WILLIAMS v. NEW HAVEN, 243 Conn. 763 (1998)

707 A.2d 1251

(SC 15700)Supreme Court of Connecticut

Callahan, C.J., and Borden, Berdon, Katz and Palmer, Js.

Syllabus
The plaintiffs sought to recover from the defendant city for injuries sustained by the minor plaintiff when he was struck by a high velocity stream of water from a fire hydrant that had been opened by an unauthorized person. The defendant filed special defenses alleging, inter alia, governmental immunity. The trial court rendered judgment for the plaintiffs in accordance with the jury’s verdict and denied the defendant’s motion to set aside the verdict. On the defendant’s appeal, held that the plaintiffs having relied solely on a claim of common-law negligence, having alleged no statutory exception to the doctrine of governmental immunity, and having failed to name an agent, officer or employee of the defendant, the doctrine of governmental immunity barred their action.

(One justice concurring separately)Argued December 11, 1997

Officially released March 3, 1998

Procedural History
Action to recover damages for personal injuries sustained by the plaintiff James L. Williams allegedly caused by the defendant’s negligence, and for other relief, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Hon. John C. Flanagan, judge trial referee; verdict for the plaintiffs; thereafter, the court denied the defendant’s motion for a directed verdict and its motion to set aside the verdict and, exercising the powers of the Superior Court, rendered judgment for the plaintiffs in accordance with the verdict, and the defendant appealed. Reversed; judgment directed.

Thomas W. Ude, Jr., assistant corporation counsel, for the appellant (defendant).

Jerald S. Barber, with whom was Earl I. Williams, for the appellees (plaintiffs).

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Opinion
BORDEN, J.

The dispositive issue in this appeal is whether the plaintiffs may maintain a negligence action against the defendant, the city of New Haven, in the absence of a statute expressly providing for such municipal liability. The named plaintiff, Irma Williams, brought this action, as parent and next friend of her minor son, James L. Williams, and on her own behalf for his medical expenses, against the defendant for injuries that James sustained when he was struck by a high velocity stream of water from a fire hydrant that had been opened by an unauthorized person. The defendant appeals from the judgment of the trial court rendered in accordance with the jury’s verdict for the plaintiffs, following the court’s denial of the defendant’s motion to set the verdict aside.[1] The defendant claims that governmental immunity barred the plaintiffs’ negligence action against it because they did not rely on any statute granting an exception to the governmental immunity provided by the common law to a municipality. We agree with the defendant and, accordingly, we reverse the judgment of the trial court.

The material facts and procedural history are undisputed. On July 6, 1991, Irma Williams called the fire department on two separate occasions to report that the fire hydrant near her home, which was located on Orchard Street in New Haven, had been opened, and to request that the water be shut off. During the second call, she also requested that a locking device be placed on the hydrant to prevent unauthorized openings from occurring. On July 8, 1991, James Williams was crossing Orchard Street when a stream of water from the open fire hydrant caused him to fall and hit his face on the

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pavement. As of that date, the defendant had not placed a locking or antivandalism device on the hydrant.

The plaintiffs did not name any agent, employee or officer of the municipality as a defendant, and brought this action against only the city of New Haven. The three count complaint alleged: (1) negligence on the part of the defendant for having allowed unauthorized persons to open the hydrant and for not having installed a locking device on it; (2) nuisance; and (3) reimbursement to Irma Williams for her son’s medical expenses. The defendant filed three special defenses asserting: (1) governmental immunity in the absence of a claimed statutory exception; (2) municipal exemption from liability for nuisance, unless the nuisance was created by a positive act of the municipality; and (3) contributory negligence by James Williams. The plaintiffs subsequently withdrew the count alleging nuisance on the part of the defendant. Thus, the case was presented to the jury solely on the theory of common-law negligence of the defendant.

The jury returned a verdict for the plaintiffs awarding $7000 in economic damages to Irma Williams, and $8000 in noneconomic damages to James Williams, which amount was reduced by 30 percent for his comparative negligence to $5600. The trial court rendered judgment for the plaintiffs in accordance with the jury verdict and denied the defendant’s motion to set aside the verdict. This appeal followed.

The defendant claims that it has governmental immunity from liability for common-law negligence and that the plaintiffs cannot prevail as a matter of law because they did not rely on any statute to abrogate that immunity. We agree.[2]

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We first note that, throughout the entire course of this litigation, including the allegations of the complaint, the trial and this appeal, the plaintiffs have relied solely on their claim of common-law negligence on the part of the defendant. At no time have they advanced any statute as a basis for the liability of the defendant in this case. Accordingly, on appeal, we consider this case as it was litigated in the trial court and briefed and argued in this court. Fink v. Golenbock, 238 Conn. 183, 193, 680 A.2d 1243 (1996).

“[I]t is the settled law of this state that a municipal corporation is not liable for negligence in the performance of a governmental function.” (Internal quotation marks omitted.)Wysocki v. Derby, 140 Conn. 173, 175, 98 A.2d 659 (1953); Lambert
v. New Haven, 129 Conn. 647, 649, 30 A.2d 923 (1943); Hannon v Waterbury, 106 Conn. 13, 16, 136 A. 876 (1927). This court has previously stated that “[a] municipality itself was generally immune from liability for its tortious acts at common law Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793
(1984) . . . .” Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). We have also long recognized that, “[u]nder our rule, the principle of governmental immunity extends to the construction and maintenance of fire equipment as well as to its use for fire protection.” Brock-Hall Dairy Co. v. New Haven, 122 Conn. 321, 324, 189 A. 182 (1937); 18 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1993) § 53.52. We have also recognized, however, that governmental immunity may be abrogated by statute. Wysocki v. Derby, supra, 175 (“[l]iability for the negligent performance of a purely public governmental duty may occur only when a statute so provides”); Epstein v. New Haven, 104 Conn. 283, 284, 132 A. 467 (1926) (same). Thus, the general rule developed in our case

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law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity.

The legislature has acted to limit governmental immunity in certain circumstances. For example, in General Statutes §13a-149,[3] the legislature has provided for municipal liability for property damage or personal injuries caused by defective roads and bridges. The legislature also has set forth general principles of municipal liability and immunity in General Statutes § 52-557n.[4] The plaintiffs have not relied on either of

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these two statutes, nor have they cited to any other statute as a means of abrogating the defendant’s governmental immunity.

In addition, the legislature has provided for indemnification by municipalities of municipal officers, agents or employees who incur liability for certain of their official conduct. See General Statutes §§ 7-465 and 7-308.[5] The plaintiffs, however, have not sought to avail

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themselves of these statutory remedies by bringing an action against any individuals and then claiming municipal indemnification.

Because it is clear that a municipality enjoys governmental immunity for common-law negligence unless a statute has limited or abrogated that immunity, the plaintiffs cannot prevail. The plaintiffs do not rely on any such statute, and they have failed to name an agent, officer or employee of the municipality and to invoke indemnification pursuant to § 7-465. The doctrine of governmental immunity, therefore, is fatal to their cause of action against the defendant.

At oral argument before this court, the plaintiffs claimed that governmental immunity is not applicable under the circumstances of the present case because the defendant is a corporation and can be held liable for negligence just as any other person or entity could be held liable. We are not persuaded. The plaintiffs cite no authority for this broad proposition, which would

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be inconsistent with the well established doctrine of governmental immunity and the statutory exceptions thereto.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment for the defendant.

In this opinion CALLAHAN, C.J., and KATZ and PALMER, Js., concurred.

BERDON, J., concurring.

The majority is correct that based upon cases such as Wysocki
v. Derby, 140 Conn. 173, 175, 98 A.2d 659 (1953), a municipal corporation is immune from liability when it performs a governmental function. The jurisprudential underpinnings of this immunity, however, is as antiquated as the roots of the doctrine. It had its beginning with the 1788 case of Russell v. Men of Devon, 100 Eng. Rep. 359 (1788). Russell was decided “at a time when the idea of the governmental corporate entity was still in a nebulous state, so that the action was brought in effect against the entire population of a county. In addition to lack of precedent and fear of a multiplicity of actions, the decision was based on the fact that there were no corporate funds out of which satisfaction of a judgment could be obtained, so that individual citizens would be required to pay.” 4 Restatement (Second), Torts § 895C, comment (c) (1979).

The landscape of municipal liability, corporate and employee, has obviously changed with the adoption of General Statutes §52-557n, which codified § 13 of the Tort Reform Act of 1986, Public Acts 1986, No. 86-338. Section 52-557n provides in relevant part: “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he negligent acts or omissions of such political subdivision or any employee, officer or

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agent thereof acting within the scope of his employment or official duties . . . .”[1]

Although the legislative history of § 52-557n is murky; se Sanzone v. Board of Police Commissioners, 219 Conn. 179, 188, 592 A.2d 912 (1991); whether the light will eventually shine on the law with respect to municipal and municipal employee liability in Connecticut remains to be seen. In his treatise, Professor Keeton points out that most states have abolished municipal immunity. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 131, p. 1052. Indeed, “the American Law Institute now recognizes the rule to be that municipalities have no general immunity at all.” Id., citing 4 Restatement (Second), supra, § 895C.[2] In adopting § 895C, the American Law Institute recognized “[t]he current of criticism . . . that it is better that the losses due to the tortious conduct of officers and employees should fall upon the municipality rather than upon the injured person and that the torts of public employees are properly to be regarded, as in other cases of vicarious liability, as a cost of the administration of government and should be borne by the public.” 4 Restatement (Second), supra, § 895C, comment (d).

The problem in this case is that the plaintiffs have neither argued before the trial court nor this court that

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§ 52-557n has changed the law on immunity and/or that we should adopt § 895C of the Restatement (Second) of Torts. Accordingly, these issues must be left to another day.

I concur in the result.