TWILA WILLIAMS, ADMINISTRATRIX (ESTATE OF TIANA N.A. BLACK), ET AL.
v.
HOUSING AUTHORITY OF THE CITY OF BRIDGEPORT ET AL.
Argued
January 19, 2017
Daniel
J. Krisch, for the appellants (defendant City of Bridgeport
Fire Department et al.).
John
T. Bochanis, with whom, on the brief, was Thomas J. Weihing,
for the appellee (plaintiff).
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js. [*]
OPINION
ESPINOSA, J.
This
certified appeal arises out of a tragic fire in which four
residents of a Bridgeport public housing complex-Tiana N.A.
Black and her three young children-lost their lives. The
plaintiff, Twila Williams, as administratrix of the estate of
each decedent, [1] brought the present action against the
Bridgeport Fire Department and five Bridgeport city
officials-Fire Chief Brian Rooney, Fire Marshal William
Cosgrove, Mayor William Finch, Zoning Administrator Dennis
Buckley, and Building Official Peter Paajanen-(collectively,
the municipal defendants) as well as various other defendants
who are not parties to the present appeal.[2" name="FN2" id="FN2">2] The plaintiff
alleged, among other things, that the decedents died as a
result of the municipal defendants39; negligent failure to
inspect the smoke detection equipment in their apartment unit
for compliance with applicable fire safety codes and
regulations. The trial court, Sommer, J., rendered
summary judgment for the municipal defendants, concluding,
with respect to their alleged failure to inspect, that
Connecticut39;s municipal liability statute, General
Statutes § 52-557n, afforded them immunity from
liability. The Appellate Court reversed, concluding that a
jury reasonably could find that the conduct of the municipal
defendants demonstrated ‘‘a reckless disregard
for health or safety under all the relevant
circumstances39;39; and, therefore, that they were
potentially liable pursuant to § 52-557n (b)
(8).[3" name="FN3" id=
"FN3">3]Williams v. Housing
Authority, 159 Conn.App. 679, 696, 24 A.3d 537');">124 A.3d 537 (2015).
We affirm the judgment of the Appellate Court.
I
FACTS
AND PROCEDURAL HISTORY
The
following undisputed facts and procedural history are
relevant to our disposition of this appeal. On November 13,
2009, the date on which the fire occurred, the decedents
resided in building 12, unit 205, of the P.T. Barnum
Apartments, a group of affordable housing units owned and
maintained by the Bridgeport Housing Authority. Unit 205 was
located on the second and third floors of a three story
apartment building containing twenty residential units. The
second floor of the apartment contained a kitchen, a half
bath, and a dining/ living room area, while the third floor
housed three bedrooms and a full bath. Unit 205 had only a
single point of ingress and egress, namely, a second floor
door that opened onto a porch and an external staircase.
Because the building lacked fire escapes, the only means of
leaving unit 205 was through that door. This meant that an
individual seeking to escape from the bedrooms on the third
floor of unit 205 during an emergency had to travel down the
internal staircase into the kitchen area, and then traverse
the second floor dining/ living room area to access the door.
Because of frequent false alarms caused by cooking fumes,
some residents of the P.T. Barnum Apartments were in the
habit of covering or disabling their smoke detectors.
Pursuant
to General Statutes § 29-305 (b), [4] the Bridgeport
fire marshal39;s office is required to conduct annual
inspections of all multifamily residential units within
Bridgeport. It is undisputed that the neither the municipal
defendants nor their employees conducted the mandatory
inspection of unit 205 in the year prior to November 13,
2009. Just one day before, however, on the afternoon of
November 12, two employees of the housing authority did
conduct a routine maintenance inspection of unit 205. The
lead inspector, Alexander Guzman, stated that he is certified
by the United States Department of Housing and Urban
Development to replace smoke detector batteries and carry out
health and safety inspections of multiunit residential
facilities. In the course of inspecting unit 205, he and his
assistant tested the smoke detectors, replaced one
non-functioning detector, and changed the battery in another.
Guzman reported that all of the smoke detectors in unit 205
were functioning properly upon completion of his inspection.
Hours
later, in the early morning of Friday, November 13, a fire
broke out in the kitchen of unit 205. Although neighbors
reported seeing smoke and hearing smoke alarms prior to 12:45
a.m., they assumed that it was a false alarm and did not
report the fire via a 911 telephone call until 12:56 a.m. The
fire department arrived on the scene at 1:02 a.m.
Firefighters extinguished the fire, gained entry to unit 205,
and located and attempted to resuscitate the four decedents,
each of whom subsequently was pronounced dead at an area
hospital. The medical examiner concluded that all four had
died of smoke inhalation. In addition, Black39;s blood
alcohol level was found to be 0.23 percent.
Both
the fire department and the state police investigated the
circumstances surrounding the fire. With respect to the cause
of the fire, both agencies concluded that it was accidental.
One neighbor reported that Black had been a heavy drinker,
who often drank so much alcohol on weekend evenings that she
would pass out on the couch and could not be wakened by her
children. That same neighbor further reported that
Black39;s ‘‘stove was always very dirty,
covered with grease and food.39;39; Consistent with this
report, fire investigators observed a bottle of alcohol on
the floor of unit 205, the remnants of combustible packaging,
snack chips, and debris piled on the counter tops adjacent to
the kitchen stove, and several layers of burned grease caked
on the stove itself. They also noted: the right rear burner
of the gas stove was found in what was believed to be the
‘‘HI39;39; or ‘‘ON39;39;
position; burn patterns suggested that the fire had
originated near that burner; there was evidence of human
activity near the stove at the time of the fire; and the burn
injuries that Black sustained indicated that she had been in
close proximity to the fire at some point, either when it
ignited or in the course of trying to extinguish it. On the
basis of these observations, investigators concluded that the
conflagration was accidental and arose from a fire on the
stove with human involvement. Fire department investigators
specifically linked the fire to ‘‘carelessness,
39;39; opining that ‘‘Black39;s blood
alcohol content would likely have impaired her ability to
respond appropriately to the initial alarm and to the fire
itself.39;39;
Investigators
also concluded that the five ionization type smoke detectors
within unit 205 were operational at the time of the fire.
With respect to the deaths of the decedents, investigators
concluded that, given the locations of the bodies within unit
205, it was likely that all four of the decedents had been
alerted to the fire and were attempting to leave at the time
they died. Specifically, Black and Tyaisja Williams were
found in the dining room area, just a few feet from the door;
Nyaisja Williams was found on the living room floor; and
Nyshon Williams was found near a window in one of the third
floor bedrooms. Investigators concluded that the
neighbors39; delay of eleven minutes or more[5] in notifying the
fire department of the fire, combined with Black39;s
elevated blood alcohol content, may have contributed to the
four deaths.
The
plaintiff commenced the present action against the
defendants. In her revised complaint, the plaintiff alleged,
among other things, that the municipal defendants failed to
ensure that unit 205 complied with state building and fire
safety codes, failed to remedy numerous defects in unit 205,
and failed to conduct an annual fire safety inspection of
unit 205 as required by § 29-305. The plaintiff
specifically alleged that the municipal defendants knew or
should have known about and remedied a number of asserted
defects in unit 205, including the absence of fire escapes or
other adequate means of egress, photoelectric smoke
detectors, fire alarm systems, fire suppression systems, fire
sprinklers, fire extinguishers, and fire safety or prevention
plans. She alleged that such conduct on the part of the
municipal defendants was both negligent and reckless.
The
municipal defendants moved for summary judgment, claiming,
among other things, that they were immune from liability for
any claims of negligence pursuant to § 52-557n. With
respect to allegations of negligence relating to
discretionary conduct, the municipal defendants relied on
§ 52-557n (a) (2) (B), which provides in relevant part
that ‘‘a political subdivision of the state shall
not be liable for damages to person or property caused by . .
. 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.39;39;
With respect to allegations of negligence relating to any
nondiscretionary, ministerial duty, such as the duty annually
to inspect unit 205, the municipal defendants relied on
§ 52-557n (b) (8), which provides in relevant part that
‘‘a political subdivision of the state or any
employee, officer or agent acting within the scope of his
employment or official duties shall not be liable for damages
to person or property resulting from . . . failure to make an
inspection or making an inadequate or negligent inspection of
any property . . . to determine whether the property complies
with or violates any law or contains a hazard to health or
safety, unless the political subdivision had notice of
such a violation of law or such a hazard or unless such
failure to inspect or such inadequate or negligent inspection
constitutes a reckless disregard for health or safety under
all the relevant circumstances . . . .39;39;
(Emphasis added.) The municipal defendants further contended
that they had no actual notice of any defects or violations
at unit 205 and, therefore, that there was no question that
the two exceptions to municipal immunity contained in §
52-557n (b) (8)- notice of the alleged hazard or violation,
and reckless disregard for health or safety-did not apply.
In
support of their motion for summary judgment, the municipal
defendants submitted affidavits from Finch, Rooney, Cosgrove,
Buckley, and Paajanen. Each affiant attested that, prior to
November 13, 2009, neither he nor other Bridgeport employees
knew of any code violation or safety hazard at unit 205. With
the exception of Cosgrove, who offered no opinion as to his
office39;s duty to inspect, each affiant also attested to a
belief that he owed no duty to inspect unit 205. Rooney and
Cosgrove specifically asserted in their affidavits that they
were aware of and familiar with all the responsibilities and
duties of the fire department and fire marshal39;s office,
respectively.
In her
opposition to the motion for summary judgment, the plaintiff
argued, among other things, that the municipal
defendants39; failure to conduct any inspection of
unit 205, in alleged violation of § 29-305, constituted
the negligent breach of a ministerial duty and, therefore,
was not subject to immunity under § 52-557n (a) (2) (B).
The plaintiff further contended that the municipal defendants
were not entitled to immunity under § 52-557n (b) (8)
because both of the exceptions contained in that subdivision
allegedly applied to their conduct: (1) they were aware of
various code violations at unit 205; and (2) their failure to
conduct any inspections constituted a reckless disregard for
health or safety. In support of these contentions, however,
the plaintiff submitted only the affidavit of Mark Tebbets,
an expert on the state building code. Tebbets opined that (1)
unit 205 had not been compliant with applicable building and
fire safety codes mandating the interconnection of smoke
alarms[6] and the size of window openings,
[7] (2)
the fire department failed to conduct the required annual
inspection of unit 205 to identify those violations, and (3)
those undetected violations were causally related to the
deaths of the decedents insofar as interconnection of the
alarms would have provided earlier notice of the smoke and
fire conditions in unit 205 and proper window openings would
have facilitated escape from the fire.[8]
The
trial court granted summary judgment in favor of the
municipal defendants. With respect to their alleged failure
to inspect unit 205, the court found that the plaintiff had
failed to establish that there was a genuine issue of
material fact as to either the notice exception or the
reckless disregard exception in § 52-557n (b) (8). As to
notice, the court observed that the plaintiff had not
presented any evidence to contradict the municipal
defendants39; attestations that they were not aware of any
of the alleged violations. As to recklessness, the trial
court characterized the law as follows: ‘‘In the
context of inspections, courts seem to agree that knowledge
of a dangerous condition is necessary to show the type of
reckless conduct necessary to defeat immunity pursuant to
§ 52-557n (b) (8).39;39; Accordingly, the court
concluded that the lack of any evidence that the municipal
defendants were aware of code violations or fire hazards at
unit 205 also defeated the plaintiff39;s argument that the
second statutory exception applied.
The
municipal defendants filed their motion for summary judgment
on May 1, 2013. The plaintiff filed her objection on May 10
of that year, and the trial court issued its memorandum of
decision on July 19, 2013, granting summary judgment in favor
of the municipal defendants. One week before, on July 11,
2013, the plaintiff had deposed Rooney. During the course of
that deposition, Rooney made numerous statements that, while
not indicating any knowledge or awareness of specific code
violations or safety hazards at unit 205 prior to the fire,
arguably created questions of fact as to whether the
municipal defendants demonstrated reckless disregard for the
health or safety of the citizens of Bridgeport. For example,
Rooney testified that:
• Bridgeport employs only ten fire inspectors, a number
that is insufficient to inspect each of the 4000 to 5000
multifamily homes located there.
• Although Rooney requested additional fire inspectors
in his 2013 budget, he had not requested additional
inspectors in past years39; budgets.
• Rooney previously had been named as a defendant in a
lawsuit arising from a 2005 fire at a three-family residence
located on Iranistan Avenue in which a mother and her two
children lost their lives. The plaintiffs in that action
alleged that the fire department had failed to inspect the
property, as required by statute, and thus had failed to
identify the fact that there were no smoke alarms present.
• Prior to that 2005 fire, Bridgeport39;s fire
inspectors ‘‘weren39;t doing the [mandatory]
inspections annually on [Bridgeport39;s more than 3000
three-family homes] unless there was a complaint.39;39;
Rooney conceded: ‘‘I don39;t know what they
were doing.39;39; Subsequently, in late 2007 and early
2008, all but one of Bridgeport39;s inspectors were fired
for failing to carry out their inspection duties.
• In 2007 or 2008, Rooney spoke with then Fire Marshal
Bruce Collins about the inspection procedure for public
housing facilities in Bridgeport. Collins informed him that
those facilities carried out their own inspections and,
therefore, that the fire marshal39;s office within the fire
department did not inspect them unless there was a complaint.
Rooney explained that ‘‘[w]e didn39;t have the
resources to do it when we knew that the housing authority
was doing it.39;39; Rooney conceded, however, that the
housing authority39;s internal inspections were not being
conducted by a certified fire marshal-who must pass an
examination and study code enforcement at the state fire
marshal school-as required by law, and he did not know
specifically what the internal inspections entailed.
• In 2013, upon concluding that the fire department
lacked the resources to satisfy its statutory duty to conduct
a certified inspection of every multifamily residence each
year, Rooney began asking his fire officers to assist by
conducting informal inspections to identify the most glaring
violations. Those officers were to complete approximately
3600 inspections per year. Nevertheless, Rooney made no
changes to fire department policy with respect to inspecting
public housing facilities after the 2009 fire, due to an
alleged lack of resources. Specifically, as of 2013, there
still was no procedure in place to inspect the P.T. Barnum
Apartments.
• Rooney claimed that he previously was unaware that the
fire department was required by law to inspect public housing
facilities each year, but that counsel for Bridgeport
recently had made him aware of that obligation.
• Rooney was not familiar with any requirement that
smoke detectors in multifamily dwelling units be
interconnected. The fire department, with assistance from
AmeriCorps volunteers, has installed 40, 000 smoke alarms in
Bridgeport, none of which was interconnected.
• Rooney did not know the specific difference between
ionization and photoelectric smoke detectors. He was not
aware of the alleged benefits of photoelectric detectors, and
he had never considered whether the fire department should
install those detectors in addition to or in lieu of
ionization types. He also was not familiar with breakaway
windows.
• Subsequent to the 2009 fire at issue in this case,
Rooney and his staff spent several nights each week visiting
each unit in the P.T. Barnum Apartments and checking the
smoke detectors. In the course of those visits, he discovered
that many of the residents had taken down or covered their
smoke alarms in response to previous false alarms. Rooney was
able to complete all of these visits in the course of three
weeks to one month, after which he proceeded to visit other
public housing complexes.
• Subsequent to the 2009 fire, Rooney and other town
officials formed a task force to determine what could be done
to prevent similar tragedies in the future. The first meeting
of the task force was disrupted, however, and he did not
recall that the group ever met again.[9]
The
transcript of Rooney39;s deposition was not before the
trial court at the time the court decided the motion for
summary judgment. On August 7, 2013, the plaintiff filed a
motion for reconsideration and/or reargument of the
court39;s July 19 summary judgment ruling in favor of the
municipal defendants. The stated basis for the motion was
that, in his deposition, Rooney now conceded that the fire
department was required by statute to conduct annual
inspections of unit 205, but that the fire department did not
in fact conduct these inspections due to a claimed lack of
resources.[10]
The
municipal defendants raised both procedural and substantive
arguments in response to the plaintiff39;s motion for
reconsideration and/or reargument. Procedurally, they argued
that the motion was improper because it did not present any
newly discovered evidence that could not have been included
with the plaintiff39;s initial objection. Specifically,
they argued that, at the time they sought summary judgment in
May, 2013, the action had been pending for nearly two and
one-half years, during which time the plaintiff had not even
noticed the defendants39; depositions. Substantively, they
argued that Rooney39;s deposition did not afford a basis
for reconsideration because there still was no indication
that any of the municipal defendants were aware of dangerous
conditions in unit 205. After holding a hearing, the trial
court denied the motion for reconsideration and/or reargument
without memorandum and rendered judgment for the municipal
defendants.[11]
The
plaintiff appealed to the Appellate Court, which reversed the
judgment of the trial court with respect to the determination
that there is no question of material fact as to whether the
municipal defendants are immune from liability under §
52-557n (b) (8) for failing to inspect unit
205.[2" name="FN12" id=
"FN12">12] Williams v. Housing
Authority, supra, 159 Conn.App. 681-82. After
determining that § 52-557n (b) (8) is ambiguous and that
the legislative history sheds no light on the meaning of the
phrase ‘‘reckless disregard for health or safety
under all the relevant circumstances, 39;39; the
Appellate Court looked to the common-law definition of
recklessness. Williams v. Housing
Authority, supra, 692-94. The court rejected
the trial court39;s interpretation, concluding that
treating the recklessness exception as imposing a notice
requirement would conflate the two statutory exceptions-
actual notice and reckless disregard-and render the latter
superfluous. Id., 694 n.13. Instead, the Appellate
Court construed the statute as follows: ‘‘A
failure to inspect that constitutes a reckless disregard for
health or safety under § 52-557n (b) (8) [is] one in
which an individual is aware of the duty to inspect,
recognizes the possible impact on public or
individual health or safety, and makes the conscious decision
not to perform that duty.39;39; (Emphasis altered.)
Id., 694. Applying that interpretation of the
statute, the Appellate Court concluded that a jury reasonably
could find that the municipal defendants39; failure to
inspect unit 205 was reckless. Specifically, the court opined
that ‘‘[i]t is counterintuitive to an average
person that a purported expert, familiar with the duties and
procedures of his own office, cannot appreciate the
consequences when such duties are not carried out, especially
when those duties involve the prevention of life-threatening
fires. Thus, a reasonable juror could conclude that [the
municipal defendants] would appreciate the natural
consequences of their actions.39;39;[3" name="FN13" id="FN13">13] Id.,
696.
The
municipal defendants appealed from the judgment of the
Appellate Court. We granted certification, limited to the
following question: ‘‘Did the Appellate Court
correctly conclude that there was a genuine issue of material
fact as to whether the [municipal] defendants39; failure to
inspect [unit 205] pursuant to . . . § 29-305 (b)
constituted a ‘reckless disregard for health or
safety39; under . . . § 52-557n (b) (8)?39;39;
Williams v. Housing Authority, 319 Conn. 947');">319 Conn. 947, 125
A.3d 528 (2015).
II
LEGAL
ANALYSIS
We are
in agreement with-and the parties do not challenge-much of
the Appellate Court39;s legal analysis. In brief, the
decision of the Appellate Court correctly states the legal
standards governing a motion for summary judgment and
appellate review thereof; Williams v. Housing
Authority, supra, 159 Conn.App. 688-89;
determines that § 52-557n (b) (8) is ambiguous with
respect to the exception for municipal immunity for conduct
constituting ‘‘a reckless disregard for health or
safety under all the relevant circumstances39;39;;
id., 692-93; and, therefore, looks to external
sources such as the common law and the legislative history of
the statute to clarify the meaning of that phrase and the
standards by which it is to be applied. Id., 692-94.
The
primary source of disagreement between the parties is with
respect to the legal standard that the Appellate Court
ultimately adopted. The municipal defendants note that, under
both our common law and our Penal Code, conduct is reckless
only if it involves the disregard of a substantial risk or
high probability of danger that is either known or so obvious
that it should be known. See General Statutes § 53a-3
(13);[14] Matthiessen v. Vanech,
266 Conn. 822');">266 Conn. 822, 832-33, 36 A.2d 394');">836 A.2d 394 (2003). They argue that
the Appellate Court applied an anomalous definition of
recklessness and set the bar too low when it held that the
reckless disregard exception in § 52-557n (b) (8) is
satisfied when public officials merely recognize that failure
to conduct a required inspection will have a possible
impact on public or individual health or safety. See
Williams v. Housing Authority,
supra, 159 Conn.App. 694, 696. Adopting this
possible impact standard, they contend, unjustifiably waters
down the concept of recklessness and places an undue burden
on overworked and under resourced municipal employees.
For her
part, the plaintiff makes little effort to defend the
Appellate Court39;s novel possible impact standard,
conceding in her brief that ‘‘[r]ecklessness or
w[a]nton behavior implies a conscious disregard of a high
risk, such as embarking upon a particularly dangerous
course of action after actual
warning.39;39;[15] (Emphasis added.) Instead, she contends
that, especially in light of the fact that the fire
department39;s noninspection policy was alleged to have
contributed to multiple deaths in the 2005 Iranistan Avenue
fire, the trial court should have left to the jury the
question of whether the fire department39;s ongoing failure
to conduct any annual inspections of unit 205 constituted a
reckless disregard of public health or safety.
For the
reasons discussed hereinafter, we conclude that neither of
the lower courts properly articulated the standard that
governs the reckless disregard exception contained in §
52-557n (b) (8). See part II A of this opinion. When the
proper standard is applied, we agree with the Appellate Court
that the plaintiff has created a genuine issue of material
fact as to whether the municipal defendants, in failing to
inspect unit 205, exhibited a reckless disregard for public
health or safety under all the relevant circumstances and,
therefore, that the trial court should not have granted
summary judgment on that issue. See part II B of this
opinion.
A
As an
initial matter, we agree with the Appellate Court that the
plain language of § 52-557n (b) (8) will not support the
trial court39;s interpretation of the reckless disregard
exception. After reviewing Smart v.
Corbitt, 26 Conn.App. 788');">126 Conn.App. 788, 3d 368');">14 A.3d 368, cert.
denied, 301 Conn. 907');">301 Conn. 907, 3d 177');">19 A.3d 177 (2011), and several
decisions of the Superior Court, the trial court concluded
that ‘‘[i]n the context of inspections, courts
seem to agree that knowledge of a dangerous condition is
necessary to show the type of reckless conduct necessary to
defeat immunity pursuant to § 52-557n (b) (8).39;39;
Leaving aside the question of whether the trial court
correctly parsed the cited case law, we note that the
municipal liability statute carves out two distinct
exceptions to municipal immunity for failure to inspect: when
a political subdivision has notice of a violation or hazard,
and when it demonstrates a reckless disregard for health or
safety under all the relevant circumstances. See General
Statutes § 52-557n (b) (8). Adopting the trial
court39;s rule that reckless disregard can be proven only
when public officials have knowledge of a dangerous condition
would render the two exceptions essentially redundant, in
violation of cardinal principles of statutory interpretation.
See, e.g., American Promotional Events, Inc.
v. Blumenthal, 285 Conn. 192');">285 Conn. 192, 203, 937 A.2d
1184 (2008).
Nor are
we persuaded, however, by the Appellate Court39;s
alternative interpretation of the statute. Our own analysis
diverges from that of the Appellate Court in three primary
respects.
1
First,
with regard to the statutory language itself, the Appellate
Court decision focuses more or less exclusively on the
meaning of the word ‘‘reckless39;39; in
§ 52-557n (b) (8) and does not address how, if at all,
the phrase ‘‘under all the relevant
circumstances39;39; modifies the meaning of
‘‘a reckless disregard for health or safety . . .
.39;39; See Williams v. Housing
Authority, supra, 3');">159 Conn.App. 693-95. At
first blush, it may be tempting to assume that the relevant
circumstances language is mere surplusage, as it is well
established that recklessness, like negligence, generally can
be assessed only in the context of particular factual
circumstances. See State v. Montanez, 219
Conn. 16, 24 n.7, 2 A.2d 149');">592 A.2d 149 (1991); Bowen v.
Hartford Accident & Indemnity Co., 122 Conn.
621, 624-25, 30');">191 A. 530 (1937). With respect to §
52-557n (b), however, we find it noteworthy that, whereas
subdivision (8) carves out an exception for failures to
inspect that constitute ‘‘a reckless disregard
for health or safety under all the relevant
circumstances39;39;; (emphasis added); the
immediately preceding subdivision, which addresses municipal
liability for harms arising from the issuance or denial of
licenses and permits, contains a similar recklessness
exception, but omits the highlighted language. Section
52-557n (b) (7) provides in relevant part that
‘‘a political subdivision of the state or any
employee, officer or agent acting within the scope of his
employment or official duties shall not be liable for damages
to person or property resulting from . . . the issuance,
denial, suspension or revocation of, or failure or refusal to
issue, deny, suspend or revoke any permit, license,
certificate, approval, order or similar authorization, when
such authority is a discretionary function by law, unless
such issuance, denial, suspension or revocation or such
failure or refusal constitutes a reckless disregard for
health or safety . . . .39;39; (Emphasis added.) We
must assume that the legislature39;s decision to include
the ‘‘relevant circumstances39;39; language
in subdivision (8), but to omit it from the otherwise
identical exclusion provision in subdivision (7), was a
purposeful one. See, e.g., State v.
Heredia, 310 Conn. 742');">310 Conn. 742, 761, 3d 1163');">81 A.3d 1163 (2013).
Although
the statute itself provides no guidance as to the specific
types of circumstances that are to be taken into account when
assessing the recklessness of a municipality39;s decision
not to conduct a health or safety inspection, [16] the
legislature39;s use of the modifying phrase
‘‘under all the relevant
circumstances39;39;; (emphasis added) General Statutes
§ 52-557n (b) (8); suggests that we are to view the
exception through a broad lens. In the context of a failure
to inspect, it is reasonable to assume that any of the
following factors, among others, may be relevant: whether the
inspection is mandated by statute or regulation; how
frequently inspections are required to be conducted; the
nature and severity of the threat to health or safety that
the inspection is intended to identify or thwart; whether,
and how frequently, threats of that sort have come to pass in
the past, either at the location in question or at similar
locations; whether the premises involved featured any unique
or atypical susceptibilities to risk; the reasons why the
inspection was not conducted; whether the failure to inspect
was an isolated event or part of a policy or pattern; the
number of properties or locations that went without
inspection; whether other municipalities or jurisdictions
routinely neglect to carry out inspections of the type at
issue; the availability and adequacy of alternative means of
identifying and thwarting the threats at issue; and whether
the municipal officials involved were aware or should have
been aware of the answers to each of these questions. As we
discuss more fully in part II B of this opinion, in the
present case, many, if not most, of these factors would
appear, on the record before us as construed in the light
most favorable to the plaintiff, to support a potential
finding that the municipal defendants39; longstanding
policy of not inspecting any of Bridgeport39;s public or
three-family housing facilities for fire risks and not
educating themselves as to the adequacy of the housing
authority39;s own internal inspections demonstrated a
reckless disregard for health or safety under the
circumstances.
2
Second,
we disagree with the Appellate Court39;s assessment that
the legislative history of § 52-557n (b) (8) fails to
illuminate the meaning of the reckless disregard exception.
Williams v. Housing Authority,
supra, 3');">159 Conn.App. 693. That provision was enacted
as part of No. 86-338 of the 1986 Public Acts. It is true
that, in other contexts, we have characterized the
legislative history of § 52-557n as ‘‘worse
than murky . . . .39;39; (Internal quotation marks
omitted.) Id., quoting San-zone v.
Board of Police Commissioners, 219 Conn. 179');">219 Conn. 179, 188,
2 A.2d 912');">592 A.2d 912 (1991). The lengthy legislative debates do
reveal, however, that the drafters of the tort reform
legislation of 1986 envisioned that the question of whether
the violation of a statutory obligation constitutes reckless
disregard for public health or safety for purposes of
municipal immunity ordinarily would be one for the trier of
fact. For example, when asked to clarify how the reckless
disregard standard would apply to injuries caused by a school
bus driven with tires lacking sufficient tread, an author of
the bill, Representative Robert G. Jaekle, responded:
‘‘[I]f I were the attorney for the children . . .
I would certainly make a case that the driving of that school
bus with tread below the legal limit was more than mere
negligence and would probably cite some statutes or
[Department of Motor Vehicles] regulations about tread on
tires as an indication that that was reckless. . . .
[T]hat I believe would at least get me into
court to try that issue and see whether I could prove
how bad that negligence was and whether that crossed the line
into reckless action on the part of the
municipality.39;39;[17] (Emphasis added.) 29 H.R. Proc., Pt.
16, 1986 Sess., pp. 5899-900; see also id., p. 5936,
remarks of Representative Robert G. Jaekle (‘‘as
in so many of these hypotheticals, much is left to a decision
of fact as to whether we are into negligence or into wilful
or wanton or reckless39;39;); 29 H.R. Proc., Pt. 22, 1986
Sess., pp. 8116-17, remarks of Representative Robert G.
Jaekle (suggesting that, depending on specific facts of case,
municipal inspector39;s total failure to visit building
site might amount to ‘‘reckless disregard for . .
. health and safety under all the relevant
circumstances39;39;). But see 29 H.R. Proc., Pt. 22, 1986
Sess., p. 8120, remarks of Representative Robert G. Jaekle
(opining that when municipal inspector fails to identify
defect in new construction caused by third party, third party
should bear liability for injuries resulting from defect).
The
legislative history of the municipal immunity statute thus
supports the plaintiff's argument that recklessness
ordinarily presents a question of fact for the jury and
controverts the municipal defendants' contention that,
especially in the context of a failure to inspect,
‘‘it [is] a daunting task just to get to a jury
on recklessness.''[18] In this respect, the apparent
legislative intent with respect to municipal inspections is
consistent with the general rule that, when a defendant's
conduct represents more than mere ‘‘momentary
thoughtlessness or inadvertence, '' whether it rises
to the level of ‘‘reckless or wanton misconduct
on any given state of facts [ordinarily] is a question of
fact for the jury.'' (Internal quotation marks
omitted.) Brock v.Waldron, 27 Conn. 79');">127 Conn. 79,
83, 2d 713');">14 A.2d 713 (1940); accord Frillici v.Westp ...