Northrup v. Witkowski

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GEORGE W. NORTHRUP ET AL. v. HENRY J.
WITKOWSKI, JR., ET AL.
(SC 20023)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Kahn and Ecker, Js.
Syllabus
Pursuant to statute (§ 52-557n [a] [2] [B]) and the common law of this
state, respectively, municipalities and their employees enjoy qualified
immunity from liability for their negligent acts or omissions in the perfor-
mance of duties that require the exercise of judgment or discretion.
The plaintiffs, who reside in the borough of Naugatuck on a particular parcel
of property that is prone to flooding, appealed to the Appellate Court
from the trial court’s judgment in favor of the defendants, the borough
and several of its officials, which was rendered on the basis of govern-
mental immunity. The plaintiffs had alleged, inter alia, that the defen-
dants’ negligence caused their property to be inundated by water on
eight separate occasions. Specifically, the plaintiffs had alleged that a
nearby municipally owned catch basin in the area routinely became
clogged or otherwise inadequately redirected storm water away from
their property. In support of their motion for summary judgment, the
defendants claimed that the plaintiffs’ negligence claims were barred
by governmental immunity because they involved acts or omissions that
required the exercise of judgment or discretion. In granting that motion,
the trial court concluded that, because the municipal ordinance setting
forth the general duties of the relevant municipal department did not
contain specific directions or mandates as to how those duties should
be discharged, the plaintiffs’ claims necessarily pertained to discretion-
ary acts or omissions. The trial court acknowledged this court’s decision
in Spitzer v. Waterbury (113 Conn. 84), which held that the repair and
maintenance of municipally owned drainage systems are ministerial
functions, but concluded that, under more recent case law, the duty to
repair and maintain drainage systems is discretionary unless an ordi-
nance prescribes the particular manner in which that duty is to be
discharged. The plaintiff subsequently appealed from the trial court’s
judgment in favor of the defendants to the Appellate Court, which distin-
guished the facts of Spitzer and ultimately agreed that there was no
genuine issue of material fact with respect to whether the allegedly
negligent omissions in the present case were discretionary in nature.
Accordingly, the Appellate Court affirmed the trial court’s judgment,
and the plaintiffs, on the granting of certification, appealed to this court.
Held that the Appellate Court properly upheld the trial court’s granting
of summary judgment in favor of the defendants, this court having
concluded that the borough’s duty to maintain and repair its drainage
system was discretionary rather than ministerial in nature and, therefore,
subject to governmental immunity: neither the question of whether the
duty to repair and maintain the drainage system was imposed by statute
or voluntarily assumed, nor the distinction between construction and
repair, was relevant to consideration of the nature of the defendants’
duty, because, under modern principles of governmental immunity, the
salient consideration in determining whether that duty was discretionary
or ministerial is whether any statute, charter provision, ordinance, regu-
lation, rule, policy, or any other directive required the defendants to act
in a prescribed manner, and, accordingly, the defendants could be held
liable to the plaintiffs only if there was some legal directive prescribing
the specific manner in which the defendants were required to maintain
and repair the borough’s storm drainage system; moreover, the plaintiffs
did not challenge the Appellate Court’s conclusion that the language
of the relevant municipal ordinance did not, in and of itself, create a
ministerial duty to repair and maintain the drainage system, and, even
if this court were to assume that a policy or rule from a municipal
agency could give rise to a ministerial duty, deposition testimony from
the borough’s superintendent of streets evincing an annual maintenance
schedule and a general policy of attempting to respond to public com-
plaints about clogged storm drains was insufficient to establish the
existence of such a policy or rule that could convert the borough’s
discretionary duty mandated by ordinance into a ministerial duty, as a
contrary conclusion would disincentivize municipalities from making
virtually any attempt to ensure that their discretionary duties are regu-
larly and properly carried out; furthermore, this court could not conclude
that the defendants had breached a ministerial duty by failing to conduct
any maintenance on the basin at issue because the plaintiffs cited no
evidence that would support such a finding, and, even if they had, a
general duty to maintain and repair the drainage system as a whole
would not encompass a judicially enforceable duty to maintain and
repair each individual component of that system.
Spitzer v. Waterbury (113 Conn. 84), to the extent it concluded that munici-
pal duties with respect to the maintenance and repair of drains and
sewers are ministerial in nature, overruled.
(One justice dissenting)
Argued October 16, 2018—officially released July 2, 2019
Procedural History
Action to recover damages for the alleged negligence
of the named defendant et al. in maintaining and
repairing certain municipal storm water systems, and
for other relief, brought to the Superior Court in the
judicial district of New Haven, where the court, Blue,
J., granted the defendants’ motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiffs appealed to the Appellate Court, Alvord, Pres-
cott and Mullins, Js., which affirmed the trial court’s
judgment, and the plaintiffs, on the granting of certifica-
tion, appealed to this court. Affirmed.
Joshua F. Gilman, for the appellants (plaintiffs).
Thomas R. Gerarde, with whom, on the brief, was
Beatrice S. Jordan, for the appellees (defendants).
Aaron S. Bayer and Tadhg Dooley filed a brief for
the city of Bridgeport et al. as amici curiae.
Opinion
ROBINSON, C. J. This certified appeal requires us to
consider the continued vitality of this court’s decision
in Spitzer v. Waterbury, 113 Conn. 84, 88, 154 A. 157
(1931), which held that ‘‘[t]he work of constructing
drains and sewers, as well as that of keeping them in
repair, is ministerial, and the municipality is respon-
sible for negligence in its performance.’’ The plaintiffs,
Helen M. Northrup, George W. Northrup, and Timothy
Northrup,1 brought this action against the defendants,
the borough of Naugatuck (town) and several town offi-
cials,2 claiming, inter alia, that the defendants’ negli-
gence in maintaining and repairing the town’s storm
drains and drainage pipes had caused the repeated
flooding of the plaintiffs’ residence. The plaintiffs now
appeal, upon our granting of their petition for certifica-
tion,3 from the judgment of the Appellate Court affirm-
ing the trial court’s granting of the defendant’s motion
for summary judgment on the ground that the negli-
gence claims were barred because, under more recent
cases refining and clarifying Spitzer, the maintenance
of storm drains and drainage systems is a discretionary
function subject to governmental immunity, rather than
a ministerial function, the negligent performance of
which can subject a municipality to liability. Northrup
v. Witkowski, 175 Conn. App. 223, 250, 167 A.3d 443
(2017). We disagree with the plaintiffs’ claim that the
Appellate Court improperly failed to follow Spitzer
because we conclude that decision must be overruled
in light of modern case law governing the distinction
between ministerial and discretionary duties. Accord-
ingly, we affirm the judgment of the Appellate Court.
The opinion of the Appellate Court aptly sets forth the
following facts and procedural history. ‘‘The plaintiffs
reside on property located in the town at 61 Nettleton
Avenue. On eight different occasions between 2009 and
2012, the plaintiff’s property was damaged when surface
rainwater and/or ‘black water’4 inundated the property
because the single catch basins in the area routinely
became clogged or inadequately redirected water away
from the property.
‘‘After the first occurrence in July, 2009, Helen . . .
contacted [James] Stewart, who, at that time, was
the [town] engineer. He told her that the flooding was
the result of a rare storm and that it would not hap-
pen again. Despite his assurance, however, flooding
occurred again in October and December of that year.
The plaintiffs continued to contact Stewart, to no avail.
The plaintiffs made several requests to the town for
sandbags; one such request was granted, but others
were denied or simply ignored.
‘‘The town received a report in October, 2009, from
an engineering firm about the Nettleton Avenue neigh-
borhood. The report indicated that, over the past forty
years, many residences in the neighborhood had experi-
enced periodic flooding of their properties following
periods of heavy rainfall. It further indicated that the
drainage system in the area was likely to experience
flooding after rainfalls of two inches or more, which
could occur several times a year. The report attributed
the flooding to the fact that runoff was required to flow
through relatively narrow drainpipes that were in poor
to fair condition and that the majority of catch basins
in the area were old and had small openings that often
became overgrown with vegetation or obstructed by
trash. The report recommended that the town construct
new, larger storm drains to handle the storm runoff in
the area, but the town failed to adopt that proposal.
The plaintiffs’ property flooded again in July of 2010,
March and August of 2011, and June and September of
2012.’’ (Footnote in original.) Id., 226–27.
On June 4, 2013, the plaintiffs filed the operative
second amended complaint alleging negligence against
Henry J. Witkowski, Stewart, and the town, and reck-
lessness against the individual defendants. See footnote
2 of this opinion. In addition, the plaintiffs alleged negli-
gent infliction of emotional distress against Witkowski,
Stewart, and the town.
‘‘On October 30, 2015, the defendants filed [a] motion
for summary judgment . . . . The defendants submit-
ted a supporting memorandum of law, attached to
which were partial transcripts from the depositions of
Helen . . . and the individual defendants, as well as
an affidavit by Stewart. The defendants argued that
the negligence counts, including those alleging negli-
gent infliction of emotional distress, were barred by
governmental immunity because they involved acts or
omissions that required the exercise of judgment or
discretion, and no other recognized exception to gov-
ernmental immunity applied. The defendants further
argued that the recklessness counts brought against the
individual defendants also failed as a matter of law
because, on the basis of the allegations and evidence
presented, no reasonable fact finder could determine
that the individual defendants had engaged in demon-
strably reckless conduct.
‘‘The plaintiffs filed an objection to the motion for
summary judgment on November 18, 2015, arguing with
respect to the negligence counts that there remained
genuine issues of material fact as to whether the defen-
dants were exercising ministerial or discretionary
duties and, if discretionary, whether the identifiable
person-imminent harm exception to governmental
immunity applied.’’ Northrup v. Witkowski, supra, 175
Conn. App. 228–29.
‘‘On January 20, 2016, the court issued a memoran-
dum of decision granting summary judgment in favor
of the defendants on all counts. With respect to the
negligence counts, including those counts alleging neg-
ligent infliction of emotional distress, the court con-
cluded that the plaintiffs’ specifications of negligence
amounted to a ‘litany of discretionary omissions’ and
that their ‘allegations boiled down to a claim that the
defendants failed to perform their municipal duties in
an appropriate manner.’ The court determined that the
city ordinance on which the plaintiffs relied in opposing
summary judgment only set forth the general duties of
the [streets commission] without any specific directions
or mandates as to how those duties should be dis-
charged.’’ Id., 230.
The trial court acknowledged this court’s decision in
Spitzer v. Waterbury, supra, 113 Conn. 88, holding that
the repair and maintenance of drainage systems is a
ministerial function, but concluded that more recent
cases had ‘‘refined [the] analysis of the relationship and
differences between ministerial and discretionary acts
. . . .’’ Silberstein v. 54 Hillcrest Park Associates, LLC,
135 Conn. App. 262, 272, 41 A.3d 1147 (2012). The trial
court concluded that, under those more recent cases,
the repair and maintenance of drainage systems are
discretionary unless an ordinance ‘‘prescribe[s] the
manner in which the drainage systems are to be main-
tained . . . .’’ (Emphasis in original.)
‘‘Accordingly, the court concluded that the defen-
dants’ acts or omissions in maintaining the town’s drain-
age system were discretionary in nature. Furthermore,
the court concluded that the identifiable person-immi-
nent harm exception to discretionary act immunity was
inapplicable as a matter of law because the risk of the
property flooding at any given time was indefinite and,
thus, did not constitute an imminent harm. The court
also granted summary judgment with respect to the
recklessness counts, concluding that they also were
barred by governmental immunity.
‘‘The plaintiffs filed a motion to reargue and for recon-
sideration, which the defendants opposed. The court
denied the plaintiffs’ motion, and [the plaintiffs’ appeal
to the Appellate Court] followed.’’5 Northrup v. Witkow-
ski, supra, 175 Conn. App. 230.
The Appellate Court held that ‘‘to demonstrate the
existence of a ministerial duty on the part of a munici-
pality and its agents, a plaintiff ordinarily must point
to some statute, city charter provision, ordinance, regu-
lation, rule, policy, or other directive that, by its clear
language, compels a municipal employee to act in a
prescribed manner, without the exercise of judgment
or discretion. See Violano v. Fernandez, 280 Conn. 310,
323, 907 A.2d 1188 (2006); Evon v. Andrews, 211 Conn.
501, 506–507, 559 A.2d 1131 (1989); DiMiceli v. Chesh-
ire, [162 Conn. App. 216, 224–25, 131 A.3d 771 (2016)];
Grignano v. Milford, 106 Conn. App. 648, 659–60, 943
A.2d 507 (2008).’’ Northrup v. Witkowski, supra, 175
Conn. App. 235. The court ultimately concluded that,
‘‘although there is language in § 16-32 of the [Naugatuck
Code of Ordinances] that requires the streets commis-
sion to maintain and repair the town’s storm water
sewer system, the ordinance contains no provisions
that mandate the time or manner in which those respon-
sibilities are to be executed, leaving such details to the
discretion and judgment of the municipal employees.’’
Id., 238.
The Appellate Court then acknowledged this court’s
statement in Spitzer v. Waterbury, supra, 113 Conn. 88,
that the repair and maintenance of drains and sewers
are ministerial functions, but it concluded that Spitzer
was distinguishable on its facts because it involved only
the question of whether a drainage system ‘‘as it was
planned could handle even ordinary amounts of rain,’’
not whether the city had properly maintained and
cleaned the system. Northrup v. Witkowski, supra, 175
Conn. App. 239. In addition, the Appellate Court con-
cluded that the statement in Spitzer was dictum. Id.,
241. The Appellate Court concluded that, ‘‘[c]onsidered
in light of our modern case law analyzing qualified gov-
ernmental immunity, we are convinced that the [trial]
court correctly determined that there was no genuine
issue of material fact to be resolved with respect to
whether the alleged[ly] negligent acts or omissions of
the defendants were discretionary in nature and, thus,
subject to immunity.’’ Id., 242. Accordingly, the Appel-
late Court affirmed the judgment of the trial court. Id.,
250. This certified appeal followed.6 See footnote 3 of
this opinion.
On appeal to this court, the plaintiffs contend that
the Appellate Court incorrectly determined both that
Spitzer is distinguishable on its facts and that this
court’s statement in Spitzer that the repair and mainte-
nance of drains and sewers are ministerial functions
was dictum. Rather, they argue that Spitzer is directly
on point and is binding authority for the proposition
that the duty of a municipality to maintain and repair
its drainage system is ministerial and, therefore, that
the negligent performance of that duty will subject the
municipality to liability. We conclude that we need not
determine whether the language in Spitzer was dictum
because, even if it was not, Spitzer must be overruled
in light of more modern case law and statutes governing
the distinction between ministerial and discretionary
duties. We further conclude that the Appellate Court
correctly determined that, under those more modern
cases, the town’s duty to maintain and repair its drain-
age system was discretionary and, therefore, subject to
governmental immunity.
As a preliminary matter, we set forth the standard
of review. ‘‘Summary judgment shall be rendered forth-
with if the pleadings, affidavits and other proof submit-
ted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . The scope of our
appellate review depends upon the proper characteriza-
tion of the rulings made by the trial court. . . . When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Meyers v. Livingston, Adler,
Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 289–90,
87 A.3d 534 (2014).
We next review the law governing governmental
immunity. ‘‘The [common-law] doctrines that determine
the tort liability of municipal employees are well estab-
lished. . . . Generally, a municipal employee is liable
for the misperformance of ministerial acts, but has a
qualified immunity in the performance of governmental
acts. . . . Governmental acts are performed wholly for
the direct benefit of the public and are supervisory or
discretionary in nature. . . . The hallmark of a discre-
tionary act is that it requires the exercise 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.) Violano v. Fernandez, supra, 280
Conn. 318.
‘‘The tort liability of a municipality has been codified
in [General Statutes] § 52-557n. Section 52-557n (a) (1)
provides that ‘[e]xcept as otherwise provided by law,
a political subdivision of the state shall be liable for
damages to person or property caused by: (A) The negli-
gent acts or omissions of such political subdivision or
any employee, officer or agent thereof acting within
the scope of his employment or official duties . . . .’
Section 52-557n (a) (2) (B) extends, however, the same
discretionary act immunity that applies to municipal
officials to the municipalities themselves by providing
that they will not be liable for damages caused by ‘negli-
gent acts or omissions which require the exercise of
judgment or discretion as an official function of the
authority expressly or impliedly granted by law.’ ’’
Id., 320.
‘‘Municipal officials are immunized from liability for
negligence arising out of their discretionary acts in part
because of the danger that a more expansive exposure
to liability would cramp the exercise of official discre-
tion beyond the limits desirable in our society. . . .
Discretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officers and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, outweighs the bene-
fits to be had from imposing liability for that injury.
. . . In contrast, municipal officers are not immune
from liability for negligence arising out of their ministe-
rial 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 performance of ministerial acts.’’ (Internal quota-
tion marks omitted.) Id., 318–19.
‘‘This court has identified two other policy rationales
for immunizing municipalities and their officials from
tort liability. The first rationale is grounded in the princi-
ple that for courts to second-guess municipal policy
making by imposing tort liability would be to take the
administration of municipal affairs out of the hands to
which it has been entrusted by law. . . . Second, we
have recognized that a civil trial may be an inappropri-
ate forum for testing the wisdom of legislative actions.
This is particularly true if there is no readily ascertain-
able standard by which the action of the government
servant may be measured . . . . Thus, [t]he policy
behind the exception is to avoid allowing tort actions
to be used as a monkey wrench in the machinery of
government decision making.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 319 n.7.
For purposes of determining whether a duty is discre-
tionary or ministerial, this court has recognized that
‘‘[t]here is a difference between laws that impose gen-
eral duties on officials and those that mandate a particu-
lar response to specific conditions.’’ Bonington v.
Westport, 297 Conn. 297, 308, 999 A.2d 700 (2010). ‘‘A
ministerial act is one which a person performs in a given
state of facts, in a prescribed manner, in obedience to
the mandate of legal authority, without regard to or the
exercise of his own judgment [or discretion] upon the
propriety of the act being done.’’7 (Internal quotation
marks omitted.) Blake v. Mason, 82 Conn. 324, 327, 73
A. 782 (1909); see also Benedict v. Norfolk, 296 Conn.
518, 520 n.4, 997 A.2d 449 (2010) (municipal acts are
‘‘deemed ministerial if a policy or rule limiting discre-
tion in the completion of such acts exists’’); Pluhowsky
v. New Haven, 151 Conn. 337, 347, 197 A.2d 645 (1964)
(describing ministerial acts in similar terms). In con-
trast, when an official has a general duty to perform
a certain act, but there is no ‘‘city charter provision,
ordinance, regulation, rule, policy, or any other direc-
tive [requiring the government official to act in a] pre-
scribed manner,’’ the duty is deemed discretionary.
Violano v. Fernandez, supra, 280 Conn. 323.
‘‘In general, the exercise of duties involving inspec-
tion, maintenance and repair of hazards are considered
discretionary acts entitled to governmental immunity.’’
Grignano v. Milford, supra, 106 Conn. App. 656. This
is so because there ordinarily is no legal directive man-
dating the specific manner in which officials must per-
form these tasks. Rather, ‘‘[a] municipality necessarily
makes discretionary policy decisions with respect to the
timing, frequency, method and extent of inspections,
maintenance and repairs.’’ Id.; see also Bonington v.
Westport, supra, 297 Conn. 308–309 (when plaintiff
claimed that defendants had improperly or inadequately
inspected neighboring property for zoning violations,
alleged acts of negligence constituted discretionary acts
because no legal authority mandated inspection to be
performed in prescribed manner); Martel v. Metropoli-
tan District Commission, 275 Conn. 38, 50–51, 881
A.2d 194 (2005) (in absence of any policy or directive
requiring defendants to design, supervise, inspect and
maintain trail on defendant’s property, defendants
‘‘were engaged in duties that inherently required the
exercise of judgment,’’ and, therefore, those duties were
discretionary in nature); Evon v. Andrews, supra, 211
Conn. 506–507 (defendants’ acts were discretionary in
nature because what constitutes reasonable, proper or
adequate fire safety inspection to ensure that multi-
family residence was in compliance with state and local
building codes involves exercise of judgment); Pluhow-
sky v. New Haven, supra, 151 Conn. 347–48 (in absence
of any legal directive requiring defendants to repair
malfunctioning catch basin under specific conditions
or in particular manner, duty was discretionary); Grig-
nano v. Milford, supra, 656–57 (ordinance requiring
owner of maritime facility to maintain physical improve-
ments in safe condition imposed discretionary duty
because ordinance did not ‘‘[prescribe] the manner in
which the defendant is to perform reasonable and
proper inspection and maintenance activities’’); Segreto
v. Bristol, 71 Conn. App. 844, 857–58, 804 A.2d 928
(city’s allegedly negligent design and maintenance of
stairwell located on premises of senior center that was
owned and operated by city was discretionary because
determinations of what is reasonable or proper under
particular set of circumstances necessarily involve
exercise of judgment), cert. denied, 261 Conn. 941, 808
A.2d 1132 (2002).
Consistent with these principles, the Appellate Court
concluded in Silberstein v. 54 Hillcrest Park Associ-
ates, LLC, supra, 135 Conn. App. 273, that the mainte-
nance of storm drains is discretionary in nature. See
also Brusby v. Metropolitan District, 160 Conn. App.
638, 656, 127 A.3d 257 (2015) (in absence of legal direc-
tive prescribing manner in which sanitary sewer system
was to be maintained or repaired, duty was discretion-
ary). In Silberstein, the plaintiffs owned property in the
Hillcrest Park neighborhood of Old Greenwich. Silb-
erstein v. 54 Hillcrest Park Associates, LLC, supra, 264.
The plaintiffs alleged that the defendants, the Hillcrest
Park Tax District (tax district) and Hillcrest Park Asso-
ciation, Inc., which were responsible for maintaining
and constructing roads and storm sewers in the Hill-
crest neighborhood, had negligently failed to do so,
resulting in the periodic flooding of the plaintiffs’ prop-
erty. Id., 264–65. The trial court granted the defendant’s
motion for summary judgment on the ground of govern-
mental immunity. Id., 267. On appeal, the Appellate
Court noted that, although the tax district’s bylaws
stated clearly that one of the functions of that organiza-
tion was ‘‘to construct and maintain roads . . . drains,
[and] storm sewers’’; (internal quotation marks omit-
ted) id., 273; the bylaws did not ‘‘prescribe the manner
in which the roads and drainage systems [were] to be
maintained, and there [was] no evidence in the record
of any procedure or directive governing the manner of
their maintenance.’’ (Emphasis in original.) Id. Accord-
ingly, the court concluded that ‘‘the manner in which
the defendants discharge their duty to maintain the
roads and drainage systems plainly involves the exer-
cise of judgment and discretion,’’ and the duty was,
therefore, discretionary. Id.
Like the plaintiffs in the present case, the plaintiffs
in Silberstein had relied on this court’s statement in
Spitzer v. Waterbury, supra, 113 Conn. 88, that ‘‘[t]he
work of constructing drains and sewers, as well as
that of keeping them in repair, is ministerial, and the
municipality is responsible for negligence in its perfor-
mance’’ to support their contention to the contrary.
Silberstein v. 54 Hillcrest Park Associates, LLC, supra,
135 Conn. App. 272. In Silberstein, the Appellate Court
concluded that Spitzer was distinguishable on the
ground that this court had concluded in Spitzer that
‘‘a municipality’s construction and repair of storm water
sewers and drains [were] ministerial because [they
were] ‘incidental to’ the municipality’s statutorily
imposed duty to maintain its streets and highways. . . .
The court [in Spitzer] reasoned: ‘The duty imposed by
statute upon the municipality to maintain the highways
within its limits makes it necessary for the municipality
to dispose of all surface water falling upon them.’ . . .
Thus, the municipality was legally obligated to maintain
and repair the drains. In contrast to the municipality
in Spitzer, the defendants in [Silberstein were] not
charged with having failed to fulfill a duty that was
imposed upon them by statute. Rather, the plaintiffs
claim[ed] that the defendants negligently failed to carry
out a duty that they assumed pursuant to the tax district
bylaws. The tax district bylaws, however, [did] not pre-
scribe the specific manner in which the duty to maintain
and repair the roads, drains and storm sewers is to be
performed.’’ (Citations omitted; emphasis in original.)
Id., 272, quoting Spitzer v. Waterbury, supra, 87–88.
The plaintiffs in the present case contend that Spitzer
is controlling because, as in that case—unlike Silb-
erstein—the duty of the defendants to repair and main-
tain the drainage system ‘‘originate[s] from the General
Statutes, which require Connecticut municipalities to
maintain the highways within their limits.’’8 The plain-
tiffs further contend that Silberstein is distinguishable
because the plaintiffs in that case alleged that the defen-
dants had negligently failed to install a properly func-
tioning drainage system, and ‘‘the decision to build or
construct storm water systems is almost universally
held to be a governmental discretionary act.’’ (Emphasis
added.) In contrast, the plaintiffs in the present case
allege that the defendants failed to adequately main-
tain and repair the storm drainage system, which, they
argue are ministerial duties. We disagree with both of
these claims.
We first address the plaintiffs’ contention that the
defendants’ duty to maintain and repair the sewer sys-
tem is ministerial because it derives from statute rather
from the town’s own ordinances or rules. As we have
indicated, the Appellate Court also made this distinction
in Silberstein v. 54 Hillcrest Park Associates, LLC,
supra, 135 Conn. App. 272. In support of the proposition
that a duty imposed on a municipality by statute is
necessarily ministerial, whereas a duty voluntarily
assumed by the municipality is discretionary, the Appel-
late Court cited only this court’s statement in Spitzer
v. Waterbury, supra, 113 Conn. 87, that ‘‘[t]he duty
imposed by statute upon the municipality to maintain
the highways within its limits makes it necessary for
the municipality to dispose of all surface water falling
upon them.’’ (Internal quotation marks omitted.) Silb-
erstein v. 54 Hillcrest Park Associates, LLC, supra, 272.
In turn, Spitzer v. Waterbury, supra, 87, supported that
proposition with a citation to Bronson v. Wallingford,
54 Conn. 513, 519–20, 9 A. 393 (1887), in which this
court suggested, in dictum and without citation to any
authority, that a municipality may be held liable for
damages caused while carrying out its statutory duty
to dispose of surface waters falling on its highways,
whereas it would be immune from liability for acts
performed pursuant to a duty imposed by the city char-
ter in the absence of any charter provision providing
a remedy.9
Other cases predating Spitzer present a mirror image
of this proposition, however, and hold that municipali-
ties may not be held liable when they violate public
duties that have been imposed on them by the state,
whereas municipalities can be held liable for the viola-
tion of duties that they voluntarily take upon them-
selves. In Jones v. New Haven, 34 Conn. 1, 13 (1867), this
court stated that ‘‘[w]henever a public duty is imposed
upon a town . . . without its consent, express or
implied, such town . . . is not liable to an action for
negligence in respect to such duty, unless a right of
action is given by statute.’’ (Emphasis added.) In con-
trast, ‘‘when a grant is made to a [municipality] of some
special power or privilege at its request, out of which
public duties grow; and when some special duty is
imposed upon a [municipality] not belonging to it under
the general law with its consent; in these and like cases,
if the corporation is guilty of negligence in the discharge
of such duty, thereby causing injury to another, it is
liable to an action in favor of the party injured.’’ (Empha-
sis added.) Id., 14; see also Dyer v. Danbury, 85 Conn.
128, 131, 81 A. 958 (1911) (same). There are also cases
predating Spitzer holding that acts performed pursuant
to voluntarily assumed duties may be governmental
and, therefore, immune from liability, as well as acts
performed pursuant to duties imposed by statute. See
Hannon v. Waterbury, 106 Conn. 13, 17, 126 A. 876
(1927) (‘‘Whether the duty is directly imposed upon
the city or permissive, that is, one which it voluntarily
assumed . . . does not change the character of the act
or function. The duty in either case will be governmental
if the nature and character of [the] act or function be
such.’’); Pope v. New Haven, 91 Conn. 79, 82, 99 A. 51
(1916) (function may be governmental regardless of
whether ‘‘the legislature determines the necessity and
expediency of the act to be performed’’ or ‘‘the necessity
and expediency are left to be determined by the munici-
pality’’). We are aware of no authority other than the
court’s unsupported dictum in Bronson v. Wallingford,
supra, 54 Conn. 519–20, however, that would support
Spitzer’s suggestion that a duty imposed by statute, as
distinct from a duty that is voluntarily assumed by the
municipality, is by virtue of that fact ministerial.
In any event, the distinction applied by the court in
Jones and Dyer has been superseded by more recent
developments in municipal law and the law governing
governmental immunity. As the Appellate Court recog-
nized in Roman v. Stamford, 16 Conn. App. 213, 219,
547 A.2d 97 (1988), aff’d, 211 Conn. 396, 559 A.2d 710
(1989), ‘‘[u]nlike the Dyer and Jones doctrine of
assumption of municipal liability based upon a charter
provision, the modern construct of municipal liability
rests upon distinctly different considerations.’’ See also
id., 218–19 (‘‘construct [set forth in Jones and Dyer],
wherein special powers are granted to or imposed upon
the municipality, harkens back to the days before the
advent of the principle of home rule’’ and, therefore, is
no longer ‘‘a valid conceptualization of the doctrine of
actionable private duties of a municipality’’).10 Specifi-
cally, under modern principles of governmental immu-
nity, the salient consideration in determining whether
a municipal duty is discretionary or ministerial is not
whether the duty was imposed on the municipality by
statute or voluntarily assumed pursuant to its own ordi-
nances or regulations, but whether there is any statute,
‘‘city charter provision, ordinance, regulation, rule, pol-
icy, or any other directive [requiring the government
official to act in a] prescribed manner.’’ (Emphasis
added.) Violano v. Fernandez, supra, 280 Conn. 323;
see also Roman v. Stamford, supra, 221 (under modern
principles of governmental immunity, ‘‘[a] ministerial
act, as opposed to a discretionary act, refers to [one]
which is to be performed in a prescribed manner with-
out the exercise of judgment or discretion’’ [internal
quotation marks omitted]). Accordingly, we disagree
with the plaintiffs’ argument that Silberstein v. 54 Hill-
crest Park Associates, LLC, supra, 135 Conn. App. 272,
is not controlling because, unlike in Silberstein, the
defendants’ duty in the present case was imposed by
statute.
We next address the plaintiffs’ argument that, in con-
trast to the design of storm water drainage systems,
the duty to repair and maintain such systems is ministe-
rial. In support of this claim, the plaintiffs rely on several
cases from other jurisdictions. The holdings of those
cases, however, can be traced to the outmoded distinc-
tion between duties that are imposed on municipalities
and those that they voluntarily assume. See Johnston
v. District of Columbia, 118 U.S. 19, 21, 6 S. Ct. 923, 30
L. Ed. 75 (1886) (repair of sanitary sewer is ministerial
duty), citing Child v. Boston, 86 Mass. 41, 52 (1862)
(municipality is not liable for defective sanitary sewer
plan because creation of plan involved duty of quasi-
judicial nature, but could be held liable for negligent
care and maintenance of sanitary sewers because those
duties were not imposed by legislative authority for
public purposes but were voluntarily assumed by
municipality); Barton v. Syracuse, 36 N.Y. 54, 54 (1867)
(municipality was liable for negligent failure to repair
sanitary sewers because it voluntarily accepted duty
and assessed costs on beneficiaries);11 Portsmouth v.
Mitchell Mfg. Co., 113 Ohio St. 250, 255–56, 148 N.E. 846
(1925) (citing Barton and concluding that municipality
cannot be held liable for failure to construct storm
sewer but can be held liable for failure to keep storm
sewer in repair). In addition, all of these cases either
involved or relied on cases involving the maintenance
and repair of sanitary sewers, which, unlike the mainte-
nance and repair of storm sewers, arguably may be a
proprietary function under certain circumstances, even
under more modern case law.12 See footnote 10 of
this opinion.
We recognize that, for purposes of imposing liability
on a municipality, some Connecticut cases predating
Spitzer made the distinction between a municipality’s
duty to construct roads and sidewalks, and, by exten-
sion, the storm drains and sewers that are required to
ensure that the roads are functional, as opposed to a
duty of maintenance and repair. In Hoyt v. Danbury,
69 Conn. 341, 351, 37 A. 1051 (1897), for example, this
court observed that a municipality’s statutory obligation
to provide highways ‘‘carried with it the correlative
right of determining the mode of their construction,’’
and ‘‘[a]s to which, out of any appropriate modes of
building the particular sidewalk in question, was to be
chosen, it was for the borough to decide; and so long
as the mode selected was an appropriate and lawful
one, its decision was not subject to collateral review
in a suit of this nature.’’ In other words, Hoyt recognized
that the construction of highways is a discretionary
function. As to highway repairs, this court noted that
municipal liability for the failure to keep roads in good
repair had been imposed by statute, now codified at
General Statutes § 13a-149,13 ‘‘since early colonial
times.’’ Id. The highway defect statute, however, waives
governmental immunity from claims by travelers on the
highway arising from highway defects. See McIntosh
v. Sullivan, 274 Conn. 262, 282, 875 A.2d 459 (2005)
(highway defect statute at issue in Hoyt ‘‘abrogated
governmental immunity’’). Put differently, the highway
defect statute does not impose a ministerial duty to
repair highways, so that a municipality may be held
liable to abutting landowners for breach of that duty.
See Aerotec Corp. v. Greenwich, 138 Conn. 116, 119, 82
A.2d 356 (1951) (highway defect statute ‘‘provides no
right of recovery to an abutting landowner for damage
from a defective highway’’). Thus, the distinction made
in Hoyt between the construction of highways and their
repair, which was premised on the highway defect stat-
ute, is consistent with the modern rule distinguishing
‘‘laws that impose general duties on officials,’’ which
impose discretionary duties, ‘‘and those that mandate
a particular response to specific conditions,’’ which
impose ministerial duties. Bonington v. Westport,
supra, 297 Conn. 308.
The authority that Spitzer itself cited in support of its
statement that the duty to construct and repair drainage
systems is ministerial also can be at least partially rec-
onciled with the modern rule. In Spitzer, this court
relied on a treatise on Municipal Corporations authored
by John F. Dillon. See Spitzer v. Waterbury, supra, 113
Conn. 88, citing 4 J. Dillon, Commentaries on the Law
of Municipal Corporations (5th Ed. 1911) §§ 1742 and
1743, pp. 3054–57. That treatise states the following:
‘‘[A] municipal corporation is liable for negligence in
the ministerial duty to keep its sewers . . . in repair
. . . .’’ (Emphasis in original.) 4 J. Dillon, supra, § 1742,
p. 3055. A careful review of the treatise, however,
reveals that this statement was at least partially prem-
ised on the principle that municipalities are ‘‘bound
to preserve and keep in repair erections [they have]
constructed, so that they shall not become a source
of nuisance to others.’’14 (Emphasis altered; internal
quotation marks omitted.) Id. Consistent with this prin-
ciple, it is well established in this state that ‘‘towns will
not be justified in doing an act lawful in itself in such
a manner as to create a nuisance, any more than individ-
uals. And if a nuisance is thus created, whereby another
suffer[s] damage, towns like individuals are responsi-
ble.’’ (Internal quotation marks omitted.) Hoffman v.
Bristol, 113 Conn. 386, 390, 155 A. 499 (1931); accord
Keeney v. Old Saybrook, 237 Conn. 135, 165, 676 A.2d
795 (1996) (‘‘a municipality may be liable for a nuisance
it creates through its negligent misfeasance or nonfea-
sance’’); Wright v. Brown, 167 Conn. 464, 470, 356 A.2d
176 (1975) (‘‘[l]iability in nuisance can be imposed on
a municipality only if the condition constituting the
nuisance was created by the positive act of the munici-
pality’’); Prifty v. Waterbury, 133 Conn. 654, 657, 54
A.2d 260 (1947) (‘‘the rule which exempts municipalities
from liability when their employees are acting in dis-
charge of a public duty does not relieve them from
liability for the consequences of particular acts which
the municipality has directed to be performed and
which, from their character or the manner in which
they are so ordered to be executed, will naturally work
a direct injury to others or create a nuisance’’); Colwell
v. Waterbury, 74 Conn. 568, 572–73, 51 A. 530 (1902)
(same); Judd v. Hartford, 72 Conn. 350, 354, 44 A. 510
(1899) (although duty to construct sewer was govern-
mental, municipality could be held liable for negligent
failure to remove temporary obstructions after con-
struction because failure to do so turned ‘‘city property
into a nuisance’’); Mootry v. Danbury, 45 Conn. 550,
556 (1878) (when town constructed bridge over stream
that blocked water flow, causing plaintiff’s upstream
property to flood, it may be held liable because ‘‘towns
will not be justified in doing an act lawful in itself
in such a manner as to create a nuisance, any more
than individuals’’).15
The fact that a municipality may be liable for creating
a nuisance, however, does not necessarily mean—at
least not under our more recent cases—that the act
that created the nuisance was ministerial in nature.
Indeed, this court has held that ‘‘a municipality may be
liable for a nuisance . . . even if [its] misfeasance or
nonfeasance also constitutes negligence from which
the municipality would be immune’’ because the munici-
pality was engaged in a discretionary function.16 Keeney
v. Old Saybrook, supra, 237 Conn. 165; but see Judd
v. Hartford, supra, 72 Conn. 353–54 (duty to remove
temporary obstructions from sewer so as to prevent
creation of nuisance was ministerial).
In other words, unlike Dillon’s treatise, which seems
to suggest that ministerial acts are the only acts for
which a municipality may be held liable and, therefore,
that if a municipality can be held liable for creating a
nuisance, the municipal function that resulted in the
creation of the nuisance must be a ministerial one,
our more recent cases have treated nuisance and the
violation of a ministerial duty as entirely distinct theo-
ries of municipal liability.17 See Grady v. Somers, 294
Conn. 324, 335 n.10, 984 A.2d 684 (2009) (governmental
immunity does not apply to claims alleging ‘‘[1] liability
in nuisance, which [may] be imposed . . . only if the
condition constituting the nuisance was created by the
positive act of the municipality; and [2] the negligent
performance of ministerial acts’’ [internal quotation
marks omitted]); see also Keeney v. Old Saybrook,
supra, 237 Conn. 165. Accordingly, although we agree
with Dillon’s treatise to the extent that it recognizes
that there are situations in which a municipality may
be held liable for damage caused by a storm sewer
system that the municipality was responsible for main-
taining and repairing—namely, when the municipality’s
positive act has created a nuisance—we do not agree
with its suggested inference from that proposition,
namely, that the duty to maintain and repair storm sew-
ers is necessarily ministerial.18 Indeed, if that were the
case, municipalities could be held liable for any damage
caused by their failure to maintain and repair storm
sewer systems, even if the ‘‘positive act’’ element of
nuisance were not satisfied. See Wright v. Brown,
supra, 167 Conn. 470 (‘‘[l]iability in nuisance can be
imposed on a municipality only if the condition consti-
tuting the nuisance was created by the positive act of
the municipality’’).
We therefore disagree with the plaintiffs’ argument
that, in determining whether a municipality’s duty with
respect to its storm drains and sewers is ministerial
or discretionary, the relevant considerations are (1)
whether the duty was imposed by statute or, instead,
was voluntarily assumed by the town, and (2) whether
the municipality was constructing the sewers or,
instead, was maintaining or repairing them. Rather, the
relevant consideration under well established modern
principles of governmental immunity remains whether
the duty was a general one or, instead, whether there
was a ‘‘city charter provision, ordinance, regulation,
rule, policy, or any other directive [requiring the govern-
ment official to act in a] prescribed manner.’’ Violano
v. Fernandez, supra, 280 Conn. 323; see also Bonington
v. Westport, supra, 297 Conn. 308 (‘‘[t]here is a differ-
ence between laws that impose general duties on offi-
cials and those that mandate a particular response to
specific conditions’’). To the extent that Spitzer v.
Waterbury, supra, 113 Conn. 84, held otherwise, it is
hereby overruled.
We conclude, therefore, that the defendants in the
present case may be held liable to the plaintiffs only if
there was some legal directive prescribing the specific
manner in which they were required to maintain and
repair the town’s storm sewer system. As we have indi-
cated, the Appellate Court concluded that, ‘‘although
there is language in § 16-32 of the [Naugatuck Code of
Ordinances] that requires the streets commission to
maintain and repair the town’s storm water sewer sys-
tem, the ordinance contains no provisions that mandate
the time or manner in which those responsibilities are
to be executed, leaving such details to the discretion
and judgment of the municipal employees.’’19 Northrup
v. Witkowski, supra, 175 Conn. App. 238. The plaintiffs
do not challenge the Appellate Court’s conclusion that
the language of that ordinance does not, in and of itself,
create a ministerial duty.
Instead, the plaintiffs claim that Witkowski’s deposi-
tion testimony that the streets commission had devel-
oped a schedule to ensure that every catch basin was
maintained at least once a year and that, ‘‘if there were
calls from the public about a basin being blocked or a
bad situation that needed to be addressed, we would
attempt to do that,’’ established the existence of a rule
or policy that limited the streets commission’s discre-
tionary authority under § 16-32 of the Naugatuck Code
of Ordinances and thereby created a ministerial duty.20
In support of this claim, the plaintiffs argue that, in
Mills v. Solution, LLC, 138 Conn. App. 40, 51–52, 50
A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012),
the Appellate Court held that, although the use of the
mandatory language ‘‘shall’’ in a statute does not neces-
sarily create a ministerial duty, if the municipality has
a policy or rule limiting the discretion of public officials
in the performance of a mandatory duty that would
otherwise be discretionary, the duty is ministerial.21 We
are not persuaded that this is a correct interpretation
of Mills. Rather, Mills is more reasonably interpreted
as holding that mandatory statutory language is not
sufficient to create a ministerial duty unless the statute
itself limits discretion in the performance of the manda-
tory act. See id., 52 (‘‘[w]here the text of the statute
explicitly vests the chief of police with the discretion
to determine when and how to furnish police protec-
tion, we decline to hold that the same statute imposes
a ministerial duty on the chief of police to furnish the
protection he deems, in his discretion, to be nec-
essary’’).
We need not decide, however, whether the existence
of a municipal agency’s ‘‘policy or rule’’ that limits the
agency’s discretion in performing a duty imposed by
ordinance or statute can ever convert a duty that other-
wise would be discretionary into a ministerial duty
because, even if we were to assume, without deciding,
that there are circumstances under which it can, we
conclude that Witkowski’s testimony would not be suffi-
cient to establish the existence of such a policy or rule
in the present case. This court previously has held that
a municipality may be held liable for the negligent per-
formance of a duty only if the ‘‘the official’s duty is
clearly ministerial.’’ (Emphasis added; internal quota-
tion marks omitted.) Bonington v. Westport, supra, 297
Conn. 308. We conclude that neither the creation of a
schedule for cleaning all catch basins at least once per
year, nor the practice of attempting to respond to every
complaint about malfunctioning storm drains, consti-
tutes a ‘‘policy or rule’’ converting the discretionary
duty to carry out the functions mandated by § 16-32 of
the Naugatuck Code of Ordinances into a clear ministe-
rial duty. If we were to conclude otherwise, virtually
any attempt by a municipal agency to ensure that its
discretionary duties are regularly and properly carried
out would convert its discretionary duty into a ministe-
rial duty, thereby creating a disincentive for municipal
agencies to make such attempts and undermining the
very policy considerations that the doctrine governmen-
tal immunity was intended to advance. See Violano v.
Fernandez, supra, 280 Conn. 319 (‘‘[d]iscretionary 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 exer-
cise judgment and discretion in their official functions,
unhampered by fear of second-guessing and retaliatory
lawsuits, outweighs the benefits to be had from impos-
ing liability for that injury’’ [internal quotation marks
omitted]).
For similar reasons, we reject the plaintiffs’ claim
that the defendants violated a ministerial duty when
they completely failed to perform any maintenance or
repair of some storm drains and catch basins. In support
of this claim, the plaintiffs rely on this court’s decision
in Evon v. Andrews, supra, 211 Conn. 506, in which
we noted that the plaintiffs had not alleged that ‘‘the
defendants failed to inspect the dwelling’’ but that they
had ‘‘failed to make reasonable and proper inspections
. . . .’’ (Emphasis in original; internal quotation marks
omitted.) The plaintiffs contend that this implies that
municipalities have no discretion to completely fail to
perform a mandatory duty, even if the manner of car-
rying out the duty is discretionary. We disagree. First,
the plaintiffs have cited no evidence that would support
a finding that there are town storm drains and catch
basins that the defendants have never maintained or
repaired, and the frequency of maintenance and repair
is discretionary. See Grignano v. Milford, supra, 106
Conn. App. 656 (‘‘[a] municipality necessarily makes
discretionary policy decisions with respect to the tim-
ing, frequency, method and extent of inspections, main-
tenance and repairs’’ [emphasis added]). Second, even
if we were to assume that the defendants never main-
tained or repaired certain storm drains and catch
basins, we cannot conclude that, in a system as large
and complex as a municipal storm drainage system, the
duty to maintain and repair the system encompasses a
judicially enforceable duty to maintain and repair each
individual component of the system, regardless of the
needs of the system as a whole. It is not the function
of this court to second-guess the administration of such
complex municipal affairs, particularly when ‘‘there is
no readily ascertainable standard by which the action
of the government servant may be measured . . . .’’22
(Internal quotation marks omitted.) Violano v. Fernan-
dez, supra, 280 Conn. 319 n.7.
For the foregoing reasons, we conclude that the
defendants’ duty to maintain and repair the town’s
storm drains and sewers was discretionary and that
the Appellate Court properly upheld the trial court’s
granting of the defendant’s motion for summary judg-
ment on the ground of governmental immunity.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, McDONALD, D’AURIA and
KAHN, Js., concurred.
1
For the sake of simplicity, we refer to the plaintiffs individually by first
name when necessary. We also note that the present action was brought
on Timothy’s behalf by Helen, his mother, as next friend.
2
The following officials were named as defendants: (1) Robert A. Mezzo,
the town’s mayor; (2) Henry J. Witkowski, Jr., who served as the town’s
superintendent of streets; and (3) James Stewart, who served as town engi-
neer until 2009, when he was appointed director of the town’s newly formed
public works department, which replaced the streets commission.
3
We granted the plaintiffs’ petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court properly conclude that the
maintenance and repair of storm water systems is a discretionary duty, in
light of this state’s precedents, including Spitzer v. Waterbury, [supra, 113
Conn. 84], and Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.
App. 262, 41 A.3d 1147 (2012)?’’ Northrup v. Witkowski, 327 Conn. 971, 173
A.3d 392 (2017).
4
‘‘In their complaint, the plaintiffs define ‘black water’ as surface rainwater
that overwhelms and causes a [backup] in the sanitary sewer system,
resulting in flood waters that contain sewage and other contaminants.’’
Northrup v. Witkowski, supra, 175 Conn. App. 226 n.4.
5
On appeal to the Appellate Court, the plaintiffs contended that the trial
court improperly (1) determined that the governmental acts complained of
were discretionary in nature rather than ministerial, (2) concluded that the
identifiable person-imminent harm exception to governmental immunity did
not apply, and (3) raised sua sponte the issue of whether the plaintiffs’
allegations of recklessness directed against the individual defendants could
be maintained against them and ultimately concluded that the claims were
barred by government immunity. Northrup v. Witkowski, supra, 175 Conn.
App. 225–26, 245–46. The Appellate Court rejected all of these claims. Id.,
250. The Appellate Court’s rulings on the second and third claims are not
at issue in this certified appeal. See footnote 3 of this opinion.
6
After the plaintiffs filed this certified appeal, we granted permission
to the cities of Bridgeport, Danbury, Hartford, New Haven, Stamford and
Waterbury to file a joint brief as amicus curiae in support of the defen-
dants’ position.
7
See, e.g., Grignano v. Milford, supra, 106 Conn. App. 657–60 (municipal
ordinance requiring owner of structure within harbor or marine facility that
has been found to be dangerous to post proper notice, to construct barricade,
and to adequately illuminate area until repairs are made created ministerial
duty); see also Wright v. Brown, 167 Conn. 464, 471–72, 356 A.2d 176 (1975)
(statute requiring town dog warden to quarantine dog for fourteen days
after dog bit person created ministerial duty); Pluhowsky v. New Haven,
151 Conn. 337, 347, 197 A.2d 645 (1964) (town clerk has ministerial duty to
record instrument that has been accepted for recordation in land records);
Leger v. Kelley, 142 Conn. 585, 589, 116 A.2d 429 (1955) (statute prohibiting
commissioner of motor vehicles from registering any motor vehicle that
was not equipped with safety glass created ministerial duty).
8
The plaintiffs do not identify the specific statutes that, according to
them, impose this ministerial duty. We note, however, that General Statutes
§ 13a-99 provides: ‘‘Towns shall, within their respective limits, build and
repair all necessary highways and bridges, and all highways to ferries as
far as the low water mark of the waters over which the ferries pass, except
when such duty belongs to some particular person. Any town, at its annual
meeting, may provide for the repair of its highways for periods not exceeding
five years and, if any town fails to so provide at such meeting, the selectmen
may provide for such repairs for a period not exceeding one year.’’
9
Bronson also states that municipalities may be held liable for damage
caused by rainwater runoff from roadbeds ‘‘only in special cases, where
wanton or unnecessary damage is done, or where [the] damage results from
negligence . . . .’’ Bronson v. Wallingford, supra, 54 Conn. 520. The cases
cited in Bronson, however, may be characterized as sounding in nuisance.
See id. As we discuss more fully subsequently in this opinion, a municipality
may be held liable for the creation of a nuisance even when the act that
created the nuisance was, in the language of the older cases, governmental
or, in the language of more recent cases, discretionary. Thus, Bronson may
have conflated the notion that a municipality may be held liable for creating
a nuisance while carrying out a statutory duty with the notion that a munici-
pality may be held liable for the performance of nongovernmental acts.
Suffice it to say that there are a myriad of cases in Connecticut and other
jurisdictions addressing the issue of municipal liability for damages caused
by the failure to maintain roads and sewers, and it is likely possible to find
an isolated case to support any position. See 4 J. Dillon, Commentaries on
the Law of Municipal Corporations (5th Ed. 1911) § 1740, p. 3051 (‘‘[i]t is,
perhaps, impossible to reconcile all of the cases’’ on subject of municipal
liability for damage caused by municipal drains and sewers).
10
Remnants of the construct set forth in Dyer and Jones survive in the
principle that a municipality may be held liable for negligent acts that
are proprietary in nature, as opposed to governmental. See Considine v.
Waterbury, 279 Conn. 830, 844, 905 A.2d 70 (2006) (‘‘municipalities are liable
for their negligent acts committed in their proprietary capacity’’); see also
General Statutes § 52-557n (a) (1) (‘‘a political subdivision of the state shall
be liable for damages to person or property caused by . . . [B] negligence
in the performance of functions from which the political subdivision derives
a special corporate profit or pecuniary benefit’’). Although ‘‘the distinction
between a municipality’s governmental and proprietary functions has been
criticized as being illusory, elusive, arbitrary, unworkable and a quagmire’’;
Considine v. Waterbury, supra, 845; it is relatively clear that, under the
more modern rule, not all duties that a municipality voluntarily assumes
for the benefit of its inhabitants, as distinct from those that it performs for
the benefit of the general public as the agent of the state, are proprietary
or, in the language of the older cases, corporate, and, therefore, subject to
liability. See id., 846 (‘‘functions that appear to be for the sole benefit of a
municipality’s inhabitants, but nevertheless provide indirect benefits to the
general public because the activities were meant to improve the general
health, welfare or education of the municipality’s inhabitants’’ are govern-
mental); id., 848 (‘‘a municipality is engaged in a proprietary function when
it acts very much like private enterprise’’ [internal quotation marks omitted]).
The plaintiffs in the present case make no claim that the maintenance and
repair of a storm sewer system is proprietary in nature. Cf. Platt Bros. &
Co. v. Waterbury, 72 Conn. 531, 549, 45 A. 154 (1900) (‘‘[w]hile sewers or
drains for the disposition of surface waters collecting in highways may be
considered as mere adjuncts of a highway, partaking of its nature as a
governmental use . . . it is different with sewers for the disposition of
refuse and filth accumulated on private property’’ [citation omitted; empha-
sis added]); Brusby v. Metropolitan District, supra, 160 Conn. App. 653
(concluding that there was genuine issue of material fact as to whether
maintenance of sanitary sewer system, of which plaintiff was paying cus-
tomer, was proprietary function).
11
New York state courts continue to accept this distinction between duties
that are imposed on municipalities and those that they voluntarily assume.
See Fireman’s Fund Ins. Co. v. Nassau, 66 A.D. 3d 823, 824, 887
N.Y.S.2d 242 (2009) (municipality is immune from liability for negligent
design of sanitary sewer, but maintenance of sewer is ministerial function);
Biernacki v. Ravena, 245 A.D. 2d 656, 657, 664 N.Y.S.2d 682 (1997)
(following Johnston and concluding that, while municipality is not liable
for defective sanitary sewer plan, construction and repair of sewer are
ministerial functions).
12
The plaintiffs have not cited any Connecticut cases to support their
position that the construction of sewers is discretionary but that their mainte-
nance and repair are ministerial. We note that Spitzer itself made no such
distinction, but indicated that ‘‘[t]he work of constructing drains and sewers,
as well as that of keeping them in repair, is ministerial . . . .’’ Spitzer v.
Waterbury, supra, 113 Conn. 88. Spitzer also stated, however, that ‘‘the duty
to provide . . . drains, authorized by the defendant’s charter, is governmen-
tal in its nature.’’ Id. Because, at that time, acts in furtherance of governmen-
tal or public duties were deemed to be immune from liability, i.e., not
ministerial; see Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982)
(citing Spitzer for proposition that ‘‘[a] municipality is immune from liability
for the performance of governmental acts, as distinguished from ministerial
acts’’); there would appear to be an inconsistency within Spitzer. This
apparent inconsistency may reflect the somewhat confusing state of the
law governing governmental immunity at the time.
13
General Statutes § 13a-149 provides in relevant part: ‘‘Any person injured
in person or property by means of a defective road or bridge may recover
damages from the party bound to keep it in repair. . . .’’
14
Dillon’s treatise also relied on the now outmoded distinction between
public duties, which are imposed on municipalities, and corporate duties,
which municipalities voluntarily assume. See 4 J. Dillon, supra, § 1742, p.
3057 n.1.
15
We note that Spitzer cited Judd and Mootry in support of its conclusion
that a municipality is ‘‘bound to exercise due care in the construction of
its storm water sewers, and would be liable for its failure to do so . . . .’’
Spitzer v. Waterbury, supra, 113 Conn. 88.
16
This court stated in Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27
(1998), that, ‘‘in order to overcome the governmental immunity of municipal
defendants where it applies, the plaintiff must prove that the defendants,
by some positive act, intentionally created the conditions alleged to consti-
tute a nuisance.’’ (Emphasis added.) In support of this statement, this court
cited, among other cases, Keeney v. Old Saybrook, supra, 237 Conn. 165–66,
and Hoffman v. Bristol, supra, 113 Conn. 390–92. See Elliott v. Waterbury,
supra, 421. In both Keeney and Hoffman, however, this court expressly
recognized that a municipality may be held liable for negligently creating
a nuisance. See Keeney v. Old Saybrook, supra, 165 (municipality may be
held liable for nuisance even if its conduct ‘‘constitutes negligence from
which the municipality would be immune’’); Hoffman v. Bristol, supra, 389
(municipality may be held liable for nuisance ‘‘irrespective of whether the
misfeasance or nonfeasance causing the nuisance also constituted negli-
gence’’); see also Judd v. Hartford, supra, 72 Conn. 353 (municipality was
liable when, ‘‘after planning and constructing an adequate sewer, [the munici-
pality] left obstructions in it, placed there for temporary purposes, which
its agents carelessly omitted to remove after those purposes had been accom-
plished’’ [emphasis added]). It is clear, therefore, that, by using the word
‘‘intentionally,’’ Elliott merely intended to emphasize that, for a municipality
to be held liable for creating a nuisance, the nuisance must be the result
of some positive act of the municipality, and that this court did not intend
to suggest that only the intentional act of a municipality can create a nui-
sance. In other words, there is a difference between a positive act, which
may be negligent, as was the act of the municipality in Judd, and an inten-
tional act.
17
The plaintiffs in the present case have made no claim that the defendants
may be held liable for their failure to properly maintain and repair the storm
sewer system under a nuisance theory because a positive act by the town
caused damage to their property. Indeed, at oral argument before this court,
counsel for the plaintiffs conceded that he did not believe that the facts of
this case would support a nuisance claim. See Aerotec Corp. v. Greenwich,
supra, 138 Conn. 120 (noting that municipal liability for nuisance ‘‘exists
. . . only for those nuisances which have been created by positive act’’ and
that ‘‘[t]here is no liability where the condition of the highway which is
dangerous has come into being simply because of the failure of the town
to take remedial steps’’); Karnasiewicz v. New Britain, 131 Conn. 691, 694,
42 A.2d 32 (1945) (when dangerous highway condition does not constitute
defect under highway defect statute and does not constitute nuisance, ‘‘a
municipality is not liable where its sole fault is a failure to take remedial
steps’’); see also footnote 18 of this opinion.
These decisions lend support to our conclusion that the maintenance and
repair of a storm drainage system are not ministerial functions. It would be
odd to conclude that a city is not liable for harms caused by a dangerous
condition on a highway unless the condition was created by a positive act
of the municipality or constituted a defect under the highway defect statute,
but the city may be held liable for harms caused by the failure to take steps
to remedy a dangerous condition in a storm drainage system.
18
We recognize that this court has held that, by enacting § 52-557n, the
legislature eliminated common-law actions against municipalities arising
from injuries for which § 13a-149, the highway defect statute, provides a
remedy, including nuisance actions. See Sanzone v. Board of Police Commis-
sioners, 219 Conn. 179, 192, 592 A.2d 912 (1991) (§ 52-557n provides that
§ 31a-149 ‘‘is a plaintiff’s exclusive remedy against a municipality or other
political subdivision ‘for damages resulting from injury to any person or
property by means of a defective road or bridge’ ’’); see also General Statutes
§ 52-557n (a) (1) (providing that municipality may be held liable for its
negligent acts and negligent acts of its employees acting within scope of
official duties, for acts from which political subdivision derives corporate
profit, and for creation of nuisance, ‘‘provided, no cause of action shall be
maintained for damages resulting from injury to any person or property by
means of a defective road or bridge except pursuant to section 13a-149’’).
As we have indicated herein, however, § 13a-149 does not provide a right
of recovery to an abutting landowner for damage to the land caused by a
defective highway. See Aerotec Corp. v. Greenwich, supra, 138 Conn. 119.
Moreover, a highway need not be defective to constitute a nuisance to
abutting landowners. See Wright v. Brown, supra, 167 Conn. 470 (‘‘[l]iability
in nuisance can be imposed on a municipality only if the condition constitut-
ing the nuisance was created by the positive act of the municipality’’).
19
Section 16-32 of the Naugatuck Code of Ordinances provides: ‘‘Except
as otherwise provided in this article, the streets commission shall be respon-
sible for the care and management of all streets, avenues, highways, alleys
and bridges, and the opening, [grading, improving], repairing and cleaning
of the same; of the construction, protection, repair, furnishing, cleaning,
heating, lighting and general care of all public streets and appurtenances,
except such as are by the express terms of the Charter under the control
of some other officer or department; of the construction, repair, cleaning
and general care of all drains, culverts, sluiceways and catch basins, and
the collection and disposing of ashes, garbage and refuse. The streets com-
mission shall make all suitable rules and regulations in regard to the depart-
ment and the conduct of its business.’’
20
The plaintiffs raised this claim for the first time in their reply brief.
They contend that they did not raise this claim in their main brief because
‘‘the question certified by this [court] was not specific to the [town’s] direc-
tives, but to storm water systems in general . . . .’’ They point out that the
defendants nevertheless addressed ‘‘the question more narrowly as it relates
only to the [town].’’ The plaintiffs fail to recognize, however, that this court
is required to reach the question of whether the defendants’ own acts had
created a ministerial duty only if it rejects their claim that a ministerial duty
was created by statute and that our review of the former issue can only be
to their benefit. By failing to address the issue in their main brief, the
plaintiffs effectively abandoned it. See, e.g., State v. Jose G., 290 Conn. 331,
341 n.8, 963 A.2d 42 (2009) (‘‘[i]t is a well established principle that arguments
cannot be raised for the first time in a reply brief’’ [internal quotation marks
omitted]). Nevertheless, because the plaintiffs cannot prevail on this claim,
and because the defendants have briefed it, we review it. See Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 157–58, 84 A.3d 840 (2014) (review of unpreserved claim may
be appropriate when party who raised it cannot prevail).
21
See also Wisniewski v. Darien, 135 Conn. App. 364, 374–75, 42 A.3d
436 (2012) (although no legal directive prescribed specific manner in which
tree warden was required to perform duties, evidence that town’s assistant
director of public works had repeatedly provided same general direction to
tree warden upon receiving complaints of unsafe trees and tree warden’s
testimony that he had nondiscretionary duty to perform inspection upon
receipt of complaint were sufficient to establish ministerial duty); Kolaniak
v. Board of Education, 28 Conn. App. 277, 281, 610 A.2d 193 (1992) (in case
in which board of education had issued bulletin to all maintenance personnel
directing that walkways were to be inspected and kept clean on daily basis,
maintenance workers had no discretion to determine whether there was
sufficient accumulation of snow before clearing walkways but had ministe-
rial duty to clear walkways of snow and ice).
22
The dissenting justice would conclude that, because ‘‘[o]nly the munici-
pality can construct a storm water drainage system and, once constructed,
only the municipality can maintain the system and repair it to prevent
property damage foreseeably resulting from its malfunction,’’ and ‘‘[b]ecause
storm water drainage systems are municipal property and subject to exclu-
sive municipal control,’’ a municipality should not be permitted to invoke
municipal immunity to ‘‘escape liability.’’ (Internal quotation marks omitted.)
The very purpose of the doctrine of governmental immunity, however, is
to bar liability for harmful negligent conduct by a municipality, and it is in
the very nature of harmful negligent conduct that the harm was within the
power of the tortfeasor to prevent. Thus, to create an exception to the
doctrine in cases in which the dangerous condition was within the municipal-
ity’s control and the municipality could have prevented the harm would
eviscerate the doctrine, and would entirely disregard the underlying ‘‘value
judgment that—despite injury to a member of the public—the broader inter-
est 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.’’ (Internal quotation marks omitted.) Vio-
lano v. Fernandez, supra, 280 Conn. 319.