Opinion
HHDCV156060710S
05-23-2017
Susan Stefurak v. Robert Shluger, Conservator of the Estate of Daniel Shluger et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is the motion for summary judgment filed by the defendant, Town of Glastonbury (Town) in this action filed by the plaintiff, Susan Stefurak, who was injured at an event sponsored by the Town. In support of its motion, the Town argues that it is entitled to judgment based on the doctrine of governmental immunity.
The plaintiff's claims arise from an incident that occurred on July 25, 2013, and the plaintiff alleges the following facts in her complaint. On July 25, 2013, the plaintiff was attending a social event for teenagers and adults with special needs, hosted by the defendant, as a custodian of a minor who had special needs. Daniel Shluger, a minor with special needs, was also present at the event and at one point during the evening, became excited and " began throwing his extremities about in a haphazard fashion." Daniel was holding a cellphone in his right hand, and while in this excited state, the cellphone was flung from his hand, striking the plaintiff in her left temple and eye, causing her injuries. The plaintiff alleges that the defendant was negligent and careless in failing to: (1) provide appropriate supervision for an event geared towards individuals with special needs; (2) provide appropriate security for an event geared towards individuals with special needs; (3) clear bystanders from Daniel's vicinity as he became excited; (4) remove objects from Daniel's hands when he became excited; (5) remove Daniel from the vicinity when he became excited; (6) properly, appropriately or safely restrain Daniel; (7) properly supervise and/or train its agents, servants and/or employees; and (8) provide sufficient staff and/or other employees.
The plaintiff alleged a negligence claim against Daniel Shluger in count one through Robert Shluger, conservator of Daniel's estate. Daniel is not a party to the present motion.
The defendant moves for summary judgment on the ground that it is protected from liability by governmental immunity. In support of its motion, the defendant submits the following evidence: the signed and sworn affidavits of Anna Park, Katryna Albert, Melissa Hickey, and Richard Johnson, all employees of the defendant, and an uncertified excerpt from the transcript of the plaintiff's deposition. The plaintiff did not submit any evidence in support of her initial objection to the defendant's motion for summary judgment. In her supplemental objection, the plaintiff submits an uncertified webpage of a single Glastonbury Town Ordinance.
Both parties submit uncertified evidence; however, because neither party objects to this evidence, this court may consider the same. See Practice Book § 17-45; Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
DISCUSSION
" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" 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).
The defendant argues that it is entitled to governmental immunity pursuant to General Statutes § 52-557n as a matter of law because its actions or inactions were discretionary, not ministerial. In response, the plaintiff asserts that the defendant is not entitled to governmental immunity because it had a ministerial duty created by ordinance, namely, Chapter 14, § 14-17, of the Glastonbury Code of Ordinances.
In light of the fact that it is no longer disputed that the defendant was not engaged in a proprietary function, the parties' initial arguments with regards to § 52-557n(a)(1)(B), addressing liability for the negligent performance of a proprietary act, are not addressed in this decision.
The plaintiff did not brief the identifiable person/imminent harm exception to discretionary act immunity but, rather, only argued that the defendant had a ministerial duty. Accordingly, that argument is considered abandoned.
Section 52-557n(a)(2)(B) provides in relevant part that a " political subdivision of the state shall not be liable for damages to person or property caused by 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 hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 118, 19 A.3d 640 (2011). " Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint . . . [that the nature of the duty] and, thus, whether governmental immunity may be successfully invoked pursuant to . . . § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint . . . Accordingly, where 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.) Coley v. Hartford, 312 Conn. 150, 162, 95 A.3d 480 (2014).
Turning to the complaint in the present case, it is clear that the negligent acts and/or omissions complained of by the plaintiff, i.e., that the defendant failed to provide adequate supervision, failed to adequately train those supervising the event, and failed to remove bystanders from the area, are inherently discretionary acts. See e.g., Strycharz v. Cady, 323 Conn. 548, 567-68, 148 A.3d 1011 (2016) (agreeing with rationale expressed in assortment of cases that general supervision of employees is discretionary function); Coley v. Hartford, supra, 312 Conn. 164 (" [police chief] may not be deprived of his power to exercise his own discretion and judgment as to the number, qualifications and identity of officers needed for particular situations at any given time" [internal quotation marks omitted]); Leslie v. Hartford Board of Education, Superior Court, judicial district of Hartford, Docket No. CV-14-6047423-S (January 5, 2016, Elgo, J.) (61 Conn.L.Rptr. 491, 492, ) (finding that alleged negligent acts of omission with regards to supervision, training, and inspection are inherently discretionary acts). Although the plaintiff includes the broad statement that the defendant " possessed a ministerial duty to do so" at the end of various allegations, the plaintiff does not identify in her complaint any policy or rule limiting the discretion or prescribing the manner in which the defendant and its employees were to perform. See Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010) (" for 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"). Accordingly, it is apparent from the complaint that the defendant's alleged negligent acts and/or omissions involved the exercise of judgment and, therefore, were discretionary. See Coley v. Hartford, supra, 162.
The plaintiff asserts in her supplemental objection to the defendant's motion for summary judgment that § 14-17 created a ministerial duty because it states that " the recreation commission shall . . . supervise the use of such facilities for recreation as the town may provide . . . " As an initial matter, this court questions the relevancy of this ordinance, because it is part of an article specifically dealing with the recreation commission, rather than the parks and recreation department in general. The title, Duties, is thus referring to the duties of the recreation commission, not duties imposed on the parks and recreation department and its employees.
Chapter 14, § 14-17 of the Glastonbury Code of Ordinances provides: " The recreation commission shall maintain, improve and supervise the use of such facilities for recreation as the town may provide and shall administer all funds appropriated for recreation by the town." .
Although the plaintiff did not allege this ordinance in her complaint, this court may consider the merits of the plaintiff's claim based on § 14-17. See Mills v. Solution, LLC, 138 Conn.App. 40, 49 n.8, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012) (" [i]t is sufficient that the plaintiff raised the source of the alleged ministerial duty in her opposition to the motion for summary judgment").
Notwithstanding the question of relevancy, the mere use of the word " shall" in this ordinance does not automatically transform a discretionary act into a ministerial duty. " The word 'shall' does not necessarily give rise to a ministerial duty . . . The mere fact that a statute uses the word 'shall' in prescribing the function of a government entity or officer should not be assumed to render the function necessarily obligatory in the sense of removing the discretionary nature of the function." (Internal quotation marks omitted.) Coley v. Hartford, supra, 312 Conn. 169-71 (finding that word shall in police response procedure did not give rise to ministerial duty when policy language read in its entirety clearly relied upon discretion of police officer how to perform obligation); see also Mills v. Solution, LLC, 138 Conn.App. 40, 51-52, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012) (finding that word shall insufficient to convert what is otherwise discretionary act into ministerial duty where text of statute leaves to discretion of police official how to perform function and whether to perform function at all).
Finally, assuming, arguendo, that this ordinance created a ministerial duty to supervise, it does not prescribe the manner in which this supervision is to be effectuated, i.e., it does not prescribe the kind of training employees should undergo, how many people are required to supervise events, or how the employees are to conduct supervision during the event. Cf. Thivierge v. Witham, 150 Conn.App. 769, 776-77, 93 A.3d 608 (2014) (noting that General Statutes § 22-331 provides for appointment of municipal animal control officer but does not provide any directive on how laws to be enforced); but see Wright v. Brown, 167 Conn. 464, 472, 356 A.2d 176 (1975) (" [w]hile the determination of [whether dog had bitten a person] involved the exercise of judgment, the subsequent duty to quarantine for fourteen days was mandatory and, therefore, ministerial"). The plaintiff does not allege that the defendant failed to supervise but, rather, alleges that such supervision was insufficient for various reasons, such as insufficient staff and inadequate training. The nature of these acts and omissions is discretionary because the defendant retained the ability to exercise its judgment in making determinations with regards to such things as staffing, training, and how its employees should handle situations like that alleged by the plaintiff. See Coley v. Hartford, supra, 312 Conn. 165-66. Accordingly, the defendant is entitled to judgment as a matter of law because it is entitled to governmental immunity.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment as to count two is granted.