Greyson Dimiceli v. Town of Cheshire (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 140)

FACTS

This action was commenced by service of writ, summons, and complaint on April 26, 2011.   The plaintiff filed a two-count complaint on April 29, 2011.   The plaintiff filed an amended complaint as of right on May 19, 2011.   The plaintiff subsequently filed a request to amend his complaint, together with an amended complaint (second amended complaint), on October 16, 2013.   The second amended complaint is the operative complaint for purposes of this motion.   The defendant filed an answer to the second amended complaint and asserted a number of special defenses on December 5, 2013.

This case arises out of personal injuries allegedly sustained by the plaintiff, Grayson DiMiceli, in Cheshire, Connecticut.   The plaintiff alleges the following in the second amended complaint.   The plaintiff was a minor at all relevant times and brings this action, through his parents, Sabrina DiMiceli and Eric DiMiceli.   On June 13, 2009, the plaintiff was a public invitee at the Quinnipiac Recreation Area, a public park owned, controlled, and operated by the town of Cheshire (the park).   The plaintiff was playing with another child on a see-saw in the park.   Suddenly and without warning, the other child vacated the other seat, causing the plaintiff's seat to crash to the ground.   Consequently, the plaintiff sustained injuries, including spinal compression fractures.

The plaintiff alleges in count one that his injuries were negligently caused by the defendant's failure to properly maintain the subject see-saw.   The plaintiff alleges in count two that the see-saw constituted a public nuisance.   Finally, the plaintiff's parents seek to recover medical expenses incurred in count three.   The defendant filed its motion for summary judgment on May 20, 2013.   The plaintiff objected to the plaintiff's motion on November 4, 2013, and subsequently supplemented his objection on November 12, 2013, with a brief memorandum and a portion of the transcript of the deposition of Benjamin Hererra, the second child on the see-saw on the date of the plaintiff's accident.   The defendant filed a supplemental brief on December 17, 2013, together with exhibits.¹  The matter was heard at the short calendar on December 23, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

“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.”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “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.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “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., supra, 11.

The defendant argues it is entitled to summary judgment on the plaintiff's negligence count pursuant to the doctrine of governmental immunity.   The defendant argues that maintenance of the park and everything in it, including the see-saw the plaintiff allegedly injured himself on, is a discretionary function.   Because governmental immunity shields municipalities from negligent discretionary acts, and because maintenance of the park is and was a discretionary matter, the defendant argues that judgment should render in its favor as a matter of law.   The defendant also argues that it is entitled to summary judgment on the plaintiff's parents' claims for medical expenses.   The defendant essentially argues that because the plaintiff's parents' claim is derivative of the plaintiff's, and because the plaintiff's claim is barred, the plaintiff's parents' claim is likewise barred.   Finally, in its supplemental memorandum, the defendant argues that the plaintiff's public nuisance claim is barred by the statute of limitations and does not relate back to the plaintiff's negligence claim.

The plaintiff argues that the defendant had a ministerial duty to maintain the park and the seesaw, and that its failure to do so defeats its governmental immunity with respect to the negligence count.²  The plaintiff points to three sources that allegedly imposed a ministerial duty on the defendant:  the United States Consumer Product Safety Commission's Handbook for Public Playground Safety (CPSC standards);  Chapter 11, Article I, Section 11–1 of the Cheshire Code of Ordinances (the Ordinance);  and internal standards established by the Cheshire Parks and Recreation Department.   The plaintiff also argues that the defendant's intentional installation of the see-saw constituted a nuisance, defeating the defendant's governmental immunity.

I

NEGLIGENCE

“A municipality's potential liability for its tortious acts is limited by the common law principle of governmental immunity.”  Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991).  “[A] municipality itself was generally immune from liability for its tortious acts at common law ․ We have also recognized, however, that governmental immunity may be abrogated by statute.”  (Internal quotation marks omitted.)  Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003).   The legislature has deviated from the common law with regard to the immunity of municipal corporations for negligent acts through General Statutes § 52–557n.   Section § 52–557n(a)(1)(A) 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 ․ 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 ․” The language of General Statutes § 52–557n(a)(1) “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.”  (Internal quotation marks omitted.)  Martel v. Metropolitan District Commission, 275 Conn. 38, 47–48, 881 A.2d 194 (2005).

The legislature's abrogation of common-law governmental immunity with regard to negligence was only partial.   Municipalities are still entitled to immunity pursuant to General Statutes § 52–557n(a)(2)(B), which 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 ․ 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.”   Put differently, municipalities enjoy immunity for its discretionary acts.  “The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees ․ Governmental immunity in such cases depends on whether the act in question involves a ministerial or discretionary act.”  (Internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 272 n.8., 984 A.2d 58 (2009).

Acts which are ministerial, however, are not entitled to immunity.   “Generally, liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act.”   (Internal quotation marks omitted.)  Kolaniak v. Board of Education, 28 Conn.App. 277, 281, 610 A.2d 193 (1992).  “The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  Durrant v. Board of Education, 284 Conn. 91, 95 n.4, 931 A.2d 859 (2007).   In contrast, “[t]he hallmark of a discretionary act is that it requires the exercise of judgment.”  (Internal quotation marks omitted.)  Martel v. Metropolitan District Commission, supra, 275 Conn. 48–49.

Ministerial duties are created in a number of ways and may be expressed in a number of sources.  “Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive.”  Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012).  “In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner ․ [T]he threshold inquiry in determining whether a duty is ministerial or discretionary is whether there exists a directive compelling a municipality or its agent to act in a prescribed manner ․” (Citation omitted;  internal quotation marks omitted.)  Coley v. Hartford, 140 Conn.App. 315, 323, 59 A.3d 811 (2013).   “[T]he determination of whether the act complained of constituted a ministerial or governmental act is a matter of law for the court to decide.”  Redfearn v. Ennis, 28 Conn.App. 398, 401, 610 A.2d 1338 (1992).  “Connecticut appellate courts have ․ approved the practice of deciding the issue of governmental immunity as a matter of law.”  Kolaniak v. Board of Education, supra, 28 Conn.App. 279.

The plaintiff alleges that maintenance of the see-saw was a ministerial duty and, therefore, failure to maintain the see-saw defeats governmental immunity and exposes the defendant to liability for negligence.   As stated above, the plaintiff argues that this allegedly ministerial duty is derived from three sources:  the CPSC standards, the Ordinance, and the internal standards of the Parks and Recreation Department.

With respect to the CPSC standards, the plaintiff points to General Statutes § 21a–12a.  Section 21a–12a provides in relevant part:  “The Commissioner of Consumer Protection shall adopt regulations ․ to develop standards for playground equipment ․ Such regulations shall be equivalent to the standards established by the Handbook for Public Playground Safety produced by the United States Product Safety Commission.”   The plaintiff argues that this statute imposes a ministerial duty on the defendant to maintain the see-saw in accord with the industry standards set forth by CPSC, that the defendant failed to do so, and that the defendant is therefore liable in negligence.

Section 21a–12a instructs the Commissioner of Consumer Protection to adopt regulations.  Regs., Conn. State Agencies § 21a–12a–2 provides:  “The guidelines for playground equipment adopted by the United States Consumer Product Safety Commission in its Handbook for Public Playground Safety are adopted, and herein incorporated by reference, as voluntary guidelines for playground equipment in this state.”  (Emphasis added.)   Contrary to the plaintiff's argument, the CPSC standards do not impose binding ministerial duties on the defendant, but instead are available to municipalities for guidance.   Accordingly, the CPSC standards do not and did not create ministerial duties on the defendant.

With respect to the Ordinance, the plaintiff argues that a sentence in Chapter 11, Article I, Section 11–1 ³ of the Ordinance creates a ministerial duty.   This provision states “[t]he town's parks and recreational facilities shall be maintained for the residents of Cheshire and guests in their company.”   The plaintiff essentially argues that the use of the imperative “shall” indicates that the Ordinance requires the defendant to maintain the park and the see-saw.   The court disagrees with the plaintiff's interpretation.   As stated above, in order for a duty to be considered ministerial, it must be “performed in a prescribed manner without the exercise of judgment or discretion.”   (Emphasis added.)  Durrant v. Board of Education, supra, 284 Conn. 95 n.4. The Ordinance does not prescribe any particular manner of performance, it simply states that recreational facilities shall be maintained.

Courts considering the impact of the use of the imperative “shall” have held that it does not create a ministerial duty.   The plaintiff in Hooks v. Pride of Connecticut Lodge, Superior Court, judicial district of New Britain, Docket No. CV–11–6009212–S (December 19, 2012, Shortall, J.) argued that an ordinance of the city of New Haven imposed a ministerial duty on city police officers.   The ordinance stated, inter alia, the following:  “The policeman shall preserve public order, enforce all state laws and city ordinances, and ensure that all exits remain unlocked and all fire escapes are ready for use during the time of the public performance or gathering.”   The court disagreed with the plaintiff's characterization of this ordinance as “ministerial,” reasoning that “[h]ow exactly an officer ‘shall preserve public order’ and ‘enforce all state laws and city ordinances' necessarily invokes discretion.”  Hooks v. Pride of Connecticut Lodge, supra, Superior Court, Docket No. CV–11–6009212–S.   That ordinance, like the Ordinance in the present case, contained the imperative, but did not prescribe how the municipal duty was to be performed.   Absent such prescription, the Ordinance does not and did not impose a ministerial duty of the defendant.

With respect finally to the internal standards of the Parks and Recreation Department, the plaintiff points to the deposition testimony of Robert Ceccolini, Director of the Cheshire Parks and Recreation Department.⁴  The plaintiff argues that Ceccolini's testimony undercuts the defendant's contention that maintenance of the see-saw was a discretionary function.   Specifically, the plaintiff argues that Ceccolini described a number of maintenance and inspection standards that employees of the Parks and Recreation Department were instructed to follow.   These instructions, the plaintiff argues, are in the nature of directives imposing a ministerial duty, vitiating the defendant's governmental immunity and defeating the defendant's motion for summary judgment.

Ceccolini testified that the employees of the Parks and Recreation Department are to “maintain the parks, that's part of their job, as they go through their day.”   Ceccolini Dep. (page 52;  lines 4–6).   In response to a question asking if there are “checklists or guidelines that your employees ․ are given ․ to give them an idea of the sort of things they should be looking for,” Ceccolini answered “[t]here are no checklists, no.”   Ceccolini Dep. (page 52;  lines 19–23).   Ceccolini admitted that “[w]ood chips are replaced on a fairly regular basis ․” Ceccolini Dep. (page 69;  lines 17–21).   However, he augmented that answer by stating that the Department of Parks and Recreation adds wood chips “[e]very year or so, every year or two we add new wood chips on an as-needed basis.”  (Emphasis added.)   Ceccolini Dep. (page 70;  lines 8–9).

Based on this testimony, whatever internal standards the Parks and Recreation Department had were discretionary in nature.   This is not a situation like that in Kolaniak v. Board of Education, supra, 28 Conn.App. 277, where maintenance standards arose to the level of ministerial duties.   In Kolaniak, the plaintiff slipped and fell on an accumulation of snow or ice on a walkway at Central High School in Bridgeport.   Before winter, the defendant board of education issued a bulletin to maintenance personnel instructing them to inspect and clear snow and ice on a daily basis.   The defendant argued that this was in the nature of a discretionary act because its maintenance employees “had the responsibility of deciding whether there was sufficient accumulation to begin clearing the walkways ․” Id., 281.   The court rejected the defendant's argument, reasoning “the board of education's bulletin to all custodians and maintenance personnel was clear—they were to keep the walkways clear of snow and ice.”  Id. Unlike Kolaniak, in the present case there is no written directive or bulletin prescribing the maintenance of the see-saw.   Ceccolini testified that there are no checklists or guidelines to follow.   He also testified that laying shock-absorbing wood chips was done “on an as-needed basis.”   Ceccolini Dep. (page 70;  line 9).   Determining when chips are needed requires judgment and discretion, which is “[t]he hallmark of a discretionary act ․” (Internal quotation marks omitted.)  Martel v. Metropolitan District Commission, supra, 275 Conn. 48.

“Statutes that abrogate or modify governmental immunity are to be strictly construed ․ This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict consideration and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction ․” (Citation omitted;  internal quotation marks omitted.)   Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988).   In order to defeat governmental immunity, there must be some clearly established policy, standard, or directive “prescribing the manner in which a municipal employee must perform a certain function ․” (Emphasis added.)  Violano v. Fernandez, 280 Conn. 310, 325, 907 A.2d 1188 (2006).   In light of this rule of strict construction, and the fact that no such policy or directive exists to bind the defendant, the defendant's motion for summary judgment is granted on the plaintiff's negligence claim.

II

NUISANCE

The defendant challenges the plaintiff's public nuisance claim on statute of limitations grounds.   The defendant states that the injury giving rise to the present action occurred on June 13, 2009, but that the public nuisance count was not added until the plaintiff filed the second amended complaint on October 16, 2013.   The defendant argues that the public nuisance claim is barred by the statute of limitations.   Further, the defendant argues that the public nuisance count does not qualify for the relation back doctrine.

“[A] plaintiff must prove four elements to succeed in a nuisance cause of action:  (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property;  (2) the danger created was a continuous one;  (3) the use of the land was unreasonable or unlawful;  [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages.”  (Internal quotation marks omitted.)   Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).  “In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance.”  Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010).   As with negligence claims, the legislature has permitted individuals aggrieved by nuisances to defeat governmental immunity through General Statutes § 52–557n(a)(1)(C), which 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 ․ acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ․” The statute of limitations concerning nuisance claims is General Statutes § 52–577, which provides in relevant part:  “No action founded upon a tort ⁵ shall be brought but within three years from the date of the act or omission complained of.”   There is no dispute that the plaintiff's injuries were sustained on June 13, 2009.   There is also no dispute that the second amended complaint was filed on October 16, 2013.   The plaintiff's public nuisance claim first appears in the second amended complaint, and was raised outside of the three-year limitations period provided by § 52–577.

“Our jurisdiction generally follows a liberal policy in allowing amendments to complaints.”  Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 360, 525 A.2d 57 (1987).  “Still, a party's freedom to add allegations to a complaint is limited by the relation back doctrine.”   DiPalma v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV–381270 (July 24, 1997, Silbert, J.).   The relation back doctrine provides an avenue for claims which would otherwise be barred by the statute of limitations to be brought.   For purposes of the relation back doctrine, “[a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.”  (Internal quotation marks omitted.)  Sharp v. Mitchell, 209 Conn. 59, 71, 546 A.2d 846 (1988).  “[W]here an entirely new and different factual situation is presented, a new and different cause of action is stated.”  (Internal quotation marks omitted.)  Id., 71–72.  “Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims.”  Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001).  “[O]ur relation back doctrine is akin to rule 15(c) of the Federal Rules of Civil Procedure ․” (Internal quotation marks omitted.)  Sharp v. Mitchell, supra, 72.  “Rule 15(c) is based upon the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitations are intended to afford.”  (Internal quotation marks omitted.)   Id.

The plaintiff's allegations of public nuisance are critically different from the allegations of negligence.   In his April 29, 2011 complaint, the plaintiff alleges the defendant was negligent in one of more of the following ways:  “[i]t failed to place partial car ties or some other shock-absorbing material embedded in the ground underneath the seats of the see-saw ․ [i]t failed to use partial car tires or some other shock-absorbing material secured on the underside of the seats of the see-saw ․ [i]t failed to replace the old-fashioned see-saw with a spring loaded type of see-saw ․ [i]t failed to provide the minimum required protective surfacing of 9 inches of loose-filled material under the see-saws ․” (Emphasis added.)   Pl.'s Compl., ¶ 15.   The common thread of these allegations is that the plaintiff's injuries are the result of the failure of the defendant to do something.   In contrast, in the second amended complaint, the plaintiff alleges that the defendant “committed various positive acts with respect to the see-saw,” which positive acts constituted public nuisance.   The positive acts cited by the plaintiff include:  “[i]nstalling a type of see-saw at the Quinnipiac Recreation area that contained overtly hazardous components ․ [i]nstalling see-saws at the Quinnipiac Recreation area in a location that had insufficient ground cover or some other form of cushioning in the see-saw's fall zone ․ [c]onstructing a fall zone underneath the see-saw in question that was inherently unsafe for anyone attempting to use the see-saw element.”   Pl.'s Second Am. Compl., ¶ 18.   The common thread of these allegations is that the plaintiff's injuries are due to a positive act of the defendant.

The alleged actionable occurrences in the two claims are inherently conflicting.   The actionable occurrence in the negligence claim is the failure to act, whereas the actionable occurrence in the public nuisance claim is the defendant's positive act of installing the see-saw.   Indeed, the prima facie public nuisance claim against municipalities requires a positive act on the part of the municipality.⁶  In the public nuisance context, the Connecticut Supreme Court has stated that “[c]ommon usage does not equate a failure to act with an act.”  Picco v. Voluntown, supra, 295 Conn. 148.   In the present case, however, the plaintiff asks the court to decide that prior allegations of negligent conduct would have given the defendant “fair notice”;  Alswanger v. Smego, supra, 257 Conn. 65;  that it would have to defend a public nuisance claim.   The plaintiff's public nuisance claim does not relate back to the original claim of negligence because the allegations of the original complaint failed to notify the defendant that claims based on its allegedly intentional conduct were imminent.

III

PARENTS' CLAIM FOR MEDICAL EXPENSES

The final issue for the court to decide is the plaintiff's parents' claim for medical expenses.   The plaintiff's parents brought this claim individually in count three, seeking to recover expenses for the plaintiff's medical care.   The defendant, briefly and in a conclusory fashion, argues that the parents' claim fails because the plaintiff's claims are barred.   The plaintiff did not address this issue in any of the briefs.

The plaintiff's parents' claim for medical expenses are based upon the plaintiff's negligence and public nuisance claims.  “[A] derivative action is dependent upon the legal existence of the predicate action ․” Champagne v. Raybestos–Manhattan, Inc., 212 Conn. 509, 555–56, 562 A.2d 1100 (1989).   Connecticut courts have considered actions where claims of minors sounding in negligence and nuisance have served as a predicate for their parents' claims for medical expenses.   See Caruso v. Milford, 75 Conn.App. 95, 815 A.2d 167 (2003) (minor's mother's claim for medical expenses related to minor's alleged injury on school playground);  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] (minor's father's claim for medical expenses related to minor's alleged injury in skateboard park).

In Caruso, the Appellate Court affirmed the trial court's decision to grant the defendant's motion for summary judgment “on all counts”;  Caruso v. Milford, supra, 75 Conn.App. 98;  including the mother's medical expenses count, on the ground that governmental immunity barred the minor's claims.   In Settembri, the court granted summary judgment as to the minor's negligence claim, but also held that the minor's nuisance claim was viable.   Because the predicate nuisance claim was viable, the court denied summary judgment on the minor's father's claim for medical expenses.   In the present case, both of the plaintiff's predicate claims are barred.   Therefore, the plaintiff's parents' claims are invalid.   The court grants the defendant's motion for summary judgment on count three.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is granted.

Brian T. Fischer, J.

FOOTNOTES

FN1. The defendant's supplemental brief addresses the public nuisance count from the plaintiff's second amended complaint.   The public nuisance count was not included in the plaintiff's first two complaints, and the defendant moved for summary judgment prior to the filing of the second amended complaint..  FN1. The defendant's supplemental brief addresses the public nuisance count from the plaintiff's second amended complaint.   The public nuisance count was not included in the plaintiff's first two complaints, and the defendant moved for summary judgment prior to the filing of the second amended complaint.

FN2. The plaintiff does not allege in the second amended complaint or any of his memoranda that maintenance of the park was a discretionary function entitled to the foreseeable victim/imminent harm exception to governmental immunity, first recognized by Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994).   In fact, the plaintiff represented explicitly to the court at the short calendar that he is not pursuing relief under that line of authority.   Instead, the plaintiff insists that maintenance of the park is and was a ministerial duty.   For this reason, the court need not analyze the plaintiff's claims under the foreseeable victim/imminent harm framework..  FN2. The plaintiff does not allege in the second amended complaint or any of his memoranda that maintenance of the park was a discretionary function entitled to the foreseeable victim/imminent harm exception to governmental immunity, first recognized by Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994).   In fact, the plaintiff represented explicitly to the court at the short calendar that he is not pursuing relief under that line of authority.   Instead, the plaintiff insists that maintenance of the park is and was a ministerial duty.   For this reason, the court need not analyze the plaintiff's claims under the foreseeable victim/imminent harm framework.

FN3. Chapter 11 of the Ordinance deals with Cheshire's parks and recreational facilities..  FN3. Chapter 11 of the Ordinance deals with Cheshire's parks and recreational facilities.

FN4. Ceccolini's deposition transcript was submitted as the plaintiff's exhibit B..  FN4. Ceccolini's deposition transcript was submitted as the plaintiff's exhibit B.

FN5. “Nuisance is an action founded upon a tort.”   Mountaindale Condominium Association v. Zappone, Superior Court, judicial district of Litchfield, Docket No. CV–95–0067279–S (May 11, 1998, Pickett, J.), aff'd, 59 Conn.App. 311, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 603 (2000)..  FN5. “Nuisance is an action founded upon a tort.”   Mountaindale Condominium Association v. Zappone, Superior Court, judicial district of Litchfield, Docket No. CV–95–0067279–S (May 11, 1998, Pickett, J.), aff'd, 59 Conn.App. 311, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 603 (2000).

FN6. The plaintiff argues that the recent decision in Negron v. Naugatuck, Superior Court, judicial district of Waterbury, Docket No. CV–09–5013767–S (September 6, 2013, Zemetis, J.) supports his public nuisance claim.   The plaintiff in Negron was injured when he fell from a swing on public school grounds.   He brought an action against the municipality, alleging negligence and public nuisance.   While the causes of action and facts in Negron are similar to the present case, Negron is dissimilar for a number of reasons.   First, the procedural context was different, as that decision resolved a motion to strike.   Second, the municipality in that case did not raise the statute of limitations as a bar to any claim.   Third, and most importantly, that case did not concern the relation back doctrine.   While the plaintiff correctly notes that Negron stands for the proposition that installation of playground equipment, such as a swing set, is a sufficient positive act for purposes of a claim of public nuisance, the point is irrelevant.   The defendant does not dispute that installation of playground equipment might constitute a positive act.   Instead, the defendant argues that the plaintiff's allegations of the positive act of installation of the see-saw does not relate back to the plaintiff's allegations of negligence.More analogous to the present case is the case Wright v. DB Companies, Inc., Superior Court, judicial district of New Haven, Docket No. CV–04–0486068–S (May 3, 2007, Licari, J.).   Wright, cited by the defendant, involved a relation back challenge by the defendant to a public nuisance claim brought after the statute of limitations had expired.   The court recognized that “[t]he plaintiff's allegations of public nuisance [were] critically different from the allegations of his previous negligence claim,” and that the negligence claim “could not have apprized the defendant of having to defend against a public nuisance claim involving the intentional conduct of town agencies.”  Id..  FN6. The plaintiff argues that the recent decision in Negron v. Naugatuck, Superior Court, judicial district of Waterbury, Docket No. CV–09–5013767–S (September 6, 2013, Zemetis, J.) supports his public nuisance claim.   The plaintiff in Negron was injured when he fell from a swing on public school grounds.   He brought an action against the municipality, alleging negligence and public nuisance.   While the causes of action and facts in Negron are similar to the present case, Negron is dissimilar for a number of reasons.   First, the procedural context was different, as that decision resolved a motion to strike.   Second, the municipality in that case did not raise the statute of limitations as a bar to any claim.   Third, and most importantly, that case did not concern the relation back doctrine.   While the plaintiff correctly notes that Negron stands for the proposition that installation of playground equipment, such as a swing set, is a sufficient positive act for purposes of a claim of public nuisance, the point is irrelevant.   The defendant does not dispute that installation of playground equipment might constitute a positive act.   Instead, the defendant argues that the plaintiff's allegations of the positive act of installation of the see-saw does not relate back to the plaintiff's allegations of negligence.More analogous to the present case is the case Wright v. DB Companies, Inc., Superior Court, judicial district of New Haven, Docket No. CV–04–0486068–S (May 3, 2007, Licari, J.).   Wright, cited by the defendant, involved a relation back challenge by the defendant to a public nuisance claim brought after the statute of limitations had expired.   The court recognized that “[t]he plaintiff's allegations of public nuisance [were] critically different from the allegations of his previous negligence claim,” and that the negligence claim “could not have apprized the defendant of having to defend against a public nuisance claim involving the intentional conduct of town agencies.”  Id.

Fischer, Brian T., J.