Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Northrup v. Witkowski

Court of Appeals of Connecticut

August 1, 2017

GEORGE NORTHRUP ET AL.
v.
HENRY WITKOWSKI, JR., ET AL.

          Argued Date: April 19, 2017

         Procedural History

         Action to recover damages for property damage sustained as a result of the alleged negligence of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Blue, J., granted the defendants' motion for summary judgment and rendered judgment thereon; thereafter, the court denied the plaintiffs' motion to reargue, and the plaintiffs appealed to this court. Affirmed.

          Joshua F. Gilman, for the appellants (plaintiffs).

          Thomas Gerarde, with whom, on the brief, was Emily E. Holland, for the appellees (defendants).

          Alvord, Prescott and Mullins, Js.

         Syllabus

         The plaintiff homeowners commenced this action against the defendants, the borough of Naugatuck and several of its town officials, to recover damages sustained as the result of repeated flooding of their property. They alleged that on eight occasions between 2009 and 2012, their property was inundated with water following heavy rainfall when the single catch basin in the area was clogged or otherwise inadequate to redirect water away from their property, and that the defendants negligently and recklessly had failed to perform their municipal duties in an appropriate manner. The trial court granted the defendants' motion for summary judgment on the ground of governmental immunity pursuant to statute (§ 52-557n [a] [2] [B]) as to the counts of the complaint alleging negligence and recklessness. From the judgment rendered thereon, the plaintiffs appealed to this court, claiming, inter alia, that issues of material fact existed as to whether the acts or omissions of the defendants were discretionary or ministerial in nature. Specifically, they claimed that certain language in a town ordinance, which assigned responsibility for the care, management, and maintenance of the town's storm water drainage system to the town's street commission, imposed a ministerial duty on the defendants to keep the storm drains and drainage pipes near the plaintiff's property in a safe and operable condition.

         Held:

         1. The trial court correctly determined that there were no genuine issues of material fact with respect to whether the defendants' alleged negligent acts or omissions were discretionary in nature and, thus, subject to governmental immunity: although the town ordinance on which the plaintiffs' relied required the street commission to clean, to maintain and to repair the town's storm water sewer system, the ordinance contained no provisions that mandated the time or manner in which those responsibilities were to be executed, and the day-to-day decision making regarding when and how to direct town resources in furtherance of the duty to keep the storm water systems up-to-date and working properly necessarily was left to the judgment and discretion of street commission officials and employees; moreover, certain case law relied on by the plaintiffs in support of their claim that genuine issues of material fact existed as to whether the defendants' duty was discretionary in nature was factually distinguishable from the present case and contained dicta that was not binding on this court.

         2. The trial court properly rejected the plaintiffs' claim that the identifiable person-imminent harm exception to discretionary act immunity applied to the facts of the present case, the plaintiffs having failed to demonstrate that the harm alleged was imminent; because the instances of flooding here occurred eight times over the course of four years during periods of greater than usual rainfall when the catch basins in the area either were filled with snow and ice or otherwise blocked by debris, and because there was not a high probability that damaging flooding would occur at any particular time, there was no clear and urgent need for action on the part of the defendants, and the court, therefore, properly determined that the plaintiffs could not demonstrate imminent harm.

         3. The trial court properly rendered summary judgment in favor of the defendants on the counts of the complaint alleging recklessness; the plaintiffs' allegations of recklessness, which were identical to the allegations in support of the negligence counts, could not reasonably be characterized as rising above mere negligence and, even if true, were insufficient, as a matter of law, for their submission to the jury, as the record could not support a finding that any of the individual defendants acted or failed to act with the type of wanton disregard that is the hallmark of reckless behavior.

          OPINION

          PRESCOTT, J.

          The underlying action arose as a result of the repeated flooding of residential property due to inadequate street drainage of which the municipality and its officials allegedly were aware but failed to correct. The plaintiffs, George Northrup and Helen Northrup, [1] the owners of the property at issue, appeal from the summary judgment rendered by the trial court in favor of the defendants-the borough of Naugatuck (town); Henry J. Witkowski, Jr., the town's former superintendent of streets; James Stewart, the former town engineer and, later, the town's director of public works;[2] and Robert A. Mezzo, the town's mayor[3]-upon its determination that all counts of the plaintiffs' complaint were barred by governmental immunity.

         The plaintiffs claim on appeal that the court improperly determined that (1) the defendants were entitled to governmental immunity on all counts as a matter of law because the acts or omissions of which they complained were discretionary rather than ministerial in nature, (2) the identifiable person-imminent harm exception to governmental immunity did not apply to the flooding at issue because the plaintiffs were not subject to imminent harm, and (3) the allegations of recklessness directed against the individual defendants could not be sustained as a matter of law. We disagree with the plaintiffs and, for the reasons that follow, affirm the judgment of the trial court.

         The record before the court, viewed in the light most favorable to the plaintiffs as the nonmoving party, reveals the following facts and procedural history. The plaintiffs reside on property located in the town at 61 Nettleton Avenue. On eight different occasions between 2009 and 2012, the plaintiff's property was damaged when surface rainwater and/or ‘‘black water''[4] inundated the property because the single catch basins in the area routinely became clogged or inadequately redirected water away from the property.

         After the first occurrence in July, 2009, Helen Northrup contacted Stewart, who, at that time, was the town's supervisory engineer. He told her that the flooding was the result of a rare storm and that it would not happen again. Despite his assurance, however, flooding occurred again in October and December of that year. The plaintiffs continued to contact Stewart, to no avail. The plaintiffs made several requests to the town for sandbags; one such request was granted, but others were denied or simply ignored.

         The town received a report in October, 2009, from an engineering firm about the Nettleton Avenue neighborhood. The report indicated that, over the past forty years, many residences in the neighborhood had experienced periodic flooding of their properties following periods of heavy rainfall. It further indicated that the drainage system in the area was likely to experience flooding after rainfalls of two inches or more, which could occur several times a year. The report attributed the flooding to the fact that runoff was required to flow through relatively narrow drainpipes that were in poor to fair condition and that the majority of catch basins in the area were old and had small openings that often became overgrown with vegetation or obstructed by trash. The report recommended that the town construct new, larger storm drains to handle the storm runoff in the area, but the town failed to adopt that proposal. The plaintiffs' property flooded again in July of 2010, March and August of 2011, and June and September of 2012.

         The plaintiffs commenced the underlying action in February, 2010. They filed an amended complaint on March 11, 2013. The amended complaint contained nine counts. Counts one, two, and six sounded in negligence against Witkowski, Jr., Stewart, and the town. Counts three through five alleged common-law recklessness against the individual defendants. Counts seven through nine alleged negligent infliction of emotional distress against Witkowski, Jr., Stewart, and the town.

         On April 5, 2013, the defendants filed a motion to strike all but the negligence counts. Specifically, the defendants argued that the counts alleging common-law recklessness against the individual defendants should be stricken because they failed to set forth allegations of conduct that would give rise to a finding of recklessness. Further, the defendants argued that the counts sounding in negligent infliction of emotional distress should be stricken because such a cause of action cannot arise from allegations of damage to property only. The plaintiffs filed an opposition to the motion to strike alleging that all causes of action were sufficiently pleaded given those allegations that were expressly pleaded as well as those necessarily implied.

         The court, Frechette, J., issued an order denying the motion to strike as to the recklessness counts, but granting the motion as to those counts alleging negligent infliction of emotional distress. The court stated in its order that ‘‘[t]aken as admitted, the plaintiff's allegations of recklessness are sufficient.'' The court nevertheless agreed ‘‘with the vast majority of Superior Court decisions which hold that Connecticut does not recognize a cause of action for negligent infliction of emotional distress arising solely out of a property damage claim.''

         On June 4, 2013, the plaintiffs filed the operative second amended complaint, in which, among other things, they repleaded their counts alleging negligent infliction of emotional distress. The defendants filed a revised answer on February 27, 2014, in which they raised special defenses of contributory negligence, governmental immunity, and failure to mitigate damages. A certificate of closed pleadings and a claim for the trial list was filed on May 4, 2015.

         On October 30, 2015, the defendants filed the motion for summary judgment underlying the present appeal. The defendants submitted a supporting memorandum of law, attached to which were partial transcripts from the depositions of Helen Northrup and the individual defendants, as well as an affidavit by Stewart. The defendants argued that the negligence counts, including those alleging negligent infliction of emotional distress, were barred by governmental immunity because they involved acts or omissions that required the exercise of judgment or discretion, and no other recognized exception to governmental immunity applied. The defendants further argued that the recklessness counts brought against the individual defendants also failed as a matter of law because, on the basis of the allegations and evidence presented, no reasonable fact finder could determine that the individual defendants had engaged in demonstrably reckless conduct.

         The plaintiffs filed an objection to the motion for summary judgment on November 18, 2015, arguing with respect to the negligence counts that there remained genuine issues of material fact as to whether the defendants were exercising ministerial or discretionary duties and, if discretionary, whether the identifiable person-imminent harm exception to governmental immunity applied. With regard to the recklessness counts, the plaintiffs argued that a genuine issue of material fact exists as to whether the conduct of the individual defendants rose to the level of recklessness. The plaintiffs attached a number of exhibits to their objection, including portions of the deposition testimony of Helen Northrup, Stewart, and Witkowski, Jr.; an affidavit from Helen Northrup; a copy of the ‘‘October, 2009 Stormwater Management Report for the Nettleton Avenue Neighborhood''; a copy of chapter 16, article II, § 16-32 of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.