Mary Manzo et al. v. Fasano, Ippolito & Lee (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 144)

FACTS

On August 15, 2007, the plaintiffs, Mary Manzo and Joann Manzo, commenced this action by service of process on the defendants, the town of North Haven (town) and its building official David Maiden.   On November 27, 2007, the plaintiffs filed an amended complaint in which they allege the following facts.¹  On December 21, 2005, Mary Manzo purchased from Alexandria Estates, LLC (Alexandria Estates), lot six of the subdivision at 38 Half Mile Road for the construction of a single-family home.   On May 5, 2006, Alexandria Estates submitted to the town's building office a building permit application for lot six, including a survey approved by the town engineer, who noted on the survey that “public utilities should be in place prior to proceeding with the house construction.”   On the application, Alexandria Estates listed itself as the contractor for construction of the home, but it did not list a contractor license number.   On May 11, 2006, Maiden issued a building permit for lot six.   It is the town's position that it will not issue a certificate of occupancy for lot six until public utilities in the subdivision are approved.   As of the date of the amended complaint, the town had not approved the public utilities.

The plaintiffs allege that in issuing the building permit the defendants were negligent and recklessly disregarded their health and safety under General Statutes § 52–557n(b)(7) and (8) ² in that, inter alia, (1) Maiden knew or should have known that Alexandria Estates was not licensed as a contractor;  (2) Alexandria Estates did not list a license number on the building permit application;  (3) issuance of the permit violated General Statutes § 20–417h ³ because Alexandria Estates did not present a certificate of registration and registration number;  and (4) at the time of issuance, public utilities had not been installed in the subdivision and approved by the town.   Had the permit not issued, the plaintiffs would not have spent a substantial sum of money to build a house that they cannot live in, sell, rent, or otherwise use.

The defendants filed an answer and special defenses on June 20, 2011, pleading governmental immunity, immunity from liability under General Statutes § 52–557n ⁴ for the discharge of a discretionary duty, and immunity from liability for failure to make an inspection under § 52–557n(b)(8).   On June 29, 2012, the plaintiffs filed a reply denying the special defenses.

On June 14, 2013, the defendants filed a motion for summary judgment and supporting memorandum.   The defendants move for summary judgment on counts eleven and twelve of the amended complaint on the ground that they are entitled to governmental immunity as a matter of law on the plaintiffs' negligence claims arising from the discretionary act of issuing a building permit.   On August 1, 2013, the defendants filed a supplemental supporting memorandum on the additional ground that they are immune from liability under § 52–557n(b)(7).   On August 8, 2013, the plaintiffs filed a memorandum in opposition.   On September 23, 2013, the defendants submitted two copies of the building permit issued by the town.   The matter was heard at short calendar on August 26, 2013.

DISCUSSION

“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.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).  “Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”  (Internal quotation marks omitted.)  Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).  “The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Callender v. Reflexite Corp., 143 Conn.App. 351, 361, 70 A.3d 1084, cert. denied, 310 Conn. 905 (2013).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[i]n 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.”   (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

A

Discretionary act immunity under § 52–557n

In their memorandum of law in support of the motion for summary judgment, the defendants argue that the issuance of a building permit was a discretionary act entitling them to governmental immunity under § 52–557n.   In response, the plaintiffs concede that the issuance of a building permit is a discretionary act but argue that the defendants nevertheless had a ministerial duty to enforce the building permit by issuing a certificate of occupancy.   Specifically, the plaintiffs argue that it was impermissible for the defendants to refuse issuance of the certificate of occupancy on the basis of the same circumstances that existed when they issued the building permit, namely, the lack of approved public utilities in the subdivision.

“[A] municipality itself was generally immune from liability for its tortious acts at common law ․ [H]owever, that governmental immunity may be abrogated by statute ․ General Statutes § 52–557n(a)(1) provides in relevant part:  ‘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 ․’ [T]his language 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.”  (Citation omitted;  internal quotation marks omitted.)  Martel v. Metropolitan District Commission, 275 Conn. 38, 47–48, 881 A.2d 194 (2005).

Nevertheless, “[m]unicipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion.”  Elliott v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998).   The Supreme Court has assumed, without deciding, that § 52–557n(a)(2)(B) codifies this common-law rule.  Martel v. Metropolitan District Commission, supra, 275 Conn. 48.  Section 52–557n(a)(2)(B) provides in relevant part:  “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.”   Accordingly, eligibility for governmental immunity turns on whether the alleged conduct was discretionary or ministerial.   Bonington v. Westport, 297 Conn. 297, 307, 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.”  (Citation omitted;  internal quotation marks omitted.)  Martel v. Metropolitan District Commission, supra, 275 Conn. 48–49.

“Whether conduct is ministerial or discretionary may be determined as a matter of law.”  Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011).  “[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.”  (Footnote omitted;  internal quotation marks omitted.)  Bonington v. Westport, supra, 297 Conn. 307–08.  “[F]or the purposes of § 52–557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.”  Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010).   An advisory comment is not a directive giving rise to a ministerial duty where it is clear that the town's employee retained discretion to follow or ignore the advice.  Ugrin v. Cheshire, 307 Conn. 364, 392, 54 A.3d 532 (2012).  “Thus, where a plaintiff fails to offer evidence of a policy or rule limiting the discretionary nature of a municipal employee's duty, a court may properly conclude that the duty is discretionary.”   Settembri v. Bristol, Superior Court, judicial district of New Haven, Docket No. CV–10–6014838–S (March 19, 2013, Frechette, J.) [55 Conn. L. Rptr. 808].

Pursuant to the Supreme Court's determination that “an inspector's decision as to whether a building falls below a standard ․ involves the exercise of his or her judgment”;  Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989);  “[t]he vast majority of Superior Court cases find that the issuance of a certificate of occupancy is a discretionary function.”   Savvidis v. Norwalk, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–08–5008565 (September 28, 2009, Pavia, J.) (collecting cases), rev'd on other grounds, 129 Conn.App. 406, 21 A.3d 842 (2011).   See also Young v. Smalley Construction, Inc., Superior Court, judicial district of New Haven, Docket No. CV–05–4004943–S (November 19, 2008, Fischer, J., J.) (rejecting plaintiffs' “attempt to draw a line between the building inspector's determination of whether their house met the requirements of the [Building] Code—which they acknowledge ‘may have involved some limited discretion’—and his act of actually issuing the certificate of occupancy, which they contend was ministerial”);  Prestia v. Zajac, Superior Court, judicial district of Hartford, Docket No. CV–370534–S, (September 15, 1992, Spada, J.) (7 Conn. L. Rptr. 354, 355) (“Before issuing a certificate of occupancy, the municipal employee must make a determination as to whether the premises conform to certain standards expressed in both state statutes and the city's housing ordinances.   This determination necessarily involves the governmental decision making process and requires an exercise of discretion”).

In the present case, it is apparent from the complaint that the defendants' refusal to issue a certificate of occupancy was discretionary as a matter of law.   The plaintiffs have not alleged a policy or rule that limited the defendants' discretion to refuse issuance of the certificate of occupancy until the town approves public utilities for the subdivision.   The only limitation on the defendants' discretion that the plaintiffs have alleged, other than a bald statement that the town “has a ministerial obligation to enforce its own permits,” is the admitted allegation that the town engineer recommended installing public utilities prior to construction of the house.   Nevertheless, the town engineer's comment was merely advisory, and Maiden was free to follow or ignore it both in issuing the building permit and in refusing to issue the certificate of occupancy.   In the absence of a policy or rule limiting the exercise of their judgment, the defendants' acts were discretionary, and they are therefore entitled to immunity under § 52–557n.⁵  Accordingly, as to the negligence claims in counts eleven and twelve, the motion for summary judgment is granted.

B

Reckless disregard for health and safety under § 52–557n(b)(7)

Next, the defendants argue in their supplemental memorandum of law in support of the motion for summary judgment that the plaintiffs “have failed to provide evidence to support liability pursuant to § 52–557n(b)[ (7) ]” that the defendants acted with reckless disregard for the plaintiffs' health and safety in issuing the building permit.   The defendants contend that it is the plaintiffs' burden to submit proof that Maiden or the town acting through an agent could be liable for reckless conduct.   The defendants argue that the plaintiffs have not met this burden because they have not produced evidence that Maiden was aware of defects in the permitting process that put him on notice of a threat to health or safety.   The defendants also argue that they undertook their evaluation and issued the building permit in accord with the state building code and were familiar with the parties involved in the permitting process, and therefore there is “no basis for any claim that [they] had knowledge of or disregarded knowledge of any violation of registration or permitting requirements.”   The plaintiffs do not respond to these arguments in their memorandum in opposition to the motion.

“The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary:  first, 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 ․ second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.”  (Citations omitted.)  Evon v. Andrews, supra, 211 Conn. 505.

Here, the only relevant exception to discretionary act immunity is the third, which is codified in § 52–557n(b).  That subsection provides in relevant part:  “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 ․ (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety ․” Thus, § 52–557n(b)(7) “provides the security of governmental immunity for the ․ negligent issuance of a certificate of occupancy unless such issuance ․ was in reckless disregard of health or safety under the circumstances ․” (Internal quotation marks omitted.)  Savvidis v. Norwalk, supra, Superior Court, Docket No. CV–08–5008565.

“Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent ․ More recently, we have described recklessness as a state of consciousness with reference to the consequences of one's acts.

It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”  (Citations omitted;  internal quotation marks omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 832–33, 836 A.2d 394 (2003).

Several judges of the Superior Court have agreed that “[i]n order to prevail on this aspect of its motion for summary judgment, the [defendant] must demonstrate that the claim ․ falls so clearly and unequivocally within the scope of the immunity established by [§ 52–557n(b)(7) ] as to entitle [it] to judgment on that claim as a matter of law.”  Duffy v. Wallingford, 49 Conn.Sup. 109, 119, 862 A.2d 890 (2004).   Although “reckless behavior is substantially more difficult to prove than mere negligence (the actor must recognize that his action will naturally or likely result in injury and the actor must disregard that risk ․ )”;  (citation omitted) Pickett v. Stebbins, Superior Court, judicial district of Tolland, Docket No. CV–9866041–S (August 18, 1999, Klaczak, J.);   to prevail on summary judgment the movant must nevertheless offer evidence to refute allegations of recklessness in the complaint.   See Vejseli v. Pasha, Superior Court, judicial district of Waterbury, Docket No. CV–02–0172369–S (September 21, 2007, Upson, J.) (denying summary judgment where “no documents were submitted ․ which tend to show the facts or knowledge upon which the defendants allegedly relied in issuing the certificate of occupancy”);  Moreino v. Kutra, Superior Court, judicial district of New London, Docket No. CV–05–4003227 (May 5, 2006, Jones, J.) (denying summary judgment where “defendants offer no evidence to identify what they knew or should have known regarding the safety of Route 214 before issuing the certificate of occupancy”).

“An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen 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.  Allstate Ins. Co. v. Barron, [269 Conn. 394, 405, 848 A.2d 1165 (2004) ];  see also Harvey v. Boehringer Ingelheim Corp., [52 Conn.App. 1, 8–9, 724 A.2d 1143 (1999) ] (where summary judgment movant's affidavit did not dispense with factual issues raised by opponents' counterclaim, burden of proof did not shift to opponents, and their failure to file supporting affidavits was not a fatal flaw to their objection);  cf.  49 C.J.S. 379, [Judgments § 266 (1997) ] (if the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings) (Citations omitted;  internal quotation marks omitted).  Rockwell v. Quintner, 96 Conn.App. 221, 229–30, 899 A.2d 738, cert.   Denied, 280 Conn. 917, 908 A.2d 538 (2006).”  Mott v. Walmart Stores East, LP, 139 Conn.App. 618, 624–25, 57 A.3d 391 (2012).

In the present case, the defendants' argument is that the plaintiffs cannot demonstrate that they acted recklessly in issuing the building permit.   The defendants impermissibly shift onto the plaintiffs the burden of establishing the existence of a genuine issue of material fact without first demonstrating the absence of one, as the party moving for summary judgment is required to do.   The defendants contend in their supplemental supporting memorandum that their familiarity with the applicants for the building permit and compliance with the building code demonstrate that they did not act recklessly, but they have not submitted any affidavits or other admissible evidence as proof of these contentions.   As they have not met their initial burden of demonstrating that no genuine issue of material fact exists with respect to their lack of reckless disregard in issuing the building permit, the defendants are not entitled to judgment as a matter of law on the plaintiffs' claim under § 52–557n(b)(7).   Accordingly, as to the claims of reckless disregard in counts eleven and twelve, the motion for summary judgment is denied.

CONCLUSION

For the foregoing reasons, as to the first issue, namely, the plaintiff's claims of negligence set forth in counts eleven and twelve, arising out of the defendants' issuance of the building permit, the defendants' motion for summary judgment is granted.   As to the second issue, namely, the plaintiff's claim that the defendants are liable pursuant to General Statutes § 52–557n(b)(7) because they acted in reckless disregard of the plaintiffs' health and safety in issuing the building permit, the defendants' motion for summary judgment is denied because the defendants failed to demonstrate an absence of a genuine issue of material fact as to their lack of reckless disregard.

Wilson, J.

FOOTNOTES

FN1. The twelve-count complaint asserts claims against a number of other defendants;  relevant here are counts eleven and twelve, sounding in negligence against the town and Maiden, respectively..  FN1. The twelve-count complaint asserts claims against a number of other defendants;  relevant here are counts eleven and twelve, sounding in negligence against the town and Maiden, respectively.

FN2. General Statutes § 52–557n(b) provides in relevant part:  “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 ․ (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety;  [or] (8) failure to make an inspection or making an inadequate or negligent inspection of any property ․ to determine whether the property complies with or violates any law or contains a hazard to health or safety ․ unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances ․”.  FN2. General Statutes § 52–557n(b) provides in relevant part:  “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 ․ (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety;  [or] (8) failure to make an inspection or making an inadequate or negligent inspection of any property ․ to determine whether the property complies with or violates any law or contains a hazard to health or safety ․ unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances ․”

FN3. General Statutes § 20–417h provides in relevant part:  “No building official shall issue a building or construction permit to a new home construction contractor unless such contractor has presented to such building official the certificate of registration and registration number of such contractor.”.  FN3. General Statutes § 20–417h provides in relevant part:  “No building official shall issue a building or construction permit to a new home construction contractor unless such contractor has presented to such building official the certificate of registration and registration number of such contractor.”

FN4. General Statutes § 52–557n(a)(2) provides in relevant part:  “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.”.  FN4. General Statutes § 52–557n(a)(2) provides in relevant part:  “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.”

FN5. The defendants submitted uncertified copies of two versions of the building permit Maiden issued on May 11, 2006.   The permit itself does not indicate any ministerial duty or limitation on the defendants' discretion to issue a certificate of occupancy.The first copy of the building permit lists Alexandria Estates as the applicant and contractor and does not include a contractor license number, and the second, labeled “revised contractor” and dated 2007, lists Skyline Construction, LLC, as contractor and includes a license number;  in other respects the two copies are identical.   Although the plaintiffs' allegation that the building permit issued in violation of General Statutes § 20–417h need not be addressed in light of their concession that issuance of the building permit was discretionary, it is noted that “[t]he fact that a claim is based upon a defendant's alleged failure to enforce a statute ․ does not, in and of itself, make enforcement of that statute a ministerial duty.”  Faulkner v. Daddona, 142 Conn.App. 113, 122, 63 A.3d 993 (2013)..  FN5. The defendants submitted uncertified copies of two versions of the building permit Maiden issued on May 11, 2006.   The permit itself does not indicate any ministerial duty or limitation on the defendants' discretion to issue a certificate of occupancy.The first copy of the building permit lists Alexandria Estates as the applicant and contractor and does not include a contractor license number, and the second, labeled “revised contractor” and dated 2007, lists Skyline Construction, LLC, as contractor and includes a license number;  in other respects the two copies are identical.   Although the plaintiffs' allegation that the building permit issued in violation of General Statutes § 20–417h need not be addressed in light of their concession that issuance of the building permit was discretionary, it is noted that “[t]he fact that a claim is based upon a defendant's alleged failure to enforce a statute ․ does not, in and of itself, make enforcement of that statute a ministerial duty.”  Faulkner v. Daddona, 142 Conn.App. 113, 122, 63 A.3d 993 (2013).

Wilson, Robin L., J.