Tryon v. North Branford, (AC 19226)

• Decision Date: 11 July 2000
• Docket Number: (AC 19226)
• Citation: 58 Conn. App. 702,755 A.2d 317
• Court: Connecticut Court of Appeals
• Parties: MICHELE TRYON v. TOWN OF NORTH BRANFORD ET AL.

58 Conn. App. 702

755 A.2d 317

MICHELE TRYON v. TOWN OF NORTH BRANFORD ET AL.

(AC 19226)

Appellate Court of Connecticut.

Argued March 28, 2000.

Officially released July 11, 2000.

Schaller, Pellegrino and Dupont, Js.

Stephen M. Reck, with whom was Michael W. Malchik, for the appellant (plaintiff). Thomas R. Gerarde, with whom were Melinda A. Powell and, on the brief, Daniel C. DeMerchant, for the appellees (named defendant et al.).

R. Jack Lucas, with whom, on the brief, was Joseph B. Curran, for the appellees (defendants 100th Anniversary Committee et al.).

William J. Melley, with whom, on the brief, was William B. Wynne, for the appellee (defendant Rush Turner III).

Opinion

DUPONT, J.

The plaintiff, Michele Tryon, appeals from the trial court's judgment granting the defendants'¹ motions for summary judgment in this personal injury action in which the plaintiff was bitten by a dog while in the staging area of a firefighters' parade.² On appeal, the plaintiff claims that the trial court improperly concluded that (1) the plaintiff did not qualify for an exception to the doctrine of governmental immunity as an identifiable person subject to imminent harm and (2) the doctrine of governmental immunity precluded the plaintiffs claims alleging strict liability pursuant to General Statutes § 22-357.³ We affirm the judgment of the trial court in all respects except with respect to the plaintiffs first claim on appeal, as alleged in counts four and five of her amended complaint. The following facts are not disputed and are relevant to our resolution of this appeal. On September 17, 1995, the plaintiff, a firefighter in uniform, attended the 1995 Connecticut State Fireman's Convention Parade held in Jewett City. The defendant Rush Turner III (Turner) is a volunteer firefighter with the defendant North Branford fire department, and the owner and keeper of the dog that bit the plaintiff. Turner participated in the parade as a member of the fire department. With the permission of his supervisors, Turner brought his dog, a dalmatian, along with him to the parade.

Prior to the commencement of the parade, Turner and his dog were in the staging area for the parade, which was located on a street adjacent to the parade route. Just before the plaintiff approached the dog, one of the firefighters in the staging area waved a bagel in front of the dog. The dog attempted to jump at the bagel but was prevented from doing so because Turner had a tight grip on the dog's leash. Thereafter, according to the deposition testimony of Turner,⁴ the plaintiff approached the dog, grabbed its ears, "digging her fingernails tight behind the dog's ears," and pulled and jerked the dog's face toward her own. The dog bit the plaintiff in the nose, causing the plaintiff to lose part of her nose. According to Turner, the incident happened so fast that there was nothing he could do to stop the plaintiffs actions.

In September, 1996, the plaintiff brought an action against twelve separate defendants seeking damages for her injuries.⁵ The plaintiff alleged causes of action for strict liability under § 22-357, and common-law negligence and indemnification pursuant to General Statutes (Rev. to 1995) § 7-308.⁶ The defendants filed three separate motions for summary judgment, all alleging that they were entitled to judgment as a matter of law on the basis of governmental immunity. The plaintiff filed memoranda in opposition to these motions and attached excerpts from the transcript of the deposition testimony of Turner. The defendants also relied on Turner's deposition testimony in support of their respective motions.⁷

The trial court, in a memorandum of decision dated December 16, 1998, granted all three motions for summary judgment⁸ in favor of the defendants.⁹ The trial court concluded that at the time of the dog bite incident, Turner was performing a governmental duty of a discretionary nature and was therefore entitled to qualified governmental immunity. The court also concluded that the plaintiff failed to prove that she qualified for an exception to this immunity, which exception permits an action where the circumstances make it apparent to municipal employees that their failure to act would likely subject an identifiable person to imminent harm. The court also concluded that § 22-357, which imposes strict liability on an "owner or keeper" of a dog who bites an individual, does not apply to a municipal employee who is immune from liability for discretionary acts performed in the course of his duties and whose conduct does not fall within any of the exceptions to governmental immunity.

"Our standard of review of a trial court's decision to grant a motion for summary judgment is well established. `Practice Book § 384 [now § 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.... Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.' ... Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999).

"`On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' ... Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the defendants as a matter of law, `our review is plenary and we must decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record.' ... Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). `On appeal, however, the burden is on the opposing party to demonstrate that the trial court's decision to grant the movant's summary judgment motion was clearly erroneous.' 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994)." Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

In deciding whether it is appropriate to render summary judgment, a court is not necessarily entitled to assume the truth of a defendant's declarations concerning intent or a fact known only to a defendant simply because of the absence of an affidavit contradicting the declarations. Batick v. Seymour, 186 Conn. 632, 645-46, 443 A.2d 471 (1982). Summary judgment is inappropriate where the inferences that the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. Nolan v. Borkowski, 206 Conn. 495, 505, 538 A.2d 1031 (1988). The failure to file an opposing affidavit or documentary evidence where motive, intent or subjective feelings and reactions are involved does not entitle the moving party to a favorable inference as to the truth of his affidavit or documentary evidence. Id., 504. If, however, motive, intent or subjective views are not involved, the failure to file a contradictory, competent affidavit in opposition to the motion for summary judgment could entitle the movant to a favorable inference as to the truth of the affidavit or deposition testimony. Collum v. Chapin, 40 Conn. App. 449, 450 n.2, 671 A.2d 1329 (1996).

I

The plaintiffs first claim is that the trial court improperly concluded, as a matter of law, that she failed to prove that she was an identifiable person subject to imminent harm so as to come within an exception to the doctrine of governmental immunity.

The doctrine that determines the tort liability of municipal employees is well established. "`Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. Evon v. Andrews, [211 Conn. 501, 505, 559 A.2d 1131 (1989)]; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [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.' ... Burns v. Board of Education, [228 Conn. 640, 645, 638 A.2d 1 (1994)]. `[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court ... [unless] there are unresolved factual issues material to the applicability of the defense ... [where] resolution of those factual issues is properly left to the jury.' Mulligan v. Rioux, 229 Conn. 716, 736, 643 A.2d 1226 (1994)." Purzycki v. Fairfield, 244 Conn. 101, 107-108, 708 A.2d 937 (1998).

The plaintiff alleges in her complaint, and the defendants agree, that Turner was engaged in the performance of a governmental duty at the time of the dog bite incident that caused the plaintiffs injuries.¹⁰ It is not clear whether the plaintiff concedes that the duty owed by Turner was discretionary, not ministerial, in nature. The plaintiff, in a footnote in her brief, appears to claim that the dog bite statute, § 22-357, involves a ministerial act because liability pursuant to the statute does not involve discretion or judgment. She makes no argument, however, that participation by Turner in the parade is a ministerial rather than a discretionary act, nor was such a claim made in the trial court. We agree with the trial court that Turner was engaged in a discretionary act and review this appeal accordingly.

In order to prevail, the plaintiff must fall within one of the recognized...