April 16, 2019
Court in the judicial district of New London, Calmar, J.
[Copyrighted Material Omitted]
Matthew T. Wax-Krell, Hartford, with whom was Andrew W.
Krevolin, West Hartford, for the appellant (plaintiff).
G. Schwartz, Hartford, for the appellees (defendants).
Prescott and Moll, Js.
Conn.App. 172] 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, seeking to recover damages for [192
Conn.App. 173] injuries he sustained after he slipped and
fell on snow or ice while delivering milk for his employer,
Guidas Dairy (Guidas), at a Norwich school. The plaintiff
appeals from the trial courts summary judgment rendered in
favor of the defendants on the ground that they are entitled
to governmental immunity.
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.
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 Guidas. 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 schools
kitchen, who contacted the maintenance person for the school.
plaintiff also contacted his employer to alert it to the icy
conditions. The plaintiff had a brief conversation with John
Guida at Guidas 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. [192 Conn.App. 174] 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
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. The plaintiff
alleged that the defendants acted negligently because, inter
alia, the schools 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."
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.
Conn.App. 175] 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 employees
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 ...