Michael Morse v. Town of Norwich (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (NO. 111)

PROCEDURAL HISTORY

The defendants have filed a motion for summary judgment.   The motion was accompanied by a supporting memorandum of law, an affidavit from Kellough and copies of various administrative documents from Norwich animal control entitled “Release of Ownership.”   The plaintiff, Michael Morse, filed an objection to this motion on November 3, 2010.   The objection was accompanied by a supporting memorandum of law, excerpts from the deposition of Evelyn Cannamela and portions of the Norwich police department's report on the theft.   The defendant filed a reply on November 5, 2010.   The reply was accompanied by a letter from Kellough dated September 28, 2009 and further excerpts from the deposition of Evelyn Cannamela.   Oral argument on this motion was heard at short calendar November 8, 2010.

The plaintiff, Michael Morse, filed the present case against the defendants, the city of Norwich, Michelle Kellough and Donna Gemminger, on August 19, 2009.   As a result of a request to revise, the plaintiff filed a revised complaint on November 18, 2009.   The revised complaint contains three counts.   Count one alleges negligence against the city of Norwich.   Count two alleges negligence against Kellough.   Count three alleges negligence against Gemminger.

The following facts are alleged by the plaintiff in the revised complaint.   The plaintiff owned three “pit bull puppies.”   The defendants took possession of the dogs and placed them in the Norwich dog pound after the plaintiff was taken into federal custody and could no longer care for them.   At some point between July 21, 2007 at 4:00 p.m. and July 22, 2007 at 9:00 a.m. a thief cut through the fencing at the pound and removed all three puppies.   At the time the dog pound's security cameras were not functioning.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“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 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 ․ 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 genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

I Absence of a Legal Duty

The defendants argue that “all claims against the defendants are invalid as a matter of law since none of these defendants owes the plaintiff any legal duty under the facts of this case.”   Specifically, they argue that “a release of ownership waiver was signed for the puppies;  and the plaintiff, who was incarcerated and could not care for the puppies, had no possessory interest in them.”   As evidence supporting this argument, the defendants submit a copy of the release at issue.   The release states that “Evelyn Cannamela” is the “sole owner” of the dogs and that “[she] understand[s] that [the release] relinquishes any claims [she has] to [the dogs].”

The plaintiff responds by arguing, inter alia, that the individual who signed the release, namely his mother Evelyn Cannamela, had no possessory interest in dogs and therefore his interest remains unaffected.   In support of this argument, the plaintiff submits transcribed portions of the deposition of Evelyn Cannamela.   In the excerpt provided, Cannamela states that she had no interest in the dogs taken by the defendants.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action ․ Thus, [t]here can be no actionable negligence ․ unless there exists a cognizable duty of care.”  (Internal quotation marks omitted.)  Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).

In the present case, the defendants have failed to show that the plaintiff has no possessory interest in the dogs.   While the release does state that “Evelyn Cannamela” is the “sole owner” of the puppies and purports to relinquish any property rights, the defendant has submitted evidence indicating that Cannamela was not in fact the owner of the dogs.   A genuine issue of material fact exists and therefore the motion for summary judgment may not be granted on this ground.

II Governmental Immunity

The defendants also argue that they are entitled to summary judgment based on the doctrine of governmental immunity.   Specifically, they argue that allegedly negligent acts referenced within the complaint “require the exercise of judgment or discretion” as that term is used within the context of General Statutes § 52-557n(a)(2)(B).  Moreover, the defendants argue that no recognized exception to immunity is applicable.   As evidence to support this argument the defendants have submitted the affidavit of Michelle Kellough which states:  “There are no policies, procedures, ordinances or directives within the city of Norwich that prescribe the manner in which the dog pound is supervised or how the animals within the dog pound are supervised” or “regarding the maintenance of security cameras or training or supervision of animal control officers or personnel.”   In response, the plaintiff argues that the defendants' knowledge of the non-functional video surveillance equipment prevents the defendants from being shielded by the doctrine of governmental immunity and that the defendants failed to perform certain ministerial duties.

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.”

In this context the term “[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).   The absence of such discretion results when a particular action is mandated by law.   See Grignano v. Milford, 106 Conn.App. 648, 654, 943 A.2d 507 (2008).  “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 from the complaint ․ [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ․ § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ․ Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”  (Internal quotation marks omitted.)  Bonington v. Westport, supra, 297 Conn. 307-08.

The complaint alleges that the defendants were negligent in that they failed to provide adequate security, to ensure that the video cameras were functioning, and to properly train or supervise their employees.   A review of the authorities cited within by the parties reveals no statutory provisions governing these aspects of the pound's operations.   Moreover, the affidavit submitted by the defendants from Kellough states that these actions were not covered by any “policies, procedures, ordinances or directives within the city of Norwich.”   Consequently, the actions of the defendants in the present case are discretionary rather than ministerial in nature, are within § 52-557n(a)(2)(B) and are therefore sheltered under the doctrine of governmental immunity.

The arguments proffered by the plaintiff regarding this conclusion are inapposite.   First, the plaintiff argues that knowledge of the surveillance equipment's inoperative condition prevents the defendant from asserting governmental immunity.   For this proposition the defendants cite to § 52-557n(b)(8).  Section 52-557n(b) states, in relevant part:  “Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ․ (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances.”   This particular statutory provision is reached only in the event that governmental immunity is not provided by § 52-557n(a).   Moreover, § 52-557n(b)(8) applies only to inspection of properties other than “those owned or leased by or leased to” municipalities.   Consequently, § 52-557n(b)(8) is not applicable to the present case.

Second, the plaintiff argues that the defendants failed to carry out their ministerial duty to inform him of the impoundment of his dogs pursuant to General Statutes § 22-332(a).  Section 22-332(a) states, in relevant part:  “The municipal animal control officer shall immediately notify the owner or keeper of any dog so taken, if known, of its impoundment.”   Even if this court were to assume that the actions of the defendants failed to comport with this requirement, the plaintiff does not allege that this failure was one that caused his dogs to be stolen.   The mere presence of this unrelated ministerial duty does not impact the conclusion that the allegedly negligent acts contained within in the complaint were discretionary in nature.

None of the established exceptions to governmental immunity will alter this result.   The imminent harm exception, the only exception addressed by either party, “applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ By its own terms, this test requires three things:  (1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ․ If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.”  Benedict v. Norfolk, 296 Conn. 518, 519, n.1, 997 A.2d 449 (2010).   In the present case, the evidence submitted by the defendant is sufficient to show that the theft of the plaintiff's dogs was neither imminent or apparent.   See Bonington v. Westport, supra, 297 Conn. 314 (“Imminent does not simply mean a foreseeable event at some unspecified point in the not too distant future.   Rather, we have required plaintiffs to identify a discrete place and time period at which the harm will occur”).

For these reasons, there is no genuine issue of material fact relating to the issue of governmental immunity and that the defendants are therefore entitled to judgment as a matter of law.   The motion for summary judgment is granted.

Cosgrove, J.

Cosgrove, Emmet L., J.