Municipal Tort Liability and Immunity: Revisiting the "ministerial" Versus "discretionary" Distinction
| Publication year | 2021 |
| Pages | 313 |
John Logan [*]
A small tremor on the fault line underlying municipal tort liability and immunity occurred last year when the appellate court decided Wisniewski v. Town of Darien.[1] For well over a decade, most appellants in municipal liability cases have conceded the discretionary nature of the alleged negligent act underlying the tort claim. As a result, recent decisions have focused instead on sculpting the appropriate contours of the identifiable person/imminent harm exception to discretionary act immunity. Wisniewski, however, revisited the dividing line between ministerial and discretionary municipal acts. This decision is of note because it refined the definition of ministerial acts and correspondingly expanded the evidence permissible at trial to prove this issue. The impact of the decision is the likely decrease in the number of municipal tort cases decided by motions to strike and an increase in cases proceeding to trial.
I. The Law Governing Municipal Immunity
Unlike the state, municipalities do not enjoy sovereign immunity. "A suit against a municipality is not a suit against a sovereign."[2] Since municipalities are not sovereign, they have no protection from suit itself. They can neither seek the dismissal of a plaintiffs action nor can they file an immediate appeal of a denial of such a motion to dismiss.[3] Rather, municipal governmental immunity operates as a cloak protecting cities and towns from tort responsibility in the negligent performance of most discretionary governmental acts. Where public officials are "engaged upon a governmental duty ... so long as they act in good faith, in t he exercise of an honest judgment, and not in abuse of their discretion, or maliciously or wantonly, they cannot be held liable."[4]Governmental duties have been defined as those acts "performed wholly for the direct benefit of the public and are supervisory or discretionary in nature."[5] In Doe v. Petersen[6] it was explained that discretionary act immunity exists "in part" because "the danger [of] a more expansive exposure to liability 'would cramp the exercise of official discretion beyond the limits desirable in our society.""[7] The court explained:
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." Haddock v. New York, 75 N.Y.2d 478. 484, 553 N.E.2d 987, 554 N.Y.S.2d 439 (1990). 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." (Internal quotation marks omitted.) Evon v. Andrews, [211 Conn. 501, 505], 559 A.2d 1131 [(1989)]. This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.[8]
Thus, Connecticut law permits municipal tort liability exposure in at least three instances:[9] (1) in cases where a municipality's negligence involves the performance of a "non-governmental" function;[10] (2) in cases where the municipality negligently discharges a ministerial, governmental function; and (3) "where the duty of the public official to act is not ministerial but instead involves the exercise of discretion . . . [and] the duty to act is clear and unequivocal. . . .[such as when] it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm."[11]Since virtually all municipal acts involve "governmental" functions, the paramount question facing attorneys practicing municipal tort law is divining the discretionary or ministerial nature of the negligent act or omission.
II. The Difficulty In Determining The "Ministerial" Versus "Discretionary" Nature Of The Act
Determining whether a particular municipal act constitutes an "exercise of official discretion" is a most difficult task. The United States Supreme Court described this question as a "quagmire that has long plagued the law of municipal corporations."[12] An Oklahoma court described it as "amultiaddered medusa" resulting in "confusion and uncertainty all too painfully apparent to legal scholars, and an inability on the part of the courts to evolve any definitive guidelines . . ., "[13] For over ninety years, courts throughout the United States have quoted a California court's observation: "[I]t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail."[14]
Connecticut finds itself hip-deep in this quagmire. On most occasions Connecticut courts have determined that municipal acts, even mundane or common ones, require some amount of discretion. An example of this is Colon v. City of New Haven, [15]where the plaintiff claimed a school employee was negligent in the manner in which a door was swung open into a hallway causing injury to a student. The plaintiffs maintained no good reason existed for the court to attach discretionary act immunity to the mere act of opening a door, arguing that such common, day to day matters are ministerial in nature. The court disagreed. "In the present case, there was no directive describing the manner in which [the school employee] was to open doors. Rather, it appears that it is [the school employee's] poor exercise of judgment when opening the door that forms the basis of the plaintiffs' complaint. Accordingly, we conclude that [the school employee's] actions were discretionary in nature."[16]
The Colon decision is consistent with many prior Connecticut cases that look to the existence of specific guidelines to answer the ministerial versus discretionary question.[17]In Violano v. Fernandez, [18]the plaintiffs challenged this methodology, suggesting it would be better to look at the level of the decision-maker and the importance of the matter being decided in determining whether discretionary act immunity should apply. The plaintiffs in Violano proffered a system whereby municipalities would remain immune for actions taken at the policymaking or decisionmaking level but would be held liable for negligence occurring at the operational-level where actors merely implement policies previously determined by their superiors.[19]" The plaintiffs claim that we should follow the distinction used by other states under which governmental immunity would apply to acts that are related to policy decisions and, conversely, immunity would not apply to acts that implement policy. . . . We decline to adopt such a standard."[20] The Violano court did acknowledge the criticism of the current ministerial-discretionary distinction and tacitly admitted it is somewhat "artificial"; the opinion also recognized that other states had abandoned that system, opting to employ the methodology suggested by the appellant.[21]
Ultimately, however, the Supreme Court determined it was powerless to revisit the merits of the current law regarding municipal tort immunity based on the legislature's adoption of General Statutes Section 52-557n, which constituted legislative preemption of the subject.[22] The court further held that this enactment constituted a codification of the existing common law regarding municipal immunity.[23] Thus, Violano operated to arrest any further development of the common law of municipal tort liability and immunity. Going forward, this meant case law would be limited to the construction of this statute and, in the event the plain language should be deemed ambiguous, consultation to a legislative history described as "worse than murky."[24]
Violano, in a nutshell, left the "ministerial" versus "discretionary" test intact.[25] It also confirmed the "directive rule, " which provides that ministerial duties must be "performed in a prescribed manner" as "required by any city charter provision, ordinance, regulation, rule, policy, or any other directive....."[26] Accordingly, plaintiffs who merely allege general negligence by municipal employees (such as a failure of "due care" or the exercise of "poor judgment") will find that such allegations do not pass the directive rule test, regardless of how mundane or commonplace the alleged negligent task may be.[27] This rule of law is troubling in that it actually deters municipalities from creating or maintaining written safety instructions as such documents potentially provide a basis for finding a "ministerial duty" subjecting a municipality to liability exposure. Thus, a municipality which exerts zero effort in instructing employees in appropriate safety measures is insulated better than one which endeavors to provide employees with specific instructions for the public good.
Violano also took the opportunity to discuss the proper procedure for municipal tort actions. Previous case law held t hat "[governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded."[28] Despite this pleading requirement, motions to strike municipal tort claims on the basis of governmental immunity were not uncommon. Violano addressed this matter and specifically authorized the use of a motion to strike in cases where "it is apparent on the face of the complaint that the acts complained of are discretionary."[29] As a result, where a complaint fails to allege facts indicating a violation of the directive rule, a motion to strike is the appropriate mode to...
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