Brooks v. Sweeney

• Decision Date: 14 December 2010
• Docket Number: No. 18459.,18459.
• Citation: 299 Conn. 196,9 A.3d 347
• Parties: Selena BROOKS v. Daniel SWEENEY et al.
• Court: Connecticut Supreme Court

9 A.3d 347

299 Conn. 196

Selena BROOKS

v.Daniel SWEENEY et al.

No. 18459.

Supreme Court of Connecticut.

Argued Jan. 11, 2010.

Decided Dec. 14, 2010.

John Q. Gale, Hartford, for the appellant (plaintiff).

Dana B. Lee, with whom, on the brief, was Michael C. Conroy, Hartford, for the appellees (named defendant et al.).

Jonathan C. Sterling, with whom was James M. Sconzo, Simsbury, for the appellee (defendant town of West Hartford).

Frederick O'Brien, Hartford, for the appellee (defendant town of Bloomfield).

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

PALMER, J.

The plaintiff, Selena Brooks, commenced this action against the defendants, Daniel Sweeney, an environmental sanitarian for the health district of the towns of Bloomfield and West Hartford (health district),

21FN;B0032FN;B0043FN;B0054FN;B0065FN;B0076FN;B0087

FN1. The health district is a regional health department serving the towns of Bloomfield and West Hartford, and was established pursuant to General Statutes § 19a-240 et seq.

FN2. General Statutes § 19a-220 provides: "When any person refuses to obey a legal order given by a director of health, health committee or board of health, or endeavors to prevent it from being carried into effect, a judge of the Superior Court may issue his warrant to a proper officer or to an indifferent person, therein stating such order and requiring him to carry it into effect, and such officer or indifferent person shall execute the same."

FN3. Title 42 of the United States Code, § 1983, provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

FN4. General Statutes § 52-557n provides in relevant part: "(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) 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.... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) 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...."

FN5. General Statutes § 7-465 provides in relevant part: "(b) Each town, city or borough which has joined with other towns, cities or boroughs to form a district department of health, pursuant to chapter 368f, or a regional planning agency, pursuant to chapter 127, shall jointly assume the liability imposed upon any officer, agent or employee of such district department of health or such regional planning agency, acting in the performance of his duties and in the scope of his employment, under, and in the manner and in accordance with the procedures set forth in, subsection (a) of this section. Such joint assumption of liability shall be proportionately shared by the towns, cities and boroughs in such district or regional planning agency, on the same basis that the expenses of such district are shared as determined under section 19a-243, or such regional planning agency as determined under section 8-34a."

FN6. We hereinafter refer to the towns of Bloomfield and West Hartford collectively as the towns.

FN7. The plaintiff appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.

The following undisputed facts and procedural history are relevant to our disposition of this appeal. The plaintiff, an African-American, is the owner of a single-family home in Bloomfield. The plaintiff's home was built in 1982. In 1987, sewage from the septic system began leaking into the yard. At that time, James Mathews, a Caucasian neighbor,⁸ experienced a similar problem with his septic system. In 1991, both Mathews and the plaintiff received letters from the town of Bloomfield informing them that their septic systems were in need of repair. In 1992, they contacted the town to discuss possible solutions to the problem. At that time, the town informed them that the sewage posed no immediate health risk. In light of this information, the plaintiff opted not to undertake the costly repairs that would be required to fix her septic system.

In January, 2002, the plaintiff's next-door neighbor, Jane Stone, complained to the health district that raw sewage was leaking from the plaintiff's septic system and that a foul odor was emanating from the plaintiff's property. Stone expressed concern that the plaintiff's septic system would adversely affect the sale of her property. Sweeney contacted the plaintiff to discuss the complaint. During several inspections of the property in early and late 2002, Sweeney observed sewage discharging from the plaintiff's septic fields into her yard in violation of §§ 19-13-B103c (f) ⁹ and19-13-B1 (d) ¹⁰ of the Regulations of Connecticut State Agencies, in addition to other provisions of Code of Ordinances of the town of Bloomfield. After each visit, Sweeney attempted to serve the plaintiff, by way of certified letter, with a notice of violation ordering her to remedy the septic system, but the postal service was unable to deliver the letters.

On June 27, 2003, during a reinspection of the plaintiff's property, Sweeney again observed raw sewage seeping from the ground. On July 2, 2003, he served the plaintiff with a notice of violation, which ordered her to repair the septic system by July 15, 2003. The plaintiff appealed that order to the appeals committee of the health district. On July 30, 2003, the appeals committee held a hearing at which it determined that the plaintiff's septic system constituted a nuisance and a health hazard. The committee gave the plaintiff sixty days to remedy the problem. At the hearing, members of the committee asked Sweeney whether any other properties in the vicinity of the plaintiff's property were experiencing septic problems. Sweeney responded that "none [was] at [that] time." Sweeney added that, since January, 2002, several attempts had been made to resolve the plaintiff's septic problem "amicably" but that those efforts had proven to be unsuccessful.

Thereafter, in October, 2003, the plaintiff hired a contractor to draw up a plan to repair her septic system, which was approved by the health district. Due to long periods of sustained inclement weather, however, the plan could not be implemented, and the health district granted the plaintiff a number of extensions. When work finally commenced at the end of May or early June, 2004, the contractor informed the plaintiff that,because of unanticipated conditions on the property, the plan that had been approved by the health district no longer was feasible and that repairing the septic system would be more complicated and expensive than originally anticipated. On June 4, 2004, the plaintiff telephoned Sweeney to inform him that she could not afford the repairs that were required to fix the septic system and that, in her view, the town of Bloomfield would have to install sewers. Sweeney responded that the plaintiff had until the end of June, 2004, to repair the septic system and advised her, as he had done on previous occasions, that her failure to make the necessary repairs could result in her arrest. In a letter dated June 9, 2004, Sweeney also informed the plaintiff that he had spoken to her contractor and that he had advised Sweeney that a code complying septic system design and installation "could be achieved." Sweeney concluded the letter by stating, "[a]t this time the property remains in violation of [town ordinances and state regulations] and further enforcement action will be taken against you until the violations are corrected."

On July 16, 2004, Sweeney prepared an affidavit in support of an application for a warrant for the plaintiff's arrest. In the affidavit, Sweeney stated that, on July 30, 2003, the plaintiff had been ordered by the health district to complete repairs to her septic system by October 1, 2003, which she had failed to do. He further stated that, on June 4, 2004, the plaintiff had advised him by telephone that she would not complete the repairs. The affidavit listed all of the outstanding health violations existing on the plaintiff's property due to the condition of the plaintiff's septic system. On July 29, 2004, after the plaintiff had failed to complete the repairs, the office of the state's attorney submitted an application for a warrant for the plaintiff's arrest.

On August 19, 2004, the health district approved a revised plan of repair for the septic system. Meanwhile,a judge of the Superior Court issued a warrant for the plaintiff's arrest, and she was arrested on August 30, 2004. On October 5, 2004, the state nolled the criminal charges, and those charges subsequently were dismissed.

The plaintiff commenced this action in June, 2006, asserting claims of malicious prosecution and...