Brusby v. Metro. Dist.

160 Conn.App. 638

127 A.3d 257

Judy BRUSBY

v.The METROPOLITAN DISTRICT, et al.

No. 36560.

Appellate Court of Connecticut.

Argued May 20, 2015.

Decided Oct. 20, 2015.

Justin R. Clark, for the appellant (plaintiff).

Jack G. Steigelfest, with whom, on the brief, were Thomas P. Cella and Christopher Harrington, Hartford, for the appellee (named defendant).

LAVINE, BEACH and ALVORD, Js.

ALVORD, J.

The plaintiff, Judy Brusby, appeals from the summary judgment rendered by the trial court in favor of the defendant The Metropolitan District.¹ On appeal, the plaintiff claims that the court improperly (1) granted the defendant's motion for summary judgment on the ground of governmental immunity, (2) granted the defendant's motion for summary judgment on the basis of the applicable statute of limitations for negligence claims, and (3) concluded that the plaintiff's contract claims were actually tort claims for purposes of determining the applicable statute of limitations. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff owns and resides in a house located on Newport Avenue in West Hartford. The defendant is a municipal corporation that provides potable water and sewerage services to its customers, including the plaintiff, on a regional basis. On October 15, 2005, and March 7, 2011, raw sewage entered into and flooded the plaintiff's partially finished basement. The plaintiff commenced this action against the defendant on August 2, 2011, alleging that its negligent acts caused her to suffer personal injuries and damages to her property as the result of those two incidents. The alleged negligence included, inter alia, the failure to properly install backflow safety features at her property and the failure to "properly build, maintain, construct, design, inspect, test, service and maintain the sewer system...." In her complaint, the plaintiff included counts for negligence, negligent infliction of emotional distress, negligent misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, and quantum meruit.

The defendant filed an answer with six special defenses on October 1, 2012. In its special defenses, the defendant alleged that the plaintiff's claims were barred by "the immunity afforded to it by [General Statutes] § 52–557n"; by "the doctrines of common law governmental and/or municipal immunity or by qualified governmental immunity"; and by "the applicable statute of limitations for [each] claim." The plaintiff filed a general denial to the allegations of the special defenses on October 16, 2012.

On December 9, 2013, the defendant filed a motion for summary judgment as to all of the counts directed against it. The defendant made the following claims: (1) governmental immunity barred the plaintiff's negligence claims; (2) all of the plaintiff's claims were time barred by the applicable statute of limitations; and (3) the plaintiff's contract claims were, in reality, tort claims recast as contract claims. In support of its motion, the defendant filed a memorandum of law, excerpts from deposition transcripts and five affidavits. The plaintiff filed a memorandum in opposition to the defendant's motion for summary judgment on January 21, 2014. In her memorandum, the plaintiff argued that the defendant's "negligent acts were a part of [its] proprietary function," that the negligent acts were ministerial in nature, that the defendant was "liable based upon the identifiable person imminent harm exception" if the acts were deemed to be discretionary in nature, that the applicable statute of limitations was "equitably tolled by the continuing course of conduct doctrine," and that she had alleged viable contract claims in her complaint. Accompanying her memorandum, the plaintiff filed excerpts from deposition transcripts, one affidavit, a copy of the 1929 special act creating The Metropolitan District, and a compilation of the defendant's sewer ordinances. On January 27, 2014, the defendant filed a reply to the plaintiff's opposition.

A hearing on the defendant's motion for summary judgment was held on January 27, 2014.² At that time, the defendant's counsel repeated the arguments set forth in the defendant's memorandum of law. Additionally, he argued that the proprietary function exception to governmental immunity was not applicable in this case. The plaintiff's counsel argued that "sewer utilities are engaged in proprietary conduct because they are making money in exchange for their water services." He claimed that the complaint properly alleged that the defendant was engaged in a proprietary function because it included allegations that the plaintiff "was a customer of the [defendant]" and that "the [defendant] provided potable water and sewerage services to the property." He also stated that the defendant had admitted those allegations in its answer.

With respect to the defendant's claim that the plaintiff's action was time barred, the plaintiff argued that the applicable statute of limitations was tolled by the continuing course of conduct doctrine. According to the plaintiff's counsel, "[t]he continuing course of conduct was the defective sewer that remained defective from 2006 throughout 2011." Additionally, the plaintiff's counsel argued that the contract claims were viable independent claims that arose from the fact that the plaintiff paid the defendant for its sewer services. Following concluding remarks by counsel, the court indicated that it would "take [the matter on] the papers."

On January 30, 2014, the court sent a computer generated notice to the parties advising them that it had granted the defendant's motion for summary judgment. The notice, which contained the entire decision of the court,³ provided: "The plaintiff's action violates the statute of limitations, [General Statutes §] 52–584, for the same reasons described in the ruling on [the town's] motion [for summary judgment].⁴ The court further finds that the alleged contract complaints are really tort claims. The actions or inactions of the [defendant] are discretionary under ... [§] 52–557n. The exception of an identifiable person subject to imminent harm does not apply because the conversation between Mr. Godbout [a municipal public official] and the plaintiff occurred after the flooding of 2011. Therefore, prior thereto, the plaintiff was not an identifiable person. All other claims are issues of fact, but the immunity and the statute of limitations defeat [the] plaintiff's claims." This appeal followed.

"The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17–49] requires that 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. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings....

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard.

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.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent....

"The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue.... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant's affidavits and documents.... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.... Our review of the trial court's decision to grant a motion for summary judgment is plenary." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 295–96, 44 A.3d 879, cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).

IGOVERNMENTAL IMMUNITY

"The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in ... § 52–557n."⁵ (Internal quotation marks omitted.) Martin v. Westport, 108 Conn.App. 710, 729, 950 A.2d 19 (2008).

The plaintiff's first claim is that the court improperly granted the defendant's motion for summary judgment on the ground of governmental immunity. Specifically, the plaintiff argues that the defendant cannot avail itself of the immunity afforded by § 52–557n because (1) the alleged acts of negligence were connected with the defendant's proprietary function of operating a sanitary sewer system, (2) the alleged acts of negligence were ministerial in nature, and (3) if the alleged acts of negligence were discretionary in nature, the defendant is nevertheless liable because of the imminent harm...