TWILA WILLIAMS, ADMINISTRATRIX (ESTATE OF TIANA N.A. BLACK) ET AL.
HOUSING AUTHORITY OF THE CITY OF BRIDGEPORT ET AL
Argued March 16, 2015
Action to recover damages for, inter alia, the defendants' alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Sommer, J., granted the motion for summary judgment filed by the defendant Bridgeport Fire Department et al.; thereafter, the court denied the plaintiff's motion to reargue, and the plaintiff appealed to this court.
Reversed in part; further proceedings.
The plaintiff administratrix of the estates of four children who died in an apartment fire sought to recover damages from the defendants, the Bridgeport Fire Department and five officials of the city of Bridgeport, claiming that the defendants were negligent, inter alia, in failing to inspect the decedents' apartment and to ensure that it complied with certain state building and fire safety codes. The apartment was part of a group of affordable housing units owned and maintained by the Bridgeport Housing Authority. The plaintiff alleged that the defendants knew or should have known about and remedied certain defects in the apartment, including, inter alia, the absence of fire escapes, fire suppression systems, fire alarm systems, fire sprinklers and fire extinguishers. The defendants moved for summary judgment, claiming that pursuant to statute (§ 52-557n [a] [B]), they were immune from liability for having failed to inspect the apartment and for other alleged acts of negligence that involved discretionary duties. In affidavits submitted with the summary judgment motion, the defendants R and C, the fire chief and fire marshal of Bridgeport, respectively, asserted that they were familiar with all responsibilities and duties of the fire marshal's office, and R also stated that no statutory authority mandated that the decedents' apartment be inspected. While the summary judgment motion was pending, R was deposed and testified that prior to making his affidavit he was not aware that his office was obligated by statute (§ 29-305 [b]) to inspect affordable housing, and that he had discovered subsequent to the making of the affidavit that § 29-305 (b) applied to affordable housing. The trial court granted the defendants' motion for summary judgment and rendered judgment thereon, concluding that the defendants were immune from liability under § 52-557n (b) (8) for their failure to inspect the decedents' property, that other claims that the plaintiff had alleged involved negligent performance of discretionary duties for which the defendants were immune under § 52-557n (a) (2) (B), and that the plaintiff had not raised a question of material fact as to whether the defendants' failure to inspect the apartment came within the recklessness exception contained in § 52-557n (b) (8). Thereafter, the plaintiff filed a motion to reargue, claiming that R's deposition raised issues of fact as to whether the defendants' acts constituted recklessness under § 52-557n (b) (8). The trial court denied the motion, and the plaintiff appealed to this court.
1. This court concluded that the defendants' familiarity or not with the obligation to inspect under § 29-305 (b) and the reason for the defendants' failure to follow its mandate gave rise to questions of material fact that must be decided by the fact finder and, thus, the trial court's summary judgment had to be reversed on that issue; the defendants' degree of awareness of the statutory requirement to inspect the decedents' apartment and the reason for the failure to inspect were questions of material fact that had to be established to determine if the defendants' actions were reckless.
2. The plaintiff could not prevail on her claim that the trial court improperly concluded that the defendants were immune from liability under § 52-557n (a) (2) (B) for their alleged negligence because that alleged negligence involved a discretionary duty to act: the defendants' alleged negligent enforcement of the state fire safety and building codes did not constitute a breach of a ministerial duty, as the interpretive process used by the defendants in analyzing and applying the fire safety code bore the traditional hallmarks of an exercise of judgment that was discretionary; moreover, the plaintiff could not point to any portion of the fire safety code that mandated that the defendants provide a specific, prescribed, nondiscretionary remedy for the claimed defects and, to the extent that a remedy was needed, the nature, form and adequacy of that remedy under the fire safety code implicated the exercise of judgment and, thus, was discretionary.
3. Because our Supreme Court in Haynes v. Middletown (314 Conn. 303, 101 A.3d 249) established a new, four-pronged test as to what creates a risk of imminent harm and rejected the foreseeability standard that the trial court had used in deciding the defendants' summary judgment motion, this court remanded this case for reargument regarding the applicability of the identifiable person-imminent harm exception to the doctrine of immunity for violations of a discretionary duty in accordance with the test in Haynes.
John T. Bochanis, with whom, on the brief, was Thomas J. Weihing, for the appellant (plaintiff).
Betsy Ingraham, associate city attorney, for the appellees (defendant city of Bridgeport et al.).
Lavine, Mullins and Borden, Js.
[159 Conn.App. 681] 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. The plaintiff claims that: (1) there is an issue of material fact as to whether the defendants are immune from liability pursuant to [159 Conn.App. 682] General Statutes § 52-557n (b) (8)
for 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.
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, located on the second and [159 Conn.App. 683] 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). The 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. The 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., a fire broke out in the oven in the kitchen of the decedents' [159 Conn.App. 684] 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. Both 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 [159 Conn.App. 685] 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 Pajaanen, 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. Rooney 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. Thus, these two assertions in Rooney's [159 Conn.App. 686] 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 ...