Perez v. Metro. Dist. Comm'n

186 Conn.App. 466

200 A.3d 202

Vivian PEREZ, Administratrix (Estate of Andres Burgos)

v.METROPOLITAN DISTRICT COMMISSION

AC 40610

Appellate Court of Connecticut.

Argued October 9, 2018

Officially released December 11, 2018

Daniel P. Scholfield, with whom, on the brief, were Steven J. Errante and Marisa A. Bellair, New Haven, for the appellant (plaintiff).

Jack G. Steigelfest, with whom was Christopher M. Harrington, Hartford, for the appellee (defendant).

DiPentima, C.J., and Lavine and Harper, Js.

DiPENTIMA, C.J.

This case arises from the untimely death of Andres Burgos, who drowned while swimming in Lake McDonough, a recreational area that is owned and operated by the defendant, the Metropolitan District Commission.¹ The plaintiff, Vivian Perez, administratrix of the estate of Andres Burgos, appeals from the summary judgment rendered by the trial court in favor of the defendant on the basis of governmental immunity. On appeal, the plaintiff claims that the trial court erred in rendering summary judgment because there is a genuine issue of material fact with respect to (1) whether Burgos' death was caused by the defendant's breach of one or more of its ministerial duties, and (2) whether Burgos was an identifiable person subject to imminent harm. We are not persuaded and, accordingly, affirm the judgment of the trial court.

Viewed in the light most favorable to the plaintiff as the nonmoving party, the record reveals the following facts and procedural history. On July 9, 2011, Burgos and a group of friends went to Lake McDonough to swim. The lake is located principally in Barkhamsted, and its perimeter encompasses approximately 10.5 miles. At approximately 4 p.m., the group arrived at West Beach, which was one of three beaches on the lake that the defendant permitted the public to use during the late spring and summer months. Each of these beaches was adjacent to a designated swimming area, the boundaries of which were indicated by a string of red and white buoys. At each beach, the defendant also posted signs, in both English and Spanish, displaying the pertinent rules and regulations, including where swimming was permitted. Additionally, the defendant's employees conducted random boat patrols throughout the lake in order to locate individuals swimming outside of the designated areas.

After arriving at West Beach, Burgos and his friends followed a trail through the woods to an area of the lake colloquially known as "the Point." The group, including Burgos, entered the water from the Point and swam to a small island, referred to as First Island, approximately 250 feet from shore.² After reaching the island, the group started back to the shore. During the return journey, Burgos began to struggle before slipping underwater.

Upon realizing that Burgos had disappeared, members of the group swam to shore and ran back along the trail to West Beach to alert the defendant's lifeguards. Once informed of the incident, several lifeguards ran to the Point, entered the water and began to search for Burgos. Lifeguards from the other nearby beaches, notified over the radio of a possible drowning incident, soon arrived by boat to assist with the ongoing rescue. Despite the relatively close proximity of the island to the shore, the location where the group had been swimming was estimated to be deeper than twenty feet in some places. The depth of the water impaired visibility and forced the defendant's lifeguards to confine their line search to the shallower areas. After searching and not finding Burgos in the shallow sections, some of the lifeguards dove down into the deeper parts of the channel. Approximately fifty-five minutes after Burgos was last seen, one of the lifeguards, performing a deep water dive, located him lying faceup on the lakebed. He was retrieved and transported to Hartford Hospital. Burgos was pronounced dead later that day at 5:50 p.m. The cause of death was determined to be asphyxia and drowning.

On May 2, 2013, the plaintiff commenced the present wrongful death action against the defendant. The operative complaint alleged a single count against the defendant predicated on General Statutes § 52-557n (a) (1) (A).³ Specifically, the plaintiff alleged, inter alia, that the defendant had a ministerial duty (1) to prevent visitors from accessing and swimming in undesignated areas, (2) to conduct timely boat patrols, (3) to initiate a timely search for Burgos, (4) to contact the police, or call 911, in a timely fashion, and (5) to possess and maintain appropriate rescue equipment, but had failed to perform one or more of these responsibilities, and this nonfeasance was a direct and proximate cause of Burgos' death. On December 29, 2016, the defendant filed a motion for summary judgment on the ground that the plaintiff's claim was barred by the doctrine of governmental immunity pursuant to § 52-557n. In her objection to the motion, the plaintiff argued that the defendant had failed to meet its initial burden of negating the allegations of negligence as framed in the complaint, and, alternatively, that Burgos was an identifiable person subject to imminent harm, thus, creating an exception to governmental immunity.

In its memorandum of decision, dated June 16, 2017, the trial court concluded that the defendant had carried its burden of establishing that no genuine issue of material fact existed and granted the motion for summary judgment on the ground of governmental immunity. The court concluded that the plaintiff had failed to adduce evidence to raise a genuine issue of material fact as to the existence of a ministerial duty or that Burgos was an identifiable person subject to an imminent risk of harm. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the standard of review with respect to an appeal from a trial court's decision to grant a motion for summary judgment. "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's first claim is that the court erred in concluding that she had not established a genuine issue of material fact with regard to whether Burgos' death was caused by the defendant's breach of a ministerial duty.⁴ In support of her argument, the plaintiff primarily relies on the deposition of Marcia Munoz, the individual responsible for safety at Lake McDonough at the time of the incident. Munoz testified that she made "a lot of changes" to the defendant's lifeguard policies prior to 2011, but that she could not recall these changes specifically without first referencing a state manual from which the changes were derived. The defendant, however, was unable to produce the state manual, as it was apparently lost at some point after Munoz' retirement. The plaintiff contends on appeal that, without knowing precisely what changes Munoz adopted, a reasonable jury could conclude that her changes created ministerial duties or that her changes were not communicated effectively to those responsible for their implementation.⁵ Additionally, the plaintiff argues that the defendant's failure to preserve the state manual referenced in Munoz' testimony created a permissible adverse inference that the defendant violated a ministerial duty.

As a threshold matter, we acknowledge that the parties do not dispute that the defendant is a political subdivision and, therefore, entitled to the defense of governmental immunity. "With respect to governmental immunity, under ... § 52-557n, a [political subdivision] may be liable for the negligent act or omission of [its] officer[s] acting within the scope of [their] employment or official duties .... The determining factor is whether the act or omission was ministerial or discretionary .... [Section] 52-557n (a) (2) (B) ... explicitly shields a [political subdivision] 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 .... In contrast ... officers [of a political subdivision] 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." (Citations omitted; internal quotation marks omitted.) Hull v. Newtown , 327 Conn. 402, 407–408, 174 A.3d 174 (2017).

"[O]fficials [of a political subdivision] are immune 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...