Florence Thiverge v. Richard Witham et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

This is an action in damages arising from an alleged dog bite incident that occurred in Middletown on or about June 15, 2010.   The defendant Richard Witham is the owner of the dog.   The defendant Gail Petras is an animal control officer employed by the defendant city of Middletown (city).   The plaintiff filed a six-count complaint dated June 12, 2012.   The first two counts are asserted against Witham and allege, respectively, negligence and strict liability.   The third count is asserted against Petras and alleges negligence.   The fourth, fifth and sixth counts are asserted against the city and allege, respectively, vicarious liability for the actions of Petras pursuant to General Statutes § 52–557n, indemnification pursuant to General Statutes § 7–465, and negligent hiring and supervision of Petras.   The matter is before the court on the motion of Petras and the city for summary judgment.

The plaintiff alleges that Witham was the owner of a male German Shepherd dog, which he kept at his home in Middletown.   On or about June 15, 2010, the plaintiff, an invited guest of Witham, entered onto his property.   At the time, Witham's dog was tied to a cable in the yard.   Witham allowed the plaintiff to pet his dog after she inquired whether the dog was friendly and safe to pet.   The plaintiff pet the dog a few times, began to walk away and then was attacked and bitten by the dog.

Several years prior, Petras investigated two dog bite incidents involving the same dog and issued a restraint order against Witham dated June 21, 2007.   The restraint order provided that the dog:  (1) must be led on a secure leash to a pen when on Witham's property;  (2) must be on a secure leash and under the control of a responsible adult at all times when not on Witham's property;  (3) shall not be tied, tethered or loose at any time;  (4) shall be licensed;  and (5) shall be neutered within thirty (30) days.

On November 13, 2012, Petras and the city filed a motion for summary judgment as to all counts asserted against them on grounds that the plaintiff's negligence claims are barred by the doctrine of governmental immunity, that the plaintiff cannot establish duty or legal causation and that the indemnification claim must fail because the city cannot be found liable to the plaintiff under General Statutes § 7–465 where its employee is not found liable first.   The plaintiff objects to the motion primarily on grounds that her claims are not barred by the doctrine of governmental immunity and that the “identifiable person/imminent harm” exception to the governmental immunity doctrine applies to the facts alleged in the complaint.

I

STANDARD OF REVIEW

“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).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist,” Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “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.   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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

II

DISCUSSIONACount Three—Negligence as to Petras

The plaintiff alleges that Petras was negligent in failing to enforce the June 21, 2007 restraint order because she did not ensure that Witham's dog was neutered or properly restrained when in Witham's yard.   The plaintiff alleges further that Petras' failure to enforce the restraint order resulted in her being attacked and injured by the dog on June 15, 2010.   Petras contends that she is entitled to summary judgment on the ground that governmental immunity bars the plaintiff's claim of negligence.   In particular, Petras argues that her decisions regarding the manner in which to enforce the restraint order were discretionary in nature rather than ministerial and that she therefore is immune from tort liability pursuant to the doctrine of governmental immunity.   In response, the plaintiff argues that while Petras' initial decision in issuing the restraint order was discretionary, the enforcement of the order is a ministerial act and therefore, governmental immunity does not shield Petras from liability.   Alternatively, the plaintiff argues that her claims against Petras fall under the “identifiable person/imminent harm” exception to the governmental immunity doctrine.   Petras claims that the exception does not apply to the facts of this case.

1. Governmental Immunity

“The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees.  [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, as opposed to a discretionary act.” ¹  (Internal quotation marks omitted.)  Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998).  “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 ․ If the acts or omissions complained of are not imposed in the form of a general legal duty, they must, in order to be characterized as ministerial, be required by [a] ․ charter provision, ordinance, regulation, rule, policy, or any other directive ․ that prescribe[s] the manner in which [they are to be performed].  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 271, 41 A.3d 1147 (2012).  “Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”  (Internal quotation marks omitted.)  Swanson v. Groton, 116 Conn.App. 849, 854, 977 A.2d 738 (2009).  “The issue of governmental immunity is simply a question of the existence of a duty of care, and [the Supreme Court] has approved the practice of deciding the issue of governmental immunity as a matter of law.”  (Internal quotation marks omitted.)  Doe v. Peterson, 279 Conn. 607, 613, 903 A.2d 191 (2006).

In the present case, it is apparent from the complaint that Petras' allegedly negligent acts or omissions involved the exercise of judgment and discretion.   The plaintiff alleges that Petras failed to enforce the terms of the restraint order and thereby failed to protect the public, guests and invitees, like herself, from being bitten by Witham's dog.   However, the plaintiff does not allege that Petras was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to enforce the restraint order in any prescribed manner.   Moreover, the order itself lacks any explicit language mandating an animal control officer to ensure compliance with the order or prescribing the manner in which the order is to be enforced.   Given this lack of directive, the court finds that the manner in which Petras enforced the restraint order involved the exercise of judgment and is therefore discretionary in nature.   See Violano v. Fernandez, 280 Conn. 310, 321–24, 907 A.2d 118 (2006);  Evon v. Andrews, 211 Conn. 502, 504, 559 A.2d 1131 (1989);  Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.App. 270–73.

The plaintiff cites to our Supreme Court's holding in Wright v. Brown, 167 Conn. 464, 472, 356 A.2d 176 (1975), for the proposition that enforcement of the restraint order is ministerial.   Her reliance upon Wright v. Brown is misplaced as the case is factually distinguishable from this case.   In Wright v. Brown, the dog warden released the dog prior to the expiration of the fourteen-day quarantine period required by General Statutes § 22–358.   The plaintiff asserted that as a result of that premature release, the dog was placed in a situation where it attacked the plaintiff.   The court found that although the decision to quarantine the dog involved the exercise of judgment by the dog warden, the subsequent duty to quarantine the dog for fourteen days was statutorily mandated by § 22–358 and, therefore, ministerial.  Id., 471–72.   As noted above, there are no similar statutory mandates that specify what actions, if any, an animal control officer must take to enforce a restraint order.   Consequently, the holding of Wright v. Brown is inapplicable to this case.

2. Exceptions to Governmental Immunity

The plaintiff argues further that if Petras' enforcement of the restraint order was discretionary, she has alleged facts sufficient to fall within the “identifiable person/imminent harm” exception to the governmental immunity doctrine.   Discretionary act immunity is subject to three well-recognized exceptions:  (1) where the circumstances make it apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm;  (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws;  and (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.  Evon v. Andrews, supra, 211 Conn. 505.   Only the first exception is relevant to the present case.²

The “identifiable person/imminent harm” exception has three prongs.  “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 conduct is likely to subject that victim to harm.”  (Internal quotation marks omitted.)  Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.App. 274.  “[T]his exception ․ 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.”  (Citations omitted;  internal quotation marks omitted.)   Violano v. Fernandez, supra, 280 Conn. 329.

In the present case, the plaintiff claims that she was an identifiable victim” because the restraint order seeks to protect persons entering onto Witham's property and she was an invited guest of Witham on the date of the alleged incident.   She also claims that she was subject to imminent harm because the dog actually bit her and that it was clearly apparent to Petras that her failure to enforce the restraint order would subject the plaintiff to harm.   Petras replies that the plaintiff is not an “identifiable person” because she was not in the area when the restraint order was issued;  that the plaintiff was not subject to imminent harm as that term as been interpreted by the courts;  and that it was not apparent to Petras that the plaintiff would be harmed if she did not enforce the restraint order.

Our Supreme Court has held that “the criteria of ‘identifiable person’ and ‘imminent harm’ must be evaluated with reference to each other.   An 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 ․ For the purposes of the ‘imminent harm’ exception ․ it is impossible to be an identifiable person in the absence of any corresponding imminent harm.”  (Citation omitted;  internal quotation marks omitted.)  Doe v. Peterson, supra, 279 Conn. 620–21.   Because this court finds herein that the “imminent harm” prong of the exception has not been met, it is not necessary to address the remaining two prongs of the “identifiable person/imminent harm” exception to the governmental immunity doctrine.

The imminent harm prong of the exception applies to foreseeably dangerous conditions that are limited in duration and geographical scope.  Purzycki v. Fairfield, supra, 244 Conn. 110.   It does not apply to perils involving “a wide range of factors that can occur, if at all, at some unspecified time in the future.”  Evon v. Andrews, supra, 211 Conn. 508.  “For the harm to be deemed imminent, the potential for harm must be sufficiently immediate ․ The risk of harm must be temporary and of short duration.”  (Citations omitted;  internal quotation marks omitted.)  Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.App. 275.

In the present case, the plaintiff's claims fall short of the limited circumstances under which imminent harm may be established.   The possibility that the plaintiff might be bitten by Witham's dog one day is not imminent as it is not a risk that is sufficiently immediate and limited in duration.   To the contrary, harm of this nature could occur at any time in the future, or not at all.   Accordingly, the court finds that the plaintiff has not alleged a harm that comes within the “identifiable person/imminent harm” exception to governmental immunity.³  See Evon v. Andrews, supra, 211 Conn. 508;  Doe v. Board of Education, 76 Conn.App. 296, 305–06, 819 A.2d 289 (2003).   Petras is therefore entitled to governmental immunity for her discretionary acts in the enforcement of the restraint order.

B

Count Four—Negligence as to the City

The plaintiff alleges that the city is liable pursuant to General Statutes § 52–557n for the damages caused to her by Petras' failure to enforce the restraint order.   The city responds that it is entitled to summary judgment on the ground that governmental immunity bars the plaintiff's claim of negligence.   In particular, the city argues that Petras' decisions regarding the manner in which to enforce the restraint order involved the exercise of judgment or discretion and that it is therefore shielded from liability pursuant to § 52–557n.   As with the claims asserted against Petras, the plaintiff argues that Petras' actions were not discretionary in nature and that, in the alternative, the plaintiff falls within the “identifiable person/imminent harm” exception to the doctrine of governmental immunity.   The city claims that the exception does not apply to the facts of this case.

General Statutes § 52–557n, which has abrogated the common law doctrine of governmental immunity,⁴ provides in relevant part:  “(a)(1) 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 ․ (2) Except 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, “while a municipality is generally liable for the ministerial acts of its agents, § 52–557n(a)(2)(B) explicitly shields a municipality from liability for damages ․ caused by the negligent acts or omissions which require the exercise of judgment or discretion ․” (Internal quotation marks omitted.)   Coe v. Board of Education, 301 Conn. 112, 117–18, 19 A.3d 640 (2011).   Moreover, in regard to the “identifiable person/imminent harm” exception, our Supreme Court has determined that “the identifiable person, imminent harm common-law exception to municipal employees' qualified immunity also applies in an action brought directly against municipalities pursuant to § 52–557n(a)(1)(A), regardless of whether an employee or officer of the municipality also is a named defendant.”  Grady v. Somers, supra, 294 Conn. 348.

As discussed above, the negligent acts or omissions alleged by the plaintiff in this case stem from Petras' discretionary duties and the facts of this case do not fall under the “identifiable person/imminent harm” exception to the doctrine of governmental immunity.   Consequently, the city is protected by the doctrine of governmental immunity and it cannot be found liable to the plaintiff pursuant to § 52–557n(a)(2)(B).

C

Count Five—Indemnification Under General Statutes § 7–465 as to the City

The plaintiff alleges that the city is liable under General Statutes § 7–465 for the damages caused by Petras' alleged failure to enforce the restraint order.   The city argues that § 7–465 only applies once the employee becomes obligated to pay the plaintiff based on liability under another claim.   More specifically, the city argues that because the plaintiff's claims against Petras are barred by governmental immunity, the city cannot be found liable to the plaintiff under § 7–465.   As before, the plaintiff argues that Petras' actions were not discretionary, and that, in the alternative, the facts of this case fall under an exception to governmental immunity.   The city maintains that the exception does not apply.

Section 7–465 provides, in part, that:  “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”   The purpose of the statute is to indemnify “municipal employees who, acting in the scope of their employment, become obligated to pay damages for injury to person or property.”  Sestito v. Groton, supra, 178 Conn. 527.

“A claim for indemnification against a municipality under § 7–465 is entirely dependent upon establishing liability against a municipal employee.   See Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987) (‘in a suit under § 7–465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual’);  Kostyal v. Cass, 163 Conn. 92, 97, 302 A.2d 121 (1972) (‘Whatever may be the full scope and effect of the statute, in no event may the municipality be held liable under it unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon ․ [him] by law for physical damages to person or property ․ While § 7–465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance.’  [Citation omitted;  internal quotation marks omitted.] ).”  Bonington v. Westport, 297 Conn. 297, 316, 99 A.2d 700 (2010).

As discussed above, Petras is not liable to the plaintiff under count three of the complaint because she is entitled to governmental immunity for her discretionary acts.   Accordingly, the city cannot be held liable to the plaintiff under § 7–465 because the city's liability under the indemnification statute must be predicated on a prior finding that Petras is liable to the plaintiff.

D

Count Six—Negligent Appointment and Supervision as to the City

The plaintiff alleges that the city was negligent in appointing and supervising Petras.   The city argues that its actions in hiring, firing, instructing, and training personnel are discretionary acts protected by the doctrine of governmental immunity.   The plaintiff responds that the city is statutorily mandated to appoint an animal control officer to enforce the laws relating to dogs, and that its actions in doing so are therefore ministerial in nature and not shielded by the doctrine.

As noted above, General Statutes § 52–557n(a) reads in relevant part:  “(2) Except 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.”   (Emphasis added.)   Our courts consistently have held that hiring, supervising, training and firing municipal employees are discretionary duties protected by governmental immunity.   See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179–80, 544 A.2d 1185 (1988) (noting that operation of police department, including discipline of officers, is discretionary, governmental function);  Steibitz v. Mahoney, 144 Conn. 443, 446, 134 A.2d 71 (1957) (discharge of police chief's duty to appoint, suspend or remove police officers requires the use of sound discretion).   Accordingly, the city is entitled to governmental immunity for its discretionary acts in appointing and supervising Petras.

The plaintiff argues that General Statues § 22–331, which provides that a municipality “shall” appoint a full time animal control officer to administer and enforce the laws relating to dogs, demonstrates that the city's appointment of Petras as animal control officer and the supervision of Petras in the performance of her duties are ministerial functions.   This argument is not persuasive.   As discussed above, in order to be characterized as ministerial, a particular function must be required by a charter provision, ordinance, regulation, rule, policy, or other directive that prescribes the manner in which the function is to be performed.  Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.App. 271.   Section 22–331 does not prescribe the manner in which the municipality is to hire its animal control officer other than to designate the appointing authority and provide that an animal control officer must be appointed.   Moreover, the statute does not prescribe the manner in which the animal control officer is to perform her duties or the manner in which the municipality is to supervise the animal control officer's activities.   Given the absence of any such directive, the court finds that § 22–331 does not transform the city's function of appointing and supervising its animal control officer from a discretionary function to a ministerial one.

III

CONCLUSION

For the foregoing reasons, the court finds that each of the plaintiff's claims against Petras and the city are barred by the doctrine of governmental immunity.   Accordingly, the court hereby grants the motion of Petras and the city for summary judgment as to all counts asserted against them.   Judgment shall enter for the defendants Petras and the city on the plaintiff's complaint.

SO ORDERED.

Lisa Kelly Morgan, Judge

FOOTNOTES

FN1. “This employee immunity for discretionary acts is identical to the municipality's immunity for its employees' discretionary acts under § 52–557n.”  (Internal quotation marks omitted.)  Kastancuk v. East Haven, 120 Conn.App. 282, 287, 991 A.2d 681 (2010)..  FN1. “This employee immunity for discretionary acts is identical to the municipality's immunity for its employees' discretionary acts under § 52–557n.”  (Internal quotation marks omitted.)  Kastancuk v. East Haven, 120 Conn.App. 282, 287, 991 A.2d 681 (2010).

FN2. The parties' memoranda of law do not address the second or third exceptions.   Accordingly, the court will only discuss the first exception to governmental immunity, namely, the “identifiable person/imminent harm” exception..  FN2. The parties' memoranda of law do not address the second or third exceptions.   Accordingly, the court will only discuss the first exception to governmental immunity, namely, the “identifiable person/imminent harm” exception.

FN3. Having decided that the plaintiff's negligence claim against Petras is barred by the doctrine of governmental immunity, the court need not address Petras' alternative arguments that Petras did not breach a duty of care to the plaintiff or that there is no causal connection between Petras' actions and the plaintiff's alleged injuries.   See Violano v. Fernandez, supra, 280 Conn. 335 (“[E]ven if a municipality and its official or employee owes a plaintiff a private duty, the municipality and its official or employee will be immune from liability for their negligence if the act complained of was discretionary in nature and does not fall within the three exceptions to discretionary act immunity”)..  FN3. Having decided that the plaintiff's negligence claim against Petras is barred by the doctrine of governmental immunity, the court need not address Petras' alternative arguments that Petras did not breach a duty of care to the plaintiff or that there is no causal connection between Petras' actions and the plaintiff's alleged injuries.   See Violano v. Fernandez, supra, 280 Conn. 335 (“[E]ven if a municipality and its official or employee owes a plaintiff a private duty, the municipality and its official or employee will be immune from liability for their negligence if the act complained of was discretionary in nature and does not fall within the three exceptions to discretionary act immunity”).

FN4. “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 ․ Our legislature has, however, acted to limit governmental immunity in certain circumstances.   For example ․ [t]he legislature ․ has set forth general principles of municipal liability and immunity in ․ § 52–557n ․ and subsection (a)(1)(A) of § 52–557n clearly and expressly abrogates the traditional common-law doctrine in this state 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 ․ That abrogation of common-law immunity is not, however, limitless ․” (Citations omitted;  internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 334–36, 984 A.2d 684 (2009)..  FN4. “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 ․ Our legislature has, however, acted to limit governmental immunity in certain circumstances.   For example ․ [t]he legislature ․ has set forth general principles of municipal liability and immunity in ․ § 52–557n ․ and subsection (a)(1)(A) of § 52–557n clearly and expressly abrogates the traditional common-law doctrine in this state 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 ․ That abrogation of common-law immunity is not, however, limitless ․” (Citations omitted;  internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 334–36, 984 A.2d 684 (2009).

Morgan, Lisa K., J.