Supreme Court left to decide meaning of legislative silence
By: Thomas B. Scheffey
Connecticut Law Tribune December 9, 2002
Two powerful adversaries thundered before the state Supreme Court Dec. 4---debating the meaning of silence.
Attorneys for Connecticut cities and lawyers who represent tort plaintiffs have diametrically opposing views on whether a 1987 law creates a right to directly sue municipalities for negligence. Trumbull advocate Arthur C. Laske III, representing the City of Bridgeport, showcased 142 pages of legislative debate. The fact that they never referenced a change from common law immunity, he said, was evidence law makers never contemplated direct suits against towns and cities for passing the act that became C.G.S. § 52-557n.
But Karen E. Souza, representing a child injured due to an uncapped fire hydrant, contended that the state’s language is clear on its face when it states “ [A] political subdivison of the state shall be liable for damages to person or property caused by…[t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties…”
Souza, in the New Haven law firm of Alan E. Silver, cited a handful of Superior Court decisions that held this language permits direct negligence actions against cities and towns. She argued that the lawmakers’ silence over the decade since these decisions began is evidence they liked the way courts were interpreting the act.
Laske contended the statute was a mess from the start. He cited complaints from lawmakers and courts that they’ve always been unclear about the real meaning of C.G.S § 52-557n, passed in the confusion and stress of late night legislative debate. The contentious 1986 tort reform debate, Laske said, was silent on the topic of eliminating traditional municipal immunity.
But for one justice, at least, such silence cuts both ways. “How does the legislative history help you? How do you conclude that silence is on your side?” quizzed high court newcomer, Peter T. Zarella. Laske responded that, if the 1986 statute was intended to permit suits against cities without “naming a municipal actor” as an individual defendant or to create vicarious liability for negligent city employess, it would have sparked a huge debate.
The Connecticut Council of Municipalities and the Connecticut Trial Lawyers Association both would have spurred their allies in the legislature to champion their views, Laske maintained. Both of these groups, he noted, have filed friend-of-the—court briefs in the present case, Spears vs. Garcia.
In Laske’s analysis, a key phrase in the statute is the savings clause, “except as otherwise provided by law.” It requires courts to consider two other statutes that cover municipalities’ duty to indemnify city employees found negligent in the discharge of a non-discretionary duty. The municipal employees’ indemnification statute (C.G.S § 7-465) and the firefighters’ indemnifications statute (C.G.S. § 7-308) are meant to lighten the liability burden that cites shoulder, and must be read together with 52-557, Laske argued.
That’s exactly the opposite of what Connecticut plaintiffs’ lawyers want. In the amicus brief filed by the CTLA, Kathryn Caliby and Douglas W. Hammond, of Hartford’s RisCassi and Davis, argue that it would enhance “judicial economy” if plaintiff’s did not have to name specific municipal employees as defendants. It would also avoid cumbersome situations where a large number of employees have to be sued to place blame.
Zarella’s repeated questioning of Laske focused on whether ambiguity existed: “I’m trying to figure out what’s unclear about the statute.”
Laske contented that the appellate Court’s holding, that 52-557 allows a direct negligence case against a city, “creates a complete end run around what has always existed.” But Souza, arguing the plaintiff’s position, said the appellate court was right to avoid an analysis of the legislative history behind the statute since it is clear on its face.
Justice Joette Katz noted that suing a city without an individual defendant makes it harder for a plaintiff to trace the elements of negligence, “but there’s no prejudice to the defendant by the fact that you haven’t named a particular employee?”
Laske in rebuttal, noted that former Justice Robert I Berdon, in his dissent in the 1989 supreme court case of Williams v. New Haven, stated that 52-557 allows direct suits for negligence against cities. Laske also noted that the municipal immunity is an obsolete in the eyes of late tort scholar William H. Prosser and the American Law Institute model laws. “If change could come, might come, but let it come properly,” concluded Laske, not by court decision, but through legislature.