David St. Pierre v. Town of Plainfield et al. (2015)

MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANT EASTERN CONNECTICUT REHABILITATION SERVICES, INC. (# # 148 and 150), and OBJECTIONS THERETO BY PLAINTIFF (# 161) and by the TOWN OF PLAINFIELD (# 165) and ON MOTION FOR SUMMARY JUDGMENT OF TOWN OF PLAINFIELD (# 152) and OBJECTION THERETO BY PLAINTIFF (# 163)

Plaintiff's amended complaint alleges that he slipped and fell on wet steps leading to the men's locker room just after participating in a swimming program at a pool owned by the town of Plainfield.   He charges that the town's employees failed to properly inspect and maintain the pertinent facilities and that the municipality is therefore liable to him for the injuries he claims he sustained.   Alternatively, he claims that defendant Eastern Connecticut Rehabilitation Services, Inc. (“Eastern”), was the party in control of the pool and adjacent facilities at the time of his fall and that it is solely or jointly accountable to him in negligence.   While both defendants have denied all these allegations, the town has effectively seconded plaintiff's claims against Eastern by filing a cross complaint alleging that Eastern was in control of the pool area and locker room at the time in question and thus if anyone is liable to plaintiff it is Eastern rather than the town.

Before the court at this moment are Eastern's two motions for summary judgment. # 148 seeks a judgment in its favor on the liability allegations of the complaint, while # 150 seeks a judgment on the town's allegations of liability raised by the cross complaint.   These two motions focus upon premises liability.   The town also moves for summary judgment (# 152) on the complaint, but on the basis of certain statutes which, it claims, insulate it from or provide it with immunity against plaintiff's claims.   All parties have objected to the various motions directed their way, and all argued their positions at the April 20 short calendar.

I. Standards for Determining a Motion for Summary Judgment

In ruling upon a motion for summary judgment, the court adheres to the process recently articulated in Marinos v. Poirot, 308 Conn. 706 (2013), at pages 711–12, as follows:

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.”   A party moving for summary judgment is held 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 ․ 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 (citations omitted).

In application of that process, the court requires of each moving party a showing excluding any real doubt as to any issue of material fact as to its right to a judgment on the allegations as they presently stand, and, if the moving party makes at least a prima facie showing that such is the case, then to require of each opposing party a showing revealing that there is evidence to establish that material facts are genuinely disputed and cannot be resolved summarily.

II. Premises Control:  The Eastern Motions (# # 148 and 150)

The gravamen of both Eastern motions is that whatever agreement it had with respect to the swimming pool, it was not in control of the steps leading down to the men's locker room—the precise spot where plaintiff alleges he was injured.   Eastern thus argues that it owes him no duty of care as to that portion of the town's building, nor did it agree to take over from the town any duty to manage that portion of the property. # 148 challenges the plaintiff's allegations that it had control of that spot, while # 150 focuses upon the town's counterclaim's allegations that Eastern was in control of the stairway to the exclusion of the town.

In a suit alleging defective premises, it is axiomatic that the party having control of the premises is the party liable for defects therein;  “[l]iability for injuries caused by defective premises ․ does not depend upon who holds legal title, but rather on who has possession and control of the property.”   LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002).  “The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee ․ [T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question ․ Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination;” Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453–4 (2004).  “Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable man could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable men could fairly reach different conclusions on the question, the issue should properly go to the jury ․ In addition ․ control need not be exclusive;  it is sufficient if it be shared with another.”  Van Nesse v. Tomaszewski, 265 Conn. 627, 631 (2003).

By affidavit of its self-described partner and manager, Penny Allyn, Eastern avers that it is an organization that provides physical therapy services to patients, and had orally ¹ reserved use of the town's pool for about an hour's time on the date of plaintiff's injury.   Ms. Allyn submits that the pool and locker rooms, and the stairways leading between them, are part of a larger facility owned and operated by the town.   She further avers that the agreement was exclusively concerned with the pool, and that Eastern reserved no other portion of the property, had no ability to prevent any other person from using the stairways or the locker room, had no privilege to make any changes to the property, and thus had no obligation to provide maintenance or cleanup services in the stairway or to inspect or remedy any hazards in that area.   As additional support for its motions, Eastern offers portions of the depositions of a town employee, Myra Ambrogi, and of the First Selectman, Paul Sweet.²  Ms. Ambrogi generally described the maintenance duties with respect to the stairway as belonging to the town.   Any duty on Eastern's part, she testified, was limited to alerting town personnel to the existence of a problem which they would correct.   Mr. Sweet claimed that the ultimate responsibility for the building remained with the town, again, a statement not connoting any transfer of control to the pool's user.

By way of response, both the town and the plaintiff essentially urge the court to hold that for the purpose of these motions, Eastern has failed to satisfy its burden “that it is quite clear what the truth is” and failed to exclude “any real doubt as to the existence of any genuine issue of material fact.”   If that is true, they have no separate duty of proof on this occasion.

Conn. Law of Torts, 3d.   Ed., Wright, Fitzgerald, and Ankerman, at page 143 observes that “[w]hether a stairway was included in the plaintiff's lease and thus was under their control as tenants or was reserved to the defendant and so was under her control is essentially a question of intention, to be determined, in the light of all the significant circumstances ․” In a case involving the control of a stairway in leased premises, Panaroni v. Johnson, 158 Conn. 93, 99 (1969), the Court held that when a “written lease read as a whole cannot be said to resolve definitely or expressly the issue of control ․ the actual use of the stairway, the circumstances attending its use, and the evidence as to repairs become relevant ․” For lack of a better model, this court uses the terms “landlord” and “tenant” to describe the relationship of the corporate parties to this action rather loosely, as it is difficult to pigeonhole into any neat category a situation where Eastern not only occupies a fraction (disputed in amount) of the building's space, but also enjoys that privilege for only a fraction (undisputed in duration) of the time the pool is routinely put to use, all on the strength of an extremely skimpy written agreement.   The “circumstances” which a factfinder would find relevant as to who controlled the steps would include, inter alia, the distance between the pool and the stairway, whether the stairs exclusively served the pool or were available to users of other parts of the premises (e.g., a weight room or a gymnasium), whether or not the town had a regular schedule of maintaining the stairway area, what protocol had historically been used to keep the steps safe, which party undertook post-injury repairs or maintenance, and so on.   The material before the court is either silent or contested as to these details, any one of which might have a bearing upon the question they ask this court to decide summarily;  certainly, the court cannot resolve them on the strength of opposing affidavits or contradictory deposition testimony.   Resolution of the question of control must await the deliberations of the jury, or, at least, a decision by the trial court assessing the sufficiency of the evidence presented at trial to warrant sending either party's liability claims to the jury for determination.

III. Municipal Accountability:  The Town's Motion (# 152)

The operative, February 19, 2014 amended complaint (# 126), states the claims against the town of Plainfield in two counts.   Count One alleges negligence pursuant to Conn. Gen.Stat. § 7–465, while Count Two alleges negligence pursuant to Conn. Gen.Stat. § 52–557n.   The motion for summary judgment challenges each proposition.

A. § 52–557n

The town's first special defense is that the doctrine of governmental immunity ³ bars this suit.   The statute, in pertinent part, provides in subsection (a)(1)(A) that “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,” but, as directed by (a)(2)(B), such liability shall not arise as to “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.”   This statute “abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages ․ One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties ․ [It] explicitly shields a municipality from liability for damages to person or property caused by the 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;” (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Edgerton v. Clinton, 311 Conn. 217, 229, (2014).

The essence of the town's motion is that the acts or omissions alleged by plaintiff all involve judgment or discretion and so the cited subsection is applicable here, and that no exceptions apply;  thus, it argues, summary judgment should enter in its favor on the second count.   By its supporting memorandum, the town lays out at length how it was engaged in the performance of a public duty in operation of the pool, citing Hannon v. Waterbury, 106 Conn. 13 (1927), and other authorities, and how its repair and inspection functions are discretionary, citing Evon v. Andrews, 211 Conn. 501 (1989), and other authorities.   Plaintiff takes issue with the town's argument, but his protests are insubstantial.

What is really pivotal here is whether any exception to the doctrine applies.   Defendant addresses the three laid out in Lyon v. Andrews, 211 Conn. 501, 505 (1989):  “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.)   This case presents only the first of these.

Plaintiff, however, demands that the court separately consider a distinct exception found within subsection (a)(1)(B) of the statute itself, and which removes immunity for “negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit.”   The town takes issue with this argument.

1) Was Plaintiff an “Identifiable Person” Subject to “Imminent Harm”?

The “identifiable person, imminent harm” exception includes two discrete factors;  in usage, they are often conflated so as to connote a symbiotic relationship.   Each has a separate significance here.

As to who is an “identifiable person” for the purpose of this exception, cases such as Heigl v. Board of Education, 218 Conn. 1 (1991), Burns v. Board of Education, 228 Conn. 640 (1994), and Purzycki v. Fairfield, 244 Conn. 110 (1998), had made clear that, generally speaking, children attending educational events at a public school were such persons, and thus capable of demanding that school officials not be sheltered against suit for dereliction of duties owed to them.   Beyond that population, however, plaintiffs have not often succeeded in achieving that status.   In 2005, in Prescott v. Meriden, 273 Conn. 759, the Court declined to recognize as an “identifiable person” the parent of a student attending a school function.   Parents, the opinion reasoned, attended such functions voluntarily, as opposed to students who were there by compulsion of law, and parents, as adults, were unlike minors who might be entitled to higher standards of care from school officials.   The Court instructed that the class of persons as to whom the curtain of immunity should be lifted ought to be narrowly defined, fearing the creation of an exception that would swallow the rule.   In Durrant v. Board of Education, 284 Conn. 91 (2007), the Court refused to recognize the exception when claimed by a mother accompanying her six-year-old son at an after-school function, and held that the son, too, failed to qualify as an “identifiable person” as his attendance at that time was not compulsory.   Next, in Grady v. Somers, 294 Conn. 324 (2009), a case including an exhaustive summary of the law of governmental immunity in this context, the Court recognized that historically only schoolchildren participating in regular curriculum events had made up the entire set of persons to whom the exception applied, and rejected the claim of a taxpayer injured at the town dump.   Although Grady did not declare that expanding the class of identifiable persons beyond such children was a foreclosed option, the case commented favorably upon its holding in Prescott, and emphasized on its own facts the voluntary nature of its plaintiff's presence at the dump.

In response, plaintiff relies upon case law which he claims refutes the town's proposal.   He alludes to Sestito v. Groton, 178 Conn. 520 (1979), which allowed a suit to go to the jury on whether this exception applied against a police officer who observed a fight in a public area, but did nothing to bring it to an end, and brought by the estate of a person killed in the scuffle.   Its precedential value is limited in light of the Court's observation in Grady that the Sestito decision stands apart from the remainder of its jurisprudence in this realm, and that “Sestito appears ․ to be limited to its facts;” 294 Conn. 324, 353.

Next, he cites Haynes v. Middletown, 314 Conn. 303 (2014), asserting that “the court in Haynes overruled its prior holdings in Burns and Purzycki and articulated the proper standard for determining whether a harm was imminent.”   He is correct that the court partially overruled those earlier decisions, but only as to the “imminent harm” component of the test.   After discussing that factor in detail, the Court thereupon “overrule[s] Burns and Purzycki to the extent that they adopted a different standard,” 314 Conn. 303, 323.   Insofar as Haynes dealt with the “identifiable person” factor, it is not helpful to plaintiff today;  young Mr. Haynes was a high school student injured at school, and extending the exception to him was consistent with the precedents noted above but not indicative of any intention to extend that same status to persons injured outside of an academic environment.

Lastly, plaintiff cites Gerton v. Clinton, 311 Conn. 217 (2014), presumably meaning to invoke Edgerton v. Clinton, supra, which is reported at that page in that volume.   With respect to who is an “identifiable person,” his reliance on that case is misplaced;  the case did not extend the exception beyond its historical confines as requested here.

The facts plaintiff musters in his favor are that he is not a member of the public generally, but rather one of between two and seven participants in the rehabilitation program.   As this court reads the many authorities discussed above, it concludes that the applicable test here is not quantitative;  if it were, the plaintiffs in Durrant, Edgerton, and Grady, injured alone or in the company of one other person, would have prevailed.   Also, given that small number, he maintains he must have been identifiable to town officials.   A town official's fortuitous acquaintance with a party is irrelevant to one's exception from immunity as an “identifiable person;” were that not so, then friends of the pool personnel could sue, while strangers could not, an absurd result.   Plaintiff does not and cannot claim that he was present at the pool under any compulsion;  he clearly is an adult voluntarily participating in the swim program.   In sum, there are no facts present here which qualify him for the status of “identifiable person,” as our Supreme Court has defined that term, sufficient to defeat the town's motion.

Turning to the “imminent harm” component of the exception, the plaintiff quotes Haynes, at 323, for the premise that “[w]hether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.”   The harmful condition in Haynes was a jagged edge on a broken gym room locker, a structural defect of longstanding duration.

Plaintiff argues that the dangerousness of a puddle of water on steps is apparent and thus the duty of immediate action is clear and unequivocal.   The first difficulty with his argument is that he uses a definition of “apparent” distinct from that indicated by the Edgerton case, in which the word is thoroughly discussed.   Webster's Third New International Dictionary includes two related but distinct definitions of the word, to wit, “capable of easy perception,” and “readily manifest to senses or mind as true ․” Plaintiff uses the word in the second of those senses, and emphasizes what a municipal official understands as a matter of logic to be a quality of the thing before him.   The Edgerton court, instead, uses “apparent” in its first sense, focusing upon contemporaneous perception.   The decision turned upon the absence of “apparentness” of imminent harm on the part of the town's emergency services dispatcher who failed to interdict a high speed pursuit by a volunteer fireman chasing a vehicle carrying plaintiff's decedent, which ultimately crashed into a tree.   The case's protagonist argued that the dispatcher should have connected certain data and made herself aware that the chase was in progress.   The town prevailed on its showing that since there was no clear indicator of the existence of the chase, its dispatcher was not required to explore all the implications of her limited perceptions.   What matters is not what the official could have deduced, or learned upon further investigation, but what that official actually perceived to be the facts at the time of the incident under scrutiny.   While no educated adult can dispute that danger inheres in a high-speed vehicle chase—and so, in the second sense, it is “apparent”—Edgerton instead puts the focus on whether at the time in question an official actually knew that such an event was in progress.   Applying this distinction to the instant case, plaintiff claims it is sufficient to show that the lifeguard or any other town agent must appreciate, in the abstract, the lubricity of a wet surface.   The correct question, following Edgerton, is whether any such official actually knew that the steps were wet at the time plaintiff was using it.   Although he alleges such actual knowledge, he has not, in response to the summary judgment motion, adduced any proof that this allegation has any evidentiary support.

Additionally, plaintiff's premise that water on the surface of a pool or its appurtenances is imminently harmful is dubious.   The court can imagine no adjective that more readily leaps to mind in describing the surface of a pool and its appurtenances than “wet.”   A dry surface in this vicinity becomes a wet one every time a bather emerges from the pool, a reality made obvious to pool users at an early age.   A proprietor of the area could mop it regularly, and yet not prevent water from accumulating unless by posting a worker at the spot from which each bather exits the pool at every minute that the facility is in use.   To assign to any town a “clear and unequivocal duty to act immediately” to remedy such a transitory but inherent condition as water on the surface in the area of a pool is tantamount to imposing upon the entity a burden in the nature of strict liability for any slip and fall there occurring.

Discussing whether even something thought harmful may be ruled otherwise in light of its duration and intermittency, the Haynes decision includes this illuminating example in footnote 13:

if a condition causing a risk of harm is of short duration and the harm actually occurs, this fact, in and of itself, does not conclusively establish a high likelihood of harm, especially if the condition is of a recurring nature, as it was in Burns and Purzycki.   In other words, if an icy patch forms and melts on a school walkway numerous times over the course of the winter, every year, or a group of students walks from the lunchroom to the recess yard once a day, every day, over the course of the school year, and does so every year, the fact that, during the existence of one of those temporary conditions, an injury occurred, does not necessarily imply that the harm was imminent.   Indeed, a reasonable juror could conclude that the fact that thousands of students had walked on the icy walkway and from the lunchroom to the recess yard over the course of the years without being injured supports the conclusion that the harm was not imminent.

The intermittency of ice on an exterior walkway in that example is sufficient to allow a juror to distinguish that condition from the static immutability of a sharp, broken locker door, and to remove therefrom the quality of intrinsic harmfulness.   To take the example one step further, water at the site of a pool in use is so much a constant as to inhere in the nature of the operation, and force a judge to rule that no reasonable juror could conclude that one permitting it to persist has thereby created an imminent harm capable of mitigation.

Notably, despite the efforts of both parties, neither has cited any case holding that a pool proprietor is under such obligation as plaintiff seeks to impose upon the town here.   The closest case the court has uncovered is the long-ago decision of Curcio v. City of Bridgeport, 7 Conn.Sup. 334 (1939), involving a somewhat similar circumstance.   The decision followed a trial in a suit brought by a woman who slipped and fell on a wet, wooden surface at a town-owned beach.   She had alleged that “the floor where the plaintiff fell was wet, slippery, dangerous and defective and was covered with an accumulation of water and slime.”   While that description was apt, the court found that the wetness of that surface resulted from patrons passing through a foot-washing basin, that nothing about the structure was defective in design or repair, and that the site could therefore not be deemed inherently or intrinsically dangerous;  judgment entered for the defendant.⁴

Also, while the appellate court held surface water on a stairway to be an imminent harm in its ruling in the Durrant case, 96 Conn.App. 456 (2005), rev'd on other grounds, 284 Conn. 91 (2007), the setting of that opinion was quite distinct from that of this case.   Water on the otherwise-dry floor of a building's exit ought not to be there, while water in the environs of a swimming pool and its locker room is both foreseeable and practically unpreventable.

Plaintiff, therefore, cannot prove that the condition he alleges led to his fall was one of imminent harm as our case law has defined that term, providing an additional reason why this exception to governmental immunity is not available to him.

2) Was the Town Deriving a “Pecuniary Benefit” From its Operation of the Pool, Thus Abrogating its Defense of Governmental Immunity?

A second element of plaintiff's objection to the instant motion is his claim that the town's lease of the pool to Eastern conferred a pecuniary benefit upon it, and thus, pursuant to C.G.S. 52–557n(a)(1)(B), it forfeited its immunity against his suit.   Before examining his claim on the merits, the court must note how this issue came to its attention.   In its initial memorandum supporting its motion, the town does not mention the pecuniary benefit exception other than by including a verbatim quote of the statute.   Plaintiff first asserts, in his objection to the motion, that it provides an exception to the governmental immunity the town proclaims.   Thereafter, the town filed a lengthy “reply memorandum” almost exclusively addressing this particular issue.   Notwithstanding the sequence of these assertions, this court views it as the defendant's burden, in moving for summary judgment, to establish its right thereto as outlined in Marinos v. Poirot, supra.

In Considine v. City of Waterbury, 279 Conn. 830 (2006), the Court reviewed both the extensive common-law history of the immunity-defeating concept of pecuniary benefit, and its treatment in the legislative debates that led to adoption of the statute in question.   Recognizing that the search for clarity on this topic has been characterized as “illusory, elusive, arbitrary, unworkable, and a quagmire;” at 845;  the Court did not dodge its duty of elucidation.   It determined that functions performed by a municipality fall into two separate categories—the first includes “those of a governmental nature, where it acts merely as the agent or representative of the state in carrying out its public purposes,” and the second, “those of a proprietary nature, where it carries on activities for the particular benefit of its inhabitants;” at 842, citing Winchester v. Cox, 129 Conn. 106 (1942).   Considine repeats favorably an observation about that dichotomy made first in the 1942 case:  “[i]f a municipality is acting only as the ‘agent or representative of the state in carrying out its public purposes' ․ then it clearly is not deriving a special corporate benefit or pecuniary profit;” at 845–6.   Since municipal pools have long been held to be an instance of a town's exercise of a governmental function;  see, Hannon v. City of Waterbury, 106 Conn. 13 (1927);  and the operation of a pool is the exact function under scrutiny here, plaintiff appears to be on the wrong side of the divide.   It is not clear, in such a circumstance, that there is a need to analyze the fiscal aspects of the pool's operation to determine whether the numbers support a finding of profit at all.⁵

Both the nature of the use and the procedural posture of the instant case distinguish it from Considine.   That case involved Waterbury's liability for an injury suffered by a patron at a privately-owned restaurant operating pursuant to lease in a facility owned by the town.   Furthermore, the case had gone to trial in the lower court, yielding a full exposure of the evidence relevant to financial circumstances of the venue.   See, Krill v. City of Derby, Superior Court, Docket No. CV08 5005376, judicial district of Ansonia–Milford (February 17, 2010;  Bellis, J.), which concluded in adjudicating a motion for summary judgment that a court faced with conflicting financial evidence relating to defendant's operation of a municipal parking garage had before it a genuine issue of material fact as to whether the defendant's operation of the garage is proprietary in nature, and that summary judgment was therefore unavailable in the case.

Assuming, arguendo, that plaintiff is not categorically precluded from contending that the town was operating its pool for pecuniary profit, he still has not presented this court with sufficient indications of any genuine issue of material fact upon which this issue could be submitted to the jury.   It is not the charging of a usage fee, but rather the reaping of an actual profit, that is a necessary element supporting a finding that a town's activities are proprietary.   Indeed, Considine, at 848, cites Tadjer v. Montgomery County, 300 Md. 539 (1984) to the effect that such profit must be substantial before it converts a governmental activity into one of a proprietary nature.

Here, the complainant alleges that his injury occurred on August 26, 2011, which falls within fiscal year 2012.⁶  Along with its reply memorandum, the town submitted an affidavit of Myra Ambrogi, expanding upon her earlier affidavit by detailing the fiscal implications of the town's operation of its pool throughout that year.   Briefly, the town expended $81,315.45, and took in revenue totaling $75,605.96 from a variety of sources, including the rental fee paid by Eastern.   The net result was a loss of $5,709.46.   Plaintiff did not counter these calculations with any of his own, instead arguing that the numbers are not dispositive and that possibly another fiscal year, earlier or later, showed a profit;  at this stage, that assertion is purely speculative.

It cannot be overlooked that in Hannon, the preeminent “a-swimming-pool-is-a-governmental-use” case, pool users also had paid a fee for use of the facility;  nonetheless, the Court ruled that the town of Waterbury was entitled to governmental immunity in the conduct of that function.   Plaintiff describes the ten cents assessed of each user there as de minimis in comparison with the fifty dollars per hour charged to Eastern.   The four corners of Hannon do not set forth the multiplicand of the unit charge, and hence the total revenue accruing in each hour.   The fifty 2011 dollars reflect a fixed, group charge.   Whatever an uncertain number of “ten-cent each” users paid collectively in 1927, it is not obvious that after almost a century's devaluation of the currency that sum amounts to a different order of magnitude from what Eastern was paying in 2011.   The salient fact here is that there is no evidence upon which a jury could base a finding of profit, absent which, even in cases clearly involving a proprietary function, no basis exists for removing the shield of governmental immunity.

B. § 7–465

Count One, paragraph 7, accuses “the defendant, TOWN OF PLAINFIELD, its agents, servants and/or employees” of a series of deficiencies in their maintenance of the steps upon which he fell.   Summarily, he invokes § 7–465 in paragraphs 12 and 13 to declare the town liable for the acts or omission of these “agents, servants, and/or employees.”   The substance of the town's motion addressed to this count is that plaintiff has made no claim against any individual agent, servant, or employee, and that the statute relied upon, requiring only that the town indemnify such an individual, is thus inapplicable to this case.   As the town expresses it, “[t]o invoke § 7–465, the plaintiffs first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof.   Only then may the plaintiff go on to allege and prove the town's liability by indemnification ․ Therefore, a claim for indemnification against a municipality pursuant to § 7–465 is entirely dependent upon establishing liability against a municipal employee;” memorandum in support of motion for summary judgment, pp. 7–8.

The relevant language of this statute reads as follows:

Any town ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for ․ physical damages to person ․ if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment ․

The town founds its argument, in part, upon the case of Wu v. Town of Fairfield, 204 Conn. 435 (1987).   Wu sued that town and, among others, two lifeguards, for alleged negligence causing the drowning death of an adolescent at the town's public pool.   Unlike the posture of the present case, involving a motion for summary judgment, the Wu decision examined, and affirmed, a jury verdict for the defendants.   At page 438, the opinion discussed how, under this statute, liability upon the town might arise:

[a] plaintiff bringing suit under General Statutes § 7–465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof.   Only then may the plaintiff go on to allege and prove the town's liability by indemnification ․ This is a personal liability requirement that calls for an inquiry independent of the statute itself, an inquiry into the factual matter of individual negligence ․ Thus, in a suit under § 7–465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual.

(Internal citations and quotation marks omitted.)

Plaintiff cannot deny that his present complaint is devoid of any separate count against any identified agent, servant or employee of the town.   With commendable candor, he does not attempt to distinguish the above rule, or argue its inapplicability to this case;  rather, he argues, the matter was a suitable topic for a motion to strike (which would, if granted, have allowed him an opportunity to replead his case), but that by deferring the adjudication of the question to the time of the instant motion the town has blindsided him and set up a situation in which the judgment it now seeks would preclude him from preserving his action by amendment.   He argues, in other words, that fair play should trump legal formalities.

Plaintiff makes this argument in reliance upon Larobina v. McDonald, 274 Conn. 394 (2005).   What the Court there decided is that while a motion to strike is the appropriate means by which to challenge the legal sufficiency of a pleading, it is not categorically improper to do so via a motion for summary judgment.   If, however, the defendant fails to show that the deficiency upon which judgment is obtained is not of the sort that may be cured by repleading the matter, then “the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because ‘[t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ․ [while the] granting of a motion to strike allows the plaintiff to replead his or her case;’ “ id., 401.   In the circumstances of that case, Larobina was unable to persuade the Court to deem that principle applicable to his claim, both because he proceeded to defend against the motion on the merits, and because each of his three causes of action had apparent defects not curable by a repleading.

Subsequently, in American Progressive Life and Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111 (2009), the Court reversed a trial court's summary judgment upon a motion essentially claiming legal insufficiency of a pleading, and found error in the failure to treat that motion as, in substance, a motion to strike after the grant of which the affected party could attempt to replead his case.   The Court held, as articulated at pages 124–5, that “the moving party, did not demonstrate, in accordance with Larobina, that, if the defendants had been permitted to replead, thereby making [their claims] clear ․ the legal deficiency underlying the plaintiff's motion for summary judgment would not have been cured ․ [i]n the absence of a waiver by the plaintiff, the person pursuing summary judgment also must demonstrate that the plaintiff is unable to remedy this defect through repleading ․ Thus, the trial court should have treated the motion for summary judgment as a motion to strike, under which the defendants would have been afforded the opportunity to replead upon the granting of the motion.”

The town contends that plaintiff cannot replead his case.   At oral argument, plaintiff maintained that he has a plan for doing so, and that he can avoid the barrier of governmental immunity as discussed above.   However difficult that may be, plaintiff should not summarily be precluded from attempting to do so.

IV. Conclusion and Orders

For the reasons indicated:

The Eastern motions for summary judgment, # # 148 and 150, are each denied as a genuine issue of material fact remains in doubt.   The objections, # # 161 and 165, are sustained.

The town of Plainfield's motion for summary judgment (# 152) is granted as to the second count, and the plaintiff's objection thereto (# 163) overruled.

As to the first count, this court will treat the town's motion as a motion to strike.   As such, it is granted.   The plaintiff's objection, insofar as it addresses the so-called motion for summary judgment, is sustained;  with respect to the now redesignated motion to strike, however, it is overruled.

Boland, J.

FOOTNOTES

FN1. Among the items tendered by Eastern in support of its motion on the cross complaint is a one-page “form letter” (Ex. B) which mainly sets forth the rules for pool use but might be characterized as at least a minimal written memorandum of the arrangement between the town and Eastern.   This document is silent on the question of control over the stairway, but is not otherwise inconsistent with the material disclosed in the Allyn affidavit and the depositions.   Ms. Allyn's statement that the “lease” was essentially oral is not undermined by this minimalist document..  FN1. Among the items tendered by Eastern in support of its motion on the cross complaint is a one-page “form letter” (Ex. B) which mainly sets forth the rules for pool use but might be characterized as at least a minimal written memorandum of the arrangement between the town and Eastern.   This document is silent on the question of control over the stairway, but is not otherwise inconsistent with the material disclosed in the Allyn affidavit and the depositions.   Ms. Allyn's statement that the “lease” was essentially oral is not undermined by this minimalist document.

FN2. The town points out that the depositions mentioned are uncertified, i.e., that the court should doubt their authenticity.   The town goes further, insisting that these uncertified depositions are the only evidence upon which Eastern has relied in support of its motion.   That statement is not true:  the Allyn affidavit is the main buttress of the motion.   The deposition transcripts may not be sufficient to alone support the motion, but here, where their essential contents do not conflict with Allyn's averments, any formal defects they may possess are at most harmless..  FN2. The town points out that the depositions mentioned are uncertified, i.e., that the court should doubt their authenticity.   The town goes further, insisting that these uncertified depositions are the only evidence upon which Eastern has relied in support of its motion.   That statement is not true:  the Allyn affidavit is the main buttress of the motion.   The deposition transcripts may not be sufficient to alone support the motion, but here, where their essential contents do not conflict with Allyn's averments, any formal defects they may possess are at most harmless.

FN3. The town invokes the doctrine “pursuant to both common law and Conn. Gen.Stat. § 52–557n.”   Its brief does not differentiate between these two sources, and for the purposes of this opinion no distinction will be assumed..  FN3. The town invokes the doctrine “pursuant to both common law and Conn. Gen.Stat. § 52–557n.”   Its brief does not differentiate between these two sources, and for the purposes of this opinion no distinction will be assumed.

FN4. This court notes that the Curcio case evaluated plaintiff's claims under both nuisance and negligence law, and that the seventy-five year old decision followed a full trial;  it has weighed those features in assessing its residual precedential value..  FN4. This court notes that the Curcio case evaluated plaintiff's claims under both nuisance and negligence law, and that the seventy-five year old decision followed a full trial;  it has weighed those features in assessing its residual precedential value.

FN5. Considine outlined this dichotomy somewhat expansively.   At pages 850–1, it contrasted situations in which “the defendant can be held liable for the plaintiff's injuries because it was acting in its proprietary capacity when it leased a portion of the clubhouse to the restaurant and there is an ‘inextricable link or inherently close connection’;  Martel v. Metropolitan District Commission ․ between the defendant's allegedly negligent maintenance of the sidelite in the clubhouse's entryway and the rental of the restaurant.   By examining the character of the activity at issue, it is apparent that leasing a portion of a municipal building as a restaurant stands in stark contrast from those activities in which this court has determined that the municipality was acting as the state's agent for the direct or indirect benefit of the general public.   See, e.g., Spitzer v. Waterbury (storm water sewers);  Vezina v. Hartford (fire department);  Hannon v. Waterbury (municipal swimming pool);  Epstein v. New Haven (public park);  see also Schmidt v. Breeden, (recounting other traditional governmental functions as including “operation of jails, public libraries ․ and city garbage services”) (citations omitted;  emphasis added)..  FN5. Considine outlined this dichotomy somewhat expansively.   At pages 850–1, it contrasted situations in which “the defendant can be held liable for the plaintiff's injuries because it was acting in its proprietary capacity when it leased a portion of the clubhouse to the restaurant and there is an ‘inextricable link or inherently close connection’;  Martel v. Metropolitan District Commission ․ between the defendant's allegedly negligent maintenance of the sidelite in the clubhouse's entryway and the rental of the restaurant.   By examining the character of the activity at issue, it is apparent that leasing a portion of a municipal building as a restaurant stands in stark contrast from those activities in which this court has determined that the municipality was acting as the state's agent for the direct or indirect benefit of the general public.   See, e.g., Spitzer v. Waterbury (storm water sewers);  Vezina v. Hartford (fire department);  Hannon v. Waterbury (municipal swimming pool);  Epstein v. New Haven (public park);  see also Schmidt v. Breeden, (recounting other traditional governmental functions as including “operation of jails, public libraries ․ and city garbage services”) (citations omitted;  emphasis added).

FN6. See, Conn. Gen.Stat. § 7–382..  FN6. See, Conn. Gen.Stat. § 7–382.

Boland, John D., J.