A Connecticut state court judge has ruled that the Town of Hamden, owner of a hockey rink where a mom attending her son’s game was injured, is entitled to governmental immunity, thus dismissing the mom’s lawsuit. In so ruling, the court found that the defendant was “engaging in a governmental function while performing the acts and omissions complained of by the plaintiff.”
The incident occurred when the plaintiff tripped and fell over a pothole in the parking lot of the ice rink. The plaintiff was consequently injured. The defendant owned, possessed, controlled, and maintained the ice rink and parking lot (premises). The plaintiff claimed the pothole was caused by the carelessness and negligence of the defendant by and through its agents, servants, and/or employees. As a direct result of the carelessness and negligence of the defendant, the plaintiff sustained personal injuries and losses, according to the complaint.
The plaintiff sued in February 2018. Shortly thereafter, the defendant moved to dismiss based on governmental immunity.
In its analysis, the court wrote that “the defendant argues that the acts and omissions complained of are clearly discretionary in nature. The plaintiff counters that the present case requires consideration of evidence outside of the pleadings to determine whether the defendant’s omissions constituted ministerial or discretionary acts, and that it is possible that the defendant was engaged in a ministerial function such that the defendant would not be entitled to governmental immunity, and that it is unclear whether directives giving rise to a ministerial duty exist because discovery has not yet been completed.” Case law, specifically involving the state’s Supreme Court, however, undermined that argument, according to the court.
The court turned next to the question of whether the acts or omissions complained of “are ministerial or discretionary in nature.” The defendant argued that the alleged conduct on the part of its agents relative to maintaining the parking lot clearly implicates some measure of discretion and/or application of judgment. The plaintiff countered that it is not apparent from the plaintiff’s revised complaint that the defendant was engaged in a discretionary function while performing the negligent acts and omissions complained of by the plaintiff. The plaintiff added that even if the court finds that the conduct complained of is discretionary, the court’s inquiry should not stop there, as courts have regularly recognized that a ministerial duty may hinge upon a discretionary determination.
The court focused on the recent appellate court decision in Kumah v. Brown. That court wrote: “Municipal officials are 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 . . . 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 the fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.”
The court continued: “In the present case, the plaintiff alleges that the defendant was negligent in that it (1) failed to provide the plaintiff with a reasonably safe walking surface; (2) allowed said pothole to remain on the premises, where it was a danger to those on the premises, including the plaintiff; (3) failed to fill or otherwise remedy said pothole; (4) knew or should have known of the defective condition created by the pothole and took no measure to remedy it; and (5) allowed or permitted the defective condition to exist for an unreasonable period of time yet took no measure to remedy or correct the same. … (T)hese allegations relate to the defendant’s determination as to what is reasonable or proper to maintain the premises under a particular set of circumstances, which necessarily involve the exercise of judgment. Accordingly, the acts complained of are discretionary.
The plaintiff also alleged that the defendant was negligent in that it (1) negligently failed to adequately illuminate the area, although it knew or should have known that the same was reasonable and necessary under the circumstances, and (2) failed to warn the plaintiff of the dangerous and defective condition then and there existing by appropriately marking the area with visual cues or by any other reasonable method.
“Our courts have held that deciding how to mark, close off, or alert others to a defect is inherently discretionary. See Martel v. Metropolitan District Commission, 275 Conn. 38, 50, 881 A.2d 194 (2005) (concluding that the defendants, in determining whether to supervise, and inspect 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).”
“The plaintiff further alleges that the defendant was negligent in that it failed to inspect the premises to determine if there were any dangerous, defective and unsafe conditions then and there existing. Courts have held that ‘what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment.’ Violano v. Fernandez, supra, 280 Conn. 322-23; see also Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989) (defendants’ act was discretionary in nature because what constitutes reasonable, proper or adequate inspection involves exercise of judgment).
“Moreover, in the present case, the plaintiff has failed to allege and thereby direct this court to any city ordinance, policy, or any other directive imposing a duty on the defendant to act in a prescribed manner. See Violano v. Fernandez, supra, 280 Conn. 323 (holding that plaintiffs failed to allege that the acts or omissions complained of were ministerial in nature because they did not allege that defendant was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to act in any prescribed manner). In the absence of any such authority compelling the defendant to act in a prescribed manner, the defendant’s conduct cannot be regarded as ministerial in nature. Accordingly, the plaintiff has not sufficiently alleged that the defendant was required to perform in a prescribed manner and failed to do so. See Colon v. City of New Haven, 60 Conn. App. 178, 182, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).”
The plaintiff’s other arguments were similarly unavailing.
Pamela Kramer-Gidley v. MAB Rink Management, LLC et al.; Super. Ct. Conn., Jud. Dist. New Haven; CV166066430S, 2018 Conn. Super. LEXIS 1726; 8/1/18
