Case of the Day – Thursday, October 10, 2019

BEING THERE

The governmental immunity doctrine, which exempts governments and their employees from liability when negligent acts occur during the performance of a discretionary government act, is pernicious.

The strictures seem rather artificial. If a tree is rotten and the municipal employees ignore it, the municipality may be immune from liability when the tree falls on some poor lady’s car (see case below). But if the employees come out to cut it down, and aa branch falls on the same lady’s car, the municipality is liable. It would seem that the prudent municipal employee would wisely choose to do nothing except collect a paycheck.

What? You say that’s what most of them do anyway? Shame on you. Go to any DMV office, and you will see how mistaken you are.

Even the governmental immunity doctrine has its exceptions, fortunately enough. In Connecticut, if the employees can foresee that the victim is “an identifiable person” who would face “imminent harm” if they perform a discretionary act negligently, or negligently fail to perform a discretionary act, then the victim is able to defeat immunity and collect.

But what is an “identifiable person?” Ah, the devil’s in the details.

DeConti v. McGlone, 88 Conn. App. 270, 869 A.2d 271 (Ct.App. Conn. 2005). Maria DeConti was driving down Maple Street in New Britain, when a rotted tree fell on her car, crushing it. The tree was located in front of 281 Maple Street, about five houses from the Maria’s residence, on property controlled by the City of New Britain.

Maria sued Bob McGlone, the superintendent of parks for the city, and the Parks and Recreation Commission. The defendants filed a motion to strike on the ground that their actions were insulated by governmental immunity. The court granted their motion.

Maria appealed.

Held: Bob and the Commission enjoyed governmental immunity.

Generally, a municipal employee is liable for the negligent performance 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. In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.

A municipal employee’s immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: (1) where 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; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; or (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.

The first exception has been expanded to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. However, the Court ruled, a person driving a vehicle who is struck by a falling tree limb is not an identifiable victim for the purpose of governmental immunity. It would be different, the Court ruled, if the tree had fallen on Maria’s house rather than on her car. But Connecticut law is clear that “would not be [an] identifiable person[], or an identifiable class of foreseeable victim[], if [she] were either [an] unfortunate person driving in a vehicle or pedestrian walking along a sidewalk who happened to be struck by a falling tree limb.”

Maria argued her case was different, because she was required to drive on Maple Street as a result of the location of her house and, as such, she was an identifiable victim. But Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred. Thus, a parent watching a son play at a high school football game was held not required to be at game, and a parent injured while visiting her child’s school voluntarily was not required to be there.

“Accepting as true all facts alleged in the amended complaint,” the Court said, “the plaintiff has failed to show that she is an identifiable victim or a member of a narrowly defined identified class of victims as required to fit within the first exception to the governmental immunity doctrine. Because that is the only applicable exception, the plaintiff’s amended complaint was legally insufficient, and the motion to strike properly was granted.”

– Tom Root

TNLBGray140407

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