Conrad Bouchard v. Town of Deep River (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The defendant, Town of Deep River (Town), has moved for summary judgment on the grounds that the claims of the plaintiff, Conrad Bouchard, against the Town are barred by the doctrine of governmental immunity.

Factual and Procedural Background

In both counts of the complaint dated May 10, 2012 (the “Complaint”) the plaintiff alleges that his injuries were caused by the negligence and carelessness of the Town in that it:

a) failed to install a gate, guardrail or other protective measures to prevent persons walking along the edge of the dumpster from falling in, even though it knew or should have known that such persons would be close to the edge when dumping material into the dumpster and that they would often be carrying and throwing waste, thereby increasing the likelihood that one might lose one's balance;

b) failed to install a gate, guardrail or other protective measure to prevent persons walking along the edge of the dumpster from falling in, even though it knew of should have known that the area around the dumpster was often lettered with waste and other walking hazards, thereby increasing the likelihood that one might lose one's balance;

c) violated Occupational Safety Health Administration (OSHA) Regulation 1910.23(c)(1), which requires that every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing on all open sides except where there is an entrance to a ramp, stairway, or fixed ladder;

d) failed to warn individuals of the dangerous condition upon said premises;

e) failed to inspect said premises to determine if it was dangerous for invitees;

f) failed to inspect said premises in a reasonably safe condition, including waste and other materials which were not left in the dumpster but rather on the ground approaching the dumpster's edge;

g) failed to provide caution signage or other visible warning to alert invitees as they approached the edge of the dumpster, even though they knew or should have known that persons would be in close proximity to the edge of the dumpster;  and

h) one or more of the employees, agents and/or servants of the defendant caused, allowed, and/or permitted the plaintiff to remain in the area of the dangerous condition even though the imminent harm to the plaintiff was apparent to said employees, agents and/or servants,

Complaint, Counts One and Two, ¶ 6.

On June 29, 2011 the plaintiff was on the premises of the Town Transfer Station located at 220 Winthrop Road in Deep River, Connecticut.   Complaint ¶ 1, 4. He was walking near the edge of the dumpster when he was caused to trip and fall into the dumpster and sustain injuries.   Complaint ¶ 8.

At the plaintiff's deposition he testified that on the morning of the accident he arrived at the Town Transfer Station around 10:30 or 11:00 a.m., drove to the demolition dumpster and parked his car.   He made several trips to the dumpster carrying scrap lumber.   After discarding all his scrap lumber, he returned to the dumpster to see if there was anything in it that he could salvage.   As he walked alongside the edge of the dumpster, he fell into it.   The plaintiff testified that he did not know what caused him to fall into the dumpster, but he did not trip over debris because the area around the dumpster was clear.   No one from the Town saw him fall into the dumpster.

The Town supported its motion for summary judgment with the deposition transcript of the plaintiff.   It also appended the affidavit of Richard Smith, First Selectman of the Town. Mr. Smith averred that there had never been any complaints regarding injuries sustained at the Transfer Station other than the plaintiff's complaint.   No employee of the Town witnessed the plaintiff's fall.   He further averred that there are no written policies or directives that mandate or prescribe the manner or frequency of inspection and/or maintenance of the Transfer Station or the area around the dumpsters.   There are no policies or procedures with respect to erecting signs, providing warnings, installing protective measure and removing potential hazards around the dumpster.   Decisions regarding the maintenance and inspection of the Transfer Station and those regarding providing warnings erecting signs, installing protective measures and removing potential hazards around the dumpster are made based on the judgment and discretion of the Town employees who have that responsibility as part of their employment.   No one reported to any Town employees that the Transfer Station and/or the area around the dumpster that is the subject of the plaintiff's complaint was in a dangerous condition prior to the plaintiff's accident.

The plaintiff appended the deposition transcript of Richard Smith to his Objection to the Motion for Summary Judgment.   Smith testified that he was the person in the Town most responsible for ensuring OSHA regulations were followed at the Transfer Station.   He also testified that he had been compelled by OSHA to comply with its regulations, which included remedying unsafe conditions and providing OSHA with photographic evidence that the regulations were complied with.   There was no evidence presented that those unsafe conditions included the dumpster where the plaintiff fell.

The defendant has submitted a second affidavit of Richard Smith in connection with its Reply to the plaintiff's Objection.   In that affidavit Smith avers that:

5.  I was the First Selectman for the Town of Deep River on or about June 29, 2011, and I remain so employed to this day.

6. While in my position as First Selectman, the Connecticut Department of Labor Division of Occupational Safety and Health inspected the Transfer Station.   The Connecticut Department of Labor Division did not require guardrails to be erected in front of the dumpster where the plaintiff fell.

Discussion of the Law and Ruling

“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 ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact which will make a difference in the result of the case ․ Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary.”  (Citations omitted;  internal quotation marks omitted.)  H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558–60, 783 A.2d 993 (2001).  Dipietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116 (2012).

Summary judgment is “designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   The summary judgment procedure is well suited for resolving Statute of Limitations issues.   See, e.g., Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 385, 635 A.2d 1232, cert. denied, 228 Conn. 928 (1994);  Stein v. Katz, 213 Conn. 282, 289, 567 1183 (1989);  Barnes v. Schlein, 192 Conn. 732, 739, 473 A.2d 1221 (1984);  Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984).

The doctrine of governmental immunity shields a municipality and its officials from liability for an employee's negligent performance of an official duty when that duty is discretionary, rather than ministerial, in nature.  Shore v. Stonington, 187 Conn. 147, 152, 444 A.2d 1379 (1982).

Connecticut General Statutes § 52–557n, provides, in pertinent 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. (b) 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:  ․ (6) the act or omission of someone other than an employee, officer or agent of the political subdivision;

A ministerial act is one which is to be performed in a prescribed manner without the exercise of judgment or discretion.  Tango v. New Haven, 173 Conn. 203, 205, 377 A.2d 284 (1977);  Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977).   A discretionary act is one performed for the direct benefit of the public and involves the exercise of discretion and judgment in its execution.  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1988).

In Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), the Supreme Court addressed the difference between ministerial and discretionary acts.   The plaintiff's decedents were killed in a fire that broke out in a multifamily residence.   The fifth count of the complaint was directed against the city of Waterbury and various city officials.   The plaintiffs alleged that the city and its officers had been negligent in failing properly to enforce various statutes, regulations and codes concerning the maintenance of rental dwellings.   The defendants moved to strike that count on the grounds that the statutes and regulations alleged did not impose a duty on the city of Waterbury or its agents and that any duty to enforce those statutes and regulations was discretionary.   The trial court granted the defendants' motion.   On appeal, the plaintiffs claimed that the allegations against the city of Waterbury involved either acts that were (1) ministerial in nature, or (2) discretionary acts that subjected an identifiable person to imminent harm.

The Court rejected the plaintiffs' claim that the defendants' acts were ministerial, stating:

The plaintiffs do not allege that the defendants failed to inspect the dwelling.   They allege that the defendants failed “to make reasonable and proper inspections” of the premises.   They further claim that the defendants failed “to conduct adequate inspections.”   While an inspection by definition involves “a checking or testing of an individual against established standards”;  Webster, Ninth New Collegiate Dictionary;  what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment.   Further, no matter how objective the standard, an inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment.   It is axiomatic that “ministerial acts [are those that] are performed in a prescribed manner without the exercise of judgment ․” Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982).   Since the acts alleged in the fifth count required in some measure the exercise of judgment by a municipal employee, we conclude that they were not ministerial and therefore the defendants were immune from liability.

211 Conn. at 506–07.   Emphasis added.

Although the determination of whether official acts or omissions are ministerial or discretionary can be a question of fact for the jury, where the nature of the conduct alleged in the complaint is dispositive as to whether an act is discretionary or ministerial, governmental immunity may be decided as a matter of law.  Lombard v. Edward J. Peters, Jr. P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).   Where the plaintiff has clearly set forth the conduct that is claimed to be actionable, the characterization of such conduct as ministerial or discretionary can be decided by the court as a matter of law.   Evon v. Andrews, supra, at 504–05.

While statutes, regulations or policies can create ministerial duties, they are almost invariably held to create discretionary duties when they relate to police, fire or other public safety services.  Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989);  Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979);  Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982);  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179–80, 544 A.2d 1185 (1988);  Brock–Hall Dairy v. New Haven, 122 Conn. 321, 189 A. 182 (1937);  Vezina v. Hartford, 106 Conn. 378, 380, 138 A. 145 (1927).

29 C.F.R. § 1910.23(c)(1) Guarding floor and wall openings and holes, provides:

(c) Protection of open-sided floors, platforms, and runways.  (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.

The plaintiff argues that the foregoing OSHA regulation creates a ministerial duty.   He does that without providing any evidence that the regulation applies to the dumpster at issue.   The defendant, however, has provided a supplemental affidavit from Richard Smith in which he avers that while Smith has served as First Selectman of the Town, the Connecticut Department of Labor Division of OSHA inspected the Transfer Station and did not require guardrails to be erected in front of the dumpster where the plaintiff fell.

Even if there was evidence that the OSHA regulation at issue applied to the dumpster, the existence of a regulation does not transform a discretionary legal duty to inspect and/or maintain a pubic premises in a reasonably safe condition into a ministerial duty.

A superior court has recently considered the issue of whether and when regulations create a ministerial as opposed to a discretionary duty.   Brousseau v. Town of Farmington, 2013 WL 1189358 (Sheridan, J., Feb. 25, 2013) [55 Conn. L. Rptr. 633].   In Brousseau the plaintiff fell as she descended from the risers in a school auditorium.   The plaintiff alleged that the Town of Farmington was negligent in that it failed to inspect, maintain and repair the hazardous condition of the risers.   In opposition to the Town's claim of governmental immunity, the plaintiff argued that a ministerial duty arose from a policy or directive that required the defendants to perform their duties of inspection and maintenance of the risers in a prescribed manner without the exercise of judgment or discretion.   She further argued that the existence of OSHA regulations transformed the defendants' discretionary legal duty to inspect and maintain the school premises in a reasonably safe condition into a ministerial duty.   The court rejected the plaintiff's argument and granted summary judgment for the defendants, stating:

A municipality's discretionary duty under the common law to maintain its property in a reasonably safe condition is not rendered ministerial by the mere fact that it is subject to regulations that impose standards for workplace health and safety.   The mere existence of an arguably applicable written policy or statute does not automatically make a duty ministerial.  Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989).

The regulations which have been cited do not prescribe the timing, method or manner in which the defendant is to perform reasonable and proper inspection and maintenance activities.   Rather, they set general standards for what is to be considered a safe and healthy workplace, with no guidance or direction as to how those standards are to be met in a given situation.   For example, what exactly constitutes a “clean and orderly condition” is left in the first instance to the discretion of the defendant/employer, and ultimately, to the discretion of OSHA enforcement authorities.   In a similar fashion, what constitutes a “free and unobstructed” exit route or an exit route that is “not substantially level” seems to be a determination made on a case-by-case basis.   On their face, these are not mandatory directives describing a ministerial function.

At a minimum, a policy or directive or procedure creating or describing a “ministerial” function should mandate that, in response to a specified state of facts, the responsible party must strictly obey by responding only in a particular manner or by generating only a required result, without the exercise of any personal judgment.   Compare, Soderlund v. Merrigan, 110 Conn.App. 389, 399–400, 955 A.2d 107 (2008) (on question of whether obeying a court order to vacate an arrest warrant was a discretionary or ministerial duty, an order “to vacate an arrest warrant is mandatory.   It does not matter how the order is vacated, but, simply put, it must be vacated”).   Where the alleged policy or procedure does not unambiguously require a specific response or result, it does not alter the discretionary nature of the task.   See Segreto v. Bristol, supra, 71 Conn.App. 857–58 (where city employees not ordered to maintain premises in any particular manner, duty to maintain remained discretionary);  Bonington v. Town of Westport, 297 Conn. 297, 311–12, 999 A.2d 700 (2010) (determinations as to whether property condition conforms to regulations and codes are of a discretionary nature).

Id. at *3.

As the acts of negligence alleged in the complaint all involve discretionary duties, the plaintiff's claims are barred by the doctrine of governmental immunity.   The immunity from liability for the performance of discretionary acts by a municipal employee is subject to exceptions or circumstances under which liability may attach even though the act was discretionary.   The only exception which could apply in this case is where 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;  see, e.g., Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979).   That exception has been narrowly applied.  Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989);  Purzycki v. Fairfield, 44 Conn.App. 359, 689 A.2d 504 (1997).

In Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), a police officer stopped a speeding automobile.   Despite evidence of intoxication, the officer did not arrest the driver.   Later that evening, the driver struck a vehicle being operated by the plaintiff's decedent, who died from the injuries she sustained in the collision.   The Court upheld the trial court's conclusion that the plaintiff had failed to show that the plaintiff's decedent was an identifiable person subject to imminent harm.   The plaintiff has not argued that the identifiable victim exception applies here.

For the foregoing reasons, summary judgment may enter on Count Two of the complaint because the allegations of that count are barred by the doctrine of governmental immunity.

The defendant has also moved for summary judgment as to Count One. The plaintiff has not opposed that portion of the Motion for Summary Judgment.   After that motion was filed, the plaintiff moved to amend the complaint to remove Count One. The current complaint consists of only one count, which was previously Count Two. Therefore, summary judgment enters on the entire complaint.

By the Court,

Aurigemma, J.

Aurigemma, Julia L., J.