Argued
October 9, 2018
Procedural
History
Action
to recover damages for the wrongful death of the
plaintiff's decedent as a result of the defendant's
alleged negligence, brought to the Superior Court in the
judicial district of Hartford, where the court, Shapiro,
J., granted the defendant's motion for summary
judgment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Daniel
P. Scholfield, with whom, on the brief, were Steven J.
Errante and Marisa A. Bellair, for the appellant (plaintiff).
Jack
G. Steigelfest, with whom was Christopher M. Harrington, for
the appellee (defendant).
DiPentima, C. J., and Lavine and Harper, Js.
OPINION
DiPENTIMA, C. J.
This
case arises from the untimely death of Andres Burgos, who
drowned while swimming in Lake McDonough, a recreational area
that is owned and operated by the defendant, the Metropolitan
District Commission.[1] The plaintiff, Vivian Perez,
administratrix of the estate of Andres Burgos, appeals from
the summary judgment rendered by the trial court in favor of
the defendant on the basis of governmental immunity. On
appeal, the plaintiff claims that the trial court erred in
rendering summary judgment because there is a genuine issue
of material fact with respect to (1) whether Burgos'
death was caused by the defendant's breach of one or more
of its ministerial duties, and (2) whether Burgos was an
identifiable person subject to imminent harm. We are not
persuaded and, accordingly, affirm the judgment of the trial
court.
Viewed
in the light most favorable to the plaintiff as the nonmoving
party, the record reveals the following facts and procedural
history. On July 9, 2011, Burgos and a group of friends went
to Lake McDonough to swim. The lake is located principally in
Barkhamsted, and its perimeter encompasses approximately 10.5
miles. At approximately 4 p.m., the group arrived at West
Beach, which was one of three beaches on the lake that the
defendant permitted the public to use during the late spring
and summer months. Each of these beaches was adjacent to a
designated swimming area, the boundaries of which were
indicated by a string of red and white buoys. At each beach,
the defendant also posted signs, in both English and Spanish,
displaying the pertinent rules and regulations, including
where swimming was permitted. Additionally, the
defendant's employees conducted random boat patrols
throughout the lake in order to locate individuals swimming
outside of the designated areas.
After
arriving at West Beach, Burgos and his friends followed a
trail through the woods to an area of the lake colloquially
known as ‘‘the Point.'' The group,
including Burgos, entered the water from the Point and swam
to a small island, referred to as First Island, approximately
250 feet from shore.[2] After reaching the island, the group
started back to the shore. During the return journey, Burgos
began to struggle before slipping underwater.
Upon
realizing that Burgos had disappeared, members of the group
swam to shore and ran back along the trail to West Beach to
alert the defendant's lifeguards. Once informed of the
incident, several lifeguards ran to the Point, entered the
water and began to search for Burgos. Lifeguards from the
other nearby beaches, notified over the radio of a possible
drowning incident, soon arrived by boat to assist with the
ongoing rescue. Despite the relatively close proximity of the
island to the shore, the location where the group had been
swimming was estimated to be deeper than twenty feet in some
places. The depth of the water impaired visibility and forced
the defendant's lifeguards to confine their line search
to the shallower areas. After searching and not finding
Burgos in the shallow sections, some of the lifeguards dove
down into the deeper parts of the channel. Approximately
fifty-five minutes after Burgos was last seen, one of the
lifeguards, performing a deep water dive, located him lying
faceup on the lakebed. He was retrieved and transported to
Hartford Hospital. Burgos was pronounced dead later that day
at 5:50 p.m. The cause of death was determined to be asphyxia
and drowning.
On May
2, 2013, the plaintiff commenced the present wrongful death
action against the defendant. The operative complaint alleged
a single count against the defendant predicated on General
Statutes § 52-557n (a) (1) (A).[3] Specifically, the plaintiff
alleged, inter alia, that the defendant had a ministerial
duty (1) to prevent visitors from accessing and swimming in
undesignated areas, (2) to conduct timely boat patrols, (3)
to initiate a timely search for Burgos, (4) to contact the
police, or call 911, in a timely fashion, and (5) to possess
and maintain appropriate rescue equipment, but had failed to
perform one or more of these responsibilities, and this
nonfeasance was a direct and proximate cause of Burgos'
death. On December 29, 2016, the defendant filed a motion for
summary judgment on the ground that the plaintiff's claim
was barred by the doctrine of governmental immunity pursuant
to § 52-557n. In her objection to the motion, the
plaintiff argued that the defendant had failed to meet its
initial burden of negating the allegations of negligence as
framed in the complaint, and, alternatively, that Burgos was
an identifiable person subject to imminent harm, thus,
creating an exception to governmental immunity.
In its
memorandum of decision, dated June 16, 2017, the trial court
concluded that the defendant had carried its burden of
establishing that no genuine issue of material fact existed
and granted the motion for summary judgment on the ground of
governmental immunity. The court concluded that the plaintiff
had failed to adduce evidence to raise a genuine issue of
material fact as to the existence of a ministerial duty or
that Burgos was an identifiable person subject to an imminent
risk of harm. This appeal followed. Additional facts will be
set forth as necessary.
We
begin by setting forth the standard of review with respect to
an appeal from a trial court's decision to grant a motion
for summary judgment. ‘‘Practice Book §
[17-49] provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any 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. . . . 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. . . . [I]ssue-finding, rather than issue-determination,
is the key to the procedure. . . . [T]he trial court does not
sit as the trier of fact when ruling on a motion for summary
judgment. . . . [Its] function is not to decide issues of
material fact, but rather to determine whether any such
issues exist. . . . Our ...