Northrup v. Witkowski

GEORGE NORTHRUP ET AL. v. HENRY WITKOWSKI,
JR., ET AL.
(AC 38878)
Alvord, Prescott and Mullins, Js.
Syllabus
The plaintiff homeowners commenced this action against the defendants,
the borough of Naugatuck and several of its town officials, to recover
damages sustained as the result of repeated flooding of their property.
They alleged that on eight occasions between 2009 and 2012, their
property was inundated with water following heavy rainfall when the
single catch basin in the area was clogged or otherwise inadequate
to redirect water away from their property, and that the defendants
negligently and recklessly had failed to perform their municipal duties
in an appropriate manner. The trial court granted the defendants’ motion
for summary judgment on the ground of governmental immunity pursu-
ant to statute (§ 52-557n [a] [2] [B]) as to the counts of the complaint
alleging negligence and recklessness. From the judgment rendered
thereon, the plaintiffs appealed to this court, claiming, inter alia, that
issues of material fact existed as to whether the acts or omissions of
the defendants were discretionary or ministerial in nature. Specifically,
they claimed that certain language in a town ordinance, which assigned
responsibility for the care, management, and maintenance of the town’s
storm water drainage system to the town’s street commission, imposed a
ministerial duty on the defendants to keep the storm drains and drainage
pipes near the plaintiff’s property in a safe and operable condition. Held:
1. The trial court correctly determined that there were no genuine issues
of material fact with respect to whether the defendants’ alleged negligent
acts or omissions were discretionary in nature and, thus, subject to
governmental immunity: although the town ordinance on which the
plaintiffs’ relied required the street commission to clean, to maintain
and to repair the town’s storm water sewer system, the ordinance con-
tained no provisions that mandated the time or manner in which those
responsibilities were to be executed, and the day-to-day decision making
regarding when and how to direct town resources in furtherance of the
duty to keep the storm water systems up-to-date and working properly
necessarily was left to the judgment and discretion of street commission
officials and employees; moreover, certain case law relied on by the
plaintiffs in support of their claim that genuine issues of material fact
existed as to whether the defendants’ duty was discretionary in nature
was factually distinguishable from the present case and contained dicta
that was not binding on this court.
2. The trial court properly rejected the plaintiffs’ claim that the identifiable
person-imminent harm exception to discretionary act immunity applied
to the facts of the present case, the plaintiffs having failed to demonstrate
that the harm alleged was imminent; because the instances of flooding
here occurred eight times over the course of four years during periods
of greater than usual rainfall when the catch basins in the area either
were filled with snow and ice or otherwise blocked by debris, and
because there was not a high probability that damaging flooding would
occur at any particular time, there was no clear and urgent need for
action on the part of the defendants, and the court, therefore, properly
determined that the plaintiffs could not demonstrate imminent harm.
3. The trial court properly rendered summary judgment in favor of the
defendants on the counts of the complaint alleging recklessness; the
plaintiffs’ allegations of recklessness, which were identical to the allega-
tions in support of the negligence counts, could not reasonably be
characterized as rising above mere negligence and, even if true, were
insufficient, as a matter of law, for their submission to the jury, as the
record could not support a finding that any of the individual defendants
acted or failed to act with the type of wanton disregard that is the
hallmark of reckless behavior.
Argued April 19—officially released August 1, 2017
Procedural History
Action to recover damages for property damage sus-
tained as a result of the alleged negligence of the named
defendant et al., 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 judgment and rendered judgment
thereon; thereafter, the court denied the plaintiffs’
motion to reargue, and the plaintiffs appealed to this
court. Affirmed.
Joshua F. Gilman, for the appellants (plaintiffs).
Thomas Gerarde, with whom, on the brief, was Emily
E. Holland, for the appellees (defendants).
Opinion
PRESCOTT, J. The underlying action arose as a result
of the repeated flooding of residential property due to
inadequate street drainage of which the municipality
and its officials allegedly were aware but failed to cor-
rect. The plaintiffs, George Northrup and Helen
Northrup,1 the owners of the property at issue, appeal
from the summary judgment rendered by the trial court
in favor of the defendants—the borough of Naugatuck
(town); Henry J. Witkowski, Jr., the town’s former
superintendent of streets; James Stewart, the former
town engineer and, later, the town’s director of public
works;2 and Robert A. Mezzo, the town’s mayor3—upon
its determination that all counts of the plaintiffs’ com-
plaint were barred by governmental immunity.
The plaintiffs claim on appeal that the court improp-
erly determined that (1) the defendants were entitled
to governmental immunity on all counts as a matter
of law because the acts or omissions of which they
complained were discretionary rather than ministerial
in nature, (2) the identifiable person-imminent harm
exception to governmental immunity did not apply to
the flooding at issue because the plaintiffs were not
subject to imminent harm, and (3) the allegations of
recklessness directed against the individual defendants
could not be sustained as a matter of law. We disagree
with the plaintiffs and, for the reasons that follow,
affirm the judgment of the trial court.
The record before the court, viewed in the light most
favorable to the plaintiffs as the nonmoving party,
reveals 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 inun-
dated the property because the single catch basins in
the area routinely became clogged or inadequately redi-
rected water away from the property.
After the first occurrence in July, 2009, Helen
Northrup contacted Stewart, who, at that time, was
the town’s supervisory engineer. He told her that the
flooding was the result of a rare storm and that it would
not happen 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.
The plaintiffs commenced the underlying action in
February, 2010. They filed an amended complaint on
March 11, 2013. The amended complaint contained nine
counts. Counts one, two, and six sounded in negligence
against Witkowski, Jr., Stewart, and the town. Counts
three through five alleged common-law recklessness
against the individual defendants. Counts seven through
nine alleged negligent infliction of emotional distress
against Witkowski, Jr., Stewart, and the town.
On April 5, 2013, the defendants filed a motion to
strike all but the negligence counts. Specifically, the
defendants argued that the counts alleging common-
law recklessness against the individual defendants
should be stricken because they failed to set forth alle-
gations of conduct that would give rise to a finding of
recklessness. Further, the defendants argued that the
counts sounding in negligent infliction of emotional
distress should be stricken because such a cause of
action cannot arise from allegations of damage to prop-
erty only. The plaintiffs filed an opposition to the motion
to strike alleging that all causes of action were suffi-
ciently pleaded given those allegations that were
expressly pleaded as well as those necessarily implied.
The court, Frechette, J., issued an order denying the
motion to strike as to the recklessness counts, but grant-
ing the motion as to those counts alleging negligent
infliction of emotional distress. The court stated in its
order that ‘‘[t]aken as admitted, the plaintiff’s allega-
tions of recklessness are sufficient.’’ The court never-
theless agreed ‘‘with the vast majority of Superior Court
decisions which hold that Connecticut does not recog-
nize a cause of action for negligent infliction of emo-
tional distress arising solely out of a property
damage claim.’’
On June 4, 2013, the plaintiffs filed the operative
second amended complaint, in which, among other
things, they repleaded their counts alleging negligent
infliction of emotional distress. The defendants filed a
revised answer on February 27, 2014, in which they
raised special defenses of contributory negligence, gov-
ernmental immunity, and failure to mitigate damages.
A certificate of closed pleadings and a claim for the
trial list was filed on May 4, 2015.
On October 30, 2015, the defendants filed the motion
for summary judgment underlying the present appeal.
The defendants submitted a supporting memorandum
of law, attached to which were partial transcripts from
the depositions of Helen Northrup and the individual
defendants, as well as an affidavit by Stewart. The
defendants argued that the negligence counts, including
those alleging negligent 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 governmental 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 demonstrably 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. With regard to the recklessness
counts, the plaintiffs argued that a genuine issue of
material fact exists as to whether the conduct of the
individual defendants rose to the level of recklessness.
The plaintiffs attached a number of exhibits to their
objection, including portions of the deposition testi-
mony of Helen Northrup, Stewart, and Witkowski, Jr.;
an affidavit from Helen Northrup; a copy of the ‘‘Octo-
ber, 2009 Stormwater Management Report for the Net-
tleton Avenue Neighborhood’’; a copy of chapter 16,
article II, § 16-32 of the town’s code of ordinances; Wit-
kowski, Jr.’s and Stewart’s answers to the plaintiffs’
interrogatories; and copies of sewer back-up reports
and citizen complaints regarding problems at nearby
properties. The defendants filed a reply memorandum.
Oral argument on the motion was heard by the court,
Blue, J., on January 4, 2016. During argument regarding
whether there were sufficient facts in evidence to sub-
mit the recklessness counts to a jury, the court asked
the plaintiffs’ counsel whether he knew of ‘‘any case
in Connecticut or elsewhere where a town or town
official has been held liable in recklessness’’ in a situa-
tion similar to the present case. Counsel answered in
the negative, but asked for an opportunity to submit a
supplemental brief addressing the court’s question. The
court agreed, with the consent of the defendants’ coun-
sel, and continued the matter to January 19, 2016, for
supplemental argument on the recklessness counts. The
plaintiffs submitted their supplemental brief on January
8, 2016, and the defendants filed a brief in response on
January 15, 2016. Argument on the motion for summary
judgment resumed on January 19, 2016.
On January 20, 2016, the court issued a memorandum
of decision granting summary judgment in favor of the
defendants on all counts. With respect to the negligence
counts, including those counts alleging negligent inflic-
tion of emotional distress, the court concluded that the
plaintiffs’ specifications of negligence amounted to a
‘‘litany of discretionary omissions’’ and that their ‘‘alle-
gations 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 judg-
ment only set forth the general duties of the street
department without any specific directions or mandates
as to how those duties should be discharged. Accord-
ingly, the court concluded that the defendants’ acts or
omissions in maintaining the town’s drainage system
were discretionary in nature. Furthermore, the court
concluded that the identifiable person-imminent harm
exception to discretionary act immunity was inapplica-
ble 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 reckless-
ness 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 this appeal followed.
We begin with the standard of review we employ in
appeals challenging a court’s decision to grant summary
judgment. ‘‘Practice Book § [17-49] provides that sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and any other proof submitted 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. . . . In deciding a motion for summary judg-
ment, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . . The party
seeking summary judgment has the burden of showing
the absence of any genuine issue [of] material facts
which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law . . . and
the party opposing such a motion must provide an evi-
dentiary foundation to demonstrate the existence of a
genuine issue of material fact. . . . [I]ssue-finding,
rather than issue-determination, is the key to the proce-
dure. . . . [T]he trial court does not sit as the trier of
fact when ruling on a motion for summary judgment.
. . . [Its] function is not to decide issues of material
fact, but rather to determine whether any such issues
exist. . . . Our review of the decision to grant a motion
for summary judgment is plenary. . . . We therefore
must decide whether the court’s conclusions were
legally and logically correct and find support in the
record.’’ (Internal quotation marks omitted.) DiMiceli
v. Cheshire, 162 Conn. App. 216, 221–22, 131 A.3d
771 (2016).
We turn next to the law governing municipal liability
and the liability of municipal agents, which is well set-
tled. At common law, a municipality generally was
immune from liability for its tortious acts. Spears v.
Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). As our
Supreme Court has recognized, however, ‘‘governmen-
tal immunity may be abrogated by statute.’’ (Internal
quotation marks omitted.) Id. General Statutes § 52-
557n (a) (1) provides in relevant part: ‘‘Except as other-
wise provided by law, a political subdivision of the state
shall be liable for damages to person or property caused
by: (A) The negligent acts or omissions of such political
subdivision or any employee, officer or agent thereof
acting within the scope of his employment or official
duties . . . .’’ This language ‘‘clearly and expressly
abrogates the traditional common-law doctrine in this
state that municipalities are immune from suit for torts
committed by their employees and agents.’’ (Internal
quotation marks omitted.) DiMiceli v. Cheshire, supra,
162 Conn. App. 223.
Subdivision (2) of § 52-557n (a), however, sets forth
two express and significant limitations on the statute’s
general abrogation of governmental immunity. Relevant
to the present appeal is the following: ‘‘Except as other-
wise provided by law, a political subdivision of the state
shall not be liable for damages to person or property
caused by . . . (B) negligent acts or omissions which
require the exercise of judgment or discretion as an
official function of the authority expressly or impliedly
granted by law. . . .’’ General Statutes § 52-557n (a) (2)
(B). ‘‘The statute, thus, distinguishes between discre-
tionary acts and those that are ministerial in nature,
with liability generally attaching to a municipality only
for negligently performed ministerial acts, not for negli-
gently performed discretionary acts.’’ DiMiceli v.
Cheshire, supra,162 Conn. App. 224.
‘‘Municipal officials are immune from liability for neg-
ligence 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.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Doe v. Petersen, 279 Conn. 607, 614–15, 903 A.2d 191(2006).
‘‘The hallmark of a discretionary 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.
. . . In order to create a ministerial duty, there must
be a city charter provision, ordinance, regulation, rule,
policy, or any other directive [compelling a municipal
employee] to [act] in any prescribed manner. . . .
‘‘In general, the exercise of duties involving inspec-
tion, maintenance and repair of hazards are considered
discretionary acts entitled to governmental immunity.
. . . A municipality necessarily makes discretionary
policy decisions with respect to the timing, frequency,
method and extent of inspections, maintenance and
repairs. . . . Although the determination of whether
official acts or omissions are ministerial or discretion-
ary is normally a question of fact for the fact finder
. . . there are cases where [such a determination] is
apparent from the complaint. . . . [W]hether an act or
omission is discretionary in nature and, thus, whether
governmental immunity may be successfully invoked
pursuant to § 52-557n (a) (2) (B), turns on the character
of the act or omission complained of in the complaint.
. . . Accordingly, where it is apparent from the com-
plaint that the defendants’ allegedly negligent acts or
omissions necessarily involved the exercise of judg-
ment, and thus, necessarily were discretionary in
nature, summary judgment is proper.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) DiMiceli v. Cheshire, supra, 162 Conn. App.
224–25.
Even if a municipal defendant’s conduct is discretion-
ary in nature, our courts have identified three excep-
tions to discretionary act immunity. ‘‘Each of these
exceptions represents a situation in which the public
official’s duty to act is [so] clear and unequivocal that
the policy rationale underlying discretionary act immu-
nity—to encourage municipal officers to exercise judg-
ment—has no force. . . . First, liability may be
imposed for a discretionary act when the alleged con-
duct involves malice, wantonness or intent to injure.
. . . Second, liability may be imposed for a discretion-
ary act when a statute provides for a cause of action
against a municipality or municipal official for failure
to enforce certain laws. . . . Third, liability may be
imposed when the circumstances make it apparent to
the public officer that his or her failure to act would
be likely to subject an identifiable person to imminent
harm.’’ (Citations omitted; internal quotation marks
omitted.) Doe v. Petersen, supra, 279 Conn. 615–16. With
these general principles in mind, we turn to the plain-
tiffs’ claims on appeal.
I
The plaintiffs first claim on appeal that the court
improperly determined as a matter of law that the defen-
dants were entitled to governmental immunity on all
counts because the acts or omissions of which the plain-
tiffs complained were discretionary in nature rather
than ministerial. We disagree.
In arguing that the alleged negligent acts or omissions
of the defendants in the present case were ministerial
in nature rather than discretionary, the plaintiffs rely
upon § 16-32 of the town’s code of ordinances and our
Supreme Court’s decision in Spitzer v. Waterbury, 113
Conn. 84, 154 A. 157 (1931). We are not persuaded,
however, that any language found in § 16-32 imposes
a ministerial duty on the defendants with respect to
maintaining and repairing the town’s storm water drain-
age systems or that the language the plaintiffs have
culled from the discussion in Spitzer necessarily sup-
ports a contrary conclusion. We address each argument
in turn.
A
As previously set forth, our courts consistently have
adhered to the principle that to demonstrate the exis-
tence of a ministerial duty on the part of a municipality
and its agents, a plaintiff ordinarily must point to some
statute, city charter provision, ordinance, regulation,
rule, policy, or other directive that, by its clear language,
compels a municipal employee to act in a prescribed
manner, without the exercise of judgment or discretion.
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. Cheshire, supra, 162
Conn. App. 224–25; Grignano v. Milford, 106 Conn.
App. 648, 659–60, 943 A.2d 507 (2008). In the present
case, the plaintiffs argue that § 16-32 of the town’s code
of ordinances, which assigns responsibility for the care,
management, and maintenance of the town’s storm
water drainage system to the town’s street commission,
contains such language. Specifically, the plaintiffs insist
that § 16-32 imposed a ministerial duty on the defen-
dants to keep the storm drains and drainage pipes near
their property in a safe and operable condition, and their
failure to exercise that duty in a reasonable manner led
to the flooding of the plaintiffs’ property.
Section 16-32 of the town’s code of ordinances pro-
vides as follows: ‘‘Except as otherwise provided in this
article, the streets commission shall be responsible for
the care and management of all streets, avenues, high-
ways, 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, clean-
ing and general care of all drains, culverts, sluiceways
and catch basins, and the collection and disposing of
ashes, garbage and refuse. The streets commission shall
make all suitable rules and regulations in regard to the
department and the conduct of its business.’’5 Nauga-
tuck Code of Ordinances, c. 16, art. II, § 16-32.
It is indisputable that the ordinance places the
responsibility of cleaning, maintaining and repairing the
town’s catch basins and other elements of the storm
water sewer squarely in the hands of the streets com-
mission. The plaintiffs, however, have not alerted us
to, nor have we identified on the basis of our own
review, any language in § 16-32 of the town’s code of
ordinances that mandates the manner in which the
streets commission, the town, or any of its municipal
employees should endeavor to meet this responsibility.
The day-to-day decision-making regarding when and
how to direct town resources in furtherance of the duty
to keep the storm water systems up-to-date and working
properly necessarily is left to the judgment and discre-
tion of street commission officials and employees. See
Grignano v. Milford, supra, 106 Conn. App. 656 (‘‘[a]
municipality necessarily makes discretionary policy
decisions with respect to the timing, frequency, method
and extent of inspections, maintenance and repairs’’).
‘‘There 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). This
court’s decision in Grignano v. Milford, supra, 106
Conn. App. 648, in which this court affirmed the grant-
ing of summary judgment in favor of the defendant
town, is illustrative of this point. The plaintiff in Grig-
nano asserted that language in a town ordinance cre-
ated a ministerial duty requiring the defendant town to
perform reasonable and proper inspections and mainte-
nance activities on the premises where the plaintiff had
fallen and been injured. Id., 656. This court concluded
to the contrary that the defendant’s exercise of that
duty was discretionary because the ordinance did not
prescribe the frequency of or the manner in which the
defendant was to perform inspection and maintenance.
Id., 656–57.
Similarly, in DiMiceli v. Cheshire, supra, 162 Conn.
App. 219, the plaintiffs appealed from a summary judg-
ment rendered on their complaint alleging that the
defendant town had negligently exercised its ministerial
duty to maintain a town park and seesaw, on which
the plaintiff child was injured. In support of their argu-
ment that the town’s duty was ministerial rather than
discretionary, the plaintiffs cited to, inter alia, a provi-
sion in the town’s code of ordinances. Id., 225. The
town ordinance at issue provided that ‘‘[t]he town’s
parks and recreational facilities shall be maintained for
the residents of Cheshire and guests in their company.’’
(Internal quotation marks omitted.) Id., 226. This court
agreed with the trial court that the ordinance did not
impose a ministerial duty on the town because it did not
mandate the manner in which the town was supposed to
conduct maintenance. Because those decisions were
left to the judgment and discretion of municipal employ-
ees, the town was entitled to discretionary act immu-
nity. Id., 226, 229.
Turning back to the present case, although there is
language in § 16-32 of the town’s code of ordinances
that requires the streets commission to maintain and
repair the town’s storm water sewer system, the ordi-
nance 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.
B
Despite the absence of any language limiting the dis-
cretion of the defendants, the plaintiffs nevertheless
argue on the basis of language from our Supreme
Court’s decision in Spitzer v. Waterbury, supra, 113
Conn. 85, that there remains a genuine issue of material
fact as to whether the defendants’ duty was discretion-
ary in nature. We are unconvinced that Spitzer under-
mines our analysis in part I A of this opinion, because
the language on which the plaintiffs rely is dicta and
subsequent Supreme Court cases since Spitzer have
refined and clarified the appropriate analysis to apply
when determining whether acts or omissions of a
municipality are discretionary or ministerial for pur-
poses of determining governmental immunity. Accord-
ingly, we conclude that Spitzer does not support the
weight placed upon it by the plaintiffs.
In Spitzer, as in the present case, the plaintiff prop-
erty owners sued the defendant city after the city’s
storm water sewer overflowed from a nearby catch
basin and flooded their cellar, causing damage. Spitzer
v. Waterbury, supra, 113 Conn. 85. The trial court ruled
against the property owners and in favor of the defen-
dant city on the two counts of negligence, and the
Supreme Court affirmed that judgment on appeal.
According to the Supreme Court, the appeal was limited
to ‘‘the correctness of the court’s conclusion that the
city was not liable for the damage resulting from its
failure to provide an outlet of sufficient size to carry
off the water, which was discharged into [a] covered
stream after the rainfall . . . .’’ Id., 85–86. In other
words, the issue was not about whether catch basins
were properly maintained and cleaned regularly so as
to handle above ordinary rainfall, but whether the catch
basin system as it was planned could handle even ordi-
nary amounts of rain.
In resolving that issue, the Supreme Court reasoned
that ‘‘if the plan adopted by the city failed to provide
an outlet of sufficient size to carry off the surface water
which might reasonably be expected to accumulate
under ordinary conditions, with the result that the water
thus collected was discharged in a body upon the plain-
tiffs’ property, the city could not escape liability for the
resulting invasion of the plaintiffs’ rights upon the plea
that it was acting in the discharge of a governmental
duty. . . . If, however, the drains and sewers of a
municipality are amply sufficient to meet all demands
upon them under ordinary conditions, the municipality
is not liable because they may prove inadequate to carry
off the surplus water from an extraordinary storm or
flood. . . . An extraordinary storm is not necessarily
an unprecedented one, but one that happens so rarely
that it is unusual and not ordinarily to be expected.’’
(Citations omitted.) Id., 90.
The Supreme Court cited to the trial court’s unchal-
lenged findings that the rainfall that caused the flooding
of the Spitzers’ property was unusual and unprece-
dented and that the storm water system in the area
was of a sufficient size and construction to handle an
ordinary rainfall. Id. According to the Supreme Court,
those findings were ‘‘decisive, adverse to the plaintiffs’
contention, as to the liability of the city, either on the
ground of negligent construction or of a direct invasion
of the plaintiffs’ rights by reason of a defective plan of
construction.’’ Id., 90–91.
The claims of negligence at issue in Spitzer did not
involve claims that municipal employees had failed to
maintain the city’s storm water system properly, or
failed to correct or ignored problems brought to their
attention by property owners, and, therefore, the case
is factually distinguishable. Despite the fact that the
defendant municipality prevailed in Spitzer, the plain-
tiffs here nevertheless direct our attention to the follow-
ing passage, which they contend supports their
assertion that discretionary act immunity should not
apply in the present case. In discussing a municipality’s
general duty to construct a storm water system, which
was not at issue in Spitzer, the Supreme Court observed
that a city is ‘‘bound to exercise due care in the construc-
tion of its storm water sewers, and would be liable for
its failure to do so, though the work was done in the
performance of a public and governmental duty. . . .
The 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 per-
formance.’’ (Citations omitted; emphasis added.) Id.,
88.
There is no further discussion or analysis in Spitzer
regarding the nature of a municipality’s duty to keep a
drainage system in good repair. The court does not
discuss, for example, whether the exercise of discretion
or judgment was needed to meet the municipality’s
obligation, a touchstone now in determining whether
a duty is ministerial in nature. Violano v. Fernandez,
supra, 280 Conn. 318. Moreover, the language was
superfluous to the issue before the court and unneces-
sary to the court’s holding. This language from Spitzer
has not been relied upon or cited favorably in any recent
appellate cases in which the court was tasked with
deciding whether a municipality had a discretionary or
ministerial duty. We view the highlighted language as
nothing more than dicta, which is not binding on this
court.6 See State v. DeJesus, 288 Conn. 418, 454 n.23,
953 A.2d 45 (2008).
Furthermore, in Silberstein v. 54 Hillcrest Park Asso-
ciates, LLC, 135 Conn. App. 262, 41 A.3d 1147 (2012),
this court, in addition to distinguishing Spitzer on its
facts, suggested that Spitzer was no longer broadly
applicable in distinguishing between ministerial and dis-
cretionary acts. The plaintiffs in Silberstein were home-
owners who lived in a neighborhood association and
private tax district, and they filed a negligence action
against the association and tax district alleging that they
had failed to maintain the roads and drainage systems in
the neighborhood, resulting in periodic flooding of the
homeowners’ properties. Id., 265. The trial court deter-
mined that the duty to maintain the roads, storm drains,
and sewers was discretionary in nature and granted
summary judgment for the defendants on the basis of
governmental immunity. Id., 266. In affirming the judg-
ment of the trial court, this court discussed the Spitzer
language, and noted, ‘‘[s]ince Spitzer, our Supreme
Court has refined its analysis of the relationship and
differences between ministerial and discretionary acts
to determine [questions of municipal liability].’’ Id., 272.
We agree with that analysis.
As we have already indicated, there is now a well-
established legal distinction ‘‘between laws that impose
general duties on officials and those that mandate a
particular response to specific conditions.’’ Id., 273.
Under our existing jurisprudence, a ministerial duty on
the part of a municipality or its agents ordinarily will
be found only if some municipal ordinance, rule, policy,
or other official directive clearly compels a prescribed
manner of action that does not involve the exercise of
judgment or discretion. See Coley v. Hartford, 312
Conn. 150, 161–62, 95 A.3d 480 (2014); Bonington v.
Westport, supra, 297 Conn. 310–11; Violano v. Fernan-
dez, supra, 280 Conn. 323.
Considered in light of our modern case law analyzing
qualified governmental immunity, we are convinced
that the court correctly determined that there was no
genuine issue of material fact to be resolved with
respect to whether the alleged negligent acts or omis-
sions of the defendants were discretionary in nature
and, thus, subject to immunity. Accordingly, we reject
the plaintiffs’ claim.
II
The plaintiffs next claim that, even if the defendants’
actions were discretionary in nature, the court improp-
erly concluded that the identifiable person-imminent
harm exception to governmental immunity did not
apply to the flooding of their property because the plain-
tiffs were not subject to imminent harm. We disagree.
‘‘The imminent harm exception to discretionary act
immunity [for municipalities and their employees]
applies when the circumstances make it apparent to
the public officer that his or her failure to act would
be likely to subject an identifiable person to imminent
harm. . . . By its own terms, this test requires three
things: (1) an imminent harm; (2) an identifiable [per-
son]; and (3) a public official to whom it is apparent
that his or her conduct is likely to subject that [person]
to that harm. . . . [Our Supreme Court has] stated pre-
viously that this exception to the general rule of govern-
mental immunity for employees engaged in
discretionary activities has received very limited recog-
nition in this state.’’ (Internal quotation marks omitted.)
Strycharz v. Cady, 323 Conn. 548, 573–74, 148 A.3d
1011 (2016).
In Haynes v. Middletown, 314 Conn. 303, 101 A.3d
249 (2014), our Supreme Court reexamined and clarified
our jurisprudence with respect to the principle of immi-
nent harm. The court emphasized that in determining
whether a harm is ‘‘imminent,’’ it should focus on ‘‘the
magnitude of the risk that the condition created’’ not
‘‘the duration of the alleged dangerous condition.’’
(Emphasis in original.) Id., 322. This court later
explained that ‘‘when the court in Haynes spoke of the
magnitude of the risk . . . it specifically associated it
with the probability that harm would occur, not the
foreseeability of the harm.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) Williams
v. Housing Authority, 159 Conn. App. 679, 704–705,
124 A.3d 537, cert. granted on other grounds, 319 Conn.
947, 125 A.3d 528 (2015). ‘‘[T]he likelihood of the harm
must be sufficient to place upon the municipal defen-
dant a ‘clear and unequivocal duty’ . . . to alleviate the
dangerous condition.’’ (Citation omitted.) Id., 706. In
other words, ‘‘the probability that harm will occur must
be so high as to require the defendant to act immediately
to prevent the harm.’’ (Emphasis omitted.) Id., 706.
The instances of flooding in the present case occurred
eight times over the course of four years, from 2009 to
2012. There is no indication in the record about the
number of rainfalls that occurred each year, but it would
strain credulity to imagine the plaintiffs’ property
flooded each time it rained, a fact that was never
asserted by the plaintiffs. In fact, the evidence suggests
that the flooding at issue occurred during periods of
greater than usual rainfall, when the catch basins in the
area either were filled with snow and ice or otherwise
blocked by debris. Although the possibility of damaging
flooding to the plaintiffs’ property arguably should have
been apparent to the defendants given the property’s
history, the overall probability that conditions neces-
sary to cause flooding would occur at any particular
time was relatively low. Accordingly, the court properly
determined that the plaintiffs could not demonstrate
imminent harm.
Our conclusion finds support in our case law. In dis-
cussing imminent harm in Haynes, the Supreme Court
discussed our decision in Silberstein v. 54 Hillcrest
Park Associates, LLC, supra, 135 Conn. App. 262, which
also involved a claim of repeated flooding during peri-
ods of heavy rainfall over the course of several years.
The Supreme Court observed in Haynes that the risk
of harm in Silberstein was not imminent ‘‘because it
was not apparent to the municipal defendant that the
risk of harm was so great that the defendant’s duty to
act immediately to prevent the harm was clear and
unequivocal.’’ Haynes v. Middletown, supra, 314 Conn.
322 n.14. In other words, because there was not a high
probability that damaging flooding would occur at any
particular time, there was no clear and urgent need for
action on the part of the defendants.
Furthermore, our Supreme Court’s decision in Bon-
ington v. Westport, supra, 297 Conn. 297, also supports
our conclusion that the harm at issue in the present case
was not imminent harm for purposes of the identifiable
person-imminent harm exception. The court in Boning-
ton rejected the plaintiff landowners’ argument that the
risk of flooding caused by excess surface water runoff
during periods of significant rainfall was an imminent
harm. The court indicated that such a risk fell ‘‘short
of the limited circumstances under which imminent
harm may be established.’’ Id., 314. As the court
explained: ‘‘Although the plaintiffs’ property undoubt-
edly constitutes a discrete place, and rainfall inevitably
would occur at that site at some point in the future,
a significant rainfall causing excessive surface runoff
necessarily would occur at an indefinite point in time.
Such harm is not imminent.’’ Id., 315.
Consistent with Bonington, we conclude that the risk
at issue here did not rise to imminent harm under the
test established in Haynes. Accordingly, the court prop-
erly rejected the plaintiffs’ claim that the identifiable
person-imminent harm exception was applicable under
the facts of this case.
III
Finally, the plaintiffs claim that the court improperly
raised sua sponte whether the plaintiff’s allegations of
recklessness directed against the individual defendants
could be maintained against them as a matter of law,
and ultimately decided adversely to the plaintiffs that
the counts alleging recklessness against the individual
defendants were barred by governmental immunity. For
the reasons that follow, we affirm the court’s decision
to grant summary judgment on these counts, albeit on
the basis of an alternative ground briefed by the parties.
See Diamond 67, LLC v. Oatis, 167 Conn. App. 659,
679–80, 144 A.3d 1055 (appellate court may affirm judg-
ment on dispositive alternative ground for which there
is support in trial court record and provided parties not
prejudiced or unfairly surprised by consideration of
issue), cert. denied, 323 Conn. 927, 159 A.3d 229 (2016).
In their motion for summary judgment, the only basis
for summary judgment asserted by the defendants with
respect to the counts alleging recklessness was that
there was no evidence that the individual defendants
engaged in reckless behavior and that no genuine issue
of material fact existed with respect to that issue. The
court, however, later raised sua sponte and asked for
briefing on whether claims of recklessness against a
municipality or its agents could be maintained as a
matter of law. In reaching its conclusion, it appears
that the court made a subsidiary determination that the
plaintiffs had sued the individual defendants only in
their official capacities as town employees and that
claims of reckless conduct against a municipality
directly or against town officials in their official capac-
ity are not legally cognizable because of governmental
immunity. See General Statutes § 52-557n (a) (2) (A)
(municipality not liable for personal injury or property
damages for ‘‘[a]cts or omissions of any employee, offi-
cer or agent which constitute criminal conduct, fraud,
actual malice or wilful misconduct); Pane v. Danbury,
267 Conn. 669, 685, 841 A.2d 684 (2004) (holding that
concepts of wilful, wanton or reckless conduct indistin-
guishable for purposes of § 52-557n [a] [2] [A]); Him-
melstein v. Bernard, 139 Conn. App. 446, 456, 57 A.3d
384 (2012) (‘‘well settled law that an action against a
government official in his or her official capacity is not
an action against the official, but, instead is one against
the official’s office and, thus, is treated as an action
against the entity itself’’ [internal quotation marks
omitted]).
The plaintiffs argue on appeal that the court should
have limited itself to the issues raised in the motion for
summary judgment, but that even if the court properly
considered the issue it raised sua sponte, it incorrectly
decided that the plaintiffs had sued the individual defen-
dants only in their official capacities, and that govern-
mental immunity therefore barred these claims.
The defendants respond that the trial court properly
raised and considered whether the plaintiffs’ counts
alleging recklessness against the individual defendants
were legally cognizable, but also argue as an alternative
ground for affirmance that, even if they were, the counts
also fail as a matter of law because there is no evidence
from which to conclude that the individual defendants
engaged in reckless or wanton misconduct.
We believe that it is unwise for us to decide whether
the individual defendants were sued only in their official
capacity under the circumstances of this case, given
the lack of findings by the trial court on that question.
We conclude on the basis of our plenary review of the
pleadings and evidentiary submissions in support and
in opposition to summary judgment that there was no
factual basis for the recklessness counts and, therefore,
summary judgment on these counts was proper, albeit
for a different reason. Accordingly, we need not reach
whether the individual defendants were sued in their
personal or official capacities.
‘‘Recklessness requires a conscious choice of a
course of action either with knowledge of the serious
danger to others involved in it or with knowledge of
facts which would disclose this danger to any reason-
able man, and the actor must recognize that his conduct
involves a risk substantially greater . . . than that
which is necessary to make his conduct negligent. . . .
More recently, we have described recklessness as a
state of consciousness with reference to the conse-
quences of one’s acts. . . . It is more than negligence,
more than gross negligence. . . . The state of mind
amounting to recklessness may be inferred from con-
duct. But, in order to infer it, there must be something
more than a failure to exercise a reasonable degree
of watchfulness to avoid danger to others or to take
reasonable precautions to avoid injury to them. . . .
Wanton misconduct is reckless misconduct. . . . It is
such conduct as indicates a reckless disregard of the
just rights or safety of others or of the consequences
of the action.’’ (Internal quotation marks omitted.) Doe
v. Boy Scouts of America Corp., 323 Conn. 303, 330,
147 A.3d 104 (2016). Reckless conduct ‘‘must be more
than any mere mistake resulting from inexperience,
excitement, or confusion, and more than mere thought-
lessness or inadvertence, or simply inattention . . . or
even of an intentional omission to perform a statutory
duty . . . .’’ W. Prosser & W. Keeton, Torts (5th Ed.)
§ 34, p. 214. ‘‘[In sum, reckless] conduct tends to take
on the aspect of highly unreasonable conduct, involving
an extreme departure from ordinary care, in a situation
where a high degree of danger is apparent.’’ (Internal
quotation marks omitted.) Lawrence v. Weiner, 154
Conn. App. 592, 598, 106 A.3d 963, cert. denied, 315
Conn. 925, 109 A.3d 921 (2015).
We first note that the allegations of recklessness in
the complaint are identical to those alleged in support
of the negligence counts. In Angiolillo v. Buckmiller,
102 Conn. App. 697, 927 A.2d 312, cert. denied, 284
Conn. 927, 934 A.2d 243 (2007), this court affirmed
the granting of summary judgment on counts alleging
common-law recklessness because the plaintiffs had
‘‘simply incorporated their allegations of negligence and
labeled the conduct recklessness.’’ Id., 705. This court
held that ‘‘[m]erely using the term ‘recklessness’ to
describe conduct previously alleged as negligence is
insufficient as a matter of law.’’ Id.; see also Dumond
v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958) (‘‘[t]here
is a wide difference between negligence and a reckless
disregard of the rights or safety of others, and a com-
plaint should employ language explicit enough to
clearly inform the court and opposing counsel that reck-
less misconduct is relied on’’ [internal quotation marks
omitted]). Although we must acknowledge that it is
possible for an allegation of negligence to sometimes
also describe reckless conduct, the plaintiffs’ allega-
tions in the present case cannot reasonably be charac-
terized as rising above mere negligence. Even accepting
all allegations as true, they do not, as a matter of law,
support submitting the recklessness counts to a jury,
and, therefore, summary judgment in favor of the indi-
vidual defendants is appropriate.
Generally, the plaintiffs allege that the individual
defendants failed to maintain and keep the storm drain-
age system in a reasonably operative condition, and
that they had notice of the flooding that was occurring
in the Nettleton Avenue area but failed to warn the
plaintiffs and adopted a laissez faire attitude in
addressing the situation. There is no evidence in the
summary judgment record, however, that the defen-
dants were aware of any existing drainage problem
specifically involving the plaintiff’s particular property
prior to the first reported incident of flooding. Further-
more, there is no evidence that the flooding in the neigh-
borhood involved a situation of such a high degree
of danger that the failure to take immediate action to
prevent its recurrence demonstrated a conscious disre-
gard for the safety of the plaintiffs’ or the neighborhood
generally. Although the plaintiffs’ frustration with what
they viewed as ineptness and a lack of urgency by
the town and the individual defendants to alleviate the
flooding situation in their neighborhood is understand-
able, there is nevertheless undisputed evidence that
some action was taken to improve the drainage in the
Nettleton Avenue area, albeit perhaps insufficient and
not before additional flooding occurred. The record
simply cannot support a finding that any of the individ-
ual defendants acted or failed to act with the type of
wanton disregard that is the hallmark of reckless behav-
ior. Moreover, in opposing summary judgment on the
recklessness counts, the plaintiffs failed to submit any
evidence that would alter that conclusion. Once the
defendants established that no genuine issue of material
fact existed that the recklessness allegations were
unsupported by evidence, the burden shifted to the
plaintiffs to produce that evidence. They failed to do
so. Accordingly, the defendants were entitled to sum-
mary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Helen Northrup also brought the action as next friend on behalf of her
minor son, Timothy Northrup.
2
Through 2009, the superintendent of streets was the official responsible
for the care and management of the town’s streets. After 2009, it became
the responsibility of the town’s department of public works.
3
We refer to Witkowski, Jr., Stewart, and Mezzo collectively as the individ-
ual defendants.
4
In their complaint, the plaintiffs define ‘‘black water’’ as surface rainwater
that overwhelms and causes a back-up in the sanitary sewer system, resulting
in flood waters that contain sewage and other contaminants.
5
The plaintiffs have not directed us to any rules or regulations that were
promulgated in accordance with the ordinance or to any other written
internal policies or standards in place regarding the defendants’ duty to
inspect or maintain the storm water sewers. In their brief, however, the
plaintiffs quote a portion of Witkowski’s deposition testimony in which he
states that there was a schedule in place to ‘‘make sure’’ that all single catch
basins were ‘‘maintained at least once in the course of a year.’’ After oral
argument of the appeal, the plaintiffs filed a supplemental authority letter
pursuant to Practice Book § 67-10 raising, for the first time, our decision
in Wisniewski v. Darien, 135 Conn. App. 364, 42 A.3d 436 (2012). The
Wisniewski decision was not discussed or cited by the plaintiffs in their
opposition to summary judgment, in their motion to reargue or in their
briefs to this court. Accordingly, the defendants were never provided an
opportunity to discuss this case or its applicability to the facts here. In any
event, the Wisniewski holding is inapplicable to the facts of the present case.
Wisniewski involved a negligence action against the town of Darien and
its tree warden by plaintiffs who were injured when a tree located in the
town’s right of way fell onto their vehicle. Id., 366. In affirming a judgment
for the plaintiffs following a jury trial, this court concluded that the trial
court properly had declined to set aside the verdict, concluding in part that
the jury reasonably could have found that the town had a ministerial duty
of inspection on the basis of the defendant tree warden’s own testimony,
including ‘‘that upon receipt of a complaint regarding a potentially hazardous
tree, he has a nondiscretionary duty to perform an inspection.’’ Id, 374–75.
In contrast, unlike the tree warden in Wisniewski, Witkowski’s statement
is far more vague and does not come close to an admission that the town
had a nondiscretionary duty in this case. The statement, on its face, simply
is not one from which a ministerial duty reasonably could be inferred and,
thus, does not raise a genuine issue of material fact for a jury.
6
At least one decision from a trial court that has considered this language
also has reached the conclusion that the language in question is dicta.
See Blade Millworks, LLC v. Stamford, Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV-09-5013039 (March 26, 2015) (Hon.
Taggert Adams, judge trial referee); see also Pyskaty v. Meriden, Superior
Court, judicial district of New Haven, Docket No. CV-12-6005514S (August
3, 2015) (Fisher, J.) (distinguishing and limiting Spitzer); but see DeMarco
v. Middletown, Superior Court, judicial district of Middlesex, Docket No.
CV-11-6006185S (April 3, 2014) (Domnarski, J.) (58 Conn. L. Rptr. 4) (follow-
ing Spitzer).