Boucher v. Fuhlbruck

• Decision Date: 13 August 1965
• Docket Number: No. 139995,139995
• Citation: 213 A.2d 455,26 Conn.Supp. 79
• Court: Connecticut Superior Court
• Parties: Jeannette BOUCHER, Administratrix (ESTATE of Paul BOUCHER) v. Carl P. FUHLBRUCK et al.

Page 455

213 A.2d 455

26 Conn.Supp. 79

Jeannette BOUCHER, Administratrix (ESTATE of Paul BOUCHER) v. Carl P. FUHLBRUCK et al.

No. 139995.

Superior Court of Connecticut, Hartford County.

Aug. 13, 1965.

Regnier, Moller & Taylor, Hartford, for plaintiff.

Kenny, Brimmer & Kenny, Hartford, for demurring defendants Carl P. Fuhlbruck and others.

Richard W. Shettle, Asst. Corp. Counsel, for defendants city of Hartford and others.

William D. Graham, Hartford, for defendants Roger J. Sevigny, Lucille L. Sevigny and Joseph Sevigny.

COTTER, Judge.

The plaintiff brings suit as the administratrix of Paul Boucher, a minor of seven years of age who was drowned in a river located on property of the city of Hartford in Pope Park, a public park located in the city. Suit was brought against the city of Hartford and two boys who were playing with the deceased at the time of the unfortunate accident. The parents of both boys were likewise joined as parties defendant. The demurrers were interposed as to the first five counts of the complaint, setting forth allegations of negligence as to the remaining five defendants in their capacity as employees of the city of Hartford, namely, Carl P. Fuhlbruck, foreman of Pope Park, Victor Jarm, city forester, Everett J. Pyle, Sr., assistant superintendent of parks, George E. Sullivan, director of recreation, and Robert P. Hunter, director of parks and recreation, taken together with the sixth count, which alleges an intention to bring the cause of action within § 7-465 of the General Statutes and that 'said occurrence was not the result of any willful or wanton act of any of said employees.' Suit was brought against these defendants as employees of the city in the capacities above set forth. The counts of negligence so alleged against these defendants have to do with allegations such as placing barriers around the river, supervising the river area, posting warning signs, having railings or safety devices along the banks of the river, keeping adjacent areas free of overhanging trees and excessive brush, allowing conditions to exist which attracted minor children to an area used by them for adventure-game play, and otherwise failing to provide adequate supervision or guidance. All of these allegations have to do with supervisory or discretionary functions of these employees of the city.

The maintenance of parks and playgrounds is a governmental function and is usually subject to municipal immunity for negligence. Epstein v. City of New Haven, 104 Conn. 283, 132 A. 467; Hannon v. City of Waterbury, 106 Conn. 13, 136 A. 876, 57 A.L.R. 402 (swimming pool). It has been carefully stated in the case of Pluhowsky v. City of New Haven, 151 Conn. 337, 347, 197 A.2d 645, that an official of a municipality is not personally liable for acts or omissions occurring in the performance of a governmental function so long as he acts in good faith, in the exercise of an honest judgment, and not maliciously or in abuse of his discretion. The municipality becomes liable only if it is shown that the duties of the employees or officials such as these defendants with respect to the park and the pond or river were 'ministerial.' 'Ministerial' has been interpreted by our courts to mean that our law refers to a duty which is to be performed by an official in a given state of facts in a prescribed manner without regard to or in the exercise of his own judgment or discretion upon the propriety of the act being done. A ministerial duty might be illustrated in the factual situation where a town clerk must record an instrument. The acts or omissions claimed against the five defendants in this case do not describe ministerial duties which would require them to correct the particular defective conditions alleged. Where the matter is one of...