Twila Williams, Adm'x ( Estate of Tiana N.A. v. Hous. Auth. of Bridgeport

• Decision Date: 15 September 2015
• Docket Number: No. 36176.,36176.
• Citation: 124 A.3d 537,159 Conn.App. 679
• Parties: Twila WILLIAMS, Administratrix (Estate of Tiana N.A. Black) et al. v. HOUSING AUTHORITY OF the CITY OF BRIDGEPORT et al.
• Court: Connecticut Court of Appeals

159 Conn.App. 679

124 A.3d 537

Twila WILLIAMS, Administratrix (Estate of Tiana N.A. Black) et al.

v.HOUSING AUTHORITY OF the CITY OF BRIDGEPORT et al.

No. 36176.

Appellate Court of Connecticut.

Argued March 16, 2015.

Decided Sept. 15, 2015.

John T. Bochanis, with whom, on the brief, was Thomas J. Weihing, Bridgeport, for the appellant (plaintiff).

Betsy Ingraham, associate city attorney, for the appellees (defendant city of Bridgeport et al.).

Opinion

BORDEN, J.

The plaintiff Twila Williams, administratrix of the estates of Tiana N.A. Black, Nyaisja Williams, Tyaisja Williams, and Nyshon Williams (decedents), appeals from the trial court's summary judgment rendered in favor of the defendants.¹The plaintiff claims that: (1) there is an issue of material fact as to whether the defendants are immune from liability pursuant to General Statutes § 52–557n (b)(8)²for failing to inspect the decedents' property; (2) the trial court improperly determined that other acts of negligence alleged against the defendants involved the exercise of a discretionary duty; and (3) even if such acts did involve a discretionary duty, the defendants' alleged negligence subjected the decedents to imminent harm. We affirm the judgment of the trial court as to the second claim. On the first and third claims, however, we reverse the judgment and remand the case to the trial court for further proceedings.³

This case stems from an apartment fire that took the lives of the decedents. The following undisputed facts and procedural history are relevant to this appeal. The decedents resided in the P.T. Barnum Apartments, a group of affordable housing units owned and maintained by the Housing Authority of the City of Bridgeport. The decedents' apartment was part of a multifamily residential unit,⁴located on the second and third floors of a three-story building. It had only a single point of ingress and egress, namely, a door that opened onto a porch and an external staircase attached to the building's second floor. Because the building lacked fire escapes, the only means of leaving the apartment was through the door. An individual seeking to leave from the bedrooms on the third floor of the apartment had to travel down the internal staircase, then traverse the apartment to access the door.

The Bridgeport fire marshal's office is required to conduct annual inspections of multifamily residential units within Bridgeport pursuant to General Statutes § 29–305(b).⁵The office maintains eight full-time fire investigators, along with a deputy fire marshal and fire marshal, who together are responsible for inspecting more than four thousand multifamily homes in Bridgeport, in addition to inspecting commercial businesses and investigating the circumstances surrounding fires within the city. The Bridgeport tax assessor's office annually provides the fire marshal with a list of those multifamily units to be inspected. At the time of the incident in the present case, the list provided to the fire marshal's office did not include multifamily units considered affordable housing units because such housing is not included on Bridgeport's tax rolls.⁶The decedents' apartment qualified as affordable housing, and as a consequence, the fire marshal did not conduct a yearly inspection of the apartment.

On November 13, 2009, at approximately 1 a.m., afire broke out in the oven in the kitchen of the decedents' apartment. The decedents perished in the conflagration. Both the state police and the Bridgeport Fire Department investigated the circumstances surrounding the fire and determined the cause to be accidental. During the course of their investigations, the state police also determined that, although all five smoke detectors within the apartment were functioning normally, the detectors were not interconnected in the sense that all five would be activated when one of them activated. Subsection 907.2.10.1.2.2 of the State Fire Safety Code, Regulations of Connecticut State Agencies § 29–292–17e, required the installation of interconnected smoke detectors when the apartment was last renovated in 1992.⁷Both agencies concluded that, given the locations of the decedents' bodies found within the apartment, it was likely that all four of the decedents were alerted to the fire and were attempting to leave.

The plaintiff commenced this suit against the defendants. In her amended complaint, the plaintiff alleged that the defendants failed to ensure that the decedents' apartment complied with the state building and fire safety codes, failed to remedy numerous defects in the premises, and failed to conduct a yearly fire safety inspection of the apartment. The plaintiff specifically alleged that the defendants knew or should have known about and remedied a number of asserted defects in the decedents' apartment, including the absence of fire escapes, fire suppression systems, photo-electric smoke detectors, fire alarm systems, fire sprinklers, fire extinguishers, and fire safety or prevention plans.

The defendants moved for summary judgment, claiming that as a matter of law they were immune from liability under § 52–557n. Specifically, the defendants argued that they were immune from liability for failing to inspect the decedents' apartment under § 52–557n(b)(8), and that the plaintiff could not identify a disputed material fact that would demonstrate any exception to the statutory immunity. Additionally, the defendants argued that the other acts of negligence alleged involved breaches of their discretionary duties. The defendants argued that as a consequence, they were immune from liability pursuant to § 52–557n(a)(2)(B).

As part of their motion for summary judgment, the defendants included affidavits from the defendants William Finch, the mayor of the city of Bridgeport; Brian Rooney, chief of the Bridgeport Fire Department; William Cosgrove, fire marshal for the city of Bridgeport; Dennis Buckley, zoning administrator for the city of Bridgeport; and Peter Paajanen, building official for the city of Bridgeport. Each affiant, except Cosgrove, attested to a belief that he owed no duty to inspect the decedents' apartment.⁸Rooney and Cosgrove asserted in their affidavits that, as the fire chief and fire marshal of Bridgeport, respectively, they were aware of and familiar with all the responsibilities and duties of the fire marshal's office.

Rooney, however, further stated that, to the best of his knowledge as the fire chief of Bridgeport, no statutory authority mandated that the decedents' apartment be inspected.⁹Thus, these two assertions in Rooney's affidavit—namely, that he was aware of and familiar with all of his duties and responsibilities as fire chief, and that no statutory authority mandated that he inspect the decedents' apartment—conflicted with each other. Similarly, Cosgrove, as fire marshal, stated that he was aware of and familiar with all the duties and responsibilities of his office, yet did not claim familiarity with the duty to inspect the decedents' apartment. In the plaintiff's opposition to the motion for summary judgment, she argued that § 52–557n(a)(2)(B)did not apply to the defendants' alleged negligence. The plaintiff specifically included the affidavit of Mark W. Tebbets, an expert on the state building code, alleging that there were numerous specific defects in the decedents' apartment and that the defendants were responsible for enforcing the building code.

While the defendants' motion for summary judgment was pending, Rooney was deposed by the plaintiff. At his deposition, Rooney testified that prior to making the affidavit he was not aware that his office was obligated by statute to inspect affordable housing. He had discovered subsequently, however, that § 29–305(b)applied to affordable housing as well as to multifamily homes on the tax rolls, and therefore his office was supposed to inspect the decedents' apartment annually.¹⁰

The trial court granted the defendants' motion for summary judgment on July 19, 2013. In its memorandum of decision, the trial court agreed with the defendants, and concluded that the defendants were immune from liability under § 52–557n(b)(8)for their failure to inspect the decedents' property. The trial court specifically noted that the plaintiff did not adduce evidence that would raise a question of material fact as to whether the defendants' failure to inspect came within the “recklessness” exception to the statutory provision. It further concluded that the other claims alleged by the plaintiff involved negligent performance of discretionary duties, and the defendants were therefore immune under § 52–557n(a)(2)(B).

The plaintiff then filed a motion to reargue the motion for summary judgment. The plaintiff included a full copy of Rooney's deposition with her motion, and argued that it raised issues of fact as to whether the defendants' acts constituted recklessness under § 52–557n(b)(8). The trial court denied that motion on September 25, 2013. This appeal followed.

“The standard of review of motions for summary judgment is well settled. Practice Book § 17–49provides 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.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Smigelski v. Dubois,153 Conn.App. 186, 197, 100 A.3d 954, cert. denied, 314 Conn. 948, 103 A.3d 975 (2014).

“[O]nce [the] defendant's burden in establishing his entitlement to summary judgment is met ... the burden shifts to [the] plaintiff to show that a genuine issue of fact exists...