Opinion
1406048443
06-14-2016
Diane Mischke v. City of Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Constance L. Epstein, J.
Procedural Background
In plaintiff's complaint, she alleges that the City of Hartford and its employee, Greg Walker, are liable for damages to her because of injuries she suffered when she was struck on her leg by a piece of debris that was allegedly thrown by the lawnmower Mr. Walker was operating in Bushnell Park on April 24, 2013. The complaint is in five counts--two in negligence and two in recklessness against each of the defendants, and the fifth count invokes General Statutes Sec. 7-465 for indemnification.
The defendants have moved for summary judgment, asserting the protection of governmental immunity under General Statutes Sec. 52-557n.
General Standards for Motion for Summary Judgment
Summary judgment is appropriately premised on the basis that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Connecticut Practice Book Sec. 17-49.
A motion for summary judgment is designed to eliminate the delay and expense of litigation when there is no real issue to be tried. Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Appropriate documentation such as affidavits, certified transcripts of testimony under oath, disclosures, and written admissions may be submitted to support summary judgment motions and opposition thereto. In considering motions for summary judgment, a court must view the evidence in the light most favorable to the nonmoving party. Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
The moving party has the burden of demonstrating an absence of any triable issue of material fact and the opposing party must present evidence that demonstrates the existence of a material disputed issue. Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). Mere assertions of the existence of facts or mere allegations do not suffice to successfully oppose a motion for summary judgment. Gough v. Saint Peter's Episcopal Church, 143 Conn.App. 719, 728-29, 70 A.3d 190 (2013).
Summary Judgment Pursuant to Statutory Immunity and Discussion
General Statutes Sec. 52-557n provides that a municipality shall be liable for acts of negligence. The statute also provides exceptions to a town's liability. In this case, defendants rely on that portion of the statute that precludes the imposition of liability for:
. . . negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by the law. General Statutes Sec. 52-557n(a)(2)(B).
Although the facts in this matter are relatively simple, the parties stress different and various aspects in their arguments to this court. Indeed, the court is struck by the fact that the parties' discussion frequently focuses more on the claimed negligence of each party as if liability were presently being argued to a trier of fact.
Defendants assert that Mr. Walker made sure that the area he was about to mow was free from debris and, just as importantly, that he stopped mowing three or four times due to nearby pedestrian traffic. At one point, when he resumed mowing, he saw a pedestrian about twenty feet away. He did not stop the mower at that time. He did not observe any object in his driving path, nor does he recall hitting any object that would have flown toward plaintiff. He stopped the mower when he hit a tree root. Later he discovered that a pin from the deck of the mower body was missing. Defendants further assert that plaintiff cannot identify what hit her and no one has ever located what struck plaintiff's leg. Defendants go on to argue that plaintiff should have appreciated the potential danger of choosing to walk in close proximity to the area of mowing in this public park. Defendants argue that " any duty" that the defendants owed the plaintiff on the day of the accident was discretionary and falls within the exclusion of General Statutes Sec. 52-557n.
Plaintiff asserts that she saw Mr. Walker mowing, but that, as she approached, the mower had been shut off. She believed this to be appropriate because, in her frequent walks in Bushnell park, city employees shut down the mowers when pedestrians were in the area. According to plaintiff, as she started to walk by, suddenly the mower was started up again and something shot out from the mower and hit her leg. Plaintiff identifies the lawn mower as a " zero turn" mower, and makes reference to the deposition testimony of a city employee, Mr. Fontaine, who has developed some expertise as to the operation of these mowers. Mr. Fontaine testified that the operator's manual for these mowers includes safety warnings and instructions for individuals who use the mowers and Mr. Fontaine opined that an operator should read and be familiar with all of the contents of the manual. In particular as to this case, plaintiff points out that the manual warns that the mower is capable of throwing objects and that, because injuries could result therefrom, operators of the mowers should not operate these machines in the proximity of bystanders. Plaintiff also argues that there are warning labels on the mower itself. Mr. Walker admitted that one of the rules he was obliged to follow was to shut off the mower if a pedestrian was in his vicinity and that it was not something about which he had a choice. Finally, Mr. Walker's supervisor testified that there was no question that Mr. Walker should have turned off the mower. Consequently, plaintiff contends that Mr. Walker was bound to follow the procedures and that his acts were ministerial in nature.
At issue here is whether the defendants' actions were discretionary or ministerial. Liability against a municipality and/or its employee may be imposed if the act complained of is " ministerial" in its nature. A ministerial act is one which is to be performed in a " prescribed manner, without the exercise of judgment or discretion." Violano v. Fernandez, III et al., 280 Conn. 310, 318, 907 A.2d 1188 (2006). The law provides for an exception to liability for discretionary acts of a municipality or its employees. Under our law, discretionary in this context refers to acts which require the exercise of judgment--that is, the necessity of making a call, one way or the other. Id., 280 Conn. 318. The policy behind this exception to liability is to permit the municipal officials and employees to exercise judgment and discretion in carrying out their responsibilities, unhampered by the fear of being second-guessed and/or being subjected to lawsuits for legitimately using what they perceive to be their best judgment. Coley v. Hartford, 312 Conn. 150, 161, 95 A.3d 480 (2014).
Conclusion
Defendants do not clearly identify which act they claim was discretionary. Many possibilities exist: mowing the lawn in general, using a mower when pedestrians are in the vicinity, using a mower when pedestrians may be in the vicinity, not looking to see if any pedestrians are present when the mower is operated, checking the area for possible debris. From the divergent facts presented, it would appear that the discretionary category is not a choice for this court.
In light of the multiplicity of facts alleged and the diversity of the parties' points of view as to the weight to be given to these facts, one might argue that this case is not appropriate for summary judgment on that basis alone. The court notes that other superior court decisions in which the issue of whether the acts(s) in question were ministerial or discretionary were determined to be questions of fact, precluding the entry of summary judgment. Virgulto v. Town of Guilford, 2009 WL 2784754 (2009) (J. Holden); Imfeld v. Town of West Hartford, 1999 WL 1288939 (1999) (J. Wollenberg).
This court believes, however, that the issues posed to it clearly reveal that Mr. Walker had no discretion as to when and how to operate his mower in Bushnell Park. He was obliged to cease operation of the mower when pedestrians were in the vicinity of the mowing. Therefore, the court finds that the acts complained of are ministerial in nature.
In light of all of the above, the motion for summary judgment is denied.