2006 Ct. Sup. 12015
No. CV 03-0823772 SConnecticut Superior Court Judicial District of Hartford at Hartford
June 28, 2006
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (#108)
JANE S. SCHOLL, JUDGE.
Introduction
In this action the Plaintiff has filed a sixteen-count complaint against the town of West Hartford, the West Hartford Board of Education, and various individual employees of the town. The Plaintiff claims that she was injured, on or about June 20, 2002, when she was walking on the premises known as Hall High School to attend graduation ceremonies and she fell because of a depressed and grooved area in the asphalt in a driveway on the premises. The First and Second Counts of the complaint are brought against the town and its board of education pursuant to General Statutes § 52-557n. The Third, Sixth, Ninth, Twelfth, and Fourteenth Counts are brought against various employees of the town and/or board of education and allege that the Plaintiff’s injuries were caused by the negligence and carelessness of such employees. In the Fourth, Seventh, Tenth, Thirteenth, and Fifteenth Counts the Plaintiff seeks indemnity from the town pursuant to General Statutes § 7-465 for the negligence of its employees. In the Fifth, Eighth, Eleventh and Sixteenth Counts the Plaintiff seeks indemnity from the board of education for the negligence of its employees pursuant to General Statutes §10-235.
The Defendants have moved for summary judgment as to all counts because: 1) the negligence claims against municipal employees are barred by qualified governmental immunity; 2) the negligence claims against the town and board of education are barred by governmental immunity; 3) the indemnity claims against the town under General Statutes § 7-465 are barred because no municipal employee is subject to liability; and 4) the indemnity claims against the board of education pursuant to General Statutes §10-235 are barred because a) the statute does not authorize such CT Page 12016 a cause of action and/or b) no board employee is subject to liability.
The standards for granting summary judgment are well settled. “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. The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal citation and quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31
(2006). “`In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . .’ Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).” Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47 (2005).
In support of its motion for summary judgment, the Defendants CT Page 12017 note that it is undisputed, as alleged in the complaint and as admitted by the Defendants in their answer, that the town and board of education are political subdivisions of the State of Connecticut and the municipal employee Defendants were employed by or acted for the town and/or the board of education. In opposition to the motion, the Plaintiff submitted photographs of the ruts; portions of a deposition of a town employee; the Defendants’ responses to requests for admissions; and a West Hartford police report.
Qualified Governmental Immunity
The Defendants first claim that the negligence counts against the municipal employees are barred by qualified governmental immunity. The Plaintiff claims that her injuries and losses were caused by the negligence and carelessness of the employees in that: a) they failed to provide a safe place for the plaintiff and others lawfully upon the premises, when in the exercise of reasonable care they could have and should have done so; b) they chose to use the premises for graduation ceremonies when they knew or should have known of the danger that said area of depressed and/or grooved asphalt presented to attendees; c) they failed to provide adequate signs or warnings to the public of the dangerous and defective condition of the driveway, when in the exercise of reasonable care they could have and should have done so; d) they failed to erect barriers or to take other measures to prevent members of the public from tripping on said area of depressed and/or grooved asphalt; and e) they failed to provide members of the public, including the plaintiff, with a reasonably safe means of ingress and or egress to and from the graduation ceremonies. “`[A] municipal employee [however,] has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . The word “ministerial” “refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 [1975].’ Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977). The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; see, e.g., Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979); second, where a CT Page 12018 statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; see, e.g., General Statutes 7-108 creating municipal liability for damage done by mobs; and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See, e.g., Stiebitz v. Mahoney, 144 Conn. 443, 448-49, 134 A.2d 71 (1957).” Evon v. Andrews, 211 Conn. 501, 505 (1989). It is clear here that the actions of the Defendants which the Plaintiff claims were negligent were taken as part of the exercise of their discretionary, and not ministerial, duties. For purposes of this motion, the Plaintiff agrees that a municipal employee’s failure to maintain property in a safe condition is considered a breach of a discretionary duty, but argues that this case falls within the exception where liability may attach to the exercise of discretionary duties because the Plaintiff was an identifiable victim. “The `discrete person/imminent harm’ exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state.” (Internal quotation marks and citation omitted.) Tryon v. Town of North Branford, 58 Conn.App. 702, 710 (2000).
The Plaintiff argues that since the Defendants have admitted in their answer that the Plaintiff, “Diane Hetrick, and other graduation attendees, would use and/or did use said driveway area,” the Plaintiff was an identifiable victim. She argues that this admission alone is sufficient to deny the motion for summary judgment. The Defendants counter that only students are identifiable victims on school property and that a non-student injured on school property cannot invoke the “identifiable victim/imminent harm” exception. They cite Prescott v. City of Meriden, 273 Conn. 759 (2005), in support of their claim. There the Court held that a parent attending his child’s public school athletic event is not a member of a class of foreseeable victims. The plaintiff did not claim that he was an identifiable victim. The court noted: “First, the plaintiff’s presence at the game was purely voluntary. He was not compelled to attend by any statute, regulation or other legal command. In this respect, he was no different from any of the other spectators — whether relatives or friends of the team members, other students at the respective schools, teachers and other school staff members, or simply fans of high school football interested enough to brave any weather to watch a traditional Thanksgiving Day game. Thus, the plaintiff was simply like any other member of the public attending the game. Second, the plaintiff was entitled to no special CT Page 12019 consideration of care from the school officials because of his status as a parent. Thus, he was unlike the schoolchildren in both Burns and Purzycki. Third, we have characterized the classes of foreseeable victims as `narrowly defined . . .’ Id.,
646. Recognizing the plaintiff as establishing a cognizable class of foreseeable victims, namely, parents of students on the team, would be contrary to this characterization, especially given the close resemblance of the plaintiff as spectator to all of the other members of the public similarly situated. Moreover, to do so would mean that all spectators at a public municipal event would constitute a class of foreseeable victims for these purposes, thus making the exception so broad that it would threaten to swallow the rule.” Prescott v. Meriden, 273 Conn. 759, 764-65 (2005).
The situation here is not like that in Burns v. Board of Education, 228 Conn. 640, 649-50 (1994), cited by the Plaintiff. There the Court determined, based on a review of the statutes mandating school attendance by children and that boards of education and superintendents of schools maintain and care for property used for school purposes, that “[t]he result of this network of statutory and constitutional provisions is that the superintendent of schools bears the responsibility for failing to act to prevent the risk of imminent harm to school children as an identifiable class of beneficiaries of his statutory duty of care. At least during school hours on school days, when parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees, the superintendent has the duty to protect the pupils in the board’s custody from dangers that may reasonably be anticipated . . . As a matter of policy, this conclusion comports with our case law that has traditionally recognized that children require special consideration when dangerous conditions are involved.” Thus “Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred, . . .” DeConti v. McGlone, 88 Conn.App. 270, 274-75 (2005).
Even assuming that the Defendants knew that the Plaintiff would be present at the graduation ceremony, this does not elevate her status to that of a foreseeable victim any more than did the Plaintiff’s status in Prescott. The Defendants’ admission is no more than an acknowledgment that persons attending the graduation ceremonies, a class of persons as broad as that recognized i Prescott, would use the driveway area. In fact, the allegations CT Page 12020 of negligence in the Plaintiff’s complaint refer to the Defendants’ duty, not to the Plaintiff alone, but to the “plaintiff and others lawfully on the premises,” “to attendees,” “to the public,” and “to members of the public.”
Regardless of whether the Plaintiff was an identifiable victim or a member of a class of identifiable victims, she must do more than establish that the Defendants knew that she and other graduation ceremony attendees were on their property, she must also establish that the circumstances made it apparent to the Defendants that their failure to act would be likely to subject the Plaintiff to imminent harm. Here the Plaintiff claims that she was caused to trip and fall in one of two approximately four inch long depressed and grooved areas in the asphalt in a driveway area. The situation here is unlike that in Tryon v. North Branford, 58 Conn.App. 702 (2000), where the plaintiff was bitten by a dog, brought to a firemen’s parade by a municipal employee, when she grabbed the dog. The court defined imminent harm as “harm ready to take place within the immediate future.”Id., 712. There the court concluded that the plaintiff was an identifiable person to whom the defendant municipal employee owed a duty and the harm caused was not of an unspecified type that could have occurred at any time or at any place in the future or to anyone. This case is more akin to the situation in Evon v. Andrews, 211 Conn. 501 (1989) where the plaintiff claimed that town officials had failed to enforce certain various laws concerning the maintenance of a rental dwelling which resulted in a fire and the death of the plaintiff’s decedents. The Court held that the plaintiff’s decedents were not subject to imminent harm in that the fire could have occurred at any time or not at all. Here the alleged defects in the driveway were not of such a nature that harm from them to persons who waked in the driveway was imminent. As in Evon, the fall here could have occurred at some future time to someone else or to no one at no time. As i Lyon, the risk of a fall because of the defects implicates a wide range of factors, such as the gait and shoes of the person walking.
If this court were to agree with the Plaintiff’s position, municipal employees would be personally liable for every injury occurring to any member of the public using a public facility who is injured as a result of the employees’ failure to properly maintain the premises. As the Supreme Court noted in Evon,
quoting from its decision in Shore v. Stonington, 187 Conn. 147
(1982), “the adoption of a rule of liability where some kind of CT Page 12021 harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society.”
Therefore it cannot be said that the Plaintiff was subject to imminent harm as a result of the Defendants’ alleged breach of their discretionary duties and the individual Defendants are protected by qualified immunity. The Defendants are entitled to summary judgment on the Third, Sixth, Ninth, Twelfth and Fourteenth Counts.
Governmental Immunity Pursuant to General Statutes § 52-557n
The First and Second Counts of the complaint are brought against the town and its board of education pursuant to General Statutes § 52-557n. That statute provides, in pertinent part: “(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The 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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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.” The Plaintiff argues that the Defendants, the Town of West Hartford and West Hartford Board of Education, are not immune pursuant to General Statutes § 52-557n(a)(2)(B) due to the identifiable victim/imminent harm exception. Yet the Supreme Court in Pane v. Danbury, 267 Conn. 669, 677 n. 9 (2004), noted that that exception only applies to the municipal employee as distinct from the municipality itself.
Since, as discussed above, the negligent acts or omissions alleged here stem from the town employees’ discretionary duties, the town and its board of education are not liable pursuant to CT Page 12022 General Statutes § 52-557n(a)(2)(B).
The Defendants are entitled to summary judgment on the First and Second Counts.
Indemnification Pursuant to General Statutes § 7-465
As to the Plaintiff’s claim for indemnity pursuant to General Statutes § 7-465, in the Fourth, Seventh, Tenth, Thirteenth, and Fifteenth Counts, the Plaintiff claims that if the trier of fact concludes that a municipal employee was negligent, the town could be liable to indemnify him pursuant to General Statutes § 7-465. That statute provides, in part, that: “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.” “The statute indemnifies municipal employees who, acting in the scope of their employment, become obligated to pay damages for injury to person or property. A plaintiff bringing suit under General Statutes 7-465 first must allege in a separate count and prove th employee’s duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town’s liability by indemnification.” (Citations omitted.)Sestito v. Groton, 178 Conn. 520, 527 (1979). The town is only liable if a town employee is found liable; recovery against the town is wholly contingent on recovery against the employee. The town cannot be held liable “unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon . . . [him] by law for physical damages to person or property . . . While 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance.” (Internal citations and quotation marks omitted.) Kostyal v. Cass, 163 Conn. 92, 97 (1972). Since the Plaintiff’s claims against the town employees fail, as discussed CT Page 12023 above, so do her claims against the town pursuant to General Statutes § 7-465.
The Defendants are entitled to summary judgment on the Fourth, Seventh, Tenth, Thirteenth and Fifteenth Counts.
Indemnification Pursuant to General Statutes § 10-235
As to the Plaintiff’s claims pursuant to General Statutes §10-235, in the Fifth, Eighth, Eleventh and Sixteenth Counts, it is true, as the Plaintiff argues, that there is a split among superior courts as to whether this statute provides for a direct cause of action against a municipality. The statute provides, in pertinent part: “a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff . . . from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person, or in accidental damage to or destruction of property, within or without the school building, or any other acts, including but not limited to infringement of any person’s civil rights, resulting in any injury, which acts are not wanton, reckless or malicious, provided such teacher, member or employee, at the time of the acts resulting in such injury, damage or destruction, was acting in the discharge of his or her duties or within the scope of employment or under the direction of such board of education . . .” The court agrees with Judge Corradino, who stated in Saez v. Suarez, Superior Court, judicial district of New Haven at New Haven, Docket No. CV-00-0443901 S (July 15, 2005): “There is a split of authority among the trial courts as to whether individual injured parties have a direct cause of action under § 10-235. The court agrees with the defendant Board that this statute gives no right to a direct action against the board, it is simply an indemnity statute and if the legislature wanted to provide for a direct action under its auspices it could have easily so indicated. The court is persuaded by the reasoning of Judge Blue in Logan v. City of New Haven, 38 Conn. L. Rptr. 700
(2005). He quotes from Judge King in Swainbank v. Coombs, 19 Conn.Sup. 391, 396 (1955), who says: `There is nothing in the statute which does, or purports to, impose on the board of education direct liability to this plaintiff, whether under the theory of respondeat superior, abolition of defense of governmental immunity, or otherwise. On the contrary, the statute CT Page 12024 provides, where applicable, that [the individual defendant] be protected and saved harmless from loss or expense consequent upon certain enumerated types of civil misconduct on his part. The plaintiff’s rights of action are unaffected by the enactment of the statute. And unless, and until, [the individual defendant] has sustained a loss, [the individual defendant’s] right of action under the statute against the board of education does not arise. The statute clearly provides for indemnification from loss, not indemnification from liability.'” Thus the Plaintiff cannot maintain her action against the board of education pursuant to General Statutes § 10-235 and the Defendants are entitled to summary judgment on the Fifth, Eighth, Eleventh and Sixteenth Counts.
Conclusion
For the reasons stated above, the Defendants’ motion for summary judgment is granted in its entirety. CT Page 12025