Opinion
No. CV04-5000002
February 27, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#110)
This is a slip and fall personal injury lawsuit brought by the plaintiff, Lucy Grignano, against the defendant, City of Milford (City). The gist of the suit is that the plaintiff sustained physical injury when she was caused to trip and fall by an uneven stone on a public patio known as Milford Landing. In the present motion, the City asserts that it is entitled to summary judgment because the plaintiff's complaint is barred by the doctrine of governmental immunity. The plaintiff objects to the motion asserting that the City's negligence was due to the failure to perform a ministerial act and therefore governmental immunity is inapplicable. For the reasons set forth below, the motion is granted.
DISCUSSION
"A municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Citations omitted.) Gauvin v. New Haven, 187 Conn. 180, 184 (1982). The hallmark of a discretionary act is that it requires the exercise of judgment. Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628 (2000). This dichotomy is codified in General Statutes § 52-557n which, while abrogating common law municipal immunity, maintained such immunity as to "negligent acts or omissions which require the exercise of judgment or discretion." § 52-557n(a)(B).
Section 52-557n(a) in relevant part provides:
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.
The plaintiff's complaint alleges that the City was negligent in that it failed to repair, inspect or warn of the dangerous and defective condition of the patio and constructed the patio so as to create a dangerous and defective condition. The issue is whether these allegedly negligent acts are discretionary or ministerial.
The plaintiff asserts that the acts should be viewed as ministerial because their performance was required by two Milford Ordinances. More specifically, Section 16-91(b) of the Milford Code of Ordinances places responsibility on the owner of a maritime facility "to maintain the physical improvements . . . in a safe, clean and visually attractive condition at all times . . ." In addition, Milford Code of Ordinances Section 16-173 in part provides that: "[w]henever any . . . structures . . . within a harbor or maritime facility either on land or water are found to be defective or damaged so as to be unsafe or dangerous to persons or property, it shall be the duty of the owner . . . or person in charge thereof to immediately post a proper notice and/or fence or barricade and at night to adequately light such unsafe areas shall be kept posted and lighted and/or fenced or barricaded until the necessary repairs are made."
Section 16-91(b) of the Milford Code of Ordinances provides:
It shall be the responsibility of the owner, licensee, or operator of any marina, repair yard, or other marine facility located within any harbor, waterway or other maritime facility, to maintain the physical improvements under his jurisdiction in a safe, clean and visually attractive condition at all times, to provide adequate security and fire prevention measures and appropriate firefighting equipment as may be directed by the fire marshal.
The plaintiff cites Kolaniak v. Board of Education, 28 Conn.App. 277 (1992) in support of the claim that the acts were ministerial. In Kolaniak, the board of education had issued a bulletin to all custodian's directing that walkways were to be inspected and kept clean on a daily basis. Id., 279. The Appellate Court ruled that, based on the bulletin, the act of clearing snow and ice from the walkways was a ministerial function. Id., 281-82.
The City asserts that the Milford ordinances state only the general objective to maintain the harbor facilities in a safe condition. The City further asserts that the manner in which the facilities are inspected or maintained to achieve such objective involves discretion. In support of its argument, the City cites, inter alia, Evon v. Andrews, 211 Conn. 501 (1989) wherein the Supreme Court held that the manner in which the City of Waterbury enforced various statutes, regulations and codes pertaining to building safety was not ministerial and the City was immune from liability. Id., 507.
In cases involving the maintenance of municipal property, a clear line exists between those instances in which the nature and manner of the maintenance to be performed was governed by a specific directive and those in which it was not. The plaintiff correctly cites Kolaniak v. Board of Education, 28 Conn.App. 277 (1992) as an example of an instance where the existence of a specific bulletin regarding walkway maintenance and inspection precluded the defense of governmental immunity. Id., 281. In Beach v. Regional School District, 42 Conn.App. 542, cert. denied 239 Conn. 939 (1996), however, the Appellate Court, on facts similar to Kolaniak, found governmental immunity applicable where plaintiff fell on a snow covered school sidewalk. Id., 554. In finding the defendant's actions discretionary, Beach distinguished Kolaniak on the ground that there was no board of education directive regarding snow removal. Id.
In the present case, the ordinances cited do not prescribe the manner in which harbor facilities are to be kept safe. While Section 16-173 does specifically provide what is to be done once a structure is found to be unsafe, the manner in which such determination is made requires the exercise of discretion. Beyond the ordinances cited, there are no policies, directives or mandatory procedures, concerning the maintenance, inspection or repair at Milford Landing but rather decisions concerning such matters are left to the discretion of responsible City Employees. See Affidavit of Richard Hosking, Harbor Operations Director, City of Milford. In general, the exercise of duties involving inspection, maintenance, repair, construction and warning are considered discretionary acts entitled to governmental immunity. Evon v. Andrews, 211 Conn. 501, 507 (1989); Elliott v. Waterbury, 245 Conn. 385, 413-14 (1998); Segreto v. Bristol, 71 Conn.App. 844, 857-54 (2002).
The court finds that the inspection, maintenance, repair and construction of Milford Landing is a discretionary function. Accordingly, summary judgment on the round of governmental immunity must be granted.
CONCLUSION
For the reasons set forth above, the City's motion for summary judgment is granted.
So Ordered.