Thivierge v. Witham ( 2014 )

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FLORENCE THIVIERGE v. RICHARD WITHAM ET AL.
(AC 35860)
DiPentima, C. J., and Bear and Peters, Js.*
Argued March 10—officially released June 10, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Morgan, J.)
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 governmental immunity shields
a municipal animal control officer from personal liabil-
ity for allegedly having failed to enforce a restraining
order issued pursuant to General Statutes § 22-358 (c).1
Holding that, under the circumstances of this case, the
officer was entitled to such immunity, the trial court
rendered a judgment in her favor. We agree and affirm
the judgment of the court.
On June 12, 2012, the plaintiff, Florence Thivierge,
filed a six count complaint against the defendants, Rich-
ard Witham, Gail Petras, and the city of Middletown
(city).2 The complaint alleged that the plaintiff had sus-
tained injuries during a dog bite incident caused by the
negligence of the defendants. In response, the defen-
dants filed a motion for summary judgment. The court
granted the defendants’ motion on the ground that the
doctrine of governmental immunity barred the claims
against them. The plaintiff has appealed.
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 § 22-358 (c), issued a restraint order against
Witham. The restraint order required that the dog: (1)
be led on a secure leash to a pen when on Witham’s
property; (2) be on a secure leash and under the control
of a responsible adult at all times when not on Witham’s
property; (3) not be tied, tethered or loose at any time;
(4) be licensed; and (5) be neutered within thirty days.
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 alleged 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 addi-
tion, the plaintiff sought damages from the city on theo-
ries of vicarious liability pursuant to General Statutes
§ 52-557n,3 indemnification pursuant to General Stat-
utes § 7-465,4 and negligence for the hiring and supervi-
sion of Petras.
The defendants’ motion for summary judgment as to
all counts asserted against them maintained that the
doctrine of governmental immunity barred the plain-
tiff’s claims. In opposition, the plaintiff argued that the
doctrine of governmental immunity does not apply to
her case because the defendants’ conduct was ministe-
rial 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 granted sum-
mary 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 and supervising her were discretionary
rather than ministerial acts, and (2) the identifiable
person-imminent harm exception did not apply. On
appeal, the plaintiff challenges the court’s conclusion
that the defendants are protected by governmental
immunity on these two grounds. We affirm the judgment
of the court.
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 properly
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.) Silb-
erstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.
App. 262, 266, 41 A.3d 1147 (2012). ‘‘The issue of govern-
mental immunity is simply a question of the existence
of a duty of care, and this court has approved the prac-
tice 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
§ 52-557n, which allows a municipality to be held liable
for the negligent acts of its employees under certain
circumstances. Conway v. Wilton, 238 Conn. 653, 672,
680 A.2d 242 (1996) (‘‘§ 52-557n, enacted as part of tort
reform in 1986 . . . was intended, in a general sense,
both to codify and to limit municipal liability’’ [citation
omitted; internal quotation marks omitted]). Under the
relevant statutory provisions, a municipality’s liability
in negligence for its employees’ acts hinges on the same
ministerial-discretionary dichotomy. General Statutes
§ 52-557n (a) (1) (A) and (2) (B); see Grignano v. Mil-
ford, 106 Conn. App. 648, 659, 943 A.2d 507 (2008).
Our Supreme Court recently has explained the public
policy rationale for the doctrine of governmental immu-
nity as it applies today. ‘‘Affording immunity to munici-
pal 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. . . . Discre-
tionary 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
because society has no analogous interest in permitting
municipal officers to exercise judgment in the perfor-
mance of ministerial acts.’’ (Citation omitted; internal
quotation marks omitted.) Edgerton v. Clinton, 311
Conn. 217, 229–30, 86 A.3d 437 (2014).
I
In this appeal, the plaintiff maintains that Petras’ fail-
ure to enforce the restraint order was actionable
because her conduct was ministerial, rather than discre-
tionary, in nature. We disagree.
‘‘[W]hile a municipality is generally liable for the min-
isterial acts of its agents, § 52-557n (a) (2) (B) explicitly
shields a municipality from liability for damages to per-
son or property caused by the negligent acts or omis-
sions which require the exercise of judgment or
discretion as an official function of the authority
expressly or impliedly granted by law. . . . The hall-
mark of a discretionary act is that it requires the exer-
cise 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.’’
(Internal quotation marks omitted.) Silberstein v. 54
Hillcrest Park Associates, LLC, supra, 135 Conn.
App. 267–68.
‘‘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 discretionary in nature and, thus, whether govern-
mental immunity may be successfully invoked pursuant
to . . . § 52-557n (a) (2) (B), turns on the character of
the act or omission complained of in the complaint.
. . . Accordingly, where it is apparent from the com-
plaint that the defendants’ allegedly negligent acts or
omissions necessarily involved the exercise of judg-
ment, and thus, necessarily were discretionary in
nature, summary judgment is proper.’’ (Internal quota-
tion marks omitted.) Id., 270.
Petras issued the restraint order to Witham pursuant
to § 22-358, which authorizes animal control officers to
investigate dog bites and to take appropriate remedial
action, including the issuance of a restraint order. Gen-
eral Statutes § 22-358 (c) (‘‘any municipal animal con-
trol officer may make any order concerning the
restraint or disposal of any biting dog . . . as the . . .
officer deems necessary’’ [emphasis added]).
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 General Statutes § 22-3315 provides for the
appointment of a municipal animal control officer ‘‘to
administer and enforce the laws relating to dogs,’’ it
does not provide any directive on how those laws are
to be enforced. Similarly, § 22-358 itself does not require
an officer to ensure that a restraint order be enforced
in any prescribed manner or at all. Although subsection
(c) of § 22-358 vests officers with the authority to seize
a dog in the event that its owner fails to comply with
a restraint order, it provides only that the officer may
seize the dog, leaving the officer’s response within his
or her discretion. See Office of Consumer Counsel v.
Dept. of Public Utility Control, 252 Conn. 115, 122, 742
A.2d 1257 (2000) (‘‘The word ‘may,’ unless the context
in which it is employed requires otherwise, ordinarily
does not connote a command. Rather, the word gener-
ally imports permissive conduct and the conferral of dis-
cretion.’’).
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 con-
trol officer to enforce a restraint order in a prescribed
manner. In the absence of any such authority compel-
ling 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 were 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 pre-
scribed manner).
The plaintiff also contends that the city’s appointment
and supervision of Petras constitutes the exercise of
a ministerial function because § 22-331 mandates the
appointment of a municipal animal control officer. The
undisputed facts of the case demonstrate that the city
has adhered to the statute by appointing Petras. The
alleged negligence on the part of the city pertains to
the manner in which it chose to comply with the man-
date and, therefore, implicates the city’s discretion. In
the absence of any authority prescribing the specific
manner in which a municipality must appoint and super-
vise an animal control officer, the city’s conduct in
doing so was not ministerial.
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 identifi-
able 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 individ-
ual, to the imminent harm of a dog attack when she
entered the property. We are not persuaded.
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 immu-
nity—to encourage municipal officers to exercise judg-
ment—has no force.’’ (Internal quotation marks
omitted.) Id. One of these exceptions, the so-called iden-
tifiable person-imminent harm exception,7 applies when
‘‘the circumstances make it apparent to the public offi-
cer 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 identifi-
able victim; and (3) a public official to whom it is appar-
ent 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 ref-
erence 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 omit-
ted.) 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 per-
son under the exception. Although the identifiable per-
son contemplated by the exception need not be a
specific individual, the plaintiff must fall within a ‘‘nar-
rowly 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 school-
children attending public schools during school 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 per-
son 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 who 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 have
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 negli-
gent fire inspection by city officials). Accordingly, we
conclude that the plaintiff in this case cannot avail
herself of the identifiable person-imminent harm excep-
tion 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.
1
General Statutes § 22-358 (c) provides in relevant part: ‘‘[A]ny municipal
animal control officer . . . may make any order concerning the restraint
or disposal of any biting dog . . . as the . . . officer deems necessary.’’
2
Witham is not a party to this appeal. Accordingly, we refer in this opinion
to Petras and the city as the defendants.
3
General Statutes § 52-557n provides in relevant part: ‘‘(a) (1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(2) Except as otherwise provided by law, a political subdivision of the state
shall not be liable for damages to person or property caused by . . . (B)
negligent acts or omissions which require the exercise of judgment or discre-
tion as an official function of the authority expressly or impliedly granted
by law. . . .’’
4
General Statutes § 7-465 provides in relevant part: ‘‘(a) Any town, city
or borough, notwithstanding any inconsistent provision of law, general,
special or local, shall pay on behalf of any employee of such municipality
. . . all sums which such employee becomes obligated to pay by reason of
the liability imposed upon such employee by law for damages awarded . . .
for physical damages to person or property, except as set forth in this
section, if the employee, at the time of the occurrence, accident, physical
injury or damages complained of, was acting in the performance of his
duties and within the scope of his employment, and if such occurrence,
accident, physical injury or damage was not the result of any wilful or
wanton act of such employee in the discharge of such duty. . . .’’
5
General Statutes § 22-331 provides in relevant part: ‘‘(a) In each munici-
pality of the state having a population of more than twenty-five thousand
. . . the chief of police, or such other appointing authority as the charter
may designate, shall, appoint a full-time municipal animal control officer
and such assistants as are deemed necessary . . . to administer and enforce
the laws relating to dogs or other domestic animals. . . .’’
6
The plaintiff relies on Soderlund v. Merrigan, 110 Conn. App. 389, 955
A.2d 107 (2008), for the proposition that the method of performing an act
can be discretionary even though the duty to perform it is ministerial. In
Soderlund, the plaintiff brought a negligence action against a police officer
and the city of Meriden for failing to remove from the statewide computer
system an arrest warrant that had been vacated by the trial court. Id., 392.
On appeal, this court determined that although the order did not specify
how the arrest warrant was to be vacated, it was nonetheless a ministerial
function as it imposed a mandatory duty that involved no exercise of judg-
ment or discretion. Id., 397. The plaintiff’s reliance is misguided, as the
present case is distinguishable in that Petras, unlike the police officer in
Soderlund, was not compelled by any authority to act.
7
Our Supreme Court determined in Grady v. Somers, 294 Conn. 324, 332,
984 A.2d 684 (2009), that the identifiable person-imminent harm exception
applies in actions brought pursuant to § 52-557n.
8
The plaintiff argues that Sestito v. Groton, supra, 178 Conn. 520 is analo-
gous to the present case. Our Supreme Court recently has explained that
Sestito was decided before the current three-pronged identifiable person-
imminent harm exception was adopted and its holding is limited to its facts,
which are readily distinguishable from those alleged by the plaintiff. See
Edgerton v. Clinton, supra, 311 Conn. 240.