Robb Canning v. Town of Simsbury (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 121)

FACTS

On December 30, 2011, the plaintiff, Robb Canning, filed his second amended complaint alleging negligence against the defendant, Town of Simsbury.   In the operative complaint, the plaintiff alleges the following facts.   On July 12, 2008, while riding a bicycle in Memorial Park in Simsbury, the plaintiff was entangled by a black nylon tarp semi-attached to a baseball field backstop.   The bottom half of the tarp, which was extremely frayed, was not attached to the fence.   The frayed tarp flew into the air, striking and injuring the plaintiff.

On March 5, 2012, the defendant filed its motion for summary judgment on the ground of governmental immunity.   The motion is accompanied by a memorandum of law and three affidavits from Gerald Toner, Director of the Culture, Parks and Recreation Department of Simsbury.   The plaintiff filed an objection on May 22, 2012 along with an affidavit, a photograph of the tarp and the minutes from the Simsbury Culture, Parks and Recreation Department meeting of May 27, 2010.   The matter was heard at short calendar on June 4, 2012.

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.”  (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 ․ 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 ․ 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).

The defendant argues that the evidence shows that the defendant did not engage in a proprietary function in its operation of Memorial Park, so the defendant is entitled to governmental immunity.   As evidence, the defendant relies on the affidavits of Toner, the Director of the Culture, Parks and Recreation Department of Simsbury.   In his March 1, 2012 affidavit, Toner testifies that in 2008, the time of the plaintiff's injuries, a seasonal pass to the pool in Memorial Park cost $75.00 per family and $40.00 per individual, a daily pass cost $3.00 per resident individual and $4.00 per nonresident individual and the town did not typically charge for use of the Park fields, although in the unusual case an outside organization might use a field and make a contribution for maintenance of the field.   Toner testified further that the defendant collected $14,242.00 in 2008 and this money was applied to the defendant's general fund.   Toner testified that the operating, maintenance and staffing cost for Memorial Park in 2008 totaled $77,099.

The plaintiff counters that the affidavits relied upon by the defendant are insufficient basis to grant summary judgment because the defendant confuses the issue by focusing on the dollar amount or the percentage of profit generated.   The plaintiff also argues that the defendant has failed to address the specific claims of negligence that the plaintiff has alleged.   The plaintiff states that his complaint alleges acts by the defendant that are ministerial in nature and, therefore, not subject to governmental immunity.

General Statutes § 52–557n(a)(1)(B) provides that “a political subdivision of the state shall be liable for damages to person or property caused by ․ (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit.”   Section 52–557n(a)(1)(B) “codifies the common-law rule that municipalities are liable for their negligent acts committed in their proprietary capacity ․ If a municipality is acting only as the agent or representative of the state in carrying out its public purposes ․ then it clearly is not deriving a special corporate benefit or pecuniary profit.   Two classes of activities fall within the broader category of acting as the agent of the state:  [1] those imposed by the [s]tate for the benefit of the general public, and [2] those which arise out of legislation imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large ․ For example, the maintenance of the public peace or prevention of disease would fall within the first class ․ while the maintenance of a park system would fall within the second class.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Considine v. Waterbury, 279 Conn. 830, 844–46, 905 A.2d 70 (2006).

“While the distinction remains clear with regard to the first class of activities, it becomes more difficult to discern in the second class of activities.   For example, the second class of activities encompasses functions that appear to be for the sole benefit of a municipality's inhabitants, but nevertheless provide indirect benefits to the general public because the activities were meant to improve the general health, welfare or education of the municipality's inhabitants ․ The municipality may even charge a nominal fee for participation in a governmental activity and it will not lose its governmental nature as long as the fee is insufficient to meet the activity's expenses.”  (Citations omitted.)  Id., 846–47.

“On the other side of the distinction, a municipality generally has been determined to be acting for its own special corporate benefit or pecuniary profit where it engages in an activity for the particular benefit of its inhabitants ․ or if it derives revenue in excess of its costs from the activity ․ When a municipality derives substantial revenue from its commercial use of municipal property, it has been considered nonetheless to be engaged in a proprietary function even if it reinvests that revenue back into the property's maintenance expenses or to pay down debt related to the property ․ Accordingly, it has been stated that a municipality is engaged in a proprietary function when it acts very much like private enterprise.”   (Citations omitted;  internal quotation marks omitted.)  Id., 847–48.

“The existence of an actual pecuniary profit is a factor in deciding whether the function is proprietary, but reliance on it alone would create problematic incentives and arbitrary results.   For example, the Michigan Supreme Court in Hyde v. University of Michigan Regents, 426 Mich. 223, 258, 393 N.W.2d 847 (1986), observed:  ‘If the availability of immunity turned solely upon an examination of the ledgers and budgets of a particular activity, a fiscally responsible governmental agency would be “rewarded” with tort liability for its sound management decisions.   Such a rule could discourage implementation of cost-efficient measures and encourage deficit spending.   Moreover, the rule would be difficult to implement and inconsistent in its results.   If an activity operates at a loss one year, but makes a profit the next year, does the availability of immunity from tort liability also change?’  “ Id., 847–48 n.11.

“Connecticut courts recognize that if the act engaged in is operated for the corporate benefit or pecuniary profit of the municipality, governmental immunity is not applicable ․ [T]he fact that a small fee is charged does not necessarily deprive the municipality of governmental immunity ․ As long as a small or nominal fee is charged as a mere incident of the public service rendered and not as a means to derive a profit from the activity, the benefit of the principle should not be removed ․ Where, however, the court finds that the fee charged indicates a commercial enterprise entered into for the corporate benefit of the municipality, [such a fee] goes beyond the mere incident of the public service rendered.”  (Citation omitted;  internal quotation marks omitted.)   Macri v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 06 5001817 (March 21, 2007, Prestley, J.).

Our Supreme Court in Hannon v. Waterbury, 106 Conn. 13, 17–18, 136 A. 876 (1927), explained that the charging of a small fee to help offset the cost of maintaining a public swimming pool was not for profit and did negate the applicability of the doctrine of governmental immunity.  “Public parks, playgrounds, swimming pools, and public baths or bathing houses are all examples of municipal functions undertaken for the public benefit, and unless maintained for the corporate profit of the municipality are within the rule of governmental immunity ․ The charge of a small fee covering a part of the cost of the maintenance of the pool in paying a supervisor, instructors, janitors and the like, while the municipality furnished the building, the swimming pool, the apparatus and equipment in connection therewith ․ did not except the maintenance of the pool from the rule of governmental immunity.   The city was not deriving a profit from this small fee, the charge was a mere incident of the public service rendered in the performance of a governmental duty.”   (Citation omitted.)  Id.

In Amex Assurance Co. v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 05 500252 (May 16, 2006, Domnarski, J.), the defendant submitted evidence that while the defendant charged a fee for rental of picnic areas and the use of pools and baseball fields, the fees did not amount to a profit, nor cover the costs of operating the park generally.   Thus, the court concluded the fees charged by the defendant are a mere incident of the public service rendered in the performance of a governmental duty and therefore “[do] not create a proprietary activity sufficient to remove governmental immunity.”   Accordingly, the court granted summary judgment for the defendant.

The plaintiff relies on Carta v. Norwalk, 108 Conn. 697, 702, 145 A. 158 (1929).   In that case, the decedent died at a public beach in which the defendant city had entered into a contract with private parties, by which the city granted to them the exclusive concession for the beach pavilion.   Our Supreme Court found that “the amount of annual rental income accruing to the city ($2,500) is such as to remove it, at least prima facie, from the category of such incidental income and to import such a ‘special or corporate benefit or pecuniary benefit’ as to exclude the application of the rule of governmental immunity.”

In this case, as in Amex Assurance Co., the undisputed evidence shows that the defendant charged a fee for the use of the pool, but this fee does not amount to a profit, nor cover the costs of operating the park generally.   Moreover, the three- or four-dollar daily fee for use of the pool is a nominal fee.   See Hannon v. Waterbury, supra, 106 Conn. 18.   Additionally, unlike Carta, there is no contract or lease agreement between the defendant and another party.   Thus, the court finds that the fee is a mere incident of the public service rendered in the performance of a governmental duty and therefore does not create a proprietary activity sufficient to remove governmental immunity.   Accordingly, the defendant is entitled to judgment as a matter of law.¹

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is granted.

Woods, J.

FOOTNOTES

FN1. With regards to the plaintiff's argument that the defendant's acts were ministerial, the defendant correctly points out that the plaintiff relies on § 52–557n(a)(1)(C) when he alleges that the defendant operates the park on a proprietary basis.   Furthermore, the acts alleged in the operative complaint “involved the exercise of judgment, and thus, necessarily were discretionary in nature, [thus] summary judgment is proper.”  (Emphasis in original;  internal quotation marks omitted.)   Soderlund v. Merrigan, 110 Conn.App. 389, 394, 955 A.2d 107 (2008)..  FN1. With regards to the plaintiff's argument that the defendant's acts were ministerial, the defendant correctly points out that the plaintiff relies on § 52–557n(a)(1)(C) when he alleges that the defendant operates the park on a proprietary basis.   Furthermore, the acts alleged in the operative complaint “involved the exercise of judgment, and thus, necessarily were discretionary in nature, [thus] summary judgment is proper.”  (Emphasis in original;  internal quotation marks omitted.)   Soderlund v. Merrigan, 110 Conn.App. 389, 394, 955 A.2d 107 (2008).

Woods, Glenn A., J.