Opinion
No. AAN-CV-06-5001457-S
October 26, 2006
CORRECTED MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff filed a three-count complaint against the defendants, the city of Shelton (Shelton) and the Shelton board of education (board of education). The first count is against Shelton and alleges liability under General Statutes § 52-557n. The second and third counts of the complaint seek to hold the board of education liable under General Statutes §§ 10-220 and 52-557n, respectively. The complaint arises from the plaintiff's allegation that on November 21, 2005, she suffered injuries as she was leaving Shelton High School when she tripped and fell at the end of a handicap ramp, due to a crack in the adjoining sidewalk. The defendants have filed a motion to strike all three counts of the complaint, claiming that the plaintiff's claims are barred by governmental immunity.
I
The analysis begins with the premise that the government is immune from liability except where abrogated by statute or common law. First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 293, 869 A.2d 1193 (2005). As to the first and third counts, the plaintiff alleges liability under § 52-577n(a)(1) against Shelton and the board of education, respectively. That statute permits individuals to bring a cause of action against political subdivisions of the state for, among other reasons, their negligent acts or omissions if such acts or omissions are ministerial in nature. However, under § 52-577n(a)(2)(B), such political subdivisions may be granted immunity when the acts or omissions complained of are discretionary in nature. See Considine v. Waterbury, 279 Conn. 830, 854, 905 A.2d 70 (2006).
General Statutes § 52-557n(a)(1) states, in relevant part, that "a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . .
General Statutes § 52-557n(a)(2)(B) states, in relevant part, that "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 alleges that the immunity provided for in this statute is inapplicable in this case because the respective defendants were negligent in performing what she characterizes as ministerial duties. Specifically, the plaintiff claims that the defendants negligently failed to maintain the sidewalk, failed to repair the sidewalk, failed to warn the plaintiff of the defect, and failed to construct barriers around the defect. The plaintiff alleges that all of these acts or omissions flow from a failure to reasonably inspect the sidewalk, an additional duty that the plaintiff claims that the defendants negligently performed.
The defendants refer to Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1151 (1989), for the proposition in their brief that the duty to inspect, maintain, and repair property is discretionary. The court in Evon stated that "an inspection by definition involves a checking or testing of an individual against established standards . . . what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment . . . It is axiomatic that ministerial acts [are those that] are performed in a prescribed manner without the exercise of judgment." (Emphasis in original, citations omitted, internal quotation marks omitted.) Id., 506.
In addition to the statutory provisions that allow a plaintiff to bring a cause of action against the municipality or its employees, there are three common-law circumstances in which liability may attach even though the act or omission complained of was discretionary. "Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force . . . 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." (Citations omitted, internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006).
In this case, the defendants have correctly asserted that the acts or omissions complained of are discretionary. A duty to inspect, maintain, or repair property necessarily requires discretion or the part of the actor. Thus, such a duty, if imposed upon the defendants here, would be discretionary. As the plaintiff has made no allegations regarding the possible application of any of the three common-law exceptions to the doctrine of governmental immunity regarding discretionary acts or omissions, her claim is barred. As to the first and third counts of the plaintiff's complaint, the defendants' motion to strike is granted.
II
In the second count of her complaint, the plaintiff alleges that the board of education violated one of its statutory duties under General Statutes § 10-220. Again, the government is immune from liability except where such immunity is abrogated by statute or common law. First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., supra, 273 Conn. 293. Section 10-220(a) does not specifically abrogate governmental immunity. The plaintiff has responded to the defendants' motion to strike by citing Novicki v. New Haven, 47 Conn.App. 734, 709 A.2d 2 (1998). Novicki involved the application of General Statutes § 13a-149, the highway defect statute, which abrogates governmental immunity on a limited basis. Id., 739-40.
General Statutes § 10-220(a)(3) states, in relevant part, that "[e]ach local or regional board of education . . . shall provide an appropriate learning environment for its students which includes . . . (3) proper maintenance of facilities."
"The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) The plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair." (Internal quotation marks omitted.). Id., 739-40. "The word road or highway as used in the highway defect statute has usually been construed to include sidewalks . . . The term sidewalk is meant to apply to those areas that the public uses for travel." (Citations omitted.) Id., 740. In Novicki, the plaintiff fell "on a walkway that runs from Davis Street to the north exit of the Davis Street School in New Haven." Id., 735. The defect that the plaintiff alleged was described as "a large, indented crack at the top of a street ramp adjacent to the stairway of a walkway leading to the Davis Street School." Id. The court held that this defect was a road or bridge, for the purposes of § 13a-149. Id., 740. In dismissing the complaint against the city of New Haven, the Connecticut Appellate Court noted that, under § 10-220, the local or regional board of education has the duty to maintain property used for school business. Id., 741. In the present case, the plaintiff has made no allegation that either defendant was in violation of § 13a-149. However, "[e]ven if a plaintiff does not plead § 13a-149 as a means of recovery, if the allegations in the complaint and any affidavits or other uncontroverted evidence necessarily invoke the defective highway statute, the plaintiff's exclusive remedy is § 13a-149. If § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction." Bellman v. West Hartford, 96 Conn.App. 387, 393-94, 900 A.2d 82 (2006). "As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements." Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997). Under § 13a-149, a person who is injured "by means of a defective road or bridge may recover damages from the party bound to keep it in repair . . . No action for any such injury shall be maintained against any . . . city . . . unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to . . . the clerk of such city . . ."
In the present case, this court does not need to make a determination as to whether the crack in the sidewalk adjoining the handicap ramp which the plaintiff alleges caused her to fall is a road or bridge or even whether the board of education had a duty to maintain that area under § 13a-149. Even if the substantive requirements of the highway defect statute have been met, the plaintiff has not complied with the statutory notice requirements, and thus, this court does not have subject matter jurisdiction to hear such a claim. Therefore, as to the second count of the plaintiff's complaint, the defendants' motion to strike is granted.
For the aforementioned reasons, the defendants motion to strike is granted in its entirety.