Silberstein v. 54 Hillcrest Park Associates, LLC
The plaintiffs did not allege a harm that came within the identifiable person, imminent harm exception to governmental immunity for discretionary acts when their claim of flooding from the defendants' alleged negligence in failing to maintain the roads and drainage systems, necessarily was unlimited as to duration and episodic as to occurrence and, therefore, not imminent. The plaintiffs, Tom Silberstein and Elizabeth Newman, own a home in the Hillcrest Park Tax District of Old Greenwich and are members of the Hillcrest Park Association, Inc. A special vote of tax district members approved a subdivision plan. After the construction of the houses, the plaintiffs began to experience "severe and excessive flooding" on their property. Unable to resolve the issue, the plaintiffs filed a complaint against the Hillcrest Park Tax District and Hillcrest Park Association, Inc. amended to allege, inter alia, breach of fiduciary duty and negligence. The trial court rendered summary judgment to the defendants. The plaintiffs appealed claiming that the court erred in holding that their negligence claim was barred by the doctrine of governmental immunity. The Appellate Court affirmed the judgment. Upon its formation in 1985, the tax district assumed the maintenance activities previously performed by the association. Through its bylaws, the district undertook to construct and maintain the roads, drains and storm sewers in Hillcrest Park. Therefore, the defendants had a duty to maintain and repair the storm drains and sewers in that neighborhood. The Appellate Court disagreed with the plaintiffs' argument that the defendants' maintenance of the roads, storm drains and sewers was a ministerial function. The bylaws did not prescribe the manner in which the roads and drainage systems were to be maintained. Consequently, such maintenance was discretionary in nature. The plaintiffs did not allege facts sufficient to fall within the identifiable person, imminent harm exception to governmental immunity for discretionary acts. The claim of flooding was necessarily unlimited as to duration and episodic as to occurrence. The plaintiffs alleged that the flooding occurred during periods of heavy rainfall over a period of years. Harm of this nature was not imminent--it could occur at any time or not at all.