NEUMON v. CITY OF NEW HAVEN, No. CV 04 5000008 S (Sep. 1, 2006)

BARRY K. STEVENS, JUDGE.

This action arises out of an alleged accident in which the plaintiff, Lara Neumon, was injured while playing softball. On February 14, 2006, the plaintiff filed a three-count amended complaint against the defendants, the city of New Haven (city), Robert D. Levine, director of the New Haven department of parks, recreation and trees, Lawrence Amendola, recreation supervisor of the New Haven department of park, recreation and trees, and Richard H. Miller, director of the New Haven department of public works. Count one is alleged against the four individual defendants and counts two and three are directed only at the city.

In count one, the plaintiff alleges that because of the defendants' negligence her foot was caught in the infield fence while she was playing softball at one of the city's softball fields, causing her to break her ankle. The plaintiff claims that the defendants created a defective and unreasonably dangerous condition by failing to properly supervise the construction of the fence or failing to properly maintain the fence. In count two, the plaintiff incorporates the facts of count one and further alleges that the city is liable to the plaintiff under General Statutes § 7-465, the city's statutory obligation of indemnification. In count three, the plaintiff reincorporates the facts of count one and claims that the city's failure to properly supervise the construction of the fence, or its failure to properly inspect or maintain the fence, created a public nuisance.

On January 3, 2006, the defendants moved for permission to file a motion for summary judgment pursuant to Practice Book § 17-44. CT Page 16315 The court, Stevens, J., granted the motion and on April 3, 2006, the defendants filed a motion for summary judgment with a memorandum of law in support as required by Practice Book § 11-10(5). On March 10, 2006, the plaintiff filed a memorandum in opposition, accompanied by a copy of the deposition and two exhibits of Christy Hass Dlugolenski. On April 27, 2006, the plaintiff filed a supplemental memorandum of law and submitted a report of Thomas W. Bowler and additional photocopied pages of the deposition of Christy Hass Dlugolenski. On April 28, 2006, the defendants filed a reply memorandum. On May 3, 2006, the plaintiff filed a second supplemental memorandum of law, accompanied by an affidavit of Thomas W. Bowler. On May 16, 2006, the defendants filed a second reply memorandum.

"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.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . Once the moving party has met its burden . . . THE OPPOSING PARTY MUST PRESENT EVIDENCE THAT demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 CT Page 16316 (2005).

As to count one, the defendants argue that since maintenance of the softball field is discretionary, they are immune from liability pursuant to General Statutes § 52-557n(a)(2). They contend that there are no allegations that they were acting under the direction of a state or municipal law and argue that Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005), is analogous to the facts of this case. The defendants also contend that no applicable exceptions to governmental immunity for discretionary acts apply. Further, the city argues that since its employees are immune from liability in count one, it cannot be liable under § 7-465 in count two. As to count three, the city argues that the plaintiff has failed to allege or prove the elements of a public nuisance. It maintains that there existed no natural tendency to create a danger or inflict a danger and that the fence was not the proximate cause of the plaintiff's injuries. Additionally, the city argues that the plaintiff must show that it, though a positive act, intentionally created the conditions alleged to create a nuisance. The city contends that the plaintiff has not alleged a positive act and that failure to supervise or warn is not a positive act.

The plaintiff argues that she was an identifiable person subject to imminent harm since she played on a recreational softball league that required the teams to produce rosters and liability policies and the city maintained the fields on a daily basis. As to the city, the plaintiff contends that governmental immunity is not a defense to the city's liability under § 7-465. As to the third count, the plaintiff argues that this count alleges sufficient facts for a cause of action in public nuisance because the city installed the fence in a defective and dangerous way, thereby performing the required positive act.

Turning to the defendants' motion for summary judgment on the first count of the complaint, the court agrees with the defendants that they are entitled to governmental immunity. "[A] municipality itself was generally immune from liability for its tortious acts at common law . . . [Our Supreme Court has] also recognized, however, that governmental immunity may be abrogated by statute . . . General Statutes § 52-557n(a)(1) provides in relevant part: 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 CT Page 16317 political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . [T]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents . . ."

"Subdivision (2) of § 52-557n(a) lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this . . . [case] provides: 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 by law." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 47-48.

"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 . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there ate cases where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 47-48.

In the present case, the plaintiff does not allege that the defendants failed to follow a policy or directive and does not provide any evidence of a policy or directive requiring the defendants to maintain the softball field in a certain way. The affidavit of Christy Hass Dlugolenski does show that the city had an informal policy of checking the softball fields every day, but her testimony does not reveal a policy of how the fields were to be maintained. In Martel v. Metropolitan District Commission, supra, 275 Conn. 50, the court stated: "Absent evidence of such a policy or directive, we conclude that the defendants in determining whether to supervise, inspect and maintain the trails . . . and when to mark, close or barricade the trails, if at all, were engaged in duties that inherently required the exercise of judgment." Likewise, herein, the maintenance of a softball field inherently requires the exercise of judgment. See Martel v. Metropolitan District Commission, supra, 275 Conn. 50; see also CT Page 16318 Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989) (alleged acts that require, in some measure, exercise of judgment by municipal employee are not ministerial). Therefore, as to count one, the defendants are entitled to governmental immunity unless an exception applies."

The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence . . . The ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . ." (Citation omitted; internal quotation marks omitted.) Colon v. Board of Education, 60 Conn.App. 178, 180-81, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).

"The only exception to the qualified immunity of a municipal employee for discretionary acts that is relevant to the present case is the exception permitting a tort action in circumstances of likely imminent harm to an identifiable person. [The Supreme Court has] construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . Moreover, [our Supreme Court has] established specifically that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." (Citation omitted; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 108-09, 708 A.2d 937 (1998).

"[T]he [identifiable person-imminent harm] exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . [and] [o]ur Supreme Court [has] emphasized the limited nature of the concept of imminent harm . . ." (Citation omitted; internal quotation marks omitted.) Doe v. Board of Education, 76 Conn.App. 296, 302, 819 A.2d 289 (2003). For example, "[i]n . . . [cases where the identifiable person-imminent harm exception has applied to school children], CT Page 16319 the identifiable person-imminent harm exception was applicable because the dangerous condition was sufficiently limited both in duration and in geography to make it apparent to the defendants that schoolchildren were subject to imminent harm." Id., 303.

In the present case, the plaintiff argues that, since she was participating in a recreational softball league that required the teams to produce rosters and liability policies and because the city maintained the fields on a daily basis, she is an identifiable person subject to imminent harm. These facts, however, are more analogous to situations where the harm could occur at any time as opposed to situations where the harm was limited in both duration and geography. Compare Evon v. Andrews, supra, 211 Conn. 501 (accident could have occurred at any time in future) and Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994) (harm limited to main access of school and duration of harm limited to temporary icy conditions). Viewing the allegations of the complaint and the plaintiff's evidence in a light most favorable to the plaintiff, the defendants' actions regarding the maintenance of the softball field were discretionary and not subject to any exception to the governmental immunity. Therefore, the defendants are entitled to judgment as a matter of law on count one.

Next, the court addresses the city's liability under § 7-465 as alleged in count two of the amended complaint. "Whatever may be the full scope and effect of the statute, in no event may the municipality be held liable under it unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon . . . [the employee] by law for physical damages to person or property . . . While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance. Once a plaintiff has successfully pursued a cause of action and obtained judgment against the defendant municipal employee, the latter can (1) pay the judgment and request reimbursement from the municipality or (2) request the municipality to pay the judgment in his behalf." (Citation omitted; internal quotation marks omitted.) Kostyal v. Cass, 163 Conn. 92, 97-98, 302 A.2d 121 (1972). In the present case, since the individual defendants are entitled to judgment as a matter of law as to count one, the plaintiff cannot successfully pursue a claim for indemnification under § 7-465. See Vilton v. Burns, Superior Court, complex litigation docket CT Page 16320 at Waterbury, Docket No. X06 CV00 0169481 (June 22, 2004, Alander, J.) ( 37 Conn. L. Rptr. 425, 432) (plaintiff only allowed to pursue claims under § 7-465 for actions of municipal employees not protected by governmental immunity).

The plaintiff notes that § 7-465 states that "[g]overnmental immunity shall not be a defense in any action brought under this section." Therefore, the plaintiff also argues that governmental immunity should not bar her action in the present case. This argument is misplaced. As previously discussed, the city can only be liable if one of its employees is found liable. Section 7-465 removes the shield of governmental immunity once that condition precedent is met. See Kostyal v. Cass, supra, 163 Conn. 97. Since no issue of material fact remains and the city's liability is only derivative of its employees' liability, the city is entitled to judgment as a matter of law as to count two.

As to the third count, the city argues that the plaintiff has failed to allege that it engaged in any positive act that created the nuisance and also that the plaintiff cannot prove proximate causation. The city presents no evidence to support its position, rather it challenges the legal sufficiency of the plaintiff's claims. "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, [there is] . . . no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from involking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, supra, 274 Conn. 401-02. The court must examine whether the allegations of the plaintiff's complaint are sufficient to state a cause of action for public nuisance, and if not, whether the infirmity can be corrected by repleading.

Our Supreme Court "has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." CT Page 16321 (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). Furthermore, "[l]iability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality . . . Indeed, [our Supreme Court has] stated that failure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Citations omitted; internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996). Additionally, "a municipality is not liable where its sole fault is a failure to take remedial steps." (Internal quotation marks omitted.) Insurance Co. of North America v. Buccheri, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 90 0399063 (May 28, 1992, Hennessey, J.) ( 6 Conn. L. Rptr. 457, 458); but cf., Keeney v. Old Saybrook, supra, 237 Conn. 135 (municipality's deliberate failure to act to abate environmental contamination can create liability for public nuisance); Lisinski v. New London, Superior Court, judicial district of New London, Docket No. CV 03 0564377 (November 1, 2005, Jones, J.) ( 40 Conn. L. Rptr. 227) (court found genuine issue of material fact of whether city engaged in positive act by not correcting a known defect).

In the present case, the plaintiff alleges that the city failed to supervise the construction of the fence, failed to repair or maintain the fence, failed to make a reasonable inspection of the fence, and failed to warn the plaintiff of the defect. Under the precedent just described, these allegations are insufficient to assert a positive act or an intentional decision not to act necessary to maintain a public nuisance claim. Therefore, the third count of the plaintiff's complaint is stricken.

This finding, however, does not end the inquiry. The city can prevail on its motion for summary judgment only if the pleading deficiency found by the court cannot be corrected by repleading. See Larobina v. McDonald, supra, 274 Conn. 401-02. The parties have not addressed this issue and the court is not convinced that the deficiency cannot be cured. Consequently, the entry of judgment on the third count will be reserved in order to provide the plaintiff the opportunity to file a revised complaint addressing the pleading deficiency. Any revision of the third count of the complaint shall be filed within fifteen days pursuant to Practice Book § 10-44. CT Page 16322 This case shall appear on the short calendar docket of the Presiding Judge Civil, on Monday, September 25, 2006 at 9:30 a.m. In the absence of a revised complaint filed by the plaintiff, final judgment shall enter in favor of the defendants and against the plaintiff on the third count of the amended complaint. If a revised complaint is filed, the case shall proceed pursuant to such scheduling orders as the court may determine.

Therefore, for the foregoing reasons, the defendants' motion for summary judgment is hereby granted as to counts one and two of the amended complaint. As to count three, the court orders this count stricken with leave for the plaintiff to file a revised complaint consistent with this decision within 15 days.

So ordered.