Williams v. Housing Authority

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TWILA WILLIAMS, ADMINISTRATRIX (ESTATE
OF TIANA N.A. BLACK), ET AL. v. HOUSING
AUTHORITY OF THE CITY OF
BRIDGEPORT ET AL.
(SC 19570)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.*
Syllabus
Pursuant to statute (§ 52-557n [b] [8]), municipalities or their employees
shall not be liable for damages resulting from, inter alia, the failure to
make an inspection of any property to determine whether the property
violates any law or contains a hazard to health or safety unless they
‘‘had notice of such a violation of law or such a hazard or unless such
failure to inspect . . . constitutes a reckless disregard for health or
safety under all relevant circumstances . . . .’’
The plaintiff, the administratrix of the estates of four family members who
died in an apartment fire in a Bridgeport public housing complex,
brought an action against the Bridgeport Fire Department and five offi-
cials of the city of Bridgeport, including the fire chief, R, alleging, inter
alia, that the decedents died as a result of the defendants’ failure to
inspect the smoke detection equipment in their apartment for compli-
ance with applicable fire safety codes and regulations. The plaintiff
specifically alleged that the defendants failed to conduct a statutorily
(§ 29-305) required annual fire safety inspection of the apartment and
that the defendants knew or should have known about and remedied
a number of asserted defects in the apartment, including the absence
of fire escapes and photoelectric smoke detectors. The defendants filed
a motion for summary judgment, claiming, with respect to their duty
to annually inspect the apartment, that they had no actual notice of
any defects or violations at the apartment and therefore that the two
exceptions to municipal immunity in § 52-557n (b) (8), actual notice and
reckless disregard for health or safety, did not apply. In her opposition
to the motion for summary judgment, the plaintiff claimed, inter alia,
that the defendants were not entitled to immunity because their failure
to conduct any inspections constituted a reckless disregard for health
or safety. The trial court granted the defendants’ motion for summary
judgment and concluded, with respect to the defendants’ failure to
inspect, that § 52-557n (b) (8) afforded them immunity from liability, as
the plaintiff had failed to establish that there was a genuine issue of
material fact with respect to either the notice exception or the reckless
disregard exception of § 52-557n (b) (8). With respect to the reckless
disregard exception, the trial court concluded that knowledge of a dan-
gerous condition was necessary to show the type of reckless conduct
necessary to defeat immunity pursuant to § 52-557n (b) (8) and that the
plaintiff’s failure to present any evidence to contradict the defendants’
attestations that they were not aware of any of the alleged violations
or fire hazards at the apartment defeated the plaintiff’s argument that
the reckless disregard exception applied. One week before the trial
court granted the defendants’ motion for summary judgment, the plaintiff
had deposed R. In her motion for reconsideration of the trial court’s
summary judgment ruling, the plaintiff stated that the basis for the
motion was R’s concession in his deposition that the fire department
was required by statute to conduct annual inspections of the apartment
but that it did not conduct the inspections due to a claimed lack of
resources. The trial court denied the motion for reconsideration and
rendered judgment for the defendants, from which the plaintiff appealed
to the Appellate Court. The Appellate Court reversed the judgment of the
trial court with respect to its determination that there was no question
of material fact as to whether the defendants were immune from liability
under § 52-557n (b) (8) for failing to inspect the apartment. The Appellate
Court concluded that, under the reckless disregard prong of § 52-557n
(b) (8), a failure to inspect constitutes a reckless disregard for health
or safety if the municipal officer is aware of the duty to inspect, recog-
nizes the possible impact on public or individual health or safety, and
makes a conscious decision not to perform that duty. On the granting
of certification, the defendants appealed to this court. Held:
1. This court determined that neither the trial court nor the Appellate Court
properly articulated the standard that governs the reckless disregard
exception to municipal immunity contained in § 52-557n (b) (8), and
concluded, on the basis of the language and legislative history of that
statute, as well as the common law, that, when a municipality’s failure
to inspect violates a statute or regulation and the municipality did not
have actual notice of a hazard or safety violation, the type of conduct
that constitutes reckless disregard is more egregious than mere negli-
gence and requires that health and safety inspectors disregard a substan-
tial risk of harm: the trier of fact ordinarily determines whether a
municipality’s failure to carry out a mandatory inspection demonstrates
a reckless disregard for health or safety under all the relevant circum-
stances, taking into consideration factors such as the nature or severity
of the threat to health or safety that the inspection was intended to
identify or thwart, whether the failure to inspect was an isolated event
or part of a policy or pattern of failing to inspect an entire class of
properties over a period of time, the availability and adequacy of alterna-
tive means of identifying and thwarting the threats at issue and the
existence of burdens associated with precautionary measures.
2. This court concluded that a jury, considering all the relevant circum-
stances, reasonably could find that the defendants’ persistent failure to
inspect the decedents’ apartment and thousands of other multifamily
units in Bridgeport in violation of their statutory duty under § 29-305
arose from and exemplified a pattern of reckless disregard for public
health or safety and created a foreseeable and substantial risk that
some tragedy of this general sort would occur, and, accordingly, the
defendants were not entitled to summary judgment on that issue: R made
numerous statements in his deposition that, although not indicating any
knowledge or awareness of specific safety violations or hazards at the
apartment prior to the fire, arguably created questions of fact as to
whether the defendants demonstrated a reckless disregard for health
or safety, including R’s statements that he was familiar with all relevant
legal and regulatory requirements but was not aware either that the
fire department was obligated to annually inspect Bridgeport’s public
housing complexes or that the fire safety code mandated certain smoke
detectors, and that the fire department lacked the resources to carry
out mandated inspections but that he did not request any additional
inspectors until four years after the fire that killed the decedents.
(Two justices dissenting in one opinion)
Argued January 19—officially released December 26, 2017
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of Fairfield,
where the court, Sommer, J., granted the motion for
summary judgment filed by the defendant Bridgeport
Fire Department et al. and rendered judgment in their
favor; thereafter, the court denied the plaintiff’s motion
for reconsideration and/or reargument and the plaintiff
appealed to the Appellate Court, Lavine, Mullins and
Borden, Js., which reversed in part the judgment of the
trial court, and the defendant Bridgeport Fire Depart-
ment et al., on the granting of certification, appealed
to this court. Affirmed.
Daniel J. Krisch, for the appellants (defendant City
of Bridgeport Fire Department et al.).
John T. Bochanis, with whom, on the brief, was
Thomas J. Weihing, for the appellee (plaintiff).
Opinion
ESPINOSA, J. This certified appeal arises out of a
tragic fire in which four residents of a Bridgeport public
housing complex—Tiana N.A. Black and her three
young children—lost their lives. The plaintiff, Twila
Williams, as administratrix of the estate of each dece-
dent,1 brought the present action against the 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—(collec-
tively, the municipal defendants) as well as various
other defendants who are not parties to the present
appeal.2 The plaintiff alleged, among other things, that
the decedents died as a result of the municipal defen-
dants’ negligent failure to inspect the smoke detection
equipment in their apartment unit for compliance with
applicable fire safety codes and regulations. The trial
court, Sommer, J., rendered summary judgment for the
municipal defendants, concluding, with respect to their
alleged failure to inspect, that Connecticut’s municipal
liability statute, General Statutes § 52-557n, afforded
them immunity from liability. The Appellate Court
reversed, concluding that a jury reasonably could find
that the conduct of the municipal defendants demon-
strated ‘‘a reckless disregard for health or safety under
all the relevant circumstances’’ and, therefore, that they
were potentially liable pursuant to § 52-557n (b) (8).3
Williams v. Housing Authority, 159 Conn. App. 679,
696, 124 A.3d 537 (2015). We affirm the judgment of
the Appellate Court.
I
FACTS AND PROCEDURAL HISTORY
The following undisputed facts and procedural his-
tory are relevant to our disposition of this appeal. On
November 13, 2009, the date on which the fire occurred,
the decedents resided in building 12, unit 205, of the
P.T. Barnum Apartments, a group of affordable housing
units owned and maintained by the Bridgeport Housing
Authority. Unit 205 was located on the second and third
floors of a three story apartment building containing
twenty residential units. The second floor of the apart-
ment contained a kitchen, a half bath, and a dining/
living room area, while the third floor housed three
bedrooms and a full bath. Unit 205 had only a single
point of ingress and egress, namely, a second floor door
that opened onto a porch and an external staircase.
Because the building lacked fire escapes, the only
means of leaving unit 205 was through that door. This
meant that an individual seeking to escape from the
bedrooms on the third floor of unit 205 during an emer-
gency had to travel down the internal staircase into the
kitchen area, and then traverse the second floor dining/
living room area to access the door. Because of frequent
false alarms caused by cooking fumes, some residents
of the P.T. Barnum Apartments were in the habit of
covering or disabling their smoke detectors.
Pursuant to General Statutes § 29-305 (b),4 the Bridge-
port fire marshal’s office is required to conduct annual
inspections of all multifamily residential units within
Bridgeport. It is undisputed that the neither the munici-
pal defendants nor their employees conducted the man-
datory inspection of unit 205 in the year prior to
November 13, 2009. Just one day before, however, on
the afternoon of November 12, two employees of the
housing authority did conduct a routine maintenance
inspection of unit 205. The lead inspector, Alexander
Guzman, stated that he is certified by the United States
Department of Housing and Urban Development to
replace smoke detector batteries and carry out health
and safety inspections of multiunit residential facilities.
In the course of inspecting unit 205, he and his assistant
tested the smoke detectors, replaced one nonfunction-
ing detector, and changed the battery in another. Guz-
man reported that all of the smoke detectors in unit
205 were functioning properly upon completion of
his inspection.
Hours later, in the early morning of Friday, November
13, a fire broke out in the kitchen of unit 205. Although
neighbors reported seeing smoke and hearing smoke
alarms prior to 12:45 a.m., they assumed that it was a
false alarm and did not report the fire via a 911 tele-
phone call until 12:56 a.m. The fire department arrived
on the scene at 1:02 a.m. Firefighters extinguished the
fire, gained entry to unit 205, and located and attempted
to resuscitate the four decedents, each of whom subse-
quently was pronounced dead at an area hospital. The
medical examiner concluded that all four had died of
smoke inhalation. In addition, Black’s blood alcohol
level was found to be 0.23 percent.
Both the fire department and the state police investi-
gated the circumstances surrounding the fire. With
respect to the cause of the fire, both agencies concluded
that it was accidental. One neighbor reported that Black
had been a heavy drinker, who often drank so much
alcohol on weekend evenings that she would pass out
on the couch and could not be wakened by her children.
That same neighbor further reported that Black’s ‘‘stove
was always very dirty, covered with grease and food.’’
Consistent with this report, fire investigators observed
a bottle of alcohol on the floor of unit 205, the remnants
of combustible packaging, snack chips, and debris piled
on the countertops adjacent to the kitchen stove, and
several layers of burned grease caked on the stove itself.
They also noted: the right rear burner of the gas stove
was found in what was believed to be the ‘‘HI’’ or ‘‘ON’’
position; burn patterns suggested that the fire had origi-
nated near that burner; there was evidence of human
activity near the stove at the time of the fire; and the
burn injuries that Black sustained indicated that she
had been in close proximity to the fire at some point,
either when it ignited or in the course of trying to
extinguish it. On the basis of these observations, investi-
gators concluded that the conflagration was accidental
and arose from a fire on the stove with human involve-
ment. Fire department investigators specifically linked
the fire to ‘‘carelessness,’’ opining that ‘‘Black’s blood
alcohol content would likely have impaired her ability
to respond appropriately to the initial alarm and to the
fire itself.’’
Investigators also concluded that the five ionization
type smoke detectors within unit 205 were operational
at the time of the fire. With respect to the deaths of
the decedents, investigators concluded that, given the
locations of the bodies within unit 205, it was likely
that all four of the decedents had been alerted to the
fire and were attempting to leave at the time they died.
Specifically, Black and Tyaisja Williams were found in
the dining room area, just a few feet from the door;
Nyaisja Williams was found on the living room floor;
and Nyshon Williams was found near a window in one
of the third floor bedrooms. Investigators concluded
that the neighbors’ delay of eleven minutes or more5 in
notifying the fire department of the fire, combined with
Black’s elevated blood alcohol content, may have con-
tributed to the four deaths.
The plaintiff commenced the present action against
the defendants. In her revised complaint, the plaintiff
alleged, among other things, that the municipal defen-
dants failed to ensure that unit 205 complied with state
building and fire safety codes, failed to remedy numer-
ous defects in unit 205, and failed to conduct an annual
fire safety inspection of unit 205 as required by § 29-
305. The plaintiff specifically alleged that the municipal
defendants knew or should have known about and rem-
edied a number of asserted defects in unit 205, including
the absence of fire escapes or other adequate means
of egress, photoelectric smoke detectors, fire alarm
systems, fire suppression systems, fire sprinklers, fire
extinguishers, and fire safety or prevention plans. She
alleged that such conduct on the part of the municipal
defendants was both negligent and reckless.
The municipal defendants moved for summary judg-
ment, claiming, among other things, that they were
immune from liability for any claims of negligence pur-
suant to § 52-557n. With respect to allegations of negli-
gence relating to discretionary conduct, the municipal
defendants relied on § 52-557n (a) (2) (B), which pro-
vides in relevant part that ‘‘a political subdivision of
the state shall not be liable for damages to person or
property caused by . . . negligent acts or omissions
which require the exercise of judgment or discretion
as an official function of the authority expressly or
impliedly granted by law.’’ With respect to allegations of
negligence relating to any nondiscretionary, ministerial
duty, such as the duty annually to inspect unit 205, the
municipal defendants relied on § 52-557n (b) (8), which
provides in relevant part that ‘‘a political subdivision
of the state or any employee, officer or agent acting
within the scope of his employment or official duties
shall not be liable for damages to person or property
resulting from . . . failure to make an inspection or
making an inadequate or negligent inspection of any
property . . . to determine whether the property com-
plies with or violates any law or contains a hazard to
health or safety, unless the political subdivision had
notice of such a violation of law or such a hazard or
unless such failure to inspect or such inadequate or
negligent inspection constitutes a reckless disregard
for health or safety under all the relevant circum-
stances . . . .’’ (Emphasis added.) The municipal
defendants further contended that they had no actual
notice of any defects or violations at unit 205 and, there-
fore, that there was no question that the two exceptions
to municipal immunity contained in § 52-557n (b) (8)—
notice of the alleged hazard or violation, and reckless
disregard for health or safety—did not apply.
In support of their motion for summary judgment, the
municipal defendants submitted affidavits from Finch,
Rooney, Cosgrove, Buckley, and Paajanen. Each affiant
attested that, prior to November 13, 2009, neither he
nor other Bridgeport employees knew of any code viola-
tion or safety hazard at unit 205. With the exception of
Cosgrove, who offered no opinion as to his office’s duty
to inspect, each affiant also attested to a belief that he
owed no duty to inspect unit 205. Rooney and Cosgrove
specifically asserted in their affidavits that they were
aware of and familiar with all the responsibilities and
duties of the fire department and fire marshal’s
office, respectively.
In her opposition to the motion for summary judg-
ment, the plaintiff argued, among other things, that the
municipal defendants’ failure to conduct any inspection
of unit 205, in alleged violation of § 29-305, constituted
the negligent breach of a ministerial duty and, therefore,
was not subject to immunity under § 52-557n (a) (2)
(B). The plaintiff further contended that the municipal
defendants were not entitled to immunity under § 52-
557n (b) (8) because both of the exceptions contained
in that subdivision allegedly applied to their conduct:
(1) they were aware of various code violations at unit
205; and (2) their failure to conduct any inspections
constituted a reckless disregard for health or safety.
In support of these contentions, however, the plaintiff
submitted only the affidavit of Mark Tebbets, an expert
on the state building code. Tebbets opined that (1) unit
205 had not been compliant with applicable building
and fire safety codes mandating the interconnection of
smoke alarms6 and the size of window openings,7 (2) the
fire department failed to conduct the required annual
inspection of unit 205 to identify those violations, and
(3) those undetected violations were causally related
to the deaths of the decedents insofar as interconnec-
tion of the alarms would have provided earlier notice
of the smoke and fire conditions in unit 205 and proper
window openings would have facilitated escape from
the fire.8
The trial court granted summary judgment in favor of
the municipal defendants. With respect to their alleged
failure to inspect unit 205, the court found that the
plaintiff had failed to establish that there was a genuine
issue of material fact as to either the notice exception
or the reckless disregard exception in § 52-557n (b) (8).
As to notice, the court observed that the plaintiff had
not presented any evidence to contradict the municipal
defendants’ attestations that they were not aware of
any of the alleged violations. As to recklessness, the
trial court characterized the law as follows: ‘‘In the
context of inspections, courts seem to agree that knowl-
edge of a dangerous condition is necessary to show the
type of reckless conduct necessary to defeat immunity
pursuant to § 52-557n (b) (8).’’ Accordingly, the court
concluded that the lack of any evidence that the munici-
pal defendants were aware of code violations or fire
hazards at unit 205 also defeated the plaintiff’s argument
that the second statutory exception applied.
The municipal defendants filed their motion for sum-
mary judgment on May 1, 2013. The plaintiff filed her
objection on May 10 of that year, and the trial court
issued its memorandum of decision on July 19, 2013,
granting summary judgment in favor of the municipal
defendants. One week before, on July 11, 2013, the
plaintiff had deposed Rooney. During the course of that
deposition, Rooney made numerous statements that,
while not indicating any knowledge or awareness of
specific code violations or safety hazards at unit 205
prior to the fire, arguably created questions of fact as
to whether the municipal defendants demonstrated
reckless disregard for the health or safety of the citizens
of Bridgeport. For example, Rooney testified that:
• Bridgeport employs only ten fire inspectors, a num-
ber that is insufficient to inspect each of the 4000 to
5000 multifamily homes located there.
• Although Rooney requested additional fire inspec-
tors in his 2013 budget, he had not requested additional
inspectors in past years’ budgets.
• Rooney previously had been named as a defendant
in a lawsuit arising from a 2005 fire at a three-family
residence located on Iranistan Avenue in which a
mother and her two children lost their lives. The plain-
tiffs in that action alleged that the fire department had
failed to inspect the property, as required by statute,
and thus had failed to identify the fact that there were
no smoke alarms present.
• Prior to that 2005 fire, Bridgeport’s fire inspectors
‘‘weren’t doing the [mandatory] inspections annually
on [Bridgeport’s more than 3000 three-family homes]
unless there was a complaint.’’ Rooney conceded: ‘‘I
don’t know what they were doing.’’ Subsequently, in
late 2007 and early 2008, all but one of Bridgeport’s
inspectors were fired for failing to carry out their
inspection duties.
• In 2007 or 2008, Rooney spoke with then Fire Mar-
shal Bruce Collins about the inspection procedure for
public housing facilities in Bridgeport. Collins informed
him that those facilities carried out their own inspec-
tions and, therefore, that the fire marshal’s office within
the fire department did not inspect them unless there
was a complaint. Rooney explained that ‘‘[w]e didn’t
have the resources to do it when we knew that the
housing authority was doing it.’’ Rooney conceded,
however, that the housing authority’s internal inspec-
tions were not being conducted by a certified fire mar-
shal—who must pass an examination and study code
enforcement at the state fire marshal school—as
required by law, and he did not know specifically what
the internal inspections entailed.
• In 2013, upon concluding that the fire department
lacked the resources to satisfy its statutory duty to
conduct a certified inspection of every multifamily resi-
dence each year, Rooney began asking his fire officers
to assist by conducting informal inspections to identify
the most glaring violations. Those officers were to com-
plete approximately 3600 inspections per year. Never-
theless, Rooney made no changes to fire department
policy with respect to inspecting public housing facili-
ties after the 2009 fire, due to an alleged lack of
resources. Specifically, as of 2013, there still was no
procedure in place to inspect the P.T. Barnum
Apartments.
• Rooney claimed that he previously was unaware
that the fire department was required by law to inspect
public housing facilities each year, but that counsel for
Bridgeport recently had made him aware of that obli-
gation.
• Rooney was not familiar with any requirement that
smoke detectors in multifamily dwelling units be inter-
connected. The fire department, with assistance from
AmeriCorps volunteers, has installed 40,000 smoke
alarms in Bridgeport, none of which was intercon-
nected.
• Rooney did not know the specific difference
between ionization and photoelectric smoke detectors.
He was not aware of the alleged benefits of photoelec-
tric detectors, and he had never considered whether
the fire department should install those detectors in
addition to or in lieu of ionization types. He also was
not familiar with breakaway windows.
• Subsequent to the 2009 fire at issue in this case,
Rooney and his staff spent several nights each week
visiting each unit in the P.T. Barnum Apartments and
checking the smoke detectors. In the course of those
visits, he discovered that many of the residents had
taken down or covered their smoke alarms in response
to previous false alarms. Rooney was able to complete
all of these visits in the course of three weeks to one
month, after which he proceeded to visit other public
housing complexes.
• Subsequent to the 2009 fire, Rooney and other town
officials formed a task force to determine what could
be done to prevent similar tragedies in the future. The
first meeting of the task force was disrupted, however,
and he did not recall that the group ever met again.9
The transcript of Rooney’s deposition was not before
the trial court at the time the court decided the motion
for summary judgment. On August 7, 2013, the plaintiff
filed a motion for reconsideration and/or reargument
of the court’s July 19 summary judgment ruling in favor
of the municipal defendants. The stated basis for the
motion was that, in his deposition, Rooney now con-
ceded that the fire department was required by statute
to conduct annual inspections of unit 205, but that the
fire department did not in fact conduct these inspec-
tions due to a claimed lack of resources.10
The municipal defendants raised both procedural and
substantive arguments in response to the plaintiff’s
motion for reconsideration and/or reargument. Proce-
durally, they argued that the motion was improper
because it did not present any newly discovered evi-
dence that could not have been included with the plain-
tiff’s initial objection. Specifically, they argued that, at
the time they sought summary judgment in May, 2013,
the action had been pending for nearly two and one-
half years, during which time the plaintiff had not even
noticed the defendants’ depositions. Substantively, they
argued that Rooney’s deposition did not afford a basis
for reconsideration because there still was no indication
that any of the municipal defendants were aware of
dangerous conditions in unit 205. After holding a hear-
ing, the trial court denied the motion for reconsidera-
tion and/or reargument without memorandum and
rendered judgment for the municipal defendants.11
The plaintiff appealed to the Appellate Court, which
reversed the judgment of the trial court with respect
to the determination that there is no question of material
fact as to whether the municipal defendants are immune
from liability under § 52-557n (b) (8) for failing to
inspect unit 205.12 Williams v. Housing Authority,
supra, 159 Conn. App. 681–82. After determining that
§ 52-557n (b) (8) is ambiguous and that the legislative
history sheds no light on the meaning of the phrase
‘‘reckless disregard for health or safety under all the
relevant circumstances,’’ the Appellate Court looked to
the common-law definition of recklessness. Williams
v. Housing Authority, supra, 692–94. The court rejected
the trial court’s interpretation, concluding that treating
the recklessness exception as imposing a notice require-
ment would conflate the two statutory exceptions—
actual notice and reckless disregard—and render the
latter superfluous. Id., 694 n.13. Instead, the Appellate
Court construed the statute as follows: ‘‘A failure to
inspect that constitutes a reckless disregard for health
or safety under § 52-557n (b) (8) [is] one in which an
individual is aware of the duty to inspect, recognizes
the possible impact on public or individual health or
safety, and makes the conscious decision not to perform
that duty.’’ (Emphasis altered.) Id., 694. Applying that
interpretation of the statute, the Appellate Court con-
cluded that a jury reasonably could find that the munici-
pal defendants’ failure to inspect unit 205 was reckless.
Specifically, the court opined that ‘‘[i]t is counterintu-
itive to an average person that a purported expert, famil-
iar with the duties and procedures of his own office,
cannot appreciate the consequences when such duties
are not carried out, especially when those duties involve
the prevention of life-threatening fires. Thus, a reason-
able juror could conclude that [the municipal defen-
dants] would appreciate the natural consequences of
their actions.’’13 Id., 696.
The municipal defendants appealed from the judg-
ment of the Appellate Court. We granted certification,
limited to the following question: ‘‘Did the Appellate
Court correctly conclude that there was a genuine issue
of material fact as to whether the [municipal] defen-
dants’ failure to inspect [unit 205] pursuant to . . .
§ 29-305 (b) constituted a ‘reckless disregard for health
or safety’ under . . . § 52-557n (b) (8)?’’ Williams v.
Housing Authority, 319 Conn. 947, 125 A.3d 528 (2015).
II
LEGAL ANALYSIS
We are in agreement with—and the parties do not
challenge—much of the Appellate Court’s legal analy-
sis. In brief, the decision of the Appellate Court cor-
rectly states the legal standards governing a motion
for summary judgment and appellate review thereof;
Williams v. Housing Authority, supra, 159 Conn. App.
688–89; determines that § 52-557n (b) (8) is ambiguous
with respect to the exception for municipal immunity
for conduct constituting ‘‘a reckless disregard for health
or safety under all the relevant circumstances’’; id.,
692–93; and, therefore, looks to external sources such
as the common law and the legislative history of the
statute to clarify the meaning of that phrase and the
standards by which it is to be applied. Id., 692–94.
The primary source of disagreement between the par-
ties is with respect to the legal standard that the Appel-
late Court ultimately adopted. The municipal defen-
dants note that, under both our common law and our
Penal Code, conduct is reckless only if it involves the
disregard of a substantial risk or high probability of
danger that is either known or so obvious that it should
be known. See General Statutes § 53a-3 (13);14 Matthies-
sen v. Vanech, 266 Conn. 822, 832–33, 836 A.2d 394
(2003). They argue that the Appellate Court applied an
anomalous definition of recklessness and set the bar too
low when it held that the reckless disregard exception
in § 52-557n (b) (8) is satisfied when public officials
merely recognize that failure to conduct a required
inspection will have a possible impact on public or
individual health or safety. See Williams v. Housing
Authority, supra, 159 Conn. App. 694, 696. Adopting this
possible impact standard, they contend, unjustifiably
waters down the concept of recklessness and places
an undue burden on overworked and underresourced
municipal employees.
For her part, the plaintiff makes little effort to defend
the Appellate Court’s novel possible impact standard,
conceding in her brief that ‘‘[r]ecklessness or w[a]nton
behavior implies a conscious disregard of a high risk,
such as embarking upon a particularly dangerous
course of action after actual warning.’’15 (Emphasis
added.) Instead, she contends that, especially in light
of the fact that the fire department’s noninspection
policy was alleged to have contributed to multiple
deaths in the 2005 Iranistan Avenue fire, the trial court
should have left to the jury the question of whether the
fire department’s ongoing failure to conduct any annual
inspections of unit 205 constituted a reckless disregard
of public health or safety.
For the reasons discussed hereinafter, we conclude
that neither of the lower courts properly articulated the
standard that governs the reckless disregard exception
contained in § 52-557n (b) (8). See part II A of this
opinion. When the proper standard is applied, we agree
with the Appellate Court that the plaintiff has created
a genuine issue of material fact as to whether the munic-
ipal defendants, in failing to inspect unit 205, exhibited
a reckless disregard for public health or safety under
all the relevant circumstances and, therefore, that the
trial court should not have granted summary judgment
on that issue. See part II B of this opinion.
A
As an initial matter, we agree with the Appellate Court
that the plain language of § 52-557n (b) (8) will not
support the trial court’s interpretation of the reckless
disregard exception. After reviewing Smart v. Corbitt,
126 Conn. App. 788, 14 A.3d 368, cert. denied, 301 Conn.
907, 19 A.3d 177 (2011), and several decisions of the
Superior Court, the trial court concluded that ‘‘[i]n the
context of inspections, courts seem to agree that knowl-
edge of a dangerous condition is necessary to show the
type of reckless conduct necessary to defeat immunity
pursuant to § 52-557n (b) (8).’’ Leaving aside the ques-
tion of whether the trial court correctly parsed the cited
case law, we note that the municipal liability statute
carves out two distinct exceptions to municipal immu-
nity for failure to inspect: when a political subdivision
has notice of a violation or hazard, and when it demon-
strates a reckless disregard for health or safety under
all the relevant circumstances. See General Statutes
§ 52-557n (b) (8). Adopting the trial court’s rule that
reckless disregard can be proven only when public offi-
cials have knowledge of a dangerous condition would
render the two exceptions essentially redundant, in vio-
lation of cardinal principles of statutory interpretation.
See, e.g., American Promotional Events, Inc. v.
Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008).
Nor are we persuaded, however, by the Appellate
Court’s alternative interpretation of the statute. Our
own analysis diverges from that of the Appellate Court
in three primary respects.
1
First, with regard to the statutory language itself, the
Appellate Court decision focuses more or less exclu-
sively on the meaning of the word ‘‘reckless’’ in § 52-
557n (b) (8) and does not address how, if at all, the
phrase ‘‘under all the relevant circumstances’’ modifies
the meaning of ‘‘a reckless disregard for health or safety
. . . .’’ See Williams v. Housing Authority, supra, 159
Conn. App. 693–95. At first blush, it may be tempting
to assume that the relevant circumstances language is
mere surplusage, as it is well established that reckless-
ness, like negligence, generally can be assessed only in
the context of particular factual circumstances. See
State v. Montanez, 219 Conn. 16, 24 n.7, 592 A.2d 149
(1991); Bowen v. Hartford Accident & Indemnity Co.,
122 Conn. 621, 624–25, 191 A. 530 (1937). With respect
to § 52-557n (b), however, we find it noteworthy that,
whereas subdivision (8) carves out an exception for
failures to inspect that constitute ‘‘a reckless disregard
for health or safety under all the relevant circum-
stances’’; (emphasis added); the immediately preceding
subdivision, which addresses municipal liability for
harms arising from the issuance or denial of licenses
and permits, contains a similar recklessness exception,
but omits the highlighted language. Section 52-557n (b)
(7) provides in relevant part that ‘‘a political subdivision
of the state or any employee, officer or agent acting
within the scope of his employment or official duties
shall not be liable for damages to person or property
resulting from . . . the issuance, denial, suspension or
revocation of, or failure or refusal to issue, deny, sus-
pend or revoke any permit, license, certificate,
approval, order or similar authorization, when such
authority is a discretionary function by law, unless such
issuance, denial, suspension or revocation or such fail-
ure or refusal constitutes a reckless disregard for health
or safety . . . .’’ (Emphasis added.) We must assume
that the legislature’s decision to include the ‘‘relevant
circumstances’’ language in subdivision (8), but to omit
it from the otherwise identical exclusion provision in
subdivision (7), was a purposeful one. See, e.g., State
v. Heredia, 310 Conn. 742, 761, 81 A.3d 1163 (2013).
Although the statute itself provides no guidance as
to the specific types of circumstances that are to be
taken into account when assessing the recklessness of
a municipality’s decision not to conduct a health or
safety inspection,16 the legislature’s use of the modifying
phrase ‘‘under all the relevant circumstances’’; (empha-
sis added) General Statutes § 52-557n (b) (8); suggests
that we are to view the exception through a broad lens.
In the context of a failure to inspect, it is reasonable
to assume that any of the following factors, among
others, may be relevant: whether the inspection is man-
dated by statute or regulation; how frequently inspec-
tions are required to be conducted; the nature and
severity of the threat to health or safety that the inspec-
tion is intended to identify or thwart; whether, and how
frequently, threats of that sort have come to pass in
the past, either at the location in question or at similar
locations; whether the premises involved featured any
unique or atypical susceptibilities to risk; the reasons
why the inspection was not conducted; whether the
failure to inspect was an isolated event or part of a
policy or pattern; the number of properties or locations
that went without inspection; whether other municipali-
ties or jurisdictions routinely neglect to carry out
inspections of the type at issue; the availability and
adequacy of alternative means of identifying and thwart-
ing the threats at issue; and whether the municipal
officials involved were aware or should have been
aware of the answers to each of these questions. As
we discuss more fully in part II B of this opinion, in
the present case, many, if not most, of these factors
would appear, on the record before us as construed in
the light most favorable to the plaintiff, to support a
potential finding that 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 demon-
strated a reckless disregard for health or safety under
the circumstances.
2
Second, we disagree with the Appellate Court’s
assessment that the legislative history of § 52-557n (b)
(8) fails to illuminate the meaning of the reckless disre-
gard exception. Williams v. Housing Authority, supra,
159 Conn. App. 693. That provision was enacted as part
of No. 86-338 of the 1986 Public Acts. It is true that, in
other contexts, we have characterized the legislative
history of § 52-557n as ‘‘worse than murky . . . .’’
(Internal quotation marks omitted.) Id., quoting San-
zone v. Board of Police Commissioners, 219 Conn. 179,
188, 592 A.2d 912 (1991). The lengthy legislative debates
do reveal, however, that the drafters of the tort reform
legislation of 1986 envisioned that the question of
whether the violation of a statutory obligation consti-
tutes reckless disregard for public health or safety for
purposes of municipal immunity ordinarily would be
one for the trier of fact. For example, when asked to
clarify how the reckless disregard standard would apply
to injuries caused by a school bus driven with tires
lacking sufficient tread, an author of the bill, Represen-
tative Robert G. Jaekle, responded: ‘‘[I]f I were the attor-
ney for the children . . . I would certainly make a case
that the driving of that school bus with tread below the
legal limit was more than mere negligence and would
probably cite some statutes or [Department of Motor
Vehicles] regulations about tread on tires as an indica-
tion that that was reckless. . . . [T]hat I believe would
at least get me into court to try that issue and see
whether I could prove how bad that negligence was
and whether that crossed the line into reckless action
on the part of the municipality.’’17 (Emphasis added.)
29 H.R. Proc., Pt. 16, 1986 Sess., pp. 5899–900; see also
id., p. 5936, remarks of Representative Robert G. Jaekle
(‘‘as in so many of these hypotheticals, much is left to
a decision of fact as to whether we are into negligence
or into wilful or wanton or reckless’’); 29 H.R. Proc., Pt.
22, 1986 Sess., pp. 8116–17, remarks of Representative
Robert G. Jaekle (suggesting that, depending on specific
facts of case, municipal inspector’s total failure to visit
building site might amount to ‘‘reckless disregard for
. . . health and safety under all the relevant circum-
stances’’). But see 29 H.R. Proc., Pt. 22, 1986 Sess.,
p. 8120, remarks of Representative Robert G. Jaekle
(opining that when municipal inspector fails to identify
defect in new construction caused by third party, third
party should bear liability for injuries resulting from
defect).
The legislative history of the municipal immunity stat-
ute thus supports the plaintiff’s argument that reckless-
ness ordinarily presents a question of fact for the jury
and controverts the municipal defendants’ contention
that, especially in the context of a failure to inspect,
‘‘it [is] a daunting task just to get to a jury on reckless-
ness.’’18 In this respect, the apparent legislative intent
with respect to municipal inspections is consistent with
the general rule that, when a defendant’s conduct repre-
sents more than mere ‘‘momentary thoughtlessness or
inadvertence,’’ whether it rises to the level of ‘‘reckless
or wanton misconduct on any given state of facts [ordi-
narily] is a question of fact for the jury.’’ (Internal quota-
tion marks omitted.) Brock v. Waldron, 127 Conn. 79,
83, 14 A.2d 713 (1940); accord Frillici v. Westport, 264
Conn. 266, 277, 823 A.2d 1172 (2003); Craig v. Driscoll,
64 Conn. App. 699, 721, 781 A.2d 440 (2001), aff’d, 262
Conn. 312, 813 A.2d 1003 (2003).19
3
Third, although it was not improper for the Appellate
Court to look to the common law for guidance as to
the meaning of the term ‘‘reckless disregard,’’ the deci-
sion of that court does not cite—and our own research
has not revealed—any authority in the common law for
the ‘‘possible impact’’ standard that the court ultimately
adopted. See Williams v. Housing Authority, supra,
159 Conn. App. 694, 696. It is well established, in both
the civil and criminal contexts, that a person acts with
reckless disregard when he ignores a substantial risk
of harm. See, e.g., Doe v. Hartford Roman Catholic
Diocesan Corp., 317 Conn. 357, 382–83, 119 A.3d 462
(2015); State v. Dyson, 217 Conn. 498, 502, 586 A.2d
610 (1991). There is no indication that the legislature
intended to adopt a lower standard for recklessness in
the context of municipal inspections, one requiring that
a defendant merely disregard a possible impact on pub-
lic or individual health or safety. Indeed, adopting such
a standard would effectively eliminate the distinction
between negligence and recklessness that has long been
a cornerstone of our public liability/immunity law. See,
e.g., General Statutes § 4-165 (a); Spears v. Garcia, 263
Conn. 22, 36, 818 A.2d 37 (2003).
Finally, having rejected the Appellate Court’s possi-
ble impact standard for reckless disregard, we must
resolve a dispute between the parties as to the whether
the risk disregarded must be substantial not only in its
impact or consequence but also in its likelihood. The
municipal defendants contend that ‘‘[p]robable conse-
quences are the hallmark of recklessness,’’ and that the
reckless disregard exception applies only if the munici-
pal defendants ignored (1) a likely harm (2) specific to
unit 205. The plaintiff, by contrast, avers that it may
be reckless to disregard a grave risk, such as a life
threatening fire in a multifamily dwelling, 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. In the limited and specific context
of a failure to inspect under § 52-557n (b) (8), we agree
with the plaintiff.
With respect to the probability of risk, we begin by
recognizing that the magnitude of a potential risk gener-
ally is understood to be the product of ‘‘the likelihood
that [the person’s] conduct will injure others [multiplied
by] the seriousness of the injury if it happens . . . .’’
(Internal quotation marks omitted.) Considine v.
Waterbury, 279 Conn. 830, 868 n.20, 905 A.2d 70 (2006).
It is true that this court, on occasion, has suggested
that a defendant is guilty of reckless misconduct only
when he knows or should know that there is ‘‘a high
degree of probability that substantial harm will result’’
from his actions. (Emphasis added; internal quotation
marks omitted.) Brock v. Waldron, supra, 127 Conn. 84;
see, e.g., State v. Bunkley, 202 Conn. 629, 645, 522 A.2d
795 (1987). In most instances, however, we have defined
recklessness simply as disregarding a high degree or
substantial risk of danger, leaving open the question
whether it may be reckless to engage in conduct that
carries a relatively low likelihood of causing momen-
tous harm.20 See, e.g., Doe v. Hartford Roman Catholic
Diocesan Corp., supra, 317 Conn. 381–83; Matthiessen
v. Vanech, supra, 266 Conn. 830–34. In any event, regard-
less of what standards govern allegations of reckless-
ness in other contexts, we conclude that, in the context
of § 52-557n (b) (8), 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. There is little doubt that
it might be reckless if federal regulators adopted a pol-
icy of not conducting safety inspections at nuclear
power plants or airlines of their passenger planes, not-
withstanding the relatively low probability of a disaster
occurring in any particular instance. Representative
Jaekle’s comments suggest that the failure regularly
to inspect school bus tires also would present a jury
question as to recklessness, despite the general infre-
quency of fatal bus crashes. See 29 H.R. Proc., Pt. 16,
1986 Sess., pp. 5899–900. We see no reason why the
same principles should not apply to a fire department’s
failure to carry out fire safety inspections at multifamily
apartment buildings, especially ones such as the one
occupied by the decedents, where limited means of
egress increase the likelihood that any particular fire
will result in casualties.
We also agree with the plaintiff that, particularly
when a municipality has adopted a policy of not carrying
out any inspections of a certain type, § 52-557n (b) (8)
permits the finder of fact to assess the aggregate level
of risk associated with that policy, and not only the
limited risk posed to the specific premises at which the
hazard happened to transpire. As we have discussed,
the reckless disregard exception applies when a munici-
pality does not have actual notice of a hazard or viola-
tion at particular premises. Under those circumstances,
it would make little sense to construe the exception to
apply only when a municipal actor disregards a particu-
lar, premise-specific risk. Moreover, mandated inspec-
tions such as fire safety inspections are, by their very
nature, standardized procedures that are intended and
designed to identify general risks of the sort that may
occur rarely but can affect any property of a certain
type. If a municipality adopts a policy of not conducting
any such inspections, it presumably does so with a view
toward the total resources that can be saved thereby.
On the other side of the ledger, we see no reason why
a jury should not be permitted to weigh the aggregate
risks that may ensue if hundreds or thousands of prem-
ises go uninspected.
4
With regard to the governing legal standard, the dis-
sent contends that we have ‘‘(1) fail[ed] to sufficiently
distinguish reckless disregard from negligence, (2)
fail[ed] to recognize that the burden of preventing the
risk of harm is an essential element of recklessness, (3)
fail[ed] to recognize that the reckless disregard prong
of § 52-557n (b) (8) generally requires proof specific to
the subject premises, and (4) improperly allow[ed] for
aggregation of risk based solely on the shared circum-
stance of noninspection.’’ We address each concern
in turn.
With respect to the dissent’s first concern, to the
extent that we have not made it abundantly clear, we
take this opportunity to reiterate that the type of con-
duct that constitutes reckless disregard for purposes
of § 52-557n (b) (8) is more egregious than mere negli-
gence and requires that health and safety inspectors
disregard a substantial risk of harm. See Matthiessen
v. Vanech, supra, 266 Conn. 833–34. Although the dis-
sent is correct that certain conduct, on its face, might
qualify as either negligent or reckless, the dissent seem-
ingly fails to recognize that, where either conclusion is
possible, whether any particular (mis)conduct rises to
the level of recklessness—in light of the actor’s mental
state and the magnitude of the potential harm
involved—is to be determined by the trier of fact.
Accordingly, the principal question before this court is
whether, on the evidence of record, a jury reasonably
could conclude that the municipal defendants chose to
ignore a substantial risk of harm.
We also categorically reject the dissent’s suggestion
that we have embraced a per se theory of recklessness
with respect to the failure to perform mandated health
or safety inspections. Rather, we have identified numer-
ous factors that the trier of fact may consider in
assessing whether any particular failure to carry out a
statutorily mandated inspection demonstrates a reck-
less disregard for health or safety under all the relevant
circumstances.
With respect to the second concern, the dissent cites
no controlling authority for the proposition that the
burden of preventing the risk of harm is an ‘‘essential
element’’ of recklessness. Indeed, the dissent concedes,
as it must, that this novel theory only recently has been
proposed in the Restatement (Third) of Torts and that
it has not been adopted as the law of Connecticut.
Notably, the Restatement (Third) itself recognizes that
its novel, law and economics definition of recklessness
may not be appropriate in every context in which reck-
lessness is at issue. 1 Restatement (Third) Torts, Liabil-
ity for Physical and Emotional Harm, § 2, comment (b),
p. 19 (2010). The authors of the Restatement (Third)
also acknowledge that, in many instances, disregard of
a high probability of harm is itself indicative of reckless-
ness, without the need to consider the existence of or
burdens associated with precautionary measures. Id.,
comment (e), p. 21. We do not dispute, however, that,
in many circumstances, such burdens will be among
those factors to be weighed by the trier of fact in making
a finding of recklessness. The jury is certainly free to
consider them here.
With respect to the dissent’s third concern—that it
would somehow be internally inconsistent to read the
second exception contained in § 52-557n (b) (8) to
encompass risks and considerations beyond those spe-
cific to the subject premises—the dissent’s crabbed
interpretation of the statute finds no more support in
the text than it does in the cannons of construction to
which the dissent appeals. In short, we fail to under-
stand in what sense there is even a tension, let alone
a contradiction, in the legislature having intended what
the plain language of the statute clearly suggests,
namely, carving out two exceptions to governmental
immunity: a more specific one for public safety officials
who fail to inspect a property known to have a particular
code violation or safety hazard, and a more general one
for officials whose failure to inspect demonstrates a
disregard for public health or safety ‘‘under all the rele-
vant circumstances . . . .’’ It can hardly be disputed
that a public official who routinely ignores his duty to
carry out important fire safety inspections demon-
strates greater disregard for the public’s health or safety
than does an official who misses only one such inspec-
tion. The dissent has suggested no reason why the legis-
lature would not have intended for a jury to take such
considerations into account. Indeed, given that § 52-
557n (b) (8) provides for the imposition of liability when
a failure to inspect constitutes a reckless disregard for
health or safety under all the relevant circumstances,
the statute itself clearly invites, if not requires, the trier
of fact to take into account broader considerations,
such as inspection policies and the history of conflagra-
tions at residences of this type.
Finally, the dissent contends that we improperly have
concluded that a public safety official’s failure to
inspect a class of properties necessarily implies that
the official has adopted a general, unitary policy of not
carrying out such inspections. Nothing could be further
from the truth. Once again, all we have held herein is
that, when confronted with evidence that an official
has failed to inspect an entire class of properties over
a period of time, a jury is not precluded either from
finding as a matter of fact that those failures to inspect
were the result of a general policy of noninspection or
from concluding that the adoption of such a policy
demonstrated a reckless disregard for public health or
safety. The present record contains sufficient evidence
to allow a jury to make such determinations.
B
In part II A of this opinion, we clarified the second
exception to municipal immunity contained in § 52-557n
(b) (8) and, specifically, the standards governing when
the failure to conduct a municipal inspection consti-
tutes ‘‘a reckless disregard for health or safety under
all the relevant circumstances . . . .’’ We concluded
that, particularly when the failure to inspect violates
some statute or regulation, the question of recklessness
ordinarily will be one for the jury, taking into account
all relevant circumstances. We also concluded 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 indicates a reckless
disregard for public health or safety.
In this subpart of the opinion, we consider whether
the Appellate Court properly determined that a jury
reasonably could find, on the basis of the proof submit-
ted in opposition to the motion for summary judgment
and the inferences reasonably to be drawn therefrom,
that the conduct of the municipal defendants demon-
strated a reckless disregard for public health or safety
under the circumstances. We conclude that the plaintiff
met her burden in this respect and that the municipal
defendants were not entitled to summary judgment on
that issue.
1
The Rooney deposition and the various affidavits sub-
mitted in support of and in opposition to the motion
for summary judgment, construed in the light most
favorable to the plaintiff as the nonmoving party, sug-
gest that, over the course of many years, the municipal
defendants maintained a policy of not conducting any
routine fire safety inspections of the thousands of public
housing units in Bridgeport in the absence of a com-
plaint or request,21 and also of not routinely inspecting
certain of its more than 3000 three-family homes, in
violation of their statutory duty under § 29-305 (b).
These policies remained in effect after 2005, despite
the fact that the failure to inspect allegedly resulted
in multiple fatalities during the Iranistan Avenue fire.
Rooney also delayed for eight years after that fire before
implementing the stopgap measure of asking his offi-
cers to assist by carrying out informal inspections of
high risk dwellings. Following the 2009 fire at issue
in this case, the municipal defendants failed to follow
through on measures such as a task force that had been
formed to determine what could be done to prevent
similar tragedies in the future.
Moreover, Rooney’s stated rationales for the fire
department’s noninspection policy raise additional
questions as to whether he and the other municipal
defendants acted in reckless disregard of public safety.
He claimed to have been familiar with all relevant legal
and regulatory requirements, but also not to have been
aware either that the fire department was obligated to
annually inspect Bridgeport’s public housing complexes
or that the fire safety code mandated that the smoke
alarms in unit 205 be interconnected. See footnote 6 of
this opinion. Rooney claimed that the fire department
lacked the resources to carry out the mandated inspec-
tions, but he did not request any additional inspectors
until 2013. He claimed that his ten person fire marshal
division lacked the manpower to inspect Bridgeport’s
public housing complexes, but conceded that, by setting
aside a few hours in the evenings following the 2009
fire, he had been able to personally visit, over the course
of just several weeks, each unit in the P.T. Barnum
Apartments to check smoke detectors. He claimed that
he saw no need for the fire department to carry out its
mandated inspections when the housing authority was
conducting its own internal inspections, but conceded
that he did not know and had never inquired as to the
nature or extent of the inspections that were conducted
by the housing authority’s unlicensed inspectors.
Finally, Rooney appeared to be unfamiliar with com-
mon smoke detection technologies and not to have
educated himself as to their potential advantages and
shortcomings.22
In light of this factual record, we agree with the Appel-
late Court that a jury, considering all the relevant cir-
cumstances, reasonably could find that the municipal
defendants’ persistent failure to inspect unit 205 and
thousands of others like it both arose from and exempli-
fied a pattern of reckless disregard for public health or
safety. We understand that it may have been extremely
unlikely that the municipal defendants’ noninspection
policy would result in fire related fatalities of this sort
at this particular apartment. Such fires are, in general,
a rare and unpredictable occurrence. See Evon v.
Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989).
Moreover, if the plaintiff’s allegations are true, in this
instance, it appears that the housing authority’s internal
fire safety inspections may have been inadequate only
because an unfortunate and unlikely confluence of fac-
tors—a heavily inebriated parent of young children
apparently operated her gas stove late at night, in close
proximity to highly combustible debris, in a building
where false alarms were sufficiently common that
neighbors delayed before calling emergency services—
meant that interconnection of the unit’s smoke alarms
could have changed the outcome. As we have explained,
however, the jury is free to consider not only whether
this particular hazard at this particular location was a
predictable result of the failure to inspect, but also
whether, in light of the allegations surrounding the 2005
Iranistan Avenue fire, the municipal defendants’ admit-
ted lack of diligence and decision not to inspect thou-
sands of multifamily units that are home to Bridgeport’s
least affluent residents created a foreseeable and sub-
stantial risk that some tragedy of this general sort would
occur, thus constituting a reckless disregard for health
or safety.
2
We are not persuaded by the dissent’s argument that
we improperly have decided this case on the basis of
a ‘‘theory of liability’’—the municipal defendants’ appar-
ent policy of not conducting mandatory inspections of
many multifamily housing units in Bridgeport over a
period of years—that the plaintiff never advanced. The
dissent misperceives the governing law, the nature of
our decision, and the appellate record in this case.
Under modern pleading practice, ‘‘pleadings must be
construed broadly and realistically, rather than nar-
rowly and technically.’’ (Internal quotation marks omit-
ted.) Connecticut Coalition for Justice in Education
Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206
(2010). For this reason, the dissent’s reliance on White
v. Mazda Motor of America, Inc., 313 Conn. 610, 621,
99 A.3d 1079 (2014), is misplaced. White stands for the
proposition that a plaintiff, having pleaded and pre-
sented his case according to one theory of liability,
cannot on appeal seek to have the case resolved
according to a fundamentally different theory, one that
involves distinct essential elements and of which the
defendant was never given notice. See id., 619–20. That
is not the case here. Here, the plaintiff alleged in her
complaint that the municipal defendants acted reck-
lessly by failing to conduct the mandatory annual
inspection of unit 205, and it is on that theory of liability
that the case has been resolved. The question at issue
is merely whether, in assessing whether the municipal
defendants’ failure to inspect that particular unit was
reckless, the jury may consider various factors that put
that decision into context. These include whether the
failure to inspect was intentional, whether it was part
of a broader policy of nonenforcement, whether it
reflected an improper delegation of the municipal
defendants’ statutory duties to unqualified housing
authority employees, whether it was justified by a lack
of available inspection resources, and whether it was
preceded by other instances in which the municipal
defendants’ failure to inspect resulted in catastrophic
fire losses. Each of those questions bears directly on
the plaintiff’s theory of the case.
Moreover, to the extent that the dissent is particularly
concerned with the question of the municipal defen-
dants’ broader history of noncompliance with their stat-
utory duties, it is clear that they were on notice that that
policy fell within the ambit of the plaintiff’s complaint.
Whereas some of the plaintiff’s interrogatory requests
sought information specific to the municipal defen-
dants’ inspections of unit 205, many others sought infor-
mation regarding their general ‘‘policies or procedures
that relate to the inspection of properties for fire and
safety code violations,’’ as well as their past history of
inspecting the entire P.T. Barnum Apartments housing
complex. Relatedly, as the dissent concedes, during
Rooney’s deposition, the plaintiff’s counsel questioned
Rooney on multiple occasions and at some length
regarding the municipal defendants’ general inspection
policies with respect to multifamily housing units. Then,
in her motion for reconsideration and/or reargument,
the plaintiff emphasized that reconsideration was war-
ranted in part because ‘‘Rooney admitted in his deposi-
tion that he was aware [that] [Bridgeport] did not
conduct inspections of three family residences (which
would include the premises which are the subject of
the fire in the instant case) because of a claimed lack
of resources.’’ It also is noteworthy that the trial court,
in its memorandum of decision, framed the question as
‘‘whether the fire marshal, by allegedly neglecting to
undertake annual inspections as required by § 29-305,
engaged in a ‘reckless disregard for health or safety
under all the relevant circumstances.’ ’’ (Emphasis
added.) The court’s use of the plural here is noteworthy,
insofar as the statute only would have required one
inspection of unit 205 in the year prior to the fire. Also
notable is the court’s recognition that Pinos v. Mystic
Fire District, Docket No. CV-09-5012096, 2011 WL
1565874 (Conn. Super. March 30, 2011), favored the
plaintiff’s position. In that case, the trial court found
that a material fact existed as to whether the Mystic
Fire District’s failure to inspect the subject premises
prior to a fatal fire constituted recklessness for the
purposes of § 52-557n (b) (8) in large part because the
fire marshal’s office had conducted fewer than one half
of the mandated inspections citywide during the two
years prior to the fire. See id., *2–4. Accordingly, we
reject the dissent’s suggestion that these considerations
do not fall within the ambit of the plaintiff’s complaint.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, ROB-
INSON and D’AURIA, Js., concurred.
* The listing of justices reflects their seniority on this court as of the date
of oral argument.
1
The other decedents were Black’s five year old son Nyshon Williams
and her twin four year old daughters, Nyaisja Williams and Tyaisja Williams.
2
The other defendants were the Housing Authority of the City of Bridge-
port, Worth Construction Co., Inc., Kasper Group, Inc., Patrick M. Rose,
Philip L. Tiso and Bruce Morris.
3
General Statutes § 52-557n (b) (8) provides in relevant part: ‘‘[A] political
subdivision of the state or any employee, officer, or agent acting within the
scope of his employment or official duties shall not be liable for damages
to person or property resulting from . . . (8) failure to make an inspection
or making an inadequate or negligent inspection of any property . . . to
determine whether the property complies with or violates any law or con-
tains a hazard to health or safety, unless the political subdivision had notice
of such a violation of law or such a hazard or unless such failure to inspect
or such inadequate or negligent inspection constitutes a reckless disregard
for health or safety under all the relevant circumstances . . . .’’
4
General Statutes § 29-305 (b) provides in relevant part: ‘‘Each local fire
marshal shall inspect or cause to be inspected, at least once each calendar
year . . . in the interests of public safety . . . all occupancies regulated
by the Fire Safety Code within the local fire marshal’s jurisdiction, except
residential buildings designed to be occupied by one or two families . . .
for the purpose of determining whether the requirements specified in said
codes relative to smoke detection and warning equipment have been satis-
fied. . . .’’
5
One witness reported that the delay could have been as long as thirty
or forty minutes.
6
When smoke alarms are interconnected, the activation of any one alarm
triggers all of the other alarms.
7
The municipal defendants do not concede that relevant building and fire
safety codes required these features in unit 205. The parties have not briefed
this issue, however, and the record on appeal is inadequate for us to resolve
it as a matter of law. Accordingly, in light of the procedural posture in which
this case reaches us, we assume without deciding that Tebbets was correct
in his assessment.
8
Notably, in her opposition, the plaintiff failed to proffer any evidence
that the municipal defendants had actual notice of the alleged code violations
at unit 205 or that they otherwise exhibited reckless disregard of public
health or safety. She appears to have been under the mistaken belief that
the standard governing a motion for summary judgment is the same as the
standard governing a motion to strike, and that she could continue to rest
on her pleadings even after the municipal defendants set forth evidence
that they were not aware of any code or safety violations. Ordinarily, this
failure to establish a genuine issue of material fact at the summary judgment
stage would render her appeal from the trial court’s decision moot. But see
footnote 11 of this opinion.
9
We express no opinion as to whether any evidence of post-2009 conduct
would be admissible at trial. See Conn. Code Evid. § 4-7 (a) (evidence of
subsequent remedial measures admissible to show feasibility of precaution-
ary measures); Streeter v. Executive Jet Management, Inc., Docket No. X-
01-020179481-S, 2005 WL 4357633, *7 (Conn. Super. November 10, 2005)
(rule does not necessarily preclude testimony that no subsequent remedial
measures were taken).
10
Curiously, the plaintiff did not draw to the court’s attention any of
Rooney’s other statements that arguably could permit a jury to conclude
that the municipal defendants had demonstrated a reckless disregard for
public health or safety. However, the plaintiff did submit the full deposition
transcript in support of her motion.
11
Because the trial court did not issue a memorandum of decision, it is
unclear whether the court (1) was persuaded by the municipal defendants’
procedural arguments that the Rooney deposition was not properly before
the court, or (2) entertained the new deposition evidence but concluded
that Rooney’s statements did not create, as a matter of law, a material
question as to whether the municipal defendants demonstrated reckless
disregard for public health or safety under all the relevant circumstances.
We note, however, that the court allowed extensive argument as to the
substantive issues raised by the deposition. Moreover, on appeal to this
court, the municipal defendants did not move to strike the plaintiff’s appen-
dix, which contains the deposition transcript in its entirety, and, at oral
argument, the appellants’ counsel conceded that we may consider the full
deposition transcript. Finally, the municipal defendants have not raised as
an issue on appeal the propriety of the Appellate Court’s reliance on the
Rooney deposition in concluding that questions of material fact rendered
summary judgment improper. See Williams v. Housing Authority, supra,
159 Conn. App. 686–95. Accordingly, we will assume for purposes of this
appeal that the Rooney deposition is properly in the record. See Hirsch v.
Braceland, 144 Conn. 464, 469, 133 A.2d 898 (1957); cf. State v. Manfredi,
213 Conn. 500, 512, 517, 569 A.2d 506 (1990).
12
The plaintiff’s other claims of error before the Appellate Court are not
at issue in the present appeal.
13
The Appellate Court also determined that there was a question of mate-
rial fact as to whether Rooney and Cosgrove were aware of their duty to
inspect at the time of the fire. Williams v. Housing Authority, supra, 159
Conn. App. 695. The municipal defendants do not challenge this determi-
nation.
14
General Statutes § 53a-3 (13) provides: ‘‘A person acts ‘recklessly’ with
respect to a result or to a circumstance described by a statute defining an
offense when he is aware of and consciously disregards a substantial and
unjustifiable risk that such result will occur or that such circumstance exists.
The risk must be of such nature and degree that disregarding it constitutes
a gross deviation from the standard of conduct that a reasonable person
would observe in the situation. . . .’’
15
At oral argument before this court, the plaintiff’s counsel took a different
tact, arguing that there is no meaningful distinction between a possible risk
and a likely one. That can’t be right. The reasonable man may walk to lunch
on a drizzly day, despite the possibility that he might get caught up in a
storm and struck by lightning. But once the tempest rages, such that any
pedestrian likely will be struck, it would be foolhardy not to call a taxicab.
16
Because it is uncontested that the municipal defendants failed to conduct
any inspection of unit 205, we need not decide what standards would apply
to a case in which an allegedly inadequate or negligent inspection was con-
ducted.
17
We recognize that other statements in the legislative history suggest
that recklessness will be difficult to prove in the context of a failure to
inspect or inadequate inspection. See, e.g., 29 H.R. Proc., Pt. 16, 1986 Sess.,
pp. 5919–20, remarks of Representative John Wayne Fox; id., pp. 5921–22,
remarks of Representative Martin Looney; see also id., p. 5941, remarks of
Representative Richard D. Tulisano (cautioning supporters of bill that future
plaintiffs ‘‘might get in the door by the allegation [of recklessness], but
[they] will never be able to sustain the burden’’). Those statements, however,
were made by opponents of the municipal immunity provisions of the 1986
tort reform legislation and, therefore, are not as clearly indicative of the
legislative intent of the bill as are the comments of the author.
18
The municipal defendants offer various arguments as to why allowing
claims of this sort to be decided by juries constitutes bad public policy.
Such arguments are more appropriately addressed to the legislature than
to this court. See, e.g., Savings & Loan League of Connecticut, Inc. v.
Connecticut Housing Finance Authority, 184 Conn. 311, 316, 439 A.2d
978 (1981).
19
To support their argument to the contrary, the municipal defendants
direct our attention to two cases in which this court concluded that allega-
tions of recklessness were, as a matter of law, insufficient to create a jury
question, namely, Elliott v. Waterbury, 245 Conn. 385, 715 A.2d 27 (1998),
and Brock v. Waldron, supra, 127 Conn. 79. Both are readily distinguishable.
In Elliott, the plaintiff’s decedent was accidentally shot and killed while
jogging near a public watershed area on which the defendants permitted
recreational hunting. Elliott v. Waterbury, supra, 245 Conn. 389. This court
upheld the trial court’s grant of summary judgment in favor of the defendants
on the plaintiff’s reckless conduct claim, concluding that a trier of fact could
not reasonably conclude that, in allowing hunting on the watershed land,
the defendants had engaged in ‘‘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.) Id., 418. In so
concluding, this court relied on unique considerations that do not apply to
the present case. We emphasized, for example, that Connecticut has a clear
policy of encouraging landowners to open their land for recreational hunting
and that an independent regulatory regime governs hunting safety. Id.,
416–18.
The municipal defendants turn back nearly eighty years, to Brock, to
muster another case in support of their argument that plaintiffs must pass
a ‘‘high threshold’’ to reach a jury on a claim of recklessness. Brock involved
a motor vehicle accident in which a driver, travelling too fast on a slick
road and with a dirty windshield, struck and killed a pedestrian. Brock v.
Waldron, supra, 127 Conn. 81–82. In that case, the complaint did not clearly
plead a cause of action in recklessness, and the trial court did not become
aware of the plaintiff’s recklessness claim until after the close of evidence,
when it reviewed the plaintiff’s request to charge. Id., 80–81. The plaintiff’s
counsel arguably abandoned the claim during the charging conference, but
new appellate counsel later raised the court’s refusal to charge the jury on
recklessness as a potential ground for appeal. Id., 80. In upholding the trial
court’s refusal to charge, this court observed that the recklessness claim
rested primarily on an unquantified allegation of excess speed that
‘‘depend[ed] entirely on inferences from doubtful physical facts in evidence.’’
Id., 84. Accordingly, even if we were to put aside the question of whether
a case that grappled with the concept of reckless driving during the early
days of the mass-produced automobile has any bearing on the standards
governing municipal fire safety inspections in the twenty-first century, it is
clear that Brock was a procedurally and factually unique case that does not
support the general rule for which the municipal defendants cite it.
20
The municipal defendants draw our attention to a comment in the
Restatement (Second) of Torts that indicates that the violation of a statute
is reckless only to the extent that it involves ‘‘a high degree of probability
that serious harm will result.’’ 2 Restatement (Second), Torts § 500, comment
(e), p. 589 (1965). Other comments to that section suggest, however, that
recklessness does not require an actual likelihood of harm, such that the
probability of injury is greater than 50 percent, but merely that the risk is
‘‘substantially in excess of that necessary to make the conduct negligent.’’
Id., comment (a), p. 588. We read comment (e) in that light.
21
See Park City Communities, ‘‘About Us,’’ available at http://www.parkci-
tycommunities.org/about-us/ (last visited December 6, 2017) (agency man-
ages approximately 2600 public housing equivalent units). We note that Park
City Communities was formerly known as the Bridgeport Housing Authority.
22
Rooney’s testimony, construed in the light most favorable to the plaintiff,
tended to establish, among other things, that the Bridgeport fire marshal
division pursued a long-standing policy of not inspecting any public housing
facilities, in the absence of a complaint or request, and also of not routinely
inspecting multifamily housing units, despite its knowledge that that policy
had resulted in fatal fires on previous occasions. We agree with the dissent
that, pursuant to § 29-305, Rooney himself was not responsible for carrying
out the mandatory annual inspections. Because the issue is not before us,
we need not determine whether any of Rooney’s own actions subjected
either him or Bridgeport to potential liability under § 52-557n.