Ugrin v. Town of Cheshire
Connecticut General Statutes §52-557n(b)(8) abrogates the traditional common-law doctrine of municipal immunity, now codified by statute, in two enumerated circumstances. Craig and Samantha Ugrin and William and Lisa Baker filed virtually identical complaints against Cheshire after a massive sinkhole developed on the Bakers' property in 2005 shortly after they purchased it and the Ugrins purchased their property across the street. The complaint alleged that the town failed to disclose information regarding the presence of a barite mine discontinued in 1878 and sinkholes caused by the mine beneath, and near the properties, prior to their purchase by the plaintiffs. In 1993, a mine shaft was discovered and a study conducted. The trial court granted the town's motions to strike counts alleging private nuisance and negligent inspection and granted the town's motion for summary judgment on counts alleging negligence for failure to warn. The plaintiffs appealed. The Supreme Court affirmed and reversed the judgments, in part, and remanded. The court properly struck the nuisance counts but, on improper grounds, for failing to allege that the town owned or controlled land that interfered with the plaintiffs' use or enjoyment of their property. The ruling was upheld on the alternative ground that the plaintiffs failed to allege proximate cause or that the town created a nuisance by a positive act. The town could not have created or participated in creating the alleged nuisance or given warnings as alleged, because when construction was authorized in 1970, it was unaware of the problem. The trial court erred in striking the negligent inspection counts finding that C.G.S. §52-557n(b)(8) does not create a cause of action against a municipality. The word "unless" in C.G.S. §52-557n(b)(8) created exceptions to the rule that municipalities are protected from liability in described circumstances. The town is not shielded from liability in the inspection context when it has notice of a hazardous condition or engaged in conduct that constitutes a reckless disregard of public health and safety. The Supreme Court majority concluded that summary judgment properly entered on the negligence counts based on governmental immunity finding any duty to inform regarding a 1993 mine report was discretionary. No exception to governmental immunity for discretionary acts was alleged. Justice Eveleigh concurred and dissented in part, finding the duty to warn ministerial, not discretionary.