Mark Murphy, Administrator v. Lisa Seaberg et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 115)

The plaintiff is the administrator of the estate of Shirley Murphy, his deceased wife.   On or about March 9, 2007, the plaintiff's decedent died of carbon monoxide poisoning while she slept at a cottage owned and constructed by Paul Seaberg in Guilford (the cottage).   The alleged negligence of the defendants, Gdovin and Thody, in their capacity as building officials for the town of Guilford, caused the plaintiff's decedent's death in one or more of the following ways:  they allowed individuals to reside in the cottage without a certificate of occupancy;  they knew or should have known that individuals were residing in the cottage without a certificate of occupancy;  they knew or should have known that individuals were residing in the cottage with a faulty, defective and dangerous heating and ventilation system (the system);  they failed to properly inspect the system for carbon monoxide problems;  they failed to warn individuals of the faulty, dangerous and defective condition of the system;  they failed to perform an inspection of the carbon monoxide venting on the boiler;  they indicated that the system had “passed” when in fact the system was faulty, defective and dangerous;  they failed to inspect the system;  and they “passed” the system before they issued a permit for the installation for the propane tanks on the premises.   The plaintiff further alleges that the carelessness and negligence of Gdovin and Thody was a substantial factor in causing the death of the plaintiff's decedent and causing her to suffer serious and painful injuries.

In count five, the plaintiff alleges the following against the town of Guilford (the town).   The town is a municipal corporation existing under the laws of the state of Connecticut.   Gdovin and Thody were employees of the town and were acting in performance of their duties and within the scope of their employment.   The death of the plaintiff's decedent was not the result of any wilful or wanton act of Gdovin and Thody.   Pursuant to General Statutes § 7-465, the plaintiff claims indemnity from the town for the carelessness and negligence of its employees.

Gdovin, Thody and the town (the defendants) filed a motion for summary judgment with respect to the fourth and fifth counts of the plaintiff's complaint.   They argue that there are no genuine issues of material fact and they are entitled to judgment as a matter of law, to which the plaintiffs filed an objection and the defendants filed a reply.

“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.”  (Internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 99-100 n.7 (2007) (emphasis added).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556 (2002).  “[T]he 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 ․ 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 issue of material fact.”  Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006).   Once the movant has met his burden, the burden shifts to the opposing party to “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 a disputed issue.”  Id., 319.  “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, cert. denied, 264 Conn. 904 (2003).

In support of their motion for summary judgment, the defendants make two central arguments.   First, they argue that they had no duty to inspect the cottage and that the death of the plaintiff's decedent was not a foreseeable consequence of their actions.   Second, they make the alternative argument that the plaintiff's claims against the defendants are barred by the doctrine of discretionary governmental immunity.

In his objection, the plaintiff asserts that the defendants had a statutory duty to inspect the cottage, pursuant to § 29-393.   He further argues that there is a genuine issue of material fact as to whether Paul Seaberg understood that an approval granted by Thody was limited to the property's gas line, or whether he understood the approval to “encompass the larger system of gas-fired appliances.”   In response to the defendants' second argument, the plaintiff asserts that the duty owed by the defendants was ministerial, thereby precluding the defendants' reliance on governmental immunity.

I

STATUTORY DUTY TO INSPECT

“In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail.   These elements are:  duty;  breach of that duty;  causation;  and actual injury.”  LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002).  General Statutes § 29-393 imposes a duty on building inspectors under certain condition.   The statute provides in relevant part:  “[o]n receipt of information from the local fire marshal or from any other authentic source that any building in his jurisdiction ․ is in such condition as to be a hazard to any person or persons, the building inspector shall immediately make an inspection by himself or by his assistant, and may make orders for ․ the repair or alteration of the building if the same is susceptible to repair or both or for the removal of such building or any portion thereof if any such order is necessary in the interests of public safety.”

The defendants argue that they did not owe a duty to the plaintiff's decedent because they did not receive information regarding a hazardous condition at the cottage, and therefore, the duty to inspect was never triggered.   They assert that Thody had been invited to perform two preliminary inspections at the property and that he had not been invited to perform a final inspection or an inspection that encompassed the appliance aspects of the system, including the boiler.   They further argue that the boiler had not been installed prior to Thody's first inspection of the cottage, and at the time of the second inspection, the boiler was not operating and there were no propane tanks at the cottage.   In conclusion, they assert that there is no genuine issue of material fact with respect to any information received by the defendants regarding a potentially hazardous condition at the cottage or that the cottage was being used for residential purposes without a certificate of occupancy.

In support of their motion for summary judgment, the defendants have submitted affidavits from Thody and Gdovin;  a supplemental affidavit from Thody;  and deposition testimony of Eric Seaberg and Thody.   In addition, the defendants submitted copies of the following documents:  the permit issued for the construction of the cottage;  the application for a building permit;  an inspection sheet;  and provisions of 2003 International Residential Code which is part of the 2005 State of Connecticut Building Code.

In his objection to the defendants' motion, the plaintiff argues that the defendant owed the plaintiff's decedent a duty, pursuant to § 29-393.   He argues that the defendants had notice of a hazardous condition at the cottage.   Specifically, he asserts that Thody knew what materials had been used in constructing the cottage, “the danger that existed if the boiler was improperly installed and his failure to communicate effectively with [Paul] Seaberg regarding his inspection” of the cottage.   The plaintiff also asserts that Thody conducted an inspection of the heating and ventilation system, which would have included the inspection and approval of the heating-ventilation-air conditioning system in the cottage, including the duct work into the bedroom where the plaintiff's decedent died.   He further asserts that the boiler had been installed and connected when Thody inspected and approved the gas line.   He argues that there is an issue of fact as to whether Paul Seaberg understood the approval to be limited to the gas line or whether it was understood to encompass the larger system of gas-fire appliances.   In addition, he asserts that Thody knew from the presence of the gas line that Paul Seaberg had installed or would install a gas-fired unit, that such a unit could lead to a dangerous condition and that it would have been his duty to immediately rectify a dangerous situation.   The plaintiff argues that the defendants knew or should have known that people were living in the cottage due to the presence of a bed, Christmas decorations, running water and electricity.   In support of his objection to the defendants' motion, the plaintiff submits the deposition testimony of Eric Seaberg and Thody.¹

In his affidavit, Thody makes several attestations relevant to the issue of whether the defendants had a duty to inspect the cottage.   Thody attests that, prior to the death of the plaintiff's decedent, the Guilford building department (the department) had been invited by Paul Seaberg to perform two inspections of the heating/ventilation system at the property and that as of March 9, 2007, the department was not, and had no reason to be, aware of any appliance aspects of the heating/ventilation system at the property, including the boiler.   In addition, he attests that at the time of the second inspection, in January 2007, there was no running water, permanent electric or septic system at the property and that the department was not aware that individuals were using the property for residential purposes.   Identical attestations were made by Gdovin.   Similar attestations are offered by the defendants in Thody's supplemental affidavit.   In that document, Thody attests that his second inspection of the cottage was limited to a pressure test of the gas line and did not require or involve having to go inside or look inside cottage.   Most significantly, Thody attests that, prior to March 9, 2007, neither he nor the Guilford Building Department had received or become aware of any information regarding a condition at the cottage that could pose a hazard.

The deposition testimony of Eric Seaberg submitted by the defendants provides a time line for the installation of the boiler.   Eric Seaberg testified that he brought the boiler to the cottage sometime between December 27 and December 30, 2006.   He further testified that, at that time, there was not an intake/exhaust system fabricated at the property, the boiler was not capable of being fired up, there were no gas lines connected to the boiler, the propane tanks were not installed and he did not have any discussions about the installation of the boiler with the defendants.

In support of his argument that the defendants knew or should have known that people were living in the cottage without a certificate of occupancy, the plaintiff refers to the deposition testimony of Eric Seaberg.   Eric Seaberg testified that, at Christmas time, there were decorative Christmas lights on the cottage, a bed in an upstairs bedroom in the cottage and Paul Seaberg sometimes slept in the cottage.   He also testified that a full bathroom had been installed and water was running into the cottage via a hose, however, there was no sewer or water line to the cottage and that everything was “on a temporary setup.”   In the deposition testimony of Thody presented by the plaintiff, Thody testified that, during his inspection on November 27, 2006, he did not see clothes, food or eating utensils in the cottage and did not remember seeing Christmas decorations on the inside or outside of the cottage.   He testified, however, that electricity was being provided to the cottage was via a construction cord from the front house and he saw garden hoses that provided water to the cottage for construction services.

The totality of the evidence presented by the parties, when viewed in the light most favorable to the plaintiff, reveals a genuine issue regarding whether the defendants knew or should have known that the cottage was being used for residential purposes without a certificate of occupancy and whether there was a hazardous condition at the property.   Consequently, there is a genuine issue regarding whether the defendants had a duty to inspect the cottage, pursuant to § 29-393.   The defendants have not met their burden and therefore, are not entitled to summary judgment based upon a lack of duty owed to the plaintiff's decedent.

II

GOVERNMENTAL IMMUNITY

The court next considers the defendants' argument that they are entitled to summary judgment as a matter of law because the plaintiff's claims are barred by the doctrine of discretionary governmental immunity.   They argue that, pursuant to General Statutes § 52-557n(a)(2)(B), municipalities are not liable for damages caused by negligent acts or omissions which require the exercise of judgment or discretion and they assert that the alleged act or omissions by the defendants involve some measure of judgment.   They further assert that none of the three exceptions to governmental immunity applies to the plaintiff's allegations, and, as a result, the defendants are afforded immunity from the plaintiff's claims.   In response, the plaintiff argues that he pleaded not only a failure to properly inspect the cottage, but also a complete failure to inspect the cottage.   He asserts that while the adequacy of an inspection involves an exercise of discretion, the duty owed by the defendants to inspect the cottage was ministerial, thereby precluding the defendants' reliance on governmental immunity.

“The [common-law] doctrines that determine the tort liability of municipal employees are well established ․ Although historically [a] municipality itself was generally immune from liability for its tortuous acts at common law ․ [municipal] employees faced the same personal tort liability as private individuals ․ Over the years, however, [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees.”  (Internal quotation marks omitted.)  Myers v. Hartford, 84 Conn.App. 395, 401, cert. denied, 271 Conn. 927 (2004).   “Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ․ Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ․ The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318 (2006).

“Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases where it is apparent ․ [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked ․ turns on the character of the act or omission complained ․” (Internal quotation marks omitted.)   Swanson v. Groton, 116 Conn.App. 849, 854 (2009).   In such a case, the practice of deciding the issue of governmental immunity as a matter of law is proper.  Id.

As for a claimant's ability to hold a municipality liable for the acts of its employees, statutorily provided for governmental liabilities and immunities are prescribed by General Statutes §§ 7-465 and 52-557n.²  “Section 52-557n allows an action to be brought directly against a municipality for the negligent actions of its agents.  Section 7-465 allows an action for indemnification against a municipality in conjunction with a common-law action against a municipal employee.”  (Internal quotation marks omitted.)  Burton v. Stamford, 115 Conn.App. 47, 60-61, cert. denied, 293 Conn. 912 (2009).   Section 7-465 “effectively circumvented the general common law immunity of municipalities from vicarious liability for the employees' acts by permitted injured plaintiffs to seek indemnification from a municipal employer for such acts under certain circumstances ․” (Internal quotation marks omitted.)   Grady v. Somers, 294 Conn. 324, 337 (2009).

As an initial matter, the court notes that the plaintiff has not alleged that the town is directly liable, pursuant to § 52-557n.   Rather, the plaintiff has alleged that the town is vicariously liable for the alleged negligence of Thody and Gdovin, pursuant to § 7-465.   As such, the defendants' reliance on immunities provided by § 52-557n(a)(2)(B) is misplaced.

General Statutes § 7-465(a) provides in relevant part:  “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 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 ․ Governmental immunity shall not be a defense in any action brought under this section ․” “A tort claimant seeking to establish the liability of a municipal employee or official arising out of the negligent performance of a discretionary act necessary for indemnification by the municipality under § 7-465(a) must, however, overcome the qualified immunity afforded to those employees or officials at common law ․” Grady v. Somers, supra, 294 Conn. 338.

The Supreme Court discussed the distinction between ministerial and discretionary acts for the purposes of governmental immunity in Violano v. Fernandez, supra.   In that case, the plaintiffs' allegations included a failure on the part of a municipal employee to make reasonable and proper inspections of property that was under his control.   The Court upheld the trial court's decision to grant the defendants' motion to strike on the basis of governmental immunity and held, inter alia, that the alleged failure to adequately inspect was discretionary because it “involved the exercise of judgment.”  Id., 323 (Noting that the plaintiffs “failed to allege that the acts or omissions complained of were ministerial in nature because ․ the plaintiffs have not alleged that [the municipal employee] was required by any ․ directive to [act] in any prescribed manner.”  (Citation omitted.).   In its analysis, the court looked to its earlier decision in Evon v. Andrews, 211 Conn. 501, (1989).   There, the plaintiffs also alleged that a municipal employee failed to make reasonable, proper and adequate inspections or to take remedial action to remedy numerous building code violations.   The Court in Evon held, inter alia, that the alleged conduct was discretionary rather than ministerial because “what constitutes a reasonable, proper or adequate inspection is discretionary in nature.”  Id., 506.   Significantly, the Court noted that the plaintiffs had not alleged that the defendants failed to conduct an inspection.   Rather, the allegation was a failure to conduct an adequate or proper inspection.  Id.

The court is not persuaded by the defendants' governmental immunity argument because the plaintiff's allegations include a failure to inspect the cottage and that such failure was a breach of the duty imposed by § 29-393 to conduct an inspection upon the receipt of certain information.   As discussed above, § 29-293 provides in relevant part that “[o]n receipt of information from the local fire marshal or from any other authentic source that any building in his jurisdiction ․ is in such condition as to be a hazard to any person or persons, the building inspector shall immediately make an inspection by himself or by his assistant ․” Such a mandatory directive to conduct an inspection thereby eliminates an exercise of discretion as to whether to conduct an inspection.   Thus, the duty to inspect, as alleged by the plaintiff in his brief and at Short Calendar, is ministerial.   See Phoenix Insurance Co. v. Vernon, Superior Court, judicial district of Hartford, Docket No. CV 04 0830672 (September 14, 2004;  Stengel, J.) (Stating that duty to conduct inspection after receiving information from authoritative source that premises were hazardous is a ‘ministerial duty imposed by § 29-393.”).   Therefore, the defendants are not afforded immunity and are not entitled to judgment as a matter of law on that ground.   Consequently, the court need not address the defendants' arguments regarding exceptions to immunity.

For the foregoing reasons, the defendants' motion for summary judgment is denied.

Robert I. Berdon

Judge Trial Referee

FOOTNOTES

FN1. The court notes that both parties have submitted uncertified deposition transcripts.   Since these were submitted without objection, the court will consider these submissions.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)..  FN1. The court notes that both parties have submitted uncertified deposition transcripts.   Since these were submitted without objection, the court will consider these submissions.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

FN2. Section 52-557n(a)(1) 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:  (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 ․” Such liability is limited by subsection § 52-557n(a)(2), which provides in relevant part:  “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 statute expressly allows a claimant hold a municipality directly liable for the acts of its employees under certain circumstances.   The plaintiff has not alleged that the town is liable under § 52-557n..  FN2. Section 52-557n(a)(1) 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:  (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 ․” Such liability is limited by subsection § 52-557n(a)(2), which provides in relevant part:  “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 statute expressly allows a claimant hold a municipality directly liable for the acts of its employees under certain circumstances.   The plaintiff has not alleged that the town is liable under § 52-557n.

Berdon, Robert I., J.T.R.