Wisniewski v. Town of Darien
Connecticut General Statutes §23-59 provides that many, but not all, of the duties of a tree warden involve the exercise of discretion. Mieczyslaw Wisniewski and Jolanta Wisniewski commenced this action against the town of Darien and its tree warden, Michael Cotta, after a tree within the town's right of way fell on their vehicle. The plaintiffs alleged negligence and loss of consortium against Cotta, sought indemnification against the town and claims for liability pursuant to C.G.S. §52-557n and §13a-149. The trial court denied the defendants' motions to strike, for summary judgment, for a directed verdict and to set aside the verdict all claiming that the action was barred by the doctrine of governmental immunity. The jury found that the plaintiffs established the negligence of the defendants under C.G.S. §52-557n by a preponderance of the evidence and that such negligence was the proximate cause of the plaintiffs' injuries. The jury further found that the defendants failed to establish that their public duty to inspect, maintain and remove the tree was discretionary. Jolanta Wisniewski was awarded $200,000 and Mieczyslaw Wisniewski was awarded $1.5 million in damages. The defendants appealed claiming, inter alia, that the court erred in failing to direct or to set aside the verdicts based on governmental immunity because prevailing law established that the duties of a tree warden are discretionary as a matter of law citing C.G.S. §23-59 and the Appellate Court's 2005 decision in DeConti v. McGlone. The Appellate Court disagreed and affirmed the judgment. The Court distinguished DeConti in which the plaintiff, in the context of a motion to strike, conceded that the duties, under the circumstances, were discretionary. No similar concession was made here. Although no written policies directed the warden, Cotta testified that upon receipt of a complaint regarding a potentially hazardous tree, he had a nondiscretionary duty to perform an inspection. The trial court appropriately declined to direct or to set aside the verdicts on the basis that the defendant's actions were discretionary as a matter of law. Further, from the evidence, the jury reasonably could have concluded that Cotta failed to perform his ministerial duty to inspect a potentially hazardous tree despite the undisputed receipt of multiple reports of its deteriorating condition and his failure to act proximately caused the plaintiffs injuries.