Bonington v. Town Of Westport, No. 18514.

• Decision Date: 06 July 2010
• Docket Number: No. 18514.
• Citation: 999 A.2d 700,297 Conn. 297
• Parties: Paul BONINGTON et al.v.TOWN OF WESTPORT et al.
• Court: Connecticut Supreme Court

297 Conn. 297

999 A.2d 700

Paul BONINGTON et al.v.TOWN OF WESTPORT et al.

No. 18514.

Supreme Court of Connecticut.

Argued April 21, 2010.

Decided July 6, 2010.

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Joseph M. Brophy, Westport, for the appellants (plaintiffs).

Mark A. Perkins, Bridgeport, for the appellees (defendants).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.^*

KATZ, J.

The plaintiffs, Paul Bonington and Julie Bonington, appeal ¹ from the summary judgment rendered in favor of the defendants, the town of Westport (town), the town's planning and zoning department (department) and three department employees (individual defendants) ² in the plaintiffs' negligence action. The plaintiffs had sought to recover litigation expenses they incurred in bringing an action against the owners of abutting property after the defendants allegedly had failed to enforce the town's zoning regulations, to inspect the abutting property properly and to rectify zoning violations on the abutting property. The dispositive issue on appeal is whether the trial court properly concluded that the individual defendants were shielded from liability by governmental immunity. We affirm the trial court's judgment.

The record reveals the following undisputed facts and procedural history. In or about April, 2003, Sabin Associates, LLC (contractor), razed a dwelling on property that abutted the rear boundary of the plaintiffs' property (abutting property) and began construction of a new dwelling. In December, 2003, the abutting property was sold to Erik Mace and his wife, Rebecca Mace. From October, 2003, through some time in 2006, the plaintiffs repeatedly contacted the department to complain about changes that the contractor had made to the abutting property. Specifically, they complained that the contractor had imported substantial landfill that raised the grade of the abutting property approximately three to four feet over a large area at the rear boundary of the property and created a slope that increased the water runoff onto the plaintiffs' property, which caused flooding and threatened to erode a wall on the plaintiffs' property. The plaintiffs claimed that it was evident that the contractor had undertaken this action without having obtained the proper process, permits and authorization and that the regrading of the abutting property was in violation of several of the town's zoning regulations. Although, at one point in late 2003 or early 2004, the defendant Larry Bradley's predecessor as director of the department had told the plaintiffs that she was working with the contractor to respond to the plaintiffs' complaints, no changes were made to the abutting property. During that same period, the town's zoning enforcement officer, the defendant Susan Reynolds, and the town's zoning enforcement inspector, the defendant Mary Papadakos, separately inspected the abutting property, along with Bryan Thompson, an engineer in the town's department of public works. Reynolds, Papadakos and Thompson concluded that there were no zoning violations on the abutting property, a conclusion that was at some point communicated to the plaintiffs. The last written response the plaintiffs received from the defendants was an August, 2005 letter from Papadakos stating that the “[d]epartment [is] still investigating your complaint regarding [the abutting property]” and that “Reynolds will respond to your inquiries once our research is completed.”

Because they never received any satisfactory action from the defendants, the plaintiffs initiated a legal action against the Maces, who then owned the abutting property. At some unspecified time, that action was settled after the Maces agreed to correct the drainage problem and to rectify other concerns raised by the plaintiffs.

Thereafter, the plaintiffs commenced the present negligence action against the defendants. In the first count of their revised complaint, brought against the department, Reynolds, Papadakos and Bradley, the plaintiffs alleged that they had been forced to initiate legal action against the Maces, at great expense in fees and costs, because of those defendants' “continuing failure to do their job, their negligent methods of inspection or lack thereof and their continued failure to enforce or even rule on claimed violations of the [z]oning regulations....” Specifically, the plaintiffs alleged that those defendants had issued certain permits to the contractor despite property conditions that were not in conformity with zoning regulations. They further alleged that, each time they had complained, they were informed that no zoning violations had been found and that their complaints were being looked into, a conclusion that the defendants improperly had reached in reliance on the opinion of Thompson, who was an employee of another department not charged with making such findings.³ In the second count, brought against the town, the plaintiffs reasserted the allegations in the first count and alleged that those actions were imputed to the town pursuant to General Statutes § 7-465.⁴

The defendants filed an answer and asserted as special defenses to the first count that they were immune from liability pursuant to General Statutes § 52-557n(a)(2)(B) and (b)(8) ⁵ and that the claims were time barred. Thereafter, the defendants filed a motion for summary judgment on the basis of their special defenses and on the ground that they did not owe the plaintiffs a legal duty that would support a negligence action. In support of their motion, the defendants submitted affidavits from Papadakos, Thompson, Reynolds and Bradley. They attested, inter alia: that inspections of the abutting property had been conducted by Papadakos on October 27, 2003, revealing no regrading, and by Reynolds and Thompson on June 2, 2004, revealing regrading but a net decrease in water runoff due to the installation of a drainage system that the previous dwelling did not contain; that both inspections had revealed no zoning violations; and that an inspection to determine whether property conforms with the town's zoning regulations requires the exercise of professional judgment. In opposition to the motion for summary judgment, the plaintiffs submitted, inter alia, an affidavit from Paul Bonington, wherein he largely restated the allegations of the complaint but further contended that Thompson's determination that no zoning violation existed despite patently obvious evidence to the contrary, was predicated on Thompson's personal friendship with the contractor.⁶

The trial court granted the defendants' motion for summary judgment on both counts of the complaint. With respect to the first count, the trial court first concluded that the individual defendants were being sued in their official capacity, and, accordingly, were entitled to whatever immunity the town would have under § 52-557n.⁷ The court next concluded that the question of what constitutes a reasonable or proper inspection involves the exercise of discretion, as does the enforcement of zoning regulations. It therefore determined that it was incumbent upon the plaintiffs to allege and provide an evidentiary basis for an exception to the governmental immunity that attaches to discretionary acts pursuant to § 52-557n(a)(2)(B). The court found nothing in the complaint or in Paul Bonington's affidavit to establish such an exception and noted that the plaintiffs' memorandum of law in opposition to summary judgment simply had made a cursory assertion that, if the defendants' acts were discretionary, the identifiable person-imminent harm exception to immunity would apply. The court concluded that the plaintiffs were not subject to imminent harm because their complaint merely had alleged a “threat” to their septic system from the water runoff and Paul Bonington's response to an interrogatory regarding whether any failure to the system had yet occurred was “not as of this time.” The court also concluded that summary judgment was proper on the first count because public policy concerns weighed against imposing a duty of care to support an action in negligence.

With respect to the second count, seeking to impute the actions of the individual defendants to the town pursuant to § 7-465, the court noted that the only damages claimed were litigation expenses incurred by the plaintiffs in their action against the Maces. The court concluded that such damages were not recoverable under § 7-465.

The plaintiffs appealed from the grant of summary judgment in favor of the defendants. See footnote 1 of this opinion. The plaintiffs contend that the trial court's conclusion that the individual defendants were entitled to governmental immunity was improper because: (1) checking to see whether required permits have been obtained and filed, inspecting and accurately reporting the result of inspections for zoning violations and enforcing clear violations of zoning regulations are not discretionary acts; and (2) even if such actions are discretionary, the identifiable person-imminent harm exception applies because (a) as an abutting property owner to property that violates the town's zoning regulations, they are identifiable, and (b) imminent harm is shown by, inter alia, the fact that the failure to enforce the regulations already was causing drainage problems by flooding their property and washing out their gardens. The plaintiffs further contend that the court improperly concluded that the defendants had not owed them a duty of care and that the litigation expenses that the plaintiffs had incurred in bringing such an action were not recoverable under § 7-465. We conclude that the trial court properly rendered summary judgment on the ground of governmental immunity. We further conclude that, because the sole basis on which the plaintiffs sought to impose liability on the town was through the indemnification statute, § 7-465, not the municipal liability...