August 17, 2009
By: David K. Jaffe
In a recent case, Kumah v. Brown, 2009 Conn. Super. LEXIS 31, the plaintiffs, an injured person and his wife, alleged negligence against the defendants, a town and a volunteer firefighter, as well as nuisance against the town in regard to a fire truck being place across two lanes which were inadequately marked. The town moved to strike the negligence and nuisance counts, as well as the loss of consortium counts based on governmental immunity.
The plaintiffs filed a lawsuit against defendants Leo Brown, Sparks Finance Company, Swift Transportation Company and the town of Greenwich. In their complaint, the plaintiffs alleged the following facts: On September 3, 2006, at approximately 1:50 a.m., Brown was operating a tractor trailer truck in a westerly direction on Interstate 95 in Greenwich, Connecticut. Brown proceeded to lose control of his tractor trailer truck, strike a jersey barrier and bridge railing, and then spilled diesel fuel on the highway. Following the accident, Brown's tractor trailer came to a stop positioned in the right and center lanes of the roadway.
The plaintiffs further alleged that Brown was operating this vehicle in the scope of his employment with Sparks Finance Company and Swift Transportation Company. Following the accident, Robert Lucas, a member of the Cos Cob Fire Police Patrol, a volunteer company that operates under the structure of the town's fire department, responded to the scene. While assisting with the accident cleanup, Lucas, acting within the scope of his employment or official duties in his role as firefighter, parked a fire truck owned by the town diagonally across the center and right lanes of the highway. Lucas then placed road safety cones to the east of the parked fire truck intending to alert oncoming vehicles to the lane closures. At this point, the plaintiff was driving his automobile west on Interstate 95 when he collided with the town's fire truck and struck a bridge railing, sustaining serious personal injuries, including paraplegia.
Under longstanding Connecticut precedent, it is settled in this State that a municipal corporation is exercising a governmental function when maintaining and operating a fire department pursuant to legislative authority, and while in the exercise of that function is not liable for the negligent acts of its officers, agents and servants. In this respect, Connecticut law is in harmony with the great weight of authority elsewhere in this country. More recent Connecticut Supreme Court cases have held that a city fire marshal and fire chief were engaging in a governmental function when they allegedly failed to properly enforce building codes.
Conn. Gen. Stat. § 52-557n abrogated the common-law rule of governmental immunity and set forth the circumstances in which a municipality could be held liable for damages to person and property. Conn. Gen. Stat. § 52-557n 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 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 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 or impliedly granted by law."
Under § 52-557n, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. The hallmark of a discretionary act is that it requires the exercise of judgment. In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Discretionary act immunity reflects a value judgment that despite injury to a member of the public - the broader interest in having governmental officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.
The allegations of negligence as to the town were Lucas and other members of the Cos Cob Fire Police Patrol, a volunteer fire company operating under the structure of the town, responded to the accident scene. Once at the scene, the firefighters positioned the fire truck diagonally across the travel lanes. The trial court found that by their very nature, decisions regarding where to place a fire truck on the roadway, how many road cones to put out and where to put them, and how to light an accident scene are discretionary. "While it is so that statutes, regulations, and policies can create ministerial duties when they relate to fire, police, or other public safety services, they are most often held to create discretionary duties." The trial court therefore applied the general rule that firefighters engage in discretionary acts when they are in the line of duty.
As to the allegations of a public nuisance claim, the town argued that the plaintiffs had failed to properly allege that the position of the town's fire truck had a natural tendency to create danger or that the town engaged in a positive act to create the nuisance. A town may be liable for creating a nuisance pursuant to § 52-557n(a)(1)(C), which provides in relevant part that "a political subdivision of the state shall be liable for damages to person or property caused by acts of the political subdivision which constitute the creation of participation in the creation of a nuisance." In order to recover in a public nuisance action, the plaintiff must demonstrate that "(1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property; (2) the danger created is a continuing one; (3) the use of the land is unreasonable or unlawful; and (4) the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages."
Moreover, in order to overcome the governmental immunity of municipal defendants where is applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance.
The trial court found that the allegations of the complaint, when viewed in a light most favorable to the plaintiffs, were sufficient to plead a cause of action for public nuisance. The complaint alleged that "the town failed to properly position the fire truck so as to ensure that its warning lights were sufficiently visible to oncoming motorists, such as the plaintiff," and "the town failed to set traffic cones at a sufficient distance to provide an adequate warning for oncoming motorists. As further alleged in the complaint, the town's diagonal positioning of the fire truck across two lanes of traffic and placement of the traffic cones violated safety regulations. Finally, the plaintiffs contended that the accident scene was inadequately lit for a driver to see that he was coming upon an accident scene and that these actions caused the plaintiff to hit the town's fire truck. The trial court concluded that since the town's employees affirmatively place the fire truck and road cones on the road, the intent to commit an action alleged to constitute a nuisance element is met.
*As of the writing of this article, the Kumah case was still active at the trial court level. Only the town moved to strike portions of the complaint on the basis of governmental immunity. The other defendants remain in the case, and the nuisance claim against the town still remains in the complaint.
 Brock-Hall Dairy Co. v. New Haven, 122 Conn. 321, 324 (1937). See also Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988) (holding that the operation of a police department is a governmental function)
 Evon v. Andrews, 211 Conn. 501, 559 (1989).
 Tryon v. North Branford, 58 Conn. App. 702, 721 (2000).
 Violano v. Fernandez,280 Conn. 310, 318 (2006).
 Durrant v. Board of Education, 284 Conn. 91, 106 (2007).
 Glorioso v. Town of Burlington Police Dep't, 49 Conn. Supp. 200, 205 (2004).
 Pestey v. Cushman, 259 Conn. 345, 355 (2002).
 Elliott v. Waterbury, 245 Conn. 385, 421 (1998).
 Kumah v. Brown, 2009 Conn. Super. LEXIS 31.