well established that a proprietary function is an act done in the management of a municipality's property or rights for its own corporate benefit or profit and that of its inhabitants . . .' Richmond v. Norwich, 96 Conn. 582, 588 . . . (1921)." The Martel court went on to point out that "a municipal entity is subject to liability pursuant to § 52-557n(a)(B), however, only if its allegedly tortious conduct was inextricably linked to a proprietary function." Id., p. 53, quoting from Elliot v. Waterbury, 245 Conn. 385, 413 (1998).
At common law in our state ". . . like obligations and duties are imposed upon a city performing proprietary functions as are imposed upon a company when governed by comparable statutory or charter language; Abbott v. Bristol, 167 Conn. 143, 150 (1974); also it has been held that "a town owning property for purposes of gain is liable for the negligence of its servants in dealing with that property." Horrigan v. Norwich, 77 Conn. 358, 365 (1904).
As noted, the plaintiff alleges in his complaint and supports by his affidavit that at the time of the accident he worked for an organization that leased space from a school which the defendant Board admits it controlled and managed. The defendant has not submitted anything to dispute that Latino Youth Development Inc. rented office space at the school nor has anything been presented to the court indicated the lease was not an ordinary commercial lease agreement — no claim is made supported by affidavit or other material that, for example, only nominal rent was charged to the lessee. There is nothing to indicate that, in renting the space to Latino Youth Development Inc., the defendant was acting as anything other than a private landlord with space to let. Renting office space, as such, is not a governmental activity. Also the provision of lavatory space for lessees would appear to be intrinsically bound up with the act of leasing space and the normal and ordinary use by lessees and their employees of that space.
In light of § 52-557n(a)(1)(B) and common-law cases on proprietary function barring claims of governmental immunity the court cannot grant the motion for summary judgment as there is at least a prima facie case that the defendant in leasing the property was acting not as a government entity but as an ordinary proprietor renting offices and is thus liable for discretionary acts of negligence.
In footnotes in Elliott, supra, N16, and Martel, N10, there is reference to the fact that the defendant municipalities argued that § 52-557n(a)(2)(B) "modifies the common law by extending a statutory grant of governmental immunity to discretionary acts performed for pecuniary benefit" and that the statutory subsection "applied . . . the governmental discretionary immunity to proprietary functions of municipal government." The court reserved decision on the issue since in both cases the municipal acts in dispute were held not to be proprietary. Should there be governmental immunity for discretionary acts of negligence where the city was exercising a proprietary function?
Here the acts claimed to be negligent were of a discretionary nature. This court will assume the Supreme Court will not accept such an argument. It is certainly not explicitly suggested by the statute as it should be since such an interpretation would be a dramatic reversal of the common law. If such an interpretation is given to subsection (B)(1) what realistic viability does the proprietary function exception to governmental immunity have? The subsection refers to "negligence in the performance of functions" from which a profit is derived. Why would not the ordinary meaning be given to the word "negligence" which certainly encompasses in its fold discretionary acts. The court does not know of the operation of any presumption to be applied to the interpretation of statutory language which is geared to expand governmental immunity into areas not previously occupied at common law — one would think in a democratic state the presumption should operate in the other direction seeing that such an expansion limits the people's right to redress for harms which could be the product of tortuous conduct by the state and its agents.
Finally, limiting the scope of liability in negligence suits against municipalities if the acts are of a discretionary nature, even though the municipality was exercising a proprietary function, simply appears to turn things on their head. In other words two of the reasons given for barring civil liability where discretionary government duties are involved are (1) "courts should not pass judgment on policies and decisions of the other branches of government . . . (2) "negligence does not provide the framework with which to analyze certain government actions where the real questions are not due care or reasonableness, but social wisdom, political practicability and economic expediency." McQuillin, The Law of Municipal Corporations, § 53.04.10 (3d ed.), quoting Gregorre v. Biddle, 177 F.2d 579 (CA2, 1949). But the whole point of the proprietary exception to government immunity negates the foregoing concerns so what can be the rational basis for placing the discretionary filter on negligence actions brought against municipalities in their proprietary capacity?
(C)
Assuming the foregoing analysis is incorrect and that the defendant Board was acting in a governmental capacity surrounding the circumstances leading to this accident, then this action will lie only if the plaintiff's claim falls into one of three exceptions to qualified immunity for discretionary acts. The only exception applicable here is that which permits a tort action in circumstances of likely harm to an identifiable person.
This is a concept sometimes difficult to apply but certain refinements have been placed upon it in Burns v. Bd. of Education, 228 Conn. 640 (1994), and Purzyski v. Town of Fairfield et al., 244 Conn. 101 (1998).
Burns discusses this particular exception in terms of a foreseeability analysis. At page 647 the court says:
In delineating the scope of a foreseeable class of victims' exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim.
The court goes on to point out in Bums that statutes and constitution indicate children are to be the "beneficiaries of certain duties of care," id. p. 648, and under state law children are required to attend school. Thus the school board and its agents have a duty to protect children. Here the child fell on the main accessway to the school during school hours while the child was compelled to be at school — also the accident could not have occurred at just any time in the future. It was "limited to the duration of the temporary icy condition in this particularly treacherous area of the campus. Further the potential for harm for a fall on ice was significant and foreseeable." Id. p. 650. All of this goes to the foreseeability of harm to a member of a particular class of individuals (here school children) subject to a foreseeable danger at a particular point in time where harm was foreseeable as a result of the danger which was known or should have been known of the school authorities.
Purzycki is even more to the point on the role of a foreseeability analysis. At 244 Conn. 111, the court said:
Furthermore, as noted previously, the imminent harm was limited to a one-half hour period each day when the second grade students were dismissed to traverse an unsupervised hallway, when school administrators were aware that unsupervised children are more likely to run and engage in horseplay leading to injuries. Therefore, because the school administrators here had reason to foresee the danger that could occur on a daily basis the harm in the present case was not as remote a possibility.
In Evon the basis of the claim was that the fire causing the death of the plaintiff's decedents resulted from the failure of the city to enforce various state and local codes. The court held the action was properly dismissed since the identifiable person, imminent harm exception could not be met — the risk of fire involves many factors which could occur at any time in the future.
In this case a special relationship between the plaintiff and the defendants which imposed a duty of care did not arise from statute or constitution but from the very lease agreement entered into on behalf of the city with the plaintiff's employer. The defendants had a duty as any other party owning or controlling property to keep it reasonably safe for expected use by lessees and their employees.
The scope of the risk was not unlimited so as to cover the whole building or its grounds — anyone managing property under a lease arrangement must be held to know employees of lessees would use lavatory facilities. They are in effect invited to do so by the very lease that was entered into by the parties to it. Furthermore it was foreseeable that someone might slip on a wet lavatory floor during the period of time it was wet.
The problem with addressing this aspect of the motion is that neither side has really offered anything to allow the court to determine whether, for example, the wet floor condition was caused by the defendants' employees, due to a sudden pipe burst of which the defendants could not have had notice, a leaking pipe situation of which the defendants had or should have had notice. All of this goes to the issue of the applicability of the exception being discussed to governmental immunity and is of course a part of the underlying premises liability claim.
Based on the record submitted the court cannot say the requirements of this exception have not or better put cannot be met. Therefore it does not feel it appropriate to grant the motion for summary judgment on the basis of governmental immunity.
As noted perhaps too often, the identifiable person imminent harm exception does not apply to permit actions against a municipality. Pane v. Danbury supra — query whether it applies to actions against a board. But the defendant city and board have not raised this argument.
(D)
In light of the foregoing the court will not dismiss the claim made under § 7-465 of the general statutes. However, the court agrees with the weight of Superior Court authority that § 10-235 of the general statutes does not authorize a direct cause of action against a board of education by an injured plaintiff and relies on the reasoning of Judge Martin in Board v. Acorn Acres, 28 Conn. L.Rptr. 24 (2000).
The court only will dismiss the claim made under § 10-235 of the general statutes and denies all other aspects of the motion for summary judgment. The court will deny the motion as it pertains to the first and second counts and as it seeks to dismiss the § 7-465 claim.