Municipal Premises Liability

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July 26, 2009

Governmental Immunity Pursuant to Conn. Gen. Stat. § 52-557n

A municipality itself was generally immune from liability for its tortious acts at common law.[1] Governmental immunity may, however, be abrogated by statute. The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities.[2] The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity.[3] Statutes that abrogate or modify governmental immunity are to be strictly construed. This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.[4]

The legislature has set forth general principles of municipal liability and immunity in Conn. Gen. Stat. § 52-557n. Section 52-557n, enacted in 1986, abrogates the common law provision that municipalities are immune from suit for torts committed by their employees.[5] Instead, § 52-557n permits a direct cause of action against the municipality,[6] and specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity.[7]

Prior to the enactment of § 52-557n, municipalities generally were immune for the discretionary acts of their officials.[8] The policy rationale for this immunity was that municipal officials were immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society.[9] 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: (1) where the circumstances make it apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.[10]

While a municipality itself was generally immune from liability for its tortious acts at common law, its employees faced the same personal tort liability as private individuals. Under § 52-557n, however, like the municipality itself, 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.[11] The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.[12]

In Segreto v. Bristol, 71 Conn. App. 844 (2002), the plaintiff alleged that she sustained injuries in a fall on a stairway located on the premises of senior center that was owned and operated by the city. The plaintiff had argued that the city's failure to maintain its premises in a reasonably safe condition constituted the failure to perform a ministerial function, and therefore, that the city was liable pursuant to § 52-557n(a)(1)(A) for injuries resulting from its failure to do so. The Court disagreed, finding that there was no authority for the proposition that a municipality's failure to maintain its property in a reasonably safe condition was, a matter of law, ministerial. The Court held that the city's design and maintenance of the stairwell was discretionary in nature under § 52-557n(a)(1)(B) because determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment.

In Elliott v. Waterbury, 245 Conn. 385 (1998), the plaintiff's administratrix sought to recover from the city of Waterbury for the death of her decedent who had been shot and killed by a hunter while jogging on reservoir land that was owned by the city but located in another town. The plaintiff argued that the alleged conduct of Waterbury did not constitute governmental acts entitled to immunity because it concerned a proprietary, as opposed to a public activity, namely, the operation of a water utility.

The Court in Elliott explained that Waterbury's allegedly tortious conduct in its decision to open the watershed land to hunting and the manner in which it regulated that activity, was unconnected to its operation of a water utility and that it was apparent that activity consisted of a set of policy decisions concerning the use of city land for recreational purposes, which required the exercise of judgment and discretion. The Court noted that there was no indication that Waterbury had received any corporate gain or benefit from allowing hunting on it property. Accordingly, the Court concluded that the conduct constituted governmental and not proprietary acts, which were discretionary in nature and protected by governmental immunity.

In Beach v. Regional School District Number 13, 42 Conn. App. 542 (1996), a verdict in favor of the defendant school district supervisor was held proper where the plaintiff cafeteria worker failed to prove that the supervisor had some procedure in place regarding removal of ice and snow so as to make the supervisor's duty ministerial.

In Colon v. City of New Haven, 60 Conn. App. 178 (2000), the plaintiffs sought to recover from the defendant board of education after the plaintiff student was struck by a door that allegedly was negligently opened by a teacher at her school. The Court held that the teacher's action in opening the door was discretionary rather than ministerial.

In Evon v. Andrews, 211 Conn. 501 (1989), the plaintiffs sought damages for the wrongful deaths of their decedents who were killed when fire destroyed their apartment. The trial court granted the motion of the defendant city and various of its officials to strike the count of the complaint alleging that they had been negligent in failing to take remedial action against the property owners to enforce various statutes, regulations and codes concerning the maintenance of the dwellings. Specifically, they alleged in their complaint that the city and its officers had been negligent in failing to make reasonable and proper inspections of the premises. The Court explained that what constitutes a reasonable, proper or adequate inspection involved the exercise of judgment. It is axiomatic that ministerial acts are those that are performed in a prescribed manner without the exercise of judgment. Since the acts alleged required in some measure the exercise of judgment by a municipal employee, they were not ministerial and therefore the defendants were immune from liability. Id. at 506-507.

[1] Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165 (1988).

[2] Rysziewicz v. New Britain, 193 Conn. 589, 593 (1984).

[3] Williams v. New Haven, 243 Conn. 763, 766-67 (1998).

[4] Rawling v. New Haven, 206 Conn. 100, 105 (1988).

[5] Vejseli v. Pasha, 282 Conn. 561, 572 (2007). See also Spears v. Garcia, 263 Conn. 22, 29 (2003).

[6] Conn. Gen. Stat. § 52-557n provides in relevant part: "(1) 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 of the state shall not be liable for damages to person or property caused by: (A) Act or omissions of any employee, officer, or agent which constitute criminal conduct, fraud, actual malice or willful misconduct; or (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.

[7] In examining the legislative history of § 52-557n, the Connecticut Supreme Court has concluded that the statute was intended, in a general sense, both to codify and to limit municipal liability. Considine v. Waterbury, 279 Conn. 830, 839 n.7 (2006).

[8] See Shore v. Stonington, 187 Conn. 147, 153 (1982).

[9] Violano v. Fernandez, 280 Conn. 310, 318 (2006).

[10] Evon v. Andrews, 211 Conn. 501, 505 (1989).

[11] Colon v. City of New Haven, 60 Conn. App. 178. 180 (2000).

[12] Colon v. City of New Haven, 60 Conn. App. 178. 181 (2000).