GEORGE W. NORTHRUP ET AL.
HENRY J. WITKOWSKI, JR., ET AL.
October 16, 2018
to recover damages for the alleged negligence of the named
defendant et al. in maintaining and repairing certain
municipal storm water systems, 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, from which the plaintiffs appealed to the
Appellate Court, Alvord, Prescott and
Mullins, Js., which affirmed the trial
court's judgment, and the plaintiffs, on the granting of
certification, appealed to this court. Affirmed.
F. Gilman, for the appellants (plaintiffs).
R. Gerarde, with whom, on the brief, was Beatrice S. Jordan,
for the appellees (defendants).
S. Bayer and Tadhg Dooley filed a brief for the city of
Bridgeport et al. as amici curiae.
Robinson, C. J., and Palmer, McDonald, D'Auria, Kahn and
certified appeal requires us to consider the continued
vitality of this court's decision in Spitzer v.
Waterbury, 113 Conn. 84, 88, 154 A. 157 (1931), which
held that ‘‘[t]he work of constructing drains and
sewers, as well as that of keeping them in repair, is
ministerial, and the municipality is responsible for
negligence in its performance.'' The plaintiffs,
Helen M. Northrup, George W. Northrup, and Timothy Northrup,
brought this action against the defendants, the borough of
Naugatuck (town) and several town officials,  claiming,
inter alia, that the defendants' negligence in
maintaining and repairing the town's storm drains and
drainage pipes had caused the repeated flooding of the
plaintiffs' residence. The plaintiffs now appeal, upon
our granting of their petition for certification,
from the judgment of the Appellate Court affirming the trial
court's granting of the defendant's motion for
summary judgment on the ground that the negligence claims
were barred because, under more recent cases refining and
clarifying Spitzer, the maintenance of storm drains
and drainage systems is a discretionary function subject to
governmental immunity, rather than a ministerial function,
the negligent performance of which can subject a municipality
to liability. Northrup v. Witkowski, 175 Conn.App.
223, 250, 167 A.3d 443 (2017). We disagree with the
plaintiffs' claim that the Appellate Court improperly
failed to follow Spitzer because we conclude that
decision must be overruled in light of modern case law
governing the distinction between ministerial and
discretionary duties. Accordingly, we affirm the judgment of
the Appellate Court.
opinion of the Appellate Court aptly sets forth 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' inundated the
property because the single catch basins in the area
routinely became clogged or inadequately redirected water
away from the property.
the first occurrence in July, 2009, Helen . . . contacted
[James] Stewart, who, at that time, was the [town] 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.
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.'' (Footnote in original.) Id.,
4, 2013, the plaintiffs filed the operative second amended
complaint alleging negligence against Henry J. Witkowski,
Stewart, and the town, and recklessness against the
individual defendants. See footnote 2 of this opinion. In
addition, the plaintiffs alleged negligent infliction of
emotional distress against Witkowski, Stewart, and the town.
October 30, 2015, the defendants filed [a] motion for summary
judgment . . . . The defendants submitted a supporting
memorandum of law, attached to which were partial transcripts
from the depositions of Helen . . . 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.
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.'' Northrup v.
Witkowski, supra, 175 Conn.App. 228-29.
January 20, 2016, the court issued a memorandum of decision
granting summary judgment in favor of the defendants on all
counts. With respect to the negligence counts, including
those counts alleging negligent infliction of emotional
distress, the court concluded that the plaintiffs'
specifications of negligence amounted to a ‘litany of
discretionary omissions' and that their
‘allegations boiled down to a claim that the defendants
failed to perform their municipal duties in an appropriate
manner.' The court determined that the city ordinance on
which the plaintiffs relied in opposing summary judgment only
set forth the general duties of the [streets commission]
without any specific directions or mandates as to how those
duties should be discharged.'' Id., 230.
trial court acknowledged this court's decision in
Spitzer v. Waterbury, supra, 113 Conn. 88, holding
that the repair and maintenance of drainage systems is a
ministerial function, but concluded that more recent cases
had ‘‘refined [the] analysis of the relationship
and differences between ministerial and discretionary acts .
. . .'' Silberstein v. 54 Hillcrest Park
Associates, LLC, 135 Conn.App. 262, 272, 41 A.3d 1147');">41 A.3d 1147
(2012). The trial court concluded that, under those more
recent cases, the repair and maintenance of drainage systems
are discretionary unless an ordinance
‘‘prescribe[s] the manner in which the
drainage systems are to be maintained . . . .''
(Emphasis in original.)
the court concluded that the defendants' acts or
omissions in maintaining the town's drainage system were
discretionary in nature. Furthermore, the court concluded
that the identifiable person-imminent harm exception to
discretionary act immunity was inapplicable as a matter of
law because the risk of the property flooding at any given
time was indefinite and, thus, did not constitute an imminent
harm. The court also granted summary judgment with respect to
the recklessness counts, concluding that they also were
barred by governmental immunity.
plaintiffs filed a motion to reargue and for reconsideration,
which the defendants opposed. The court denied the
plaintiffs' motion, and [the plaintiffs' appeal to
the Appellate Court] followed.'' Northrup v.
Witkowski, supra, 175 Conn.App. 230.
Appellate Court held that ‘‘to demonstrate the
existence of a ministerial duty on the part of a municipality
and its agents, a plaintiff ordinarily must point to some
statute, city charter provision, ordinance, regulation, rule,
policy, or other directive that, by its clear language,
compels a municipal employee to act in a prescribed manner,
without the exercise of judgment or discretion. See
Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d
1188 (2006); Evon v. Andrews, 211 Conn. 501,
506-507, 559 A.2d 1131 (1989); DiMiceli v. Cheshire,
[162 Conn.App. 216');">162 Conn.App. 216, 224-25, 131 A.3d 771 (2016)];
Grignano v. Milford, 106 Conn.App. 648, 659-60, 943
A.2d 507 (2008).'' Northrup v. Witkowski,
supra, 175 Conn.App. 235. The court ultimately concluded
that, ‘‘although there is language in §
16-32 of the [Naugatuck Code of Ordinances] that requires the
streets commission to maintain and repair the town's
storm water sewer system, the ordinance contains no
provisions that mandate the time or manner in which those
responsibilities are to be executed, leaving such details to
the discretion and judgment of the municipal
employees.'' Id., 238.
Appellate Court then acknowledged this court's statement
in Spitzer v. Waterbury, supra, 113 Conn. 88, that
the repair and maintenance of drains and sewers are
ministerial functions, but it concluded that Spitzer
was distinguishable on its facts because it involved only the
question of whether a drainage system ‘‘as it was
planned could handle even ordinary amounts of rain,
'' not whether the city had properly maintained and
cleaned the system. Northrup v. Witkowski, supra,
175 Conn.App. 239. In addition, the Appellate Court concluded
that the statement in Spitzer was dictum. Id., 241.
The Appellate Court concluded that,
‘‘[c]onsidered in light of our modern case law
analyzing qualified governmental immunity, we are convinced
that the [trial] court correctly determined that there was no
genuine issue of material fact to be resolved with respect to
whether the alleged[ly] negligent acts or omissions of the
defendants were discretionary in nature and, thus, subject to
immunity.'' Id., 242. Accordingly, the Appellate
Court affirmed the judgment of the trial court. Id., 250.
This certified appeal followed. See footnote 3 of this
appeal to this court, the plaintiffs contend that the
Appellate Court incorrectly determined both that
Spitzer is distinguishable on its facts and that
this court's statement in Spitzer that the
repair and maintenance of drains and sewers are ministerial
functions was dictum. Rather, they argue that
Spitzer is directly on point and is binding
authority for the proposition that the duty of a municipality
to maintain and repair its drainage system is ministerial
and, therefore, that the negligent performance of that duty
will subject the municipality to liability. We conclude that
we need not determine whether the language in
Spitzer was dictum because, even if it was not,
Spitzer must be overruled in light of more modern
case law and statutes governing the distinction between
ministerial and discretionary duties. We further conclude
that the Appellate Court correctly determined that, under
those more modern cases, the town's duty to maintain and
repair its drainage system was discretionary and, therefore,
subject to governmental immunity.
preliminary matter, we set forth the standard of review.
‘‘Summary 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.
. . . The scope of our appellate review depends upon the
proper characterization of the rulings made by the trial
court. . . . When . . . the trial court draws conclusions of
law, our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record.''
(Internal quotation marks omitted.) Meyers v. Livingston,
Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn.
282, 289-90, 87 A.3d 534 (2014).
review the law governing governmental immunity.
‘‘The [common-law] doctrines that determine the
tort liability of municipal employees are well established. .
. . 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
the exercise of judgment. . . . In contrast, [m]inisterial
refers to a duty which is to be performed in a prescribed
manner without the exercise of judgment or
discretion.'' (Internal quotation marks omitted.)
Violano v. Fernandez, supra, 280 Conn. 318.
tort liability of a municipality has been codified in
[General Statutes] § 52-557n. Section 52-557n (a) (1)
provides that ‘[e]xcept as otherwise provided by law, a
political subdivision of the state shall be liable for
damages to person or property caused by: (A) The negligent
acts or omissions of such political subdivision or any
employee, officer or agent thereof acting within the scope of
his employment or official duties . . . .' Section
52-557n (a) (2) (B) extends, however, the same discretionary
act immunity that applies to municipal officials to the
municipalities themselves by providing that they will not be
liable for damages 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.' '' Id., 320.
officials are immunized from liability for negligence arising
out of their discretionary acts in part because of the danger
that a more expansive exposure to liability would cramp the
exercise of official discretion beyond the limits desirable
in our society. . . . Discretionary act immunity reflects a
value judgment that-despite injury to a member of the
public-the broader interest in having government officers and
employees free to exercise judgment and discretion in their
official functions, unhampered by fear of second-guessing and
retaliatory lawsuits, outweighs the benefits to be had from
imposing liability for that injury. . . . In contrast,
municipal officers are not immune from liability for
negligence arising out of their ministerial acts, defined as
acts to be performed in a prescribed manner without the
exercise of judgment or discretion. . . . This is because
society has no analogous interest in permitting municipal
officers to exercise judgment in the performance of
ministerial acts.'' (Internal quotation marks
omitted.) Id., 318-19.
court has identified two other policy rationales for
immunizing municipalities and their officials from tort
liability. The first rationale is grounded in the principle
that for courts to second-guess municipal policy making by
imposing tort liability would be to take the administration
of municipal affairs out of the hands to which it has been
entrusted by law. . . . Second, we have recognized that a
civil trial may be an inappropriate forum for testing the
wisdom of legislative actions. This is particularly true if
there is no readily ascertain-able standard by which the
action of the government servant may be measured . . . .
Thus, [t]he policy behind the exception is to avoid allowing
tort actions to be used as a monkey wrench in the machinery
of government decision making.'' (Citation omitted;
internal quotation marks omitted.) Id., 319 n.7.
purposes of determining whether a duty is discretionary or
ministerial, this court has recognized that
‘‘[t]here is a difference between laws that
impose general duties on officials and those that mandate a
particular response to specific conditions.''
Bonington v. Westport, 297 Conn. 297, 308, 999 A.2d
700 (2010). ‘‘A ministerial act is one which a
person performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of legal authority,
without regard to or the exercise of his own judgment [or
discretion] upon the propriety of the act being
done.'' (Internal quotation marks omitted.)
Blake v. Mason, 82 Conn. 324, 327, 73 A. 782 (1909);
see also Benedict v. Norfolk, 296 Conn. 518, 520
n.4, 997 A.2d 449 (2010) (municipal acts are
‘‘deemed ministerial if a policy or rule limiting
discretion in the completion of such acts exists'');
Pluhowsky v. New Haven, 151 Conn. 337, 347, 197 A.2d
645 (1964) (describing ministerial acts in similar terms). In
contrast, when an official has a general duty to perform a