Opinion
Thе plaintiff, Graciela Chirieleison, administratrix of the estate of Jacqueline Bardales Chi-rieleison,
The following facts and procedural history are undisputed or were set forth in the court’s memorandum of decision. At approximately 5:30 a.m. on September 30, 2007, a vehicle operated by Rafael DeLaCruz struck a car that had been abandoned on the shoulder of Interstate 95 North between exits 4 and 5. DeLaCruz’ vehicle was engulfed in flames. The statе police and the Cos Cob Fire Police Patrol, Inc. (fire patrol), a volunteer organization operating under the control of the town fire department, responded to the accident. Lucas, a firefighter, drove a 2004 Pierce fire truck to the scene of the accident and, upon arriving, parked the fire truck in a position such that it shielded the emergency response personnel from the traffic on the highway. At the direction of the scene commander, Lucas left the emergency lights on and positioned the fire truck to block the right and center lanes of the highway. Lucas exited the fire truck and, accompanied by another firefighter, placed warning flares in a line extending approximately 100 feet from the fire truck to the guardrail. Lucas and the other firefighter decided to set up a series of traffic cones as well, and they began to walk back to the fire truck to retrieve the traffic cones.
As the emergency personnel were responding to the accident, Reynaldo Sanchez, Gerson DeLeon and the decedent were returning from a dance club in New York City on Interstate 95 North in a car driven by Sanchez. At approximately 6:09 a.m., Sanchez veered out of the line of cars travelling in the left lane of the highway. The Sanchez vehicle crossed through the line of warning flares at a high rate of speed and collided with the fire truck. Sanchez and the decedent died as a result of the accident. DeLeon survived, but suffered severe memory loss and could not remember anything about the accident.
The plaintiff commenced a wrongful death action against the defendants and, on April 4, 2011, filed the оperative complaint.
On January 24,2012, the court issued a memorandum of decision granting the defendants’ motion for summary judgment as to all three counts. The court rendered summary judgment on count one after concluding that Lucas was shielded from liability pursuant to the doctrine of qualified governmental immunity because he was engaged in a discretionary act and no exception to discretionary act immunity was applicable. On count two, the court rendered summary judgment based on a similar qualified governmental immunity analysis, as well as a conclusion that the plaintiff failed to establish a prima facie case of negligence. On count three, the court rendered summary judgment after concluding that the plaintiff failed to establish a prima facie case of nuisance. This appeal followed.
As a threshold matter, we raise the issue of whether the plaintiff’s claims with rеgard to count two are moot. “Mootness raises the issue of a court’s subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties. Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction .... A determination regarding . . . [the Appellate Court’s] subject matter jurisdiction is a question of law . . . .” (Citations omitted; internal quotation marks omitted.) Lyon v. Jones,
In its memorandum of decision, the trial court rendered summary judgment on count two in favоr of the town. The court determined that the town was shielded from liability pursuant to the doctrine of qualified governmental immunity because the town officials were engaged in discretionary governmental acts and no exception to discretionary act immunity was applicable under the circumstances of this case. The court continued its analysis of
The plaintiff appeals the judgment rendered by the court that the town was protected by governmental immunity, but she does not appeal the ruling that the plaintiff failed to establish a prima facie case of negligence against the town. We can afford no relief to the plaintiff on her appeal with regard to count two because she did not appeal the court’s judgment that the plaintiff failed to establish a prima facie case of negligence against the town. See Lyon v. Jones, supra,
The plaintiffs claims with regard to the two remaining counts of her complaint—negligence against Lucas and nuisance against the town—will be examined under our well established standard of review for summary judgment. “Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any 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. A material fаct is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable
I
The plaintiff first claims that the court improperly determined that Lucas was shielded from liability by the doctrine of qualified governmental immunity because his acts prior to the accident were ministerial and not discretionary. We disagree.
“The [common-law] doctrines that determine the tort liability of municipal employees are well established. . . . Generally, a municipal employee is hable 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,
The plaintiff argues that Lucas positioned the fire truck in accordance with the direction of the scene commander and the standards fohowed by the fire patrol. In support of this argument, the plaintiff directs this court to portions of Lucas’ deposition testimony in which he stated that he was “directed” by the scene commander, that he was “instructed” to park the fire truck diagonally across the right and centеr lanes of Interstate 95 and that there are “standards for positioning any fire apparatus on roads . . . .” Further, the plaintiff argues that the standards followed when the fire patrol responds to accidents are evidenced by the similarity between this accident and an incident that occurred approximately one year prior. In the prior incident, Lucas, acting in his official capacity, responded to an accident on Interstate 95 South by blocking the right and center lanes with the same fire truck to protect emergency respоnse personnel, and a car collided with the fire truck. See Kumah v. Brown,
The defendants argue that the positioning of a fire truck in response to an accident on a highway requires discretion and decision-making because each accident presents unique challenges and objectives. With regard to the plaintiffs argument that Lucas was directed to position the fire track in a specific manner, Lucas testified at his deposition that he was instructed to block two lanes of traffic, but that he executed that instruction based on his experience. Further, Lucas testified that, in the approximately twenty-five other accidents on Interstate 95 to which he has responded, the manner in which he would position the fire track “var[ied] according to the specifics [of the situation]” because “[e]very incident is different . . . .” He also testified that neither the town fire department nor the fire patrol had written policies, standards or procedures pertaining to
We previously have stated that “all аccident scenes are different from one another, and in fact are so different as to require that different measures be taken to secure them.” Faulkner v. Daddona,
II
The plaintiff next claims that the court improperly concluded that the decedent was not an identifiable person subject to imminent harm and, therefore, not within the exception to quаlified governmental immunity. We disagree.
Because we determine that Lucas’ actions were discretionary in nature, he is shielded from liability by the doctrine of qualified governmental immunity so long as his actions do not fall within any of the “three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official’s duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force. . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. . . . Third, Lability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . .” (Citations omitted; internal quotation marks omitted.) Doe v. Petersen,
The plaintiff contends that the identifiable person in imminent harm exception is applicable in this case. That exception “requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.” Id., 616. “To prevail, the plaintiff must demonstrate that [the plaintiffs decedent] was an identifiable person
As to the second prong of the identifiable person subject to imminent harm exception, the plaintiff argues that the decedent was an identifiable victim because she was within a class of foreseeable victims.
Connecticut appellate courts previously have declined to extend the identifiable person in imminent harm exception to the general public using roads and highways. See Shore v. Stonington,
Ill
The plaintiffs third claim is that the court improperly concluded that the plaintiff failed to establish a prima facie case of public nuisance against the town. We disagree.
“Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety. ... [A]
On appeal, the plaintiff claims that the blocking of two lanes of traffic by a fire truck on Interstate 95 is a public nuisance for which the town is liable pursuant to General Statutes § 52-557n (a) (1) (C).
In our earlier discussion of the effect of the trial court’s rendering of summary judgment on the basis of the plaintiff failing to establish a prima facie case of negligence against the town, we noted that “[i]n an automobile accident case, [a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operatоr to come forward with evidence that the collision was not aproxímate consequence of negligence on his part.” (Internal quotation marks omitted.) Schweiger v. Amica Mutual Ins. Co., supra,
Further, the court found no genuine issue with the facts that the defendants did not violate any statutory or other requirement and that the acts undertaken by the defendants in responding to the aсcident were reasonable and lawful. The court opined that to conclude that a fire truck blocking a public highway is unreasonable or unlawful, without any further factual support as to why that fire truck constituted a nuisance, would render meaningless the protection that General Statutes § 7-313e
We agree with the court’s conclusions that the plaintiff failed to establish a prima face case of nuisance because she did not provide any proof that the positioning of the fire truck had a natural tendency to create danger and to inflict injury on person or property, that the town’s actions were the proximate cause of the decedent’s injuries, or that it was unreasonable or unlawful to park the fire truck across the right and center lanes of Interstate 95 to shield emergency personnel responding to an accident.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
Throughout this opinion, Graciela Chirieleison will be referred to as the plaintiff, аnd Jacqueline Bardales Chirieleison will be referred to as the decedent.
The defendant Cos Cob Fire Police Patrol, Inc., and the apportionment defendants Rafael DeLaCruz, Fredie Perez, Ronald C. Metell, R. C. Metell Construction, Leonardo Sanchez and Elizabeth Jackson are not parties to this appeal. For convenience, we refer in this opinion to the town and Lucas as the defendants.
The operative complaint is the second amended complaint. On March 16, 2011, the court granted a motion to strike two counts from the first amended complaint, thereby removing the fire patrol as a party to this action.
The court found that the undisputed evidence presented in the defendants’ motion for summary judgment supported a conclusion that Lucas met the qualifications of being a volunteer fireman engaged in his fire duties under § 7-308, but it determined that count one of the operative complaint alleged a violation of common-law negligence and that § 7-308 does not apply to a common-law negligence action. See Rowe v. Godou,
The court limited its discussion to the claim of negligence against the town because, in the defendants’ motion for summary judgment, they only argued that the plaintiff failed to establish a prima facie case of negligence against the town. Accordingly, we treat the judgment on a failure to establish a prima facie case of negligence as only being rendered with rеgard to count two.
The plaintiff does not argue that the decedent was identifiable as an individual. See Sestito v. Groton,
General Statutes § 52-557n provides in relevant part: “(a) (1) . . . [A] political subdivision of the state shall be liable for damages to person or property caused by . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . . .”
“In the early morning of September 3, 2006, Leo G. Brown was operating a tractor trailer in a westerly direction on Interstate 95 in [the town of] Greenwich. . . . Brown lost cоntrol of the tractor trailer, struck a jersey barrier and bridge railing, and eventually came to a stop in the right and center lanes of [the roadway]. Following the accident, Robert Lucas, a member of the Cos Cob fire police patrol, a volunteer organization operating in conjunction with the Greenwich fire department, responded to the scene. While assisting with the accident cleanup, Lucas parked a . . . fire truck diagonally across the center and right lanes . . . and also placed safety cones along the road to alert oncoming vehicles of the accident. Shortly thereafter, William Kumah, who also was driving his automobile ... on Interstate 95 in Greenwich, collided with the parked fire truck, sustaining serious physical injuries . . . .” (Internal quotation marks omitted.) Kumah v. Brown, supra,
Our Supreme Court in Kumah held that a plaintiff could use § 52-557n to bring a nuisance action against a municipality, declining to accept the defendants’ argument that General Statutes § 13a-149 was the exclusive remedy against a municipality for damages arising out of injuries to a person or property caused by a defective road or bridge. In so dоing, the court affirmed the denial of the defendants’ motion to strike. Kumah v. Brown, supra,
General Statutes § 7-313e provides in relevant part: “[A]ny member serving in the capacity of fire officer-in-charge, shall, when any fire department or company is responding to or operating at a fire, service call, or other emergency, within such municipality, have the authority to . . . (c) blockade any public highway, street, or private right-of-way temporarily while at such scene . . . .”