Silberstein v. 54 Hillcrest Park Assocs., LLC

• Decision Date: 08 May 2012
• Docket Number: No. 32961.,32961.
• Citation: 135 Conn.App. 262,41 A.3d 1147
• Court: Connecticut Court of Appeals
• Parties: Tom SILBERSTEIN et al. v. 54 HILLCREST PARK ASSOCIATES, LLC, et al.

135 Conn.App. 262

41 A.3d 1147

Tom SILBERSTEIN et al.

v.54 HILLCREST PARK ASSOCIATES, LLC, et al.

No. 32961.

Appellate Court of Connecticut.

Argued Jan. 5, 2012.Decided May 8, 2012.

John B. Farley, with whom were Coleman C. Duncan, Hartford, and, on the brief, Dan E. LaBelle, Westport, for the appellants(plaintiffs).

Russell N. Jarem, with whom, on the brief, was Jon Berk, Hartford, for the appellees(defendantHillcrest Park Tax District et al.).

GRUENDEL, BEAR and BISHOP, Js.

GRUENDEL, J.

The plaintiffs, Tom Silberstein and Elizabeth Newman, appeal from the summary judgment rendered by the trial court in favor of the defendantsHillcrest Park Tax District and Hillcrest Park Association, Inc.¹On appeal, the plaintiffs claim that the court erred in holding that their negligence claim was barred by the doctrine of governmental immunity.We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiffs;seeMartinelli v. Fusi,290 Conn. 347, 350, 963 A.2d 640(2009); reveals the following facts.The plaintiffs own a home and property located at 7Ricky Beth Lane in the Hillcrest Park neighborhood of Old Greenwich.The defendants are the tax association and private tax district for the Hillcrest Park neighborhood.The plaintiffs are members of the association.The plaintiffs' property is located within the tax district, and the plaintiffs pay annual taxes to the tax district.

In 2002, three families petitioned the tax district for permission to subdivide a parcel of property located at 54 Hillcrest Park Road into two lots, upon which two new houses would be built.The subdivision plan was approved by a special vote of tax district members on November 6, 2002.Thereafter, the land was subdivided and two houses, known as 50 and 54 Hillcrest Park Road, were constructed on the subdivided parcel.The plaintiffs' property is located below Hillcrest Park Road, at the base of a 52.8 acre watershed.The plaintiffs allege that, following the construction of the two houses on the subdivided parcel, they began to experience “severe and excessive flooding” on their property.The plaintiffs advised the defendants of the flooding and, in 2007, tax district members approved an expenditure for the purpose of conducting a watershed study.The plaintiffs claim that the defendants refused to hire an engineer to conduct that study.

The plaintiffs commenced the present litigation in 2007.Their amended third revised complaint contained three counts against the defendants, alleging breach of fiduciary duty, negligence and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.The plaintiffs' negligence claim alleged that the defendants, inter alia, failed to properly maintain the roads and drainage systems in the Hillcrest Park neighborhood, resulting in the periodic flooding of the plaintiffs' property.²On February 26, 2010, the defendants filed a motion for summary judgment, to which they attached in support thereof (1) the affidavit of tax district officer Alfred Heynen; (2) the affidavit of tax district secretary Henry Lim, with exhibits; (3) the deposition testimony of Donald T. Ballou, an engineer; and (4) the deposition testimony of Elizabeth Newman.SeePractice Book§ 17–45.Following argument thereon, the court rendered summary judgment in favor of the defendants.The court denied the plaintiffs' motion to reargue, and this appeal followed.Additional facts will be set forth as they become necessary.

Before considering the claims presented on appeal, we note the well established standard of review.“Practice Book § [17–49] requires that 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.A material fact is a fact that will make a difference in the result of the case....The facts at issue are those alleged in the pleadings....The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law....The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.See Practice Book § § [17–44 and 17–45].In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party....The test is whether a party would be entitled to a directed verdict on the same facts....A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact....Our review of the trial court's decision to grant a motion for summary judgment is plenary.”(Citation omitted; internal quotation marks omitted.)Weiner v. Clinton,106 Conn.App. 379, 382–83, 942 A.2d 469(2008).

The plaintiffs contend that the court erred in holding that their negligence claim was barred by the doctrine of governmental immunity.We conclude that the court properly rendered summary judgment in favor of the defendants on the ground that they were immune from liability for their discretionary acts.

The principles of governmental immunity are well established.“The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties.The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52–557n.”(Internal quotation marks omitted.)Martin v. Westport,108 Conn.App. 710, 729, 950 A.2d 19(2008).Section 52–557n governs municipal immunity ³ and provides in relevant part: “(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties....(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted bylaw....

“[W]hile a municipality is generally liable for the ministerial acts of its agents, § 52–557n (a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law....The hallmark of a discretionary act is that it requires the exercise of judgment....In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”(Citation omitted; internal quotation marks omitted.)Coe v. Board of Education,301 Conn. 112, 117–18, 19 A.3d 640(2011).“The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law.”(Internal quotation marks omitted.)Doe v. Petersen,279 Conn. 607, 613, 903 A.2d 191(2006).

I

As a preliminary matter, we must determine whether the defendants had a duty to maintain and repair the storm drains and sewers in the Hillcrest Park neighborhood.The plaintiffs' arguments are premised on an assumption that the defendants had such a duty.The defendants argue that they owed no duty to the plaintiffs, obviating the need for a governmental immunity analysis.

The following additional facts are necessary to our resolution of this issue.The defendant tax association was formed by Hillcrest Park landowners on June 2, 1951.Its articles of association provide in relevant part: “The purposes for which said corporation is formed are the following, to wit: To provide for the care and maintenance of certain roads ... presently maintained by the landowners of said Hillcrest Park; to provide for the protection of the inhabitants of properties using said roads; to care for and maintain said roads; and to make all lawful contracts and do all lawful things relating to the purposes of its incorporation and necessary or expedient to carry out the same.”

The defendant tax district was created in 1985, pursuant to General Statutes § 7–324 et seq.⁴Upon its formation, the tax district assumed the maintenance activities previously performed by the association.Its bylaws state that they are to govern the management of the Hillcrest Park tax district.⁵The bylaws provide in relevant part: “Purposes of the Tax District.The purposes to be accomplished by the formation of the [t]ax [d]istrict may be to light the streets; to plant and care for shade and ornamental trees and shrubbery; to construct and maintain roads, sidewalks, crosswalks, grates, drains, storm sewers, sanitary sewers, underground utilities and to install and maintain fire hydrant and water lines required in connection therewith; to establish park security and safety procedures; and to collect garbage, ashes and all other refuse matter in any portion of such district and provide for the disposal of such matter.”

On the basis of this evidence, we conclude that the defendants voluntarily undertook to construct and maintain the roads, drains and storm sewers in Hillcrest Park.The defendants therefore had a duty to maintain and repair the storm drains and sewers in the Hillcrest Park neighborhood.

II

The plaintiffs argue that the defendants' maintenance of the roads, storm drains and sewers in Hillcrest Park is a ministerial function.⁶We...