FLORENCE THIVIERGE v. RICHARD WITHAM ET AL.
(AC 35860)
Connecticut Appellate Court
Argued March 10—officially released June 10, 2014
DiPentima, C. J., and Bear and Peters, Js.*
(Aрpeal from Superior Court, judicial district of Middlesex, Morgan, J.)
******************************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certificatiоn is the “officially released” date appearing in the opinion. In no event will any such motions be accepted before the “officially released” date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Eleсtronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State
******************************************************
Nickola J. Cunha, for the appellant (plaintiff).
Claudia A. Baio, for the appellees (defendant Gail Petras et al.).
Opinion
PETERS, J. The principal issue in this civil appeal is whether the doctrine of governmentаl immunity shields a municipal animal control officer from personal liability for allegedly having failed to enforce a restraining order issued pursuant to
On June 12, 2012, the plaintiff, Florence Thivierge, filed a six count complaint against the defendants, Riсhard Witham, Gail Petras, and the city of Middletown (city).2 The complaint alleged that the plaintiff had sustained injuries during a dog bite incident caused by the negligence
The court‘s memorandum of decision describes the undisputed factual background of the plaintiff‘s appeal. Witham owned a male German Shepard named Thor, which he kept at his home in Middletown. In 2007, Petras, a municipal animal control officer for the city, investigated two biting incidents involving the dog and, pursuant to
On or about June 15, 2010, the plaintiff visited Witham at his home. At the time, his dog was tied to a cable in the yard. When the plaintiff petted the dog, it attacked and bit her.
In the present action, the plaintiff allegеd that Petras was personally responsible for the dog attack and the plaintiff‘s resulting injuries because she negligently had failed to enforce the obligations of the restraint order that she previously had issued against Witham. In addition, the plaintiff sought damages from the city on theories of vicarious liability pursuant to
The defendants’ motion for summary judgment as to all counts asserted against them maintained that the doctrine of governmental immunity barred the plaintiff‘s claims. In opposition, the plaintiff argued that the doctrine of governmental immunity does not apply to her case because the defendants’ conduct was ministerial rather than discretionary or, alternatively, that the claims were actionable under the identifiable person-imminent harm exception to the doctrine.
After hearing oral argument, the court grаnted summary judgment as to all counts against the defendants. The court concluded that the doctrine of governmental immunity was applicable because (1) Petras’ conduct as an animal control officer and the city‘s conduct in appointing
We begin with the relevant standard of review. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . A motion for summary judgment is рroperly granted if it raises at least one legally sufficient defense that would bar the plaintiff‘s claim and involves no triable issue of fact. . . . Our review of the trial court‘s decision to grant a motion for summary judgment is plenary.” (Internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn. App. 262, 266, 41 A.3d 1147 (2012). “The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law.” (Internal quotation marks omitted.) Id., 268.
To understand the context of the plaintiff‘s specific claims, it is instructive briefly to outline the doctrine of governmental immunity in Connecticut. At common law, a municipality generally was immune from liability for its tortious acts, but its agents and employees faced the same personal tort liability as private individuals. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). In the early twentieth century, our courts extended qualified immunity to municipal employees as well. Id., 166. Eventually, the personal liability of public officers acting in the scope of their office came to depend on whether the acts or omissions in question were discretionary or ministerial in nature. Id., 166–68. In 1986, our legislature enacted
Our Supreme Court recently has explained the public policy rationale for the doctrine of governmental immunity as it applies today. “Affording immunity to municipal officers performing discretionary acts serves the policy goal of avoiding expansive exposure to liability, which would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . . This is becausе society has no analogous interest in permitting
I
In this appeal, the plaintiff maintains that Petras’ failure to enforce the restraint order was actionable because her conduct was ministerial, rather than discretionary, in nature. We disagree.
“[W]hile a municipality is generally liable for the ministerial acts of its agents,
“Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint . . . [that] [t]he determination of whether an act or omission is discretionаry in nature and, thus, whether governmental immunity may be successfully invoked pursuant to . . .
Petras issued the restraint order to Witham pursuant to
The plaintiff concedes that Petras’ initial issuance of the restraint order to Witham was a discretionary act. She argues nonetheless that once Petras issued the order, she had a ministerial obligation to enforce it—namely, to ensure that the dog be neutered within 30 days, be licensed, and be kept in a pen with a secure leash rather than being tied or tethered. We disagree.
Although
Furthermore, as noted by the court, the plaintiff has failed to identify any other authority, such as a city ordinance or policy, imposing a duty on an animal control officer to enforce a restraint order in a prescribed manner. In the absence of any such authority compelling Petras to take specific actions to enforce the order, her conduct cannot be said to have been ministerial in nature.6 See Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006) (plaintiffs failed to allege that acts or omissions complained of wеre ministerial in nature because they did not allege that defendant was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to act in any prescribed manner).
The plaintiff also contends that the city‘s appointment and supervision of Petras constitutes the exercise of a ministerial function because
Accordingly, on the facts of this case, both Petras’ acts or omissions in the enforcement of the restraint order and the city‘s acts or omissions in appointing and supervising Petras were discretionary in nature. It follows that the court properly held that Petras and the city are immune from liability to the plaintiff.
II
Next, the plaintiff claims that, even if Petras’ conduct was discretionary, she is liable pursuant to the identifiable person-imminent harm exception to governmental immunity. Specifically, the plaintiff argues that this exception applies to the alleged facts because (1) Petras knew or should have known that her failure to enforce the restraint order allowed a dangerous condition to persist, (2) the geographical area of the condition was limited to Witham‘s property, and (3) Petras’ failure to act subjected the plaintiff, a specific identifiable individual, to the imminent
Our Supreme Court has recognized three exceptions to discretionary act immunity. Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006). “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.” (Internal quotation marks omitted.) Id. One of these exceptions, the so-called identifiable person-imminent harm exception,7 applies 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 . . . .” (Internal quotation marks omitted.) Id., 616.
The identifiable person-imminent harm exception has three elements: (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. “[T]he criteria of identifiable person and imminent harm must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person.” (Internal quotation marks omitted.) Cotto v. Board of Education, 294 Conn. 265, 276, 984 A.2d 58 (2009). The exception is applicable “only in the clearest cases.” Id.
In light of these governing principles, we conclude that the plaintiff does not qualify as an identifiable person under the exception. Although the identifiable person contemplated by the exception need not be a specific individual, the plaintiff must fall within a “narrowly defined identified [class] of foreseeable victims.” (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 710, 755 A.2d 317 (2000). The application of the exception to an identifiable class of victims has been exclusively reserved for schoolchildren attending public schools during sсhool hours. See Grady v. Somers, 294 Conn. 324, 352–53, 984 A.2d 684 (2009). Outside of the public school context, the only Connecticut case we have identified wherein a specific plaintiff has been held potentially to be an identifiable person for purposes of the exception involved a discrete group of men involved in a brawl in a bar parking lot. See Sestito v. Groton, 178 Conn. 520, 522–23, 423 A.2d 165 (1979);8 see also Grady v. Somers, supra, 294 Conn. 353 (discussing restrictive application of exception).
In the present case, any number of potential victims could have come into contact with the dog following Petras’ issuance of the restraint order. The exception cannot be construed so broadly as to apply to any person stepping foot onto Witham‘s property while the dog was present. See Cotto v. Board of Education, supra, 294 Conn. 279 (“[i]f the plaintiff was identifiable as a potential victim of a specific imminent harm, then so was every participant and supervisor in the Latino Youth program whо used the bathroom“).
We are likewise persuaded that the injuries suffered by the plaintiff do not qualify as imminent harm under the exception. “For [a] harm to be deemed imminent, the potential for harm must be sufficiently immediate.” Id., 276. Here, Petras issued the restraint order on June 21, 2007, and the dog bite incident occurred nearly three years later, on June 15, 2010. The type of attack that caused the injuries suffered by the plaintiff “could havе occurred at any future time or not at all.” Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989) (rejecting application of exception to claims of negligent fire inspection by city officials). Accordingly, we conclude that the plaintiff in this case cannot avail herself of the identifiable person-imminent harm exception to discretionary act immunity.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of the date of oral argument.