Wisniewski v. Town of Darien
135 Conn. App. 364
| Conn. App. Ct. | 2012Background
- On July 11, 2006, a tree within Darien's right-of-way toppled onto the Wisniewskis' vehicle, injuring them.
- Prior to the accident, Kristin Doble reported deteriorating trees along the roadway in 2002–2003.
- Cotta, as the town's tree warden, was responsible for care and control of trees along public rights-of-way under General Statutes § 23-59.
- The original complaint in 2006 included negligence and loss of consortium claims against Cotta and liability claims against the town; the town moved to strike or dismiss but immunity defenses were preserved.
- The jury found negligence by the defendants under § 52-557n, determined the duty to maintain was public but not discretionary, and awarded substantial damages to the Wisniewskis.
- The trial court denied motions to direct or set aside the verdicts, and the defendants appealed, challenging governmental immunity and the ministerial/discretionary status of the tree warden's duties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cotta’s duties to inspect were discretionary as a matter of law | Wisniewski v. Darien—duties include nondiscretionary inspection | Cotta’s duties to inspect were discretionary under § 23-59 | No; material evidence supported ministerial duties and allowed denial of directed verdicts |
| Whether the jury’s ministerial finding was against the weight of the evidence | Cotta failed to inspect after repeated complaints | Evidence supported discretionary handling | No; jury credibility determinations allowed the ministerial finding and immunity analysis |
Key Cases Cited
- Violano v. Fernandez, 280 Conn. 310 (2006) (discretionary acts and ministerial duties framework for immunity)
- DeConti v. McGlone, 88 Conn.App. 270 (2005) (discretionary immunity analysis under identifiable victim concept (dicta in part))
- Kiniry v. Kiniry, 299 Conn. 308 (2010) (credibility and jury weighing of witness testimony is exclusive province of fact finder)
- Gauvin v. New Haven, 187 Conn. 180 (1982) (testimony may establish ministerial duties even without written directive)
- Evon v. Andrews, 211 Conn. 501 (1989) (inspection and decision-making in immunity context)
- Doe v. Petersen, 279 Conn. 607 (2006) (distinguishes ministerial vs discretionary acts in immunity)
- Bonington v. Westport, 297 Conn. 297 (2010) (normal fact-finder determination of ministerial vs discretionary)