160 Conn.App. 638
Conn. App. Ct.2015Background
- Plaintiff Judy Brusby sued The Metropolitan District (Metropolitan) after raw sewage flooded her basement in 2005 and again in 2011, alleging negligence, negligent infliction of emotional distress, negligent misrepresentation, breach of contract, breach of the covenant of good faith and fair dealing, and quantum meruit.
- A backflow preventer valve was installed at plaintiff’s property in June 2006; plaintiff’s expert later opined it was improperly installed.
- Metropolitan moved for summary judgment asserting governmental immunity (§ 52-557n), statute-of-limitations bars (§ 52-584), and that plaintiff’s contract claims were really tort claims.
- The trial court granted summary judgment for Metropolitan on immunity and statute-of-limitations grounds and held the contract claims were tort in substance.
- On appeal the court examined (1) whether Metropolitan’s sewer operation was a proprietary function (immune status), (2) whether duties alleged were ministerial or discretionary, (3) applicability of the identifiable-person/imminent-harm exception, and (4) whether the continuing course of conduct doctrine tolled § 52-584 for the 2005/2006 events and whether 2011 claims were timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Metropolitan engaged in a proprietary function for its sewer operation? | Brusby: Metropolitan provides paid sewer service to customers, so activity is proprietary and immune protection is inapplicable. | Metropolitan: No evidence of special corporate profit/pecuniary benefit from sewer operation; operation is governmental/non‑proprietary. | Reversed in part: Genuine issue of material fact exists whether sewer operation is proprietary; summary judgment on immunity on this basis was improper. |
| Were the alleged duties ministerial (no immunity) or discretionary (immunity)? | Brusby: Statute and ordinances impose ministerial maintenance duties; inspections/maintenance are not discretionary. | Metropolitan: Maintenance and inspection decisions (timing, scope, method) are discretionary policy judgments. | Affirmed: Alleged acts were discretionary as a matter of law; maintenance/inspection involve judgment. |
| Does the identifiable‑person/imminent‑harm exception apply? | Brusby: After 2011 flooding, an official warned her of imminent risk — she was an identifiable person at imminent risk. | Metropolitan: Warning came after flooding; no basis to show duty to act immediately before 2011 incident. | Affirmed: Exception inapplicable — plaintiff failed to show triable issue that she was identifiable person subject to imminent harm. |
| Are the 2005/2006 claims tolled by continuing course of conduct; are 2011 claims timely? | Brusby: Continuing course of conduct (defective sewer) tolled repose for earlier events; 2011 claim filed within three years. | Metropolitan: Last culpable act (allegedly faulty 2006 installation) occurred >3 years before suit, so repose bars claims. | Mixed: 2005/2006 claims barred — continuing course doctrine not applicable; 2011 claims not time‑barred on summary judgment and must proceed. |
| Are the contract claims independent or essentially tort claims subject to § 52‑584? | Brusby: Contract counts are distinct with separate damages and six‑year limitation. | Metropolitan: Contract allegations incorporate tort allegations; damages sought are tortive (personal injury, emotional distress), so claims are tort in substance. | Affirmed: Claims sound in tort despite contract language; § 52‑584 applies. |
Key Cases Cited
- Considine v. Waterbury, 279 Conn. 830 (Conn. 2006) (analysis of proprietary function and meaning of special corporate profit/pecuniary benefit)
- Martel v. Metropolitan District Commission, 275 Conn. 38 (Conn. 2005) (operation of water utility for profit is proprietary)
- Blonski v. Metropolitan District Commission, 309 Conn. 282 (Conn. 2013) (Metropolitan liable where maintenance was inextricably linked to proprietary water supply operation)
- Bonington v. Westport, 297 Conn. 297 (Conn. 2010) (when complaint shows defendants’ acts necessarily involved judgment, discretionary‑act immunity may apply at summary judgment)
- Haynes v. Middletown, 314 Conn. 303 (Conn. 2014) (standard for imminent‑harm exception: public official must have clear and unequivocal duty to act immediately)
- Gazo v. Stamford, 255 Conn. 245 (Conn. 2001) (cannot recast tort as contract to gain longer statute of limitations)
- Sinotte v. Waterbury, 121 Conn. App. 420 (Conn. App. 2010) (continuing course doctrine in sewage backup context not applicable where discrete incidents produced readily calculable damages)