Grady v. Town of Somers

• Decision Date: 22 December 2009
• Docket Number: No. 18208.,18208.
• Citation: 294 Conn. 324,984 A.2d 684
• Court: Connecticut Supreme Court
• Parties: Thomas GRADY v. TOWN OF SOMERS.

984 A.2d 684

294 Conn. 324

Thomas GRADY v.TOWN OF SOMERS.

No. 18208.

Supreme Court of Connecticut.

Argued September 9, 2009.

Decided December 22, 2009.

F. Timothy McNamara, Hartford, for the appellant(plaintiff).

Joseph M. Busher, Jr., Hartford, for the appellee(defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

NORCOTT, J.

The principal issue in this appeal is whether the common-law exception to a municipal employee's qualified immunity for discretionary acts, in circumstances that make it apparent that the employee's failure to act likely would subject an identifiable person to imminent harm (identifiable person, imminent harm exception), also applies in an action brought solely against a municipality pursuant to General Statutes § 52-557n(a).¹The plaintiff, Thomas Grady, appeals² from the trial court's grant of the motion for summary judgment filed by the defendant, the town of Somers, in this action arising from his fall on the ice at a transfer and recycling center (transfer station) owned and maintained by the defendant.On appeal, the plaintiff claims that the trial court improperly concluded that he could not resort to the identifiable person, imminent harm exception to maintain a direct action against the defendant under § 52-557n(a)(1)(A), and that the exception would be applicable only if he first had named a municipal employee as a codefendant, and then had claimed indemnification from the defendant pursuant to General Statutes § 7-465(a).³Although we agree with the plaintiff that the common-law identifiable person, imminent harm exception applies to the discretionary act immunity provided to municipalities by § 52-557n(a)(2)(B), we also agree with the defendant that the plaintiff was not a member of the class of persons subject to that exception.Accordingly, we affirm the judgment of the trial court on that alternate ground.

The record reveals the following undisputed facts and procedural history.The defendant operates and maintains a transfer station for refuse disposal within the town limits.The defendant's residents were permitted to access the transfer station only if they first had purchased a permit and displayed it on their vehicle.⁴On January 7, 2006, the plaintiff, who held a permit, went to the transfer station to dispose of his Christmas tree in a specially designated area, which was lower in elevation than the rest of the transfer station.While there, he walked around to the back of his pickup truck and slipped on an ice patch, sustaining a fractured ankle that required surgery, as well as soft tissue injuries to his knee and wrist.Although several of the defendant's employees were on duty at the time that the plaintiff fell, none were in the vicinity where he was injured, and there was no evidence of how long the ice patch had been in existence prior to his fall.

After giving the defendant notice of his claim pursuant to General Statutes § 7-101a(d),⁵the plaintiff brought this action for money damages and lost wages, claiming that the defendant had breached its duty to maintain the transfer station in a safe condition by failing to warn of dangerous ice conditions, or to spread sand and salt or similar material on the icy area where he fell.The plaintiff did not name any of the defendant's individual employees as defendants in this action.Thereafter, along with its answer, the defendant filed numerous special defenses, including that it: (1)"was engaged in and was performing a governmental function requiring the exercise of judgment and/or discretion and as such is immune from liability under the theory of governmental immunity"; and (2)"is immune from liability pursuant to the provisions of § 52-557(a)(2)(B), in that it was engaged in performing a governmental function requiring the exercise of judgment and/or discretion."

Following discovery, the defendant moved for summary judgment, arguing that the plaintiff had failed to allege any claim that would overcome the defendant's governmental immunity.Despite the plaintiff's failure to cite § 52-557n(a) in his complaint as the sole basis for his claim against the defendant, a municipality,⁶the trial court stated that the statute"incorporates the three exceptions to governmental immunity previously recognized under the common law," namely, the negligent performance of ministerial acts, tortious conduct in the performance of proprietary, for-profit functions, and the intentional creation of a nuisance by positive acts.The trial court first concluded that, because the defendant had not promulgated rules, guidelines or procedures for the maintenance of the transfer station, maintenance was a discretionary— rather than a ministerial—task for which it was immune from liability pursuant to § 52-557n(a)(2)(B).⁷Relying on the history of § 52-557n(a), and this court's decisions in Pane v. Danbury,267 Conn. 669, 841 A.2d 684(2004), andSestito v. Groton,178 Conn. 520, 423 A.2d 165(1979), the trial court then rejected the plaintiff's argument, founded on Doe v. Petersen,279 Conn. 607, 903 A.2d 191(2006), that the identifiable person, imminent harm exception applicable to municipal employees' common-law qualified immunity should be extended directly to municipalities themselves in actions brought under § 52-557n(a).The trial court stated that the text of § 52-557n(a)"conspicuously lacks any exception to immunity resembling the [identifiable victim] imminent harm exception" and concluded that the plaintiff"cannot resort to the [identifiable victim] imminent harm exception applicable to municipal employees to vanquish the immunity from liability expressly afforded to municipalities for negligent, discretionary acts by § 52-557n(a)(2)(B)."

(Emphasis in original.)Accordingly, the trial court granted the defendant's motion for summary judgment, and this appeal followed.See footnote 2 of this opinion.

On appeal, the plaintiff claims that the trial court improperly concluded that the identifiable person, imminent harm exception does not apply in an action brought pursuant to § 52-557n(a) directly against a municipality.The plaintiff further claims that he was a member of the class of persons that was subject to that exception.

Before addressing the plaintiff's claims in greater detail, we note that, "[b]ecause the present case was disposed of by way of summary judgment, we first address the appropriate framework for appellate review of a summary judgment determination.Practice Book§ 17-49 provides that 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.In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party....The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law ....On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court....Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary."(Internal quotation marks omitted.)Sokaitis v. Bakaysa,293 Conn. 17, 21-22, 975 A.2d 51(2009).

I

We begin with the plaintiff's claim that the identifiable person, imminent harm exception applies to the discretionary act immunity afforded by § 52-557n(a)(2)(B) in an action brought directly against a municipality under that statute.Specifically, he argues that, under Pane v. Danbury,supra, 267 Conn. at 677-78 n. 9, 841 A.2d 684, andSpears v. Garcia,263 Conn. 22, 29, 818 A.2d 37(2003), a direct cause of action for negligence may be maintained pursuant to § 52-557n(a) against a municipality without the requirement that one of its employees be named as a defendant, as well.The plaintiff further contends that, under Doe v. Petersen,supra, 279 Conn. at 616, 903 A.2d 191, liability may be imposed upon a municipality under § 52-557n(a)"when the circumstances make it apparent to [a] public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm...."(Internal quotation marks omitted.)Violano v. Fernandez,280 Conn. 310, 320, 907 A.2d 1188(2006).

In response, the defendant contends that, at common law, municipalities were protected by governmental immunity from both direct and vicarious liability but, in contrast, municipal employees had a more limited qualified immunity that was subject to the identifiable person, imminent harm exception.The defendant also relies on Spears v. Garcia,supra, 263 Conn. at 28-29, 818 A.2d 37, andPane v. Danbury,supra, 267 Conn., at 677-78 n. 9, 841 A.2d 684, and emphasizes that § 52-557n(a), which is a statutory exception to common-law governmental immunity, should be strictly construed, and its scope of liability not enlarged, because it does not contain an identifiable person, imminent harm exception for immunity arising from municipal employees' discretionary acts.The defendant also contends that any indication to the contrary in Doe v. Petersen,supra, 279 Conn. at 607, 903 A.2d 191, is dicta.We agree with the plaintiff and conclude that the identifiable person, imminent harm exception to qualified immunity for an employee's discretionary acts is applicable in an action brought under § 52-557n(a) to hold a municipality directly liable for those acts.

Whether the identifiable person, imminent harm exception provides a basis for liability under § 52-557n(a) presents a question of statutory interpretation, which is "a question over which we exercise plenary review....The principles that govern...