Cotto v. Board of Education, No. CV 01-045489S (Conn. Super. 6/30/2006)
| Decision Date | 30 June 2006 |
| Docket Number | No. CV 01-045489S,CV 01-045489S |
| Court | Connecticut Superior Court |
| Parties | Jamele Woods Cotto v. Board of Education et al. Opinion No.: 94180 |
The defendants in this matter are the New Haven Board of Education, Dr. Reginald Mayo who is alleged to be responsible for the promulgation of regulations for the use of school facilities, staffing and maintenance of such facilities, and Leroy Williams who is also a defendant and is the principal of the Roberto Clemente School. In their answer the defendants admit to the characterization of the individual defendants' job responsibilities.
The complaint goes on to allege that the plaintiff Cotto on July 16, 1999 at 9:45 a.m. was in the process of using a lavatory at the school and he was caused to slip and fall on a wet floor which the defendants or their agent had or should have had notice of at the time of the fall. The complaint goes on then to set forth various claims based on premises liability negligence.
The complaint then says the defendants are liable to the plaintiff for any injuries and losses sustained pursuant to Section 7-465 and Section 10-235 of the general statutes.
The defendants have now filed a motion for summary judgment claiming they are entitled to governmental immunity and arguing that the plaintiff can rely upon no exceptions to bar application of the doctrine of governmental immunity.
The motion also states that the claims based an Sections 7-465 and 10-235 must fail as a matter of law. The defendants have submitted no affidavits or other documents besides case law in support of their motion.
The defendants rely on the allegations of the complaint to establish a defense of governmental immunity. As will be discussed it is claimed the alleged negligence of the Board, the city and the named agent defendants involved acts for failures to act which were discretionary; at common law and by statute a municipality can rely on such a defense, see §52-557n(a)(2)(B), and a city employee can similarly rely on such a defense when the actions subject to complaint are governmental. Wadsworth v. Middletown et al., 94 Conn. 435, 439 (1920). The complaint is an admission by the plaintiff and the defendants can rely on its allegations to establish the basis for a defense.
The plaintiff has objected to the motion and has submitted an affidavit. It repeats the allegations of the complaint describing the accident and the cause of it. It also makes the following representations:
3. On July 16, 1999 (date of accident) the plaintiff . . . was employed by the Latino Youth Development Inc. as a camp director.
4. The Latino Youth Development Inc. leased space from the defendant Board of Education of the City of New Haven at the Roberto Clemente School.
These same allegations were made in paragraph 1 of the substitute complaint. In its answer the defendants responded by saying as to these matters the defendants had "insufficient knowledge and information to either admit or deny the allegations"—they left the plaintiff to its proof.
The standards to be applied in deciding a motion for summary judgment are well-known. If there is a genuine issue of material fact the court cannot decide it. If there is not, the motion should be granted to spare parties the expense and inconvenience of litigation.
The court will first set forth the framework of the dispute between the parties.
The defendants claim, and the plaintiff does not appear to dispute, that this action is brought pursuant to Section 52-557n of the general statutes. That statute in subsection (a)(2)(B) codifies common-law principles in granting immunity where injury is caused by "negligent acts or omissions which require the exercise of judgment or discretion." Although Lombard v. Edward J. Peters, Jr. P.C., 252 Conn. 623, 628 (2000), states that generally the issue of whether an act is ministerial or discretionary is a question of fact for the jury "there are cases where it is apparent from the complaint."
Here the defendants argue the alleged failure of the defendants to mop away or warn or inspect for the slippery condition of the lavatory floor all involve the exercise of discretion. See Evon v. Andrews, 211 Conn. 501, 506-07 (1989). The defendants' brief then goes on to say that there are three exceptions under which liability may attach to a city or an employee in the performance of discretionary acts. The defendants recognize that under the facts of this case the only exception applicable would be the "identifiable person/imminent harm exception." The defendants cite several cases which they claim support their position as to why this particular exception does not apply here. Evon v. Andrews, supra; Burns v. Board of Education, 228 Conn. 640, 646 (1994); Purzycki et al. v. Town of Fairfield, 244 Conn. 101, 110 (1998). It should be noted that although the defendant city does not raise the issue it is apparently true that the "identifiable person/imminent harm" exception does not apply to actions against the municipality itself, query whether it applies to a city agency or board. See Pane v. Danbury, 267 Conn. 669, footnote 9.
In most part the plaintiff responds to the defendants' argument by arguing that the "identifiable person/imminent harm" exception can be relied upon by him to defeat governmental immunity and cites Tryon v. North Branford, 58 Conn.App. 702, 710 (2000), and Prescott v. Meriden, 273 Conn. 559, 763 (2005). So far then, whether the defendants' motion is granted or not depends on how the court were to analyze the not always so easy question of whether this exception applies.
But in its brief the plaintiff appears to raise another issue which would avoid an immunity claim where it is said:
Moreover, the defendant Board of Education in leasing the space to the Latino Youth Development Inc. derived some financial benefit. The defendant can not at this point disclaim any responsibility for the care and maintenance at its facilities when it has specific knowledge of person [sic] being on property.
The court will first deal with this aspect of the case—in leasing the premises was the city acting in a proprietary manner not a governmental capacity.
Then the court will assume the city was acting as a governmental entity, and further accepting that discretionary acts or failures to act were involved here, which the plaintiff does not seem to dispute, will try to decide whether the "identifiable person/imminent harm" exception to immunity applies.
The concept of municipal immunity has an important exception—there is no immunity and there can be liability for actionable conduct in the performance of a city's proprietary functions.
To understand the exception to municipal immunity it is first necessary to understand why immunity is granted to municipalities and their employees in the first place. In "Municipal County, School and State Tort Liability" 57 Am.Jur.2d 1 cit §2, page 42-42, the basis of the doctrine of governmental immunity is set forth:
Sovereign immunity is a rule of social policy that protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities. Additional, governmental decision makers exercising discretionary functions are immune from suit, because the courts should not chill legislative discretion in policy formation by imposing tort liability for discretionary decisions, nor should governmental employees be stripped of their independence of action or intimidation by the fear of personal liability and vexatious suits. Thus, immunity serves two policies: It shields those government acts and decisions impacting on large numbers of people in a myriad of unforeseen ways from individual and class actions, the continual threat of which would make public administration all but impossible, and it preserves the autonomy of coordinate branches of government.
See Horton v. Meskill, 172 Conn. 615, 624 (1977).
The notion of having this doctrine to preserve the autonomy of coordinate branches of government refers to separation of power concerns and it has been said that this concern is what really underlines the need to protect municipalities from suits for discretionary decisions. Owens v. City of Independence, 442 U.S. 622, 648 (1980).
These reasons for governmental immunity do not apply where the municipality or its agents do not act in a governmental capacity but perform the same proprietary functions as any private corporation. That being the case courts have long held that there is no immunity from liability where the city acts in a proprietary capacity; it is responsible for its torts just as any other private entity. Owen v. City of Independence, id. at page 645, 57 Am.Jur.2d at §47, page 83. Permitting such suits does not open the way for courts to second-guess or control how municipalities carry out governmental functions because a proprietary not a governmental function is being performed.
As stated in the previously referenced Am.Jur. article, the law throughout the jurisdictions is as follows.
A common test for the applicability of governmental tort immunity is whether the act or function giving rise to potential liability can be characterized as governmental or proprietary in nature. Immunity is retained for governmental or public acts or functions but liability may be imposed if the act or function is deemed merely proprietary or private in nature. Thus acting in a proprietary mode is considered an exception to the general rule of governmental immunity.
The Am.Jur. article goes on to discuss some of the tests used by the courts to determine whether a particular undertaking by a municipality is governmental or proprietary. At §53, page 88 it is said that ...
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