GRAYSON DIMICELI ET AL. v. TOWN OF CHESHIRE
(AC 36747)
Alvord, Prescott and Bear, Js.
Argued October 15, 2015—officially released January 5, 2016
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Benjamin H. Pomerantz, for the appellant (named plaintiff).
Thomas R. Gerarde, with whom, on the brief, was Katherine E. Rule, for the appellee (defendant).
Opinion
PRESCOTT, J. In this personal injury action, the plaintiff Grayson DiMiceli, through his parents and next friends, the plaintiffs Eric DiMiceli and Sabrina DiMiceli, appeals from the summary judgment rendered by the trial court in favor of the defendant, the town of Cheshire.1 Grayson allegedly was injured while playing on a seesaw at a playground operated and maintained by the defendant. The plaintiffs’ complaint initially alleged only negligence by the defendant and a derivative claim for medical expenses, but later was amended to include a public nuisance count. The plaintiffs claim that the court improperly determined that the defendant was entitled to judgment as a matter of law because (1) their negligence count was barred by the doctrine of governmental immunity, and (2) the amended count alleging a public nuisance was barred by the applicable statute of limitations and did not relate back to the negligence count. We disagree and, accordingly, affirm the judgment of the trial court.
The record reveals the following undisputed facts and procedural history. On June 13, 2009, Grayson, who was seven years old at that time, was playing with another child at the Quinnipiac Recreation Area, a public park that is owned and operated by the defendant. Grayson and the other child were using a seesaw, when,
The plaintiffs commenced this action against the defendant on April 26, 2011.2 The initial complaint contained two counts, the first alleging negligence on behalf of Grayson, and the second asserting a derivative claim for medical expenses on behalf of the parents individually.3 According to the plaintiffs, the defendant had been negligent because it had failed to embed partial car tires or other shock absorbing material in the ground directly beneath the seesaw seats or to use such material on the underside of the seats themselves, had failed to ensure that there were sufficient wood chips or other loose filled material covering the ground around the seesaws or had failed to replace the old fashioned seesaw with a newer, spring-loaded version. The case was assigned for a jury trial to begin on September 24, 2013. On May 7, 2013, the defendant filed a motion for permission to file a summary judgment motion in accordance with
The plaintiffs were granted two extensions of time in which to respond to the motion for summary judg-ment. On October 16, 2013, the plaintiffs filed a request for leave to amend the complaint, seeking to add new factual allegations to the existing negligence count and to add a new count sounding in public nuisance. The proposed second amended complaint was attached to the motion. The defendant objected to the request for leave to amend, arguing that the proposed amendment was unseasonable and would prejudice the defendant because it had already filed its motion for summary judgment. The court scheduled argument on the motion for leave to amend for November 25, 2013. In the interim, the plaintiffs filed a response to the defendant’s objection to the motion for leave to amend as well as a supplemental response to the defendant’s motion for summary judgment.
Following the November 25, 2013 hearing, the court granted the plaintiffs’ motion for leave to amend its complaint and accepted the attached amended complaint as having been filed on that date. The defendant filed an answer with special defenses to the new operative complaint on December 5, 2013, in which it asserted a statute of limitations special defense directed at the nuisance count. The defendant later filed a supplemental memorandum of law in support of its motion for summary judgment, which included new arguments addressing the propriety of the nuisance count. The plaintiffs also filed a supplemental brief in opposition to summary judgment.
On March 13, 2014, the court issued a decision rendering summary judgment in favor of the defendant on all counts of the operative complaint. The court concluded that the defendant was entitled to judgment as a matter of law on the negligence count because governmental immunity, as
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I
We turn first to the plaintiffs’ claim that the court improperly rendered summary judgment on the negligence count on the basis of its determination that recovery for negligence was barred by the doctrine of governmental immunity. In support of this claim, the plaintiffs first argue that a genuine issue of material fact exists as to whether the defendant’s duty to inspect and maintain the playground and seesaw was ministerial or discretionary in nature, and that the existence of such a disputed issue of fact should have precluded the court from granting summary judgment. The plaintiffs further argue that it is contrary to public policy to grant governmental immunity if a municipality claims to have no policies, standards, or guidelines in place to ensure that its playgrounds are safe for children. We are not persuaded by the plaintiffs’ first argument and decline to consider the second because it was not raised to or decided by the trial court.
A
The plaintiffs first argue that a genuine issue of material fact exists with
We begin by setting forth the well settled law of this state regarding the liability of municipalities and their agents. According to our Supreme Court, ‘‘[a] municipality itself was generally immune from liability for its tortious acts at common law . . . . [The court has] also recognized, however, that governmental immunity may be abrogated by statute. . . .
‘‘Subdivision (2) of
‘‘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. . . . In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner.’’ (Citation omitted; internal quotation marks omitted.) Id., 323.
‘‘In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity. . . . A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs.’’ (Citations omitted.) Grignano v. Milford, 106 Conn. App. 648, 656, 943 A.2d 507 (2008). ‘‘Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . .
In their complaint, the plaintiffs allege that the defendant failed to maintain the park and the seesaw in a safe condition and that ‘‘[t]he duties owed by the defendant were ministerial in nature.’’ The plaintiffs allege three possible sources for the defendant’s alleged ministerial duties: the United States Consumer Product Safety Commission’s Handbook for Public Playground Safety (CPSC standards); chapter 11, article I, § 11-1 of the Cheshire Code of Ordinances (ordinance); and internal standards established by the defendant’s Parks and Recreation Department. We agree with the well reasoned analysis set forth by the trial court in its memorandum of decision, in which it aptly concludes that none of the sources cited by the plaintiffs imposed a ministerial duty with respect to how the defendant was supposed to inspect and maintain its playgrounds and playground equipment.
The trial court reasoned as follows: ‘‘With respect to the CPSC standards, the plaintiff[s] [point] to
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‘‘With respect to the ordinance, the plaintiff[s] [argue] that a sentence in [the ordinance] creates a ministerial duty. [The ordinance] states: ‘[t]he town’s parks and recreational facilities shall be maintained for the residents of Cheshire and guests in their company.’ The plaintiff[s] essentially [argue] that the use of the imperative ‘shall’ indicates that the ordinance requires the defendant to maintain the park and the seesaw. The court disagrees with [that] interpretation. . . . [I]n order for a duty to be considered ministerial, it must be ‘performed in a prescribed manner without the exercise of judgment or
‘‘With respect . . . to the internal standards of the Parks and Recreation Department, the plaintiff[s] [point] to the deposition testimony of Robert Ceccolini, Director of the Cheshire Parks and Recreation Department. The plaintiff[s] [argue] that Ceccolini’s testimony undercuts the defendant’s contention that maintenance of the seesaw was a discretionary function. Specifically, the plaintiff[s] [argue] that Ceccolini described a number of maintenance and inspection standards that employees of the Parks and Recreation Department were instructed to follow. These instructions, the plaintiff[s] [argue], are in the nature of directives imposing a ministerial duty, vitiating the defendant’s governmental immunity and defeating the defendant’s motion for summary judgment.
‘‘Ceccolini testified that the employees of the Parks and Recreation Department are to ‘maintain the parks, that’s part of their job, as they go through their day.’ . . . In response to a question asking if there are ‘checklists or guidelines that your employees . . . are given . . . to give them an idea of the sort of things they should be looking for,’ Ceccolini answered ‘[t]here are no checklists, no.’ . . . Ceccolini admitted that ‘[w]ood chips are replaced on a fairly regular basis.’ . . . However, he augmented that answer by stating that the Department of Parks and Recreation adds wood chips ‘[e]very year or so, every year or two we add new wood chips on an as-needed basis.’ . . . Based on this testimony, whatever internal standards the Parks and Recreation Department had were discretionary in nature.’’ (Citations omitted; emphasis in original; footnotes omitted.)
The plaintiffs suggest on appeal that the court’s analysis as it pertains to the internal standards of the Parks and Recreation Department conflicts with or overlooks our decision in Wisniewski v. Darien, 135 Conn. App. 364, 374, 42 A.3d 436 (2012). In particular, the plaintiffs cite to language in Wisniewski indicating that the testimony of a municipal official concerning the defendant town’s duty to inspect or maintain its property may be sufficient to establish that such a duty is ministerial in nature. Id., 374. Nothing in the trial court’s decision granting summary judgment in this case conflicts with that proposition. The present case is distinguishable from Wisniewski because, unlike in that case, the plaintiffs here have failed to produce testimonial evidence from which a ministerial duty could be inferred and, therefore, have failed to raise a genuine issue of material fact.
The plaintiffs in Wisniewski had been injured when part of a tree that was located on town land and that had been the subject of several reports to the town as a potential hazard fell on the car in which the plaintiffs were travelling. Id., 366–67. A town official testified at trial that once the town was notified of a problem with a tree, the response was always the same: to have a tree warden inspect the tree to determine if there was a safety concern. Id., 375. The tree warden also testified ‘‘that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretionary duty to perform an inspection.’’ Id. We concluded that this testimony was sufficient evidence to support the jury’s finding that the warden had a ministerial duty to inspect the subject tree. Id. In contrast, in the present case, there is no
On the basis of our plenary review of the pleadings and submissions of the parties, we conclude that the plaintiffs have failed to show the existence of a genuine issue of material fact that would preclude the granting of summary judgment. Because it was legally and logically correct for the trial court to have concluded that the acts and omissions alleged in the complaint necessarily were discretionary in nature and, thus, not ministerial; see Grignano v. Milford, supra, 106 Conn. App. 656; see also Evon v. Andrews, 211 Conn. 501, 506–507, 559 A.2d 1131 (1989) (what constitutes reasonable, proper, or adequate inspection involves exercise of judgment and, thus, is discretionary in nature); the court properly determined that the defendant was entitled to judgment as a matter of law on the defendant’s governmental immunity defense.
B
The plaintiffs also argue on appeal that it contravenes public policy to grant governmental immunity to a municipality that ignores, or pretends not to adopt, basic playground safety requirements intended to protect children. The defendant counters that the plaintiffs’ public policy argument was never raised in the summary judgment pleadings or during oral argument on the motion, and, therefore, we should not consider the argument on appeal. We agree with the defendant that the public policy aspect of the plaintiffs’ claim was not properly preserved for appellate review, and, accordingly, we decline to address it.
‘‘Our appellate courts, as a general practice, will not review claims made for the first time on appeal. We repeatedly have held that [a] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one . . . . [A]n appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court. . . . The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . The purpose of our preservation requirements is to ensure fair notice of a party’s claims to both the trial court and opposing parties. . . . These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act.’’ (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) White v. Mazda Motor of America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079 (2014); see also Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214 n.8, 618 A.2d 25 (1992) (declining to address public policy argument raised for first time on appeal).
Further, even if we were persuaded that the issue had been distinctly raised to the trial court, that court never decided the issue. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998) (appellate courts ‘‘will not address issues not decided by the trial court’’). The trial court never mentions public policy in its memorandum of decision granting the defendant’s motion for summary judgment, and to the extent that it was raised in the plaintiffs’ motion for reargument, the court denied that motion without comment. Even if the plaintiffs believed that the court overlooked an argument that they raised in opposition to summary judgment, they failed to indicate this in their motion for reargument. Because the public policy argument advanced by the plaintiffs on appeal was never distinctly raised to or decided by the trial court, we decline to consider it on appeal.
II
Finally, we turn to the plaintiffs’ claim that the court improperly rendered summary judgment in favor of the defendant on their public nuisance count. According to the plaintiffs, the court incorrectly determined that their nuisance count did not relate back to the original negligence count and, thus, was barred pursuant to the applicable statute of limitations.7 The plaintiffs do not dispute the court’s determination that their public nuisance count first appeared in their October 16, 2013 second amended complaint, and that this was well over four years after
We begin by setting forth the applicable law as well as our standard of review. ‘‘Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims. . . . To relate back to an earlier complaint, the amendment must arise from a single group of facts. . . . In determining whether an amendment relates back to an earlier pleading, we construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way as to strain the bounds of rational comprehension. . . . Finally, in the cases in which [our Supreme Court has] determined that an amendment does not relate back to an earlier pleading, the amend-ment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations.’’ (Internal quotation marks omitted.) J. Wm. Foley, Inc. v. United Illuminating Co., 158 Conn. App. 27, 63–64, 118 A.3d 573 (2015).
As this court recently indicated in Briere v. Greater Hartford Orthopedic Group, P.C., 158 Conn. App. 66, 74, 118 A.3d 596 (2015), cert. denied, 319 Conn. 910, 123 A.3d 882 (2015), cert. granted, 319 Conn. 950, A.3d (2015), in determining whether an amendment to a complaint relates back for purposes of applying the statute of limitations, we will employ a de novo standard of review. See also Sherman v. Ronco, 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010) (‘‘the de novo standard of review is always the applicable standard of review for resolving whether subsequent amendments to a complaint relate back for purposes of the statute of limitations’’ [emphasis in original]).9
‘‘The alleged actionable occurrences in the two claims are inherently conflicting. The actionable occurrence in the negligence claim is the failure to act, whereas the actionable occurrence in the public nuisance claim is the defendant’s positive act of installing the seesaw. Indeed, the prima facie public nuisance claim against municipalities requires a positive act on the part of the municipality. In the public nuisance context, [our] Supreme Court has stated that ‘[c]ommon usage does not equate a failure to act with an act.’ . . . In the present case, however, the plaintiff[s] [ask] the court to decide that prior allegations of negligent conduct would have given the defendant ‘fair notice’ . . . that it would have to defend a public nuisance claim. The plaintiff[s’] public nuisance claim does not relate back to the original claim of negligence because the allegations of the original complaint failed to notify the defendant that claims based on its allegedly intentional conduct were imminent.’’ (Citations omitted; emphasis in original; footnote omitted.)
It is undisputed that the nuisance count was filed outside of the applicable statute of limitations. Having determined that the court correctly concluded as a matter of law that the nuisance count did not
The judgment is affirmed.
In this opinion the other judges concurred.
PRESCOTT, J.
ALVORD, PRESCOTT and BEAR, Js.