Northrup v. Witkowski

         Argued October 16, 2018

         Appeal from the Superior Court, Judicial District of New Haven, Blue, J.

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

         Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, Hartford, for the appellees (defendants).

          Aaron S. Bayer Hartford, and Tadhg Dooley, New Haven, filed a brief for the city of Bridgeport et al. as amici curiae.

         Robinson, C.J., and Palmer, McDonald, D’Auria, Kahn and Ecker, Js.

          OPINION

         ROBINSON, C.J.

         [332 Conn. 160] This 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,^[1] brought this action against the defendants, the borough of Naugatuck (town) and several town officials,^[2] 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, [332 Conn. 161] ^[3] 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.

         The 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

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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 ... 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 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." (Footnote in original.) Id., at 226-27, 167 A.3d 443.

          On 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.

         "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

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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 443.

         "On 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 A.3d 443.

         The trial court acknowledged this court’s 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 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.

         "The 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."^[5] Northrup v. Witkowski, supra, 175 Conn.App. at 230, 167 A.3d 443.

         [332 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 prescribed

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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 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., at 238, 167 A.3d 443.

         The Appellate Court then acknowledged this court’s 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.^[6] See footnote 3 of this opinion.

         On 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.

         [332 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 judgment ...