DiMiceli v. Town of Cheshire
| Decision Date | 05 January 2016 |
| Docket Number | No. 36747.,36747. |
| Court | Connecticut Court of Appeals |
| Parties | Grayson DiMICELI et al. v. TOWN OF CHESHIRE. |
Benjamin H. Pomerantz, Stamford, for the appellant (named plaintiff).
Thomas R. Gerarde, with whom, on the brief, was Katherine E. Rule, Hartford, for the appellee (defendant).
ALVORD, PRESCOTT and BEAR, Js.
PRESCOTT
, J.
In this personal injury action, the plaintiff Grayson DiMiceli, through his parents and next friends, the plaintiffs Eric DiMiceli and Sabrina DiMiceli, appeals from the summary judgment rendered by the trial court in favor of the defendant, the town of Cheshire.1 Grayson allegedly was injured while playing on a seesaw at a playground operated and maintained by the defendant. The plaintiffs' complaint initially alleged only negligence by the defendant and a derivative claim for medical expenses, but later was amended to include a public nuisance count. The plaintiffs claim that the court improperly determined that the defendant was entitled to judgment as a matter of law because (1) their negligence count was barred by the doctrine of governmental immunity, and (2) the amended count alleging a public nuisance was barred by the applicable statute of limitations and did not relate back to the negligence count. We disagree and, accordingly, affirm the judgment of the trial court.
The record reveals the following undisputed facts and procedural history. On June 13, 2009, Grayson, who was seven years old at that time, was playing with another child at the Quinnipiac Recreation Area, a public park that is owned and operated by the defendant. Grayson and the other child were using a seesaw, when, without warning, the other child jumped off the equipment, causing Grayson's seat to crash to the ground. Grayson suffered injuries as a result of the incident, including spinal compression fractures
.
The plaintiffs commenced this action against the defendant on April 26, 2011.2 The initial complaint contained two counts, the first alleging negligence on behalf of Grayson, and the second asserting a derivative claim for medical expenses on behalf of the parents individually.3 According to the plaintiffs, the defendant had been negligent because it had failed to embed partial car tires or other shock absorbing material in the ground directly beneath the seesaw seats or to use such material on the underside of the seats themselves, had failed to ensure that there were sufficient wood chips or other loose filled material covering the ground around the seesaws or had failed to replace the old fashioned seesaw with a newer, spring-loaded version. The case was assigned for a jury trial to begin on September 24, 2013. On May 7, 2013, the defendant filed a motion for permission to file a summary judgment motion in accordance with Practice Book § 17–44
. The court granted the motion on May 20, 2013, absent objection, and the summary judgment motion and supporting memorandum of law attached to the motion for permission were deemed filed as of that date.
The plaintiffs were granted two extensions of time in which to respond to the motion for summary judgment. On October 16, 2013, the plaintiffs filed a request for leave to amend the complaint, seeking to add new factual allegations to the existing negligence count and to add a new count sounding in public nuisance. The proposed second amended complaint was attached to the motion. The defendant objected to the request for leave to amend, arguing that the proposed amendment was unseasonable and would prejudice the defendant because it had already filed its motion for summary judgment. The court scheduled argument on the motion for leave to amend for November 25, 2013. In the interim, the plaintiffs filed a response to the defendant's objection to the motion for leave to amend as well as a supplemental response to the defendant's motion for summary judgment.
Following the November 25, 2013 hearing, the court granted the plaintiffs' motion for leave to amend its complaint and accepted the attached amended complaint as having been filed on that date. The defendant filed an answer with special defenses to the new operative complaint on December 5, 2013, in which it asserted a statute of limitations special defense directed at the nuisance count. The defendant later filed a supplemental memorandum of law in support of its motion for summary judgment, which included new arguments addressing the propriety of the nuisance count. The plaintiffs also filed a supplemental brief in opposition to summary judgment.
On March 13, 2014, the court issued a decision rendering summary judgment in favor of the defendant on all counts of the operative complaint. The court concluded that the defendant was entitled to judgment as a matter of law on the negligence count because governmental immunity, as codified in General Statutes § 52–557n (a)(2)(B)
, shields municipalities from liability for negligent discretionary acts, and the court determined as a matter of law that the maintenance of the seesaw on which Grayson was injured involved a discretionary function. The court further concluded with respect to the public nuisance count that it had not been filed within the applicable statute of limitations and did not relate back to the original negligence count because the allegations in support of the public nuisance count were critically different from those underlying the negligence count. Because neither the negligence count nor the nuisance count was viable, the court also rendered judgment with respect to the parents' derivative claim for medical expenses.4 The plaintiffs filed a motion for reconsideration and reargument, which the court denied. This appeal followed.
(Internal quotation marks omitted.) Barbee v. Sysco Connecticut, LLC, 156 Conn.App. 813, 817–18, 114 A.3d 944 (2015)
.
We turn first to the plaintiffs' claim that the court improperly rendered summary judgment on the negligence count on the basis of its determination that recovery for negligence was barred by the doctrine of governmental immunity. In support of this claim, the plaintiffs first argue that a genuine issue of material fact exists as to whether the defendant's duty to inspect and maintain the playground and seesaw was ministerial or discretionary in nature, and that the existence of such a disputed issue of fact should have precluded the court from granting summary judgment. The plaintiffs further argue that it is contrary to public policy to grant governmental immunity if a municipality claims to have no policies, standards, or guidelines in place to ensure that its playgrounds are safe for children. We are not persuaded by the plaintiffs' first argument and decline to consider the second because it was not raised to or decided by the trial court.
The plaintiffs first argue that a genuine issue of material fact exists with respect to whether the defendant's duty to inspect and maintain the playground and seesaw was ministerial or discretionary in nature. We are not persuaded.
We begin by setting forth the well settled law of this state regarding the liability of municipalities and their agents. According to our Supreme Court, "[a] municipality itself was generally immune from liability for its tortious acts at common law.... [The court has] also recognized, however, that governmental immunity may be abrogated by statute.... General Statutes § 52–557n (a)(1)
provides in relevant part: 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.... [Our Supreme Court] previously [has] concluded that [t]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents....5
"Subdivision (2) of § 52–557n (a)
lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal provides: Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... (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." (Citations omitted; footnote added; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47–48, 881 A.2d 194 (2005)
. The statute, thus, distinguishes between discretionary acts and those that are...
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...280 Conn. 310, 323, 907 A.2d 1188 (2006) ; Evon v. Andrews , 211 Conn. 501, 506–507, 559 A.2d 1131 (1989) ; DiMiceli v. Cheshire , [162 Conn. App. 216, 224–25, 131 A.3d 771 (2016) ]; Grignano v. Milford , 106 Conn. App. 648, 659–60, 943 A.2d 507 (2008)." Northrup v. Witkowski , supra, 175 C......
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...were legally and logically correct and find support in the record." (Internal quotation marks omitted.) DiMiceli v. Cheshire , 162 Conn.App. 216, 221–22, 131 A.3d 771 (2016). We turn next to the law governing municipal liability and the liability of municipal agents, which is well settled. ......
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