Tango v. City of New Haven

• Decision Date: 21 June 1977
• Citation: 173 Conn. 203,377 A.2d 284
• Court: Connecticut Supreme Court
• Parties: Michael TANGO v. CITY OF NEW HAVEN et al.

Page 284

377 A.2d 284

173 Conn. 203

Michael TANGO v. CITY OF NEW HAVEN et al.

Supreme Court of Connecticut.

Argued May 5, 1977.

Decided June 21, 1977.

Richard L. Shiffrin, New Haven, with whom was William F. Gallagher, New Haven, for appellant (plaintiff).

Thayer Baldwin, Jr., Corp. Counsel, New Haven, for appellees (defendants).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

PER CURIAM.

The plaintiffs brought this action in negligence against the city of New Haven and four of the city's employees to recover damages for personal injuries arising out of a sledding accident on the Alling Memorial Golf Course which occurred on December 31, 1967. The first count of the complaint alleges a common-law cause of action on behalf of the injured minor, Michael Tango, brought by his mother as next friend. The second count alleges a cause of action in John Tango for reimbursement of medical expenses incurred on behalf of his son. In the third count the plaintiffs, in addition to the allegations of the first and second counts, make a claim, pursuant to General Statutes § 7-465, for reimbursement from the city of any damages recovered against the individual defendants. The defendants demurred to the complaint on the ground that since the defendants were performing governmental functions and only discretionary acts were alleged against them the doctrine of governmental immunity barred recovery. The court accepted the defendants' contentions and sustained the demurrer.

The plaintiffs urge us to find an independent cause of action under General Statutes § 7-465 or to abrogate the common-law doctrine of governmental immunity. In the light of our view of the pleadings of this case, we need not do either.

As we stated in Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176, 180: "Where the municipality through its agent or employee acts in the performance of a governmental duty, it has a limited immunity from liability; Cone v. Waterford, 158 Conn. 276, 279, 259 A.2d 615; but when the act complained of is ministerial, the municipality is responsible for its negligent execution. Spitzer v. Waterbury, 113 Conn. 84, 88, 154 A. 157; 18 McQuillin, Municipal Corporations (3d Ed. Rev.) § 53.33. 'Ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Pluhowsky v. New Haven, 151 Conn. 337, 347, 197 A.2d 645; Blake v. Mason, 82 Conn. 324, 327, 73 A. 782." Fraser v. Henninger, 173 Conn. 52, 59-60, 376 A.2d 406; Stiebitz v. Mahoney, 144 Conn. 443, 448, 134 A.2d 71; Wadsworth v. Middletown, 94 Conn. 435, 439, 109 A. 246. Here, the lower court, in its memorandum of decision sustaining the demurrer concluded: "Since the acts or omissions alleged in the complaint describe only supervisory or discretionary acts, there would be no duty on the named defendants establishing negligence or liability on their part for the violation thereof." We do not agree with the court's narrow reading of the complaint.

A demurrer, of course, "is tested by the facts provable under the allegations of the pleading to which the demurrer is addressed." Fraser v. Henninger, supra, 376 A.2d at 411. The allegations of the complaint are broad and formulated in the alternative, i. e., "caused, or allowed and permitted." As they stand they would permit proof of facts which would establish that the defendants failed to discharge properly ministerial functions. ¹ The demurrer, therefore, should have been overruled and the plaintiffs allowed an opportunity to prove that the acts or omissions which...