Grignano v. City of Milford

943 A.2d 507

106 Conn.App. 648

Lucy GRIGNANO v. CITY OF MILFORD.

No. 27474.

Appellate Court of Connecticut.

Argued November 26, 2007.

Decided April 1, 2008.

Marc J. Ubaldi, New Haven, for the appellant (substitute plaintiff).

Thomas R. Gerarde, with whom, on the brief, was Alan R. Dembiczak, Hartford, for the appellee (defendant).

BISHOP, DiPENTIMA and MIHALAKOS, Js.

DiPENTIMA, J.

The substitute plaintiff, Vincent Grignano, executor of the estate of Lucy Grignano,¹ appeals from the summary judgment rendered by the trial court in favor of the defendant municipality, the city of Milford. The substitute plaintiff claims that the court improperly concluded that the plaintiff's personal injury claim is barred by the doctrine of governmental immunity, pursuant to General Statutes § 52-557n. We affirm the judgment of the trial court.

On July 2, 2004, the plaintiff brought this personal injury action against the defendant. In her complaint, the plaintiff alleged that on August 29, 2003, she tripped over an uneven patio stone and sustained injuries while lawfully present as a public invitee of the defendant on property located at 37 Helwig Street in Milford, also known as Milford Landing. She further alleged that the negligent acts or omissions of the defendant, or its officers, agents or employees acting within the scope of their official duties, caused her injuries. Specifically, the plaintiff alleged that the defendant negligently constructed the patio, failed to inspect the patio for defects, failed to repair the defective stone and failed to warn her of the existence of the defective stone. In response, the defendant denied liability and claimed, by way of special defense, that the plaintiff's action was barred by the governmental immunity provided under § 52-557n. On September 7, 2005, the defendant filed a motion for summary judgment on its special defense, which the court granted in a written memorandum of decision on February, 27, 2006. This appeal followed.

We begin by setting forth the standard of review. "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 that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198-99, 931 A.2d 916 (2007).

"It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 451, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). "A material fact is a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003).

The plaintiff claimed that the defendant's negligence caused her injuries. "The essential elements of a cause of action in negligence are well established: duty breach of that duty; causation; and actual injury. . . . If a plaintiff cannot prove all of those elements, the cause of action fails." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 711, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).

"The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property." Salaman v. Waterbury, 246 Conn. 298, 304-305, 717 A.2d 161 (1998). "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). "A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover. . . . An occupier of land is chargeable with constructive notice of defects when dealing with invitees. . . . The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it. . . . Thus, to establish liability for an injury caused by a [defect on the landowner's premises], a plaintiff must establish that the landowner had either actual or constructive notice of the . . . defective condition." (Citations omitted; internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 68 Conn. App. 284, 294-95, 791 A.2d 602 (2002), aff'd, 263 Conn. 378, 819 A.2d 795 (2003).

When negligence is alleged against a municipality, our Supreme Court has stated that "[a] municipality itself was generally immune from liability for its tortious acts at common law. . . . [H]owever, that governmental immunity may be abrogated by statute. . . . General Statutes § 52-557n(a)(1) provides in relevant part: Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he 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. . . . [T]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents," except under the circumstances set forth in subsection (a)(2)(B). (Citation omitted internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47-48, 881 A.2d 194 (2005).

General Statutes § 52-557n(a)(2) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) 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." Because the parties in the present matter assume that the immunity provided by § 52-557n(a)(2)(B) is identical to a municipal employee's qualified immunity for discretionary acts at common law, we also assume, without deciding, that § 52-557n(a)(2)(B) codifies the common law. See Martel v. Metropolitan District Commission, supra, 275 Conn. at 48, 881 A.2d 194.

Under the common law, "a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment." (Citation omitted; internal quotation marks omitted.) Id., at 48-49, 881 A.2d 194. "If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance." Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982). "[M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. at 49, 881 A.2d 194; see also Blake v. Mason, 82 Conn. 324, 327, 73 A. 782 (1909) (ministerial act is one which person performs in given state of facts, in prescribed manner, in obedience to mandate of legal authority, without regard to or exercise of own judgment on propriety of act being done).

Our Supreme Court has explained the policy rationale for governmental immunity. "Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . 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...