Williams v. Hous. Auth. of Bridgeport , 327 Conn. 338 ( 2017 )

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WILLIAMS v. HOUSING AUTHORITY—DISSENT
McDONALD, J., with whom PALMER, J., joins, dis-
senting. The question before this court is a simple one,
but the majority does not directly answer it. Specifically,
we are asked whether a municipal defendant’s knowing
failure to conduct any fire safety code inspection of a
particular premises, despite a known statutory duty to
do so, constitutes a reckless disregard of health or
safety sufficient to waive governmental immunity pur-
suant to General Statutes § 52-557n (b) (8). Instead of
answering that question, the majority implicitly
acknowledges the inadequacy of such a claim by
answering a different question: whether a municipality’s
blanket policy not to conduct inspections of premises
to which this duty applies constitutes reckless disregard
because such a policy inevitably creates the risk of
unlikely, but potentially grave, harm to this class.1 In
so doing, the majority not only relies on a theory of the
case never advanced by the plaintiff and contradicted
by the evidence, but also adopts a novel standard of
reckless disregard that is contrary to legislative intent
and our case law. Under those circumstances, I am
compelled to dissent.
The plaintiff, Twila N.A. Williams, as administratrix
of the estates of four victims of an apartment fire,
claimed that the failure of the municipal defendants2
to conduct any fire safety code inspection of the public
housing apartment at which the fatal fire occurred,
despite knowing that it was their statutory duty to do
so and that they had not done so, was the proximate
cause of the deaths of the decedents, a mother and her
young children. The plaintiff’s theory in regard to this
claim was that, had the municipal defendants con-
ducted such an inspection, it would have revealed,
among other things, that the apartment’s smoke detec-
tors were not interconnected as required by the state
fire safety code. Although allegations that a mandated
inspection could have prevented such a loss of life might
engender feelings of anger toward the authorities in
whom such responsibilities were vested, and empathy
for the decedents’ family, our legislature has decided, as
a matter of public policy, that municipalities generally
should be immune from liability for their failure to
conduct such inspections.3 Recognizing the competing
strains on limited municipal resources, even when such
inspections are mandated by law, our legislature has
provided narrow exceptions to this immunity. A munici-
pality’s negligent failure to inspect, standing alone, is
not enough to overcome governmental immunity; the
municipality must have actual notice of a violation of
law or a hazard to health or safety, or its failure to
inspect must constitute a ‘‘reckless disregard for health
or safety under all the relevant circumstances . . . .’’
General Statutes § 52-557n (b) (8). Because the munici-
pal defendants presented uncontroverted proof that
they had no such notice, the present appeal turns on
the latter.
Under a proper view of the law and the record, the
municipal defendants were entitled to summary judg-
ment on the claim of failure to inspect, given the theory
of reckless disregard that the plaintiff advanced. The
majority’s conclusion to the contrary unfairly penalizes
the municipal defendants for failing to disprove a theory
that the plaintiff never advanced, and could not succeed
upon had she advanced such a theory in light of the
evidence before the trial court. More troubling, the
majority effectively adopts a negligence per se standard
that will likely have broad implications for every city,
town, and borough in this state.
I
I begin with the question of what the standard of
‘‘reckless disregard for health or safety under all the
relevant circumstances’’ contained in § 52-557n (b) (8)
means. The majority’s analysis of this issue is largely
framed by questions that it deems relevant to evidence
in the present case. As I explain in part II of this dis-
senting opinion, however, some of those questions are
not implicated by the evidence or the plaintiff’s theory
of the case. Nonetheless, because its analysis has far
reaching implications beyond this case, it is necessary
to address the majority’s standard in its entirety.
Although I find the majority’s standard deficient in
several significant respects, there are certain aspects of
its analysis with which I agree. For the sake of avoiding
redundancy, I acknowledge those aspects first and then
turn to the basis of my profound disagreement.
I agree with the majority that the Appellate Court
improperly interpreted the reckless disregard prong of
§ 52-557n (b) (8) to allow for recovery against a munici-
pality when the failure to conduct a fire safety code
inspection could have a ‘‘possible impact’’ on health
and safety. See Williams v. Housing Authority, 159
Conn. App. 679, 694, 124 A.3d 537 (2015). As the majority
properly notes, a possible impact standard finds no
support in our case law addressing recklessness. More
significantly, that standard contravenes the narrow con-
struction that we are bound to give § 52-557n (b) (8),
as it abrogates common-law municipal immunity. See
Ugrin v. Cheshire, 307 Conn. 364, 382, 384, 54 A.3d 532
(2012); Martel v. Metropolitan District Commission,
275 Conn. 38, 57–58, 881 A.2d 194 (2005). Because
inspections generally are mandated for the protection of
health and/or safety, a possible impact standard would
improperly afford a broad construction of the statute
allowing for recovery for any injuries arising from any
failure to inspect.
I also agree in part with the majority regarding the
proper interpretation of reckless disregard of health or
safety under § 52-557n (b) (8). Specifically, I agree that
reckless disregard of health or safety could be estab-
lished when there is a risk of life threatening injuries,
even if there is a relatively low probability of such a
danger occurring.4 I agree that fire safety code viola-
tions could contribute to such a risk, and that any rea-
sonable person charged with inspecting for such
violations; see General Statutes § 29-305; would be
aware of that fact. With respect to the probability of
such a harm occurring and the municipality’s conscious
disregard of that risk, I also agree that facts and circum-
stances that extend beyond the premises at which that
risk actually manifested may be relevant.
However, I fundamentally disagree with significant
aspects of the majority’s standard. As I explain subse-
quently in this dissenting opinion, the principal flaws in
its analysis are that the majority (1) fails to sufficiently
distinguish reckless disregard from negligence, (2) fails
to recognize that the burden of preventing the risk of
harm is an essential element of recklessness, (3) fails
to recognize that the reckless disregard prong of § 52-
557n (b) (8) generally requires proof specific to the
subject premises, and (4) improperly allows for aggre-
gation of risk based solely on the shared circumstance
of noninspection. The first two flaws relate to the
proper meaning of ‘‘reckless disregard,’’ and the latter
two relate to the proper meaning of that term ‘‘under
all the relevant circumstances.’’
I turn first to the meaning of reckless disregard. I
begin with the undisputed proposition that, although
§ 52-557n (b) (8) refers to ‘‘reckless disregard,’’ under
our law, that term is synonymous with recklessness.
See Doe v. Boy Scouts of America Corp., 323 Conn.
303, 330, 147 A.3d 104 (2016) (‘‘Wanton misconduct is
reckless misconduct. . . . It is such conduct as indi-
cates a reckless disregard of the just rights or safety
of others or of the consequences of the action.’’ [Internal
quotation marks omitted.]).
The statute provides no definition for the term, thus
suggesting that our interpretation should be guided by
the well developed body of common law using this
term. The legislative history of § 52-557n, while not par-
ticularly illuminating,5 also points us in that direction.
In clarifying the contours of the immunity afforded to
municipalities, one of the bill’s authors, Representative
Robert G. Jaekle, stated: ‘‘In law there is a distinction
between mere negligence and intentional actions. And
in between would be negligence that is just so outra-
geous that it is wilful, reckless, wanton.’’ 29 H.R. Proc.,
Pt. 16, 1986 Sess., pp. 5834–35. Representative Jaekle’s
statement is consistent with the common law. See Doe
v. Boy Scouts of America Corp., supra, 323 Conn. 330
(recklessness ‘‘is more than negligence, more than gross
negligence’’ and ‘‘[w]anton misconduct is reckless mis-
conduct’’ [internal quotation marks omitted]); Begley
v. Kohl & Madden Printing Ink Co., 157 Conn. 445,
450, 254 A.2d 907 (1969) (‘‘[t]here is a wide difference
between negligence and a reckless disregard of the
rights or safety of others’’ [internal quotation marks
omitted]).
Indeed, under the common law, recklessness is typi-
cally defined in relation to negligence, distinguished
from the latter by degree and by mental state. ‘‘Reckless-
ness requires a conscious choice of a course of action
either with knowledge of the serious danger to others
involved in it or with knowledge of facts which would
disclose this danger to any reasonable man, and the
actor must recognize that his conduct involves a risk
substantially greater . . . than that which is necessary
to make his conduct negligent. . . . [W]e have
described recklessness as a state of consciousness with
reference to the consequences of one’s acts. . . . The
state of mind amounting to recklessness may be
inferred from conduct. But, in order to infer it, there
must be something more than a failure to exercise a
reasonable degree of watchfulness to avoid danger to
others or to take reasonable precautions to avoid injury
to them. . . . It is such conduct as indicates a reckless
disregard of the just rights or safety of others or of the
consequences of the action.’’ (Internal quotation marks
omitted.) Doe v. Boy Scouts of America Corp., supra,
323 Conn. 330. ‘‘[R]eckless conduct tends to take on
the aspect of highly unreasonable conduct, involving
an extreme departure from ordinary care, in a situation
where a high degree of danger is apparent.’’ (Internal
quotation marks omitted.) Matthiessen v. Vanech, 266
Conn. 822, 833, 836 A.2d 394 (2003).
The key distinctions between negligence and reck-
lessness, then, are the extreme departure from ordinary
care and the conscious choice of this course of action
with knowledge of the serious risk of harm involved.
See 2 Restatement (Second), Torts § 500, comment (g),
p. 590 (1965). With respect to the magnitude of risk,
the Restatement (Second) explains: ‘‘The difference
between reckless misconduct and conduct involving
only such a quantum of risk as is necessary to make it
negligent is a difference in the degree of the risk, but
this difference of degree is so marked as to amount
substantially to a difference in kind.’’ (Emphasis
added.) Id.
Typically, recklessness has been cast in terms of
requiring a high probability of a serious harm. See, e.g.,
Doe v. Boy Scouts of America Corp., supra, 323 Conn.
330 (serious danger and risk substantially greater than
negligence); Doe v. Hartford Roman Catholic Diocesan
Corp., 317 Conn. 357, 382, 119 A.3d 462 (2015) (same);
Matthiessen v. Vanech, supra, 266 Conn. 832–33 (same);
Frillici v. Westport, 264 Conn. 266, 277–78, 823 A.2d
1172 (2003) (same); Craig v. Driscoll, 262 Conn. 312,
342–43, 813 A.2d 1003 (2003) (same); Brock v. Waldron,
127 Conn. 79, 84, 14 A.2d 713 (1940) (‘‘high degree of
probability that substantial harm will result’’ [internal
quotation marks omitted]).
Although this court has not previously considered
recklessness in the context of a violation of a statute,
the Restatement (Second) of Torts and its predecessor
similarly have indicated that a high probability of seri-
ous harm would be required to establish recklessness
in this context. See 2 Restatement (Second), supra,
comment (e), p. 589 (‘‘[i]n order that the breach of the
statute constitute reckless disregard for the safety of
those for whose protection it is enacted, the statute
must not only be intentionally violated, but the precau-
tions required must be such that their omission will be
recognized as involving a high degree of probability
that serious harm will result’’); 2 Restatement (First),
Torts § 500, comment (e), p. 1295 (1934) (substantially
same language). In applying this standard, courts have
looked not only to the general risk associated with a
violation of the statute, but also to facts known to the
actor that would make the actor aware of an increased
risk of harm under the specific circumstances that gave
rise to the plaintiff’s injury. See, e.g., Boyd v. National
Railroad Passenger Corp., 446 Mass. 540, 552-53, 845
N.E.2d 356 (2006) (applying Restatement [Second] defi-
nition of recklessness and concluding that there was
genuine issue of material fact whether failure of train
operator to blow horn at crossing and obey speed limit,
as mandated by statute, was reckless because train
operator knew that individuals had been crossing spe-
cific tracks where injuries occurred and death was near
certainty to result should accident occur).
Other sources have, as the majority has indicated,
collectively characterized the likelihood and gravity of
harm, using terms such as ‘‘great danger,’’ which leave
open the possibility that it may be reckless to disregard
a less probable risk of grave injury. See 1 Restatement
(Third), Torts, Liability for Physical and Emotional
Harm, § 2, comment (d), p. 20 (2010) (‘‘[t]he ‘magnitude’
of the risk includes both the likelihood of a harm-caus-
ing incident and the severity of the harm that may
ensue’’); W. Keeton et al., Prosser and Keaton on the
Law of Torts (5th Ed. 1984) § 34, p. 214 (reckless con-
duct must be more than ‘‘even . . . an intentional omis-
sion to perform a statutory duty, except in those cases
where a reasonable person in the actor’s place would
have been aware of great danger, and proceeding in
the face of it is so entirely unreasonable as to amount
to aggravated negligence’’ [footnote omitted]); see also
Frillici v. Westport, supra, 264 Conn. 278 (‘‘extreme
departure from ordinary care . . . in a situation where
a high degree of danger is apparent’’ [emphasis added;
internal quotation marks omitted]). Consistent with this
view, the Restatement (Third) of Torts no longer distin-
guishes a violation of a statute as a specific circum-
stance under which recklessness requires a high
probability of serious harm. See 1 Restatement (Third),
supra, § 2.
Nothing in these authorities, however, can be read to
abandon the fundamental principle that more egregious
conduct is required to distinguish reckless disregard
from negligence. A contrary conclusion would effec-
tively result in negligence per se for any violation of a
statute intended to safeguard against the possibility of
grave harm.6
Accordingly, it is important to point out that we have
recognized that the failure to protect against a low
probability of grave harm may constitute negligence,
as long as the burden of prevention is not substantial
in relation to that risk. See Munn v. Hotchkiss School,
326 Conn. 540, 568, 165 A.3d 1167 (2017) (‘‘Although
. . . tick-borne encephalitis is not a widespread illness,
when it strikes, the results can be devastating. At the
same time, some of the measures one might take to
protect against it are simple and straightforward
. . . .’’).7 This balancing test has a long and venerable
history. See id., 568–69 (‘‘The case thus brings to mind
the risk-benefit calculus articulated long ago by Judge
Learned Hand to determine whether, in given circum-
stances, reasonable care has been exercised. Pursuant
to that formulation, both the likelihood and the gravity
of potential harm should be taken into consideration,
as well as the burden of taking adequate precautions
to prevent that harm from occurring. See United States
v. Carroll Towing Co., 159 F.2d 169, 173 [2d Cir. 1947].
In short, ‘[g]iven a balancing approach to negligence,
even if the likelihood of harm stemming from the actor’s
conduct is small, the actor can be negligent if the sever-
ity of the possible harm is great and the burden of
precautions is limited.’ 1 Restatement [Third], supra,
§ 3, comment (f), p. 31; see also 3 F. Harper et al.,
Harper, James & Grey on Torts [3d Ed. 2007] § 16.9 [2],
p. 523 [‘[i]f the harm that may be foreseen is great,
conduct that threatens it may be negligent even though
the statistical probability of its happening is very slight
indeed’]; 3 F. Harper et al., supra, § 16.9 [3], p. 528 [‘the
law imposes liability for failure to take precautions,
even against remote risks, if the cost of the precautions
would be relatively low’].’’ [Emphasis omitted.]).
Because the deviation from the standard of care dis-
tinguishing negligence from recklessness is, in part, a
matter of degree, it follows that a low risk of grave
harm theoretically could also constitute recklessness.
To constitute the requisite extreme departure from ordi-
nary care, however, the imbalance between the magni-
tude of the danger and the burden of prevention would
have to be significantly greater than the imbalance that
gives rise to a duty of care for negligence. Although
this court has not adopted the Restatement (Third)
definition of recklessness,8 it is nonetheless instructive
on this point: ‘‘A person acts recklessly in engaging in
conduct if . . . the person knows of the risk of harm
created by the conduct or knows facts that make the
risk obvious to another in the person’s situation, and
. . . the precaution that would eliminate or reduce the
risk involves burdens that are so slight relative to the
magnitude of the risk as to render the person’s failure
to adopt the precaution a demonstration of the person’s
indifference to the risk.’’ 1 Restatement (Third), supra,
§ 2, pp. 16–17. The comments to this section elaborate
on this balancing. ‘‘The ‘magnitude’ of the risk includes
both the likelihood of a harm-causing incident and the
severity of the harm that may ensue. . . . When . . .
the imbalance between the magnitude of the foresee-
able risk and the burden of precaution becomes suffi-
ciently large, that imbalance indicates that the actor’s
conduct is substantially worse than ordinary negli-
gence.’’ Id., comment (d), pp. 20–21. ‘‘In most cases, a
finding of recklessness is not appropriate unless the
prospect of injury is especially high; but a requirement
that harm be ‘probable’ should not be a rigid prerequi-
site for a finding of recklessness.§ Id., comment (e),
p. 21.
When, as here, the preventative act is mandated by
statute, that mandate is evidence that the legislature
viewed the burden of performing the mandated act as
proportionately less than the general risk of harm it was
intended to protect against. Nonetheless, such evidence
does not conclusively establish that failure to assume
that burden was the extreme departure from ordinary
care necessary to render that failure reckless rather
than merely negligent. Matthiessen v. Vanech, supra,
266 Conn. 833–34. To hold otherwise would replace the
standard for recklessness with one of negligence per
se whenever there is a knowing departure from the
statutory mandate to inspect. Thus, a plaintiff must
plead and prove more than a knowing statutory viola-
tion to prevail on a claim of recklessness; the plaintiff
must present evidence from which a trier of fact could
conclude that the magnitude of the risk of harm arising
from the defendant’s failure to perform the mandated
act was so great in relation to the burden of performing,
under the circumstances of the plaintiff’s injury, that it
constituted an extreme departure from ordinary care
when the defendant failed to abide by the statute despite
knowing the risk that would result from such failure.
Should a defendant present competent evidence to dem-
onstrate that the burden of performing the mandated
act was great in relation to the magnitude of the danger
the statute was intended to prevent, such evidence nec-
essarily would bear on that question, as such evidence
would be relevant to determine whether the failure to
perform the duty was a conscious choice to ignore the
risk of harm posed by such failure. See 1 Restatement
(Third), supra, § 2, comment (d), p. 20. Whether the
imbalance between the burden of precaution and the
magnitude of the foreseeable risk in a particular case
is sufficiently great to constitute recklessness, rather
than ordinary negligence, would generally be a question
of fact for the trier. Brock v. Waldron, supra, 127
Conn. 83.
A comparison of these principles with the majority’s
opinion reveals several defects in its analysis. First,
the majority fails to sufficiently distinguish reckless
disregard from negligence. The majority agrees with
the plaintiff that ‘‘it may be reckless to disregard a grave
risk . . . even if it is relatively uncommon, and also
that the risk involved can be a generalized one that is
not specific to the premises in question,’’ and further
concludes that ‘‘a municipal actor may demonstrate
reckless disregard for health or safety when it is clear
that the failure to inspect may result in a catastrophic
harm, albeit not a likely one.’’ Nothing in these state-
ments accounts for the greater magnitude of risk neces-
sary to distinguish recklessness from negligence. Under
the majority’s articulation of reckless disregard, it
would always be reckless to fail to perform a health or
safety inspection because such inspections are intended
to prevent not only harms of lesser consequence but
also grave, but unlikely, harms.
The examples cited by the majority of circumstances
under which they claim it would be per se reckless to
fail to perform an inspection intended to prevent a
grave, but unlikely, harm are materially distinguishable.
The failure of safety equipment at a nuclear power plant
or on a passenger airplane will almost certainly lead
to catastrophic loss of human life should conditions
trigger the operation of such equipment. Cf. Boyd v.
National Railroad Passenger Corp., supra, 446 Mass.
552–53 (deeming it significant for purposes of reckless-
ness analysis that, if moving train struck pedestrian at
railroad crossing due to failure to obey safety require-
ments designed to prevent such accidents, catastrophic
injury or death would be near certainty). Moreover,
should nuclear or aeronautical safeguards fail, there
would be no means to protect oneself from the harm.
In contrast, although the failure of fire safety measures
could potentially result in catastrophic harm, in many
cases far less serious harm will result and other means
may exist to protect oneself from the harm. For exam-
ple, a fire may occur when a building is unoccupied,
with damage to property only. A building without func-
tioning smoke detectors may be occupied but the resi-
dent may discover and extinguish the fire, or escape
the fire, before the resident is seriously harmed. Thus,
even accepting the majority’s proposition that the fail-
ure to conduct certain kinds of safety inspections could
be per se reckless—a proposition for which it cites
no authority—the failure to conduct a fire safety code
inspection is not on par with those circumstances.
Second, rather than requiring the jury to balance the
magnitude of the danger against the burden of inspec-
tion, the majority relegates the burden of inspection to
an optional consideration, one factor among many that
a jury may consider in determining whether failure to
inspect was in reckless disregard of health or safety
under all the relevant circumstances. Even under a neg-
ligence standard, failure to inspect would only be negli-
gent if the burden to inspect was less than the
magnitude of the danger. See Munn v. Hotchkiss School,
supra, 326 Conn. 568 (no requirement to take every
measure to prevent harm, jury could have found several
simple measures to be sufficient); see also Considine
v. Waterbury, 279 Conn. 830, 868 n.20, 905 A.2d 70
(2006). For conduct, including a failure to inspect, to
be reckless, the departure from ordinary care must be
extreme. Matthiessen v. Vanech, supra, 266 Conn. 833–
34. Evidence of the burden of inspection would be
essential to the jury’s determination of whether the
defendant’s failure to inspect constituted such an
extreme departure and reflected a conscious choice to
ignore the risk of harm arising from failure to inspect.
By failing to require a balancing of the likelihood and
degree of harm that may arise from failure to perform
a fire safety code inspection against the burden of per-
forming such inspection, the majority effectively
imposes a lesser standard than that which would be
required to establish negligence.9
Having explained why the majority’s interpretation
of ‘‘reckless disregard’’ falls short of the mark, I turn
to my concerns with the majority’s analysis of that
phrase as it relates to ‘‘under all the relevant circum-
stances.’’ As previously indicated, § 52-557n (b) (8) sets
forth two circumstances under which a failure to
inspect could give rise to municipal liability: notice of
a violation of law or hazard, or reckless disregard under
all the relevant circumstances.
The majority concludes that the statute’s inclusion
of the modifying phrase ‘‘under all the relevant circum-
stances’’; (emphasis added); suggests that we are to
view the exception through a broad lens. The majority
then hypothesizes a host of relevant circumstances,
principally focused on the inspection duty itself—
whether it is mandated, the nature of harm that it is
intended to prevent, how frequently it is to be con-
ducted, etc.—and the execution of that duty generally.
There are at least three problems with the majority’s
construction.
First, the majority applies a broad lens when we are
bound by a rule of strict construction. See Ugrin v.
Cheshire, supra, 307 Conn. 382, 384; Martel v. Metropol-
itan District Commission, supra, 275 Conn. 57–58. The
word ‘‘all’’ is not clear evidence to the contrary, as it
logically does not expand the scope of the statutory
waiver. Although we generally do not read a statute to
render a word superfluous; Lopa v. Brinker Interna-
tional, Inc., 296 Conn. 426, 433, 994 A.2d 1265 (2010);
the statute’s meaning would be the same without it. Any
circumstance that is ‘‘relevant’’ to reckless disregard of
health or safety must be considered.
Second, the majority fails to consider evidence that
the requisite relevant circumstances for reckless disre-
gard, like the actual notice prong, are those circum-
stances that increase the risk to health or safety at the
subject premises. It cannot reasonably be disputed that
the actual notice prong is directed at conditions existing
at the subject premises, despite no express reference
to such premises. Construing the reckless disregard
prong similarly renders the two prongs more internally
consistent. See Indian Spring Land Co. v. Inland Wet-
lands & Watercourses Agency, 322 Conn. 1, 18, 145
A.3d 851 (2016) (noting preference for construction that
renders statute internally consistent). Such parity of
construction also adheres more consistently to the two
prongs of common-law recklessness, which require
either knowledge of the risk that manifested or knowl-
edge of facts that would give notice of such a risk. See
2 Restatement (Second), supra, § 500. To the extent that
the majority appears to assume that such a construction
would conflate the reckless disregard prong of § 52-
557n (b) (8) with the notice of a violation of law or
hazard prong of the statute, that is clearly not the case.
Examples of circumstances that would not require
notice of a violation or hazard but would be relevant
to reckless disregard might include a defendant’s
knowledge of a history of code violations in the subject
property or in properties owned or managed by the
same person(s) that own or manage the subject prop-
erty, a building’s design or materials that could exacer-
bate the risk of harm should a fire occur or increase
the risk of a fire, or conditions that would make it more
difficult for firefighters to respond to a fire at the subject
premises.10 Certainly, facts relating to circumstances
beyond the subject premises may be relevant to a defen-
dant’s knowledge of the risk from failure to inspect,
the burden of inspecting the subject premises, and, thus,
whether the failure to inspect was the result of the
defendant’s conscious choice to disregard the magni-
tude of the risk of harm arising from failure to inspect
the subject premises. Yet these facts are only relevant
because they illuminate the defendant’s actions in rela-
tion to the risk of harm from failure to inspect the
subject premises.
Third, in addition to ignoring the relevant circum-
stances most consistent with the statute and the defini-
tion of recklessness, the majority’s focus on the general
duty to inspect has other shortcomings. The majority
hypothesizes that ‘‘when the failure to inspect is not an
isolated incident but results from a general policy of
not conducting inspections of a certain type, the jury
reasonably may consider whether the policy itself indi-
cates a reckless disregard for public health or safety.’’
In the discussion that follows, the majority appears to
effectively equate the known failure to inspect certain
premises with a general policy of not performing those
inspections. As a legal matter, this standard either
improperly ignores the requirement that there must be
knowledge of facts relating to the risk for there to be
reckless disregard or improperly suggests that mere
knowledge of nonperformance of inspection evidences
such recklessness. As a factual matter, as explained in
part II of this dissenting opinion, a failure to inspect
may not have resulted from a decision not to inspect
or a decision to ignore the risk of not inspecting. Even
if a municipality has decided not to inspect a broad
range of premises, such a decision may not be based
on a ‘‘general policy,’’ but different circumstances par-
ticular to subsets of the broad class. Thus, any aggrega-
tion of inspection practices, or aggregation of risks and
burdens attendant to the failure to conduct mandatory
inspections, should be based on proof of an actual ‘‘pol-
icy’’ of noninspection, as well as sufficiently similar
conditions to the subject premises to establish a
related class.
In sum, the majority’s construction of the reckless
disregard prong of § 52-557n (b) (8) is fatally flawed in
numerous respects. Instead of the majority’s approach,
I would construe the statute to mean that the failure
to perform a mandatory fire safety code inspection is
in reckless disregard of health or safety when the munic-
ipal actor consciously chooses to ignore the risk of
serious harm from failing to perform the inspection,
as evidenced by an extreme imbalance between the
magnitude of the danger and the burden of performing
the inspection under all the relevant circumstances.
Where the likelihood of a grave harm is low, the burden
of inspection must be slight in comparison to establish
a conscious disregard of health or safety. The circum-
stances relevant to conscious disregard focus on those
facts known to the municipal actor that establish a
greater likelihood or severity of harm at the subject
premises of the type that the inspection is generally
intended to protect against.
II
Having elaborated on the proper legal standard, I turn
to the question of whether the municipal defendants
proved that there was no material issue of fact as to
whether the plaintiff could meet this standard. I first
explain how the majority improperly analyzes this ques-
tion under a theory of the case that the plaintiff never
advanced and that the evidence does not support. I then
explain why, in light of the plaintiff’s actual theories and
the evidence, the municipal defendants were entitled
to summary judgment.
In resolving that inquiry to the contrary, the majority
determines that the plaintiff proffered evidence to cre-
ate a material issue of fact as to whether the municipal
defendants had a policy not to conduct any of the statu-
torily mandated fire safety code inspections of resi-
dences for three or more families, or a policy not to
inspect public housing. However, any fair reading of the
operative (fourth amended) complaint, the plaintiff’s
opposition to the motion for summary judgment, her
supplemental opposition, the trial court’s decision on
the motion, the plaintiff’s motion for reconsideration
of that decision, the plaintiff’s briefs to the Appellate
Court, and the Appellate Court’s decision manifestly
demonstrates that the plaintiff advanced no such the-
ory.11 With respect to the duty to inspect, all of these
documents clearly reflect that the plaintiff advanced
two, and only two, theories: the municipal defendants
either knew of fire safety code violations or hazards in
the subject premises or they had recklessly disregarded
a risk to health and safety from such violations or haz-
ards by failing to conduct ‘‘any’’ inspection of the prem-
ises despite a known, statutory duty to do so annually.12
The plaintiff’s motion for reconsideration, the only sub-
mission to the trial court that made any reference to
the municipal defendants’ conduct regarding citywide
inspections, used that evidence to demonstrate the
municipal defendants’ knowledge of their duty to
inspect the subject premises.13
The plaintiff’s focus on the subject premises with
regard to the duty to inspect was not inadvertent, as
she clearly was aware of the distinction between a
theory specific to the subject premises and one gener-
ally applicable to citywide practices and policies.
Although fifteen of the plaintiff’s seventeen allegations
of wrongful conduct against the municipal defendants
were specific to the subject premises, including failure
to inspect, two allegations were made with regard to
citywide practices—failure to provide fire safety train-
ing for all of the city of Bridgeport’s residents (including
the decedents) and failure to formulate fire safety plans
for all residents. The municipal defendants proffered
evidence to disprove those two general theories, the
plaintiff offered none to rebut that evidence, and the
trial court’s conclusions as to those allegations are not
before us.14 It is unsurprising, therefore, that the munici-
pal defendants did not submit any evidence regarding
citywide inspection practices in support of their motion
for summary judgment, and that neither the trial court
nor the Appellate Court discussed such a theory in their
respective decisions.
It is true that city inspection practices were the sub-
ject of one of several lines of inquiry in a deposition
submitted to the trial court in support of the plaintiff’s
motion for reconsideration of the decision granting
summary judgment. The majority relies heavily on this
deposition of Fire Chief Brian Rooney. However, almost
all of the testimony cited by the majority is absent from
any of the plaintiff’s submissions to any court, including
ours, and the lone exception cited in those submissions
was not cited for the theory advanced by the majority.
See footnote 13 of this dissenting opinion. Although the
municipal defendants’ counsel conceded at oral argu-
ment before this court that we are not limited to consid-
eration of the portions of the deposition cited by the
plaintiff in her motion for reconsideration, it is mani-
festly clear that this concession was made in connection
with any such evidence that was related to the plaintiff’s
theory of the case on which the municipal defendants
had sought summary judgment.
I am unaware of any authority that would allow a
reviewing court to rely on such evidence to craft a
theory of liability that the plaintiff never advanced in
any submission to the court.15 On the contrary, ‘‘[t]he
pleadings determine which facts are relevant and frame
the issues for summary judgment proceedings or for
trial. . . . The principle that a plaintiff may rely only
[on] what he has alleged is basic. . . . It is fundamental
in our law that the right of a plaintiff to recover is
limited to the allegations [in] his complaint.’’ (Citations
omitted; internal quotation marks omitted.) White v.
Mazda Motor of America, Inc., 313 Conn. 610, 621,
99 A.3d 1079 (2014). ‘‘[A] court’s ability to review the
evidence, in order to determine whether a genuine issue
of fact exists, is not limited to the pleadings. As our
law makes clear, however, a plaintiff’s theories of liabil-
ity, and the issues to be tried, are limited to the allega-
tions [in the] complaint.’’ (Internal quotation marks
omitted.) Id., 622 n.5; id. (rejecting dissent’s assertion in
White that court may look beyond pleadings to evidence
submitted in opposition to summary judgment for theo-
ries of liability not pleaded). The majority’s attempt to
distinguish White from the present case is unconvincing
because here the plaintiff has never advanced the theory
of liability advanced by the majority in any court. The
majority’s reliance on an objection to an interrogatory
and a phrase and a citation taken out of context from
the trial court’s memorandum of decision granting sum-
mary judgment are not compelling evidence to the
contrary.
Moreover, the majority’s emphasis on Rooney’s state-
ments regarding his lack of knowledge about fire
inspection techniques, equipment, and procedures, as
evidence of the municipal defendants’ reckless disre-
gard, demonstrates its fundamental misapprehension
regarding the distinct roles and responsibilities of a
municipal fire chief and a municipal fire marshal. The
majority apparently assumes that Rooney, as fire chief,
was the supervisor of the fire marshal, and charged
with the knowledge of a fire marshal, and, therefore,
his understanding of the fire safety code and how it
relates to the subject premises can be imputed to the
fire marshal. The majority apparently is unaware that,
in accordance with long established law, Rooney, as
fire chief, had no statutory authority, much less a duty,
to conduct any fire inspections. Instead, that distinct
statutory duty rests solely with the fire marshal and
specially trained fire inspectors under the marshal’s
direction and control. See General Statutes § 29-305.
Moreover, a municipal fire chief does not have the
authority to appoint the local fire marshal, to establish
the qualifications of the individual appointed as fire
marshal, to determine whether the fire marshal can be
certified to meet those qualifications, to investigate the
fire marshal for negligent or incompetent performance
of his duties, or dismiss the fire marshal from his posi-
tion.16 Such authority rests squarely with the state fire
marshal and/or the state’s Codes and Standards Com-
mittee; see General Statutes § 29-251; and, although the
authority to appoint or terminate a local fire marshal
may be delegated by the state fire marshal to a munici-
pality, that does not mean that the municipal fire chief
has that authority. See General Statutes §§ 29-297, 29-
298, 29-298b, and 29-299.
Indeed, in its decision on both the municipal defen-
dants’ motion to strike and motion for summary judg-
ment, the trial court recognized that the duty to conduct
fire safety code inspections under § 29-305 is applicable
only to local fire marshals, and, as a consequence, was
inapplicable to Rooney. The court denied the motion
to strike count three, which was the sole count brought
against Rooney, only because that count also was
brought against the fire marshal and thus was legally
sufficient on that basis.17
Putting aside the aforementioned colossal impedi-
ments, the evidence submitted to the trial court in con-
nection with the motion for summary judgment and
the motion for reconsideration does not support the
majority’s newly minted theory that the municipal
defendants had a ‘‘policy’’ of not inspecting any resi-
dences occupied by three of more families prior to the
2009 fire. The evidence also does not establish, or even
leave open the possibility, that the municipal defen-
dants conducted no such inspections and deliberately
chose not to do so. Rather, uncontroverted evidence
established that the municipal defendants principally
conducted inspections of properties against which com-
plaints had been lodged, and, after a 2005 fire, they
assigned streets with clusters of multifamily residences
to fire inspectors to inspect; they terminated several
such fire inspectors, prior to the 2009 subject fire, for
failing to adequately perform their inspection duties.
Although there is some evidence that, prior to 2009, the
fire marshal was not routinely conducting inspections
of all public housing units, the housing authority was
conducting some form of inspection at that time and
the fire marshal was conducting inspections of public
housing units if there had been a complaint. Therefore,
the evidence does not support the existence of a policy
of not performing any inspections of public housing
units either. 18 Thus, there is simply no basis to conclude
that the plaintiff sufficiently rebutted the municipal
defendants’ evidence to defeat their motion for sum-
mary judgment on the basis of any general policy of non-
inspection.
Therefore, I turn to the theories that the plaintiff
did advance. Insofar as the plaintiff alleged that the
municipal defendants knew about fire safety code viola-
tions in the subject apartment and building, the munici-
pal defendants proffered affidavits from Fire Marshal
William Cosgrove and Rooney, attesting that they had
no such notice. The plaintiff did not proffer evidence in
rebuttal. Consequently, the Appellate Court concluded
that she had abandoned that theory on appeal. See
Williams v. Housing Authority, supra, 159 Conn. App.
691 n.11. Insofar as the plaintiff alleged that the munici-
pal defendants had a duty to inspect the subject prem-
ises and knew that they personally had not fulfilled that
duty, the municipal defendants effectively conceded
those facts to be true in arguments on the plaintiff’s
motion for reconsideration. However, such a theory
is not a legally sufficient basis to establish that the
municipal defendants acted in reckless disregard of
health and safety, even if conditions in the premises
did not conform to the fire safety code, a fact on which
there was conflicting evidence. The plaintiff has
advanced no theory and presented no evidence that
establishes that the risk of harm arising from failure to
inspect the subject premises was any greater than the
risk of harm arising from failure to inspect any other
premises in the city.19 See Boyd v. National Railroad
Passenger Corp., supra, 446 Mass. 552–53 (even when
accident resulting from violation of statute would be
almost certain to cause grave harm in unlikely event
of accident, facts known to actor that increased likeli-
hood of harm at particular location critical to issue of
recklessness). If a municipal actor’s mere awareness
of the statute mandating inspection and knowing failure
to make any inspection were sufficient to constitute
reckless disregard under § 52-557n (b) (8), then any
failure to inspect would be considered reckless, and the
alternative actual notice prong would be superfluous.
More significantly, such a result would effectively ren-
der the exclusion from liability for negligent failure to
inspect illusory. The standard under such a theory
would be no different than the ‘‘possible impact’’ stan-
dard that both the majority and I have deemed
improper. Therefore, under the only theory that the
plaintiff did advance, she failed to establish a genuine
issue of material fact whether failure to inspect the
subject premises was in reckless disregard of health
or safety.
Accordingly, the trial court properly concluded that
the municipal defendants were shielded from liability
under § 52-557n (b) (8) for failure to inspect the subject
premises. Therefore, I disagree with the majority and
conclude that the Appellate Court improperly reversed
the judgment of the trial court on this ground. Because
the Appellate Court also concluded that the trial court’s
grant of summary judgment in the municipal defen-
dants’ favor as to the plaintiff’s allegations regarding
certain discretionary acts was improper; see Williams
v. Housing Authority, supra, 159 Conn. App. 702–707;
a matter that is not before us in this certified appeal,
I would reverse in part the judgment of the Appellate
Court as to the certified issue, but affirm the judgment
of the Appellate Court insofar as it relates to the identifi-
able victim/imminent harm exception to discretionary
act immunity.
I respectfully dissent.
1
More specifically, the majority characterizes the evidence as sufficient
to establish ‘‘the municipal defendants’ long-standing policy of not inspecting
any of Bridgeport’s public or three-family housing facilities for fire risks
and not educating themselves as to the adequacy of the housing authority’s
own internal inspections . . . .’’
2
The plaintiff brought the present action against the following municipal
defendants: the City of Bridgeport Fire Department, and five Bridgeport city
officials: Fire Chief Brian Rooney, Fire Marshal William Cosgrove, Mayor
William Finch, Zoning Administrator Dennis Buckley, and Building Official
Peter Paajanen. The plaintiff also named several nonmunicipal defendants
in the complaint, who are not parties to the present appeal.
3
The legislature also has determined that ‘‘[a]ny officer of a local fire
marshal’s office, if acting without malice and in good faith, shall be free
from all liability for any action or omission in the performance of his or
her official duties.’’ General Statutes § 29-298 (c).
4
I note that there is a textual argument supporting this conclusion that
is not advanced by the majority. In my view, it is significant that § 52-557
(b) (8) provides two circumstances under which liability can arise from a
municipality’s failure to conduct a mandated inspection. The first of these—
notice of a violation of law or a hazard—plainly does not require the plaintiff
to establish that the violation or hazard creates a high probability of a risk
of harm, let alone, a serious harm. Therefore, I see no reason why we are
compelled to conclude that the circumstance of reckless disregard should
not be read to impose a comparable standard of proof.
5
The majority asserts that a lower standard of recklessness than under
the common law is supported by certain legislators’ statements to the effect
that whether negligent conduct rises to the requisite level of recklessness
is an issue of fact left to the trier of fact. Although such a statement is
undoubtedly true as a general matter, it does not clarify what standard the
trier of fact would apply to determine whether the facts establish that the
municipal actor’s failure to inspect was in reckless disregard of health or
safety. Further, an element of proof that is ordinarily a question of fact
becomes a question of law when a fair and reasonable person could reach
but one conclusion. Heisinger v. Cleary, 323 Conn. 765, 781 n.18, 150 A.3d
1136 (2016).
6
A similar untenable result flows from the distinction drawn by the Appel-
late Court between the two exceptions to immunity under § 52-557n (b) (8),
one requiring awareness of a defect and the other requiring awareness of
a duty. Williams v. Housing Authority, supra, 159 Conn. App. 694 n.13.
If all that recklessness required was knowledge of a statutory duty then
recklessness would be synonymous with negligence per se. As I explain
later in this dissenting opinion, the reckless disregard exception to immunity
can be distinguished from the actual notice exception in that the former
involves awareness of a substantial risk.
7
Specifically, ‘‘[a]s a result of contracting tick-borne encephalitis, the
plaintiff suffered permanent brain damage that has impacted severely the
course of her life.’’ Munn v. Hotchkiss School, supra, 326 Conn. 544.
8
The majority describes the balancing approach of the Restatement
(Third) as a ‘‘novel’’ approach to recklessness. On the contrary, the
Restatement (Third) makes explicit what was previously implied in the
Restatement (Second); see J. Henderson & A. Twerski, ‘‘Intent and Reckless-
ness in Tort: The Practical Craft of Restating Law,’’ 54 Vand. L. Rev. 1133,
1151–52 (2001); is simply a ‘‘shift of focus’’; id., 1156; and does not represent
a departure from the established common law. I agree with the majority
that where there is a high probability of a grave harm it may be so obvious
that the risk of harm far outweighs the burden of prevention that it is
unnecessary to articulate the balancing of those two considerations. But
where, as here, there is an unlikely risk of grave harm, it cannot be said
that an actor was indifferent to a risk unless he was aware of the relative
ease of preventing the risk from materializing. Id., 1155–56 (‘‘even a relatively
smallish risk that materializes in harm can support a finding of recklessness
if the actor knows that the risk can be eliminated at much less cost and
goes ahead and acts with conscious indifference to the risk being thereby
gratuitously created’’).
9
In this context, the burden may best be understood as ‘‘[t]he interest
that must be sacrificed to avoid the risk.’’ 3 F. Harper et al., supra, § 16.9
(3), p. 524. Further, evidence of the ability of other municipalities to perform
similar inspections would not preclude a finder of fact from concluding that
the municipal defendants were not reckless in failing to do the same. Id.,
§ 16.9 (3), p. 533 (‘‘[t]he same risk, furthermore, may be avoidable at different
sacrifices or other costs by different actors, and the reasonableness or
unreasonableness of a failure to avoid that risk may vary correspondingly
among the actors’’). The majority equates a policy of not inspecting with a
purpose of saving resources and suggests that a trier of fact could weigh
that policy against the aggregate risks of failing to inspect premises subject
to the policy. This reasoning misses the mark on several fronts. A policy
of not inspecting certain types of premises may not be motivated in any
way, or even primarily, by monetary considerations. The balancing test does
not weigh the decision not to inspect against the magnitude of the risk; it
weighs the burden of performing inspections of the premises subject to the
policy against the magnitude of the risk of not performing that duty. See 1
Restatement (Third), supra, § 2.
10
A recent tragic fire provides examples of many of these circumstances.
On June 14, 2017, a fire engulfed Grenfell Tower, a west London residential
tower block, resulting in an estimated eighty deaths, numerous injuries, and
the destruction of more than 150 residences. See BBC News, ‘‘London Fire:
What Happened at Grenfell Tower?’’ (July 19, 2017), available at http://
www.bbc.com/news/uk-england-london-40272168 (last visited December 7,
2017). Firefighters had equipment that only was able to reach the twelfth
floor of the twenty-four story tower. Id. Although the fire is still under
investigation, initial reports indicate that flammable cladding used on the
building during a recent renovation led to the rapid spread of the fire. Id.
Fire crews noted that low water pressure, radio problems, and equipment
issues also hampered fire suppression efforts. Id. Prior to the fire, there
also had been complaints that access to the site for emergency vehicles
was ‘‘ ‘severely restricted.’ ’’ Id. All of these conditions, if known to the
defendants, would be relevant to the magnitude of the danger arising from
a failure to perform fire safety inspections.
11
Although the municipal defendants did not file a special defense of
governmental immunity, the plaintiff had ample notice that the municipal
defendants were asserting such a claim prior to their motion for summary
judgment. The municipal defendants twice moved to strike the counts against
them on the basis of governmental immunity. As it relates to the issue before
this court, in their second motion to strike, the municipal defendants argued
that the plaintiff had failed to sufficiently plead recklessness because she
had failed to allege that ‘‘the defendants were aware of a substantially greater
risk with respect to this specific situation.’’ In response, the plaintiff argued
that she had sufficiently pleaded recklessness because she had alleged ‘‘that
the municipal defendants KNEW that policies and/or laws were violated
and/or knew hazards to the health and safety of the decedents existed
which violations and/or hazards were causative factors in the deaths of
the decedents.’’
12
With regard to the second theory, any reasonable contextual reading
of the plaintiff’s comments emphasizing the municipal defendants’ failure
to conduct ‘‘any’’ inspections yields the conclusion that the plaintiff was
referring to their failure to conduct any sort of inspection at the subject
premises or any of the requisite annual inspections at the premises over a
period of time. The plaintiff’s brief to this court likewise focuses exclusively
on the municipal defendants’ failure to inspect the premises at issue.
13
In her motion for reconsideration to the trial court, in connection with
her argument that the evidence established that the municipal defendants
had a duty to inspect the subject premises and had not done so, the plaintiff
repeatedly referred to the their obligations with regard to ‘‘the apartment,’’
‘‘that apartment,’’ ‘‘the premises where the fire occurred,’’ ‘‘the apartment
or the building where the fire occurred,’’ ‘‘the apartment where the fire
occurred,’’ and ‘‘the P.T. Barnum Apartment Building #12, Apartment 205.’’
To make her case that the municipal defendants knew that they had not
complied with this obligation, the plaintiff asserted in the penultimate sen-
tence before her request for relief: ‘‘Finally, Fire Chief Rooney admitted in
his deposition that he was aware the city of Bridgeport did not conduct
inspections of three family residences (which would include the premises
which are the subject of the fire in the instance case) because of a claimed
lack of resources.’’ (Emphasis added.) In other words, the plaintiff asserted
that, because Rooney was aware of his obligation to inspect three family
residences, he necessarily was aware of the duty to inspect the subject
premises and the city’s failure to fulfill that duty. I do not read the plaintiff’s
motion for reconsideration to argue that Rooney admitted that the city had
conducted no inspection of any three family houses, in part because, as I
explain later in this dissenting opinion, I presume that the plaintiff was
aware that his testimony was to the contrary.
Insofar as the plaintiff cited (for the first time in her brief to this court)
Rooney’s deposition admissions regarding the fatal 2005 Iranistan Avenue
fire, she did so to demonstrate that the city ‘‘was aware of the substantial
risk to public safety by consciously failing to conduct mandatory fire inspec-
tions of residences as required by statute.’’
None of the plaintiff’s submissions to any court, ours included, advanced
the majority’s additional theory that the municipal defendants demonstrated
reckless disregard by ‘‘not educating themselves as to the adequacy of the
housing authority’s own internal inspections . . . .’’
14
To the extent that the plaintiff, for the first time, included in her brief
to the Appellate Court cases addressing the effect of a municipality’s failure
to enact policies and procedures that allegedly could have prevented the
harm, these cases were in support of the allegations related to such policies
and her theory of negligence. At no time did she connect these cases with
the allegation of the failure to inspect. The absence of those cases from
her brief to this court, in which neither her allegations of negligence nor
allegations of deficiencies regarding citywide training of residents and devel-
opment of safety plans are at issue, demonstrates the purpose of those cases.
15
The majority’s reliance on the deposition raises an additional concern.
The plaintiff deposed Rooney after the motion for summary judgment had
been submitted to the trial court for a decision. Only after the trial court
granted the municipal defendants’ motion for summary judgment did the
plaintiff submit Rooney’s deposition to the trial court, in support of her
motion for reconsideration. In order, however, for the trial court to have
considered new evidence, the plaintiff would have had to move to open the
evidence and then seek reconsideration after the evidence had been opened,
each a matter subject to its own burden of proof. The trial court conducted
a hearing on that motion, at which time the parties argued both about
whether it was proper for the trial court to consider the deposition and
about the merits of the motion in relation to the deposition evidence. The
trial court summarily denied the motion, instead of granting the motion and
denying the relief sought, which would imply that the trial court did not
reach the merits. The trial court’s summary order gave no indication of
whether it had treated the motion to reargue as both a motion to open and
a motion to reargue. The plaintiff did not seek articulation of this ruling.
Cf. Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 810, 695 A.2d 1010 (1997)
(where it is unclear on which of several bases trial court decided motion,
responsibility of appellant to secure adequate record for review). On appeal,
both parties seem to proceed from the assumption that the trial court
considered the deposition in making its ruling. Therefore, the majority deter-
mines that it properly may rely on this evidence. Nonetheless, it is unclear
whether the majority is relying on deposition testimony that was not part
of the evidence considered by the trial court in deciding the municipal
defendants’ motion for summary judgment. Although I find this potential
defect troubling, I do not reach this issue because the result would be the
same in either case. As I later explain, even if one properly could consider
the deposition testimony, which is not at all clear to me, it does not create
a genuine issue of material fact based on the theories of liability actually
raised by the plaintiff.
16
In describing the termination of several fire inspectors for failing to
conduct inspections prior to 2009, Rooney stated in his deposition that the
city had discharged those inspectors. He did not state that he personally
discharged them, presumably because he lacked the statutory authority to
do so. Rooney also discussed ‘‘supervising’’ the fire marshal division, but
principally in connection with administrative tasks, such as preparing bud-
gets, providing information to the division on upcoming events, and meeting
with the division to receive information on the status of inspections and
investigations. Significantly, when specifically asked about supervision of
the fire marshal division’s performance of inspections, Rooney clearly stated
that he was neither trained nor tasked with conducting inspections and that
he left the work of inspections to the fire marshal and his subordinates.
The plaintiff did not plead a theory of liability based upon inadequate supervi-
sion of the fire marshal division by Rooney.
17
The suggestion by the majority and the Appellate Court that the munici-
pal defendants had not distinguished themselves with regard to the allega-
tions is not only belied by the trial court’s decisions but also by the municipal
defendants’ argument in support of their motion for summary judgment in
which they asked the court to view the allegations and the record mindful
of such distinctions.
18
Insofar as the majority asserts that the municipal defendants demon-
strated a reckless disregard by ‘‘not educating themselves as to the adequacy
of the housing authority’s own internal inspections,’’ the plaintiff never
raised this claim and, even if she had, the plaintiff failed to provide evidence
that would support a conclusion that delegation of the duty to inspect
public housing, including the decedents’ apartment, to the housing authority
created such a magnitude of danger that it was in reckless disregard of
health or safety.
19
To the extent that the majority relies on the 2005 Iranistan Avenue fire
to create a genuine issue of material fact whether the municipal defendants
had notice of an elevated risk from failure to inspect the subject premises,
such reliance is misplaced. The circumstances are materially different. The
Iranistan Avenue fire involved a private multifamily residence whereas the
subject fire involved a public housing unit. Rooney testified in his deposition,
and the plaintiff presented no evidence to contradict his testimony, that the
risk of fire for private multifamily residences is greater than the risk of fire
for public housing units because of absentee landlords in the former. More
importantly, the defect identified in the Iranistan Avenue fire, namely, the
lack of any smoke detectors, was not present in the subject premises.
The uncontroverted evidence establishes that housing authority employees
inspected and repaired the smoke detectors in the subject premises one
day before the fire and that these detectors were functioning at the time
of the fire.