Northrup v. Witkowski

• Decision Date: 01 August 2017
• Docket Number: (AC 38878).
• Citation: 175 Conn.App. 223,167 A.3d 443
• Court: Connecticut Court of Appeals
• Parties: George NORTHRUP et al. v. Henry WITKOWSKI, Jr., et al.

175 Conn.App. 223

167 A.3d 443

George NORTHRUP et al.

v.Henry WITKOWSKI, Jr., et al.

(AC 38878).

Appellate Court of Connecticut.

Argued April 19, 2017

Officially released August 1, 2017

Joshua F. Gilman, Norwalk, for the appellants (plaintiffs).

Thomas Gerarde, with whom, on the brief, was Emily E. Holland, Hartford, for the appellees (defendants).

Alvord, Prescott and Mullins, Js.

PRESCOTT, J.

The underlying action arose as a result of the repeated flooding of residential property due to inadequate street drainage of which the municipality and its officials allegedly were aware but failed to correct. The plaintiffs, George Northrup and Helen Northrup,¹ the owners of the property at issue, appeal from the summary judgment rendered by the trial court in favor of the defendants—the borough of Naugatuck (town); Henry J. Witkowski, Jr., the town's former superintendent of streets; James Stewart, the former town engineer and, later, the town's director of public works;² and Robert A. Mezzo, the town's mayor³ —upon its determination that all counts of the plaintiffs' complaint were barred by governmental immunity.

The plaintiffs claim on appeal that the court improperly determined that (1) the defendants were entitled to governmental immunity on all counts as a matter of law because the acts or omissions of which they complained were discretionary rather than ministerial in nature, (2) the identifiable person-imminent harm exception to governmental immunity did not apply to the flooding at issue because the plaintiffs were not subject to imminent harm, and (3) the allegations of recklessness directed against the individual defendants could not be sustained as a matter of law. We disagree with the plaintiffs and, for the reasons that follow, affirm the judgment of the trial court.

The record before the court, viewed in the light most favorable to the plaintiffs as the nonmoving party, reveals the following facts and procedural history. The plaintiffs reside on property located in the town at 61 Nettleton Avenue. On eight different occasions between 2009 and 2012, the plaintiff's property was damaged when surface rainwater and/or "black water"⁴ inundated the property because the single catch basins in the area routinely became clogged or inadequately redirected water away from the property.

After the first occurrence in July, 2009, Helen Northrup contacted Stewart, who, at that time, was the town's supervisory engineer. He told her that the flooding was the result of a rare storm and that it would not happen again. Despite his assurance, however, flooding occurred again in October and December of that year. The plaintiffs continued to contact Stewart, to no avail. The plaintiffs made several requests to the town for sandbags; one such request was granted, but others were denied or simply ignored.

The town received a report in October, 2009, from an engineering firm about the Nettleton Avenue neighborhood. The report indicated that, over the past forty years, many residences in the neighborhood had experienced periodic flooding of their properties following periods of heavy rainfall. It further indicated that the drainage system in the area was likely to experience flooding after rainfalls of two inches or more, which could occur several times a year. The report attributed the flooding to the fact that runoff was required to flow through relatively narrow drainpipes that were in poor to fair condition and that the majority of catch basins in the area were old and had small openings that often became overgrown with vegetation or obstructed by trash. The report recommended that the town construct new, larger storm drains to handle the storm runoff in the area, but the town failed to adopt that proposal. The plaintiffs' property flooded again in July of 2010, March and August of 2011, and June and September of 2012.

The plaintiffs commenced the underlying action in February, 2010. They filed an amended complaint on March 11, 2013. The amended complaint contained nine counts. Counts one, two, and six sounded in negligence against Witkowski, Jr., Stewart, and the town. Counts three through five alleged common-law recklessness against the individual defendants. Counts seven through nine alleged negligent infliction of emotional distress against Witkowski, Jr., Stewart, and the town.

On April 5, 2013, the defendants filed a motion to strike all but the negligence counts. Specifically, the defendants argued that the counts alleging common-law recklessness against the individual defendants should be stricken because they failed to set forth allegations of conduct that would give rise to a finding of recklessness. Further, the defendants argued that the counts sounding in negligent infliction of emotional distress should be stricken because such a cause of action cannot arise from allegations of damage to property only. The plaintiffs filed an opposition to the motion to strike alleging that all causes of action were sufficiently pleaded given those allegations that were expressly pleaded as well as those necessarily implied.

The court, Frechette, J. , issued an order denying the motion to strike as to the recklessness counts, but granting the motion as to those counts alleging negligent infliction of emotional distress. The court stated in its order that "[t]aken as admitted, the plaintiff's allegations of recklessness are sufficient." The court nevertheless agreed "with the vast majority of Superior Court decisions which hold that Connecticut does not recognize a cause of action for negligent infliction of emotional distress arising solely out of a property damage claim."

On June 4, 2013, the plaintiffs filed the operative second amended complaint, in which, among other things, they repleaded their counts alleging negligent infliction of emotional distress. The defendants filed a revised answer on February 27, 2014, in which they raised special defenses of contributory negligence, governmental immunity, and failure to mitigate damages. A certificate of closed pleadings and a claim for the trial list was filed on May 4, 2015.

On October 30, 2015, the defendants filed the motion for summary judgment underlying the present appeal. The defendants submitted a supporting memorandum of law, attached to which were partial transcripts from the depositions of Helen Northrup and the individual defendants, as well as an affidavit by Stewart. The defendants argued that the negligence counts, including those alleging negligent infliction of emotional distress, were barred by governmental immunity because they involved acts or omissions that required the exercise of judgment or discretion, and no other recognized exception to governmental immunity applied. The defendants further argued that the recklessness counts brought against the individual defendants also failed as a matter of law because, on the basis of the allegations and evidence presented, no reasonable fact finder could determine that the individual defendants had engaged in demonstrably reckless conduct.

The plaintiffs filed an objection to the motion for summary judgment on November 18, 2015, arguing with respect to the negligence counts that there remained genuine issues of material fact as to whether the defendants were exercising ministerial or discretionary duties and, if discretionary, whether the identifiable person-imminent harm exception to governmental immunity applied. With regard to the recklessness counts, the plaintiffs argued that a genuine issue of material fact exists as to whether the conduct of the individual defendants rose to the level of recklessness. The plaintiffs attached a number of exhibits to their objection, including portions of the deposition testimony of Helen Northrup, Stewart, and Witkowski, Jr.; an affidavit from Helen Northrup; a copy of the "October, 2009 Stormwater Management Report for the Nettleton Avenue Neighborhood"; a copy of chapter 16, article II, § 16–32 of the town's code of ordinances; Witkowski, Jr.'s and Stewart's answers to the plaintiffs' interrogatories; and copies of sewer back-up reports and citizen complaints regarding problems at nearby properties. The defendants filed a reply memorandum.

Oral argument on the motion was heard by the court, Blue, J. , on January 4, 2016. During argument regarding whether there were sufficient facts in evidence to submit the recklessness counts to a jury, the court asked the plaintiffs' counsel whether he knew of "any case in Connecticut or elsewhere where a town or town official has been held liable in recklessness" in a situation similar to the present case. Counsel answered in the negative, but asked for an opportunity to submit a supplemental brief addressing the court's question. The court agreed, with the consent of the defendants' counsel, and continued the matter to January 19, 2016, for supplemental argument on the recklessness counts. The plaintiffs submitted their supplemental brief on January 8, 2016, and the defendants filed a brief in response on January 15, 2016. Argument on the motion for summary judgment resumed on January 19, 2016.

On January 20, 2016, the court issued a memorandum of decision granting summary judgment in favor of the defendants on all counts. With respect to the negligence counts, including those counts alleging negligent infliction of emotional distress, the court concluded that the plaintiffs' specifications of negligence amounted to a "litany of discretionary omissions" and that their "allegations boiled down to a claim that the defendants failed to perform their municipal duties in an appropriate manner." The court determined that the city ordinance on which the plaintiffs relied in opposing summary judgment only set forth the general duties of the street department without any specific directions or mandates as to how those duties should be discharged. Accordingly, the court concluded that the defendants' acts or omissions in maintaining the town's drainage system...