Dermoth Brown v. City of Hartford (2013)

MEMORANDUM OF DECISION

FACTS

The plaintiff, who resides in Manchester, CT, owns property at 3364–3366 Main Street, Hartford, CT, as well as 3372–3374 Main Street, also in Hartford.   On May 22, 2009, the City of Hartford (hereinafter also “the City”), demolished the following pieces of said properties:

1. The front porch of 3364–3366 Main Street and in the back of said premises the porch on the first floor and the stairway leading to the second floor.

2. The back porch of 3372–3374 Main Street, leaving the front porch still untouched.

It is disputed as to whether or not the City gave proper notice to the plaintiff, Dermoth Brown (hereinafter also “Brown”).

The premises at 3364–3366 Main Street on the first floor contained an office for liquor import by the plaintiff;  the second floor was a residential tenement and the third was a residential tenement.   The second and third floors were unoccupied.   At 3372–3374 Main Street the first floor held a florist shop known as Exotic Flowers owned and operated by Brown;  the second floor was utilized by a hairdresser and the third floor a residential tenement.   Once the front porch at 3364–66 Main Street was demolished, there was no way of gaining access to the building, and it was difficult to do so in the rear of the building.   At 3372–3374 Main Street the first floor porch being untouched provided access to the building.

The City claimed that the porches and the stairway which were demolished were unsafe, were in imminent danger of collapse, and, therefore, instituted the emergency measures to demolish same.   At 3364–6, the City put up a placard in the front that said “Unfit for Human Occupancy.”

It is further asserted by the defendant that under the City's Municipal Code the City has the power to demolish property if in its unilateral and sole opinion there exists actual and immediate danger of falling of the said property or of any structure thereof so as to endanger life or property.   The City believes that it was necessary to demolish the aforementioned porches and stairways because they were unsafe.   The plaintiff asserts that the properties were not in any actual or immediate danger of falling so as to endanger life or property.   The plaintiff also alleges in count seven a violation of the Fourteenth Amendment under the United States Constitution claiming further that subsequent to filing this action in 2011 the City has given directives or orders that its divisions or departments take actions against the plaintiff in a vindictive and malicious manner due to this pending action.   Specifically he claims that this was done by the City by sending its inspectors from the Department of Health and Human Services claiming that solid waste was on this property and that vegetation or bushes had to be and were taken down, that inspectors from the Anti–Blight Division of the City claimed damages to the property such as solid waste, refuse and other problems that make the premises unfit for human occupancy and in violation of the anti-blight ordinance.

The first count of the complaint is negligence under CGS Sec. 52–557n(a)(1)(A).   The second count is also in negligence pursuant to CGS Sec. 52–557n(b)(8).   The third count is in nuisance under CGS Sec. 52–557(a)(1)(c).  Counts four, five and six, claim violation of 42 USC Sec.1983, also called a Monell Claim.   The seventh count is for violation of the Fourteenth Amendment as aforesaid, that the actions taken by the defendant as to anti-blight and alleging that there was solid waste, rubbish, etc., on the property were invidious and discriminatory as applied to the plaintiff.   Finally, count eight seeks a declaratory judgment that the defendant's Municipal Code Sec. 9–54 and Sec. 116.4 of the “2005 Building Code” is unconstitutional.

The City has denied most of the claims made by the plaintiff and has filed two special defenses, the first directed to counts one and two claiming that injuries claimed by the plaintiff were the result of his own negligence and the second special defense directed to counts one, two and three is that the City is entitled to governmental immunity under CGS Sec. 52–557n.

Trial was held before this Court on June 25, July 2, 11, 16, and 17, 2013, transcripts were ordered and briefs and reply briefs have been filed.   The Court has already ruled on Count Seven finding for the defendant.

STANDARD OF REVIEW

“The plaintiffs in a civil case and defendants in their Special Defenses, sustain their burden of proof as to any essential element in their cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true.”  Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968).   This is also known as proof by a preponderance of the evidence.

In addition, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case as well as the exhibits in the case.

Also, the Court evaluates general credibility on the basis of other testimony in the case, as well as documents in evidence as to their consistency or inconsistency with other evidence.

The burden is on the plaintiffs to prove their allegations by a preponderance of evidence.   The burden is on the defendants to prove their Special Defenses by a preponderance of the evidence.

ISSUES AND FINDINGS

I. Credibility

1. This Court finds that the plaintiff, Dermoth Brown, a likeable person, was honest and credible as he saw things but his viewing of the facts in some instances may not have been in conformity with the reality of the facts.

2. Chris Cagda, an expert structural engineer, presented by the plaintiff, was credible as far as he could testify.   However, by the time he saw the premises in 2012 the demolition had taken place three years earlier.   The problem with his testimony is that his opinion as to whether or not the porches should have been demolished was that at the top of the porches where they were attached to the building itself it was structurally sound, but, that does not get into the safety of the porches both as to the floor of the porches and the columns holding them up, all of which were demolished.   Although his testimony was interesting, he was unable to focus on the real issue.   Former City Mayor Edward Perez testified on behalf of the plaintiff.   He could not testify as to the safety of the porches but believes that Brown's due process rights appeared to have been violated and that the City had moved very fast in doing the demolition and that negotiations should have been done before then.   He came across as honest and credible, but again, as to the safety of the porches and stairway, he could not really testify.

3. Ronald Mikulski has lived on the third floor of 3374 Main Street since 2004 and has done painting and landscaping for Mr. Brown.   He claimed that he had used the porches for parties of up to thirty people but that was as far back as 2008.   He was generally not a very credible witness.

4. The final witness for the plaintiff was Nora Brown, the plaintiff's wife, and she believed that the porches were safe.

Defendant's case began with testimony of Michael Gompper, a building inspector for the City of Hartford, a licensed assistant building official by the State of Connecticut.   He was not allowed to give his opinion as to the safety of the porches and stairway because he had not been disclosed as an expert witness.   He did, however, testify as to his observations.   He had never been to these properties, had been a building inspector in Vernon, Connecticut, for 28 years and joined the Hartford Building Department in June 2008.   He had not been at the subject properties before but when he arrived there on May 22, 2009, he found the properties dilapidated and when he walked on the floor of the porch at 3364 Main Street he noticed vibration of the floor boards and guardrails, posts and stair treads.   He felt that the posts were also spongy and not straight.   Defendant's Exhibit A are photographs of the area and showed the back staircase.   He walked on the stairs and felt nervous about walking on them, that the portion of the roof of the porch had collapsed and found the stairs and the stairway and railings, rotted.   He walked on the back porch and found that the floorboards went down, and made other observations which will be discussed later.   He came across as a very knowledgeable and credible witness.

5. Darlene Robertson–Childs spend 25 years in code enforcement for the City of Hartford and she is the one who put up the placard at 3364–6 Main Street.   She found a lack of gas, electricity and water and believed that the conditions were not livable.

6. Lieutenant Martin Jones of the Hartford Fire Department was involved with code enforcement and investigation.   He stated that Connecticut Natural Gas had called, that gas was going from one building to another;  the same thing with electricity.   He was the one who took the photographs that are in Exhibit A. The Court found him to be an honest and credible witness.

7. Adrien Shepard was a field supervisor for Connecticut Natural Gas and was called a mark-up man.   At 10:00 a.m., on May 22, 2009, he saw that gas was going from one building to another at the subject properties.   He didn't have much else to offer but he was, to that extent, a credible witness.

8. Trishanna Branford, involved in the Department of Environmental Health for the City of Hartford inspects premises to make sure they comply with the health code.   She was a credible witness and related her observations of overgrown vegetation, debris and scrap metal.

9. Stephen Frank from the anti-blight ordinance group and assistant to the chief executive officer inspected 3364 Main Street in June 2011 and July 2012.   He was to the extent of his knowledge, an honest and credible witness.

10. Dermoth Brown testified again in rebuttal and disputed the claim that the wires from the junction box at 3364 were live.

11. Percival McNeil had been a carpenter and done remodeling but was not presented as an expert witness.   He was somewhat credible but not completely so, he testified that he could have made cosmetic repairs instead of having the stairs and the porches demolished.

2. Were the porches and back stairs at 3364 Main and the back porch at 3372–74 Main Street safe as of May 22, 2009?

The short answer is no.

The Court was more impressed with the testimony of the building inspector, Michael Gompper, and Lt. Jones of the Hartford Fire Department who both pointed out the rotting of columns and other parts of the porches and stairway that made them unsafe.   The Court believes Mr. Gompper who testified as to the vibration of the floorboards, the guardrails, the posts and the stair treads at 3364 and 3372 Main Street.   The posts were not straight according to him, he observed the back staircases from walking on the stairs and found they were not in good condition and pointed out in defendant's Exhibit A, a photograph of the stairs that showed they were rotted.   He observed that some of the stairs and the railings were rotted.   When he walked on the floorboards of the back porch, as the floorboards went down, there were thin layers of plywood over fir board, which is soft wood, and they gave way “more than a little bit.”   Some of the floorboards were rotted, the horizontal and vertical railings were rotted, the stairway to the porch was rotted and he was concerned that it would collapse.   In the back of 3372 Main Street he said that the second floor of the porch was demolished as well as the first because it was the first floor that supported the second floor and in any case, the second floor was in a similar condition to the first floor.   He took a photograph of the front porch at 3364 Main Street without walking on it but leaning in from the door of the building because he believed it was too dangerous for him to walk there.

In sum, the Court has to give preference to the observations of people who have had experience in inspecting properties.   Mr. Gomppers said that he had inspected porches before for demolition and Lt. Jones had seen many buildings which were in insufficient shape so that they had to be demolished.   This may have been after a fire, but, nevertheless, he made frequent observations about porches and other parts of buildings.   They were not disclosed as expert witnesses, but their observations were sufficiently accurate to allow this Court, based upon their observations, to conclude that the demolition was done by the City because it had a good faith belief that the portions of the buildings to be demolished were unsafe for human use.

3. Has the plaintiff proven monetary damages?

The short answer is no.

It is the burden of the plaintiff to show the financial damages resulting from the demolition even if, in fact, it was illegal.   The Court mentioned at the beginning of the trial and still believes, that in order to show the value of the porches and the stairway there had to be expert testimony or even testimony from the owner, Mr. Brown, as to the value of the building before the demolition and the value of the building after the demolition.   He would have to show through appraisals, or even his own testimony, how the value of the building before the demolition was a certain amount and as a result of the demolition it was of a lesser amount and, he had to be or his witnesses had to be, specific as to the amounts.

He introduced the tax assessors cards showing that over a period of years the value of the property increased.   But that does not show the value of the property once the demolition occurred such as evidence introduced from the assessor that the value was less than what it had been after the demolition.   This was not in evidence.   The only possible evidence which was introduced was plaintiff's Exhibit 4 which is a contractor who did not testify and was not subject to cross examination by the defendant or subject to questions from this Court, that the cost of new porches would have been $99,000, which is not far from the present value of the entire buildings.   The problem is that the plaintiff is not entitled to the cost of new porches and a stairway.   The porches and the stairway were used, and he is entitled to the value of used porches.   For example, if a 2008 automobile suffered total damage in an automobile accident, the owner could not collect the value of a 2013 automobile of the same type.   He would have to realize as damages what the value of the used automobile was at the time of the accident.

There is no credible evidence before this Court as to the value of the porches or buildings before the demolition and after the demolition.   Further, the Court finds that the plaintiff has not sustained his burden of proof as to loss of income via rental of the real properties subject in this action nor the construction of the new porches, nor loss of business income from the florist business.

Accordingly, as to counts one and two claiming negligence and count three claiming nuisance, judgment is entered for the defendant.¹

4. Count Four (42 USC Section 1983;  Monell Claim Procedural Due Process)

“A municipality may not be held liable for the acts of its employees that violate the civil rights of another under a theory of respondeat superior.”   Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978).   Further, “The town's liability is also contingent on the judgment against its employee ․ under General Statutes § 7–465(a).   The town shall pay on behalf of any employee of a municipality all sums which employee becomes obligated to pay by reason of the liability imposed upon such employee by law or for damages awarded for infringement of any person's civil rights ․ If the employee, at the time of the occurrence ․ was acting in the performance of his duties and within the scope of his employment, and if such incurrence ․ was not the result of any wilful or wanton act of such employee ․” See Ivimey v. Watertown, 30 Conn.App. 742, 752 (1993).

In cases of emergency summary administrative action is permitted.   Garra Realty, Inc. v. Jetmore, 200 Conn. 151, 162 (1986).  “In these circumstances, the plaintiff's due process rights are adequately protected by its access to judicial relief.”   There was no notice required under the City of Hartford ordinance or the state building code even though Mr. Gompper and Lieutenant Jones tried to contact the plaintiff on May 22, 2009 without success.   Under the emergency circumstances the plaintiff was not entitled to a pre-deprivation hearing.   Although he is entitled to a post-deprivation hearing, the post-deprivation hearing is occurring through the instant case.²  There was no violation of procedural due process.   Accordingly, judgment on Count Four is entered in favor of the City.

5. Count Five (42 U.S.C. Section 1983—Monell Claim;  Substantive Due Process

“․ a claim of a violation of substantive due process must allege a level of executive abuse of power ․ which shocks the conscience.”  ATC Partnership v. Town of Windham, 251 Conn. 597, 608 (1999).   Under the State Building Code which was adopted by the City of Hartford, a building official can make a determination that a property needs to be demolished.   The plaintiff has failed to sustain his burden of demonstrating that the conduct under all the circumstances by the City through its employees shocks the conscience.   Accordingly, judgment is entered for the City on Count Five.

6. Count Six (42 U.S.C. Section 1993;  Monell Claim)

The plaintiff has not demonstrated that the City violated procedural or substantive due process in Counts Four and Five. Therefore, there was no constitutional violation.   Further, the plaintiff has not demonstrated that there was an official policy of demolishing porches.   Mr. Gompper made a discretionary decision based on his experience to remove what he encountered as defective and unsafe porches and stairs.   He followed the City's ordinance and the State Building Code and that was enough.   Accordingly, judgment is entered for the City on Count Six.

7. Count Seven—Violation of the Fourteenth Amendment of the U.S. Constitution Under a Class of One

The Court has already ruled that there was no violation of the Fourteenth Amendment under this count by a memorandum of decision.

Contrary to plaintiff's claim, there has been and is a post-deprivation hearing on the taking of the property by demolishing the porches and the stairs.   Further, there is no evidence that any of the officials of the city acted in bad faith.   In sum, the plaintiff has not met his burden of proof of showing bad faith, malice or discrimination against the plaintiff on the part of any city employee or the city itself.   Accordingly, the plaintiff has failed to sustain his burden of proof that the actions of the defendant City have violated his equal protection.

Judgment is entered for the defendant City on Count Eight.

8. Damages

For the reasons aforesaid, the plaintiff has failed to sustain his burden of showing damages.   Therefore, there can be no recovery by the plaintiff.

9. Municipal Immunity

The statutes cited by the plaintiff provide that in cases of negligence or nuisance, a municipality is immune from liability if the actions of the City were discretionary in nature.   The decision as to whether or not to conduct the demolition was an act of discretion on the part of city officials.   There is an exception to an action being discretionary, and that is if a victim is an identifiable person subject to imminent harm.   The Court has researched cases in Connecticut and can find no case in which imminent harm is property damage.   Mr. Brown is certainly an identifiable person, but there is a question whether the harm was imminent, but certainly, the harm was property damage and not personal injury.   All of the relevant Connecticut Supreme and Appellate Court cases deal with personal injury sustained as a result of a discretionary act.³  Further, most of them involve failures to act on behalf of the municipality and the Court can find no Supreme or Appellate Court cases which allow imminent harm to a victim in the case such as this where it is the action taken by the municipality rather than a failure to act that is the crux of the matter.

Accordingly, this Court finds that there is governmental immunity in favor of the City on Counts 1, 2 and 3.

CONCLUSION

Accordingly, judgment is entered for the defendant on all counts.

Rittenband, JTR

FOOTNOTES

FN1. As for nuisance, the Court finds the plaintiff has not sustained his burden of proof on Count Three, paragraphs 21b, c, d and paragraph 22..  FN1. As for nuisance, the Court finds the plaintiff has not sustained his burden of proof on Count Three, paragraphs 21b, c, d and paragraph 22.

FN2. In Parratt v. Taylor, 451 U.S. 527 (1981), the case holds that “․ the lack of a pre-deprivation process will not offend the constitutional guarantee of due process, provided there is sufficient post-deprivation process.”.  FN2. In Parratt v. Taylor, 451 U.S. 527 (1981), the case holds that “․ the lack of a pre-deprivation process will not offend the constitutional guarantee of due process, provided there is sufficient post-deprivation process.”

FN3. See Silverstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262 (2012);  Evon v. Andrews, 211 Conn. 501 (1989);  and Doe v. Petersen, 279 Conn. 607 (2006)..  FN3. See Silverstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262 (2012);  Evon v. Andrews, 211 Conn. 501 (1989);  and Doe v. Petersen, 279 Conn. 607 (2006).

Rittenband, Richard M., J.T.R.