Date: 05-08-2012

Case Style: Mieczyslaw Wisniewski v. Town of Darien

Case Number: AC 31812

Judge: Bear

Court: Connecticut Court of Appeals on appeal from the Superior Court, Stamford-Norwalk

Plaintiff's Attorney: Alinor C. Sterling, with whom was J. Craig Smith, and on the brief, William M. Bloss, for the appellees (plaintiffs).

Defendant's Attorney: Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, for the appellants (named defendant et al.)

Description: The defendants, the town of Darien (town) and Michael Cotta, appeal from the judgment of the trial court rendered in favor of the plaintiffs, Mieczyslaw Wisniewski and Jolanta Wisniewski, after a jury trial in this personal injury action.1 On appeal, the defendants claim that the court (1) improperly refused to direct the verdicts in their favor as a matter of law and (2) improperly refused to set aside the jury’s verdicts and to render judgment in their favor based on controlling authority and the great weight of the evidence.2 We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. On July 11, 2006, the plaintiffs were injured when a tree within the town’s right-ofway toppled onto their vehicle in front of 35 Rings End Road, a residential property in the town of Darien (the property).3

Prior to the plaintiffs’ accident, the town had been notified on several occasions in 2002 and 2003 by Kristin Doble, an owner of the property, about the deteriorated condition of some of the trees located along the roadway.

According to records maintained by the town’s department of public works, Doble contacted the town on June 18, 2002, stating that her arborist had determined that five trees located near the roadway ‘‘need attention.’’ On October 8, 2002, Doble again contacted the town, noting that a number of limbs had fallen from trees located near the roadway. On October 19, 2002,4 Doble requested that the town send someone to examine a ‘‘[h]ollow’’ tree located near her front gate, next to the roadway, that had lost a ‘‘leader.’’5

At both the time of Doble’s complaints and the time of the plaintiffs’ accident, Cotta was the town’s tree warden. Pursuant to statute, Cotta was responsible for the care and maintenance of trees located along certain public rights-of-way within the town’s geographic limits. See General Statutes § 23-59. There were no express town charter provisions, rules or ordinances directing Cotta’s duties as tree warden.

In 2006, the plaintiffs commenced this personal injury action against the defendants in the Superior Court. The original complaint contained claims of negligence and loss of consortium against Cotta, and sought indemnification against the town pursuant to General Statutes §§ 7-465 and 7-101a. In addition, the complaint contained claims for liability pursuant to General Statutes §§ 52-557n and 13a-149 against the town. The defendants moved to strike all counts in the complaint on the ground that the plaintiffs’ action was barred by application of the doctrine of governmental immunity. That motion was denied. The defendants then filed an answer and special defenses, including the special defense of governmental immunity. Thereafter, the defendants moved for summary judgment, arguing, in part, that governmental immunity barred the plaintiffs’ claims. The court denied the defendants’ motion for summary judgment, and the case proceeded to a jury trial.

After the close of the plaintiffs’ case-in-chief, the defendants moved for directed verdicts.6 Again, the defendants argued that the plaintiffs’ action was barred by the doctrine of governmental immunity. The court reserved judgment on that motion, and the case proceeded to deliberation, after which the jury returned verdicts for the plaintiffs. In response to interrogatories, the jury found that the plaintiffs had established the negligence of the defendants under § 52-557n by a preponderance of the evidence and that such negligence was the proximate cause of the plaintiffs’ injuries.7 The jury further found that, although the defendants had established by a preponderance of the evidence that their duty to maintain the subject tree was public in nature, the defendants failed to establish that their duty to inspect, maintain and remove the tree was discretionary. 8 Jolanta Wisniewski was awarded $200,000, and Mieczyslaw Wisniewski was awarded $1.5 million in damages.

Thereafter, the defendants filed a motion to set aside the verdicts, and the court denied both the previously filed motion for directed verdicts and the motion to set aside the verdicts. This appeal followed.

On appeal, the defendants claim that the court erred in failing to direct or to set aside the verdicts on the ground that they are entitled to governmental immunity. Specifically, the defendants argue that the jury verdicts are contrary to law and against the great weight of the evidence. The defendants do not raise claims attacking the jury’s findings with regard to proof of negligence or causation, nor do they claim error with regard to the court’s jury instructions.

‘‘Our well settled standard of review for a motion to direct a verdict is the same as that employed for a motion to set aside a verdict. . . . Our review of the trial court’s refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony.’’ (Citation omitted; internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn. App. 556, 558–59, 799 A.2d 1093 (2002). ‘‘Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached.’’ (Internal quotation marks omitted.) Kramer v. Petisi, 91 Conn. App. 26, 37, 879 A.2d 526 (2005), aff’d, 285 Conn. 674, 940 A.2d 800 (2008).

I

The defendants first claim that the court erred in failing to direct or to set aside the verdicts based on controlling authority establishing that all of Cotta’s duties as tree warden, including the duty to inspect, are discretionary. The defendants argue that the prevailing law establishes that the duties of a tree warden are discretionary as a matter of law, and they cite § 23-599 and this court’s decision in DeConti v. McGlone, 88 Conn. App. 270, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005), in support of their position.

As a general rule, ‘‘a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity.’’ Williams v. New Haven, 243 Conn. 763, 767, 707 A.2d 1251 (1998).

‘‘General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages. . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. General Statutes § 52-557n (a) (1) (A). General Statutes § 52-557n (a) (2) (B), however, explicitly shields a municipality from liability for damages to person or property caused by the 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. . . .

‘‘Municipal officials are immune 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 secondguessing 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, 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; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614–15, 903 A.2d 191 (2006).

We begin our analysis by examining what impact, if any, DeConti has on the present matter. That case involved the application of the identifiable victim subject to imminent harm exception to discretionary immunity, raised on appeal after the trial court rendered judgment granting a motion to strike.10 DeConti v. McGlone, supra, 88 Conn. App. 274–75. Nonetheless, the defendants place great emphasis on the following language in DeConti: ‘‘In the present case, the duty to inspect and to care for trees undoubtedly involves the exercise of judgment, and, as such, is properly classified as a discretionary act.’’ Id., 273.

Reviewing the appellate record and briefs in DeConti, it is apparent that the plaintiff in that case conceded that the duties of a municipality and its employees as they relate to the care of trees, under the facts presented, were discretionary. DeConti v. McGlone, Appellate Court Records & Briefs, January Term, 2005, Plaintiff’s Brief p. 6 (‘‘[i]t is conceded that any duty owed by [the defendants] to the plaintiff was discretionary or ‘governmental’ in nature’’). Accordingly, the question of whether a tree warden’s duties are discretionary or ministerial in nature was not contested; consequently, that court’s statement regarding the discretionary nature of a duty to inspect or to care for trees properly is viewed as dictum. The plaintiffs in the present case have made no similar concession concerning the nature of Cotta’s duties as tree warden. Moreover, in contrast to DeConti, this case does not involve a challenge to a motion to strike. In light of the foregoing distinctions, we determine that DeConti does not control the present matter.

Turning to § 23-59, we agree with the defendants that the statute’s language provides that many, but not all, of the duties of a tree warden involve the exercise of discretion.11 We are mindful, however, that our scope of review on either a motion to set aside or to direct a verdict involves more than an isolated examination of the language of relevant statutes or a consideration of the allegations of the complaint; unlike the court in DeConti, which merely was reviewing the legal sufficiency of the complaint in considering the defendants’ motion to strike; DeConti v. McGlone, supra, 88 Conn. App. 271; we must consider all the evidence presented to the jury, along with any reasonable inferences that the jury could have drawn. See Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989) (‘‘[w]e must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial’’ [internal quotation marks omitted]).

‘‘[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . .’’ (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010); see Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988); see also Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982). Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive. See, e.g., Violano v. Fernandez, 280 Conn. 310, 323–24, 907 A.2d 1188 (2006). Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive. See, e.g., Gauvin v. New Haven, supra, 186–87 (testimony providing evidence of nature of duty).

On the basis of our review of the record, we conclude that there is evidence from which the jury reasonably could have found that some of Cotta’s duties as the town’s tree warden, including a duty to inspect upon receipt of a complaint concerning a potentially hazardous tree, were ministerial. Although the town maintains no written policies directing the conduct of its tree warden, the town’s assistant director of public works, Darren Oustafine, testified at trial that the general direction provided to Cotta upon receipt of a complaint ‘‘is always the same, look at the tree, make a determination.

Is it a safety concern? Is it a priority?’’ Moreover, Cotta himself testified that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretionary duty to perform an inspection.

In light of the evidence adduced, including Cotta’s own statements, which were couched in mandatory language, it was appropriate for the court to decline to direct or to set aside the verdicts on the basis that the defendants’ actions as a whole were discretionary as a matter of law.

II

The defendants next claim that the court erred in denying their motion to set aside the verdict because the jury’s finding that Cotta’s duties were ministerial was contrary to the law and against the weight of the evidence.

‘‘The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.’’ (Internal quotation marks omitted.) Greci v. Parks, 117 Conn. App. 658, 667, 980 A.2d 948 (2009).

The defendants argue that the jury’s finding that Cotta had a ministerial duty to inspect the subject tree was not supported by the evidence. Specifically, the defendants contend that Doble’s complaints did not reference hazardous trees specifically, and, thus, any alleged ministerial duty on the part of Cotta to inspect potentially hazardous trees was never triggered. Furthermore, the defendants argue that, in response to Doble’s initial call, the evidence provides that Cotta, in fact, did drive to the property and perform a quick visual inspection of the trees. Because the weighing of credibility is a function of the fact finder; Kiniry v. Kiniry 299 Conn. 308, 329, 9 A.3d 708 (2010); we are not persuaded by the defendants’ arguments. Although there may have been some evidence offered to support the defendants’ contention, the jury did not have to credit this evidence.

A review of the record in this case demonstrates that there was evidence from which the jury reasonably could have concluded that the defendants received several calls from Doble regarding potentially hazardous trees and that, in response, Cotta failed to perform his nondiscretionary duty to inspect these trees upon receipt of the complaints. First, the town’s work orders document that Doble lodged seriatim complaints with the town regarding trees that ‘‘need attention,’’ were losing limbs, and were ‘‘dead’’ or ‘‘[h]ollow.’’ Although Bonington provides that a predicate discretionary determination as to specific facts at issue often precedes any subsequent ministerial response to those facts, the present matter is distinguishable. See Bonington v. Westport, supra, 297 Conn. 309 (‘‘even when the duty to respond to a violation of law is ministerial because that specific response is mandated, the predicate act—determining whether a violation of law exists—generally is deemed to be a discretionary act’’ [emphasis in original]). In this case, however, the plaintiffs provided evidence through Cotta’s own testimony that he had a nondiscretionary duty to inspect the trees on the town’s right-of-way in front of the property after receiving Doble’s calls. Specifically, when questioned whether he had a ‘‘duty to go out . . . or make a response in some way,’’ Cotta answered in the affirmative. 12 In addition, the plaintiffs provided the jury with documentation and photographs outlining the approximate location of the subject tree. From this evidence, the jury reasonably could infer that Doble repeatedly reported to the defendants potentially hazardous trees, including the subject tree.

Moreover, the plaintiffs’ primary argument to the jury was that Cotta never went to the property and performed an inspection. In support of their argument, the plaintiffs noted the absence of any documentation in the town’s work order records concerning an inspection by Cotta of the trees.13 Although Cotta testified at trial that he had performed a quick visual inspection of the trees, he contradicted his own testimony by agreeing that performing a quick visual inspection is ‘‘not the same thing as saying you inspected it at all . . .’’ In addition, the plaintiffs’ counsel sought to impeach Cotta’s testimony through the introduction of deposition evidence, wherein Cotta admitted that he had not inspected the trees for decay and, furthermore, that he had not inspected the trees ‘‘for any reason.’’

Furthermore, although Cotta testified at trial that he had gone to the property and pruned the subject tree in 2004, the plaintiffs’ counsel introduced deposition testimony wherein Cotta stated that he had not returned to the property between March 14, 2003, and July 11, 2006. Thus, numerous issues were raised concerning Cotta’s credibility, and the jury was free to decide that Cotta was not credible and to resolve the claim in favor of the plaintiffs that he failed to respond to any of the complaints by going to the property to inspect the trees.

See Kiniry v. Kiniry, supra, 299 Conn. 329 (‘‘It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness’ testimony. . . . Questions of whether to believe or to disbelieve a competent witness are beyond our review.’’ [Internal quotation marks omitted.]).

The defendants further argue that the evidence does not support the jury’s findings that Cotta breached ministerial duties to maintain and to remove the subject tree. In addition, the defendants contend that, even if the jury could have found that Cotta failed to inspect the subject tree, such finding would not foreclose the application of governmental immunity. Specifically, the defendants argue that the ‘‘fundamental duties at issue, namely the manner in which the inspection was or is to be performed, the identification of the subject tree as an immediate hazard, and the decision to remove the tree remain within Cotta’s discretion.’’ Thus, the defendants contend that the doctrine of governmental immunity should apply to bar the plaintiffs’ claims because all of Cotta’s alleged duties either lead to or follow from a discretionary determination as to the condition of the subject tree. We disagree.

It is undisputed that Cotta, acting in his capacity as the town’s tree warden, is a municipal employee. Therefore, Cotta, and, by extension, the town, may be liable for the misperformance of ministerial acts, but are entitled to immunity in the performance of governmental acts, including acts that are discretionary in nature. See Violano v. Fernandez, supra, 280 Conn. 318.

The defendants’ argument, however, misses the point.

In order for the defendants to benefit from the application of governmental immunity, Cotta must have performed a governmental act. As noted, the jury was free to assess Cotta’s credibility and to determine that he had failed to perform an inspection of the subject tree.

By failing to perform any inspection upon receipt of Doble’s seriatim complaints—an act that the jury, based on the evidence, reasonably could have found to be his ministerial duty—Cotta never placed himself in a position from which he could exercise his discretion and, hence, entitle the defendants to immunity for his actions.14 Compare Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989) (if inspection occurs, method of performing inspection involves exercise of discretion).

On the basis of our review of the record, and in consideration of the procedural posture in which this appeal comes before us, the defendants have not established any basis for us to vacate the jury’s verdict and to afford them the protection of governmental immunity.

To hold otherwise would incentivize the inaction of public officials faced with the duty of performing acts that they, themselves, admit are ministerial in nature. The jury reasonably could have concluded that Cotta failed to perform his ministerial duty to inspect a potentially hazardous tree despite undisputed receipt of multiple reports of its deteriorating condition and that his failure to act proximately caused the plaintiffs’ injuries in this case. Accordingly, we conclude that the court did not abuse its broad legal discretion in refusing to direct or to set aside the jury’s verdicts.

* * *

See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP135/135AP338.pdf

Outcome: The judgment is affirmed.

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