Evon v. Andrews

• Decision Date: 20 June 1989
• Docket Number: No. 13617,13617
• Citation: 559 A.2d 1131,211 Conn. 501
• Court: Connecticut Supreme Court
• Parties: Louise EVON, Administratrix (ESTATE OF Michael EVON), et al. v. Horace ANDREWS et al.

Page 1131

559 A.2d 1131

211 Conn. 501

Louise EVON, Administratrix (ESTATE OF Michael EVON), et al. v. Horace ANDREWS et al.

No. 13617.

Supreme Court of Connecticut.

Argued April 6, 1989.

Decided June 20, 1989.

Charles E. Oman III, Waterbury, for appellants (plaintiffs).

James K. Robertson, Jr., Waterbury, with whom, on the brief, was Pamela J. Norley, Farmington, for appellees (defendant city of Waterbury et al.).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

COVELLO, Associate Justice.

This is an appeal from a decision of the Superior Court that granted the defendants' motion to strike the fifth count of the plaintiffs' complaint that sought recovery from a municipality and various city officials based upon their negligence. We find no error.

The complaint alleged that on November 11, 1984, the plaintiffs' decedents ¹ were killed when a fire destroyed their residence, a multi-family rental unit, located in Waterbury. The fifth count ² of the complaint was directed against the city of Waterbury and various city officials. ³ The plaintiffs alleged that the city and its officers had been negligent in failing properly to enforce various statutes, regulations and codes concerning the maintenance of rental dwellings. ⁴ The defendants moved to strike this count in its entirety claiming that the enactments cited in the complaint "do not impose a duty on the [municipal agents] or the city of Waterbury [and that] any duty to enforce said provisions is, as a matter of law, discretionary as to the agents of the City of Waterbury or is owed to the public at large and not to the plaintiffs." The trial court, J. Healey, J., granted the defendants' motion, concluding that "[t]he allegations in the Fifth Count clearly spell out discretionary governmental duties and therefore cannot be the basis for recovery for individual injury." The plaintiffs declined to plead over ⁵ and on September 20, 1988, the trial court, O'Brien, J., rendered judgment on the fifth count of the complaint in favor of the defendants. The plaintiffs thereafter appealed this decision to the Appellate Court and we transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal the plaintiffs claim that the trial court erred in granting the defendants' motion to strike because the fifth count of the complaint alleged negligent acts that may be characterized as either (1) ministerial in nature, or (2) discretionary acts that subjected an identifiable person to imminent harm. In either event, the plaintiffs claim that a cause of action was stated pursuant to our recent holding in Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988). We do not agree with the characterization that the plaintiffs assign to these allegations.

The gravamen of the fifth count is that the site of the fire contained numerous conditions that violated state regulations and state and local building codes and that the defendants were negligent in either failing properly to inspect the premises or to undertake remedial action to correct the deficiencies.

While "[a] municipality itself was generally immune from liability for its tortious acts at common law; Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984) ... its employees faced the same personal tort liability as private individuals." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. at 165, 544 A.2d 1185. "[A] municipal employee [however,] has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act.... The word 'ministerial' 'refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.' Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 [1975]." Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977).

The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; see, e.g., Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979); second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; see, e.g., General Statutes § 7-108 creating municipal liability for damage done by mobs; and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See, e.g., Stiebitz v. Mahoney, 144 Conn. 443, 448-49, 134 A.2d 71 (1957). We do not consider in this instance the parallel analysis of governmental immunity that involves the question of whether the duty imposed upon the municipal official is a public duty or a private duty because the parties here agree that the duty is a public one. ⁶ See Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982).

The plaintiffs first argue that the failure reasonably, properly and adequately to inspect the decedents' dwelling or prescribe remedial action to be taken by the owners as alleged in their complaint involved acts that were ministerial in nature and therefore the defendants were not immune from liability. We conclude that this is not the case. The plaintiffs do not allege that the defendants failed to inspect the dwelling. They allege that the defendants failed "to make reasonable and proper inspections" of the premises. (Emphasis added.) They further claim that the defendants failed "to conduct adequate inspections." (Emphasis added.) While an inspection by definition involves "a checking or testing of an individual against established standards"; Webster, Ninth New Collegiate Dictionary; what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment. Further, no matter how objective the standard, an inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment. It is axiomatic that "ministerial acts [are those that] are performed in a prescribed manner without the exercise of judgment...." (Emphasis added.) Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). Since the acts alleged in the fifth count required in some measure the exercise of judgment by a municipal employee, we conclude that they were not ministerial and therefore the defendants were immune from liability.

The plaintiffs next claim that their complaint alleged breaches of discretionary duties owed to their decedents, a group that was discrete, readily identifiable, and subject to imminent harm. We do not agree.

The "discrete person/imminent harm" exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. In Shore v. Stonington, supra, a police officer stopped a speeding automobile. Despite evidence of intoxication, the officer did not arrest the driver. Later that evening, the driver struck a vehicle being operated by the plaintiff's decedent who died from the injuries she sustained in the collision. We upheld the trial court's conclusion that the plaintiff had failed to show that the plaintiff's decedent was an identifiable person subject to imminent harm. In Sestito v. Groton, supra, a police officer, while on duty, observed a group of men drinking, arguing and scuffling in a parking lot outside a bar. The officer did not intervene until he heard gunshots. The plaintiff's decedent died as a result of being shot. This court concluded that the trial court erred in directing a verdict for the defendant town based upon governmental immunity. In resolving "conflicting testimony on the issue of imminence of harm in favor of the plaintiff, we held that the case should then have been submitted to the jury." Shore v. Stonington, supra, 187 Conn. at 153, 444 A.2d 1379. This case does not present a situation in which this narrow exception applies.

The gravamen of the plaintiffs' allegations is that the defendants had not done enough to prevent the occurrence of a fire. The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. The class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of "identifiable persons" within the meaning of Shore v. Stonington, supra. Furthermore, the plaintiffs' decedents were not subject to "imminent harm." This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v. Groton, supra. The present allegations do not even rise to the level of the imminence we rejected in Shore v. Stonington, supra, in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiff's decedent. In the present instance, the fire could have occurred at any future time or not at all. We cannot accept the proposition that the plaintiffs' decedents in this case were readily identifiable victims subject to imminent harm. As we observed in Shore v. Stonington, supra, 187 Conn. at 157, 444 A.2d 1379, "[t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society."

There is no error.

In this opinion the other Justices concurred.

1 The decedents were John Martin, Sr., John Martin, Jr., Michael Evon, Mary Evon and Shirley Hammick.

2 The first three counts of the five count complaint were directed against Horace Andrews, as owner of the building. The three counts allege that the decedents' death was caused by Horace Andrews' negligence,...