Gauvin v. City of New Haven

• Decision Date: 18 May 1982
• Citation: Gauvin v. City of New Haven, 187 Conn. 180, 445 A.2d 1 (Conn. 1982)
• Court: Connecticut Supreme Court
• Parties: Gilbert R. GAUVIN v. CITY OF NEW HAVEN.

Page 1

445 A.2d 1

187 Conn. 180

Gilbert R. GAUVIN v.CITY OF NEW HAVEN.

Supreme Court of Connecticut.

Argued March 11, 1982.

Decided May 18, 1982.

Robert S. Reger, Sp. Asst. Corp.Counsel, New Haven, for appellant(defendant).

Robert E. Reilly, Madison, with whom, on the brief, was Frederick P. Amore, for appellee(plaintiff).

Before SPEZIALE, C. J., and HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

ARMENTANO, Associate Justice.

This appeal raises the issue of whether a municipality must specially plead governmental immunity to merit its consideration as a defense to an action alleging the negligent operation of a city park.

One of the fingers in the plaintiff's dominant hand was broken when a link in a chain supporting a playground swing on which he was sitting broke.The plaintiff brought an action in negligence against the defendant city, alleging that the defendant's failure to exercise reasonable care in maintaining the chain links of the swing, located in Lighthouse Park in New Haven, proximately caused his personal injuries and damages.Specifically the plaintiff alleged that the defendant, its officers, agents, servants and employees, failed to replace rusted chain links, failed to warn the public that the swings were unsafe, failed to prevent the public from using the unsafe swing, failed reasonably to inspect the swing for defects, and failed reasonably to maintain the swing.

In its answer the defendant admitted that it was a municipal corporation and denied the allegations relating to liability in the complaint.As a special defense, the defendant alleged that the plaintiff's negligence was the proximate cause of his personal injuries and damages.The defendant did not in its pleadings, or at trial, expressly raise governmental immunity as a defense.

Two days after the one-day trial, the court asked the plaintiff's counsel in a letter, with a copy to defendant's counsel, upon what theory of liability he was proceeding.The record does not indicate what precipitated the letter.After receiving a copy of the letter, counsel for the defendant requested counsel for the plaintiff to provide him with a copy of the plaintiff's response to the court's letter so that he would have an opportunity to address the issues raised in the response.Counsel for the plaintiff explained in a letter to the court that the action was brought in negligence, and noted that governmental immunity should have been, but was not, pleaded as a special defense.Counsel for the plaintiff contended that the defense should not, therefore, be considered by the court.

Upon receipt of that letter, the court requested counsel for the defendant to respond thereto.In complying with that request, the defendant for the first time expressly claimed that the defendant was not liable for any negligence in the operation of a public park because it is a governmental function.The defendant further claimed that governmental immunity need not be raised in a special defense, which claim was countered by counsel for the plaintiff in a subsequent letter to the court.

In its memorandum of decision the trial court declined to consider the governmental immunity defense because it was not pleaded specially.To allow the defendant to raise the defense after the trial had concluded, the court explained, would unfairly prejudice the plaintiff.The court further reasoned that if the defendant had been negligent in performing a ministerial act then governmental immunity would not relieve it of liability, but the court did not expressly address whether the acts complained of were ministerial in nature.Finding that the defendant was negligent in not repairing the swing, or in failing to prevent the public from using it, when the defendant had constructive notice that one of the chain links was rusted and worn, the court awarded the plaintiff $2400 for his personal injuries and damages, plus costs.In its appeal the defendant claims that the court erred in not considering and upholding the defense of governmental immunity.

A municipality is immune from liability for the performance of governmental acts, as distinguished from ministerial acts.Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.See, e.g., Spitzer v. Waterbury, 113 Conn. 84, 87, 154 A. 157(1931);Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11(1921);Boucher v. Fuhlbruck, 26 Conn.Sup. 79, 82, 213 A.2d 455(1965).On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.Tango v. New Haven, 173 Conn. 203, 204-205, 377 A.2d 284(1977);Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176(1975);Pluhowsky v. New Haven, 151 Conn. 337, 347, 197 A.2d 645(1964);Blake v. Mason, 82 Conn. 324, 327, 73 A. 782(1909);Boucher v. Fuhlbruck, supra, 26 Conn.Sup. 81-82, 213 A.2d 455.

When governmental immunity is fully litigated at trial, and evidence material thereto is introduced without objection by the plaintiff, this court has held that the defense need not be raised as a special defense in the pleadings to permit its consideration.O'Donnell v. Groton, 108 Conn. 622, 625, 144 A. 468(1929).Under those circumstances, the plaintiff is deemed to have waived his objection to the failure to plead a special defense.Cf.Alderman v. Hanover Ins. Group, 155 Conn. 585, 590, 236 A.2d 462(1967), aff'd after remand, 169 Conn. 603, 363 A.2d 1102(1975).Under most other circumstances however, including those present in this case, the defense is like those that require pleading as a special defense under Practice Book§ 164.¹SeePractice Book§ 165;Wright v. Coe & Anderson, Inc., 156 Conn. 145, 156, 239 A.2d 493(1968);Trzaska v. Hartford, 12 Conn.Sup. 301, 302(1943).But seeAtwell v. Middletown, 16 Conn.Sup. 395, 399(1949);Young v. Stamford, 15 Conn.Sup. 442, 443(1948).Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded.ComparePawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583(1973), withTrzaska v. Hartford, supra, 302.The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway.Pawlinski v. Allstate Ins. Co., supra, 165 Conn. at 6, 327 A.2d 583.

But for the post trial events in the present case, therefore, the court would not have been bound to consider the governmental immunity defense because it was not pleaded as a special defense and nothing in the record indicates that the plaintiff waived any objection he had to the defendant's failure to comply with the requirement of pleading.A trial court may request counsel to clarify claims after the evidence is closed and arguments are completed, and is usually free to exercise its discretion in deciding whether to permit an amendment to pleadings submitted by counsel in response.SeeGeneral Statutes § § 52-128, 52-130;Practice Book§§ 108, 176;Evans v. Byrolly Transportation Co., 124 Conn. 10, 12, 197 A. 758(1938);cf....