Opinion
No. CV04 041 05 38 S
March 28, 2008
MEMORANDUM OF DECISION
FACTS
The plaintiff, Driton Traqi, brings this action seeking to recover for injuries and damages sustained as the result of an incident on February 19, 2004. On that date, he alleges that he was injured as the result of an assault committed by the defendant Daniel Potter, following a high school hockey contest between Greenwich High School and Notre Dame of Bridgeport.
The plaintiff alleges that Daniel Potter assaulted him, as he was leaving the Dorothy Hamill Skating Rink in Greenwich. It is claimed that the plaintiff sustained a depressed skull fracture, and a crushed sinus cavity as a result of the assault. Criminal charges were pursued against Daniel Potter.
This action is brought by Driton Traqi, and his mother, Rozeta Gjidoda, in four counts. In addition to Daniel Potter, named as defendants are Walter and Mary Jane Potter, his parents. Two employees of the Town of Greenwich, Richard Ernye and Joseph Siciliano are named as defendants, along with the Town of Greenwich.
The first and second counts of the complaint allege that an assault was committed by Daniel Potter. Count three claims that Walter Potter and Mary Jane Potter were negligent in the supervision of the activities of their minor son, who was sixteen years old on the date of the incident. Count three also alleges a statutory cause of action, pursuant to § 52-572 of the General Statutes.
Section 52-572, C.G.S. — "The parent or parents . . . of any unemancipated minor . . . which minor . . . wilfully or maliciously causes damage to any property or injury to any person . . . shall be jointly and severely liable with the minor or minors for the damage or injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults.
Count four is directed to the Town of Greenwich and its employees, Richard Ernye and Joseph Siciliano. In this count, the plaintiffs claim that the Town of Greenwich was negligent in providing security for the athletic contest, and that Driton Traqi sustained injury as a result of that negligence.
It is claimed that the Town, acting through its employees, failed to provide adequate security in order to protect spectators, including students whose attendance at the hockey contest was expected.
The Town of Greenwich and its employees have moved for summary judgment as to Count four. They claim that governmental immunity bars any action against the municipality, and the individual defendants.
The plaintiff maintains that the defense of governmental immunity does not apply, because the Town of Greenwich, in its operation of the skating rink, was acting in a proprietary capacity, rather than in a governmental capacity.
In the alternative, the plaintiffs maintain that in providing security for the event, the municipality was acting ministerially, and was engaged in an activity which did not involve the exercise of judgment or discretion by its employees. They further maintain that even if the act of providing security involved the exercise of judgment or discretion, the negligence of the municipal employees subjected the plaintiff, Driton Traqi, as an identifiable individual, to the threat of imminent harm, thus bringing this action within an exception to the governmental immunity defense.
STANDARD OF REVIEW — SUMMARY JUDGMENT
A trial court may appropriately render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to a judgment as a matter of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1981); Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986). A material fact has been defined as one which will make a difference in the result. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).
Connecticut 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 the moving party is entitled to a judgment as a matter of law."
The burden is on the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded. Fogarty v. Rashaw, 193 Conn. 442, 445 (1984); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979).
In determining a motion for summary judgment, a trial court must view all of the evidence in the light most favorable to the nonmoving party, in this case the plaintiff, Driton Traqi. Home Ins. Co. v. Aetna Life Casualty Co., 235, 202 (1995). The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict. United Oil Co. v. Urban Redevelopment Commission, supra, 380.
Although the purpose of a motion for summary judgment is to test for the presence of contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, where the complaint fails to set forth a viable cause of action, and the defect cannot be cured by re-pleading. Larobina v. McDonald, 274 Conn. 392, 401 (2005).
A QUESTION OF FACT EXISTS CONCERNING WHETHER THE TOWN OF GREENWICH WAS ENGAGED IN A PROPRIETY FUNCTION
Section 52-557n(a)(1) of the General Statutes, provides:
(a)(1) Except as otherwise provided by law, a political subdivision of the estate shall be liable for damages to person or property caused by . . . (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit of pecuniary benefit . . .
This statute adopts the common-law rule, holding that a municipality is liable if it acts for its own special corporate benefit or is engaged in an activity which makes a profit. Considine v. Waterbury, 279 Conn. 830, 847 n. 11 (2006).
Here, an admissions fee was charged to those entering the hockey game, and the facility was leased to the Board of Education of the Town of Greenwich by the Town, for a fee. The proceeds of the ticket sales, $3,650, were sent to the Connecticut Interscholastic Athletic Conference (CIAC), under whose auspices the hockey contest was conducted.
No information was submitted concerning the amount of the fee paid by the Greenwich Board of Education, or the terms and conditions of any lease agreement. It is also unclear, whether the Board of Education is charged a fee pursuant to a fee schedule which is also applicable to private users of the skating rink.
In Considine, the court determined that the lease of municipal property to private individuals is an act performed in a proprietary capacity. Considine v. Waterbury, supra, 849.
This is consistent with the long-standing Connecticut rule, holding that the lease of concession facilities on a public beach by a municipality is a proprietary function. Carta v. Norwalk, 108 Conn. 697, 699-700 (1929).
In Carta, lease of the property at an annual rate of $2,500 was seen as a source of revenue, and therefore the municipality may be responsible, as a private owner of property would be, for injuries sustained as a result of its negligence. Carta v. Norwalk, supra, 701.
Examples of proprietary functions, cited by the court in Considine, include the lease to market stands to merchants, lease of a school auditorium to private individuals, lease of rooms in a town hall, and the lease of a stadium for the purpose of holding an auto race. In those situations, governmental immunity would not apply. Considine v. Waterbury, supra, 849.
However, the court noted that the mere fact that a fee is charged, is not sufficient, in and of itself, to transform a governmental function into a proprietary function. A municipality may charge a nominal fee for the use of a municipal swimming pool; Hanon v. Waterbury, 106 Conn. 13, 17-18 (1927); or charge admission to a high school football game; Couture v. Board of Education, 6 Conn.App. 309, 312-13 (1986); and not lose the benefit of the governmental immunity defense.
The plaintiff maintains that the Town of Greenwich had an agreement with the Board of Education, to charge a rental fee for functions. Therefore, upon the payment of the fee, monies appropriated to the Board of Education during the municipal budget process, and under the control of the Board of Education, are returned to the Town of Greenwich as general fund revenue.
The Town of Greenwich provided security for the event, an athletic contest in which spectators might cross the line which exists between cheerleading and enthusiasm, and engage in taunting and ridiculing both fans and participants. The plaintiff has satisfied the requirement that an inextricable link or close connection exists between the claimed negligence of the municipal employees, and the activity for which the facility was leased. Martel v. Metropolitan District Commission, 275 Conn. 38, 53 (2005).
The failure to provide adequate security for out-of-town spectators is linked to the use of the facility for a hockey game.
Furthermore, whether the Greenwich Board of Education is equivalent to a private lessee of the facility can not be determined as a matter of law, and involves a factual analysis of all of the factors surrounding the transaction.
Therefore, since genuine issues of material fact remain, the motion for summary judgment must be denied.
CLAIMS INVOLVING IMMINENT HARM TO AN IDENTIFIABLE VICTIM AND THE NATURE OF POLICE PROTECTION
Because a genuine issue of fact exists concerning whether the Town of Greenwich was engaged in a proprietary function, it is not necessary to determine whether the plaintiff under this factual scenario is an identifiable individual, who was subjected to the threat of imminent harm through the alleged negligence of municipal employees.
Nor is it necessary to determine whether the municipality was engaged in a ministerial as opposed to a governmental function, although it is well settled that the failure to provide police protection, or the adequacy of that protection including the deployment of uniformed officers, is a governmental function requiring the exercise of judgment or discretion. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180 (1988).
In order to bring himself within the "identifiable person/imminent harm" exception to the general rule of governmental immunity, the plaintiff must show that he was subjected to the threat of imminent harm, by the failure of a municipal official to act. Evon v. Andrews, 211, Conn. 501, 505 (1989).
He can prevail on this theory only if he comes within an identifiable class of foreseeable victims, such as school children attending classes during school hours, when attendance is required by law. Purzycki v Fairfield, 244 Conn. 101, 108-08 (1998); Burns v. Board of Education, 228 Conn. 640, 646 (1994).
This narrow exception has not been extended to include spectators attending a school sanctioned athletic event. Prescott v. Meriden, 273 Conn. 759, 764 (2005).
Recently, in Durrant v. Board of Education, 284 Conn. 91 (2007), a majority of the Connecticut Supreme Court refused to extend the "identifiable person/imminent harm" exception to include a parent picking up a child following an after-school event. The rationale for the majority's holding was that the child was not required to attend the after school event, even though it was contemplated by statute. Durrant v. Board of Education, supra, 108.
In light of Durrant, it would be difficult to envision a situation in which the "identifiable victim/imminent harm" exception to governmental immunity would be extended to include spectators at an athletic contest, where attendance was not compulsory, and the event was not held during school hours, or on school property.
The motion for summary judgment is DENIED.