PETER BENEDICT v. TOWN OF NORFOLK, SC 18268

Judicial District of Litchfield at Litchfield

 

Negligence; Governmental Immunity; Whether Town's Obligation to Plow and Sand Parking Lot Where Plaintiff Slipped and Fell on Ice Constituted a Discretionary Governmental Function that was Covered by Doctrine of Governmental Immunity. In 2005, the plaintiff allegedly sustained injuries when he slipped and fell on ice in the parking lot of a housing complex where he was a resident. He subsequently filed a one count complaint, claiming that his injuries were caused by the negligence of the defendant town in that it failed to properly remove the ice from the parking lot as it had been obligated to do since 1973. The town moved to strike the complaint, arguing that the task of plowing and sanding the parking area constituted a discretionary governmental function, and, therefore, it was entitled to governmental immunity. The trial court agreed and granted the motion. In doing so, the court determined that the town's snow removal activities did not have the character of a private enterprise in that they were funded by taxpayer dollars, and, moreover, the town never entered into a private agreement with the housing complex. Relying on Violano v. Fernandez, 280 Conn. 310 (2006), the court further opined that the town's actions were not ministerial, but were instead discretionary under General Statutes 52-557n (a) (2) (B) because there was no allegation of the existence of any directive that dictated precisely how the town should conduct its snow removal and sanding activities. Rather, according to the court, the plaintiff merely alleged that the town exercised poor judgment in sanding and plowing the parking lot. The court went on to reject the plaintiff's claim that even if the task of plowing and sanding the parking area constituted a discretionary governmental function, the town was not entitled to governmental immunity under the "identifiable person-imminent harm" exception, which applies when circumstances make it apparent to a public officer that his or her failure to act would likely subject an identifiable person to imminent harm. The court reasoned that the exception applies to municipal employees, not to municipalities themselves. In this appeal, the plaintiff argues that the Supreme Court should reconsider its holding in Violano that a town's actions will be deemed ministerial only where a written directive exists. He maintains that, instead, a municipality should be entitled to immunity only for those decisions that are made at the planning stage, not at the operational stage. He also contends, among other things, that the "identifiable person-imminent harm" exception applies to municipalities, not just municipal employees, and that the town's obligation to plow and sand the parking lot constituted a private enterprise that was not covered by the doctrine of governmental immunity.