Developments in Municipal Law
December 19, 2012
Two recent Connecticut court decisions pertaining to the scope of a town’s liability for inspections exhibit a common theme and may mean increased legal exposure going forward. The failure to make inspections, or liability for negligent inspection, are both causes of action that are rarely alleged in municipal claims due to the protections afforded by our statutory scheme of governmental immunity. More recently, however, the courts have shown a willingness to carve out exceptions to the statutes limiting municipal liability. Towns may see an increase in liability claims as a result. The decisions are summarized below.
This newsletter also includes information concerning the municipal energy front. The Connecticut Department of Energy and Environmental Protection ("DEEP") is offering towns an opportunity to participate in a "Microgrid Grant and Loan Pilot Program." The program will assist towns in developing an energy infrastructure that would remain operable during mass outages of the sort experienced with storms Alfred, Irene and Sandy over the past two years.
For further questions, or to request additional information about anything reported below, please contact one of the members of Murtha Cullina’s Municipal Practice Group.
Municipalities should take note of a recent Connecticut Superior Court decision addressing the issue of governmental immunity in connection with a town official who allegedly failed to carry out inspections specifically required by state statute. In Rinh Thach v. City of Bridgeport et al., Docket No. CV07-5009210 (Sup. Ct. 2012), the Court determined that statutorily required inspections are "ministerial" (non-discretionary) obligations and, therefore, claims based on a failure to inspect are not barred by the doctrine of governmental immunity. The decision underscores the importance of adhering to state and local laws that impose specific obligations on public employees and officers in the scope of their work.
The decision concerns a lawsuit brought by a property owner who lost family members in an apartment fire in Bridgeport. Ruling on preliminary motions to dismiss, the Court found that the Fire Marshal was not protected by governmental immunity and could be personally liable if he failed to conduct an annual fire safety inspection mandated by state law.
Generally, governmental immunity protects a town and its employees or officers from liability for acts or omissions that occur in the course of performing public duties. Connecticut statutes recognize two types of governmental functions: those that are "discretionary" and those that are "ministerial." Discretionary functions are those where the employee and/or official have the flexibility to use personal judgment and knowledge in performance of their duties. Ministerial functions are those where an employee or official is provided with clear parameters as to what must be done and/or how the job is to be performed. As a general rule, governmental immunity will protect officials and employees performing discretionary acts, but not ministerial acts.
In this case, the Court found that the alleged actions by the Fire Marshal were ministerial. The Court referred to Connecticut Fire Safety Code, C.G.S. §29-305, which imposes a duty on Fire Marshals to complete annual inspections of public buildings and multi-family housing, and C.G.S. § 52-557n(b)(8), which provides that an officer such as a fire marshal can be subject to liability if the marshal was made aware of a previous violation or hazard and did not go back to inspect the property to confirm that the violation or hazard was corrected.
The plaintiff claimed that the City and Fire Marshal were negligent in the failure to perform the inspection, and that the Fire Marshal’s conduct was also reckless, because the Marshal was put on notice of prior violations at the property. The Court agreed that these responsibilities are ministerial in nature, and found that the Bridgeport Marshal’s failure to perform the property inspection after being notified of violations could be considered "reckless misconduct" and therefore could trigger the loss of any protection of governmental immunity.
As a result, the court found that the lawsuit could go forward and the Fire Marshal could be held liable for his actions. Because the plaintiff’s claim was based on "reckless misconduct" by the Fire Marshall, the court found that the city would not be obligated to indemnify the Marshal if liability were proven. C.G.S. § 7-465.
The Connecticut Supreme Court recently recognized a new direct claim against municipalities. Specifically, the Court ruled that private property owners can sue towns and cities for failures to inspect or for inadequate or negligent inspections of property if the municipality had notice of a violation of the law or of a hazard or if the failure to inspect or inadequate inspection was done in reckless disregard for health and safety. Ugrin v. Cheshire, 307 Conn. 364 (2012).
Prior to this decision, the Supreme Court and lower courts had held that towns and cities "shall not be liable" for various acts and omissions, including inspections, that are listed in the second part of Connecticut’s municipal liability statute, and had held that these were exceptions to negligence and nuisance liability in the first part of that statute. The Court did not say what a plaintiff had to allege to succeed on an inspection claim, and it did not say whether governmental immunity for discretionary acts applies for such claims. It simply held that a plaintiff could bring the claim.
In the same case, Cheshire prevailed on two other rulings that could be significant for other municipalities. The plaintiffs sued because a tunnel from an abandoned mine was under their properties. Although the town had nothing to do with the creation of the mines, which were constructed in the early 19th Century, the plaintiffs claimed that the town created a nuisance by authorizing the construction of their homes over the remnants of the mine. The Supreme Court held that the construction and zoning approvals were not the cause of any damage to the plaintiffs and upheld judgment in favor of the town.
The plaintiffs also claimed that the town should have posted a warning in the land records office that mines used to be in the town. The Court held that whether or not to post such a sign was discretionary, and that therefore the town was immune from liability for failure to warn.
Section 7 of Public Act 12-148 (the "Act") requires the Department of Energy and Environmental Protection ("DEEP") to establish a $15 million Microgrid Grant and Loan Pilot Program ("Microgrid Program"). The purpose of the Microgrid Program is to solicit proposals from municipalities and other interested stakeholders to build microgrids in order to support Critical Facilities during times of electricity grid outages. Critical Facilities are generally those facilities that that have some or all of the following characteristics: provide support for national security; act as a command center; act as an emergency shelter; and/or provide access to food, fuel, money, or medication. Examples of Critical Facilities specifically identified under the Act and by DEEP include any hospital; police station; water treatment plant; sewage treatment plant; public shelter; correctional facility; any commercial area of a municipality, and a municipal center as indentified by the chief elected official of the municipality; military bases; communications towers; fueling stations; food distribution centers; and mass transit.
On November 5, 2012, DEEP issued a Project Feasibility Application ("PFA") allowing interested municipalities and others to submit proposed microgrids in their towns and cities. Any proposed microgrid should include access to uninterruptable fuel sources either on-site or delivered for a minimum of two weeks and present a plan to secure additional fuel resources (if necessary) beyond two weeks as part of storm preparation and storm management. The submission date for the PFA is January 3, 2013 at 4:00 P.M.
DEEP will review the technical feasibility of the proposed microgrid projects submitted in response to the PFA, and all proposed microgrid projects that meet the technical feasibility criteria established by DEEP will be invited to participate in a subsequent Request for Proposals ("RFP") to be issued by DEEP at a later date under the Microgrid Program for distribution of the grants and loans. If the Pilot Program is successful, the state may expand this program at some point in the future.