Opinion
No. CV 01-0452129S
May 11, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendants, the Town of Middlefield and Charles Augur have filed a motion for summary judgment as to the plaintiff's complaint, dated May 25, 2001. The defendants argue that they are entitled to a judgment as a matter of law because there is no legally valid employment contract between the parties. Additionally, the defendants claim that the plaintiff's common-law negligence claim is barred by the doctrine of governmental immunity. As such, there are no genuine issues of material fact.
The plaintiff has brought this action by way of a two-count complaint seeking compensation for an alleged breach of contract by the defendants. The plaintiff's claims are premised upon a claimed entitlement to certain pension benefits accrued by the plaintiff during his previous employment with the Town of Guilford.
A review of the plaintiff's complaint reveals that on or about July 1999, the plaintiff was offered, and accepted, the position of Building Official/Code Enforcement Officer for the Town of Middlefield. The offer of employment was made by the defendant Auger, the First Selectman. The terms of the offer stated that Middlefield would transfer the plaintiff's "three years of pension time from the Town of Guilford" to the Town of Middlefield.
Thereafter, on August 16, 1999, in reliance on this offer and the representations of Auger, as evidenced by a letter from Auger to the plaintiff, dated July 29, 1999, the plaintiff resigned his position with the Town of Guilford to accept the position with Middlefield. After the plaintiff commenced his employment with Middlefield, he was informed that his pension time from Guilford would not be transferred to his Middlefield pension. The plaintiff was informed that Middlefield had concluded that it was legally unable to transfer the plaintiff's entire accrued non-vested pension benefits to the town's pension fund, the Municipal Employees Retirement System (MERS), as Guilford was not a participant in that fund. Middlefield was also informed that it could not purchase time on the plaintiff's behalf to be applied towards the MERS pension fund. Middlefield was informed that Guilford could voluntarily choose to transfer the funds to the MERS plan, pursuant to General Statutes § 7-442b(a), but Guilford refused to do so, noting that the plaintiff had terminated his employment before becoming eligible for benefits and was, therefore, not entitled to any benefit from the employer's contribution.
Thereafter, the plaintiff was informed that his pension time and benefits from Guilford would not be transferred to his Middlefield pension. The defendants refused to alternatively compensate the plaintiff for their inability to transfer his pension funds. The plaintiff then resigned from his position with Middlefield and filed the present action.
The first count of the plaintiff's complaint alleges a breach of contract. Specifically, the plaintiff claims that Middlefield breached its promise to transfer his non-vested accrued pension benefits from Guilford to Middlefield, or in the alternative that Middlefield did not contribute an equal amount in the plaintiff's behalf to the Middlefield pension fund, thereby implicitly breaching its agreement with the plaintiff.
The second count alleges that Auger, the First Selectman of Middlefield, negligently misrepresented that Middlefield would transfer the plaintiff's pension benefits from Guilford or contribute a similar amount on the plaintiff's behalf. As a result of the alleged negligent misrepresentation, which the plaintiff claims he reasonably relied on to his detriment, the plaintiff alleges he suffered a monetary loss.
In moving for summary judgment, the defendants have set forth several arguments. First, they argue that the plaintiff cannot establish a breach of contract, as the written correspondence from Auger to the plaintiff cannot be deemed to have created a contract between the plaintiff and Middlefield. Second, they argue that the plaintiff's complaint fails to state an action for negligent misrepresentation, as the plaintiff could not have justifiably relied upon Auger's letter which stated "We will transfer three years of pension time from the Town of Guilford." Third, the defendants argue that the plaintiff's claims regarding negligent misrepresentation against Middlefield and Auger are barred by the doctrine of governmental immunity.
The standard of law to be applied to a motion for summary judgment is well-settled "A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party." Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
I BREACH OF CONTRACT
The plaintiff's claim of breach of contract is premised on his argument that the letter from Auger, the First Selectman, confirming the plaintiff's employment with Middlefield is a contract, wherein Middlefield agreed that the plaintiff's pension benefits from Guilford would be transferred to Middlefield. The plaintiff claims that this confirmation letter from Auger is binding on Middlefield and that Auger in his roles as First Selectman and as a member of the three-person Board of Selectmen, had the authority to bind the town to the agreement regarding the transfer of pension benefits. The defendants argue that the confirmation letter to the plaintiff from Auger cannot be deemed to have created a contract. The defendants rely on the decision in Fennell v. City of Hartford, 238 Conn. 809, 681 A.2d 934 (1996), and the provisions of the Town Charter for Middlefield in advancing this argument.
Fennell v. City of Hartford, supra, set forth the parameters of a municipality's ability to contract and limited the role of implied contracts against municipalities. The court held that a municipality's charter is "the fountainhead of municipal powers," and serves as an enabling act which both creates power and prescribes that manner in which it must be exercised. Id. at 813. "Agents of a city, including [its commissions], have no source of authority beyond the charter . . . In construing a city charter, the rules of statutory construction generally apply . . ." (Citations omitted; internal quotation marks omitted.) Id.; Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 423, 572 A.2d 951 (1990). "The officer, body or board duly authorized must act [on] behalf of the municipality, otherwise a valid contract cannot be created. Generally the power to make contracts on behalf of the municipality rests in the council or governing body . . . Generally, no officer or board, other than the common council, has power to bind the municipal corporation by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate its powers . . ." Id. at 813-14, quoting, 10 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1990) § 29.15, p. 315; see Keeney v. Old Saybrook, 237 Conn. 135, 145-46, 676 A.2d 795 (1996). "It follows that agents of a city, including its commissions, have no source of authority beyond the charter. [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language." (Internal quotation marks omitted.) Id. at 814; Perretta v. New Britain, 185 Conn. 88, 92-93, 440 A.2d 823 (1981). "Where the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful." (Internal quotation marks omitted.) New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 44 Conn. App. 764, 769, 694 A.2d 417, cert. denied, 241 Conn. 915, 696 A.2d 984 (1997).
"[A]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract . . ." Id.; Norwalk v. Board of Labor Relations, 206 Conn. 449, 452, 538 A.2d 694 (1988). Thus, "every person who deals with [a municipal corporation] is bound to know the extent of its authority and the limitations of its powers." Id.; John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 704, 448 A.2d 180 (1982); see Keeney v. Old Saybrook, supra, 149.
The defendants argue that Auger had no authority under the Town Charter to bind Middlefield to a contract, and therefore, the correspondence from Auger to the plaintiff cannot be found to have created an implied contract on behalf of the Town of Middlefield. See Fennell v. City of Hartford, supra, 238 Conn. 816.
As previously noted, "When a charter is construed, the rules of statutory construction generally apply." Alexander v. Retirement Board, 57 Conn. App. 751, 758, 750 A.2d 1139 (2000); Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 9, 544 A.2d 152 (1988). "As with the interpretation of a statute, the interpretation of a charter is a question of law for the court to decide." Alexander v. Retirement Board, supra; Testa v. Waterbury, 55 Conn. App. 264, 270, 738 A.2d 740 (1999).
"Rules and regulations adopted pursuant to the authority granted by [a city] charter carry a presumption of validity and have the force and effect of law . . . When construing a [city] charter, the court must determine the intent of the legislative body that promulgated the rules . . . To determine the intent of the charter, [t]he enactment must be examined in its entirety and its parts reconciled and made operative so far as possible . . . Intent is to be ascertained from the language used, if it is plain and unambiguous; or, if it is not, by considering the legislation in the light of all of its provisions, the object which it seeks to accomplish, the pre-existing legislation upon the same subject matter, and all other relevant circumstances." (Internal quotation marks omitted.) Alexander v. Retirement Board, supra.
"In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws. A city charter also must be construed, if possible, so as reasonably to promote its ultimate purpose . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is . . . reasonable." (Citation omitted; internal quotation marks omitted.) Testa v. Waterbury, 55 Conn. App. supra, 270, 271; Stamford Ridgeway Associates v. Board of Representatives, supra, 214 Conn. 407, 429; Fennell v. Hartford, supra, 238 Conn. 826.
Pursuant to General Statutes § 7-450, a municipality "may by ordinance, establish pension and retirement systems for its officers and employees . . . or amend any special act concerning its pension or retirement system." The Town of Middlefield Charter, Chapter IV, Section 404, subsection A, provides that "[t]he Board of Selectmen shall have all the powers and duties conferred by . . . the Connecticut General Statutes . . ." The Town Charter, Chapter IV, Section 404, subsection F, additionally provides that ". . . the Board of Selectmen shall have the sole power . . . [t]o enter into contracts for any services . . ." The defendants argue that in accordance with these provisions, the Town has not delegated authority to enter into contracts to any one member, including the First Selectman Auger, nor can a contract be implied based upon representations contained within a confirmation letter prepared by First Selectman Auger and sent to the plaintiff.
The plaintiff points to language in Chapter IV, Section 404, subsection F, which states that the Board of Selectmen has the sole power "to incur indebtedness in the name of the Town, and to provide for the due execution of contracts and evidences of indebtedness issued by the Town," and to "enter into contracts for any services." The plaintiff contends that Auger, as First Selectman and also as a member of the three-person Board of Selectmen was not acting independent of the Board or unilaterally. Rather, by sending the confirmation letter, Auger was expressing the intent of the entire Board in confirming the acceptance of the job position by the plaintiff and expressly stating in that letter, "We will also transfer your three years of pension time from the Town of Guilford." The letter also states that the "The Board of Selectmen interviewed seven excellent applicants and was unanimous in ranking you the most outstanding."
By virtue of the Town Charter, Auger in his capacity as First Selectman had the authority to appoint the plaintiff to the position of Building Official/Code Enforcement Officer pursuant to Chapter VII, Section 701, titled "Appointments and Terms." Subsection A, of Section 701 states, "There shall be the following positions which shall be filled by the First Selectman: 1. Building Inspector . . ." The Board of Selectmen had the authority to set the terms of the plaintiff's salary and benefit package, as provided in Chapter IV, Section 404, subsection F, as noted herein. In hiring the plaintiff, it is unlikely that the defendant First Selectman Auger acted unilaterally without the advice and consent of his fellow members of the Board of Selectmen. The letter from Auger to the plaintiff confirming the plaintiff's employment, states that the Board of Selectmen, interviewed applicants; ranked the applicants; and unanimously selected the plaintiff; and that "The entire Board of Selectmen" was very impressed by the plaintiff.
The Board of Selectmen had the authority to negotiate the terms of the plaintiff's benefits and salary. Auger's confirmation letter to the plaintiff, stating the plaintiff's yearly salary, scheduled pay increases, vacation, health and life insurance information, work commencement date and the statement that "We will also transfer your three years of pension time from the Town of Guilford," is sufficient evidence of an express contract between the plaintiff and the Town of Middlefield, acting by its Board of Selectmen. This evidence is sufficient to defeat a motion for summary judgment.
The court does not find the decision in Fennell v. City of Hartford, supra, 238 Conn. 809, applicable to the facts of the present case. The Board was not establishing a new or amended pension system. This is not a case, as well, of an alleged implied contract. Rather, the plaintiff claims an express contract exists. In addition, the defendants had the option of paying other remuneration to the plaintiff in an amount similar to the value of the plaintiff's pension benefits. That required no action impacting the existing pension plan.
It can also be successfully argued that the First Selectman had the apparent authority to bind the Board of Selectmen and the Town of Middlefield to the terms of the parties' agreement as evidenced by the confirmation letter signed by Auger.
"The rules that govern the determination of apparent authority in an agent require an examination of the acts of the principal, rather than of the agent." Norwalk v. Board of Labor Relations, supra, 206 Conn. 451. "Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses . . ." (Emphasis added; internal quotation marks omitted.) Id. Apparent authority is to be determined not by the agent's own acts but by those of the principal. City of New Haven v. Local 884, Council 4, 44 Conn. App. supra, 770; Zazzaro v. Universal Motors, Inc., 124 Conn. 105, 111, 197 A.2d 884 (1938).
Here, there is evidence that the plaintiff, upon receipt of the confirmation letter from Auger, resigned his position with the Town of Guilford and commenced employment with the Town of Middlefield, consistent with the terms of employment contained in Auger's letter. The Town of Middlefield then proceeded with its efforts to transfer the plaintiff's pension benefits from Guilford to Middlefield. It was only when those efforts were unsuccessful that Middlefield determined that it would not provide other remuneration to the plaintiff, in lieu of these benefits. At no time did any member of the Board of Selectmen deny that the Town of Middlefield had agreed to transfer the pension benefits from Guilford to Middlefield. The Town was not put in a position where it was ratifying Auger's actions by its own inaction. Indeed, the Town took affirmative steps to effectuate the transfer of the plaintiff's pension benefits from Guilford to Middlefield. There is sufficient evidence for a trier of fact to conclude that the Board of Selectmen ratified the terms and conditions contained in Auger's letter.
"A municipality may become bound to an agreement despite its agent's lack of authority, by a subsequent ratification of the agreement. Ratification by the municipal body with power to do so has the equivalent effect of a prior authorization and binds the municipality just as though authority had been given initially." Norwalk v. Board of Labor Relations, supra, 206 Conn. 453. Ratification requires acceptance of the results of an agent's actions with full knowledge of the circumstances. Botticello v. Stefanovicz, 177 Conn. 22, 28, 411 A.2d 16 (1979).
II NEGLIGENT MISREPRESENTATION CT Page 7224
The defendants claim that the cannot, as a matter of law, establish a claim for negligent misrepresentation, due to Auger's representation that Middlefield would transfer the plaintiff's pension benefits from Guilford to Middlefield.
"Our Supreme Court has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1979): "One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Citations omitted; emphasis added; internal quotation marks omitted.)" Giametti v. Inspections, Inc., 76 Conn. App. 352, 363, 824 A.2d 1 (2003); D'Ulisse v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987); Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 494-95, 705 A.2d 210 (1998).
Accordingly, an action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation. See Giametti v. Inspections, Inc., supra, 76 Conn. App. 364; see also, Citino v. Redevelopment Agency, 51 Conn. App. 262, 273-75, 721 A.2d 1197 (1998); see also Maturo v. Gerard, 196 Conn. 584, 589, 494 A.2d 1199 (1985). "Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact." Mips v. Beacon, Inc., 70 Conn. App. 556, 558, 799 A.2d 1093 (2002); Tyler E. Lyman, Inc. v. Lodrini, 78 Conn. App. 684, 828 A.2d 681 (2003).
In the preceding section of this decision the court has determined that there are genuine issues of material fact as to whether Auger had the requisite authority to enter into a contract for the employment of the plaintiff, as evidenced by Auger's positions as First Selectman and as a member of the Board of Selectmen. The court also determines that it can be successfully argued that the plaintiff's reliance on this, as well as, the language of the Town Charter, was justifiable; especially in light of the authority granted to the Board of Selectmen in the Town Charter. The reasonableness of the plaintiff's conduct in reliance of the alleged false representations regarding his pension benefits is also a question of fact and not subject to summary judgment.
III GOVERNMENTAL IMMUNITY
The defendants next argue that the plaintiff's claims of negligent misrepresentation against the Town of Middlefield and its First Selectman, Auger, are barred by the doctrine of governmental immunity. The defendants point out that the plaintiff's complaint fails to cite any statute abrogating the Town's governmental immunity, and thus the plaintiff's complaint fails as a matter of law.
Additionally, the defendants state that the Town cannot be held liable for the discretionary governmental acts of its employees, and likewise, a municipal employee is not liable for his negligent acts or omissions which involve the exercise of discretion. Pursuant to the Town Charter, Auger the First Selectman, is given discretion to fill the position of Building Official/Code Enforcement Officer for Middlefield, and the filling of that position is for the direct benefit of the public. The defendants continue, that there are no written policies delineating how this is to be done, or outlining the terms of the employment or benefits which may be offered. Discretion in those areas are left to the First Selectman and the Board of Selectmen.
Lastly, the defendants argue that the plaintiff's argument that he falls within the identifiable victim/imminent harm exception to the doctrine of governmental immunity is misplaced, in that the doctrine is applicable only to actions involving personal injuries and has no applicability to a breach of contract claim or negligent misrepresentation claim.
The plaintiff argues that the doctrine of governmental immunity is not applicable to this case because Auger's alleged negligent conduct involved a private duty, to which governmental immunity does not attach. Additionally, if the court finds that Auger's duty to the plaintiff was a public duty, rather than a private duty, the acts by Auger were ministerial, as established by the Town Charter and state statutes. Auger had the authority to enter into an agreement with the plaintiff for employment, salary and benefits. The Town Charter expressly permitted the Board of Selectmen to determine the salary and benefits, and therefore, the Board, in carrying forth Auger's edict, was performing a ministerial function. Moreover, the ministerial versus discretionary act issue is a genuine issue of material fact which would render summary judgment inappropriate.
Lastly, in the alternative, the plaintiff argues, that even if the court were to find that the acts complained of are discretionary, the plaintiff falls into the recognized exception to governmental immunity, in that he was an identifiable victim subject to imminent harm from the negligent actions of Auger, the Board of Selectmen and the Town of Middlefield.
A. FAILURE TO PLEAD A STATUTE ABROGATING GOVERNMENTAL IMMUNITY
Under Connecticut common law, a municipality is immune from negligence unless the legislature has enacted a statute abrogating such immunity. See Williams v. City of New Haven, 243 Conn. 763, 766-67, 707 A.2d 1251 (1998); Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991); Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1994). General Statutes § 52-557n states in relevant part:
(a)(1) Except as otherwise provided by law, 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; . . . (2) 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 defendant Town of Middlefield claims that it has governmental immunity from liability for common-law negligence and that the plaintiff cannot prevail as a matter of law because he did not rely on any statute to abrogate that immunity. CT Page 7227 Williams v. New Haven, supra, 243 Conn. 763. The court, in light of the decision in Spears v. Garcia, 263 Conn. 22, 818 A.2d 37 (2003), disagrees.
The Appellate Court in Spears v. Garcia, 66 Conn. App. 669, 785 A.2d 1181 (2001), found that although the plaintiffs had failed to cite in their complaint General Statutes § 52-557n as statutory authority abrogating the defendants' governmental immunity, the plaintiffs had mentioned it for the first time in their legal memorandum opposing a motion for summary judgment. The plaintiffs in Spears also argued that § 52-557n abrogated governmental immunity during oral argument in opposition to the defendants' motion for summary judgment. The plaintiffs argued before the Appellate Court that although they did not specifically plead the statute in their complaint, nonetheless the defendants were sufficiently apprised of the statute by way of the plaintiffs' legal memorandum and oral argument on the motion for summary judgment.
The Appellate Court determined that this case was unlike Williams v. New Haven, supra, 243 Conn. 763, which had similar factual circumstances. In Williams however, the plaintiffs, unlike the plaintiffs in Spears v. Garcia, never at any stage of the proceedings, relied on § 52-557n. The Appellate Court found that the defendants were sufficiently apprised of the plaintiffs' reliance on § 52-557n. Our Supreme Court affirmed the judgment of the Appellate Court in Spears v. Garcia, supra, 263 Conn. 22. The question this court must answer therefore, is whether the plaintiff in the instant case has sufficiently apprised the defendants of his intent to rely upon § 52-557n.
The plaintiff has relied solely on his claim of common-law negligence on the part of the defendants in alleging negligent misrepresentation. At no time prior to the defendants' filing of their motion for summary judgment, had the plaintiff advanced any statute as a basis for the liability of the defendants in this case. A review of the complaint fails to reveal any reference to § 52-557n.
The plaintiff, however, in its supplemental brief responding to the defendants' reply memorandum of law, has set forth his reliance on § 52-557n, and he filed a request for leave to amend his complaint to include specific references to § 52-557n. The court finds that by filing a supplemental brief stating that the plaintiff relies upon § 52-557n, the plaintiff has brought his action under the umbrella of the Appellate Court's decision in Spears v. Garcia, supra, 66 Conn. App. 669, as affirmed by our Supreme Court in Spears v. Garcia, supra, 263 Conn. 22. See also, Krevis v. Bridgeport, 80 Conn. App. 432, 835 A.2d 123 (2003).
B. PUBLIC DUTY AND PRIVATE DUTY
The plaintiff argues that Auger's duty to the plaintiff is a private duty and not a public duty. Consequently, governmental immunity does not shield the defendants from liability for Auger's tortious conduct. The plaintiff contends that Auger had a private duty to the plaintiff himself as distinguished from the public at large. It is the plaintiff's position that Auger was not performing a public duty when he made misrepresentations to the plaintiff, as the employment offer and its terms was for the benefit of the plaintiff employee and not the public at large. The court disagrees.
In deciding whether an action is barred by the doctrine of governmental immunity, "the court looks to see whether there is a public or private duty alleged by the plaintiff." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed if at all in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it or to perform it properly, is an individual wrong, and may support an individual action for damages . . ." (Citations omitted; internal quotation marks omitted.) Id., 166.
However, "whether a public or private duty is established, there is no potential liability if the act complained of is a discretionary act that does not fit into any of the narrow exceptions . . ." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 169. A discretionary act involves "the exercise of discretion;" Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982); as opposed to a ministerial act, which is performed "in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 167-68.
As an elected public official, Auger's duties as First Selectman are necessarily governmental acts. Governmental acts are defined as those that "are performed wholly for the benefit of the public and are supervisory or discretionary in nature." Heigl v. Board of Education, supra, 218 Conn. 5. The Town Charter gives the First Selectman the discretion of filling the position of Building Official/Code Enforcement Officer for the Town of Middlefield. See Town of Middlefield Charter, Chapter VII, Section 701, subsection A. Filling the position is a direct benefit to the public, and impacts the public. Additionally, there are no written policies delineating how this is to be done, or outlining the terms of the employment or benefits which may be offered. Discretion in those areas are left to the First Selectman and the Board of Selectmen.
C. MINISTERIAL AND DISCRETIONARY GOVERNMENTAL ACTS
Governmental immunity does not offer municipalities a blanket protection for all official acts. "Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . The word `ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Prescott v. Meriden, 80 Conn. App. 697, 700-01 (2003); Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994); Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 167. Municipalities are immune for the "negligent acts and omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." General Statutes § 52-557n(a)(2)(B).
The defendants in their motion for summary judgment claim that all of the acts or omissions of which the plaintiff complains in his count for negligent misrepresentation are discretionary and they are immune from liability under principles of governmental immunity.
The court agrees that the acts of Auger and the Board of Selectmen of Middlefield were discretionary in nature. While the Town Charter empowered the First Selectman to select the plaintiff for the afore-mentioned position, he has discretion in using this power, and in selecting an appropriate candidate. He exercised that discretion by deciding to interview candidates along with the other members of the Board of Selectmen before choosing the plaintiff for the position. The First Selectman in consultation with the Board of Selectmen, settled upon a compensation package of salary and benefits for the plaintiff, in accordance with the Town Charter, as the Town Charter expressly permitted the Board of Selectmen to determine the salary and benefits. The salary and benefit provisions were discretionary and unique to the plaintiff, as noted by the disputed transfer of the plaintiff's pension benefits from the Town of Guilford to the Town of Middlefield. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 168.
As to immunity from liability for these discretionary acts, the court must determine whether they are subject to the three exceptions to immunity for the performance of discretionary acts. "The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where 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; . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
The only possible applicable exception to the present case is the identifiable person/imminent harm exception. "The `discrete person/imminent harm' exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." Evon v. Andrews, supra, 211 Conn. 507. This exception applies "not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims at imminent risk." Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994).
"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 . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts . . . whether the relationship was of a voluntary nature . . . the seriousness of the injury threatened . . . the duration of the threat of injury . . . and whether the persons at risk had the opportunity to protect themselves from harm." (Citations omitted.) Id., 647-48.
Cases where plaintiffs allege "imminent harm" typically involve physical harm. See Elliott v. City of Waterbury, 245 Conn. 385, 715 A.2d 27 (1998) (decedent killed by hunter while on city-owned property); Purzycki v. Fairfield, 244 Conn. 101, 708 21 A.2d 937 (1998) (student injured in unsupervised school hallway); Fraser v. United States, 236 Conn. 625, 674 A.2d 811 (1996) (decedent stabbed at federal medical center); Burns v. Board of Education, supra, 228 Conn. 640 (student injured by fall in school courtyard); Evon v. Andrews, supra, 211 Conn. 501; Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 161 (decedent attacked at city housing authority project); Shore v. Stonington, supra, 187 Conn. 147 (decedent killed by vehicle driven by intoxicated driver); Colon v. Board of Education, 60 Conn. App. 178, 184-85, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) (injury to school student); Tryon v. Town of North Branford, 58 Conn. App. 702 (2000) 755 A.2d 317 (injury to firefighter).
Resolution of this claim requires the court to review the contours of the exception as defined by the applicable case law. Doe v. Board of Education, 76 Conn. App. 296, 300, 819 A.2d 289 (2003). The applicable case law applies the "imminent harm" exception to personal injury cases involving physical harm. The court will not expand the exception to allegations involving negligent misrepresentations in a breach of contract case. See Pane v. Danbury, Superior Court, judicial district of Fairfield at Bridgeport. No. CV97 34 72 35 S (Oct. 18, 2002, Rush, J.), 33 Conn. L. Rptr. 377 (refusal to extend exception to negligent infliction of emotional distress claim). Accordingly, the defendants are protected by governmental immunity from the plaintiff's claim for negligent misrepresentation.
CONCLUSION
For the reasons set forth herein, the defendants' motion for summary judgment is denied as to the first count sounding in breach of contract and is granted as to the second count of the plaintiff's complaint which alleges negligent misrepresentation.
The Court
By: Arnold, J.