Nilza Lopez v. City of New Haven et al. (2013)

No.MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (No. 126)

On October 10, 2010, Nilda Lopez, the plaintiff herein, slipped and fell on property owned by the defendant New Haven Board of Education (“Board”).   She subsequently sued both the Board and the City of New Haven (“City”) for damages.   The Board and the City subsequently filed the Motion For Summary Judgment now before the court claiming governmental immunity.   Lopez does not contest the Motion as to the City but she does contest it as to the Board.   For the reasons set forth below, the Motion must be granted as to both defendants.

Lopez fell in the John C. Daniels School of International Communication (“School”).   She was in the school to pick up the child of a friend.   As she walked down a hallway, she slipped on a wet floor and sustained injuries.   There is evidence that the water on the floor had accumulated because of a leak in the ceiling.

On April 26, 2011, Lopez commenced this action against the City and the Board.   Her Amended Complaint consists of a single count claiming negligence directed against the Board.   No claim is made against the City.

On October 31, 2013, the City and the Board filed the Motion For Summary Judgment now before the court.   The Motion claims governmental immunity.   It was argued on December 9, 2013.

Lopez does not oppose the Motion as to the City. That portion of the Motion is granted by agreement.

Lopez contests the Motion as to the Board.   The outcome of the Board's Motion is, however, largely determined by Durant v. Board of Education, 284 Conn. 91, 931 A.2d 859 (2007).  Durant, like the present case, involved a plaintiff (Durant was a parent) who arrived at a school to pick up a student.   As Durant exited the school, she slipped and fell due to a puddle of water on the backdoor stairs.  Id., at 96.   She conceded that the defendants' conduct was discretionary, but claimed that she fell within the “identifiable person” exception to governmental immunity.  Id., at 100.   On review, the Supreme Court held that, unlike a student, Durant was not an “identifiable person” because her presence in the school was voluntary and not compelled.  Id., at 108.   The defendants were consequently protected by the doctrine of governmental immunity.

Lopez, unlike Durant, does not concede that the Board's conduct was discretionary.   She concedes that “the act of inspection is discretionary”;  Defendant's Brief at 6;  but relies on the well-established doctrine that “in some circumstances, a ministerial duty may follow a discretionary determination.”  Mills v. The Solution, LLC, 138 Conn.App. 40, 53, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012).   She argues that once the Board knew that its school had a leak in the ceiling, it had a ministerial duty to address the problem.

Lopez claims that the authority creating this asserted ministerial duty is Conn. Gen.Stat. § 31–370, which requires employers to furnish places of employment “which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to ․ employees” and to comply with occupational safety and health standards issued by the State.   Lopez specifically relies on a regulation of the Federal Occupational Safety and Health Administration (“OSHA”) incorporated by reference in Conn. Reg. § 31–372–101–1910.  29 C.F.R. § 1910.22 provides in relevant part that:

(a) Housekeeping

(1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

(2) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition.

Carefully read, the cited regulation is inapplicable to the facts of this case.   Subparagraph (1) is concerned with workplace sanitation and has nothing to do with the presence or absence of uncontaminated water on the floor.   (Lopez has submitted no evidence that the water on which she slipped was unsanitary.)   Subparagraph (2), unlike subparagraph (1), is specifically concerned with dryness, but that subparagraph applies only to “workrooms.”   Lopez fell in a hallway rather than a workroom.   The cited regulation has a separate subsection, subsection (b), specifically directed to “aisles and passageways,” but subsection (b) is expressly concerned with “obstructions” and is not relied upon by Lopez.

Under these circumstances, the Board did not have the ministerial duty claimed by Lopez.   The general statutory duty to furnish places of employment “which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to ․ employees” is far too general to create a ministerial duty by itself, and no authority to the contrary has been cited or discovered by the court.

Lopez's claim that she was an “identifiable person” is adequately answered by Durant.   Unlike the child she came to pick up, Lopez was not legally compelled to be in the school building.   Consequently, she was not an “identifiable person.”   The Motion For Summary Judgment is granted as to both defendants.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.