Ferreira v. City of Waterbury

Wellington FERREIRA v. CITY OF WATERBURY et al.

No. CV166029604S

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

July 17, 2018

UNPUBLISHED OPINION

File Date: July 18, 2018

Brazzel-Massaro, J.

INTRODUCTION

The plaintiff filed an Amended Complaint dated November 2, 2016. The defendants City of Waterbury and the Waterbury Board of Education have filed a motion for summary judgment as to both counts in the complaint. The defendants contend that they have immunity pursuant to Connecticut General Statutes § 52-557n. The defendants argues that the acts are discretionary and thus C.G.S § 52-557n prevents the finding of liability for this cause of action. The plaintiff has filed a memorandum in opposition dated January 19, 2018 arguing that the acts alleged are ministerial based upon their interpretation of the duties in conjunction with their application of the Code of Ordinances, the Waterbury City Charter and the Board of Education Bylaws. The defendants submitted a reply dated January 22, 2018.

FACTUAL BACKGROUND

The plaintiff is a school bus driver for the Durham School Services for the students in the City of Waterbury. On January 16, 2014, the plaintiff drove students in the course of his employment to the West Side Middle School in Waterbury in the morning. After leaving the students at the school he asked permission to use the rest room in the school. He was permitted to enter the school and went to the restroom. The restroom was located on the second floor. As he was leaving the school and descending the stairs he fell on the stairway. He alleges that the City of Waterbury was negligent in that: 1) the City knew or in the exercise of reasonable care should have known of the existence of the dangerous and defective condition of the stairway yet took no action to correct it; 2) that the defective condition was permitted to remain for an unreasonable period of time; 3) that the area was not inspected to discover said hazardous condition; 4) that the area was not cordoned off to prevent its use by lawful users such as the plaintiff; 5) that they failed to provide notice to the plaintiff of the defective and dangerous condition; 6) that the defendant failed to adopt, promulgate and/or enforce rules, policies, regulations or procedures concerning the prompt response to address the dangerous condition of the stair; and/or that the nosing on the stair was broken, cracked and uneven in violation of State of Connecticut Basic Building Code Section 1009.7.2 (formerly 1009.3.2 and 1009.3.3). The plaintiff contends that his injuries were caused by the defect. The defendants have alleged that the plaintiff does not have a claim because the maintenance of the staircase and the related duties are discretionary and thus they have immunity from suit pursuant to C.G.S. § 52-557n. Additionally, the defendants argue in their reply that even if discretionary, the exceptions as to identifiable person in imminent harm pursuant to the law do not apply to the factual circumstances in this action. The plaintiff has argued that the duty is ministerial and thus immunity does not apply. He argues that if in the alternative the court determines that the duty is discretionary the plaintiff is an identifiable person subject to imminent harm and the law should be applied to find that in the circumstances of this action he is an identifiable person subject to imminent harm thus entitled to an award.

DISCUSSION

A. Legal Standard

Practice Book § 17-49 provides that "summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citations omitted.) 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 nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion "the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 786, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o 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 ... 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue ..." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

"A genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "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 such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2008).

B. Immunity

In this action the defendants argue that any duty to repair or maintain the stairway is discretionary and thus immunity applies. At common law, a municipality generally was immune from liability for its tortious acts. Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). The Supreme Court has recognized however, "governmental immunity may be abrogated by statute." (Internal quotation marks omitted.) Id. The tort liability of a municipality has been codified in § 52-557n. The statute provides: "[e]xcept 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." Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages 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 defendants rely upon C.G.S. § 52-557n(a) in this motion.

The plaintiff argues that the duty in question is ministerial and thus the immunity does not apply. The defendants contend that the duty as alleged in the plaintiff’s complaint is discretionary and also contends that in accordance with the case law the plaintiff does not satisfy one of the three exceptions for immunity.

The court first examines the claim that the allegations involve discretionary duties that are protected by immunity if the exceptions do not apply. The claims in the complaint clearly allege that the defendants failed to correct what plaintiff contends was a defective condition in a reasonable time failed to inspect, did not cordone off or identify an alleged defect in a reasonable time and failed to adopt, promulgate or follow policies, procedures or regulations to address the alleged defect. The defendants contend that these allegations are clearly discretionary duties and thus there is immunity. "The hallmark of a discretionary act is that it requires the exercise of judgment. In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. In order to create a ministerial duty, there must be a city charter provision, regulation, rule, policy or any other directive [compelling] a municipal employee to [act] in a prescribed manner ..." "In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity ... A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs ... 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 [such a determination] is...