GRUENDEL, J.
The plaintiff, Maria E. Mills, executrix of the estate of Clarence Israel Mills (decedent), appeals from the summary judgments rendered by the trial court in favor of the defendants the city of Bridgeport (city); Philip C. Handy, the director of the city's department of parks and recreation; Anthony Armeno, the city's acting chief of police at the time of the subject incident; 5 Star Amusement Company, Inc.; Robert E. Coleman, Jr.; and Linda M. Coleman.
We set forth the following facts as gleaned from the pleadings, affidavits and
Thomas Kelly received a permit from the city's police department to hold the carnival from June 20, 2005, through July 5, 2005. The organization named on the permit was 5 Star. The permit required that security be provided and coordinated with the police department's outside overtime office. Those police officers were in addition to the officers already scheduled to work their regular duty shifts. The city's parks and recreation department also issued a permit for the carnival. The identity of the applicant was listed on the permit as "Five Star Amusement Inc. c/o The Solution LLC." The permit identified Kelly as the representative making the application and required that the permittee be responsible for required police coverage for the use and activities conducted under the permit as may be deemed appropriate by the city's police department.
On June 24, 2005, the decedent was fatally shot at the carnival by Lucilo Cifuentes.
On March 11, 2010, the municipal defendants filed a motion for summary judgment on counts three, four, seven and eight of the plaintiff's third amended complaint. They asserted that the plaintiff's complaint was legally insufficient because the allegations of negligence in the complaint related to discretionary acts, and the municipal defendants are therefore immune from liability pursuant to General Statutes § 52-557n. They claimed that there was no genuine issue of material fact as to whether their acts were discretionary in nature. Attached to the motion were affidavits from Armeno, Handy and James Honis, who was the deputy chief of police at the time of the incident. In her opposition to the municipal defendants' motion
On October 13, 2010, the court rendered summary judgment in favor of the municipal defendants. In its memorandum of decision, the court found that the plaintiff's complaint was facially insufficient, as it failed to allege that there was a policy, directive, guideline or procedure in place regarding the alleged failures of the municipal defendants. The court found that the actions of the municipal defendants on June 24, 2005, in determining how and when to deploy police officers, were discretionary in nature and not ministerial. The court also held that § 7-284 did not create a ministerial duty, as the implementation of § 7-284 requires the exercise of discretion and judgment by police officials. It further found that the plaintiff could not recover under an exception to a municipal employee's qualified immunity for discretionary acts because the decedent was not an identifiable victim subject to imminent harm and because there was no evidence that the city derived a pecuniary benefit from providing police protection to the carnival.
5 Star likewise filed a motion for summary judgment on all claims asserted against it on March 16, 2010. It claimed that (1) it was not charged with the duty to provide police protection at the carnival, (2) it had no notice that there was likelihood that homicides would be committed, (3) the homicide in question was unforeseeable and (4) the plaintiff's claims against 5 Star are barred by the intervening intentional and criminal act of another.
On November 1, 2010, the court rendered summary judgment in favor of 5 Star. The court found that there was no evidence presented that 5 Star was the permittee, or that it owned, rented, possessed or otherwise controlled the premises where the carnival took place. Absent evidence of possession or control of the premises, the court determined that 5 Star owed no duty to the decedent as a business invitee, and the plaintiff therefore could not prevail in a negligence claim against it. This appeal followed.
Before considering the precise claims presented on appeal, we note the well established standard of review. "Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, 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. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.... Our review of the trial court's decision to grant a motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 382-83, 942 A.2d 469 (2008).
The plaintiff claims first that the court improperly held that there was no genuine issue of material fact as to whether the municipal defendants had qualified immunity for the negligence claims asserted against them by the plaintiff. Specifically, the plaintiff argues that the court improperly held that the municipal defendants were entitled to qualified governmental immunity because (1) § 7-284
We begin with the general principles of municipal liability. Under § 52-557n (a)(1)(A),
As our Supreme Court has explained, "[m]unicipal 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 discretion 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 benefits to be had from imposing liability for that injury.... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts.... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates,
"The hallmark of a discretionary act is that it requires the exercise of judgment.... If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance.... [M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Grignano v. Milford, 106 Conn.App. 648, 654, 943 A.2d 507 (2008).
"There are three exceptions 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 immunity — to encourage municipal officers to exercise judgment — has no force.... First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.... Second, liability may be imposed for a discretionary 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...." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006).
"Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ... there are cases where it is apparent from the complaint.... [T]he determination of whether 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 complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Citation omitted; emphasis in original; internal quotation marks omitted.) Grignano v. Milford, supra, 106 Conn.App. at 654-55, 943 A.2d 507.
The plaintiff claims first that the court erred in finding that § 7-284 does not create a ministerial duty.
We must determine whether the court properly concluded that § 7-284 does not create a ministerial duty to furnish police protection, a question of statutory interpretation over which our review is plenary.
Section 7-284 provides in relevant part that "[w]hen police protection is necessary or required at any ... place of public amusement ... the amount of such protection necessary shall be determined and shall be furnished by ... the chief of ... the police department...." The parties do not dispute that § 7-284 vests the chief of police with the discretion to determine whether police protection is necessary at private events and, if so, the amount of such protection. It is the plaintiff's contention, however, that once the chief of police, in his or her discretion, determines that police protection is necessary, the chief of police then has a ministerial duty to furnish such police protection. The plaintiff's claim centers on the mandatory nature of the word "shall" in the phrase "the amount of such protection necessary shall be determined and shall be furnished by ... the chief of ... the police department." (Emphasis added.) General Statutes § 7-284. The plaintiff claims that, because the police department determined that police protection was necessary, it violated its ministerial duty to furnish such protection by failing to provide any police protection whatsoever to the carnival.
Although the word "shall" can connote a mandatory command, the language of the statute, read as a whole, involves discretionary acts. See Wiseman v. Armstrong, 269 Conn. 802, 810, 850 A.2d 114 (2004) ("[a] statute is enacted as a whole and must be read as a whole rather than
Performance of the allegedly ministerial duty, furnishing police protection, necessarily involves the exercise of discretion because the statute, as well as our common law, vests police officials with the authority to determine the amount of protection necessary. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988).
The plaintiff argues that the inclusion of certain discretionary matters within § 7-284 does not render the mandatory directive any less mandatory. We do not disagree that in some circumstances, a ministerial duty may follow a discretionary determination. See Pluhowsky v. New Haven, 151 Conn. 337, 347-48, 197 A.2d 645 (1964) ("A ministerial duty on the part of an official often follows a quasi-judicial determination by that official as to the existence of a state of facts. Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act, the duty of giving effect, by taking appropriate action, to the determination is often ministerial."). The plaintiff relies principally on Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975).
The plaintiff next claims that the court erred by holding that there was no genuine issue of material fact as to whether the municipal defendants were engaged in governmental, not proprietary, conduct by requiring the carnival promoters to use and to pay for extra duty police officers as security for the carnival.
The permit issued to Kelly by the police department required that the permittee provide security for the event, which security was to be coordinated with the police department's outside overtime office. The plaintiff argued in her opposition to the municipal defendants' motion for summary judgment that, even assuming that the municipal defendants' acts were discretionary, immunity still did not
Section 52-557n(a)(1)(B) holds municipalities liable for damages to person or property caused by "negligence in the performance of functions from which the political subdivision derives a special corporate or pecuniary benefit...." This section codifies the common-law rule that municipalities are liable for their negligent acts committed in their proprietary capacity. Considine v. Waterbury, 279 Conn. 830, 844, 905 A.2d 70 (2006). "If a municipality is acting only as the agent or representative of the state in carrying out its public purposes ... then it clearly is not deriving a special corporate benefit or pecuniary profit. Two classes of activities fall within the broader category of acting as the agent of the state: [1] those imposed by the [s]tate for the benefit of the general public, and [2] those which arise out of legislation imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large.... For example, the maintenance of the public peace or prevention of disease would fall within the first class ... while the maintenance of a park system would fall within the second class." (Citations omitted; internal quotation marks omitted.) Id., at 845-46, 905 A.2d 70. "On the other side of the distinction, a municipality generally has been determined to be acting for its own special corporate benefit or pecuniary profit where it engages in an activity for the particular benefit of its inhabitants ... or if it derives revenue in excess of its costs from the activity." (Citation omitted; internal quotation marks omitted.) Id., at 847, 905 A.2d 70.
Section 7-284 specifically directs that necessary police protection provided to a place of public amusement "shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest." There is no evidence that the city billed for police protection under § 7-284 for the particular benefit of its inhabitants, nor is there evidence that it derived revenue in excess of its costs.
The purpose of § 7-284 is to maintain the public peace while also transferring the financial burden to private event sponsors. Id. Billing private event promoters for necessary police protection pursuant to § 7-284 is not done for the purpose of deriving a corporate profit, but for public safety and financial responsibility. See id., at 801-802, 675 A.2d 1340. The city, in complying with § 7-284, acts as the agent of the state in carrying out its public purposes. See Considine v. Waterbury, supra, 279 Conn. at 845-46, 905 A.2d 70. Accordingly, we conclude that the city was acting in a governmental, not proprietary, function by requiring the carnival promoters to use and to pay for extra duty police officers as security for the carnival.
The plaintiff also claims that the court erred by holding that there was no genuine issue of material fact as to whether 5 Star had the right to use and to occupy the carnival premises. The plaintiff claims that there is a genuine issue of material fact as to (1) whether Kelly expressly was authorized by 5 Star to obtain permits on its behalf and (2) whether, in the absence of express authority, Solution impliedly was authorized by 5 Star to obtain permits on its behalf. 5 Star claims that it was not the owner nor was it the possessor of the land where the incident occurred, and therefore it owed no duty to the decedent. We agree with 5 Star that the court properly held that there was no genuine issue of material fact as to whether it was in possession or control of the premises.
The second count of the plaintiff's third amended complaint alleged negligence against 5 Star. Specifically, the plaintiff claimed that 5 Star was negligent in that it, inter alia, failed to provide adequate security or to supervise the carnival properly. The complaint alleged that, at all
The court found that the plaintiff, in opposing 5 Star's motion for summary judgment, did not adduce any evidence to show that 5 Star was the permittee, owned, rented, possessed or controlled the premises where the carnival took place other than adducing the permits. The court noted that, although 5 Star was listed on both the permit from the police department and from the department of parks and recreation, Kelly's testimony established that he had no authority to represent 5 Star or act on its behalf while obtaining permits from either department. The court held that 5 Star therefore did not owe a duty to the decedent as a business invitee and, accordingly, rendered summary judgment in favor of 5 Star as to the second count of the plaintiff's third amended complaint.
The plaintiff filed a motion to reargue and reconsider 5 Star's motion for summary judgment and her objection thereto, arguing that the issue of control was not raised by 5 Star in its motion for summary judgment, was not addressed in her objection and was not orally argued by either party. The plaintiff also argued that 5 Star had control of the premises. On March 7, 2011, the court heard argument on the plaintiff's motion. The court affirmed its original decision granting 5 Star's motion for summary judgment. The plaintiff did not seek an articulation.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.... The law is clear that [a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe.... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citation omitted; internal quotation marks omitted.) Gargano v. Azpiri, 110 Conn.App. 502, 508, 955 A.2d 593 (2008). "[L]iability can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof." Mack v. Clinch, 166 Conn. 295, 296, 348 A.2d 669 (1974). "Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property." LaFlamme v. Dallessio, 261 Conn. 247, 252, 802 A.2d 63 (2002). "Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances.... The word control has no legal or technical meaning distinct from that given in its popular acceptation ... and refers to the power or authority to manage, superintend, direct or oversee." (Internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).
The pleadings, affidavits and other proof submitted support the court's conclusion that there was no genuine issue of material fact as to whether 5 Star possessed or controlled the premises. The plaintiff's third amended complaint did not allege that 5 Star possessed or controlled the
The deposition testimony of Kelly was that he was not authorized by 5 Star in writing to act on its behalf, that a representative of 5 Star did not sign any of the documents submitted in the permitting process and that he never asked 5 Star if Solution could submit documents to the city under 5 Star's name, with the exception of requests for the certificate of insurance. He acknowledged writing "5 Star Amusement, Inc. c/o the Solution, LLC" on the permit from the parks and recreation department, and testified "that could have just been how I filled it out that year, with no malice." He then stated that "[u]pon further reflection of this document, I did not have the authority to do that." Moreover, Linda Coleman attested in her affidavit that neither she nor her husband, Robert E. Coleman, Jr., submitted applications to hold the carnival, that neither were involved in the permitting process, and that neither Kelly nor Solution were agents of 5 Star and neither were authorized to enter into contracts on 5 Star's behalf. She also attested that although she knew that Kelly had applied for permits, she did not know that he did so in 5 Star's name. In light of the uncontroverted testimony of Kelly and Linda Coleman, there is no genuine issue of material fact as to whether Kelly had the authority to seek permits on behalf of 5 Star.
In her motion to reargue and reconsider, the plaintiff argued that Kelly's testimony offers evidence indicating that 5 Star had possession or control of the carnival premises. Kelly testified that, to the best of his knowledge, 5 Star took precautions to protect its rides and equipment during hours of nonoperation. He also testified that 5 Star provided a ticket booth where tickets for the carnival were sold. Kelly testified that patrons, after purchasing their tickets, would then come through a second gate with their tickets, where the tickets would be collected and torn in half. On the night of the incident in question, Kelly was at the second gate taking tickets. Kelly's testimony does not create a genuine issue of material fact as to whether 5 Star had the "power or authority to manage, superintend, direct or oversee" the premises. (Internal quotation marks omitted.) Fiorelli v. Gorsky, supra, 120 Conn.App. at 308, 991 A.2d 1105. The evidence presented demonstrates that 5 Star was not involved in any regard in the procuring of security or police coverage for the event. The fact that 5 Star protected its rides and equipment does not establish whether it had possession or control over the carnival premises. Likewise, the fact that 5 Star provided a ticket booth does not, without more, establish that it was in control of the premises.
The plaintiff failed to present evidence to show that there was a genuine issue of material fact as to whether 5 Star had
The judgments are affirmed.
In this opinion the other judges concurred.