Manning v. Barenz

• Decision Date: 25 February 1992
• Docket Number: No. 14308,14308
• Citation: 603 A.2d 399,221 Conn. 256
• Court: Connecticut Supreme Court
• Parties: Keith T. MANNING, et al. v. Harold J. BARENZ, et al.

Page 399

603 A.2d 399

221 Conn. 256

Keith T. MANNING, et al. v. Harold J. BARENZ, et al.

No. 14308.

Supreme Court of Connecticut.

Argued Dec. 3, 1991.

Decided Feb. 25, 1992.

David W. Cooney, with whom was Kathryn Calibey, Hartford, for appellants (plaintiffs).

Andrew J. O'Keefe, with whom were Denise Martino Phelan and, on the brief, Michael J. Walsh, Hartford, for appellees (defendants).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and BORDEN, JJ.

COVELLO, Justice.

This is a suit in negligence and nuisance against a municipality and four of its employees seeking damages for personal injuries sustained at a municipal park when the lid of a metal storage box fell on the named plaintiff's hand. At the close of the pleadings, the defendants moved for summary judgment claiming that the action is barred by the Connecticut recreational land use act, General Statutes § 52-557f et seq. ¹ The trial court granted the motion. Upon appeal, the Appellate Court affirmed, concluding that § 52-557g grants immunity to both the municipality and its employees. Manning v. Barenz, 24 Conn.App. 592, 590 A.2d 980 (1991). We thereafter granted the plaintiffs' petition for certification limited to the following issues: (1) whether the recreational land use act, § 52-557f et seq., applies to (a) municipalities, and (b) municipal employees; and (2) if the act does apply, whether it applies to the conduct of these defendants with respect to this particular storage box. We affirm.

An examination of the pleadings and affidavit supporting the motion for summary judgment discloses the following. On August 8, 1986, the named plaintiff, Keith T. Manning, a two year old boy, was playing at Pershing Park, a municipal park owned by the town of Bloomfield and open to the public without charge. While the named plaintiff was reaching into a large metal box where the town kept toys and other recreational items, the lid of the box fell on his thumb causing serious injuries. At the time of the incident, the town was conducting a summer recreational program for residents from the ages of six to thirteen; the named plaintiff was not enrolled or participating in that program. The defendant municipal employees managed and supervised the park and the summer recreational program at the park.

I

The plaintiffs ² first claim that the recreational land use act, § 52-557f et seq., and specifically § 52-557g(a), which limits the liability of an owner of land to persons using the land for recreational purposes, does not apply to municipalities. They argue that because § 52-557g(a) is ambiguous as to whether a municipality should be considered an "owner of land," we should seek guidance from the legislative history and relevant case law interpreting the statute. The plaintiffs maintain that because the legislative history and Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 168-69, 508 A.2d 58 (1986), indicate that one purpose behind the statute was to encourage private land owners to open their land to public use, it follows that the phrase, "owner of land," should be strictly construed to include only private land owners. We disagree.

The plaintiffs have offered no reasonable explanation why the phrase, "owner of land," should be considered ambiguous nor do we see any. "Where the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intent of the legislature and there is no need for statutory construction or a review of the legislative history." All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 195, 567 A.2d 1156 (1989). The definition of "owner" in § 52-557f(3) includes "the possessor of a fee interest." It is undisputed that the defendant municipality possesses the fee interest in the park in question. In order to fall within the purview of § 52-557g(a), the defendant municipality must establish only that it is the possessor of the fee interest in land available to the public without charge for recreational purposes. This it has done. ³ We conclude that § 52-557g applies to all land owners--municipal and private. ⁴

II

The plaintiffs next argue that even if the recreational land use act; § 52-557f et seq.; applies to municipalities, it does not apply to municipal employees. ⁵ The plaintiffs claim, inter alia, that because municipal employees cannot be considered "owners of land" pursuant to § 52-557g(a) and the statute does not specifically extend immunity to them, the defendant employees should be held liable. They contend, further, that the defendant municipality should indemnify their employees, pursuant to General Statutes § 7-465. ⁶ We conclude that § 52-557f et seq. extends to a municipality's employees and, therefore, we do not reach the indemnification issue.

Pursuant to § 52-557f(3), "owner" means, inter alia, a "person in control of the premises." The persons in control of the premises here were those who managed and supervised the park, i.e., the defendant employees. The plaintiffs concede as much in their complaint in their description of the defendant employees' duties. The named defendant, Harold Barenz, director of parks and recreations for the town of Bloomfield, is described as "charged with the care, control, and supervision of all parks and recreational facilities, including summer programs, within the ... town." The three remaining defendant employees are described as charged with the supervision of the summer recreational program and with the care and protection of the children participating in the program. Because the defendant employees must be considered within the definition of "owners" by reason of their being "persons in control of the premises," they fall within the immunity created by this statute. To hold otherwise would render the statute meaningless. The plaintiffs could completely bypass this legislation by simply bringing suit against the municipal employee and then requiring the municipality to indemnify its employee pursuant to § 7-465.

III

The plaintiffs' final claim is that even if the recreational land use act; § 52-557f et seq.; applies to municipalities and their employees, it should not apply to the conduct of these defendant employees. The plaintiffs argue that: (1) their allegations of failure to supervise are distinguishable from the immunity granted pursuant to § 52-557g(a) that refers to failures to warn of "a dangerous condition, use, structure or activity on the land"; (2) the metal box was moveable and thus not "land" as required in order to qualify for the statutory immunity; and (3) the plaintiff was not at the park for a recreational purpose and, therefore, the municipality should not be protected by this statute. We disagree.

Pursuant to § 52-557g(b)(3), an owner of land who permits free access to the land for recreational purposes does not thereby "assume responsibility for or incur liability for any injury to person ... caused by an act or omission of the owner" except in the case of wilful or malicious acts. (Emphasis added.) Any alleged failure to supervise the named plaintiff here would clearly constitute an omission and would, therefore, be covered by this statute.

The issue whether the metal box should be considered "land" is irrelevant in light of the extension of immunity for "an act or omission of the owner" with respect to a "dangerous condition, use, structure or activity on the land." (Emphasis added.) General Statutes § 52-557g(a) and (b)(3). The metal box is clearly a structure on the land; the statute neither requires the metal box to be considered "land," or to be affixed to the land, in order for the immunity in question to apply to the defendants.

The plaintiffs' attempt to characterize the activity leading to the injury at issue as not being within the definition of "recreational purpose" is also without merit. While it is true that children's play at a park is not one of the enumerated "recreational purposes" listed in § 52-557f(4), ⁷ this statute clearly states that " '[r]ecreational purpose' includes, but is not limited to, any of the following...." (Emphasis added.) It is evident that the enumerated activities set forth in the statute are not exclusive.

The judgment is affirmed.

In this opinion the other Justices concurred.

1 General Statutes § 52-557f provides: "LANDOWNER LIABILITY FOR RECREATIONAL USE OF LAND. DEFINITIONS. As used in sections 52-557f to 52-557i, inclusive:

"(1) 'Charge' means the admission price or fee asked in return for invitation or permission to enter or go upon the land;

"(2) 'Land' means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty;

"(3) 'Owner' means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises;

"(4) 'Recreational purpose' includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning and viewing or enjoying historical, archaeological, scenic or scientific sites."

General Statutes § 52-557g provides: "LIABILITY OF OWNER OF LAND AVAILABLE TO PUBLIC FOR RECREATION; EXCEPTIONS.PTIONS. (a) Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.

"(b) Except as provided in section 52-557h, an owner of land who, either directly or indirectly, invites or permits without charge, rent, fee or other...