Juan Pinos v. George Kanabis (2010)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (NO. 153)

In this case, the plaintiff has asserted both a negligence claim and a recklessness claim against the defendant Frank Hilbert, who has moved for summary judgment.   For the reasons stated herein, the court will grant Hilbert's motion with respect to the negligence count but deny it with respect to the recklessness count because there is a genuine issue of fact as to whether Hilbert's actions and omissions as fire marshal fall outside the scope of a fire marshal's broad statutory immunity from liability.

FACTS

On December 24, 2007, the plaintiff, Juan Pinos as the administrator of the estate of the decedent, Jose Antonio Chillogallo, filed a seven-count amended complaint against the defendants George Kanabis;  Town of Stonington, Connecticut;  Mystic, Connecticut;  Frank Hilbert and Mariana Sanderson.   The complaint alleged the following facts.   On August 5, 2005, a fire broke out on the first floor of the premises located at 19 East Main Street in Mystic, Connecticut.   The decedent was a leaseholder tenant in the rear portion of the second floor of the premises.   The fire was caused by the careless use of smoking materials by Gerry Sanderson, who occupied the first floor room.   Both Sanderson and the decedent died in the fire.   Hilbert is the fire marshal whose jurisdiction encompasses the subject premises.   He is responsible for conducting yearly safety inspections of dwellings that include the subject premises but failed to do so.   The subject premises contained numerous building code, fire code and health and safety code violations, each of which were alleged to be causative factors in the decedent's death.   Count three of the complaint alleges negligence by Hilbert, while count four alleges recklessness for failing to perform his statutory duty of inspecting the subject premises on a yearly basis.

Hilbert filed an answer and asserted special defenses that included statutory immunity on February 11, 2008.   On October 5, 2009, Judge Parker granted the defendant Mystic Fire District's motion to consolidate Pinos v. Mystic Fire District, Docket No. CV 09 5012096, with this case.   On March 4, 2010, Hilbert filed a motion for summary judgment that was accompanied by a memorandum of law.   The plaintiff filed an objection to the motion for summary judgment and a memorandum of law in support of his objection on August 24, 2010.   The matter was heard at short calendar on August 30, 2010 where the defendant Hilbert was given one week to respond to the plaintiff's objection.   The defendant filed a reply to the plaintiff's objection on September 7, 2010;  the plaintiff filed a sur reply on September 13, 2010.

DISCUSSION

A.

“The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”   Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “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.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

“[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).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “Summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  (Internal quotation marks omitted.)  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).

B.

In the present case, Hilbert argues that General Statutes § 29-298(b) provides him with immunity from liability both personally and in his official capacity as fire marshal, so long as he has performed his duties “without malice and in good faith.”   He contends that he has done so in the present case and thus is immune under the statute.   In support of his position, Hilbert has submitted the following evidence:  a personal affidavit and an inspection report of the subject premises.

The plaintiff counters by submitting Hilbert's deposition testimony and by relying on Hilbert's own proffered evidence as proof that Hilbert's actions and omissions were outside the scope of the immunity statute or, at the very least, that there exists a genuine issue of material fact as to whether his actions were indeed “without malice and in good faith.”

C.

The principles that govern statutory construction are well established.  “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”  (Internal quotation marks omitted.)  Buttermilk Farms v. Planning & Zoning Commission, 292 Conn. 317, 328, 973 A.2d 64 (2009).

There are two statutes that the court must construe in order to resolve the issues raised by this motion.   First, General Statutes § 29-305(b) provides in relevant part:  “Each local fire marshal shall inspect or cause to be inspected, at least once each calendar year ․ in the interests of public safety, all buildings and facilities of public service and all occupancies regulated by the State Fire Safety Code within the local fire marshal's jurisdiction, except residential buildings designed to be occupied by one or two families which shall be inspected, upon complaint or request of an owner or occupant ․

Based on Hilbert's affidavit and deposition testimony, it is uncontested that the subject premises were required to be inspected on an annual basis by Hilbert, as fire marshal for the defendant Mystic Fire District, pursuant to § 29-305(b).

Second, Section 29-298(b) provides:  “No local fire marshal, deputy fire marshal, fire inspector or other inspector or investigator acting for a local fire marshal, who is charged with the enforcement of the Fire Safety Code and this chapter, may be held personally liable for any damage to persons or property that may result from any action that is required or permitted in the discharge of his official duties while acting for a municipality or fire district.   Any legal proceeding brought against any such fire marshal, deputy fire marshal, fire inspector or other inspector or investigator because of any such action shall be defended by such municipality or fire district.   No such fire marshal, deputy fire marshal, fire inspector or other inspector or investigator may be held responsible for or charged with the costs of any such legal proceeding.   Any officer of a local fire marshal's office, if acting without malice and in good faith, shall be free from all liability for any action or omission in the performance of his official duties.”

Section 29-298(b) was interpreted by Judge Sheldon in Rivera v. Sitaris, Superior Court, judicial district of Hartford, Docket No. CV 98 0584642 (April 28, 2003, Sheldon, J.).   Recently, his analysis was extensively quoted and adopted by Judge Roche in Stavrakis v. Price, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001285 (September 7, 2010, Roche, J.).

“Plainly, two types of immunity are granted to local fire marshals and their agents under [§ 29-298(b) ].  The first ․ is set forth ․ in the first sentence of the statute ․ This sentence offers the Fire Marshals immunity from personal liability for any affirmative action they are ‘required or permitted’ to take in the discharge of their official duties.   By its terms, however, the sentence does not confer immunity upon local fire marshals for their failures or omissions to perform acts required in the performance of their official duties, for such failures or omissions to act are obviously not permitted or required in the exercise of their official duties.

“The final sentence of the subsection, however, affords important additional protection from civil liability to all officers of local fire marshals' offices.   That sentence ․ confers complete immunity from all civil liability upon all local fire marshals and their agents for action or omissions they engaged in, while acting without malice and in good faith ․ in the performance of [their] official duties.”  (Emphasis in original;  internal quotation marks omitted.)  Rivera v. Sitaris, supra, Superior Court, Docket No. CV 98 0584642.

In a legal context, “malice” is a “reckless disregard of the law or of a person's legal rights.”   Black's Law Dictionary (9th Ed.2009).   Other Superior Court cases have dealt with cases factually similar to the present one.   In Ramos v. Branford, Superior Court, judicial district of New Haven, Docket No. 407617 (July 30, 1998, Blue, J.) [22 Conn. L. Rptr. 505], the plaintiff alleged recklessness on the part of the defendant fire marshal.   In refusing to strike this count, Judge Blue noted:  “A person acting recklessly does not act ‘without malice and in good faith.’  “ Id. He thus concluded:  “The legislature, in phrasing § 29-298(b) as it did, has provided that fire marshals are not free from liability for acts of recklessness.”  (Emphasis added.)  Id.

In Rivera v. Sitaris, supra, Superior Court, Docket No. CV 98 0584642, as in the present case, the defendant fire marshal asserted immunity under § 29-298(b) as a special defense before moving for summary judgment.   Similar to the present case, “the plaintiffs' claims are all silent as to whether such omissions to perform official duties were engaged in without malice and in good faith.   The plaintiffs therefore have not pleaded facts establishing the movants' special defense of statutory immunity under Section 29-298(b), or thereby defeated their own action as a matter of law.”  Id. The court held that the defendant, as the moving party, had the burden of proof to establish that the plaintiff's claims of negligence and recklessness fit within the statutory immunity under § 29-298(b).

Several of these cases involved resolution of issues raised by a motion to strike.   The Rivera case, supra referred to the resolution of a motion for summary judgment.   Significant to the court is the language of Section 29-298(b) which provides broad and sweeping protection to local fire marshals and their agents by granting immunity from liability for both actions and omissions in carrying out their official duties.   The qualifying language “if acting without malice and in good faith” necessarily creates a limited exception to the general rule of a fire marshal's immunity.  “[W]e have long held that ․ exceptions to statutes are to be strictly construed with doubts resolved in favor of the general rule rather than the exception and that those who claim the benefit of an exception under a statute have the burden of proving that they come within the limited class for whose benefit it was established.”   (Internal quotation marks omitted.)  State v. Lutters, 270 Conn. 198, 215-16, 853 A.2d 434 (2004).

Thus, it is the plaintiff who must prove that Hilbert as fire marshal did not act “without malice and in good faith” in order to remove his claim from the statutory immunity granted in § 29-298(b).  In a legal context, “malice” refers to a “reckless disregard of the law or of a person's legal rights.”   Black's Law Dictionary (9th Ed.2009).   While claims of mere negligence are covered under the immunity statute,¹ the limited exception would nevertheless apply to a claim of recklessness.²

D.

In support of his position, Hilbert relies on his affidavit that states he was at all times acting in good faith and not maliciously while carrying out his obligations as fire marshal.   He admits that the subject premises are included in his fire district as among the properties requiring an annual fire inspection and that no inspection of the rear apartments of the subject premises was conducted prior to the fire on August 5, 2005.   Further, Hilbert states that in 2004, the fire marshal's office performed just 250 inspections of the 647 business and multifamily units requiring an annual inspection.   In 2005, the fire marshal's office performed only 204 inspections out of the 681 units requiring an annual inspection.

The plaintiff offers as evidence the transcript of Hilbert's deposition testimony where Hilbert admitted that he failed to perform his annual inspection of the subject premises in 2005 and 2004, that he failed to complete his inspection fully in 2003 and that no records exist of the residential portion of the subject premises ever being inspected by Hilbert or his office since he became fire marshal in 1998.

“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).   Viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the court here is satisfied that a genuine issue of material fact exists as to whether Hilbert's actions and omissions rise to the level of recklessness.   Whether particular conduct rises to the level of recklessness is a question of fact for the jury.”  Brock v. Waldron, 127 Conn. 79, 83, 14 A.2d 713 (1940).   In sum, a reasonable jury could reach more than one conclusion when presented with each party's evidence.

CONCLUSION

The evidence before the court reveals a genuine issue of material fact that will determine whether the plaintiff's recklessness claim is outside the scope of the immunity granted to Hilbert under § 29-298(b);  thus, while the negligence count is barred under the immunity statute, the recklessness count against Hilbert is not suitable for summary disposition.   Hilbert's motion for summary judgment is granted with respect to count three of the complaint, but denied with respect to count four.

Cosgrove, J.

FOOTNOTES

FN1. “Negligence has been defined as the failure to use such care as a reasonably prudent and careful person would use under similar circumstances;  it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances.”  (Internal quotation marks omitted.)  D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 220, 520 A.2d 217 (1987)..  FN1. “Negligence has been defined as the failure to use such care as a reasonably prudent and careful person would use under similar circumstances;  it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances.”  (Internal quotation marks omitted.)  D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 220, 520 A.2d 217 (1987).

FN2. See Ramos v. Branford, Superior Court, judicial district of New Haven, Docket No. 407617 (July 30, 1998, Blue, J.) (“The legislature, in phrasing § 29-298(b) as it did, has provided that fire marshals are not free from liability for acts of recklessness”);  Malec v. Derby, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 87 023815 (October 30, 1990, Meadow, J.) (denying defendant fire marshal's motion for summary judgment on recklessness claim after concluding “material issue of fact remains in dispute as to whether the fire marshal's failure to inspect the second floor of the [subject premises] rises to the level of conduct that constitutes a reckless disregard for health and safety under all the relevant circumstances”)..  FN2. See Ramos v. Branford, Superior Court, judicial district of New Haven, Docket No. 407617 (July 30, 1998, Blue, J.) (“The legislature, in phrasing § 29-298(b) as it did, has provided that fire marshals are not free from liability for acts of recklessness”);  Malec v. Derby, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 87 023815 (October 30, 1990, Meadow, J.) (denying defendant fire marshal's motion for summary judgment on recklessness claim after concluding “material issue of fact remains in dispute as to whether the fire marshal's failure to inspect the second floor of the [subject premises] rises to the level of conduct that constitutes a reckless disregard for health and safety under all the relevant circumstances”).

Cosgrove, Emmet L., J.