Fox v. Town of Thomaston

• Decision Date: 18 December 2017
• Docket Number: LLICV166014055S
• Court: Connecticut Superior Court
• Parties: Scott FOX v. TOWN OF THOMASTON

Scott FOX v. TOWN OF THOMASTON

No. LLICV166014055S

Superior Court of Connecticut, Judicial District of Litchfield, Torrington

December 18, 2017

UNPUBLISHED OPINION

OPINION

Bentivegna, J.

FACTS

On September 28, 2016, the plaintiff, Scott Fox, filed a two-count revised complaint against the town of Thomaston (town) (count one); and the Thomaston board of education (board of education) (count two) and alleges the following facts. The town owned, but the town and the board of education operated, managed or controlled Thomaston Center School (the school), located in Thomaston. On September 17 2014, the plaintiff, an invitee to the school, attempted to make a delivery through the rear doorway entrance to the school cafeteria. The plaintiff backed up and pulled a hand truck through that doorway, but suffered a severe laceration to his right elbow when his right arm leaned against an oversized metal cover plate attached to a surface mounted electrical switch box.

The plaintiff alleges that the defendants breached their duty to make the school property reasonably safe for invitees. Specifically, the defendants violated sections 7.2.1.3.1 and 7.2.1.3.2 of the fire code " by creating or allowing to exist a variation of the floor surfaces on both sides of the door by more than 13 mm (1/2" inch), " as well as section 1017.1.1^[1] of the building code " by not making the floor surface on both sides of the door the same elevation. The floor surface over which the door wings shall be at the same elevation as the floor level at the threshold and shall extend from the door in the closed position a distance equal to the door width." There was " no landing on the exterior side of the doorway in violation of the building and fire codes where invitees, such as the plaintiff, were likely to travel, " which caused the plaintiff to " lift and pull the hand truck up the step which caused the plaintiff to lean back and put up his atria on the wall for support." The defendants " failed to provide a proper size switch cover which allowed the sharp edge of the cover plate to extend past the body of the electrical box leaving a dangerous sharp exposed edge." In terms of the electrical socket, there were no " warning or caution signs, " " lighting or illumination" present around the electrical socket. The defendants " knew or should have known" that the " uneven floor surfaces on both sides of the door " without signs and illumination where invitees like the plaintiff were likely to travel, created a dangerous condition that existed for an unreasonable time, but the defendants failed to take any measures to remedy and correct the same, or take precautions to prevent injuries to the plaintiff. The plaintiff alleges that he was unaware and " unlikely to discover the existence of such condition and the danger posed." The defendants failed to make a proper and reasonable inspection and failed to warn the plaintiff of the hazardous and dangerous condition. The plaintiff seeks damages.

On December 21, 2016, the defendants filed an answer, where in relevant part, they admit that the town owned the property where the school is located and that the board of education was in possession and control of the property, but deny allegations of negligence, and largely leave the plaintiff to his proof on the remaining allegations in the revised complaint. The defendants also filed two special defenses. The first special defense alleges that the plaintiff’s action is barred because the defendants are entitled to discretionary act immunity under General Statutes § 52-557n(a)(2)(B). The second special defense alleges that the plaintiff’s action is barred because the defendants are entitled to governmental immunity for discretionary acts. On December 27, 2016, the plaintiff denied the special defenses.

On April 28, 2017, the defendants filed a motion for summary judgment, memorandum of law, and sworn and notarized affidavits of Roger Natusch, the building inspector for the town, Robert Norton, the fire marshal for the town, Francine Coss, the superintendent of schools for the board of education, and Edmond V. Mone, the first selectman of the town. The defendants move for summary judgment on the revised complaint on the ground the plaintiff’s allegations " involved the exercise of judgment and discretion, " which entitle the defendants to governmental immunity under § 52-557n(a)(2)(B). The defendants contend that the alleged conduct does not fit within any recognized exception to governmental immunity for the plaintiff to maintain the present action. In addition, the defendants argue that there is no ministerial exception to governmental immunity because the fire and building codes do not apply to the area of the school where the plaintiff allegedly sustained his injury.

On August 14, 2017, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment, along with an unauthenticated and unsworn letter from a third party, Mark W. Tebbets. The court heard the matter at short calendar on September 18, 2017.

DISCUSSION

Practice Book § 17-49 provides in relevant part: " [Summary judgment] shall be rendered forthwith if the pleadings affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." " [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell -Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).

" The general rule ... is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity." (Citation omitted.) Spears v. Garcia, 66 Conn.App. 669, 677, 785 A.2d 1181 (2001), aff’d, 263 Conn. 22, 818 A.2d 37 (2003). General Statutes § 52-557n " abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property." (Internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.3d 1132 (2002). Section § 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 willful 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." " The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property [in § 52-557n(b) ]." (Internal quotation marks omitted.) Segreto v. Bristol, supra, 850.

A Negligence and the Building & Fire Codes

The defendants move for summary judgment on the revised complaint, essentially, on the ground that section 52-557n(a)(1)(B) applies to this case. The defendants’ argument is that the negligent acts or omissions alleged in the plaintiff’s revised complaint would require the defendants’ exercise of judgment or discretion, and therefore, the defendants are entitled to municipal immunity. In support of their argument that there is no ministerial exception to municipal immunity in the present case, the defendants submit copies of sworn and notarized affidavits of Roger Natush, the building inspector for the town, and Robert Norton, the fire marshal for the town, who together attest that the building code and fire code provisions do not apply to the area where the plaintiff allegedly sustained his injury.

" [I]nterpretation of provisions of the building code [and fire code] may be a question of law for the court ..." Lasisomphone v. Izzo, Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No X-04-CV-00-4000530-S (November 3, 2004, Quinn, J.). Despite the foregoing, the Izzo court declined to enter summary judgment for the town on the ground the building code was inapplicable to the premises...