Peter Benedict v. Town of Norfolk (2011)

MEMORANDUM OF DECISION

This motion to strike (# 159) presents an issue on which both parties agree there is no controlling appellate authority:  does C.G.S. 52–557n(b)(8) create or authorize an independent cause of action against a municipality?   For the reasons given briefly below, the answer is no.

The plaintiff's decedent resided at the Meadowbrook Housing Complex, a senior housing complex.   The defendant, Town of Norfolk, had assumed responsibility for plowing, sanding and salting the driveway and parking area of the complex.   The plaintiff alleges that on January 9, 2005 his decedent was injured when he slipped and fell on a thin layer of black ice in the parking area of the complex.   In this suit the plaintiff seeks to recover damages from the defendant based upon two separate counts.   The first count is labeled “Negligence—C.G.S. § 52–557n(a).”   It alleges that the defendant was negligent in failing to remove the ice, in failing to sand or salt the ice, in permitting the ice to accumulate, and in failing to inspect the premises.   The second count is labeled “Negligence Constituting Reckless Disregard of Health and Safety—C.G.S. § 52–557n(a) and (b).”  In that count the plaintiff alleges that the defendant's “failure to inspect and/or its inadequate or negligent inspection of the Meadowbrook Housing Complex parking lot constituted a reckless disregard for health or safety under all the relevant circumstances ․” This language comes directly from § 52–557n(b)(8) which provides:  “Not withstanding 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 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.”

The defendant moves to strike the second count in its entirety on the ground that § 52–557n(b)(8) does not create or authorize a cause of action against the defendant municipality.   The defendant cites five Superior Court cases in support of that proposition.   The most recent of these is Baker v. Town of Cheshire, Superior Court, judicial district of New Haven, Docket No. 075013602 (April 24, 2008), a decision written by

BY THE COURT,

John W. Pickard

Pickard, John W., J.