Considine v. City of Waterbury

• Decision Date: 12 September 2006
• Docket Number: No. 17551.,17551.
• Court: Connecticut Supreme Court
• Parties: Edward CONSIDINE v. CITY OF WATERBURY.

905 A.2d 70

279 Conn. 830

Edward CONSIDINE v. CITY OF WATERBURY.

No. 17551.

Supreme Court of Connecticut.

Argued February 16, 2006.

Decided September 12, 2006.

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Paula N. Anthony, for the appellant (defendant).

James P. Brennan, Waterbury, for the appellee (plaintiff).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

The defendant, the city of Waterbury, appeals from the judgment of the trial court rendered in favor of the plaintiff, Edward Considine. The defendant contends that the trial court improperly determined that governmental immunity as set forth in General Statutes § 52-557n¹ did not shield it from liability and that the plaintiff had proffered sufficient evidence to establish that the defendant was negligent in maintaining its property. We disagree, and, accordingly, we affirm the judgment of the trial court.

The trial court found the following pertinent facts. For many years, the defendant has owned and operated a public municipal golf course known as Western Hills Golf Course. A clubhouse building located on the course property contains a pro shop, locker rooms, restrooms and a restaurant called The Hills Restaurant (restaurant). On or about March 1, 2002, the plaintiff and two friends went to the restaurant to listen to guitarists who were performing there that night. The restaurant is a private establishment that serves meals and alcohol and provides entertainment for its customers. The defendant leases a portion of the clubhouse to the restaurant and under the terms of the lease, the defendant is responsible for maintaining the common areas of the clubhouse that permit access to the restaurant. In 2002, the restaurant paid the defendant $29,060.16 in annual rent. The lease contains a clause that increases the restaurant's rent each year, and by the time of the trial, the restaurant was paying the defendant rent of $30,852 per year. In addition to the restaurant, a second private entity leases a portion of the clubhouse and operates it as a pro shop. The rent required under this lease is $1 per year. The golf course is open, weather permitting, from April 15 until December 15 each year. Accordingly, on March 1, 2002, the golf course was closed and the clubhouse was being used only for the restaurant.

After listening to the musical performance, the plaintiff and his two companions left the restaurant. Before exiting the clubhouse, however, one of the plaintiff's companions stopped to use the restroom while the plaintiff waited in the clubhouse's common entryway. The plaintiff stood near the exit door, adjacent to which was a glass window panel, sometimes called a "lite" or sidelite, which was approximately eighteen to twenty-four inches wide and extended from the floor to the top of the door. While the plaintiff was waiting, his leg collapsed or, in his words, "gave out," and he fell against the window panel, which shattered as he fell into it and onto the floor. As a result, he received multiple cuts and abrasions from glass shards and slivers as well as some general soreness and emotional distress.

The plaintiff thereafter brought the present action against the defendant to recover for the injuries he sustained from his fall into the sidelite. In his one count amended complaint, he alleged that the defendant was negligent in one or more of the following ways: improperly installing or maintaining the window panel; failing to install shatterproof glass; failing to install the proper glass in an area of ingress and egress as required by the state building code; and failing to warn the plaintiff that the glass was installed improperly and could shatter. In addition, the plaintiff alleged that the defendant was liable for its negligence under § 52-557n. In its answer, the defendant denied it was negligent and alleged a special defense that it was not liable for the plaintiff's injuries under the doctrine of governmental immunity.²

After a trial to the court, the defendant was found liable for the plaintiff's injuries suffered as a result of the defendant's negligence. In rejecting the special defense of governmental immunity, the trial court determined that the defendant could be held liable under § 52-557n (a)(1)(B) because the defendant derives a special corporate profit or pecuniary benefit from renting a portion of the clubhouse to the restaurant. Specifically, the trial court concluded that the defendant received a pecuniary benefit from the receipt of more than $29,000 in annual rent from the restaurant.³

Turning to the issue of the defendant's alleged negligence, the trial court found that, although the building code did not require the defendant to replace the type of glass used in the sidelite because construction of the clubhouse predated the applicable building code provisions, the defendant nevertheless was negligent in failing to replace it. The trial court credited the testimony of the plaintiff's expert engineer, who opined that the defendant failed to maintain the building properly and in a safe condition by not replacing the existing glass with a safer type of glass. This appeal followed.⁴

I

The defendant first contends that the trial court improperly determined that it was not immune from liability for its allegedly tortious conduct. Specifically, the defendant contends that its maintenance of the golf course and clubhouse is a governmental function. In addition, the defendant claims that it is not deriving a special corporate profit or pecuniary benefit from the rental of a portion of its clubhouse building to the restaurant because the rental income is applied to maintenance expenses for the property. The defendant particularly takes issue with the trial court's focus on the rental income from the restaurant without viewing it as part of the defendant's overall operation of the golf course. Finally, the defendant contends that the trial court improperly failed to find that the maintenance of the clubhouse building was a discretionary function, which precludes its liability for the plaintiff's injuries under § 52-557n (a)(2)(B).

In response, the plaintiff claims that the trial court properly determined that the defendant was liable under § 52-557n (a)(1)(B). The plaintiff claims that a considerable portion of the clubhouse was used as a source of revenue for the defendant, and, thus, the defendant should be liable for its negligent acts that are inextricably linked to this rental property. The plaintiff further argues that the defendant should be held liable in the present case because its negligence was related to the condition of the common entryway to the leased property. In addition, the plaintiff claims that the trial court correctly determined that this court's decision in Carta v. Norwalk, 108 Conn. 697, 702, 145 A. 158 (1929), precludes the defendant from arguing that it does not receive a pecuniary benefit because it reinvests the rental income into the maintenance of the clubhouse and golf course. Moreover, the plaintiff contends that the trial court properly determined that it need not consider the expenses related to the operation of the golf course because it was the defendant's failure to maintain in a reasonably safe manner the entryway to the clubhouse that caused the plaintiff's injuries. We affirm the judgment of the trial court.

The issue of whether the defendant is immune under § 52-557n from the injuries caused by its negligent maintenance of the entryway of the clubhouse presents a question of statutory interpretation, and, thus, our review is plenary. See, e.g., Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 404, 891 A.2d 959 (2006). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z⁵ directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . ." (Internal quotation marks omitted.) Id., at 405, 891 A.2d 959.

In accordance with § 1-2z, we turn first to the text of § 52-557n (a)(1), which provides in relevant part that "[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . . ." (Emphasis added.) The statute does not define the phrases "special corporate profit" and "pecuniary benefit." "In the absence of a statutory definition, words and phrases in a particular statute are to be construed according to their common usage . . . . To ascertain that usage, we look to the dictionary definition of the term." (Internal quotation marks omitted.) Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 690, 894 A.2d 919 (2006); General Statutes § 1-1(a). Construing these two phrases according to their common usage, nevertheless, results in ambiguity. Even if we put aside the modifier "special corporate" in the phrase, "special corporate profit," the...