Superior Court of Connecticut, Judicial District of Hartford, Hartford
Filed Date October 29, 2015
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#137)
PETER EMMETT WIESE, JUDGE.
This action arises from injuries sustained by the plaintiff, Lisa Arnold, as a result of a slip and fall accident that allegedly occurred in a parking lot owned and maintained by the defendant, the Town of Manchester. The plaintiff filed the operative pleading, a second amended complaint, on August 1, 2014, alleging a cause of action in negligence pursuant to General Statutes § 52-557n. The plaintiff alleges that the defendant owned and maintained the Manchester Senior Citizens Center (Senior Center), including an adjacent municipal parking lot, and that she, as an employee of Phoenix Environmental Lab (Phoenix), was authorized to park in the Senior Center's parking lot while at work. The plaintiff further alleges that on November 2, 2011, while walking on the parking lot, she slipped and fell on a patch of ice, suffered severe injuries, and that her injuries were caused by the defendant's negligence because it, inter alia, failed to perform " the ministerial act of removing icy conditions from the parking lot within twenty-four hours and/or twelve hours" of its accumulation on the lot. On October 7, 2014, the defendant filed an answer and special defenses, asserting, inter alia, that the plaintiff's cause of action is barred by the doctrine of governmental immunity.
On June 15, 2015, the defendant moved for summary judgment on the ground that the plaintiff's negligence claim is barred by the doctrine of qualified immunity as a matter of law. In support of its motion, the defendant submitted a signed and sworn affidavit from Mark Carlino and the certified deposition transcripts of the plaintiff, Carlino, and Kenneth Longo. The plaintiff filed an opposing memorandum of law on July 15, 2015, supported by, inter alia, certified portions of the deposition transcript of Michel Tupper. The matter was heard at short calendar on July 27, 2015.
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821.
" 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. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
The defendant argues that this action is barred by the doctrine of qualified immunity pursuant to § 52-557n because the plaintiff's negligence claim arises from the defendant's alleged failure to properly treat ice that had accumulated in the Senior Center's parking lot, which is a discretionary, rather than ministerial, duty. In response, the plaintiff argues that the defendant's duty to treat the ice accumulation was rendered ministerial by applicable town ordinances, specifically, Chapter 279, § § 279-19 and 279-24, of the Manchester Code of Ordinances, which provide that landowners, following a snow storm, have a duty to promptly remove snow and ice from sidewalks adjacent to their property.
" [Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties . . . [Section] 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the 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." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 312, 101 A.3d 249 (2014). " Generally, 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 ...