Karen Kulpik et al. v. Point O' Woods Association et al. (2013)

MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANTS POINT O' WOODS (# 113.00)

BACKGROUND AND FACTS

The plaintiffs, Karen Kulpik and Michael D'Aquila, commenced this action by service of process against the defendants, Point O' Woods Association, Inc. (Point O' Woods) and Paganelli Construction Corp. (Paganelli), on March 29, 2012.

In their two-count complaint, the plaintiff's allege the following facts.   The plaintiffs own and reside at a residence located at 7 Connecticut Road in Old Lyme, Connecticut, in New London County.   The property is also known as Lot Number 856, and is located within a development known as Point O' Woods.   Defendant Point O' Woods is a specially chartered municipal corporation and/or special tax district within the town of Old Lyme that is responsible for maintaining, controlling and repairing the roads within the association, including the roads abutting the plaintiffs' property.   Defendant Paganelli is a Connecticut Corporation with a business office located at 51 Lawnacre Road in Windsor Locks, Connecticut, and was acting as an agent for Point O' Woods at all relevant times.

The plaintiffs further allege that commencing on or about March 29, 2010, and continuing through about April 1, 2010, the plaintiffs' property was flooded and experienced excessive water runoff during and following a storm event, resulting in various injuries and damages to the plaintiffs and their property.   The plaintiffs allege that the flooding was caused by the defendants' negligent and defective repair of a portion of the road near the plaintiffs' property, which caused excessive water to flow from the road maintained by Point O' Woods onto the plaintiffs' property.   The repair allegedly involved, inter alia, the removal of an apron and curbing formerly existing in the near vicinity of the plaintiffs' property, as well as the regrading, repaving and repitching of roads near the plaintiffs' property.   Although it was not alleged in the complaint, the documents submitted by Point O' Woods establish that Paganelli was hired to install an underground sewer system located beneath the road.

On April 9, 2012, the plaintiffs filed a two-count complaint.   Count one alleges common-law negligence, while count two alleges a violation of General Statutes § 13a–149.   On December 28, 2012, Point O' Woods moved for summary judgment on both counts.   As to count one, Point O' Woods moves for judgment as a matter of law on grounds that it is protected by governmental immunity and defendant Paganelli never acted as an agent for Point O' Woods.   As to count two, Point O' Woods moves for judgment as a matter of law on grounds that § 13a–149 does not permit claims for damage to residences, real property or personal property, and that the written notice produced by the plaintiffs pursuant to § 13a–149 is insufficient as a matter of law.   In support of its motion, Point O' Woods attached (1) an affidavit of Kathleen McKeough, a former president of Point O' Woods:  (2) the contract for the construction of a water and sewer system between Point O' Woods and Paganelli;  and (3) the Point O' Woods Association charter and ordinances.   On March 11, 2013, the plaintiffs filed a memorandum opposing summary judgment on count one, while conceding that Point O' Woods is entitled to summary judgment on count two.   The motion was argued at short calendar on March 18, 2013.

LAW RE:  SUMMARY JUDGMENT

“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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “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.   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 ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 11, 938 A.2d 576 (2008).

DISCUSSION

Because the plaintiffs concede that Point O' Woods is entitled to summary judgment on count two, the only issue before the court is whether Point O' Woods is also entitled to summary judgment on count one, which alleges common law negligence.   Point O' Woods argues that as a municipal corporation and political subdivision of the state, it is immune from liability for its own negligence as well as the negligence of independent contractors.   Point O' Woods further argues that even if it is not entitled to immunity, the only allegations of negligence against it sound in vicarious liability, and there is no genuine issue of material fact that Paganelli never acted as an agent of Point O' Woods.

The plaintiffs do not dispute that Point O' Woods is considered a municipality for purposes of governmental immunity.   Instead, the plaintiffs respond that there is a genuine issue of material fact as to whether the alleged negligence involves the performance of a ministerial duty, as opposed to a discretionary one, only the latter of which would entitle Point O' Woods to governmental immunity.  General Statutes § 52–557n(a).   Specifically, the plaintiffs assert that because the work was performed pursuant to a strict set of guidelines contained in the contract between Paganelli and Point O' Woods, there is a genuine issue of material fact as to whether the duty to maintain the roads was discretionary.   The plaintiffs argue that there is also a genuine issue of material fact with respect to whether Paganelli acted as an agent of Point O' Woods because Point O' Woods had oversight over the allegedly negligent road work and admitted to an agency relationship in its cross complaint against Paganelli.

The court will first address whether Point O' Woods is entitled to governmental immunity.  “The issue of governmental immunity is simply a question of the existence of a duty of care, and [the Connecticut Supreme Court] has approved the practice of deciding the issue of governmental immunity as a matter of law.”  (Internal quotation marks omitted.)  Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006).  “As a matter of Connecticut's common law, the general rule ․ is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity.”  (Internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 334, 984 A.2d 684 (2009).   Section § 52–557n is such a statute, and expressly abrogates the common-law doctrine that municipalities are immune from suit for torts committed by their employees and agents and permits a tort claimant to bring a direct cause of action in negligence against a municipality.¹  Id., 335.   But that abrogation of common-law immunity is not limitless.  Id., 336.   Section § 52–557n(a)(2) provides that “[e]xcept 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.”   Thus, a key circumstance in which a municipality retains immunity is when the suit arises from the discharge of a discretionary duty, rather than a ministerial one.

As a policy matter, “municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ․ Discretionary act immunity reflects a value judgment that despite injury to a member of the public the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ․ In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts ․ This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.”  (Citations omitted;  internal quotation marks omitted.)   Doe v. Petersen, supra, 279 Conn. 614–15.

“[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․” (Internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010).   However, “where it is apparent from the complaint that the ․ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”  (Internal quotations marks omitted.)  Id., 307–308.

“[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.”  (Internal quotation marks omitted.)   Bonington v. Westport, supra, 297 Conn. 307.  “The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Citation omitted;  internal quotation marks omitted) Martel v. Metropolitan District Commission, 275 Conn. 38, 48–49, 881 A.2d 194 (2005).  “[F]or the purposes of § 52–557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.”  Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010).   The policy, rule or other directive must therefore limit discretion by prescribing the manner in which the complained of act is performed in order for that act to be characterized as ministerial.  Violano v. Fernandez, 280 Conn. 310, 323–24, 907 A.2d 1188 (2006).

In support of its position, Point O' Woods primarily relies on Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 41 A.3d 1147 (2012), which it argues is legally and factually analogous to the present case.   In Silberstein, the plaintiffs were the owners of a property located in the Hillcrest Park neighborhood of Old Greenwich.   They brought suit against the tax association and private tax district for the Hillcrest Park neighborhood.   By a special vote, the tax district approved the subdivision of land near the plaintiffs' property, upon which two houses were constructed.   The plaintiffs alleged that, following the construction of the two houses on the subdivided parcel, they began to experience “severe and excessive flooding” on their property, which was located at the base of a watershed.   The plaintiffs brought a negligence action which alleged that the defendants failed to properly maintain the roads and drainage systems in the neighborhood, resulting in the periodic flooding of the plaintiffs' property.   The defendants moved for summary judgment on the negligence claim on governmental immunity grounds, which the trial court granted.

On appeal, the Appellate Court affirmed.   In order to characterize the defendants' duty, the court looked to the tax district's bylaws, which imposed a duty “to construct and maintain roads ․ drains, [and] storm sewers ․” Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.App. 273.   Citing Violano v. Fernandez, supra, 208 Conn. 323, the court noted that “[t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions.”   Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 273.   The fact that the court found fatal to the plaintiff's negligence claim was that “[the] bylaws [did] not ․ prescribe the manner in which the roads and drainage systems [were] to be maintained, and there [was] no evidence in the record of any procedure or directive governing the manner of their maintenance.”   (Emphasis in original.)  Id. Accordingly, the court concluded that “the manner in which the defendants discharge[d] their duty to maintain the roads and drainage systems plainly involv[ed] the exercise of judgment and discretion.”  Id.

The plaintiffs in the present case do not address Silberstein directly.   Instead, the plaintiffs counter that the work performed was not a matter of discretion because the work was subject to a strict set of guidelines contained in the construction contract between Paganelli and Point O' Woods.   They argue that their allegations center on negligent workmanship of a project that was not performed within the normal course of Point O' Woods' duty to maintain the roads of the association, but rather pursuant to a specific contract with strictly defined methods of performing the work.   In support of their argument, they cite to language in the contract that details the work to be performed, such as language requiring Paganelli to perform the work in accord with certain drawings and specifications, protect the construction work and adjacent property from harm and repair any harm done, if necessary.   The plaintiffs cite no case law supporting this position.

In order to characterize the duty or duties in question, the court looks to the charter submitted by Point O' Woods as an attachment to its motion.²  Neither party has pointed to specific language in the charter, but McKeough's affidavit indicates that the charter gives Point O' Woods “a number of powers, rights and responsibilities ․ including the ․ responsibility for maintaining roads within the geographical confines of the Point O' Woods Association, Inc.” The relevant provisions of the charter that appear to provide such powers, rights and responsibilities are located in Chapter I, Section 1.5, which provides in part:  “In addition to such other powers as may be conferred upon the association by law, the association shall have the following powers:  (1) To contract and be contracted with ․ (8) to lay out, construct, reconstruct, alter, maintain, repair, control and operate streets, alleys, boulevards, rights of way ․ sidewalks, curbs, gutters, walks ․ and any and all ․ improvements necessary or convenient for carrying on the government of the association ․ (10) to lay out, construct, maintain, operate, alter, extend and discontinue sewer and drainage systems ․ (17) to regulate the laying, location and maintenance of ․ drains [and] sewers ․” In any event, the plaintiffs concede that Point O' Woods has “a duty to maintain roads, curbs and drainage areas, and there is no prescribed manner for doing so.”   A review of the entire charter confirms this.   Thus, no ministerial duty arises from the language of the charter.

The only issue that remains with respect to governmental immunity, then, is whether the specific directives contained in the Paganelli construction contract, construed in a light most favorable to the plaintiffs, create a genuine issue of material fact as to the presence of a ministerial duty.   The court finds that they do not.   Even if we assume for purposes of this motion that Paganelli was acting as an agent for Point O' Woods, and that the contract was highly detailed as to the manner in which Paganelli must complete the construction project, the plaintiffs have put forth no evidence of a policy or rule limiting municipal discretion.   The extent to which a municipality chooses to limit the discretion of a contractor is irrelevant.   Hence, the formation of the construction contract did not transform Point O' Woods' duty into a ministerial one, but was merely the way in which Point O' Woods chose to carry out that duty.   Point O' Woods could have chosen, in its discretion, to give Paganelli little or no guidance on how to perform the construction project.   (Emphasis supplied.)

The court agrees that Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.App. 262, is analogous to the present case.   Like the tax district's bylaws in Silberstein, the Point O' Woods charter does not “mandate a particular response to specific conditions.”  Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 273.   Rather, the charter defines Point O' Woods' general powers and responsibilities, and leaves the manner of carrying out those responsibilities, in this context, to municipal discretion.   Here, this is fatal to the plaintiffs' case Point O' Woods was permitted to, in its discretion, contractually prescribe the precise manner in which Paganelli must complete its work, or not.   The fact that a municipality chooses to require a contract to be performed pursuant to a strict set of guidelines does not render an otherwise discretionary duty ministerial, and does not vitiate governmental immunity.   Were it otherwise, municipal exposure to liability could “cramp the exercise of official discretion beyond the limits desirable in our society.”  (Internal quotation marks omitted.)  Doe v. Petersen, supra, 279 Conn. 614–15.

ORDER

For reasons stated above, the defendant Point O' Woods' motion for summary judgment as to counts one and two of the complaint (# 113.00) is hereby granted.

Devine, J.

FOOTNOTES

FN1. Section 52–557n(a)(1) provides in 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 ․”.  FN1. Section 52–557n(a)(1) provides in 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 ․”

FN2. The plaintiffs refer to the rules governing Point O' Woods as “By Laws,” rather than a “charter,” as it is titled.   Nonetheless, the plaintiffs do not dispute that the charter governs, and have not submitted any additional rules or regulations..  FN2. The plaintiffs refer to the rules governing Point O' Woods as “By Laws,” rather than a “charter,” as it is titled.   Nonetheless, the plaintiffs do not dispute that the charter governs, and have not submitted any additional rules or regulations.

Devine, James J., J.