Russell Lang v. City of New London et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT.   No. 127

FACTS

On September 28, 2010, the plaintiff, Russell Lang, filed a three-count amended complaint against the defendants, City of New London (City) and Thomas Ryan, alleging the following facts.   On June 28, 2008, the plaintiff entered a transfer station owned by the defendant City. He was directed by the defendant Ryan, an agent, servant and/or employee of the defendant City, to unload material from a vehicle into a receptacle pit when the plaintiff slipped and fell into the pit due to the allegedly dangerous and/or defective condition around the pit, which resulted from the presence of debris, garbage, oils and/or the absence of safety railings.   The plaintiff suffered several injuries.   Count one of the amended complaint is against the defendant City, alleging negligence and seeking to recover pursuant to General Statutes § 52-557n.   Count two alleges negligence by the defendant Ryan. Count three is against the defendant City, seeking indemnification of the defendant Ryan pursuant to General Statutes § 7-465.   Each count sets forth twelve allegations of negligence, including allegations that the area where the plaintiff was allegedly injured was unreasonably dangerous because of the debris, that the defendants had notice of the condition, failed to remove the debris or warn of it and that the defendants violated Occupational Safety and Health Administration Regulation 1910.23(c)(1) and § 22a-209-09 of the Connecticut Department of Environmental Protection Solid Waste Disposal Regulations.

On October 29, 2010, the defendants filed an answer with a special defense, as well as a motion for summary judgment on the ground that there is no issue of material fact and the defendants are entitled to judgment as a matter of law because the plaintiff's claim is barred by governmental immunity.   The motion is accompanied by a memorandum of law and an affidavit of the manager of the transfer station at issue.   On November 8, 2010, the plaintiff filed a memorandum of law in opposition to the defendants' motion for summary judgment and attached deposition testimony as evidence.   The defendants filed a reply to the plaintiff's objection on November 15, 2010.

DISCUSSION

“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).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ 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).  “Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Gold v. East Haddam, 290 Conn. 668, 678, 966 A.2d 684 (2009).

In the present case, the defendants argue that it is undisputed they were engaged in the performance of a public duty in the operation and maintenance of the transfer station and that their alleged actions were discretionary acts subject to immunity.   They further argue that none of the exceptions to the doctrine of governmental immunity apply to this case because there is no genuine issue that the plaintiff is not an identifiable victim and was not subject to imminent harm.

In response, the plaintiff contends that the defendants have failed to establish the absence of a genuine issue of material fact as to whether their acts were discretionary or ministerial.   The plaintiff argues that the determination of whether an act is within the scope of governmental immunity is a question of fact for the jury to decide.   In the alternative, the plaintiff argues that he fits within an exception to the doctrine of governmental immunity and that issues of fact exist as to whether he is an identifiable victim subject to imminent harm.

General Statutes § 52-557n(a)(2) 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 ․ 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 doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees ․ Governmental immunity in such cases depends on whether the act in question involves a ministerial or discretionary act.  [A] municipal employee ․ has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act ․ The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Cotta v. Board of Education, 294 Conn. 265, 272 n.8, 984 A.2d 58 (2009).

After a thorough review of the evidence presented, this court concludes that there is no issue of fact with respect to whether the defendant Ryan was performing a discretionary act.   According to the defendant Ryan's deposition testimony, he regularly directed people who entered the transfer station to different areas within the station depending on what types of refuse they brought in with them.   These actions are the very definition of exercising personal judgment and discretion.   Further, according to the deposition testimony of Jordan Shelton, the man who accompanied the plaintiff to the transfer station, the defendant Ryan directed them to a specific area to unload the contents of their truck.   Shelton described the area as “one big pit.”   Furthermore, according to the affidavit of William Watkins, the manager of the transfer station, the frequency and manner in which the station is to be maintained and/or inspected are left to the sole discretion of the plant operator and his staff.   Thus, although subject to regulations concerning the maintenance of the facility, the staff at the transfer station must exercise individual judgment when clearing debris and cleaning the surrounding areas.   Therefore, there is no dispute of material fact that the defendant Ryan, as an agent, servant and/or employee of the defendant City, was required to use his judgment and discretion in directing transfer station patrons where to unload their refuse.   As a matter of law, municipal and qualified immunity apply to the actions complained of by the plaintiff.

The plaintiff nevertheless contends that an exception to the discretionary act immunity exists.  “[T]he identifiable person, imminent harm exception ․ 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 ․ We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state ․ 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.”  (Internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 350, 984 A.2d 684 (2009).

In a factually similar case, the Supreme Court in Grady rejected “the plaintiffs argument that, as a town resident who had purchased a permit for the transfer station, he is an identifiable person” for purposes of the identifiable person, imminent harm exception and held “that the plaintiff is not a member of a class of foreseeable victims because ․ he was not legally required to dispose of his refuse by taking it to the transfer station personally ․” Id., 356.

The plaintiff argues that he is a specific, foreseeable victim, not necessarily part of an identifiable class.   However, in evaluating the application of this exception in prior cases, the Grady court held “the decisions reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity ․ Sestito [v. Groton, 178 Conn. 520, 423 A.2d 165 (1979) ] appears, however, to be limited to its facts [an on-duty town police officer watched and witnessed ongoing brawl in bar's parking lot, but did not intervene], as the remainder of the case law indicates that this exception has been applied narrowly, because [a]n allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm.   Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person.”  (Citation omitted;  internal quotation marks omitted.)  Id., 353-54.

Therefore, there is no genuine issue of material fact as to whether or not the identifiable person, imminent harm exception to municipal and qualified immunity applies in this case.   There is no dispute in the evidence presented, the plaintiff does not fit within the narrowly prescribed exception to governmental immunity.   The defendants have satisfied their burden of showing they are entitled to judgment as a matter of law in that the alleged actions serving as a basis for the plaintiff's complaint are covered by municipal and qualified immunity and no exception to that immunity applies.

CONCLUSION

For the foregoing reasons, the court hereby grants the defendants' motion for summary judgment as to all three counts of the plaintiff's complaint.

Martin, J.

Martin, Robert A., J.