192 Conn.App. 171
Conn. App. Ct.2019Background
- Plaintiff Andrzej Kusy slipped on ice on a delivery ramp at a Norwich public school while delivering milk for his employer and sued the City of Norwich, the Board of Education, and school employees for negligence.
- Kusy had delivered to the school twice weekly for months; he reported icy conditions to the school and his employer, was ordered to complete the delivery, and fell about 25 minutes later.
- Complaint alleged custodial staff had a ministerial duty to remove snow/ice and that Kusy was an identifiable victim subject to imminent harm.
- Defendants moved for summary judgment asserting governmental immunity: snow/ice removal is discretionary absent a directive, and Kusy was not an identifiable victim.
- Trial court granted summary judgment for defendants; Kusy appealed asserting (1) snow/ice removal is ministerial as a matter of law (or at least a jury question), and (2) he was an identifiable victim because of his contractual delivery obligation.
- Record established no written snow/ice removal policy; a municipal official averred none existed. Kusy conceded no written policy existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether snow/ice removal is a ministerial act | Snow/ice removal is ministerial as a matter of law (or factual issue for jury) | Absent a statute/policy prescribing time/manner, removal is discretionary | Court: discretionary as matter of law where no directive exists; summary judgment proper |
| Whether an unwritten mandate could create ministerial duty | Oral/unwritten directives could make duty ministerial; beach/other authority supports jury question | No evidence of any directive (written or unwritten); affidavit denying policy | Court: plaintiff failed to adduce evidence of any directive; burden unmet; act is discretionary |
| Whether Kusy was an identifiable victim for imminent-harm exception | Kusy was contractually required to deliver to school and regularly used the accessway, so foreseeable/identifiable | Contractual presence is voluntary; only narrow class (schoolchildren compelled by law) qualifies | Court: not an identifiable victim; exception does not extend beyond statutorily compelled schoolchildren |
| Whether governmental immunity exception (identifiable person–imminent harm) applies | Combination of contractual duty, scheduled deliveries, and provided accessway made Kusy foreseeable | Kusy was not legally compelled to be on school grounds; employer could delay/return; presence voluntary | Court: exception not met; plaintiff failed to raise genuine issue on identifiability; immunity applies |
Key Cases Cited
- Ventura v. East Haven, 330 Conn. 613 (2019) (identifies requirement that ministerial duty be imposed by directive; court determines discretionary vs. ministerial as matter of law)
- Northrup v. Witkowski, 332 Conn. 158 (2019) (general policies that do not prescribe manner/time are insufficient to create ministerial duties)
- Violano v. Fernandez, 280 Conn. 310 (2006) (plaintiffs must point to statute/charter/ordinance/policy or directive to show ministerial duty)
- Beach v. Regional Sch. Dist. No. 13, 42 Conn. App. 542 (1996) (holds snow/ice removal discretionary absent directive)
- St. Pierre v. Plainfield, 326 Conn. 420 (2017) (narrows identifiable-victim analysis; emphasizes legal compulsion to be at location)