Gordon v. Bridgeport Housing Authority

Citation208 Conn. 161,544 A.2d 1185
Decision Date05 July 1988
Docket NumberNo. 13232,13232
CourtSupreme Court of Connecticut
PartiesVirginia N. GORDON, Conservatrix (ESTATE OF Arthur R. NAVARETTE) v. BRIDGEPORT HOUSING AUTHORITY et al.

Susan K. Smith, Hartford, with whom, on the brief, was A. Susan Peck, for appellant (plaintiff).

John H. Barton, Associate City Atty., for appellees (defendant city et al.).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and GLASS, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal arises out of an action by the plaintiff, Virginia N. Gordon, conservatrix of the estate of her brother, Arthur R. Navarette, an incapable, for injuries that he suffered in a beating at the Marina Apartments housing project in Bridgeport. The defendants include the city of Bridgeport, the Bridgeport housing authority (BHA), commissioners Stephen Katz, Clarence T. Williams, Jeri Boyd, Gino Cassidy and Raymond J. Alletto of the BHA, former mayor Leonard S. Paoletta, Sr., chief of police Joseph A. Walsh, and the Bridgeport police department. The defendant city of Bridgeport filed a motion to strike the third and fourth counts of the plaintiff's complaint. The trial court, Ripley, J., granted the motion as to the defendants Paoletta, Walsh, the city of Bridgeport and the Bridgeport police department and the plaintiff filed this appeal. We find no error.

The pleadings in the case reveal the following background facts. In the early evening hours on November 26, 1983, Navarette stopped at a convenience store at 321 Main Street near the Marina Apartments housing project. Navarette encountered a group of youths and one youth forcibly grabbed Navarette's wallet and fled into the project. Two other youths lured Navarette inside the project on the pretext that they would help him recover the wallet. The youths then pulled Navarette under a dark stairwell inside a building in the project and physically beat him with their fists, feet, bottles and blunt instruments just "short of death." Navarette was admitted to Park City Hospital in a "brain dead" condition. As a result of the attack, Navarette, who currently resides at New Britain Memorial Hospital, is catastrophically brain injured and will require permanent skilled and custodial institutional care for the remainder of his life.

The plaintiff filed a four count complaint against the various defendants. The first count alleges that the BHA and the city of Bridgeport were negligent in managing and in providing security to the housing project. It also alleges that the BHA, operating in its capacity as managing agent for the city, is guilty of gross mishandling and misappropriation of funds. The second count names the individual members of the housing authority as defendants and alleges theories of negligence similar to those asserted in the first count. Neither the first nor the second count is the subject of this appeal. The third count names Paoletta and the city as defendants while the fourth count names Walsh, the police department and the city as defendants. The essence of the third and fourth counts of the complaint, referring to a "Cooperation Agreement" between the BHA and the city concerning the providing of the "usual municipal services" to the project, is that the defendants negligently created a condition conducive to crime and failed to provide adequate security at the housing project. It is also alleged that the foregoing breaches violated General Statutes § 47a-7(a)(2) and (3) 1 (duty of a landlord to keep premises in a safe and habitable condition) and General Statutes § 47a-54d 2 (duty of a landlord to maintain interior lighting). The defendant city filed a motion to strike counts three and four of the complaint on the ground that the city and its employees owed no duty to Navarette. The trial court, Ripley, J., granted the motion to strike, holding that the defendant city et al. owed no duty to provide police protection to Navarette, because he was an unidentifiable person within the meaning of Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982). The trial court's memorandum of decision also found that the city had no duty to maintain lights and other security devices because the BHA is an independent body "corporate and politic" and therefore is not an agency of the city.

The plaintiff claims that: (1) the trial court erred in ruling that the city and its representatives owed no duty to Navarette as a matter of law; (2) the complaint sufficiently pleaded facts which, if proved, would give rise to a ministerial or "operational" construction of the city's duty; (3) the trial court erred in ruling as a matter of law that the city did not stand in an agency relationship to the BHA; (4) even if the city's duty is discretionary, the city's acts of undertaking certain obligations created a duty to a foreseeable class of persons; and (5) this court should abrogate the public duty doctrine. We conclude that none of the plaintiff's claims is persuasive.

I

Although the plaintiff raises five separate claims, her first, second, fourth and fifth claims relate to the issue of whether the defendants owed a duty to Navarette and whether, under the facts well pleaded, the defendants could be held liable for negligently performing that duty.

A

The first claim concerns whether the trial court erred in ruling that the city and its representatives owed no duty to Navarette as a matter of law. The plaintiff, however, asserts that there is a threshold inquiry in the area of municipal liability--deciding if the official acts or omissions are ministerial or discretionary--and because that is a question for the trier of fact, it is inappropriate to decide the issue on a motion to strike. The plaintiff relies heavily on a statement in Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982), that "[w]hether the acts complained of in operating a city park were governmental or ministerial is a factual question which depends upon the nature of the act complained of." The plaintiff also refers to Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979), Tango v. New Haven, 173 Conn. 203, 204, 377 A.2d 284 (1977), and a number of Superior Court cases that hold, on varying fact patterns, that the issue of governmental immunity is a question of fact.

Before reaching the precise issue before us on this claim, it is instructive to outline briefly the doctrine of municipal immunity in Connecticut. 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); but its employees faced the same personal tort liability as private individuals. "It was once said that as a general rule governmental officers and employees were personally liable for their torts, more or less without exception, even where the governmental unit itself was protected by an immunity." W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 132, p. 1056, see also G. Bermann, "Integrating Governmental and Officer Tort Liability," 77 Colum.L.Rev. 1175, 1178 (1977); 63A Am.Jur.2d, Public Officers and Employees § 358 (1984). This court first adopted a version of qualified official immunity in 1920 in Wadsworth v. Middletown, 94 Conn. 435, 439, 109 A. 246 (1920), where we said that since certain public officials were "engaged upon a governmental duty ... so long as they act in good faith, in the exercise of an honest judgment, and not in the abuse of their discretion, or maliciously or wantonly, they cannot be held liable." Thus, an exception to liability was carved out for discretionary acts, as long as they were not performed maliciously, wantonly or in an abuse of discretion.

This court subsequently adopted the public duty doctrine, which provided even more immunity to public officials. Leger v. Kelley, 142 Conn. 585, 589-90, 116 A.2d 429 (1955). Reaffirming the public duty doctrine in Shore v. Stonington, supra, 187 Conn. at 152, 444 A.2d 1379, we said: " '[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed if at all in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it or to perform it properly, is an individual wrong, and may support an individual action for damages.' Leger v. Kelley, [supra]; see also South v. Maryland, 59 U.S. (18 How.) 396, 402-403, 15 L.Ed. 433 (1855); Massengill v. Yuma County, 104 Ariz. 518, 521, 456 P.2d 376, 379 (1969); 2 Cooley, Torts (4th Ed.) § 300; 63 Am.Jur.2d, Public Officers and Employees § 287; 65 C.J.S., Negligence § 4(8); annot., 41 A.L.R.3d 700."

The court in Shore also went on to say: "Policy considerations have also resulted in the establishment of certain exceptions which provide that an individual cause of action may be brought against an official for breach of duty without regard to whether the duty is technically a public or private one." Id., 187 Conn. at 153, 444 A.2d 1379. The Shore opinion outlined limited exceptions to the rule that officials who undertake discretionary actions are immune from civil liability. "[W]here the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal." Id. One exception is when "it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm." Id.; see, e.g., Sestito v. Groton, supra, 178 Conn. at 528, 423 A.2d 165. Another exception is where "a statute may specifically provide for a cause of action against an official or a municipality for failure to enforce certain laws, such as those designed to prevent disturbances of...

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