Argued
April 16, 2019
Procedural
History
Action
to recover damages for, inter alia, the defendants'
alleged negligence, and for other relief, brought to the
Superior Court in the judicial district of New London, where
the court, Calmar, J., granted the
defendants' motion for summary judgment and rendered
judgment thereon, from which the plaintiff appealed to this
court. Affirmed.
Matthew T. Wax-Krell, with whom was Andrew W. Krevolin, for
the appellant (plaintiff).
Jeffrey G. Schwartz, for the appellees (defendants).
Keller, Prescott and Moll, Js.
OPINION
PRESCOTT, J.
This is
a personal injury action brought by the plaintiff, Andrzej
Kusy, against the defendants, the city of Norwich, its board
of education, and certain municipal employees, [1] seeking to
recover damages for injuries he sustained after he slipped
and fell on snow or ice while delivering milk for his
employer, Guida's Dairy (Guida's), at a Norwich
school. The plaintiff appeals from the trial court's
summary judgment rendered in favor of the defendants on the
ground that they are entitled to governmental immunity.
On
appeal, the plaintiff claims that the trial court improperly
rendered summary judgment in favor of the defendants on the
ground of governmental immunity because he adequately raised
a genuine issue of material fact as to whether (1) the
removal of snow and ice at a school is a ministerial rather
than a discretionary act, and (2) the plaintiff was an
identifiable victim because he had a contractual duty to
deliver milk to the school. We disagree with both claims and,
therefore, affirm the judgment of the trial court.
The
record before the court, viewed in the light most favorable
to the plaintiff as the nonmoving party, reveals the
following facts and procedural history. On February 24, 2015,
the plaintiff delivered milk to Kelly Middle School in
Norwich for Guida's. The plaintiff had been making these
deliveries to the school ‘‘[t]wo times a week for
at least seven months.'' On the day of the injury,
the plaintiff was delivering milk in the area designated for
such deliveries. The weather was ‘‘sunny but
cold'' during the morning of February 24, 2015, and
it last snowed a few days prior. The plaintiff, nevertheless,
noticed ice on the delivery ramp and notified the supervisor
of the school's kitchen, who contacted the maintenance
person for the school.
The
plaintiff also contacted his employer to alert it to the icy
conditions. The plaintiff had a brief conversation with John
Guidaat Guida's and explained the conditions to him.
Despite his report, Guida ordered him to complete the
delivery. Approximately twenty-five minutes after speaking to
Guida and traveling up and down the ramp multiple times, the
plaintiff slipped and fell. No one removed the snow and ice
during the period between the time the plaintiff reported the
icy conditions to the school employee and when he fell.
The
plaintiff commenced this action on February 21, 2017. The
complaint contains three counts: the first two counts contain
allegations of negligence against the defendants and the
third count is against the city of Norwich (city) for
indemnity pursuant to General Statutes §
7-465.[2] The plaintiff alleged that the
defendants acted negligently because, inter alia, the
school's custodial staff had a ministerial duty to clear
the snow and ice from the delivery ramp and failed to do so.
The plaintiff also alleged that he was a member of
‘‘a foreseeable class of identifiable
victims'' and was subjected to ‘‘a risk
of imminent harm.''
On
December 6, 2017, the defendants filed a motion for summary
judgment. They asserted that governmental immunity barred
them from being held liable because the plaintiff could not
demonstrate a genuine issue of material fact regarding any
exception to governmental immunity. The trial court granted
the motion for summary judgment on May 21, 2018, and issued a
memorandum of decision setting forth its reasoning.
In its
memorandum of decision, the trial court concluded that the
defendants were entitled to summary judgment because General
Statutes § 52-557n (a) (2) (B) prevents a municipality
from being held liable for the discretionary acts of its
employees, even if the acts are performed negligently. The
trial court indicated that an act is discretionary as a
matter of law in the absence of a directive limiting the
discretion of a municipal employee's performance of the
act. The trial court stated that the defendants presented
evidence showing that they had no policy concerning snow and
ice removal and that the plaintiff provided no evidence
tending to demonstrate the existence of such a policy. On
this record, the trial court concluded that snow and ice
removal is discretionary in nature as a matter of law, and,
thus, the plaintiff failed to raise a genuine issue of
material fact regarding whether the removal of snow and ice
is a ministerial act for which the city could be held liable.
The
trial court also addressed the plaintiff's contention
that, even if snow and ice removal is discretionary in
nature, the defendants were not entitled to governmental
immunity because the identifiable person-imminent harm
exception to discretionary act immunity applies. The trial
court, however, determined that the plaintiff was not an
identifiable victim because ‘‘he was not a child
attending a public school during school hours.'' This
appeal followed.
This
court's standard of review for a motion for summary
judgment is well established. ‘‘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 review of the ...