238 Conn. 653 | Conn. | 1996
Lead Opinion
In Manning v. Barenz, 221 Conn. 256, 603 A.2d 399 (1992), this court held that municipalities and their employees are “owners” under General Statutes § 52-557f (3) and are, therefore, entitled to immunity from liability for injuries sustained on land available to the public for recreational purposes. Today, we reconsider Manning, conclude that it was not properly decided and, accordingly, overrule it.
The following facts are undisputed. The plaintiff, Amy Jeanne Conway, brought this action against the town of Wilton (town), David Dixon, the parks and recreation director for the town, and the Connecticut Association of Secondary Schools (association)
The defendants moved for summary judgment claiming immunity under General Statutes § 52-557g, the immunity provision of the Connecticut Recreational
On appeal to the Appellate Court, the plaintiff claimed that “the trial court improperly granted the motions for summary judgment because (1) the act as applied to the plaintiff violates article first, § 10, of the Connecticut constitution, (2) the association owed a duty to the plaintiff that is independent of the act, and (3) Dixon and the town failed to make the premises ‘available to the public,’ and, therefore, are not entitled to statutory immunity.” Conway v. Wilton, 39 Conn. App. 280, 282-83, 664 A.2d 327 (1995). The Appellate Court rejected all three claims. Id., 285-89. The plaintiff also claimed that Manning v. Barenz, supra, 221 Conn. 256, should be overruled. Because the Appellate Court cannot overrule a Supreme Court decision, it declined to review that claim. Conway v. Wilton, supra, 283 n.5.
Thereafter, the plaintiff petitioned this court for certification to appeal, which we granted, limited to the following questions: (1) “Should this court reconsider its holding in Manning v. Barenz, [supra, 221 Conn. 256], that the recreational land use statute, General
We begin with the rule of stare decisis.
As this court has stated many times, “[t]he true doctrine of stare decisis is compatible with the function of the courts. . . . [Tjhere is no question but that [a] decision of this court is a controlling precedent until overruled or qualified. . . . [Sjtare decisis . . . serve [s] the cause of stability and certainty in the law — a condition indispensable to any well-ordered system of jurisprudence . . . .” (Citations omitted; internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990).
Whether stare decisis serves the interests of judicial efficiency, protection of expectations, maintenance of the rule of law, or preservation of judicial legitimacy, however, is not dispositive. The value of adhering to precedent is not an end in and of itself, however, if the precedent reflects substantive injustice. Consistency must also serve a justice related end. B. Cardozo, The Nature of the Judicial Process (1921) p. 150 (favoring rejection of precedent when it “has been found to be inconsistent with the sense of justice or with the social welfare”). When a prior decision is “seen so clearly as error that its enforcement [is] for that very reason doomed”; (emphasis added) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992); the court should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision.
Indeed, this court has long believed that although “ ‘[s]tare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, [it] is not an absolute impediment to change. . . . [Stability should not be confused with perpetuity. If law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. . . .’ In re Stranger Creek & Tributaries in Stevens County, 77 Wash. 2d 649, 653, 466 P.2d 508 (1970).” White v. Burns, supra, 213 Conn. 335. “ ‘[I]t is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience.’ Barden v. Northern Pacific R. Co., 154 U.S. 288, 322, 14 S. Ct. 1030, 38 L. Ed. 992 (1894). The United States Supreme Court has said that when it has become ‘convinced of former error,’ it has ‘never felt constrained to follow precedent.’ Smith v. Allwright, 321 U.S. 649, 665, 64 S. Ct. 757, 88 L. Ed. 987 (1943), reh. denied, 322 U.S. 769, 64 S. Ct. 1052, 88 L. Ed. 1594 (1944).” White v. Burns, supra, 336.
“[One] well recognized exception to stare decisis under which a court will examine and overrule a prior decision ... [is when that prior decision] is clearly wrong. . . . The doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and
“The arguments for adherence to precedent are least compelling, furthermore, when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants .... Hopson v. St. Mary’s Hospital, 176 Conn. 485, 496 n.5, 408 A.2d 260 (1979), quoting B. Cardozo, [supra] p. 151. . . . Rarely do parties contemplate the consequences of tortious conduct, and rarely if at all will they give thought to the question of what law would be applied to govern their conduct if it were to result in injury. W. Reese, ‘Conflict of Laws and the Restatement Second,’ 28 Law & Contemp. Prob. 679, 699 (1963); accord Griffith v. United Air Lines, Inc., [416 Pa. 1, 23-24, 203 A.2d 796 (1964)]; Wilcox v. Wilcox, 26 Wis. 2d 617, 622, 133 N.W.2d 408 (1965); R. Sedler, ‘The Governmental Interest Approach to Choice of Law: An Analysis and a Reformulation,’ 25 U.C.L.A. L. Rev. 181, 230 (1977).” (Internal quotation marks omitted.) O’Connor v. O’Connor, 201 Conn. 632, 644-45, 519 A.2d 13 (1986) (refusal to adhere to lex loci delicti does
Moreover, we have deemed it appropriate, in other contexts, to depart from common law precedents where we have found compelling reasons and logic for doing so. See Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988) (in view of legislative determination that minors are incompetent to assimilate responsibly effects of alcohol and lack legal capacity to do so, their consumption of alcohol is not intervening act necessary to break chain of proximate causation and does not insulate one who provides alcohol to minors from liability for ensuing injury; overruled earlier rulings in Slicer v. Quigley, 180 Conn. 252, 429 A.2d 855 [1980], Nelson v. Steffens, 170 Conn. 356, 365 A.2d 1174 [1976], and Moore v. Bunk, 154 Conn. 644, 228 A.2d 510 [1967]); Moore v. McNamara, 201 Conn. 16, 25-34, 513 A.2d 660 (1986) (paternal duty of support of minor children); O’Connor v. O’Connor, supra, 201 Conn. 637 (where strict application of common law rule of lex loci delicti undermines important state policy, we refuse to apply it). We have also overruled precedent interpreting a statute even when the legislature has had numerous occasions to reconsider that interpretation and has failed to do so. Chairman v. Freedom of Information Commission, 217 Conn. 193, 201, 585 A.2d 96 (1991).
In short, consistency must not be the only reason for deciding a case in a particular way, if to do so would be unjust. Consistency obtains its value best when it promotes a just decision. In this case, consistent with the proper performance of our judicial function, we, therefore, reexamine the challenged precedent.
In Manning v. Barenz, supra, 221 Conn. 260, this court held, on the basis of what we determined to be the clear and unambiguous language of § 52-557f (3), that the defendant municipality was an owner within
“Our analysis of the plaintiffs claims is guided by well established tenets of statutory construction. [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) M. DeMatteo Construction
“Use of these tools of construction in this case suggests that the immunity conferred by the act was the carrot that legislators dangled before private landowners to encourage them to make their property available for public recreation . . . [and] that the decision by this court [in Manning] to include municipalities within the act’s definition of owner is not consistent with the true legislative intent and, in effect, bestows a benefit on government never contemplated.” Scrapchansky v. Plainfield, supra, 226 Conn. 462 (Katz, J., dissenting).
At first glance the term “owner,” which is defined as “the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises”; General Statutes § 52-557f (3); is not opaque. Indeed, we concluded in Manning v. Barenz, supra, 221 Conn. 260, that the clear and unambiguous meaning of that term encompassed municipal property owners. Nevertheless, upon closer scrutiny of this issue, we conclude
Moreover, consideration of related statutory provisions, General Statutes §§ 52-557g (c) and 52-557h (2), reveals additional ambiguity on the subject of land owned or controlled by public entities. Section 52-557g (c) grants immunity to an owner who leases land to the state, absent written agreement to the contrary. Section 52-557h (2), although creating an exception to immunity coverage for owners who charge persons entering on the land for recreational purposes, also provides that consideration received for land leased to the state or a subdivision thereof shall not be deemed a charge within the meaning of the section. See footnote 3. By carving out different rules for lands leased to the state or its subdivisions, the statutes suggest that the legislature did not intend public and private “owners” to be treated identically under the statute.
“When application of the statute to a particular situation reveals a latent ambiguity in seemingly unambiguous language . . . we turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity.” University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). We begin to ascertain the legislative intent by examining the statute in the context of the particular social problems it seeks to address. “ ‘Identifying the societal problems which the legislature sought to address may be particularly helpful in determining the
“As part of its attempt to foster availability of private land for public recreational use, the Connecticut legislature created a vehicle to increase public access to private property. Parroting a model act promulgated in 1965 by the Council of State Governments,
“Connecticut passed the Recreational Land Use Act in 1971. Without published comment, the legislature
“The act helped to make the option of opening private land for public recreational use more viable by decreasing liability to landowners and decreasing costs to governmental entities seeking to provide recreational lands. Absent the exercise of its right of condemnation, the government is powerless to compel private landowners to open their property for recreational use. Moreover, budget deficits limiting governments’ ability to invest in recreational lands sufficient to satisfy the ever increasing demand effectively eliminated even this option. The act furnished a solution. ‘[T]his would open up land in the state of Connecticut at no cost to the state, town or federal government at all.’ 14 H.R. Proc., Pt. 4, 1971 Sess., p. 1809, remarks of Representative Peter F. Locke, Jr.
“As stated, this act sought to increase the availability of recreational lands by limiting liability for accidents occurring on the property. Landowners are protected in two ways from liability for injuries suffered by entrants. When a landowner directly or indirectly invites another to use his property for a recreational purpose without fees, the entrant does not thereby become a licensee or invitee. General Statutes § 52-557g. The landowner ‘owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others
“The inherent costs to society that can result from removing the caretaking responsibilities and duty to warn against known or discoverable hazards imposed upon public landowners at common law, however, are not outweighed by any benefit conferred upon society by the act. Public lands are lands already held open to the public.” (Emphasis in original.) Scrapchansky v. Plainfield, supra, 226 Conn. 462-68. (Katz, J., dissenting). Municipalities provide recreational land as part of their traditional function. National League of Cities v. Usery, 426 U.S. 833, 851, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), overruled on other grounds, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). Because they are in the business of providing parks, pools, ball fields, etcetera, the legislature had less incentive to dangle the carrot of immunity to encourage municipali
There are other compelling reasons why, in the absence of explicit direction from the legislature, this court should not read the term “owner” to include municipalities. “At common law a municipality was generally immune from liability for its tortious acts. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). Its employees had a qualified immunity in the performance of a governmental duty. If an employee misperformed a ministerial act, he was potentially hable; if, however, he misperformed a discretionary act, he was immune from liability subject to three exceptions. Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). General Statutes § 52-557n, enacted as part of tort reform in 1986; Public Acts 1986, No. 86-338, § 13; was ‘intended, in a general sense, both to codify and to limit municipal liability . . . .’ Sanzone v. Board of Police Commissioners, 219 Conn. 179, 188, 592 A.2d 912 (1991). In 1971, when the act was enacted; Public Acts 1971, No. 249; as well as in 1967, immunity for municipalities was alive and well. Accordingly, there was even less incentive to craft the act in order to grant
The legislature was not contemplating immunity for governmental entities. At the time the act was enacted, the legislature was interested in increasing the availability of land for public recreational use. See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4255-56. Consequently, municipalities would have had to identify additional land and pay large sums to purchase and maintain it in order to accomplish that goal had the legislation not succeeded. The legislature’s sole motive was to encourage private citizens to donate their land as an alternative to this costly enterprise. There is no indication that the legislature was seeking to permit a municipality to have immunity for responsibilities arising out of property that it already owned.
We reject the defendants’ argument that Manning was correctly decided, on the theory that the statutory immunity attaches only to public land made available without charge, and that the legislature rationally drew a distinction between free public facilities and those that citizens must pay to use.
In conclusion, “[t]here is nothing in the legislative history to suggest that the legislature intended or even contemplated that the act would provide immunity for governmental entities. Therefore, to apply the act to municipalities imposes too high a societal cost and serves no useful or intelligible purpose.” Scrapchansky v. Plainfield, supra, 226 Conn. 468-69 (Katz, J., dissenting). “The protection granted through the act was an incentive for private owners to open up new lands for public use. It was not an attempt to provide an immunity shield for existing state or municipal recreational areas.” Id., 470. In the absence of any express legislative provision covering publicly owned lands, we decline to read the statute to extend the immunity
Our reexamination of Manning persuades us that its analytical underpinnings are flawed. What we viewed once as clear and unambiguous language — the statutory definition of “owner” — is not, despite its superficial unambiguity. Furthermore, Manning ignores the legislative history, including not only the statements made on the floor of the Senate and the House of Representatives when it was passed, but the origin of the statute in the model act. A careful and comprehensive reading of that history, however, evinces a clear legislative intent that “owner,” despite the breadth of its statutory definition, means private, not municipal, fee owners.
Furthermore, as a result of Manning, which misinterpreted the act, some litigants have not had the days in court to which they were entitled, and of which the legislature never intended to deprive them. Leaving the decision in Manning in place would mean that future litigants, including those who might, in reliance on Man
Finally, we note that, in the present case, as in most unintentional tort cases, there is no reason to suppose that the defendants planned their conduct with the intention of availing themselves of the benefits of recent law. See O’Connor v. O’Connor, supra, 201 Conn. 645. Under such circumstances, reliance is not a consideration. Furthermore, there is no argument made, nor does the record support the argument, that municipalities decided not to purchase liability insurance in reliance on Manning. We think it unlikely that, in the four years since we decided Manning, municipalities have ordered their affairs, by structuring either their liability insurance or self-insuring protection, based on an immunity arising only out of the use of free parks or other municipal recreational facilities. We conclude, therefore, for all the aforestated reasons, that Manning was not correctly decided and that, consequently, that decision and its progeny must be overruled.
After we interpret a statute, the legislature will often act in response. See, e.g., State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987). Had the legislature, after our decision in Manning, expressed a view that established definitively the meaning of the term “owner” in § 52-557f (3), that view would , of course, be honored. Bell v. New Jersey, 461 U.S. 773, 784, 103 S. Ct. 2187, 76 L. Ed. 2d 312 (1983).
In this case, since Manning, four bills have been introduced by the legislature to amend the act. In 1993, House Bill No. 6634 was introduced to remove explicitly municipalities and their employees from the definition of “owner” in § 52-557Í (3). Although the House Judiciary Committee favorably reported the bill out of committee (approved by a 32 to 0 vote), the full legislature never voted on this bill. In 1994, the judiciary committee voted in favor of two bills, House Bill No. 5700, approved by a 30 to 1 vote, and Substitute House Bill No. 5532, approved by a 21 to 1 vote, that would have amended § 52-557h, the “exceptions” provision of the act, making municipalities liable “for the creation or maintenance of a dangerous structure or failure to guard or warn against a dangerous structure that is the sole proximate cause of an injury.” Substitute House Bill No. 5532, § 2, File No. 587. Finally, in 1995, Raised Bill No. 1014 proposed an amendment to § 52-557f to exclude explicitly municipalities from the definition of “owner”; however, there is no indication in the legislative record why that bill never made it out of committee.
The defendants would like us to conclude, on the basis of these failed attempts to amend explicitly the act, that the interpretation of “owner” given by this court in Manning was indeed approved by the legislature. The plaintiff argues that, in light of the judiciary committee’s recommendation and overwhelming support for the elimination of municipal immunity, on three separate occasions, it is unreasonable to view the legislature as acting in approval or acquiescence of Manning. “[W]e are reluctant to draw inferences regarding legislative intent from the failure of a legislative committee to report a bill to the floor, because in most cases
Accordingly, we now hold that municipalities are not “owners” within the act. Therefore, the trial court improperly rendered summary judgment against the plaintiff.
II
In light of our resolution of the first question, we do not answer the second question on which we granted certification.
This court, in phrasing the questions for certification, limited its review to whether Manning should be overruled and, if Manning is not overruled, whether the association owed a duty to the plaintiff separate and apart from any duty it owed as an owner.
The judgment of the Appellate Court is reversed and the case with respect to the association is remanded to that court for consideration of whether the association is an “owner” under § 52-557f (3) in order to define the scope of the association’s liability; the case with respect to the town and Dixon is remanded to the Appellate Court with direction to remand the case to the trial court for further proceedings according to law.
In this opinion BORDEN and PALMER, Js., concurred.
The Connecticut, Association of Secondary Schools is now named the Connecticut Association of Schools.
The conference is an extension of the association that directs and controls athletic competition between the secondary schools of Connecticut.
General Statutes § 52-557Í provides: “As used in sections 52-557Í to 52-557i, inclusive:
“(1) ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land;
“(2) ‘Land’ means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty;
“(3) ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises;
“(4) ‘Recreational purpose’ includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning and viewing or epjoying historical, archaeological, scenic or scientific sites.”
Although the current revision of § 52-557f (4) includes specific activities under “recreational purpose” that were not included in the statute in 1986 when this action arose, the statute is otherwise the same.
General Statutes § 52-557g provides: “(a) Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.
“(b) Except as provided in section 52-557h, an owner of land who, either directly or indirectly, invites or permits without charge, rent, fee or other commercial service any person to use the land, or part thereof, for recreational purposes does not thereby: (1) Make any representation that the premises are safe for any purpose; (2) confer upon the person who enters or uses the land for recreational purposes the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of the owner.
“(c) Unless otherwise agreed in writing, the provisions of subsections (a) and (b) of this section shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.”
General Statutes § 52-557h provides: “Nothing in sections 52-557Í to 52-557i, inclusive, limits in any way the liability of any owner of land which otherwise exists: (1) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; (2) for ir\jury suffered in any case where the owner of land charges the person or persons who enter
General Statutes § 52-557Í provides: “Nothing in sections 52-557Í to 52-557i, inclusive, shall be construed to reheve any person using the land of another for recreational purposes from any obligation which he may have in the absence of said sections to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.”
Black’s Law Dictionary (6th Ed. 1990) defines stare decisis as “[t]o abide by, or adhere to, decided cases.”
Stare decisis plays an integral role in our legal culture and has been the subject of numerous commentaries. See, e.g., K. Llewellyn, “Case Law,” in 3 Encyclopedia of the Social Sciences (E. Seligman ed., 1930) p. 249; R. Pound, “The Theory of Judicial Decision,” 36 Harv. L. Rev. 940, 942-43 (1923); L. Powell, “Stare Decisis and Judicial Restraint,” 47 Wash. & Lee L. Rev. 281, 286-87 (1990).
“The model act provided in part:
“ ‘PUBLIC RECREATION ON PRIVATE LANDS: LIMITATIONS ON LIABILITY . . .
“ ‘Section 1. The purpose of this act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.
“ ‘Section 2. As used in this act:
“ ‘(a) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
“ ‘(b) “Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
“ ‘(c) “Recreational purpose” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
“ ‘(d) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.
“ ‘Section 3. Except as specifically recognized by or provided in Section 6 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
“ ‘Section 4. Except as specifically recognized by or provided in Section
“ ‘(a) Extend any assurance that the premises are safe for any purpose.
“ ‘(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.
“ ‘(c) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.
“ ‘Section 5. Unless otherwise agreed in writing, the provisions of Sections 3 and 4 of this act shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.
“ 'Section 6. Nothing in this act limits in any way any liability which otherwise exists:
“ '(a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
“ '(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the state or a. subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.
“ 'Section 7. Nothing in this act shall be construed to:
“ '(a) Create a duty of care or ground of liability for injury to persons or property.
“ ‘(b) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.
“ ‘Section 8. [Insert effective date'.]’ 24 Council of State Governments, ‘Public Recreation on Private Lands: Limitations on Liability,’ Suggested State Legislation (1965) pp. 150-52.” Scrapchansky v. Plainfield, supra, 226 Conn. 463-64 n.2 (Katz, J., dissenting).
“Public Acts 1967, No. 623.” Scrapchansky v. Plainfield, supra, 226 Conn. 464 n.3 [Katz, J., dissenting).
“Connecticut’s statute, like those of many other states, had its genesis in the model act. G. Thompson & M. Dettmer, [supra, 61 Mich. B.J. 726]. The introductory statement of the reasons for the model act is therefore entitled to consideration. The preamble provides: ‘Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreation resources available. . . . [I]n those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.
“ ‘In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return.
“ ‘The suggested act which follows is designed to encourage availability of private lands . . . .’ 24 Council of State Governments, ‘Public Recreation on Private Lands: Limit ations on Liability,’ Suggested State Legislation (1965) p. 150.” Scrapchansky v. Plainfield, supra, 226 Conn. 466 n.4 (Katz, J., dissenting).
“It was also remarked before the Senate that ‘this is an important bill. And will probably do more to open up land to recreation purposes without the expenditure of a single penny on the part of the state.’ 14 S. Proc., Pt. 4, 1971 Sess., p. 1679, remarks of Senator Roger W. Eddy.” Scrapchansky v. Plainfield, supra, 226 Conn. 467 n.5 (Katz, J., dissenting).
Because immunity conferred by § 52-557g is in derogation of the common law, it should be strictly construed to effectuate its intended purpose; McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981); and “is to be limited to matters clearly brought within its scope.” Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937).
“We have often stated that we will not assume the legislature enacted legislation that serves no useful purpose. Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 99, 291 A.2d 721 (1971); Anthony v. Administrator, 158 Conn. 556, 565, 265 A.2d 61 (1969). Furthermore, if a statute is susceptible to an interpretation by which such a consequence can be avoided, that interpretation will be found. Hartford Electric Light Co. v. Water Resources Commission, supra [99].” Scrapchansky v. Plainfield, supra, 226 Conn. 469 n.7 (Katz, J., dissenting).
The defendants also urge this court to follow the Appellate Court opinion in Drisdelle v. Hartford, 3 Conn. App. 343, 345-46, 488 A.2d 465, cert. denied, 196 Conn. 801, 491 A.2d 1104 (1985), wherein that court held that a municipality was a landowner as defined within General Statutes § 52-557), which limits the liability of landowners for injuries sustained by snowmobilers riding on their lands. Although that decision is not binding on this court and we take no position as to its propriety, we note that §§ 52-557j
We note that lour states explicitly exclude public entities from their recreational land use statutes. See Haw. Rev. Stat. §§ 520-1 through 520-3 (1993); Iowa Code §§ 461C.1 through 461C.7 (Sup. 1996); Minn. Stat. §§ 604A.21 through 604A.25 (Sup. 1996); N.C. Gen. Stat. §§ 38A-1 through 38A-2 (1995). We further note that ten states have judicially extended the immunity under their recreational land use statutes to public entities; see, e.g., Stone Mountain Memorial Assn. v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969); Page v. Louisville, 722 S.W.2d 60 (Ky. App. 1986); Anderson v. Springfield, 406 Mass. 632, 549 N.E.2d 1127 (1990); Matthews v. Detroit, 141 Mich. App. 712, 367 N.W.2d 440 (1985); Watson v. Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981); Trimblett v. State, 156 N.J. Super. 291, 383 A.2d 1146 (1977); Johnson v. New London, 36 Ohio St. 3d 60, 521 N.E.2d 793 (1988); Hughey v. Grand River Dam Authority, 897 P.2d 1138 (Okla. 1995); Hogg v. Clatsop County, 46 Or. App. 129, 610 P.2d 1248 (1980); Commonwealth v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986); and four states have judicially excluded public entities from the immunity provided by their recreational land use statutes. See, e.g., Delta Farms Reclamation District v. Superior Court, 33 Cal. 3d 699, 660 P.2d 1168, 190 Cal. Rptr. 494, cert. denied, 464 U.S. 915, 104 S. Ct. 277, 78 L. Ed. 2d 257 (1983); Pensacola v. Stamm, 448 So. 2d 39 (Fla. Dist. Ct. App. 1984); Ferres v. New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57, 502 N.E.2d 972 (1986); Stamper v. Board of Education, 191 W. Va. 297, 445 S.E.2d 238 (1994).
The town argues that to overrule Manning would constitute a violation of article second of the Connecticut constitution, as amended by article eighteenth of the amendments, which provides in relevant part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.” We disagree. The municipal immunity the defendants seek to preserve stems from a judicially crafted interpretation of the term “owner.” For all the aforestated reasons, that interpretation was incorrect. The legisla
In In re Valerie D., supra, 223 Conn. 517-26, we examined two proposed bills that took directly contrary approaches to the issue before the committee in question. Under those “limited circumstances . . . the committee’s endorsement of one bill and rejection of the other, coupled with the legislature’s passage of the bill endorsed by the committee, provide[d] a sufficient foundation for an inference regarding legislative intent.” Id., 518 n.19.
Because the town is not an “owner,” neither the town, as the principal, nor Dixon, its parks department director, as its agent, is immune by virtue of the act. To hold otherwise would “completely bypass” the act. Manning v. Barenz, supra, 221 Conn. 262.
With respect to the second certified question, the plaintiff claims that even if the association is an “owner” within the meaning of the act based upon its control over the property during the tournament and its responsibilities as an “owner” to inspect the courts and to ascertain and remedy any dangerous conditions, the association also had a legal duty separate and apart from its responsibilities as an owner to make a reasonable site selec
Dissenting Opinion
joins, dissenting. I disagree with the overruling of Manning v. Barenz, 221 Conn. 256, 603 A.2d 399 (1992), and therefore respectfully dissent.
In assessing the force of stare decisis, our case law has emphasized that we should be especially cautious about overturning a case that concerns statutory construction. In my view, the present case does not present
When we construe a statute, we act not as plenary lawgivers but as surrogates for another policy maker, the legislature. In our role as surrogates, our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided. See, e.g., Reliance Ins. Co. v. American Casualty Ins. Co., 238 Conn. 285, 291, 679 A.2d 925 (1996), and cases cited therein. More often, however, the legislature takes no further action to clarify its intentions. Time and again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature’s acquiescence in our construction of a statute. See, e.g., Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 693, 674 A.2d 1300 (1996); Habetz v. Condon, 224 Conn. 231, 239 n.12, 618 A.2d 501 (1992); Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 817, 595 A.2d 341 (1991); Union Trust Co. v. Heggelund, 219 Conn. 620, 626-27, 594 A.2d 464 (1991); In re Jessica M., 217 Conn. 459, 472, 586 A.2d 597 (1991); State v. Marsala, 216 Conn. 150, 158, 579 A.2d 58 (1990); White v. Burns, 213 Conn. 307, 333-34, 567 A.2d 1195 (1990); Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987); Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987).
In light of our role as surrogates for the legislature, proper respect for the separation of powers has led us to exercise prudence with respect to the overruling of cases that involve the construction of a statute. Once an appropriate interval to permit legislative reconsider
I am not persuaded that “the most cogent reasons and inescapable logic” compel us to overrule Manning. Municipalities, like private landowners, make choices about charging user fees for recreational facilities. Municipalities, like private landowners, must insure, or take the risk of acting as self-insurers, if they face exposure for injuries suffered by recreational users. Municipalities are not, prima facie, excluded from the category of land “owners.” The public policy advanced by the Connecticut Recreational Land Use Act (act), General Statutes § 52-557Í et seq., is, therefore, neither undermined nor disserved by including municipalities within its ambit.
It is important to bear in mind that the issue before us is not whether a sound argument can be advanced in favor of construing the term “owner,” for the purposes of this act, in the manner advocated by the majority. That was the issue in Manning, but it is not the issue in this case. Due regard for the high threshold of “the most cogent reasons and inescapable logic” requires more.
The general authorities on which the majority relies do not address the high threshold required to overrule
The specific argument advanced by the majority for concluding that this threshold has been met is that, in light of the act’s legislative history, its use of the term “owner” requires a construction that differs from that which we adopted in Manning. For three reasons, this argument is unpersuasive. First, although the legislative history suggests that our earlier reading of “owner” may have been overinclusive, it falls far short of demonstrating that the holding of Manning was so ill considered or has been shown to have such dire consequences that “inescapable logic” requires its overruling. Second, the majority underestimates the likelihood of municipal reliance on the holding in Manning. What is at stake is the construction of statutory language, textually unchanged, the meaning of which is now to be altered retrospectively. The impact of a judicial construction of an established text more closely resembles the impact of judicial decisions affecting land titles, in which stare decisis has special importance; see State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 381, 97 S. Ct. 582, 50 L. Ed. 2d 550 (1977); Ozyck v. D'Atri, 206 Conn. 473, 483, 538 A.2d 697 (1988) (Healey, J., concurring); than that of judicial decisions involving idiosyncratic testamentary dispositions. Hartford National Bank & Trust Co. v. Harvey, 143 Conn. 233, 243, 121 A.2d 276 (1956). Third, in deciding that justice demands that Manning be overruled, the majority overlooks the reasoning of cases such as Florestal v. Government Employees Ins. Co., 236 Conn. 299, 309-10, 673 A.2d 474 (1996), and cases cited therein, in which we have repeatedly held that disappointed claimants must look to the legislature, and not to the courts, for redress from statutory unfairness.
I respectfully dissent.
In this case, the record for legislative acquiescence in our decision in Manning v. Barenz, supra, 221 Conn. 256, is unusually strong because it does not depend on mere legislative silence. Testimony at hearings before the Joint Committee on the Judiciary in 1993, 1994 and 1995 informed the legislature of the competing positions of tort claimants and recreational facility providers with respect to Manning. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6,1995 Sess., pp. 2025-38; Conn. Joint Standing' Committee Hearings, Judiciary, Pt. 5, 1995 Sess., pp. 1718-20, 1739, 1769; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1994 Sess., pp. 803-806, 822-32, 855-66, 888-99; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1993 Sess., pp. 1126-28, 1131-32, 1197-1203, 1238-39, 1289-92, 1414. Although the Judiciary Committee approved bills that would have changed the outcome in Manning, the legislature did not enact them. This record demonstrates, at the least, that the legislature was informed of the Manning decision and chose to take no further action in response thereto.
The highest courts of our sister states have also applied a heightened standard when considering whether to overturn precedent involving the construction of a statute. See, e.g., In re Speer, 53 Idaho 293, 299-300, 23 P.2d 239 (1933); Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356-57, 789 P.2d 541 (1990), overruled on other grounds, Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991); Geier v. Mercantile-Safe Deposit & Trust Co., 273 Md. 102, 124, 328 A.2d 311 (1974); Kansas City Public Service Co. v. Ranson, 328 Mo. 524, 536-37, 41 S.W.2d 169 (1931); Bottomly v. Ford, 117 Mont. 160, 167-68, 157 P.2d 108 (1945); Jensen v. Labor Council, 68 Nev. 269, 280-81, 229 P.2d 908 (1951); Higby v. Mahoney, 48 N.Y.2d 15, 18-19, 396 N.E.2d 183, 421 N.Y.S.2d 35 (1979); People v. Hobson, 39 N.Y.2d 479, 488-90, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976); In re Burtt's Estate,
The United States Supreme Court has determined that the standard for stare decisis for precedents involving statutory construction is more stringent because the power of the legislative branch is implicated. See California v. Federal Energy Regulatory Commission, 495 U.S. 490, 499, 110 S. Ct. 2024, 109 L. Ed. 2d 474 (1990) (“considerations of stare decisis have special force in the area of statutory interpretations, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done”); see also Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. 854-55 (in constitutional jurisprudence, stare decisis is informed by prudential and pragmatic considerations); C. Peters, supra, 105 Yale L. J. 2114-15 (justifying stare decisis based on consequentialist considerations, and noting that “in statutory interpretation, fragmented case law would frustrate the very purpose of having a statute in the first place”).