Rosemarie Bashaw v. Town of Glastonbury et al. (2010)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT

In her two-count amended complaint,¹ the plaintiff, Rosemarie Bashaw, alleges the following facts.   On or about August 6, 2008, the plaintiff was entering the spectator area near the Glastonbury High School swimming pool when she fell over a rolled up rug, which was in the aisle where she was walking, and seriously injured her shoulder.   The defendants, the Town of Glastonbury (town) and the Glastonbury Board of Education (board), owned, controlled, possessed, managed and/or maintained the swimming pool area at the time that the injury took place.   The plaintiff alleges that the defendants, their agents, servants or employees were negligent by causing or allowing a rolled up rug to be in an aisle creating a dangerous condition for pedestrians, failing to erect or maintain safeguards or warnings, failing to remedy or repair the condition, failing to reasonably inspect, and failing to follow the established standards, guidelines and protocols of the United States Occupational Safety and Health Administration (OSHA), as set out in § 1910.22(a)(1) and §§ 1910.176(a), (b), and (c), the Connecticut Fire Safety Code § 7.1.10.1 and provisions of the National Safety Counsel, Accident Prevention Manual for Business and Industry, Administration and Programs, Twelfth Edition, concerning protocols for maintenance staff and inspection including procedures for placing, cleaning, removing and storing mats and providing a safe walking surface and means of egress.   She filed this action against the town pursuant to General Statutes § 52-557n.²

The defendants seek summary judgment on both counts of the amended complaint on the grounds that the defendants' conduct was discretionary and therefore subject to immunity under General Statutes § 52-557n(a)(2)(B), and that the plaintiff does not fall within the identifiable victim/subjection to imminent harm exception or any other recognized exception to governmental immunity.³  Oral argument was held on the motion on August 9, 2010.

“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.)  Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).

The defendants argue that their conduct was discretionary and subject to governmental immunity pursuant 52-557n(a)(2)(B), which applies when a municipality is engaged in a public duty.   They argue that operation and maintenance of the swimming pool is a public duty because the pool is open for the benefit and use of town residents.   The defendants claim that the alleged acts or omissions in question were discretionary because Connecticut courts have held the inspection and maintenance of municipal property to be discretionary and all of the plaintiff's allegations assert failures to inspect and maintain the pool.   They further claim that the provisions cited by the plaintiff do not set forth duties which must be performed in a prescribed manner, without the exercise of judgment or discretion, and therefore, do not allege ministerial duties.   The defendants further claim that there are no ordinances, regulations, written directives or policies in the town which mandate the frequency or manner in which the pool, including its floors, must be maintained and/or inspected.   As evidence, the defendants submit the affidavit of Lance A. Mazur, the interim coordinator of operations and maintenance at Glastonbury High School where the alleged incident took place.

The plaintiff counters that, even though the town does not have any written protocol about removing obstacles in areas of ingress and egress, she has submitted the affidavit of Michael F. Miller, a professional safety engineer (engineer), in which he opines that the town employees were required to comply with and follow OSHA standards § 1910.22(a)(1), §§ 1910.176(a), (b) and (c), Connecticut Fire Safety Code § 7.1.10.1 and the paragraphs concerning procedures for placing, cleaning, removing and storing mats and protocols for maintenance staff and inspection of the National Safety Counsel, Accident Prevention Manual for Business and Industry, Administration and Programs, Twelfth Edition.   The plaintiff contends that national standards may be utilized to show the existence of a ministerial duty as noted in Krause v. Stratford, a personal injury case which is currently pending, wherein the court issued an order that, to avoid a defense of governmental immunity, the plaintiff may allege that the defendant failed to follow standards set out in the U.S. Consumer Product Safety Commission, the Connecticut Department of Education, Bureau of School Facilities.   See Krause v. Stratford, Superior Court, judicial district of Fairfield, Docket No. 075008766 (order No. 124, February 3, 2010, Levin, J.).   The plaintiff further states that the existence of the rolled up mat or rug in the aisle where the plaintiff was walking is a violation of and is nonconformance with these regulations.   In further support of her objection to the motion for summary judgment, the plaintiff appends the transcript of the deposition of Mazur which contains his testimony to the effect that if a custodian at the school saw something obstructing an aisle he or she would have a mandatory duty to pick it up.  (Deposition of Lance A. Mazer, May 10, 2010, pp. 40-43.)

“Under the common law, [g]enerally, 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 [that] is to be performed in a prescribed manner without the exercise of judgment or discretion.”  Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010).

“Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ․ Discretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ․ In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ․ This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318-19, 907 A.2d 1188 (2006).  “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 ․ One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.   General Statutes § 52-557n(a)(1)(A).  General Statutes § 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the ‘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.’  “ (Citation omitted.)   Doe v. Peterson, 279 Conn. 607, 614, 903 A.2d 191 (2006).

“A court may decide the issue of governmental immunity as a matter of law if the existence of a discretionary or ministerial duty is apparent from the face of the complaint.”   Podgorski v. Pizzoferrato, Superior Court, judicial district of Hartford, Docket No. 075010288 (October 7, 2009, Peck, J.) [48 Conn. L. Rptr. 613], citing Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).  “To properly allege the existence of a ministerial duty, a plaintiff must allege that [the defendant] was required to perform in a [prescribed] manner and failed to do so.   See Colon v. Board of Education, 60 Conn.App. 178, 182, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), aff'd 79 Conn.App. 290, 830 A.2d 346 (2003).   That is, there must be a written policy, directive or guidelines mandating a particular course of action.”  Id.

The Connecticut Supreme Court has stated that “rules, policies, or directives prescribing the manner in which a municipal employee must perform a certain function generally are accessible to the public [as] ․ public records ․ [or] through a freedom of information request ․” Violano v. Fernandez, supra, 280 Conn. 325.   One Superior Court judge has recently interpreted this language to mean that such a policy “is necessarily a governmental directive ․ not a standard promulgated by a non-public entity, unless the plaintiff alleges some governmental policy or enactment which adopts the private standard as the public one.”  Krause v. Stratford, supra, Superior Court Docket No. 075008766 (order No. 124).

For example, the Connecticut Supreme Court has held that the owner, a political subdivision of the state, of an unpaved trail was shielded by governmental immunity from a trail user's negligence claims because the trail user had not presented any evidence demonstrating that a policy or directive existed requiring the trail owner to perform the duties alleged.  Martel v. Metropolitan District Commission, 275 Conn. 38, 50-51, 881 A.2d 194 (2005).   Likewise, the Appellate Court has held that a teacher who opened a door in a manner that injured a student had performed a discretionary act because there was no policy prescribing how a teacher should open a door.  Colon v. Board of Education, supra, 60 Conn.App. 183.

By contrast, the Appellate Court has held that maintenance workers had a ministerial duty to keep sidewalks free from snow and ice based on a directive from the Board of Education.  Kolaniak v. Board of Education, 28 Conn.App. 277, 281-82, 610 A.2d 193 (1992).   The workers violated this directive by failing altogether to put down salt and sand on the date of the plaintiff's injury.  Id. The court held that “it was proper for the trial court to have decided that [the maintenance workers] were involved in a ministerial function as a matter of law.”   See also Podgorski v. Pizzoferrato, supra, Superior Court, judicial district of Hartford, Docket No. 075010288 (while the manner of supervision of athletes is a matter of discretion, as it requires the exercise of judgment, the failure to provide any supervision at all when the school athletic handbook requires it is a breach of a ministerial duty).

Here, as evidence is support of their motion, the defendants submit Mazur's affidavit in which he states that the “frequency and manner in which the swimming pool, including its floors, is to be maintained and/or inspected are left to the sole discretion of the facility maintenance staff,” as is “where to place a rolled up rug.”   While the plaintiff concedes that the town does not have any written protocol about removing obstacles in areas of ingress and egress, she presents evidence from Mazer's deposition, wherein he testified that if there was something obstructing an aisle, a custodian, maintainer, or supervisor who sees it must clean it up.⁴  She also submits the engineer's affidavit in which he states that the following standards “are required to be complied with and followed by municipal employees without question”:  OSHA standards § 1910.22(a)(1) ⁵ and §§ 1910.176(a),⁶ (b) ⁷ and (c) ⁸ the Connecticut Fire Safety Code § 7.1.10.1; ⁹  and the paragraphs concerning procedures for placing, cleaning, removing and storing mats and protocols for maintenance staff and inspection of the National Safety Counsel, Accident Prevention Manual for Business and Industry, Administration and Programs, Twelfth Edition.   In his affidavit, the engineer also states that “the existence of a rolled up mat or rug within the aisle in which [the plaintiff] was walking while entering the spectator area is, in my opinion, a clear violation of these regulations, and a clear nonconformance with these standards and protocols.”

Section 31-372-101-1910 of the Regulations of Connecticut State Agencies provides:  “Safety and health standards for general industry [a]dopt as Section 31-372-101-1910, U.S. Department of Labor, [OSHA] Standards (29 CFR 1910.), OSHA Publication 2206, Revised November 7, 1978.”   As explained on the website of the United States Department of Labor, “[t]he State of Connecticut, under an agreement with OSHA, operates an occupational safety and health program in accordance with Section 18(b) ¹⁰ of the Occupational Safety and Health Act of 1970 ․ The Connecticut Occupational Safety and Health Division (CONN-OSHA) is part of the Connecticut Department of Labor ․ The Connecticut State Plan applies to all public sector employers other than the Federal government employees ․ CONN-OSHA has adopted all Federal OSHA standards that would relate to public sector employer operations.   CONN-OSHA incorporates Federal standards by reference.   Therefore, the State and Federal standards are identical.”   Available at http:// www.osha.gov/dcsp/osp/stateprogs/connecticut.html (accessed December 6, 2010).   Federal Standard Number 1910 relates to Connecticut Standard Number 31-372-101-1910.¹¹  Id. Thus, the State of Connecticut has adopted the provisions of the federal OSHA standards set out in 29 CFR 1910.  Id.

Additionally, section 31-372-101-1910 of the Regulations of Connecticut State Agencies provides:  “Also adopt the following amendments to Section 31-372-101-1910:  ․ 1910.35 Compliance with NFPA 101-2000, 11/7/02 Revised Life Safety Code.” Further, section 29-292-20e of the 2005 version of the Connecticut State Fire Safety Code, which was in effect in August of 2008, when the plaintiff's alleged injury took place, states:  “Adopted Standard.   The following standard promulgated by the National Fire Protection Association (NFPA) is hereby adopted as part of Sections 29-292-18e to 29-292-21e, inclusive, of the Regulations of Connecticut State Agencies:  Life Safety Code® of the National Fire Protection Association ․” Available at http:// www.ct.gov/dps/lib/dps/office_of_state_fire_marshal_files/code-files/2005_ct_ state_fire_safety_code.pdf (accessed December 6, 2010).   Thus, the State of Connecticut has also adopted the provisions of the National Fire Prevention Association, Inc. Standard 101, Life Safety Code. Id. It provides that “[m]eans of egress shall be continuously maintained free of all obstructions or impediments to full instant use in case of fire or other emergency.”   NFPA 101® Life Safety Code® (2003 Ed.) 101-42 § 7.1.10.1.

In sum, the defendants have submitted evidence, in the form of Mazur's affidavit, that the manner in which maintenance staff clean the school is discretionary.   The plaintiff has alleged and submitted evidence, in the form of a professional engineer's affidavit, suggesting that the defendants' acts were ministerial because certain written regulations are binding on municipal employees and that the existence of a rolled up rug in the aisle where the plaintiff's alleged injury occurred is a violation of these regulations.   Accordingly, there is a question of material fact as to whether these regulations constitute a written policy, directive or guideline mandating a particular course of action supporting the plaintiff's claim that the defendants had a ministerial duty to remove the rolled up rug from the position it was in when the alleged injury took place.   It is not necessary to reach the issues of whether the accident prevention manual of the National Safety Counsel also contained provisions that may have been binding on the defendants.

Because the plaintiff's allegations supported by the affidavit of a professional engineer are sufficiently broad to permit proof of facts which would establish that the defendants negligently discharged a ministerial duty,¹² and further, because the defendants have failed to meet their burden of demonstrating that there is no genuine issue of fact in dispute as to whether their duties were ministerial or discretionary, the motion for summary judgment must be denied.

CONCLUSION

For all the foregoing reasons, the motion for summary judgment is hereby denied.

Peck, J.

FOOTNOTES

FN1. Count one claims negligence as to the Town of Glastonbury and count two makes the same claims against the Glastonbury Board of Education..  FN1. Count one claims negligence as to the Town of Glastonbury and count two makes the same claims against the Glastonbury Board of Education.

FN2. General Statutes § 52-557n(a) provides, in pertinent part:  (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:  (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.”  (Emphasis added.).  FN2. General Statutes § 52-557n(a) provides, in pertinent part:  (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:  (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.”  (Emphasis added.)

FN3. Because the plaintiff makes no claim that she falls within the identifiable victim/imminent harm exception to governmental immunity, the court does not address this second ground of the defendants' motion..  FN3. Because the plaintiff makes no claim that she falls within the identifiable victim/imminent harm exception to governmental immunity, the court does not address this second ground of the defendants' motion.

FN4. Deposition of Lance A. Mazer, May 10, 2010, pp. 40-43..  FN4. Deposition of Lance A. Mazer, May 10, 2010, pp. 40-43.

FN5. OSHA regulation 29 CFR § 1910.22, which applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed, provides:  “(a) Housekeeping.  (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.”.  FN5. OSHA regulation 29 CFR § 1910.22, which applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed, provides:  “(a) Housekeeping.  (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.”

FN6. OSHA regulation 29 CFR § 1910.176(a) provides:  “Use of mechanical equipment.   Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made.   Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard.   Permanent aisles and passageways shall be appropriately marked.”.  FN6. OSHA regulation 29 CFR § 1910.176(a) provides:  “Use of mechanical equipment.   Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made.   Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard.   Permanent aisles and passageways shall be appropriately marked.”

FN7. OSHA regulation 29 CFR § 1910.176(b) provides:  “Secure storage.   Storage of material shall not create a hazard.   Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.”.  FN7. OSHA regulation 29 CFR § 1910.176(b) provides:  “Secure storage.   Storage of material shall not create a hazard.   Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.”

FN8. OSHA Regulation, 29 CFR § 1910.176(c) provides:  “Housekeeping.   Storage areas shall be kept free from accumulation of materials that constitute hazards from tripping, fire, explosion, or pest harborage.   Vegetation control will be exercised when necessary.”.  FN8. OSHA Regulation, 29 CFR § 1910.176(c) provides:  “Housekeeping.   Storage areas shall be kept free from accumulation of materials that constitute hazards from tripping, fire, explosion, or pest harborage.   Vegetation control will be exercised when necessary.”

FN9. Section 29-292-20e of the 2005 version of the Connecticut State Fire Safety Code states:  “Adopted Standard[:] The following standard promulgated by the National Fire Protection Association (NFPA) is hereby adopted as part of sections 29-292-18e to 29-292-21e, inclusive, of the Regulations of Connecticut State Agencies:  Life Safety Code of the National Fire Protection Association ․”.  FN9. Section 29-292-20e of the 2005 version of the Connecticut State Fire Safety Code states:  “Adopted Standard[:] The following standard promulgated by the National Fire Protection Association (NFPA) is hereby adopted as part of sections 29-292-18e to 29-292-21e, inclusive, of the Regulations of Connecticut State Agencies:  Life Safety Code of the National Fire Protection Association ․”

FN10. OSHA § 18(b) follows 29 USC 667 and provides:  “Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section [six] shall submit a State plan for the development of such standards and their enforcement.”   Available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT & p_ id=3372 (accessed December 6, 2010)..  FN10. OSHA § 18(b) follows 29 USC 667 and provides:  “Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section [six] shall submit a State plan for the development of such standards and their enforcement.”   Available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT & p_ id=3372 (accessed December 6, 2010).

FN11. The Connecticut Department of Labor website is contains consistent language:  “These Occupational Safety and Health Standards were promulgated by the Secretary of the U.S. Department of Labor ․ Any changes, additions, deletions or interpretations subsequently made will be adopted as if fully set forth herein ․” Available at http:// www.ctdol.state.ct.us/osha/OSHAstandards.htm (accessed December 6, 2010)..  FN11. The Connecticut Department of Labor website is contains consistent language:  “These Occupational Safety and Health Standards were promulgated by the Secretary of the U.S. Department of Labor ․ Any changes, additions, deletions or interpretations subsequently made will be adopted as if fully set forth herein ․” Available at http:// www.ctdol.state.ct.us/osha/OSHAstandards.htm (accessed December 6, 2010).

FN12. Tango v. New Haven, 173 Conn. 203, 205, 377 A.2d 284 (1977)..  FN12. Tango v. New Haven, 173 Conn. 203, 205, 377 A.2d 284 (1977).

Peck, A. Susan, J.