Debra Zucker v. Town of Westport (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (140.00)

I. Background

This case involves a complaint by the plaintiff Zucker alleging she fell at the Greens Farm Railroad Station when her foot caught on part of a raised threshold at a small building at the station as she was exiting the building to board her train.   Because of a larger than expected drop between the threshold and the outdoor platform, her fall was an awkward one causing physical injuries.   Zucker alleges negligence on the part of the defendant Town of Westport.

Westport has moved for summary judgment dismissing the complaint on the ground that it is shielded from liability under General Statutes § 52–557n(a)(2)(B) which bars suits against municipalities for personal injuries caused by “negligent acts or omissions which require the exercise of judgment or discretion.”   The plaintiff opposes summary judgment because she claims Westport's negligence involved the exercise of a ministerial duty not a discretionary one.   She also contends that Westport is liable under General Statutes § 52–577n(a)(1)(B) for “negligence in the performance of functions from which [Westport] derives a special corporate profit or pecuniary benefit.”   The arguments and briefs in support of, and opposing, the motion for summary judgment, were of very high quality.

II. 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.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   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 (1985).  “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 judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.   See generally, Mott v. Wal–Mart Stores East L.P., 139 Conn.App. 618, 624–25 (2013).

III. Discussion

After careful consideration of the several memoranda submitted and the accompanying affidavits and exhibits, the court determines that there are two material fact issues that should not, and cannot, be resolved by summary judgment.

The first is whether the duty that Zucker claims to have been violated by Westport is a ministerial duty or one involving the exercise of discretion.   There is ample case law support that making certain premises safe for invitees, as Zucker, a patron of train service clearly was, often involves discretionary choices.   See e.g. Martel v. Metropolitan District Commission, 275 Conn. 38 (2005).   That may be the case here, but the facts are neither complete, nor clear.   The raised threshold and the at least six-inch difference in height between it and the level outside the door are shown in the pictures attached to the plaintiff's papers, and are not disputed.   Whether structural changes were necessary to keep the premises safe might be a discretionary decision, but given the existence over time of these conditions, the court determines that a reasonable jury might, based on evidence presented at trial, find other actions such as painting the threshold a contrasting color or signage warning of a height differential to be a ministerial act.   Zucker's affidavit states she had no warning of the drop.

Second, there are material facts at issue as to whether the operation of the small building and a sublease of a portion of it to a coffee and newspaper stand constituted a proprietary or governmental function.   Arguably, allowing the railroad commuting public access to traditional morning fare such as coffee, water and newspapers, may be a direct or indirect benefit to the general public and a government function, but there are two sides to that question.   For instance, in Considine v. Waterbury, 279 Conn. 830 (2006), the Connecticut Supreme Court said, “the leasing of a portion of a municipal building for a substantial rent to a private party to operate a business is an act that very much resembles private enterprise, and, accordingly, consistently has been determined to be a proprietary function.”  Id. 851.   In addition, while the monthly lease payments, here a little over $200, may not be “substantial” and may be far less than the cost of operating the “railway program” as contended by Westport in an affidavit, it is not clear how much it costs Westport to operate the small building.   The making of a profit is not dispositive of whether the building was operated in a proprietary capacity.

The motion for summary judgment is denied.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.