Segreto v. Bristol

• Decision Date: 27 August 2002
• Docket Number: (AC 22081)
• Citation: 71 Conn. App. 844,804 A.2d 928
• Court: Connecticut Court of Appeals
• Parties: FRANCES SEGRETO v. CITY OF BRISTOL

71 Conn. App. 844

804 A.2d 928

FRANCES SEGRETO v. CITY OF BRISTOL

(AC 22081)

Appellate Court of Connecticut.

Argued May 6, 2002.

Officially released August 27, 2002.

Foti, Mihalakos and Flynn, Js.

Donald R. Holtman, for the appellant (plaintiff).

Daniel C. DeMerchant, for the appellee (defendant).

Opinion

FLYNN, J.

In this negligence action, the plaintiff, Frances Segreto, appeals from the judgment of the trial court rendered following the granting of the motion for summary judgment filed by the defendant city of Bristol (city) on its special defense of governmental immunity. The sole issue on appeal is whether the trial court properly determined that the city was entitled to judgment as a matter of law because the plaintiff's complaint alleged that the city negligently had performed a discretionary act, rather than a ministerial act, and the city was, therefore, immune from liability pursuant to General Statutes § 52-557n (a) (2) (B). We answer that question in the affirmative and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff filed a one count complaint against the city, alleging that she had sustained injuries in a fall on a stairway located on the premises of a senior center that was owned and operated by the city.¹ She further alleged that her fall and resulting injuries were due to the negligence of the city or its employees. The city filed an answer, denying that it was negligent in any of the ways alleged by the plaintiff, and three special defenses,² one of which was that the plaintiffs claim was barred by the doctrine of governmental immunity both at common law and pursuant to § 52-557n.³ Thereafter, the city filed a motion for summary judgment claiming that it was entitled to judgment as a matter of law on its special defense of governmental immunity. Along with its motion for summary judgment, the city submitted the affidavit of Steven Rybczyk, the city's claims and loss coordinator, who attested that although the city was responsible for the inspection, maintenance and repair of the stairway, it did not have a policy or procedure in place for maintaining, inspecting or repairing the stairway, except for snow and ice removal. The court granted the city's motion for summary judgment on the ground of governmental immunity after concluding as a matter of law that the plaintiffs complaint alleged that the city negligently had performed a discretionary act, rather than a ministerial act, and that her claim did not fit within the identifiable person-imminent harm exception to the qualified immunity from liability that a city enjoys for the discretionary acts of its employees.⁴ This appeal followed.

Before we turn to the issue raised by the plaintiff in this appeal, we first set forth the applicable standard of review. "[W]e note that [t]he standard of review of a trial court's decision to grant a motion for summary judgment is well established. 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." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 391, 715 A.2d 27 (1998). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24, 727 A.2d 204 (1999).

"The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court.... When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 6, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001). Because the court in the present case rendered judgment for the city as a matter of law after finding that the complaint alleged that the city had negligently failed to perform a discretionary function, our review is plenary.

We now turn to the merits of the plaintiffs claim that the court improperly determined that because her complaint alleged that the city negligently had failed to perform a discretionary act, the city was immune from liability pursuant to § 52-557n (a) (2) (B). She argues that the city's failure to maintain its premises in a reasonably safe condition, as a matter of law,⁵ constitutes the failure to perform a ministerial function and, therefore, that the city was liable pursuant to § 52-557n (a) (1) (A) for injuries resulting from its failure to do so. She further argues that although the decision to devote public property to recreational use is discretionary in nature, the duty to maintain the property so devoted in a reasonably safe condition is always ministerial. We disagree.

"A municipality itself was generally immune from liability for its tortious acts at common law .... Gordon v. Bridgeport Housing Authority, [208 Conn. 161, 165, 544 A.2d 1185 (1988)]. Governmental immunity may, however, be abrogated by statute. The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity. Williams v. New Haven, [243 Conn. 763, 766-67, 707 A.2d 1251 (1998)]. Statutes that abrogate or modify governmental immunity are to be strictly construed.... This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.... Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988). The court is to go no faster and no further than the legislature has gone.... A legislative intention not expressed in some appropriate manner has no legal existence. Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).... The legislature ... has set forth general principles of municipal liability and immunity in General Statutes § 52-557n. Williams v. New Haven, [supra, 767].

"Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit and acts which constitute the creation or participation in the creation of a nuisance. General Statutes § 52-557n (a). The section goes on to exclude liability for acts or omissions of any employee or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct and negligent acts that involve the exercise of judgment or discretion. General Statutes § 52-557n (a). The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property. General Statutes § 52-557n (b)." (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 720-21, 755 A.2d 317 (2000).

"While [a] municipality itself was generally immune from liability for its tortious acts at common law ... its employees faced the same personal tort liability as private individuals.... [Under § 52-557n, however, like the municipality itself, a] municipal employee ... has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Citations omitted; internal quotation marks omitted.) Colon v. Board of Education, 60 Conn. App. 178, 180, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). "The hallmark of a discretionary act is that it requires the exercise of judgment. 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." (Internal quotation marks omitted.) Id., 181.

Although the plaintiff relies on § 52-557n as the statutory source abrogating the city's governmental immunity, she cites no language within that statute that may be fairly interpreted to stand for the proposition that a municipality's failure to maintain its property in a reasonably safe condition is, as a matter of law, ministerial, and our review of the text of that statute reveals no such language. We refuse to read a provision into the statute that the legislature itself has not expressed.

Nor does the plaintiff cite any case law interpreting § 52-557n that supports her position. She cites our Supreme Court's decision in Elliott v. Waterbury, supra, 245 Conn. 385, and this court's decision in Salaman v. Waterbury, 44 Conn. App. 211, 687 A.2d 1318 (1997), rev'd, 246 Conn. 298, 717 A.2d 161 (1998), and claims that those cases demonstrate that whenever a municipality acts as a landowner, the failure to maintain its property is the failure of a...