III v. Town of Cheshire (2009)

MEMORANDUM OF DECISION

This is a decision on a motion for summary judgment, dated October 30, 2009, filed by the defendant, town of Cheshire.   By revised complaint dated August 7, 2008, the plaintiff, William Hoppe, III, alleges negligence of the defendant, the town of Cheshire, in connection with its maintenance of a public basketball court, seeking monetary damages and such other relief as the court sees fit.

The plaintiff alleges the following relevant facts.  “[T]he Parks and Recreation Department and/or other department of the defendant ․ was responsible for the maintenance of the defendant's basketball court located at Cheshire Park, 1000 Highland Avenue, in the Town of Cheshire ․ On or about April 2, 2006 ․ while the plaintiff was upon the court, he was caused to trip and fall (the ‘fall’) over a crack in the surface of the court causing him to sustain the injuries ․ The fall of the plaintiff was caused by the carelessness and negligence of the defendant in one or more of the following ways ․” The plaintiff goes on to allege that the defendant knew that the court was in disrepair, it permitted such dangerous disrepair, failure to warn, failure to remedy, failure to inspect and failure to properly train staff to maintain the court.

On October 8, 2008, the defendant filed its answer and four special defenses to the plaintiff's amended complaint.   The defendant's first special defense alleges that the “plaintiff's claims are barred by the doctrine of governmental immunity pursuant to both C.G.S. § 52-557n and common law.” ¹

On October 30, 2009, the defendant filed a motion for summary judgment and memorandum in support thereof.   The plaintiff filed an objection to the defendant's motion for summary judgment and a memorandum in support of his objection on November 12, 2009.   The matter was heard at short calendar on November 16, 2009.

I.

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 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.”   (Citations omitted;  internal quotation marks omitted.)  Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

II.

In its motion for summary judgment, the defendant argues that the acts of negligence alleged by the plaintiff are discretionary acts entitled to governmental immunity.   Specifically, the defendant argues that it and its employees were engaged in the performance of a public duty in operating and maintaining the park and that the acts of inspection, maintenance and supervision are discretionary acts entitled to governmental immunity.   The defendant further argues that none of the exceptions to governmental immunity apply here, because the plaintiff was not an identifiable victim was not a member of a narrowly defined identified class of foreseeable victims and the plaintiff was not subject to imminent harm, or in the alternative, if the plaintiff was subject to imminent harm, it nonetheless was not apparent to a municipal employee.

In his objection to the defendant's motion, the plaintiff argues that the defendant is not entitled to governmental immunity because the failure to repair cracks in the court involves ministerial acts.   The plaintiff prefaces this argument not on any town rules or regulations, but on the assertion that the town parks and recreation department “regularly conducted routine inspections and carried out routine maintenance work and repairs.”   The plaintiff thus concludes that repairing cracks in the court is part of the parks and recreation department's job, which must thereby mandate repair of such cracks upon knowledge of their existence and the necessity for repair.   The plaintiff flatly states that “it would be preposterous to say that sweeping the court free of leaves or dirt or other debris is [anything] other than a ministerial act.”   The plaintiff does not argue any exception to the application of discretionary act governmental immunity here.

The law in Connecticut governing the liability of a municipality for its negligence and that of its agents and employees is well settled.  “General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages.”  Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006).  “In Spears v. Garcia, 263 Conn. 22, 818 A.2d 37 (2003), the [Supreme Court] concluded that ․ § 52-557n allows a plaintiff to bring a direct cause of action for negligence against a political subdivision of the state.”  Pane v. Danbury, 267 Conn. 669, 677-84 n.9, 841 A.2d 684 (2004).

General Statutes § 52-557n provides in relevant 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 ․ (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 ․ (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 Supreme Court has determined that “municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion.”  Elliott v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998).  “A municipality may be liable for the misperformance of a ministerial act, as opposed to a discretionary act.”   Doe v. Board of Education, 76 Conn.App. 296, 300, 819 A.2d 289 (2003).  “The hallmark of a discretionary act is that it requires the exercise of judgment.   On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.”  (Internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).  “[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․” (Citations omitted;  internal quotation marks omitted.)  Id. “It becomes a question of law if the nature of the acts complained of is apparent from the complaint.”  (Internal quotation marks omitted.)   Duncan v. Groton, Superior Court, judicial district of New London, Docket No. CV 03 0565060, (August 3, 2004, Martin, J.).

“In Segreto v. Bristol, [71 Conn.App. 844, 845, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002) ] the plaintiff alleged that negligence was the cause of injuries she sustained from a fall on a stairway ․ owned by the city.   In response, the city asserted that the plaintiff's claim was barred by the doctrine of governmental immunity.   The court concluded that the complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply.   In addition, because the plaintiff's allegations all related to whether the city's design and maintenance of the stairway were reasonable and proper under the circumstances ․ the court determined that the complaint alleged discretionary activity as a matter of law.”  (Citations omitted;  internal quotation marks omitted.)   Morin v. Farmington, Superior Court, judicial district of New Britain, Docket No. CV 02 0518562 (October 19, 2004, Burke, J.).

In Burks v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 98 0262469 (June 8, 1999, Beach, J.), the plaintiff sought recovery for injuries allegedly received while playing basketball at a public court.   Noting the plaintiff's first count alleged “that his fall and injuries were caused by the negligence of the Town ․ in that a) the surface of the court was cracked and hazardous;  b) the court did not have a proper uniform surface;  and c) there were no warnings in that regard,” the court held that the “the duties to warn and to inspect and to repair the public facility were, in the circumstances presented, discretionary and public.”  (Internal quotation marks omitted.)  Id. As such, discretionary act governmental immunity applied to bar the plaintiff's action.

In Degoursey v. Branford, Superior Court, judicial district of New Haven, Docket No. CV 97 0399820 (August 28, 2001, Jones, J.) (30 Conn. L. Rptr. 326), the plaintiff brought suit for “injuries which he allegedly sustained from contact with a defective catch basin while playing basketball ․ on a town-owned recreational field.”   The court, finding that no regulations or ordinances governed the manner of drain pipe design, maintenance or inspection, held that “[c]learly any duty which the municipal defendants owed to the plaintiff is discretionary.”  Id. As such, where no exceptions to discretionary act immunity applied, in particular the “imminent harm to an identifiable person” exception, the defendant was entitled to governmental immunity.  Id.

In Fortune v. New London, Superior Court, judicial district of Middlesex, Docket No. CV 97 0082795 (December 14, 1999, Shapiro, J.) [27 Conn. L. Rptr. 637], the plaintiff alleged negligence of the defendant town as a result of injuries sustained at a basketball court in the town park.   The plaintiff alleged her injury was the result of her collision with the metal pole supporting the basketball hoop, and that the defendant town was negligent in allowing the basketball pole to remain in a defective and dangerous condition.  Id. Noting that there were no city regulations regarding the maintenance of public basketball courts, the court held that the defendant's decision to pad the pole, warn of a dangerous condition or make a reasonable inspection “clearly involved discretion and judgment,” and as such the defendant was entitled to discretionary act governmental immunity.  Id.

Finally, in Green v. Avon, Superior Court, judicial district of New Britain, Docket No. CV 99 0495934 (June 8, 2001, Swords, J.), the plaintiff “filed a complaint sounding in negligence alleging she suffered a sprained ankle when she stepped onto a crack in the surface of the tennis court” at a town recreation center.   The plaintiff alleged that the defendant town failed to adequately inspect, maintain, repair and warn of the defect in the tennis court.  Id. The court held that the “plaintiff's allegations amount to a failure to adequately inspect and repair or warn of the condition found, all of which require judgment on the part of the inspector as to whether the condition warrants repair or warning.”  Id. In that situation, the identifiable person-imminent harm exception to discretionary act immunity did not apply.   Id. As such, the court granted the defendant's motion for summary judgment on the basis of discretionary act governmental immunity.  Id.

In the present case, no genuine issue of material fact is presented.  “[T]he determination of whether the act complained of constituted a ministerial or governmental act is a matter of law for the court to decide.”  Redfearn v. Ennis, 28 Conn.App. 398, 401, 610 A.2d 1338 (1992).

As evidenced by the affidavit of Robert Ceccolini;  (Defendant's Ex. B);  the director of parks and recreation for the defendant, “[t]here are no ordinances, regulations, written directives or policies within the City of Cheshire which mandate the frequency or manner in which Cheshire Park or its basketball court is to be maintained and/or inspected.”   Rather, such decisions are in the discretion of the director of parks and recreation and other parks and recreation employees.  (Defendant's Ex. B.) The plaintiff has not alleged in his complaint that the defendant violated a municipal ordinance, regulation or directive in its actions related to the basketball court, nor has he submitted evidence to contravene the defendant's.   The plaintiff only argues that the defendant's past practice of inspecting and repairing the court made the duty to repair ministerial.   Moreover, it is commonplace here in the northeast that most all concrete or asphalt surfaces crack over time.   The duty and responsibility to repair those cracks necessarily involve discretion after viewing and evaluating their size, shape and location.

It is clear from the authority cited above that in the absence of such municipal ordinances, regulations or directives, duties involving the inspection, maintenance and repair of a basketball court at a public park are discretionary acts entitled to governmental immunity.   See, e.g., Burks v. Wallingford, supra, Superior Court, Docket No. CV 98 0262469;  Degoursey v. Branford, supra, Superior Court, Docket No. CV 97 0399820.   See also Segreto v. Bristol, supra, 71 Conn.App. 855-57.

As such, the alleged decision of the defendant here to inspect and maintain the basketball court is a discretionary act.   Even though the issue was not raised by the plaintiff, none of the exceptions to discretionary act governmental immunity apply here.   Accordingly, governmental immunity bars the plaintiff's action.

For the above stated reasons, the defendant's motion for summary judgment is granted.

Matasavage, J.

FOOTNOTES

FN1. The defendant's second through fourth special defenses allege that the plaintiff contributed to and was a substantial factor in causing his own injuries, the plaintiff failed to mitigate his damages and failure to state a claim upon which relief can be granted..  FN1. The defendant's second through fourth special defenses allege that the plaintiff contributed to and was a substantial factor in causing his own injuries, the plaintiff failed to mitigate his damages and failure to state a claim upon which relief can be granted.

Matasavage, Paul, J.