Opinion
CV176073088S
01-07-2019
Erika KOCH v. TOWN OF HAMDEN et al.
UNPUBLISHED OPINION
Wilson, J.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Erika Koch, brings this action against the defendants, the Town of Hamden (town), Curt Leng, David Berardesca, and Craig Cesare, by a way of an eight-count complaint filed on August 24, 2017, arising out of a slip and fall on the town’s property. Counts one, three, five and seven allege negligence against the defendants and counts two, four, six and eight allege claims pursuant to General Statutes § 52-557n(b)(8). The plaintiff’s complaint alleges the following facts. On January 15, 2017, the plaintiff was walking on the driveway of the property located at 2372 Whitney Avenue in Hamden, Connecticut (the property), when she slipped on ice covering the driveway and suffered injuries. The property was owned, maintained, controlled and possessed by the town. Leng, Berardesca, and Cesare are all employed by the town and their duties and responsibilities include the inspection of the property, as well as the maintenance, remediation, and warning of hazardous conditions on the driveway of the property.
The plaintiff’s injuries were caused by the negligence of the defendants in that all of the defendants failed to (1) maintain the property in a condition that would be safe for use by pedestrians; (2) make reasonable and proper inspection of the property; (3) warn the plaintiff of the dangerous condition of the driveway; (4) sand and salt the icy driveway; (5) maintain a safe surface for pedestrians; (6) train/instruct employees on the proper procedures for clearing the driveway during winter months; and (7) provide a safe means of access on public property and keep the driveway in front of the fire department in a reasonable safe condition, thereby violating town regulations, ordinances and/or policies. As to the plaintiff’s § 52-557n(b)(8) counts, the plaintiff incorporates her previous factual allegations and then alleges that the action is brought pursuant to that statute.
The defendants moved for summary judgment on August 3, 2018, on the grounds that (1) the plaintiff’s exclusive remedy is General Statutes § 13a-149; (2) in the alternative, the plaintiff’s claims are barred by discretionary act immunity and no exception applies; and (3) the plaintiff’s § 52-557n(b)(8) claims fail as a matter of law. In support of their motion, the defendants submitted a memorandum of law as well as certified excerpts from the deposition transcripts of the plaintiff and Jeff Naples, a lieutenant with the Hamden Fire Department. The plaintiff filed an objection to the defendants’ motion for summary judgment on September 26, 2018. The plaintiff also submitted as evidence certified excerpts from her deposition testimony as well as that of Naples. The defendants filed a reply memorandum on September 28, 2018, and the matter was heard at short calendar on October 1, 2018.
The plaintiff does not address the defendants’ arguments regarding counts two, four, six and eight, which assert claims pursuant to § 52-557n(b)(8) or even mention these claims in her memorandum in opposition to the defendants’ motion for summary judgment. These claims are therefore deemed abandoned. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("[The Connecticut Supreme Court] repeatedly [has] stated that [it is] not required to review issues that have been improperly presented to [it] through an inadequate brief ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims in the trial court" [citation omitted; internal quotation marks omitted]).
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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821.
"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 ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
I
The defendants argue that no ministerial duty exists and, therefore, the plaintiff’s negligence claims are barred by governmental immunity and fail as a matter of law. Relying on case law as well as Naples’ deposition testimony, the defendants argue that maintenance of the property, including the driveway, involves the exercise of judgment. The plaintiff argues that the defendants have not met their burden of demonstrating the absence of any genuine issue of material fact that no ministerial duty exists. Specifically, the plaintiff contends that Naples’ deposition testimony is insufficient to establish the absence of any genuine issue of material fact.
"[U]nder General Statutes § 52-557n, a municipality may be liable for the negligent acts or omissions of a municipal officer acting within the scope of his or her employment or official duties ... The determining factor is whether the act or omission was ministerial or discretionary ... [Section] 52-557n(a)(2)(B) ... explicitly shields a municipality from liability for damages to person or property caused by the 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 ... 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 ...
"Discretionary acts are treated differently from ministerial 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 ... [D]iscretionary act immunity reflects a value judgment that— despite injury to a member of the public— the broader interest in having government officials 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." (Citations omitted; internal quotation marks omitted.) Hull v. Newtown, 327 Conn. 402, 407-08, 174 A.3d 174 (2017). "The hallmark of a discretionary act is that it requires the exercise of judgment ... 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 ... [M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Mills v. Solution, LLC, 138 Conn.App. 40, 48, 50 A.3d 381 (2012).
"Whether conduct is ministerial or discretionary may be determined as a matter of law"; Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011); although this determination is ordinarily a question of fact. See Strycharz v. Cady, 323 Conn. 548, 565, 143 A.3d 1011 (2016). "[T]here are cases [in which] it is apparent from the complaint ... [that the nature of the duty] ... turns on the character of the act or omission complained of in the complaint ... Accordingly, [when] it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Id. "[F]or the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists." Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.3d 449 (2010).
In the present case, the defendants’ allegedly negligent acts and omissions are generally considered discretionary in nature. The plaintiff’s allegations center around the defendant’s alleged failure to maintain the property in a safe condition by making proper and reasonable inspections, warning of any dangerous conditions, and remedying said conditions, in this case by sanding and salting the icy driveway. "In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity ... A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 224, 131 A.3d 771 (2016). What would be considered a reasonable and proper inspection of the driveway necessarily involves the exercise of judgment. See Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (defendants’ acts discretionary in nature because what constitutes reasonable, proper or adequate inspection involves exercise of judgment). So would decision making regarding maintenance of the driveway, including snow and ice removal, in the absence of any express directives or rules. See Beach v. Regional School District Number 13, 42 Conn.App. 542, 554, 682 A.2d 118, cert. denied, 239 Conn. 939, 684 A.2d 710 (1996) (duty to remove snow and ice discretionary where no directive creating mandatory policy existed). Furthermore, Naples testified that the firehouse had no standard operating procedure for handling snow and/or ice on the firehouse driveway. Naples Dep., 20:22-21:6. Instead, Naples and his firefighters use their discretion based on the equipment they have and the situation to clean the area in front of the firehouse to the best of their ability. Naples Dep., 21:18-22:1. Additionally, Naples testified that no one is assigned to any particular tasks but, rather, that everyone pitches in. Naples Dep., 22:13-19. In light of Naples’ testimony and the nature of the acts and omissions alleged, the defendants have met their burden of demonstrating that there is no genuine issue of material fact no ministerial duty exists.
In her objection, the plaintiff does not submit any evidence of an express rule or directive mandating the removal of ice and snow or the manner in which this was to be performed. Instead, the plaintiff contends that the defendants have failed to meet their initial burden because Naples testified that the firefighters are not responsible for removing snow and ice from the driveway and the defendants failed to submit evidence that whoever was responsible did not have a policy or procedure giving rise to a ministerial duty. A review of Naples’ deposition testimony, however, demonstrates the fallacy in the plaintiff’s argument. Naples was asked whether the firefighters are responsible for maintaining the driveway by removing or treating ice and snow and he responded no. Naples Dep., 22:20-23. When he was asked who is responsible, Naples responded as follows: "I’m— to be honest with you, I’m not exactly sure. There’s nothing clearly written that I was informed of on who was specifically in charge of." Naples Dep., 22:23-23:3. He then goes on to explain that the firefighters clear ice and snow because they need to be able to get their apparatus in and out of the firehouse, and again reiterates the use of judgment depending on the situation. Naples Dep., 23:6-12.
A reasonable inference from this testimony is that the firefighters work to clear the driveway of snow and ice because they need to be able to get their apparatus out of the firehouse, but were never specifically directed to do so by the town. See United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969) (the court may consider not only the facts presented by the parties’ affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them"). When Naples’ testimony is read as a whole, it is clear that it is not actually inconsistent and establishes that duties involving the maintenance of the property, including snow and ice removal is discretionary. He testified that the firefighters do conduct these activities but that there is no standard procedure for doing so and that there is nothing written specifically directing them to do so. In other words, it can reasonably be inferred that Naples’ testimony that the firefighters are not responsible for snow and ice removal does not mean that some other town department bore the responsibility but, rather, that there was no rule or policy in place mandating that the firefighters do so. This is particularly so when read with his statement that he was never informed who was specifically in charge and is consistent with his testimony that there was no standard operating procedure.
Moreover, even if the testimony was found to leave open a question of fact as to whether another town department was responsible for maintaining the driveway, any such questions are extinguished by the deposition testimony of Cesare, the town’s Director of Public Works, which is submitted by the defendants along with their reply brief to the plaintiff’s objection. Cesare testified that Public Works maintains all the vehicles used by the town except those used by the Fire Department and that the Fire Department is responsible for plowing and maintaining the fire stations, and this would include the driveway of the property at issue in the present case. Cesare Dep., 9:1-10:22. He additionally testified that to his knowledge, this responsibility was not memorialized anywhere within the town and that he as the Director of Public Works did not provide the Fire Department with any instructions or notify them of any protocols regarding the treatment of ice or snow. Cesare Dep., 10:23-11:7. The deposition testimony of both Naples and Cesare demonstrates that there is no genuine issue of material fact that the Fire Department is responsible for maintaining its properties and that there are no written policies or directives either mandating this responsibility or prescribing the manner of performance. Thus, there is no genuine issue of material fact that the maintenance of the property in the present case, including the removal of snow and ice from the driveway, was discretionary. The defendants are therefore entitled to governmental immunity as a matter of law, unless an exception applies.
II
There are three exceptions to discretionary act immunity, however, only the identifiable person-imminent harm exception is applicable and raised by the parties. The identifiable person-imminent harm exception has three elements: "(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 harm ... [Our Supreme Court] [has] stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state ... If the plaintiff fails to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 435, 165 A.3d 148 (2017).
The plaintiff argues in her objection that she was sufficiently identifiable because she was a member of a class of foreseeable victims, namely, persons using the town’s municipal parking garage, to which she was walking when she fell. The plaintiff’s argument is contrary to established precedent and there is no genuine issue of material fact that the plaintiff was not an identifiable person or a member of a class of identifiable victims as a matter of law. "The only identifiable class of foreseeable victims that [our Supreme Court] [has] recognized ... is that of schoolchildren attending public schools during school hours because: they were intended to be the beneficiaries of particular duties of care imposed on school officials; they [are] legally required to attend school rather than being there voluntarily; their parents [are] thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Citation omitted; internal quotation marks omitted.) St. Pierre v. Plainfield, supra, 326 Conn. 436.
"Application of this rule has been similarly restrictive outside of the public school context because, in addition to not recognizing any additional classes of foreseeable victims, the decisions reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity. See Sestito v. Groton, supra, 178 Conn. at 522-23, 527-28, 423 A.2d 165 (facts presented jury question in case wherein on-duty town police officer watched and witnessed ongoing brawl in bar’s parking lot, but did not intervene until after participant had shot and killed plaintiff’s decedent). Sestito appears, however, to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because ‘[a]n allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person.’ Doe v. Petersen, supra, 279 Conn. at 620-21, 903 A.2d 191; see Cotto v. Board of Education, 294 Conn. 265, 279-80, 984 A.2d 58 (2009) (This court concluded that a youth director injured in a school bathroom was not an identifiable person subject to imminent harm because if he ‘was identifiable as a potential victim of a specific imminent harm, then so was every participant and supervisor in the [summer youth] program who used the bathroom. Although it may have been foreseeable that the plaintiff would go into the bathroom to look for children [who could not be accounted for], the risk of specific harm to him was not sufficiently immediate because any person using the bathroom could have slipped at any time.’ [Emphasis in original.]); Evon v. Andrews, 211 Conn. 501, 507-08, 559 A.2d 1131 (1989) (rejecting application of exception to claims of negligent fire inspection by city officials because ‘[t]he class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of "identifiable persons" ’); Shore v. Stonington, 187 Conn. 147, 150-51, 153-54, 444 A.2d 1379 (1982) (plaintiff’s decedent did not constitute identifiable person when she was killed in accident with intoxicated motorist who defendant police officer had stopped, and let continue to drive, earlier that evening); Swanson v. Groton, supra, 116 Conn.App. at 861, 977 A.2d 738 (police officer ‘would have had to have known that [intoxicated person] was going to attack a specific person ... when he returned home to the [rooming house]’). Indeed, even outside the public school context, whether the plaintiff was compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims. See DeConti v. McGlone, 88 Conn.App. 270, 273-75, 869 A.2d 271 (plaintiff in case of rotted tree falling on car was not identifiable victim, despite fact that ‘she lives in close proximity to the tree in question’ and ‘was required to drive on [street where tree fell] as a result of the location of her house’ because ‘[s]he has not shown that her decision to take that particular route was anything but a voluntary decision that was made as a matter of convenience’), cert. denied, 273 Conn. 940, 875 A.2d 42 (2005)." Grady v. Somers, 294 Conn. 324, 353-55, 984 A.2d 684 (2009).
Members of the public utilizing the town’s parking garage is not a narrowly defined class of persons and in fact, is the type of broad group that has previously led our appellate courts to reject contentions that a plaintiff was an identifiable person or member of a class of identifiable victims. See, e.g., Grady v. Somers, supra, 294 Conn. 355-56 (permit holder injured at refuse transfer station owned by town was not member of class of identifiable persons despite being paid permit holder and resident of town); Cotto v. Board of Education, 294 Conn. 265, 279-80, 984 A.2d 58 (2009) (youth director injured in school bathroom not identifiable person subject to imminent harm because if he "was identifiable as a potential victim of a specific imminent harm, then so was every participant and supervisor in the [summer youth] program who used the bathroom"); Prescott v. Meriden, 273 Conn. 759, 761-65, 873 A.2d 175 (2005) (parent voluntarily attending high school football game to watch his child was not member of identifiable class of foreseeable victims because he was not compelled to attend); Thivierge v. Witham, 150 Conn.App. 769, 780, 93 A.3d 608 (2014) (visitor to dog owner’s property who was bitten by dog after municipal officer’s alleged failure to enforce restraint order not identifiable victim because "any number of potential victims could have come into contact with the dog following [the municipal officer’s] issuance of the restraint order").
All three prongs of the identifiable person-imminent harm exception must be met in order to apply. Because there is no genuine issue of material fact that the plaintiff was not an identifiable victim as a matter of law, there is no genuine issue of material fact that the exception does not save the plaintiff’s negligence claims. Accordingly, the plaintiff’s action is barred by governmental immunity as a matter of law.
Any issues of fact that may exist as to whether the driveway comes within the ambit of § 13a-149 are ultimately immaterial to the resolution of the present motion. If the plaintiff’s action was found to be a highway defect claim, it would fail because it is undisputed that the plaintiff did not provide the required statutory notice. Pl.’s Mem. Opp’n, p. 8 n.4. If the plaintiff’s action was determined to not be a highway defect claim, as discussed previously, there is no genuine issue of material fact that the plaintiff’s negligence claims are barred by governmental immunity as a matter of law. Accordingly, plaintiff’s exclusive remedy is § 13a-149.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment is granted.