PPA v. Town of Cromwell et al. (2013)

MEMORANDUM OF DECISION RE TOWN OF CROMWELL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This case arises from a minor child falling from the monkey bars of a playground.   On October 25, 2012, the minor plaintiff, Michael B. Mahon, by his father, Michael F. Mahon, filed an amended complaint with counts one and two directed against the Town of Cromwell (town), and the Town of Cromwell Board of Education (board).¹  In counts one and two, the plaintiff alleges the following facts.

On July 20, 2010, at approximately 11:30 a.m., the plaintiff, while playing on alternating monkey bars, fell to the ground at the Woodside Intermediate School playground (playground) located at 30 Woodside Road in Cromwell, Connecticut.   The playground is owned, operated, and maintained by the defendants.   The plaintiff was a participant in a summer program sponsored by the defendants.   The plaintiff's fall was caused by inadequate supervision, age inappropriate equipment, and insufficient mulch or material to absorb impact.   The plaintiff suffered serious and permanent injuries.

On November 5, 2012, the defendants filed a motion to strike the second count of the plaintiff's amended complaint on the ground that General Statutes § 10–241 does not provide for a cause of action.   On December 17, 2012, the court, Rittenband, J., denied the defendants' motion to strike.   On February 4, 2013, the defendants filed an answer and special defenses.   The first special defense states that the plaintiff's claim is barred by statutory immunity under General Statutes § 52–557n(a)(2)(B).  The second special defense states that the plaintiff's claim is barred by the common-law doctrine of governmental and/or qualified immunity.   The third special defense states that the plaintiff's claim in count two fails to state a claim upon which relief may be granted.   On February 7, 2013, the plaintiff filed a reply denying all allegations of the defendants' special defenses.

On March 6, 2013, the defendants filed a motion for summary judgment as to counts one and two of the plaintiff's amended complaint on the ground that no genuine issue of material fact exists.   Specifically, the defendants argue that they are entitled to judgment as a matter of law because the plaintiff's claims against the defendants are barred by governmental immunity.   The motion has been fully briefed by the parties.   The court heard oral argument at short calendar on June 3, 2013.

“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.)  Stewart v. Watertown, 303 Conn. 699, 709–10, 38 A.3d 72 (2012).  “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.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

“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).

I

GENERAL STATUTES § 10–241

Preliminarily, the plaintiff argues that the court should treat the prior decision by the court, Rittenband, J., as the law of the case and deny the defendants' motion for summary judgment as to count two.  “A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ This principle has been frequently applied to an earlier ruling during the pleading stage of a case ․” (Citation omitted, internal quotation marks omitted.)  Breen v. Phelps, 186 Conn. 86, 98, 439 A.2d 1066 (1982).   “According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)  Id., 98–99.

“Section 10–241 defines the powers of school districts, one of which is the power to sue and be sued ․ It also charge[s] the municipalities with constructing, equipping and renovating their schools, as well as partially financing the education provided ․ Neither § 10–240 nor § 10–241 specifically provides for a cause of action against the municipality for any specified conduct.”  (Citations omitted;  internal quotation marks omitted.)   Caruso v. DeMartino, Superior Court, judicial district of New Haven, Docket No. CV–95–0371907 (August 15, 1997, Silbert, J.) Therefore, § 10–241 does not provide for a specific cause of action against the board.

II

GOVERNMENTAL IMMUNITY

The defendants argue that the plaintiff's negligence claims in counts one and two under § 52–557n are barred by governmental immunity.   Specifically, the defendants assert that the town and board are entitled to governmental immunity because based on the allegations in the plaintiff's amended complaint, any duty owed by the defendants to the plaintiff at the time of the incident involved discretionary acts.   Further, the plaintiff failed to allege or identify any mandatory directives, policies, regulations, codes, ordinances or procedures which required the defendants to act in any particular manner.   As a result, the alleged duties owed to the plaintiff were discretionary as a matter of law and, therefore, the defendants are entitled to governmental immunity and summary judgment.

The plaintiff counters that the defendants' acts or omissions regarding inspection and maintenance of the playground area, as well as the supervision of children participating in the summer program, were ministerial in nature.   Alternatively, the plaintiff argues that he falls within the identifiable person-imminent harm exception to governmental immunity.

A

Standard

“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 ․ [Section] 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).

“Indeed, 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 to person or property caused by the 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 ․ 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.)  Coe v. Board of Education, 301 Conn. 112, 117–18, 19 A.3d 640 (2011).  “[Our Supreme Court] has recognized that the common-law exceptions to liability for municipal employees are codified under § 52–557n(a) ․ Therefore, the analysis is the same [for both the municipality and the employees].”  (Internal quotation marks omitted.)  Id., 121.

1. Ministerial v. Discretionary

In the present case, the plaintiff's amended complaint alleges negligence in the performance of the defendants' acts or omissions that are discretionary in nature.   The defendants submitted affidavits of Matt A. Bisceglia, superintendent of schools for the defendants, and Susan Schein, director of parks and recreation for the town, as evidence in support of their motion for summary judgment.   Bisceglia states, contrary to the allegations of the plaintiff, that there were no mandatory policies or directives in place regarding the inspection or maintenance of the playground.   Furthermore, any decision as to the allocation of resources and/or personnel regarding the playground was at the discretion of the superintendent of the board and employees of facilities maintenance.   Although Bisceglia states that someone from the board would typically check the playground area on a daily basis during the summer months, there was no requirement to check.   Also, Schein states that the parks and recreation department of the town did not have any mandatory policies or directives in place regarding the inspection or maintenance of the playground.   Finally, the town would typically have someone from the parks and recreation department check the playground area while the summer program was in session, but similar to the board, there was no requirement to check.   The defendants' evidence meets their initial burden of proving that no genuine issue of material fact exists as to the discretionary acts or omissions for inspection and maintenance of the playground.

The plaintiff counters that the statements of Bisceglia and Schein raise an issue of fact as to whether the defendants' acts or omissions for inspection and maintenance of the playground were ministerial or discretionary.   Specifically, the plaintiff argues that “[d]aily inspection of the playground certainly sounds like a policy, rule or guideline and arguably removes said act from the realm of discretionary to ministerial.”   The plaintiff's argument is not persuasive.  “In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity.”  Grignano v. Milford, 106 Conn.App. 648, 656, 943 A.2d 507 (2008).  “For example, [in Martel v. Metropolitan District Commission, 275 Conn. 38, 50–51, 881 A.2d 194 (2005) ] the Connecticut Supreme Court has held that the owner of an unpaved trail was shielded by governmental immunity from a trail user's negligence claims because the trail user had not presented any evidence demonstrating that a policy or directive existed requiring the trail owner to perform the duties alleged ․ Likewise, [in Colon v. Board of Education, 60 Conn.App. 178, 183, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) ] the Appellate Court has held that a teacher who opened a door in a manner that injured a student had performed a discretionary act because there was no policy prescribing how a teacher should open a door.”  (Citation omitted.)   Podgorski v. Pizzoferrato, Superior Court, judicial district of Hartford, Docket No. CV–07–5010288–S (October 7, 2009, Peck, J.) (48 Conn. L. Rptr. 613, 614–15).   Here, the plaintiff provided no additional evidence to contradict the affidavits of Bisceglia and Schein that no mandatory policies or directives exists.

2. Adequate Supervision

The defendants' agents, servants, and/or employees' supervision of the plaintiff was also discretionary in nature.  “[T]he scope of the duty of supervision is inherently a discretionary matter.”  Id., 615.   The plaintiff has not alleged that the defendants were obligated by any policy or directive to supervise participants in the summer program in a prescribed manner without the exercise of judgment or discretion.   The plaintiff's allegations as to the adequacy of supervision at the playground, rather than the total failure to supervise, necessarily required the exercise of judgment and is properly characterized as discretionary.   See Harris v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV–09–6004180–S (March 12, 2013, Fischer, J.).  “If the complaint alleges negligence in the performance of discretionary acts, the claims will be barred on the ground of governmental immunity unless ․ one or more of the three well established exceptions to discretionary act immunity applies under the circumstances of the case.”   Avoletta v. Torrington, 133 Conn.App. 215, 225, 34 A.3d 445 (2012).   Therefore, any negligence on the part of the defendants, as alleged in the amended complaint, are discretionary in nature and entitled to immunity unless an exception to discretionary act immunity applies.

B

Exceptions to Discretionary Act Immunity

“[Our Supreme Court has] identified three exceptions to discretionary act immunity.   Each of these exceptions represents a situation in which a public official's duty to act is [so] clear and unequivocal that the policy rationale underlying the discretionary act immunity—to encourage municipal officers to exercise judgment—has no force ․ First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure ․ Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ Third, 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 ․” (Citations omitted;  internal quotation marks omitted.)   Doe v. Petersen, 279 Conn. 607, 615–16, 903 A.2d 191 (2006).

In the present case, “[t]he only relevant exception [to this rule is in circumstances where it was] apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ [T]his exception [has been construed] to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims ․ [T]his test requires three things:  (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.   All three of these factors are intimately tied to the question of foreseeability, and all must be met for a plaintiff to overcome qualified immunity.”  (Citations omitted;  internal quotation marks omitted.)  Coe v. Board of Education, supra, 301 Conn. 118.

Our Supreme Court has noted that with respect to the identifiable victim element, “this exception applies not only to identifiable individuals but also narrowly defined identified classes of foreseeable victims ․ [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for the purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care ․ In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim ․ Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts ․ whether the relationship was of a voluntary nature ․ the seriousness of the injury threatened ․ the duration of the threat of injury ․ and whether the persons at risk had the opportunity to protect themselves from harm.”  (Internal quotation marks omitted.)  Grady v. Somers, supra, 294 Conn. 350–51.

1. Identifiable Class of Foreseeable Victims

“Thus far, the only identifiable class of foreseeable victims that [our Supreme Court has] recognized for these purposes is that of schoolchildren attending public schools during school hours ․ In determining that such schoolchildren were within such a class, [the court] focused on the following facts:  they were intended to be the beneficiaries of particular duties of care imposed by law on school officials;  they were legally required to attend school rather than being there voluntarily;  their parents were 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.”  (Citations omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 274, 984 A.2d 58 (2009).

In the present case, the plaintiff was not a foreseeable victim.   At the time of the incident, the plaintiff was not attending school and was a voluntary participant in the town's summer program.  “[W]hether 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 a member of a foreseeable class of victims.”  Grady v. Somers, supra, 294 Conn. 355.   The plaintiff was not compelled by statute nor was custodial relinquishment over the plaintiff statutorily required to attend the summer program.   The voluntary nature of the plaintiff's participation in the summer program is reinforced by Schein's statement that the summer program was open to all town residents and non-residents, and not limited to Woodside Intermediate schoolchildren.   Therefore, the plaintiff was not a member of a foreseeable class of victims and no special duty of care was owed to the plaintiff.

2. Identifiable Person/Individual

“An individual may be ‘identifiable’ for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.”  Cotto v. Board of Education, supra, 294 Conn. 274–75.  “For the purposes of the imminent harm exception ․ it is impossible to be an identifiable person in the absence of any corresponding imminent harm.”  (Internal quotation marks omitted.)  Id., 276.  “To meet the imminent harm prong, the risk must be temporary and of short duration.   The imminent harm prong is not met if the harm can occur, if at all, at some unspecified time in the future.”  Haynes v. Middletown, 142 Conn.App. 720, 729, 66 A.3d 899, cert. granted, 309 Conn. 919, 70 A.3d 1067 (2013).  “Such conditions that have been identified as ‘imminent’ include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door ․ By contrast, the potential risk of a fire is not imminent, because a fire could have occurred at any future time or not at all.”   (Citation omitted;  internal quotation marks omitted.)  Cady v. Tolland, Superior Court, judicial district of Tolland, Docket No. CV–05–5000054 (November 30, 2006, Peck, J.).

In the present case, the plaintiff was not an identifiable person subject to imminent harm because the potential for harm was neither sufficiently immediate nor sufficiently certain.   See Cotto v. Board of Education, supra, 294 Conn. 279.   If the plaintiff was identifiable as a potential victim of a specific imminent harm, then so was every participant of the summer program playing on the playground.   See id.   Although it may have been foreseeable that the plaintiff would fall from the monkey bars, the risk of specific harm to him was not sufficiently immediate because any person playing on the monkey bars could have fallen at any time.   See id.   Additionally, no temporal limitation exists because the conditions of the playground, such as the plaintiff's claim of a lack of absorbing material, complained of here are conditions that are continuous and permanent.   See Rodriguez v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV–00–0437974–S (June 25, 2004, Licari, J.).   The permanent condition of the playground and an injury similar to the plaintiff's injury could occur at any future time or not at all.  Id. Therefore, the plaintiff has not sufficiently alleged or established that he was an identifiable person.

CONCLUSION

Accordingly, for all of the foregoing reasons, the motion for summary judgment as to counts one and two is hereby granted.

Peck, J.

FOOTNOTES

FN1. For the purpose of this motion for summary judgment, reference to “the defendants” will refer only to the moving defendants, the town and the board.   The remaining five counts of the amended complaint are directed against Miracle Recreation Equipment Co., Inc., Creative Recreation, LLC, Bill Simione & Associates Inc., and Zeager Bros. Inc., who are not parties to this motion..  FN1. For the purpose of this motion for summary judgment, reference to “the defendants” will refer only to the moving defendants, the town and the board.   The remaining five counts of the amended complaint are directed against Miracle Recreation Equipment Co., Inc., Creative Recreation, LLC, Bill Simione & Associates Inc., and Zeager Bros. Inc., who are not parties to this motion.

Peck, A. Susan, J.