Andrea Mills v. Town of Madison (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 112

I

FACTS

In this action, Andrea Mills, the plaintiff, filed a one-count complaint, sounding in negligence, on November 19, 2010, against the town of Madison, the defendant.   Therein, the plaintiff alleged, inter alia, the following.   On July 4, 2009, while dismounting a bandstand stage at a musical performance at the Madison Town Green, wherein the plaintiff played the cello, the plaintiff was caused to fall down a set of inadequately lit stairs, sustaining serious and permanent injuries as a result.   The defendant, at all relevant times, controlled the premises of Madison Town Green, including the stage from which the plaintiff fell.   The plaintiff, a business invitee of the defendant, was owed a duty of care, which was breached in the following ways.   The defendant caused the steps to be inadequately lit, knew or should have known of said inadequate lighting, failed to warn the plaintiff of said inadequate lighting, “failed to make proper and reasonable inspection of the premises,” failed to remedy or repair said inadequate lighting and “failed to adopt adequate measures” to ensure the plaintiff's safety while on the premises.

Subsequently, on October 23, 2012, the defendant filed a motion for summary judgment, which is presently before the court, accompanied by a memorandum of law and exhibits attached thereto.   On April 12, 2013, the plaintiff filed a memorandum of law in opposition to the motion and filed exhibits on April 15, 2013.   The defendant filed a reply memorandum of law on April 19, 2013.   The matter was heard at the short calendar on April 23, 2013.

II

DISCUSSIONAMotion for Summary Judgment Standard

“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 ․ 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, 10–11, 938 A.2d 576 (2008).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).

B

The Parties' Arguments

The defendant moves for summary judgment on the ground that the acts alleged in the complaint are discretionary in nature and that, therefore, the defendant is immune from the plaintiff's suit under the doctrine of governmental immunity, codified in General Statutes § 52–557n.   The plaintiff counters that she has alleged in her complaint ministerial, as opposed to discretionary, acts by the defendant and that, therefore, § 52–557n does not apply.   The plaintiff further contends that even if the court deems the complained of acts discretionary, that the identifiable person-imminent harm exception to discretionary governmental immunity applies.

C

Governmental Immunity

General Statutes § 52–557n provides in relevant part:  “(1) ․ a political subdivision of the state shall be liable for damages to person or property caused by:  (A) [t]he negligent acts or omissions of such political subdivision ․ [except for those] ․ (2) ․ (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.”

“Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases where it is apparent from the complaint ․ [that] [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 ․ Accordingly, 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.)  Bonington v. Westport, 297 Conn. 297, 307–08, 999 A.2d 700 (2010).

“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.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).”In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner ․ [T]he threshold inquiry in determining whether a duty is ministerial or discretionary is whether there exists a directive compelling a municipality or its agent to act in a prescribed manner ․” (Internal quotation marks omitted.)  Coley v. Hartford, 140 Conn.App. 315, 323 (2013).   See also Violano v. Fernandez, supra, 323 (“the plaintiffs in the present case have failed to allege that the acts or omissions complained of were ministerial in nature because ․ the plaintiffs have not alleged that [the defendant official] was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to secure the property in any prescribed manner”).   Further, the Supreme Court has specified that “what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment.”  (Internal quotation marks omitted.)  Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989) (court deemed the allegation that “the defendants failed to make reasonable and proper inspections” discretionary).

In the present case, it can be gleaned from the complaint that at the time of the plaintiff's fall, no city charter provision, ordinance, regulation, rule, policy, or any other directive, regarding procedures for the defendant to assemble, or light, the stage had been established.   Specifically, the complaint alleges that the defendant “failed to adopt adequate measures to ensure the safety of invitees from the risks as alleged.”   To further support this notion, the defendant has submitted a copy of the affidavit of William McMinn, Madison Facilities Department Supervisor, who states, therein, “at all times relevant ․ the Town of Madison had no rules, policies or procedures regarding the use of the [stage].¹  Furthermore, there were no federal, state, or local rules and regulations regarding the lighting the lighting to be provided for the [stage].”   In response, the plaintiff does not contest in her memorandum of law, nor present any evidence to contradict the notion, that no such procedures existed at the time of her fall.   Accordingly, the allegations of the complaint alone, which, not to mention, find further support from the assertions in the McMinn affidavit, make certain that this case does not satisfy the Coley threshold.   In other words, without a directive prescribing the procedures for assembling and lighting the stage, the defendant's alleged failure to adequately light said stage was, as a matter of law, necessarily an exercise of discretion.   Furthermore, the allegation that the defendant “failed to make proper and reasonable inspection of the premises,” is, under Evon, discretionary as a matter of law.

Our courts generally hold that once a municipal defendant, as the moving party in a motion for summary judgment on the ground of governmental immunity, has established that the plaintiff's claim involves purely discretionary conduct, and thus the court determines that governmental immunity applies, “it is incumbent upon the plaintiffs to allege and provide an evidentiary basis for an exception to the governmental immunity that attaches to discretionary acts.”   Bonington v. Town of Westport, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5008124 (July 27, 2009, Adams, J.), aff'd., 297 Conn. 297 (2010).   See also Tebets v. Oliver Group, LLC, Superior Court, judicial district of New London, Docket No. CV 09 5013052 (March 19, 2013, Devine, J.) (once the defendant, in moving for summary judgment, has established acts as discretionary, “in order to prevail the plaintiffs must ․ show that the circumstances of their case present an exception to governmental immunity”).   Accordingly, having determined that the plaintiff's claim in the present case involves acts purely of discretion, in order to survive the defendant's summary judgment motion, the plaintiff must provide an evidentiary basis for an exception to the governmental immunity that attaches to discretionary acts.

D

Identifiable Person–Imminent Harm Exception

While “[t]here are three exceptions to discretionary act immunity;” Violano v. Fernandez, supra, 280 Conn. 319;  the plaintiff, in her memorandum of law, has addressed only one, the identifiable person-imminent harm exception.   Further, it is apparent from the pleadings and memoranda presently before the court that this case evokes only the identifiable person-imminent harm exception.   Accordingly, this memorandum will limit its analysis to the identifiable person-imminent harm exception.

Under the identifiable person-imminent harm exception “liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.”  (Internal quotation marks omitted.)  Violano v. Fernandez, supra, 280 Conn. 320.   By its own terms, then, “[t]he imminent harm exception ․ requires ․ (1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”  (Internal quotation marks omitted.)  Id., 329.  “Failure to establish any one of the three prongs [of the identifiable person-imminent harm exception] will be fatal to a plaintiff's claim that he comes within this exception.”  Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009).   Our Supreme and Appellate Courts have consistently noted that “this exception ․ has received very limited recognition in this state.”  (Emphasis added;  internal quotation marks omitted.)  Violano v. Fernandez, supra, 329.   Relevant to the present case, the Supreme Court recognizes this exception in “action[s] brought directly against municipalities ․ regardless of whether an employee or officer of the municipality also is a named defendant.”  Grady v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (2009).

For the purposes of applying the identifiable person-imminent harm exception, plaintiffs can be identified as (1) members of “narrowly defined classes of foreseeable victims” or (2) “identifiable individuals.”  Cotto v. Board of Education, supra, 294 Conn. 274.

With respect to classes of victims, our Supreme and Appellate Courts have refused to recognize any classes of victims besides “schoolchildren attending public schools during school hours.”  (Internal quotation marks omitted.)   Id. The distinguishing contours of this class, according to the Supreme Court, are that “[schoolchildren are] intended to be the beneficiaries of particular duties of care imposed by law on school officials;  they [a]re legally required to attend school rather than being there voluntarily;  their parents [a]re thus statutorily required to relinquish their custody to those officials during those hours;  and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions.”  (Internal quotation marks omitted.)  Id. This court previously declined to recognize a class of foreseeable victims that was not comprised of schoolchildren attending public school.   See McGeorge v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 10 6011462 (March 29, 2012, Fischer, J.) (participants in tennis program held on a municipal tennis courts were not a recognizable class of victims because they were “not child[ren] present on school grounds during school hours ․ the tennis [program] was open to all male and female adult residents of Hamden and all surrounding towns [and] the plaintiff's presence at the tennis court at the time of her injury was voluntary”).

Identifiable individuals have been recognized in cases where a plaintiff's “harm occurs within a limited temporal and geographical zone, involving a temporary condition ․ In fact, 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 ․ [I]t is impossible to be an identifiable person in the absence of any corresponding imminent harm ․ Indeed, we have found imminent harm only in the clearest cases.”  (Citations omitted, internal quotation marks omitted.)  Cotto v. Board of Education, supra, 294 Conn. 276.

“[E]ven outside the public school context, whether the plaintiff was compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims.”  Grady v. Somers, supra, 294 Conn. 355.   In fact, “Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred.”  (Internal quotation marks omitted.)  Id., 356–57.

A review of the appellate authority in Connecticut reveals only two cases where the imminent harm exception was found to have applied outside the public school/schoolchildren context.   In Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979), “an on duty police officer observed a group of seven men, including the plaintiff's decedent, in a parking lot outside a bar ․ Although the officer was aware that one of the men was a known felony suspect, and that the members of the group had been drinking and were engaged in an argument that became physical, he did not intercede until after he heard gunshots fired ․ This court concluded that ․ the decedent could have been an identifiable person subject to imminent harm ․ The potential for harm was sufficiently immediate because it would last only as long as the altercation continued and was sufficiently certain in light of the fact that the police officer was observing a violent interaction involving drunkenness and a known criminal.”   (Citations omitted;  emphasis added.)  Cotto v. Board of Education, supra, 294 Conn. 276–77.   Notably, the Court has limited the precedential value of Sestito.   See Grady v. Somers, supra, 294 Conn. 353 (“Sestito appears ․ to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly ․”).

In Tryon v. North Branford, 58 Conn.App. 702, 755 A.2d 317 (2000), a case relied on by the plaintiff's opposition memorandum, “the plaintiff, a firefighter in uniform attending the State Fireman's Convention Parade, was injured by a dog owned by ․ a volunteer firefighter participating in the parade ․ Prior to the commencement of the parade, [the] dog [and his owner] were standing in the staging area for the parade when ․ the plaintiff approached the dog ․ and pulled and jerked the dog's face toward her own ․ The dog bit the plaintiff in the nose, causing significant injury ․ In concluding that the plaintiff was an identifiable person subject to imminent harm, the Appellate Court stated that she was not a member of the general public attending a parade but a firefighter in uniform in the staging area one block away from the site of the parade when the dog bit her ․ The court concluded that the harm caused ․ was not of an unspecified type that could have occurred at any time or place in the future or to anyone ․ Indeed, it was an immediate, defined moment within a confined geographical space.”   (Citations omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, supra, 294 Conn. 277–78.

In contrast, Cotto v. Board of Education, supra, 294 Conn. 265 involved a negligence action by a plaintiff against the board of education of the city of New Haven, inter alia, for injuries he sustained when he slipped on a wet bathroom floor in a public school.   The plaintiff, a youth director in a summer program held at the school, was injured when he entered the bathroom in search of two unaccounted for summer program participants and slipped on water and urine that had accumulated on the bathroom floor.   Following a trial, the court rendered judgment in the plaintiff's favor.   On appeal the Supreme Court reversed, concluding that the defendant was protected under governmental immunity.   The Court reasoned that “the plaintiff ․ was not an identifiable person subject to imminent harm because the potential for harm was neither sufficiently immediate nor sufficiently certain.   If the plaintiff was identifiable as a potential victim of a specific imminent harm, then so was every participant and supervisor in the Latino Youth program who used the bathroom.   Although it may have been foreseeable that the plaintiff would go into the bathroom to look for children, the risk of specific harm to him was not sufficiently immediate because any person using the bathroom could have slipped at any time.   Indeed, exposure to the wet floor of a bathroom used by the sixty enrolled participants in Latino Youth as well as their supervisors, not to mention the participants of the nearly twenty other programs that used the school during the summer months, was by no means limited.   In short, the risk of harm was not imminent in terms of its impact on the plaintiff as a specific identifiable person.”  (Emphasis added.)  Id., 279–80.

In the present case the following facts appear un-contradicted in the record presently before the court.   The plaintiff was one of “forty to fifty” musicians present on the stage during the night in question, according to the plaintiff's deposition.   An additional “50 or 60 high school students” performed on the stage that night as well, according to the deposition of George Hall. Further, the stage is used for “roughly eight concerts each summer,” “a tree lighting ceremony in December” and other miscellaneous events put on by local organizations, according to the deposition of Scot Erskine, Madison Department of Recreation Supervisor.

The plaintiff was not an identifiable victim subject to imminent harm.   This risk of harm in this case, that someone could fall down inadequately lit, or unevenly assembled, stage stairs, was not imminent.   Specifically, the risk of harm was not confined temporally as in Sestito, to a temporary scuffle, or, as in Tryon, to a daylong parade.   Rather, the harm in this case, which, to be sure was imposed at each event for which the stage was used throughout the year, is more akin to the risk imposed in Cotto, which spanned approximately twenty programs held at the school throughout the summer.   Moreover, the plaintiff in this case was not an identifiable victim.   Specifically, the number of potential victims was not confined as in Sestito, to a group of seven individuals, or, as in Tryon, to a company of firefighters on a single day.   Rather, the potential number of victims in this case, which, to be sure, was at least ninety on the night in question and exponentially more considering that the stage was used at least nine times throughout the year, is more akin to the quantity of victims that the Court declined to recognize in Cotto, i.e., sixty participants in one youth program as well as twenty other programs' participants that used the school during the summer.

A final important fact is that, according to her deposition testimony, the plaintiff, at the concert on the night of her fall, was performing her cello under contract, presumably as a compensated professional.   Accordingly, her presence on the stage is properly viewed as voluntary, and not compelled, a key factor that militates against recognition, as noted in Grady.

In sum, the facts of this case fail to bring it within the reach of Sestito and Tryon, the only Supreme or Appellate Court precedent for applying the identifiable person-imminent harm exception outside of the public school/schoolchildren context.   To the contrary, the factual similarities of this case and Cotto makes Cotto controlling law.   Finally, the absence of a compelled presence in this case tips the scale against recognition even further.   Therefore, the defendant's motion for summary judgment is granted.

Brian T. Fischer, J.

FOOTNOTES

FN1. The parties and affiants use various terminology, e.g., bandstand stage, Showmobile, stage via attached trailer, inter alia, when referring to the stage from which the plaintiff fell.   For present purposes, however, no meaningful distinction exists with respect to these various terms..  FN1. The parties and affiants use various terminology, e.g., bandstand stage, Showmobile, stage via attached trailer, inter alia, when referring to the stage from which the plaintiff fell.   For present purposes, however, no meaningful distinction exists with respect to these various terms.

Fischer, Brian T., J.