Kusy v. City of Norwich

192 Conn.App. 171

217 A.3d 31

Andrzej KUSY

v.CITY OF NORWICH et al.

AC 41721

Appellate Court of Connecticut.

Argued April 16, 2019

Officially released August 27, 2019

Matthew T. Wax-Krell, Hartford, with whom was Andrew W. Krevolin, West Hartford, for the appellant (plaintiff).

Jeffrey G. Schwartz, Hartford, for the appellees (defendants).

Keller, Prescott and Moll, Js.

PRESCOTT, J.

This is a personal injury action brought by the plaintiff, Andrzej Kusy, against the defendants, the city of Norwich, its board of education, and certain municipal employees,¹ seeking to recover damages for injuries he sustained after he slipped and fell on snow or ice while delivering milk for his employer, Guida's Dairy (Guida's), at a Norwich school. The plaintiff appeals from the trial court's summary judgment rendered in favor of the defendants on the ground that they are entitled to governmental immunity.

On appeal, the plaintiff claims that the trial court improperly rendered summary judgment in favor of the defendants on the ground of governmental immunity because he adequately raised a genuine issue of material fact as to whether (1) the removal of snow and ice at a school is a ministerial rather than a discretionary act, and (2) the plaintiff was an identifiable victim because he had a contractual duty to deliver milk to the school. We disagree with both claims and, therefore, affirm the judgment of the trial court.

The record before the court, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following facts and procedural history. On February 24, 2015, the plaintiff delivered milk to Kelly Middle School in Norwich for Guida's. The plaintiff had been making these deliveries to the school "[t]wo times a week for at least seven months." On the day of the injury, the plaintiff was delivering milk in the area designated for such deliveries. The weather was "sunny but cold" during the morning of February 24, 2015, and it last snowed a few days prior. The plaintiff, nevertheless, noticed ice on the delivery ramp and notified the supervisor of the school's kitchen, who contacted the maintenance person for the school.

The plaintiff also contacted his employer to alert it to the icy conditions. The plaintiff had a brief conversation with John Guida at Guida's and explained the conditions to him. Despite his report, Guida ordered him to complete the delivery. Approximately twenty-five minutes after speaking to Guida and traveling up and down the ramp multiple times, the plaintiff slipped and fell.

No one removed the snow and ice during the period between the time the plaintiff reported the icy conditions to the school employee and when he fell.

The plaintiff commenced this action on February 21, 2017. The complaint contains three counts: the first two counts contain allegations of negligence against the defendants and the third count is against the city of Norwich (city) for indemnity pursuant to General Statutes § 7-465.² The plaintiff alleged that the defendants acted negligently because, inter alia, the school's custodial staff had a ministerial duty to clear the snow and ice from the delivery ramp and failed to do so. The plaintiff also alleged that he was a member of "a foreseeable class of identifiable victims" and was subjected to "a risk of imminent harm."

On December 6, 2017, the defendants filed a motion for summary judgment. They asserted that governmental immunity barred them from being held liable because the plaintiff could not demonstrate a genuine issue of material fact regarding any exception to governmental immunity. The trial court granted the motion for summary judgment on May 21, 2018, and issued a memorandum of decision setting forth its reasoning.

In its memorandum of decision, the trial court concluded that the defendants were entitled to summary judgment because General Statutes § 52-557n (a) (2) (B) prevents a municipality from being held liable for the discretionary acts of its employees, even if the acts are performed negligently. The trial court indicated that an act is discretionary as a matter of law in the absence of a directive limiting the discretion of a municipal employee's performance of the act. The trial court stated that the defendants presented evidence showing that they had no policy concerning snow and ice removal and that the plaintiff provided no evidence tending to demonstrate the existence of such a policy. On this record, the trial court concluded that snow and ice removal is discretionary in nature as a matter of law, and, thus, the plaintiff failed to raise a genuine issue of material fact regarding whether the removal of snow and ice is a ministerial act for which the city could be held liable.

The trial court also addressed the plaintiff's contention that, even if snow and ice removal is discretionary in nature, the defendants were not entitled to governmental immunity because the identifiable person-imminent harm exception to discretionary act immunity applies. The trial court, however, determined that the plaintiff was not an identifiable victim because "he was not a child attending a public school during school hours." This appeal followed.

This court's standard of review for a motion for summary judgment is well established. "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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... [I]ssue-finding, rather than issue-determination, is the key to the procedure.... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.... Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) DiMiceli v. Cheshire , 162 Conn. App. 216, 221–22, 131 A.3d 771 (2016).

I

The plaintiff first claims that snow and ice removal by a municipality is a ministerial act as a matter of law. In the alternative, the plaintiff contends that whether the removal of snow and ice is ministerial in nature is a factual question that is reserved for the jury and may not be decided by the court by way of summary judgment. We disagree.

In Ventura v. East Haven , 330 Conn. 613, 629, 199 A.3d 1 (2019), our Supreme Court restated the well established principles that govern the statutory distinction between ministerial and discretionary acts: "The law pertaining to municipal immunity is ... well settled. [ Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages.... One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.... [Section] 52-557n (a) (2) (B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions [that] require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." (Internal quotation marks omitted.)

Accordingly, a municipality is entitled to immunity for discretionary acts performed by municipal officers or employees but may be held liable for those acts that are not discretionary but, rather, are ministerial in nature. "[O]ur courts consistently have held that to demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion." (Internal quotation marks omitted.) Id., at 631, 199 A.3d 1 ; see also Violano v. Fernandez , 280 Conn. 310, 323, 907 A.2d 1188 (2006) (holding that "the plaintiffs ... have failed to allege that the acts or omissions complained of were ministerial in nature because ... the plaintiffs have not alleged that [the defendant] was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to secure the property in any prescribed manner" [citation omitted] ). Furthermore, this court held previously that evidence of a policy that merely states general responsibilities without "provisions that mandate the time or manner in which those responsibilities are to be executed, leaving such details to the discretion and judgment of the municipal employees," is insufficient to show that the act is ministerial.

Northrup v. Witkowski , 175 Conn. App. 223, 238, 167 A.3d 443 (2017), aff'd, 332 Conn. 158, 210 A.3d 29 (2019). Therefore, if there is no directive setting forth the manner in which a municipal official is to perform the act, then the act is not ministerial and is therefore discretionary in nature.

This court has already concluded that, in the absence of a directive prescribing the manner in which an official is to remove snow and ice, such an act is discretionary in nature. Beach v. Regional School District Number 13 , 42 Conn. App. 542, 553–55, 682 A.2d...