George W. NORTHRUP et al.
Henry J. WITKOWSKI, Jr., et al.
October 16, 2018
from the Superior Court, Judicial District of New Haven,
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
F. Gilman, Norwalk, for the appellants (plaintiffs).
R. Gerarde, with whom, on the brief, was Beatrice S. Jordan,
Hartford, for the appellees (defendants).
S. Bayer Hartford, and Tadhg Dooley, New Haven, filed a brief
for the city of Bridgeport et al. as amici curiae.
C.J., and Palmer, McDonald, DAuria, Kahn and Ecker, Js.
Conn. 160] This certified appeal requires us to consider the
continued vitality of this courts 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
towns 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, [332 Conn. 161]  from the judgment of the
Appellate Court affirming the trial courts granting of the
defendants 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 plaintiffs
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.
"After the first occurrence in July, 2009, Helen ...
contacted [James] Stewart, who, at that time, was [332 Conn.
162] 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
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., at 226-27, 167 A.3d 443.
June 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.
"On October 30, 2015, the defendants filed [a] motion
for summary judgment .... The defendants submitted [332 Conn.
163] 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. at 228-29, 167 A.3d
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 [332 Conn. 164] the [streets commission]
without any specific directions or mandates as to how those
duties should be discharged." Id., at 230, 167
trial court acknowledged this courts decision in Spitzer
v. Waterbury, supra, 113 Conn. at 88, 154 A.
157, 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 (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.)
"Accordingly, the court concluded that the defendants
acts or omissions in maintaining the towns 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. at 230, 167 A.3d
Conn. 165] The 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
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. at 235, 167 A.3d 443. 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
towns 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., at 238, 167 A.3d 443.
Appellate Court then acknowledged this courts statement in
Spitzer v. Waterbury, supra, 113 Conn. at
88, 154 A. 157, 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. at 239, 167 A.3d 443. In addition,
the Appellate Court concluded [332 Conn. 166] that the
statement in Spitzer was dictum. Id., at
241, 167 A.3d 443. 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., at 242, 167 A.3d 443.
Accordingly, the Appellate Court affirmed the judgment of the
trial court. Id., at 250, 167 A.3d 443. This
certified appeal followed. See footnote 3 of this opinion.
appeal to this court, the plaintiffs contend that the
Appellate Court incorrectly determined both that
Spitzer is distinguishable on its facts and that
this courts 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 towns duty to maintain and
repair its drainage system was discretionary and, therefore,
subject to governmental immunity.
Conn. 167] As a preliminary matter, we set forth the standard
of review. "Summary judgment shall be rendered
forth-with 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