Mills v. Solution, LLC

138 Conn.App. 40

50 A.3d 381

Maria E. MILLS, Executrix (Estate of Clarence Israel Mills)

v.THE SOLUTION, LLC, et al.

No. 32792.

Appellate Court of Connecticut.

Argued June 1, 2012.

Decided Sept. 11, 2012.

Marie A. Casper, with whom were Jeremy C. Virgil and, on the brief, Jeffrey M. Cooper, Bridgeport, for the appellant (plaintiff).

Karen L. Dowd, with whom were Kenneth J. Bartschi and, on the brief, Christopher M. Vossler, Hartford, for the appellees (defendant 5 Star Amusement Company, Inc., et al.).

Betsy A. Edwards, associate city attorney, for the appellees (defendant city of Bridgeport et al.).

GRUENDEL, J.

The plaintiff, Maria E. Mills, executrix of the estate of Clarence Israel Mills (decedent), appeals from the summary judgments rendered by the trial court in favor of the defendants the city of Bridgeport (city); Philip C. Handy, the director of the city's department of parks and recreation; Anthony Armeno, the city's acting chief of police at the time of the subject incident; 5 Star Amusement Company, Inc.; Robert E. Coleman, Jr.; and Linda M. Coleman.¹ She claims that the court improperly concluded that no genuine issues of material fact existed as to (1) whether the city, Handy and Armeno (municipal defendants) ² had qualified immunity because (a) General Statutes § 7–284 imposes a ministerial duty to provide police protection and (b) the city was engaged in a proprietary activity, and (2) whether 5 Star lacked control of the premises such that it did not owe her decedent a duty. We affirm the judgments of the trial court.

We set forth the following facts as gleaned from the pleadings, affidavits and other proof submitted, viewed in a light most favorable to the plaintiff. See Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009). The Solution, LLC, (Solution) ³ was the general organizer and operator of the Midway carnival held annually at Seaside Park in Bridgeport (carnival). 5 Star was the vendor that provided the rides, food and amusement activities for the carnival.

Thomas Kelly received a permit from the city's police department to hold the carnival from June 20, 2005, through July 5, 2005. The organization named on the permit was 5 Star. The permit required that security be provided and coordinated with the police department's outside overtime office. Those police officers were in addition to the officers already scheduled to work their regular duty shifts. The city's parks and recreation department also issued a permit for the carnival. The identity of the applicant was listed on the permit as “Five Star Amusement Inc. c/o The Solution LLC.” The permit identified Kelly as the representative making the application and required that the permittee be responsible for required police coverage for the use and activities conducted under the permit as may be deemed appropriate by the city's police department.

On June 24, 2005, the decedent was fatally shot at the carnival by Lucilo Cifuentes.⁴ The plaintiff's third amended complaint alleged thirteen counts against various defendants. The second count of the plaintiff's third amended complaint alleged that the injuries and damages suffered by the decedent were caused as a result of the negligence and carelessness of 5 Star. The third count alleged that the injuries and damages suffered by the decedent were caused as a result of the negligence and carelessness of Handy. The count alleged, inter alia, that Handy negligently allowed the carnival to be held without adequate security or police coverage. In count four, the plaintiff sought indemnity from the city for the negligence and carelessness of Handy. In count seven, the plaintiff alleged that the injuries and damages suffered by the decedent were caused as a result of the negligence and carelessness of Armeno. The count alleged, inter alia, that Armeno negligently failed to provide sufficient police coverage for the carnival and failed to cancel or to postpone the carnival when he knew or should have known that there would be inadequate police coverage. In count eight, the plaintiff sought indemnity from the city for the carelessness and negligence of Armeno.

On March 11, 2010, the municipal defendants filed a motion for summary judgment on counts three, four, seven and eight of the plaintiff's third amended complaint. They asserted that the plaintiff's complaint was legally insufficient because the allegations of negligence in the complaint related to discretionary acts, and the municipal defendants are therefore immune from liability pursuant to General Statutes § 52–557n. They claimed that there was no genuine issue of material fact as to whether their acts were discretionary in nature. Attached to the motion were affidavits from Armeno, Handy and James Honis, who was the deputy chief of police at the time of the incident. In her opposition to the municipal defendants' motion for summary judgment, the plaintiff asserted that § 7–284 obligated the municipal defendants to provide police protection and thus was the source of a ministerial duty.

On October 13, 2010, the court rendered summary judgment in favor of the municipal defendants. In its memorandum of decision, the court found that the plaintiff's complaint was facially insufficient, as it failed to allege that there was a policy, directive, guideline or procedure in place regarding the alleged failures of the municipal defendants. The court found that the actions of the municipal defendants on June 24, 2005, in determining how and when to deploy police officers, were discretionary in nature and not ministerial. The court also held that § 7–284 did not create a ministerial duty, as the implementation of § 7–284 requires the exercise of discretion and judgment by police officials. It further found that the plaintiff could not recover under an exception to a municipal employee's qualified immunity for discretionary acts because the decedent was not an identifiable victim subject to imminent harm and because there was no evidence that the city derived a pecuniary benefit from providing police protection to the carnival.

5 Star likewise filed a motion for summary judgment on all claims asserted against it on March 16, 2010. It claimed that (1) it was not charged with the duty to provide police protection at the carnival, (2) it had no notice that there was likelihood that homicides would be committed, (3) the homicide in question was unforeseeable and (4) the plaintiff's claims against 5 Star are barred by the intervening intentional and criminal act of another.

On November 1, 2010, the court rendered summary judgment in favor of 5 Star. The court found that there was no evidence presented that 5 Star was the permittee, or that it owned, rented, possessed or otherwise controlled the premises where the carnival took place. Absent evidence of possession or control of the premises, the court determined that 5 Star owed no duty to the decedent as a business invitee, and the plaintiff therefore could not prevail in a negligence claim against it. This appeal followed.

Before considering the precise claims presented on appeal, we note the well established standard of review. “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.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17–44 and 17–45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.... Our review of the trial court's decision to grant a motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 382–83, 942 A.2d 469 (2008).

I

The plaintiff claims first that the court improperly held that there was no genuine issue of material fact as to whether the municipal defendants had qualified immunity for the negligence claims asserted against them by the plaintiff. Specifically, the plaintiff argues that the court improperly held that the municipal defendants were entitled to qualified governmental immunity because (1) § 7–284⁵ imposes a ministerial duty to provide police protection and (2) the municipal defendants were engaged in proprietary activities. We agree with the municipal defendants that the court properly rendered summary judgment in their favor pursuant to § 52–557n because their allegedly negligent acts were discretionary in nature and were not performed for a pecuniary benefit.

We begin with the general principles of municipal liability. Under § 52–557n (a)(1)(A),⁶ a municipality generally is liable for the ministerial acts of its agents. Section 52–557n (a)(2)(B),⁷ however, “explicitly shields a municipality from liability for damages to person or property caused by the 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.” (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).

As our Supreme Court has explained, “[m]unicipal officials are immunized from liability for negligence arising out of their...