October 28, 2019
Recently, the Connecticut Appellate Division affirmed a trial court’s prior decision to grant summary judgment on behalf of the City of Norwich with respect to the City’s duty to remove snow. In Kusy v. City of Norwich, et al. (AC 41721), the plaintiff sought to recover damages from the defendants, the city of Norwich, its board of education and several city employees, for negligence in connection with injuries he sustained when he slipped and fell on snow and ice while delivering milk for his employer at a Norwich middle school. According to Mr. Kusy, he was delivering milk to the school in the designated delivery area when he noticed ice on the delivery ramp. He alleged that he notified the school, as well as his employer of the condition. Approximately twenty-five minutes after doing so, the plaintiff slipped and fell on the ice.
Mr. Kusy alleged that the defendants acted negligently because the school’s custodial staff had a ministerial duty to clear the snow and ice from the delivery ramp but failed to do so, and that he was a member of “a foreseeable class of identifiable victims” and was subjected to “a risk of imminent harm.” Thus, plaintiff argued, defendant’s failure to act was not protected by sovereign immunity under General Statutes § 52-557n(a)(2)(B). General Statutes § 52-557n(a)(2)(B) provides that a municipality is not liable for a negligent act which required the exercise of judgment or discretion “as an official function of the authority expressly implied or granted by law.” However, a municipality may be held liable when the act or omission is ministerial.
The trial court granted the defendants’ motion for summary judgment on the ground of government immunity, concluding that snow and ice removal is discretionary in nature as a matter of law and, thus, the city could not be held liable pursuant to General Statutes § 52-557n (a)(2)(B). The court also determined that the plaintiff was not an identifiable victim for purposes of the identifiable person-imminent harm exception to governmental immunity.
In addressing the plaintiff’s argument that snow and ice removal by a municipality is a ministerial act as a matter of law or, in the alternative, a factual question that is reserved for the jury, the Appellate Division relied on the Connecticut Supreme Court’s decision in Ventura v. East Haven, 330 Conn. 613, 199 A.3d 1 (2019). To prove an act is ministerial, “[A] plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion.” Id. at 631. Furthermore, the Court held that whether an act is ministerial is a question for the trial court as a matter of law. Id. 636-37.
The Appellate Division also relied on its own decision in Northrup v. Wikowski, 175 Conn. App. 223 where it held that evidence of a policy that states general responsibilities, without provisions that mandate a time and manner in which those responsibilities are to be executed, is insufficient to establish that an act is ministerial. Finally, the Appellate Division relied on its decision in Beach v. Regional School District Number 13, 42 Conn. App. 542., where it held that when there is no directive advising the manner in which an official is to remove snow and ice, such an act is discretionary.
While plaintiff cited Koloniak v. Board of Education, 28 Conn. App. 277, 281-82, 610 A.2d 193 (1992), where the Appellate Division held that the act of removing snow is ministerial in nature, the court in Koliniak relied on a written policy issued by the board of education. The policy in Koloniak required “all custodians…were to keep the walkways clear of snow and ice.” In the case at bar, the Mr. Kusy failed to produce a statue or directive which set forth a snow removal policy and a Norwich city official produced an affidavit asserting no such policy existed. The Appellate Division also recognized that Koloniak was superseded by Supreme Court decisions which held that a general policy -like the one in Koloniak – does not create a ministerial duty.
The plaintiff also cited to Finn v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-16-6060769-S (September 13, 2017), 2017 WL 5056259, which held that the act of snow removal is ministerial since “common sense and routine experience” provide that every landowner must remove snow and ice from a sidewalk likely to be used by a pedestrian. The Appellate Division rejected this argument, reasoning that clearing walkways of snow and ice requires the municipal officer performing the act to exercise judgment as to various factors, including the amount of snow that must accumulate before it is to be removed.
Mr. Kusy also argued that he was an identifiable victim under the “identifiable person-imminent harm exception.” The Connecticut Supreme Court has recognized an “identifiable person-imminent harm exception” to discretionary act immunity, which requires: (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 harm. Martinez v. New Haven, 328 Conn. 1, 8, 176 A.3d 531 (2018). The Supreme Court in Strycharz v. Cady added that the identifiable person exception has been narrowly construed and whether the plaintiff was compelled to be at the location where the injury occurred is a “paramount consideration” in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims. 323 Conn. 548, 575-78, 148 A.3d 1011 (2016). Strycharz added that the only identifiable class of foreseeable victims that the court ha] recognized is schoolchildren attending public schools during school hours. Id., 575-76.
Mr. Kuzy argued that he was an identifiable victim because (1) he was “contractually obligated to deliver milk to the school”; (2) he was using the access way provided to him by the school to fulfill his employer’s contractual obligation; (3) at the time of the incident, he was making a scheduled delivery as he had done twice a week for seven months prior.
The Appellate Division disagreed with Mr. Kuzy’s argument, reasoning that, unlike schoolchildren, the plaintiff was not required by law to be on school grounds, as his contractual duty did not meet the legal requirement of state statutes that require a child’s attendance at school. The court further reasoned that Mr. Kuzy’s employer could meet its contractual obligation by waiting or returning at a later time after the school had an opportunity to ensure that the delivery ramp is safe. The Appellate Division also relied on the fact that Connecticut courts have not treated other classes of individuals, apart from schoolchildren, who are present on school grounds during school hours as identifiable victims because there is always an aspect of voluntariness to their presence on school grounds. Finally, the court relied referred to prior Connecticut court decisions where even when schoolchildren are on school grounds they have not been considered identifiable victims if they are on school property as part of voluntary activities.
For more information on this topic, please contact MKC&I’s Jonathan Lee at jlee@mcgivneyandkluger.com or at (973) 822-1110.