Northrup v. Witkowski

**160This 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, **1613 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 *33was 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 **162the [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 **163a 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 *34ministerial 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 **164the [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.

**165The 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 *35manner, 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, 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 **166that 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.

**167As 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 as a matter of law.... The scope of our appellate review depends upon the proper *36characterization of the rulings made by the trial court.... When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. , 311 Conn. 282, 289-90, 87 A.3d 534 (2014).

We next review the law governing governmental immunity. "The [common-law] doctrines that determine the tort liability of municipal employees are well established.... Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.... Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.... The hallmark of a discretionary act is that it requires the exercise of judgment.... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez , supra, 280 Conn. at 318, 907 A.2d 1188.

"The tort liability of a municipality has been codified in [General Statutes] § 52-557n. Section 52-557n (a) (1) provides that '[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within **168the scope of his employment or official duties ....' Section 52-557n (a) (2) (B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by 'negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.' " Id., at 320, 907 A.2d 1188.

"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society.... Discretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Internal quotation marks omitted.) Id., at 318-19, 907 A.2d 1188.

"This court has identified two other policy rationales for immunizing municipalities and their officials from tort liability. The first rationale is grounded in the principle that for courts to second-guess municipal policy making by imposing tort liability would be to take the administration of municipal affairs out of the hands to which it has been entrusted by law.... Second, we have recognized that a civil trial may be an inappropriate **169forum for testing the wisdom of legislative actions. This is particularly true if there is no readily ascertainable standard by which the action of the government servant may *37be measured .... Thus, [t]he policy behind the exception is to avoid allowing tort actions to be used as a monkey wrench in the machinery of government decision making." (Citation omitted; internal quotation marks omitted.) Id., at 319 n.7, 907 A.2d 1188.

For purposes of determining whether a duty is discretionary or ministerial, this court has recognized that "[t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions." Bonington v. Westport , 297 Conn. 297, 308, 999 A.2d 700 (2010). "A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment [or discretion] upon the propriety of the act being done."7 (Internal quotation marks omitted.) Blake v. Mason , 82 Conn. 324, 327, 73 A. 782 (1909) ; see also Benedict v. Norfolk , 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010) (municipal acts are "deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists"); Pluhowsky v. New Haven , 151 Conn. 337, 347, 197 A.2d 645 (1964) (describing ministerial acts in similar terms). In contrast, when an official has a general duty to perform **170a certain act, but there is no "city charter provision, ordinance, regulation, rule, policy, or any other directive [requiring the government official to act in a] prescribed manner," the duty is deemed discretionary. Violano v. Fernandez , supra, 280 Conn. at 323, 907 A.2d 1188.

"In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity." Grignano v. Milford , supra, 106 Conn. App. at 656, 943 A.2d 507. This is so because there ordinarily is no legal directive mandating the specific manner in which officials must perform these tasks. Rather, "[a] municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs." Id. ; see also Bonington v. Westport , supra, 297 Conn. at 308-309, 999 A.2d 700 (when plaintiff claimed that defendants had improperly or inadequately inspected neighboring property for zoning violations, alleged acts of negligence constituted discretionary acts because no legal authority mandated inspection to be performed in prescribed manner); Martel v. Metropolitan District Commission , 275 Conn. 38, 50-51, 881 A.2d 194 (2005) (in absence of any policy or directive requiring defendants to design, supervise, inspect and maintain trail on defendant's property, defendants "were engaged in duties that inherently required the exercise of judgment," and, therefore, those duties were discretionary in nature); Evon v. Andrews , supra, 211 Conn. at 506-507, 559 A.2d 1131 (defendants' acts were discretionary in nature *38because what constitutes reasonable, proper or adequate fire safety inspection to ensure that multi-family residence was in compliance with state and local building codes involves exercise of judgment); Pluhowsky v. New Haven , supra, 151 Conn. at 347-48, 197 A.2d 645 (in absence of any legal directive requiring defendants to repair malfunctioning catch basin under specific conditions or in particular manner, duty was discretionary); **171Grignano v. Milford , supra, at 656-57, 943 A.2d 507 (ordinance requiring owner of maritime facility to maintain physical improvements in safe condition imposed discretionary duty because ordinance did not "[prescribe] the manner in which the defendant is to perform reasonable and proper inspection and maintenance activities"); Segreto v. Bristol , 71 Conn. App. 844, 857-58, 804 A.2d 928 (city's allegedly negligent design and maintenance of stairwell located on premises of senior center that was owned and operated by city was discretionary because determinations of what is reasonable or proper under particular set of circumstances necessarily involve exercise of judgment), cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).

Consistent with these principles, the Appellate Court concluded in Silberstein v. 54 Hillcrest Park Associates, LLC , supra, 135 Conn. App. at 273, 41 A.3d 1147, that the maintenance of storm drains is discretionary in nature. See also Brusby v. Metropolitan District , 160 Conn. App. 638, 656, 127 A.3d 257 (2015) (in absence of legal directive prescribing manner in which sanitary sewer system was to be maintained or repaired, duty was discretionary). In Silberstein , the plaintiffs owned property in the Hillcrest Park neighborhood of Old Greenwich. Silberstein v. 54 Hillcrest Park Associates, LLC , supra, at 264, 41 A.3d 1147. The plaintiffs alleged that the defendants, the Hillcrest Park Tax District (tax district) and Hillcrest Park Association, Inc., which were responsible for maintaining and constructing roads and storm sewers in the Hillcrest neighborhood, had negligently failed to do so, resulting in the periodic flooding of the plaintiffs' property. Id., at 264-65, 41 A.3d 1147. The trial court granted the defendant's motion for summary judgment on the ground of governmental immunity. Id., at 267, 41 A.3d 1147. On appeal, the Appellate Court noted that, although the tax district's bylaws stated clearly that one of the functions of that organization was "to construct and maintain roads ... drains, **172[and] storm sewers"; (internal quotation marks omitted)