Juan Pinos v. The Mystic Fire District et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 126)

FACTS

On December 17, 2009, the plaintiff, Juan Pinos, as the administrator of the estate of Jose Antonio Chillogallo, filed an amended complaint dated November 20, 2009, against the defendants, the Mystic Fire District, George Kanabis and Mariana Sanderson, the administrator of the estate of Jerry Sanderson, alleging the following facts.   On or about August 4, 2005, the decedent, Jose Antonio Chillogallo, was a tenant at 19 East Main Street, Mystic, Connecticut, when a fire broke out on the subject premises.   The decedent ultimately died in the fire.   The subject premises are located within the jurisdiction of the defendant Mystic Fire District.   Pursuant to General Statutes § 29–305, the fire marshal for the Mystic Fire District was responsible for conducting yearly safety inspections of buildings that included the subject premises, but there had been no fire or safety inspection within a reasonable time prior to the fire.

Count one of the complaint is directed against the Mystic Fire District, alleging that the Mystic Fire District had a statutory duty to appoint an officer to administer the building code and/or fire code and to enforce these provisions.   The complaint further alleges that the plaintiff's death was caused by the negligence of the Mystic Fire District or its agents, servants and/or employees while acting within the scope of their employment because, inter alia, “[i]t failed to make an annual inspection as required, at the subject premises to determine whether it properly complied with or violated any law or contained a hazard to health or safety, which failure to inspect or such inadequate or negligen[t] inspection constituted a reckless disregard for health and safety under all the relevant circumstances.”   The complaint alleges that the subject premises had numerous building code, fire code and/or health and safety code violations which were causative factors in the death of the decedent.

The Mystic Fire District filed an amended answer and asserted special defenses that included statutory and municipal immunity on October 2, 2009.   On October 5, 2009, Judge Parker granted the Mystic Fire District's motion to consolidate Pinos v. Kanabis, Docket No. CV 07 5004117, with this case.   In the companion case, the same plaintiff, Juan Pinos, sued, among other parties, the Mystic Fire District's fire marshal, Frank Hilbert, for negligence and recklessness.   This court, Cosgrove, J., granted in part and denied in part the defendant fire marshal's motion for summary judgment on December 10, 2010.   This court held that the defendant fire marshal had statutory immunity pursuant to General Statutes § 29–298(b) that barred the plaintiff's negligence claim against him but not the recklessness claim.   On December 29, 2010, the Mystic Fire District filed a motion for summary judgment supported 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 February 4, 2011.   The defendant filed a reply memorandum on February 10, 2011.

DISCUSSION

“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).  “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).  “A material fact is a fact that will make a difference in the result of the case.”  (Internal quotation marks omitted.)   Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009).  “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).

In the present case, the Mystic Fire District argues that because this court previously granted summary judgment in favor of the Mystic Fire District's fire marshal for a negligence claim against him based on statutory immunity, then the fire district must also have immunity for the same claim.   The defendant maintains that it cannot be held vicariously liable for acts from which its employee fire marshal is immune.

In response, the plaintiff first contends that § 29–298(b), the statute granting the fire marshal immunity in the companion case, does not apply to the defendant Mystic Fire District, a political subdivision.   Rather, the plaintiff argues that General Statutes § 52–557n(a) provides for a direct cause of action against a political subdivision and that a genuine issue of material fact exists as to whether the Mystic Fire District's failure to inspect the subject premises constituted recklessness to fit within the exception to governmental immunity embodied in § 52–557n(b)(8).

With respect to the Mystic Fire District's argument that it cannot be held liable because its agent, the fire marshal, Frank Hilbert, is immune from negligence claims under § 29–298(b), both the plain reading of the statute and the law of agency dictate that this argument must fail.   First, the statute immunizes local fire marshals, deputy fire marshals, fire inspectors or other inspectors or investigators acting for a local fire marshal and officers of a fire marshal's office;  by its own words, it does not apply to fire districts.¹  Second, under the law of agency, the fact that the fire marshal, acting as an agent of the Mystic Fire District, has statutory immunity does not affect the Mystic Fire District's liability to the plaintiff.   According to the Restatement (Second), Agency § 217:  “In an action against a principal based on the conduct of a servant in the course of employment ․ (b) The principal has no defense because of the fact that ․ (ii) the agent had an immunity from civil liability as to the act.”   Comment (b) to Restatement (Second), Agency § 217 provides in relevant part:  “[W]here the principal directs an agent to act, or the agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal.”   “Immunities exist because of an overriding public policy which serves to protect an admitted wrongdoer from civil liability.   They are strictly personal to the individual and cannot be shared.”   1 Restatement (Second), Agency § 347, comment (a) (1958).

Thus, the Mystic Fire District is not immune from liability under § 29–298(b) or by virtue of the fact that this court previously concluded that its agent was immune from a negligence claim.

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 the fire marshal's affidavit and deposition testimony in the companion case, it is uncontested that the subject premises were subject to annual inspection by the fire marshal for the defendant Mystic Fire District, pursuant to § 29–305(b).

General Statutes § 52–557n(a)(1) provides in relevant part:  “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.”

Section 52–557n(b) provides 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 ․ 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.”

Thus, in order for the Mystic Fire District to be held liable for failing to make an inspection of the subject premises to determine whether the property complied with or violated fire and safety codes or contained a hazard to health or safety, the plaintiff must establish that the fire district either had notice of such a violation or hazard or that the failure to inspect constituted a reckless disregard for health or safety under the circumstances.

This court has previously held in the companion case Pinos v. Kanabis, Docket No. CV 07 5004117, that a question of fact exists as to whether the acts of the Mystic Fire District's fire marshal rose to the level of recklessness in the fire district's failure to perform the required yearly inspections of the subject premises.   The fire marshal states in an affidavit that he at all times was acting in good faith and not maliciously while carrying out his obligations.   He states 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.   The decedent died in one of the rear apartments.   Further, the fire marshal swears in his affidavit that in 2004, the fire marshal's office performed just 250 inspections of the 647 business and multi-family 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 introduced in the companion case the transcript of the defendant fire marshal's deposition testimony where the fire marshal for the Mystic Fire District 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 the fire marshal or his office since Frank Hilbert became fire marshal in 1998.

The trial court's role in ruling upon a motion for summary judgment is not to decide questions of fact but simply to determine whether they exist.   See Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent.”  (Internal quotation marks omitted.)  Bishop v. Kelly, 206 Conn. 608, 614–15, 539 A.2d 108 (1988).   The evidence before the court reveals that a genuine issue of material fact exists as to whether the fire marshal for the Mystic Fire District ever made a complete, statutorily required yearly inspection of the subject premises in his seven years as fire marshal prior to a fire that killed two people.   Whether this failure to inspect constituted a reckless disregard for health and safety is a question that renders this case unsuitable for a summary disposition.   Thus, the Mystic Fire District has not established that it is entitled to a judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the defendant Mystic Fire District's motion for summary judgment is hereby denied.

Cosgrove, J.

FOOTNOTES

FN1. 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.”.  FN1. 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.”

Cosgrove, Emmet L., J.