Opinion
No. NNH CV 08 5018850
April 17, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT BY THE DEFENDANT CITY OF NEW HAVEN (#109)
This action arises out of a slip and fall on a ramp connecting Yale-New Haven Hospital and the New Haven Air Rights Garage. The plaintiff named the city of New Haven (city) and the New Haven Parking Authority (NHPA) as defendants in the action. The city filed a motion for summary judgment (#109) and accompanying memorandum of law (#110) on September 25, 2008. The city argues that there is no genuine issue of material fact that the city did not possess, control or maintain the area where the plaintiff alleges she fell, and therefore is entitled to judgment as a matter of law. As evidence in support of its motion, the city provided an affidavit from the executive director of the NHPA, William Kilpatrick, attesting that, although the city owns the facility pursuant to an agreement, the city does not have responsibility for operation, inspection and/or maintenance of the facility. The affidavit further states that the city has never operated, inspected or maintained any part of the facility, including the pertinent ramps, and that the facility is operated and maintained by the NHPA.
In response, the plaintiff filed an objection and accompanying memorandum of law (#111) on December 10, 2008, arguing that there exists a genuine issue of material fact as to whether the city is vicariously liable for the NHPA on the basis of an agency relationship that exists pursuant to the New Haven Municipal Code sections governing the creation and operation of the NHPA. The city filed a reply on February 3, 2009, arguing that it cannot be vicariously liable because there is no agency relationship. The city argues that because the NHPA is a separate "body corporate and politic" pursuant to General Statutes § 7-202 et seq., and because the city does not control the NHPA's maintenance operations, it cannot be held vicariously liable. The court heard oral arguments on March 23, 2009.
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).
"Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . Although the finding of an agency relationship is ordinarily a question of fact . . . the plaintiff is asserting an agency relationship based solely on the statutory scheme . . . Therefore, unless the statutory scheme permits a finding of an agency relationship, there is no factual question to resolve." (Citations omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 184-85, 544 A.2d 1185 (1988).
The NHPA was created in 1951 pursuant to a special act of the legislature. See 1951 Special Laws, Acts No. 473 (26 Spec. Laws 339); Barnes v. New Haven, 140 Conn. 8, 10, 98 A.2d 523 (1953) (affirming constitutionality of the act). Subsequently, in 1953, the legislature enacted statutes establishing the protocol for creating, funding and operating parking authorities and parking divisions, now codified at General Statutes § 7-202 et seq. The plaintiff asserts that the relevant laws for determining whether the NHPA is an agent of the city are contained in Title II, Article VI., of the New Haven Code of General Ordinances, which codify Act 473 of the 1951 Special Laws and its subsequent amendments. The plaintiff argues that these ordinances demonstrate, as a matter of law, that the city may be vicariously liable for the acts or omissions of the NHPA under an agency theory. In its reply memorandum, the defendant city focuses on the provisions of § 7-202 et seq. to support its argument that the city lacks control over the NHPA in general, and its maintenance and operations in particular. At oral argument, the city also argued that the New Haven municipal code does not provide the city with statutory or actual control over maintenance and operations of parking facilities.
In Middletown v. F.L. Caulkins Automobile Co., 19 Conn.Sup. 45, 109 A.2d 888 (1954), the court distinguished between the then-newly passed state laws (current General Statutes § 7-202 et seq.) allowing for the creation parking authorities by municipalities and the special act under which the Middletown parking authority was in fact created. The court determined that although a parking authority created under the state statutes would have the powers delineated under those statutes, in fact, "[t]he city of Middletown has not created any such parking authority under the provisions of [that] public act." Id., 46. Rather, the Middletown parking authority was "clearly a body corporate and politic as set up under § 1 of [Special Act No. 158, passed in the January 1953, session]," and the powers of the authority were properly determined by reference to that act. Id., 46-47.
Like the Middletown parking authority, the NHPA was established pursuant to a special act and not General Statutes § 7-202 et seq. Act 473 of the 1951 Special Laws and its subsequent amendments are codified verbatim in the New Haven Code of General Ordinances, Title II, Article VI. The court agrees with the plaintiff that an interpretation of the municipal code — as opposed to General Statutes § 7-202 et seq. as suggested by the defendant — is the proper basis for determining whether, as a matter of law, the NHPA can be an agent of the city.
Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 161, provides an analytical guide for determining whether, as a matter of law, a parking authority can be an agent of the city. In Gordon, the plaintiff-appellant claimed that "the trial court erred in ruling as a matter of law that the city of Bridgeport did not stand in an agency relationship to the BHA [Bridgeport Housing Authority]." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 184. The plaintiff in Gordon, making arguments like those of the plaintiff in this case, asserted that "an agency relationship exists because the municipality has the power to create the authority" and "it has control over the BHA by the power to appoint and remove commissioners." Id. The Gordon plaintiff alternatively argued that an agency relationship existed for a particular purpose, i.e., police protection, pursuant to a "cooperation agreement" in place between the city and the BHA and because the city hired police officers for the city's projects. Id.
The Gordon court noted that when a party asserts an agency relationship based solely on the statutory scheme, unless the statutory scheme permits a finding of an agency relationship, there is no factual question to resolve. Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 184-85. Only if the statutory scheme permits a finding of an agency relationship should the court then determine if such a relationship in fact existed. CT Page 7005 Id. The Gordon court concluded that "part I of chapter 128 [§ 8-40 et seq.] fails to permit a finding of an agency relationship." Id., 185. The court went on to explain: "First, the city has no power to control the actions of the BHA. Under § 8-41, `[t]he powers of each authority shall be vested in the commissioners thereof' . . . It is true that the commissioners can be removed for cause by the city; General Statutes § 8-43; but the city does not have the power to control the actions of the authority as it would were it a true principal of the BHA. See W. Seavey, Agency (1977) § (E)3 (`[t]he right of the principal to direct what the agent shall do or shall not do is basic'). Second, under the powers of the authority under General Statutes § 8-44, the authority is not granted the power legally to bind the city. This is another essential element of a bona fide agency relationship." Id.
As in Gordon, in order to determine whether the statutory scheme permits a finding of an agency relationship, the key assessment concerns the city's power to control the actions of the NHPA, in particular as it concerns the maintenance and operation of the New Haven Air Rights Garage. Title II, Article VI., § 87 of the New Haven Code of General Ordinances provides the relevant language: "Said parking authority shall have the power in the name of the municipality to acquire, construct, reconstruct, improve, operate and maintain parking facilities in accordance with the provisions of this act [article]. Subject to the specific authorization and approval of the board of aldermen, after said board has received the report of the city planning commission on the suitability for parking use of any proposed real property or interest therein for use as a parking facility, said parking authority shall have the power, in the name of the municipality to acquire by purchase, gift, devise, lease, exchange or other contract or by the exercise of the power of eminent domain, real property or any interest therein necessary for or incidental to the acquisition, construction, reconstruction, improvement, operation or maintenance of said parking facilities, provided said authority shall not be empowered to take by eminent domain any property from a corporation which has the right of eminent domain, and this act [article] shall not affect the powers of eminent domain of any such corporation. Upon the approval, as hereinafter provided, of the method or methods of financing, said parking authority shall prepare necessary plans and drawings; acquire, construct, reconstruct or improve or contract for the construction, reconstruction or improvement of parking facilities; maintain and operate parking facilities; establish and collect reasonable off-street parking fees; lease parking facilities to any individual, firm or corporation, upon such terms and conditions as the public interest may warrant."
The municipal code pertaining to the NHPA is sufficiently ambiguous that the court cannot, as a matter of law, exclude the possibility of a finding of a principal-agent relationship. Most importantly, § 87 repeatedly states that the NHPA acts "in the name of the municipality," and expressly includes maintenance and operations within the powers executed "in the name of the municipality." This language suggests that the city and the NHPA may, in some instances, stand in a principal-agent relationship. An examination of the legislative history of the relevant special acts casts no light on the legislature's intent in using the phrase "in the name of the municipality" to describe the powers of the NHPA.
In addition to the ambiguity in the plain language of § 87, the overall statutory scheme governing the NHPA is silent on the matter of whether the NHPA may legally bind the city. Without any language in the statutory scheme to suggest that the NHPA cannot legally bind the city, the court will not draw the inference that the possibility of an agency relationship between the parties is foreclosed. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 184-85. As the possibility of a principal-agent relationship cannot be excluded based on a reading of the statutory scheme, the determination of an agency relationship becomes a question of fact.
Further comparison of the statutory language governing the NHPA and the statutes governing housing authorities-the subject of the Gordon court's analysis-indicates that the housing authorities retain distinctly greater individual powers compared to the NHPA. For instance, General Statutes § 8-44 states that, among other powers, a housing authority may "sue and be sued," "make and execute contracts and other instruments," and "purchase, lease, obtain options upon or acquire . . . real property" subject only to a public hearing; none of these powers are to be executed "in the name of the municipality." In contrast, no such independent legal power is implicit in the provisions governing the NHPA. As noted above and in § 87, the NHPA is deemed to execute its primary powers "to acquire, construct, reconstruct, improve, operate and maintain parking facilities" "in the name of the municipality." Furthermore, pursuant to § 87, the NHPA requires the "specific authorization and approval of the board of aldermen" before it can exercise these powers; pursuant to § 88 it may finance the acquisition, construction, reconstruction, improvement, operation and maintenance of parking facilities, but only after "specific authorization and approval of the board of aldermen"; and pursuant to § 94 the NHPA may lease facilities "in the name of the municipality," but again only after obtaining approval from the board of aldermen. There is no provision in the statutory scheme explicitly stating that the NHPA may sue or be sued.
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof . . . When a party files a motion for summary judgment and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).
In support of its motion for summary judgment, the city provides the sworn affidavit of the Executive Director of the NHPA, William Kilpatrick. Motion for Summary Judgment, Exhibit A. Kilpatrick, the Executive Director of the NHPA for the past fifteen years, attests that "the city . . . does not and did not on March 3, 2006 have responsibility for operation, inspection and/or maintenance of the facility" and that "[t]he City, its agents, servants and/or employees, have never operated, inspected, or maintained any part of the Air Rights Parking Facility."
The plaintiff has not contested Kilpatrick's statements, nor has she produced any evidence to the contrary. The court finds the defendant city's evidence to be both persuasive and controlling on the factual question of agency. As the plaintiff has not provided any evidence that the city retained actual control over the maintenance and operation of the facilities at the time of her alleged injury, and there is no genuine issue of material fact concerning the issue of agency, the city cannot be vicariously liable for the plaintiff's injuries under a principal-agent theory.
For the foregoing reasons, the court grants the defendant city's motion for summary judgment.