Finn v. Town of Hamden

Jacqueline Finn v. Town of Hamden et al

No. NNHCV166060769S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

September 13, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Steven D. Ecker, J.

Plaintiff Jacqueline Finn was injured when she fell on a sidewalk outside of the Hamden High School (" high school") gymnasium on the evening of January 25, 2014. Finn was on the premises to attend a basketball game. The precise mechanics of her fall are not clear, but a reasonable construction of the evidence suggests that she was walking on the sidewalk near the gymnasium entryway when she slipped on the snowy surface of the sidewalk as she was attempting to readjust her balance after her right foot struck (or became stuck in) the remnants of a metal footing (" metal box") that once held a light-post. Finn's age is not evident from the record before the court, but she is an adult, not a high school student. It appears that she was accompanied by a daughter or granddaughter named Maddie and perhaps another relative known as " TJ." The three were intending to attend the game as spectators.

The defendants include the Town of Hamden (" Town") the Hamden Board of Education (" Board"), and those officials and employees responsible for keeping the sidewalk area in a safe condition during events such as the basketball game. The claims of negligence, set forth in two counts (one against the Town defendants and the other against the Board defendants), focus on the various defendants' alleged failure, in one way or another, to remove snow from the sidewalk and to remedy the dangerous condition caused by the raised metal box on the sidewalk.^[1]

Defendants have denied the allegations of negligence. Before the court now is their motion for summary judgment, which rests on two separate and distinct grounds. First, they claim that plaintiff's claims are " barred" under the " storm-in-progress" doctrine. See Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1998) (recognizing doctrine under Connecticut common law). Their second argument is based on the " discretionary duty" exception to municipal liability. See Conn. Gen Stat. 52-557n(a)(2)(B) (providing that municipalities are not liable for " 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 court has carefully reviewed the briefs reply briefs, and supplemental briefs filed by the parties the attachments and exhibits to those submissions, as well as all relevant pleadings and other materials that comprise the record in this case. The court has also read the statutes and cases that define and elaborate the substantive law relevant to the " storm-in-progress" doctrine and the issue of governmental immunity presented. The facts and substantive law have been considered in light of the well established standards applicable to a motion for summary judgment. For the reasons that follow, the court has concluded that summary judgment is not appropriate on this record.

Ongoing Storm Doctrine.

The ongoing storm doctrine was formulated by the Supreme Court in these simple terms:

We believe that in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical.

Kraus, supra, 211 Conn. at 197-98 (footnote omitted). Although there will be times when a court can determine that the doctrine bars plaintiff's claim as a matter of law, see, e.g., Leon v. DeJesus, 123 Conn.App. 574, 2 A.3d 956 (2010) (affirming summary judgment in defendant's favor under ongoing storm doctrine), the application of the doctrine often depends on highly particularized factual circumstances. When those facts material to the application of the doctrine are in dispute, a jury question is presented, and summary judgment cannot be granted. See, e.g., Sinert v. Olympia and York Development Co., 38 Conn.App. 844, 852, 664 A.2d 791 (1995) (question of fact whether fall caused by ongoing storm or earlier precipitation); Brooks v. Sal-War, Inc., No. NNH-CV44-156051777, 2016 WL 7137628, at 2-*3 (J.D. New Haven, 10/31/16) [63 Conn. L. Rptr. 257, ] (identifying three factual issues to be resolved in connection with ongoing storm defense).

On the present record, there are factual issues for the jury to decide with respect to the ongoing storm defense. Whether there even was a " storm" at the relevant time appears to be in dispute. In addition, plaintiff appears to claim in her deposition that the snow had accumulated from previous storms, not the alleged " ongoing" storm. These (and perhaps other) factual issues cannot be decided by the court on summary judgment.

Parenthetically, it is not obvious to the court that the ongoing storm doctrine applies at all under the circumstances of this case. The doctrine was developed to establish a sensible standard of care for private landowners who may be visited by " invitees" during or just after a storm event, at a time when the landowner cannot reasonably be expected to have yet ventured outside to remove or otherwise mitigate the dangers caused by the accumulated precipitation. See Kraus, supra, 211 Conn. at 192 (plaintiff, an employee of a local utility, was injured when he slipped on defendant's property while stopping to read the meter). It has been found to apply to commercial landowners as well, see Sinert, supra, 38 Conn.App. at 850, and may also apply to public landowners. But, by its own terms, the doctrine does not apply in all circumstances, because it contains an exception for " unusual circumstances." Kraus, supra, 211 Conn. at 197 (quoted above). In the present case, the high school apparently made a choice to invite the public to attend an indoor sporting event, and decided that " the game must go on" even after learning that it would " go on" during a snowstorm (or what defendants say was a snowstorm. It is clear that the event was not cancelled, nor was it closed to members of the public due to safety concerns. It is not clear whether the ongoing storm doctrine permits a landowner to invite the public to attend a special event, but, at the same time, imposes no obligation to exercise reasonable care to provide safe means of ingress and egress. If it is not safe enough to go outside to shovel, it seems fair to question why it nevertheless is safe enough to invite the public to attend the event-without at least warning the attendees that they should not expect the usual rules of due care to apply during the storm.^[2]

Governmental Immunity

Defendants' governmental immunity defense presents a closer call at the summary judgment stage. The historical development and purposes of governmental immunity in Connecticut is well-known, as is the doctrinal architecture, and there is no need to recite that background here. Defendants argue that the allegations of negligence relate to " acts or omissions [that] require the exercise of judgment or discretion as an official function of the municipal defendants' authority, " and therefore fall within the protective scope of governmental immunity under General Statutes § 52-557n(a)(2)(B).^[3] They also contend that plaintiff cannot rely upon the " identifiable victim/imminent harm" exception to discretionary act immunity because she was a member of the general public whose presence on the premises was voluntary.

On the latter point, defendants are clearly correct under the controlling case law: plaintiff does not qualify as an " identifiable victim" on this factual record See e.g, St. Pierre v. Town of Plainfield, 326 Conn. 420, 436, 165 A.3d 148 (2017) (" Generally, we have held that a party is an identifiable person when he or she is compelled to be somewhere"); Durrant v. Board of Education, 284 Conn. 91, 100-10, 931 A.2d 859 (2007) (parent, who slipped on wet staircase as she was entering school to pick up her daughter, was not identifiable victim); Prescott v. Meriden, 273 Conn. 759, 764-66, 873 A.2d 175 (2005) (parent, injured after slipping on wet bleachers while attending son's high school football game, was not identifiable victim). Plaintiff's negligence claims here, in short, cannot overcome the governmental immunity bar unless the acts and omissions at issue were carried out as part of defendants' ministerial functions.

The analysis used to distinguish discretionary from ministerial acts or omissions emanates from the underlying purpose of the doctrine itself, which is " to encourage municipal officials to exercise judgment" unhampered by " fear of second-guessing and retaliatory lawsuits, " Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006). The basic framework is well-settled and oft-repeated:

Discretionary act immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. This is because society has no analogous interest in

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