997 A.2d 449
(SC 18268)Supreme Court of Connecticut
Rogers, C. J., and Katz, Palmer, Vertefeuille, Zarella and McLachlan, Js.[*]
Syllabus
The plaintiff, who was injured when he slipped and fell in the parking lot of the senior citizen housing complex in which he resided, sought to recover damages from the defendant town, claiming that his injuries were caused by the defendant’s negligence in failing to sand and remove ice from the parking lot, an obligation the defendant undertook after a vote by the town residents. The trial court granted the defendant’s motion to strike the complaint on the ground that the defendant was immune from liability under the statute (§ 52-557n [a]) that provides governmental immunity for negligent acts that require the exercise of discretion. That court also determined that the identifiable person, imminent harm exception to such immunity did not apply to an action, as here, brought solely against a municipality. The trial court rendered judgment for the defendant in accordance with the plaintiff’s motion for judgment, and the plaintiff appealed. Held that the trial court improperly granted the motion to strike the plaintiff’s complaint, this court previously having determined that the identifiable person, imminent harm common-law exception to municipal employees’ qualified immunity applies in an action brought directly against a municipality, regardless of whether an employee or officer of the municipality is also named as a defendant.
Argued January 12, 2010
Officially released June 8, 2010
Procedural History
Action to recover damages for personal injuries sustained as a result of the defendant’s alleged negligence, brought to the Superior Court in the judicial district of Litchfield, where the court, Pickard, J., granted the defendant’s motion to strike and the plaintiff’s motion for judgment in accordance with the memorandum of decision, from which the plaintiff appealed; subsequently, this court granted the motion of John T. Benedict, administrator of the estate of Peter Benedict, to
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be substituted as the plaintiff. Reversed; further proceedings.
John R. Logan, for the appellant (substitute plaintiff).
David M. Sheridan, for the appellee (defendant).
William F. Gallagher filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
Opinion
ROGERS, C. J.
The dispositive issue in this appeal is whether the identifiable person, imminent harm[1] exception to governmental immunity for discretionary acts applies in an action brought directly against a municipality pursuant to General Statutes § 52-557n (a).[2] The
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plaintiff, Peter Benedict, [3] appeals from the trial court’s grant of the motion to strike filed by the defendant, the town of Norfolk, and the judgment rendered in favor of the defendant in response to the plaintiff’s subsequent motion for judgment. The plaintiff claims, inter alia, that the trial court improperly concluded that, under § 52-557n (a) (1) (A), the identifiable person, imminent harm exception applies only to municipal employees and does not extend to municipalities themselves.[4]
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Based on our recent decision in Grady v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (2009), we agree with the plaintiff and reverse the judgment of the trial court.[5]
The record reveals the following relevant facts and procedural history. This action arises from the plaintiff’s fall on ice in the parking lot of the Meadowbrook Housing Complex (complex), where he resided. The Norfolk Senior Housing Corporation owned the complex and permitted the plaintiff to live there, due to his disability determination. In 1973, the defendant held a town meeting at which the town residents voted to undertake the obligation of sanding and snow removal for the complex driveway and parking area. In 2005, the plaintiff allegedly sustained serious injuries when he slipped and fell on ice in the complex parking lot. The plaintiff later brought this action in a one count complaint, claiming that his injuries were the result of the defendant’s negligence.[6] The plaintiff claimed that the defendant was negligent in failing to discharge its duty to properly sand and remove ice from the parking lot.
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The defendant moved to strike the complaint, arguing that the task of plowing and sanding the parking area constituted a discretionary governmental function, and, therefore, that it was entitled to governmental immunity. The trial court agreed and granted the motion.[7] The court noted that the plaintiff did not allege the existence of any written directive dictating precisely how the defendant should conduct its snow removal and sanding activities. Rather, the plaintiff merely alleged that the defendant exercised poor judgment in sanding and plowing the parking area. Therefore, relying on our decision in Violano v Fernandez, 280 Conn. 310, 323-24, 327-28, 907 A.2d 1188 (2006), the court found that the defendant’s actions were not ministerial, but instead were discretionary under § 52-557n (a) (2) (B).
The trial court also rejected the plaintiff’s claim that the defendant was not entitled to governmental immunity under the identifiable person, imminent harm exception for discretionary acts, determining that the exception did not apply in an action brought solely against a municipality. After the court granted the motion to strike and the plaintiff failed to replead, the court rendered judgment in favor of the defendant. This appeal followed.[8]
On appeal, the plaintiff argues that the identifiable person, imminent harm exception applies to both municipal employees and municipalities. This court recently decided this exact issue i Grady v. Somers, supra, 294 Conn. 348.
The facts in Grady are similar to the facts of this case. I Grady, the plaintiff town resident was injured
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when he slipped on a patch of ice on the ground while disposing of a Christmas tree at a transfer station maintained and operated by the defendant town. Id., 328. The plaintiff brought an action against the town, claiming that it had been negligent in its failure to sand and salt the icy area where he fell. Id., 329. The plaintiff did not name any individual municipal employees as defendants. Id. Thereafter, the trial court granted the defendant’s motion for summary judgment, concluding that the plaintiff’s allegations could not overcome the town’s governmental immunity because the identifiable person, imminent harm exception to governmental immunity did not apply in an action brought directly against a municipality. Id., 329-30. On appeal, we held that “the identifiable person, imminent harm common-law exception to municipal employees’ qualified immunity . . . applies in an action brought directly against [a] municipalit[y] pursuant to § 52-557n
(a) (1) (A), regardless of whether an employee or officer of the municipality also is a named defendant.” Id., 348.
In the present case, the trial court held that the identifiable person, imminent harm exception to governmental immunity was not applicable in an action brought solely against a municipality pursuant to § 52-557n. In light of our recent decision i Grady, we conclude that the trial court improperly granted the defendant’s motion to strike on the ground that, as a matter of law, the identifiable person, imminent harm exception to governmental immunity for discretionary acts could not apply to the plaintiff’s claim.[9]
The judgment is reversed and the case is remanded to the trial court for further proceedings according to law.
In this opinion the other justices concurred.
In connection with his additional claims, the plaintiff encourages this court to reconsider our current standard for determining whether an act is discretionary under § 52-557n. In 2006, we held that, for the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists. Violano v. Fernandez, supra, 280 Conn. 323-24, 327-28. The plaintiff maintains that our decision in Violano was incorrect and that we have misconstrued the language of and legislative intent underlying the discretionary act exception set forth in § 52-557n (a) (2) (B). The plaintiff further argues that a municipality should be entitled to immunity only for those decisions that are made at the planning stage, not at the operational stage.
We decline the plaintiff’s invitation to revisit Violano. In the four years since that decision, the legislature has taken no action to overrule it. We view this legislative inaction as implicit approval of our construction of § 52-557n. See, e.g., State v. Peeler, 271 Conn. 338, 427-28, 857 A.2d 808 (2004) (“although legislative inaction is not necessarily legislative affirmation . . . we . . . presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation” [internal quotation marks omitted]), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). Similarly, “[t]he question whether the principles of governmental immunity from suit and liability can best serve this and succeeding generations has become, by force of the long and firm establishment of these principles as precedent, a matter for legislative, not judicial, determination.” (Internal quotation marks omitted.) Rogan v Board of Trustees, 178 Conn. 579, 582, 424 A.2d 274 (1979).
on December 22, 2009, while the present appeal was pending and approximately three weeks prior to oral argument before this court. The trial court did not have the benefit of our decision i Grady when it granted the defendant’s motion to strike.
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