GEORGE NORTHRUP ET AL. v. HENRY WITKOWSKI,

JR., ET AL.

(AC 38878)

Alvord, Prescott and Mullins, Js.

Syllabus

The plaintiff homeowners commenced this action against the defendants,

the borough of Naugatuck and several of its town officials, to recover

damages sustained as the result of repeated flooding of their property.

They alleged that on eight occasions between 2009 and 2012, their

property was inundated with water following heavy rainfall when the

single catch basin in the area was clogged or otherwise inadequate

to redirect water away from their property, and that the defendants

negligently and recklessly had failed to perform their municipal duties

in an appropriate manner. The trial court granted the defendants’ motion

for summary judgment on the ground of governmental immunity pursuant to statute (§ 52-557n [a] [2] [B]) as to the counts of the complaint

alleging negligence and recklessness. From the judgment rendered

thereon, the plaintiffs appealed to this court, claiming, inter alia, that

issues of material fact existed as to whether the acts or omissions of

the defendants were discretionary or ministerial in nature. Specifically,

they claimed that certain language in a town ordinance, which assigned

responsibility for the care, management, and maintenance of the town’s

storm water drainage system to the town’s street commission, imposed a

ministerial duty on the defendants to keep the storm drains and drainage

pipes near the plaintiff’s property in a safe and operable condition. Held:

1. The trial court correctly determined that there were no genuine issues

of material fact with respect to whetherthe defendants’ alleged negligent

acts or omissions were discretionary in nature and, thus, subject to

governmental immunity: although the town ordinance on which the

plaintiffs’ relied required the street commission to clean, to maintain

and to repair the town’s storm water sewer system, the ordinance contained no provisions that mandated the time or manner in which those

responsibilities were to be executed, and the day-to-day decision making

regarding when and how to direct town resources in furtherance of the

duty to keep the storm water systems up-to-date and working properly

necessarily was left to the judgment and discretion of street commission

officials and employees; moreover, certain case law relied on by the

plaintiffs in support of their claim that genuine issues of material fact

existed as to whether the defendants’ duty was discretionary in nature

was factually distinguishable from the present case and contained dicta

that was not binding on this court.

2. The trial court properly rejected the plaintiffs’ claim that the identifiable

person-imminent harm exception to discretionary act immunity applied

to the facts of the present case, the plaintiffs having failed to demonstrate

that the harm alleged was imminent; because the instances of flooding

here occurred eight times over the course of four years during periods

of greater than usual rainfall when the catch basins in the area either

were filled with snow and ice or otherwise blocked by debris, and

because there was not a high probability that damaging flooding would

occur at any particular time, there was no clear and urgent need for

action on the part of the defendants, and the court, therefore, properly

determined that the plaintiffs could not demonstrate imminent harm.

3. The trial court properly rendered summary judgment in favor of the

defendants on the counts of the complaint alleging recklessness; the

plaintiffs’ allegations of recklessness, which were identical to the allegations in support of the negligence counts, could not reasonably be

characterized as rising above mere negligence and, even if true, were

insufficient, as a matter of law, for their submission to the jury, as the

record could not support a finding that any of the individual defendants

acted or failed to act with the type of wanton disregard that is the

hallmark of reckless behavior.

Argued April 19—officially released August 1, 2017
Procedural History

Action to recover damages for property damage sustained as a result of the alleged negligence of the named

defendant et al., and for other relief, brought to the

Superior Court in the judicial district of New Haven,

where the court, Blue, J., granted the defendants’

motion for summary judgment and rendered judgment

thereon; thereafter, the court denied the plaintiffs’

motion to reargue, and the plaintiffs appealed to this

court. Affirmed.

Joshua F. Gilman, for the appellants (plaintiffs).

Thomas Gerarde, with whom, on the brief, was Emily

E. Holland, for the appellees (defendants).
Opinion

PRESCOTT, J. The underlying action arose as a result

of the repeated flooding of residential property due to

inadequate street drainage of which the municipality

and its officials allegedly were aware but failed to correct. The plaintiffs, George Northrup and Helen

Northrup,1

the owners of the property at issue, appeal

from the summary judgment rendered by the trial court

in favor of the defendants—the borough of Naugatuck

(town); Henry J. Witkowski, Jr., the town’s former

superintendent of streets; James Stewart, the former

town engineer and, later, the town’s director of public

works;2 and Robert A. Mezzo, the town’s mayor3—upon

its determination that all counts of the plaintiffs’ complaint were barred by governmental immunity.

The plaintiffs claim on appeal that the court improperly determined that (1) the defendants were entitled

to governmental immunity on all counts as a matter

of law because the acts or omissions of which they

complained were discretionary rather than ministerial

in nature, (2) the identifiable person-imminent harm

exception to governmental immunity did not apply to

the flooding at issue because the plaintiffs were not

subject to imminent harm, and (3) the allegations of

recklessness directed against the individual defendants

could not be sustained as a matter of law. We disagree

with the plaintiffs and, for the reasons that follow,

affirm the judgment of the trial court.

The record before the court, viewed in the light most

favorable to the plaintiffs as the nonmoving party,

reveals the following facts and procedural history. The

plaintiffs reside on property located in the town at 61

Nettleton Avenue. On eight different occasions between

2009 and 2012, the plaintiff’s property was damaged

when surface rainwater and/or ‘‘black water’’4inundated the property because the single catch basins in

the area routinely became clogged or inadequately redirected water away from the property.

After the first occurrence in July, 2009, Helen

Northrup contacted Stewart, who, at that time, was

the town’s supervisory engineer. He told her that the

flooding was the result of a rare storm and that it would

not happen again. Despite his assurance, however,

flooding occurred again in October and December of

that year. The plaintiffs continued to contact Stewart,

to no avail. The plaintiffs made several requests to the

town for sandbags; one such request was granted, but

others were denied or simply ignored.

The town received a report in October, 2009, from

an engineering firm about the Nettleton Avenue neighborhood. The report indicated that, over the past forty

years, many residences in the neighborhood had experienced periodic flooding of their properties following

periods of heavy rainfall. It further indicated that the
drainage system in the area was likely to experience

flooding after rainfalls of two inches or more, which

could occur several times a year. The report attributed

the flooding to the fact that runoff was required to flow

through relatively narrow drainpipes that were in poor

to fair condition and that the majority of catch basins

in the area were old and had small openings that often

became overgrown with vegetation or obstructed by

trash. The reportrecommended that the town construct

new, larger storm drains to handle the storm runoff in

the area, but the town failed to adopt that proposal.

The plaintiffs’ property flooded again in July of 2010,

March and August of 2011, and June and September

of 2012.

The plaintiffs commenced the underlying action in

February, 2010. They filed an amended complaint on

March 11, 2013. The amended complaint contained nine

counts. Counts one, two, and six sounded in negligence

against Witkowski, Jr., Stewart, and the town. Counts

three through five alleged common-law recklessness

against the individual defendants. Counts seven through

nine alleged negligent infliction of emotional distress

against Witkowski, Jr., Stewart, and the town.

On April 5, 2013, the defendants filed a motion to

strike all but the negligence counts. Specifically, the

defendants argued that the counts alleging commonlaw recklessness against the individual defendants

should be stricken because they failed to set forth allegations of conduct that would give rise to a finding of

recklessness. Further, the defendants argued that the

counts sounding in negligent infliction of emotional

distress should be stricken because such a cause of

action cannot arise from allegations of damage to property only. The plaintiffs filed an opposition to the motion

to strike alleging that all causes of action were sufficiently pleaded given those allegations that were

expressly pleaded as well as those necessarily implied.

The court, Frechette, J., issued an order denying the

motion to strike as to the recklessness counts, but granting the motion as to those counts alleging negligent

infliction of emotional distress. The court stated in its

order that ‘‘[t]aken as admitted, the plaintiff’s allegations of recklessness are sufficient.’’ The court nevertheless agreed ‘‘with the vast majority of Superior Court

decisions which hold that Connecticut does not recognize a cause of action for negligent infliction of emotional distress arising solely out of a property

damage claim.’’

On June 4, 2013, the plaintiffs filed the operative

second amended complaint, in which, among other

things, they repleaded their counts alleging negligent

infliction of emotional distress. The defendants filed a

revised answer on February 27, 2014, in which they

raised special defenses of contributory negligence, governmental immunity, and failure to mitigate damages.
A certificate of closed pleadings and a claim for the

trial list was filed on May 4, 2015.

On October 30, 2015, the defendants filed the motion

for summary judgment underlying the present appeal.

The defendants submitted a supporting memorandum

of law, attached to which were partial transcripts from

the depositions of Helen Northrup and the individual

defendants, as well as an affidavit by Stewart. The

defendants argued that the negligence counts, including

those alleging negligent infliction of emotional distress,

were barred by governmental immunity because they

involved acts or omissions that required the exercise

of judgment or discretion, and no other recognized

exception to governmental immunity applied. The

defendants further argued that the recklessness counts

brought against the individual defendants also failed as

a matter of law because, on the basis of the allegations

and evidence presented, no reasonable fact finder could

determine that the individual defendants had engaged

in demonstrably reckless conduct.

The plaintiffs filed an objection to the motion for

summary judgment on November 18, 2015, arguing with

respect to the negligence counts that there remained

genuine issues of material fact as to whether the defendants were exercising ministerial or discretionary

duties and, if discretionary, whether the identifiable

person-imminent harm exception to governmental

immunity applied. With regard to the recklessness

counts, the plaintiffs argued that a genuine issue of

material fact exists as to whether the conduct of the

individual defendants rose to the level of recklessness.

The plaintiffs attached a number of exhibits to their

objection, including portions of the deposition testimony of Helen Northrup, Stewart, and Witkowski, Jr.;

an affidavit from Helen Northrup; a copy of the ‘‘October, 2009 Stormwater Management Report for the Nettleton Avenue Neighborhood’’; a copy of chapter 16,

article II, § 16-32 of the town’s code of ordinances; Witkowski, Jr.’s and Stewart’s answers to the plaintiffs’

interrogatories; and copies of sewer back-up reports

and citizen complaints regarding problems at nearby

properties. The defendants filed a reply memorandum.

Oral argument on the motion was heard by the court,

Blue, J., on January 4, 2016. During argument regarding

whether there were sufficient facts in evidence to submit the recklessness counts to a jury, the court asked

the plaintiffs’ counsel whether he knew of ‘‘any case

in Connecticut or elsewhere where a town or town

official has been held liable in recklessness’’ in a situation similar to the present case. Counsel answered in

the negative, but asked for an opportunity to submit a

supplemental brief addressing the court’s question. The

court agreed, with the consent of the defendants’ counsel, and continued the matter to January 19, 2016, for

supplemental argument on the recklessness counts. The
plaintiffs submitted their supplemental brief on January

8, 2016, and the defendants filed a brief in response on

January 15, 2016. Argument on the motion for summary

judgment resumed on January 19, 2016.

On January 20, 2016, the court issued a memorandum

of decision granting summary judgment in favor of the

defendants on all counts. With respect to the negligence

counts, including those counts alleging negligent infliction of emotional distress, the court concluded that the

plaintiffs’ specifications of negligence amounted to a

‘‘litany of discretionary omissions’’ and that their ‘‘allegations boiled down to a claim thatthe defendants failed

to perform their municipal duties in an appropriate

manner.’’ The court determined that the city ordinance

on which the plaintiffs relied in opposing summary judgment only set forth the general duties of the street

department without any specific directions or mandates

as to how those duties should be discharged. Accordingly, the court concluded that the defendants’ acts or

omissions in maintaining the town’s drainage system

were discretionary in nature. Furthermore, the court

concluded that the identifiable person-imminent harm

exception to discretionary act immunity was inapplicable as a matter of law because the risk of the property

flooding at any given time was indefinite and, thus,

did not constitute an imminent harm. The court also

granted summary judgment with respectto the recklessness counts, concluding that they also were barred by

governmental immunity.

The plaintiffs filed a motion to reargue and for reconsideration, which the defendants opposed. The court

denied the plaintiffs’ motion, and this appeal followed.

We begin with the standard of review we employ in

appeals challenging a court’s decision to grant summary

judgment. ‘‘Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that

there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter

of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light

most favorable to the nonmoving party. . . . The party

seeking summary judgment has the burden of showing

the absence of any genuine issue [of] material facts

which, under applicable principles of substantive law,

entitle him to a judgment as a matter of law . . . and

the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a

genuine issue of material fact. . . . [I]ssue-finding,

rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of

fact when ruling on a motion for summary judgment.

. . . [Its] function is not to decide issues of material

fact, but rather to determine whether any such issues

exist. . . . Our review of the decision to grant a motion
for summary judgment is plenary. . . . We therefore

must decide whether the court’s conclusions were

legally and logically correct and find support in the

record.’’ (Internal quotation marks omitted.) DiMiceli

v. Cheshire, 162 Conn. App. 216, 221–22, 131 A.3d

771 (2016).

We turn next to the law governing municipal liability

and the liability of municipal agents, which is well settled. At common law, a municipality generally was

immune from liability for its tortious acts. Spears v.

Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). As our

Supreme Court has recognized, however, ‘‘governmental immunity may be abrogated by statute.’’ (Internal

quotation marks omitted.) Id. General Statutes § 52-

557n (a) (1) provides in relevant part: ‘‘Except as otherwise provided by law, a political subdivision of the state

shall be liable for damages to person or property caused

by: (A) The 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 . . . .’’ This language ‘‘clearly and expressly

abrogates the traditional common-law doctrine in this

state that municipalities are immune from suit for torts

committed by their employees and agents.’’ (Internal

quotation marks omitted.) DiMiceli v. Cheshire, supra,

162 Conn. App. 223.

Subdivision (2) of § 52-557n (a), however, sets forth

two express and significant limitations on the statute’s

general abrogation of governmental immunity. Relevant

to the present appeal is the following: ‘‘Except as otherwise provided by law, a political subdivision of the state

shall not be liable for damages to person or property

caused by . . . (B) negligent acts or omissions which

require the exercise of judgment or discretion as an

official function of the authority expressly or impliedly

granted by law. . . .’’ General Statutes § 52-557n (a) (2)

(B). ‘‘The statute, thus, distinguishes between discretionary acts and those that are ministerial in nature,

with liability generally attaching to a municipality only

for negligently performed ministerial acts, not for negligently performed discretionary acts.’’ DiMiceli v.

Cheshire, supra,162 Conn. App. 224.

‘‘Municipal officials are immune from liability for negligence arising out of their discretionary acts in part

because of the danger that a more expansive exposure

to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . .

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 secondguessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.

. . . 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.

. . . This is because society has no analogous interest

in permitting municipal officers to exercise judgment in

the performance of ministerial acts.’’(Citations omitted;

footnote omitted; internal quotation marks omitted.)

Doe v. Petersen, 279 Conn. 607, 614–15, 903 A.2d 191

(2006).

‘‘The hallmark of a discretionary act is that it requires

the exercise of judgment. . . . In contrast, [m]inisterial

refers to a duty which is to be performed in a prescribed

manner without the exercise of judgment or discretion.

. . . In order to create a ministerial duty, there must

be a city charter provision, ordinance, regulation, rule,

policy, or any other directive [compelling a municipal

employee] to [act] in any prescribed manner. . . .

‘‘In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered

discretionary acts entitled to governmental immunity.

. . . A municipality necessarily makes discretionary

policy decisions with respect to the timing, frequency,

method and extent of inspections, maintenance and

repairs. . . . Although the determination of whether

official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder

. . . there are cases where [such a determination] is

apparent from the complaint. . . . [W]hether an act or

omission is discretionary in nature and, thus, whether

governmental immunity may be successfully invoked

pursuant to § 52-557n (a) (2) (B), turns on the character

of the act or omission complained of in the complaint.

. . . Accordingly, where it is apparent from the complaint that the defendants’ allegedly negligent acts or

omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in

nature, summary judgment is proper.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) DiMiceli v. Cheshire, supra, 162 Conn. App.

224–25.

Even if a municipal defendant’s conduct is discretionary in nature, our courts have identified three exceptions to discretionary act immunity. ‘‘Each of these

exceptions represents a situation in which the public

official’s duty to act is [so] clear and unequivocal that

the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force. . . . First, liability may be

imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.

. . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action

against a municipality or municipal official for failure

to enforce certain laws. . . . Third, liability may be

imposed when the circumstances make it apparent to
the public officer that his or her failure to act would

be likely to subject an identifiable person to imminent

harm.’’ (Citations omitted; internal quotation marks

omitted.) Doe v. Petersen, supra, 279 Conn. 615–16. With

these general principles in mind, we turn to the plaintiffs’ claims on appeal.

I

The plaintiffs first claim on appeal that the court

improperly determined as a matter of law that the defendants were entitled to governmental immunity on all

counts because the acts or omissions of which the plaintiffs complained were discretionary in nature rather

than ministerial. We disagree.

In arguing that the alleged negligent acts or omissions

of the defendants in the present case were ministerial

in nature rather than discretionary, the plaintiffs rely

upon § 16-32 of the town’s code of ordinances and our

Supreme Court’s decision in Spitzer v. Waterbury, 113

Conn. 84, 154 A. 157 (1931). We are not persuaded,

however, that any language found in § 16-32 imposes

a ministerial duty on the defendants with respect to

maintaining and repairing the town’s storm water drainage systems or that the language the plaintiffs have

culled from the discussion in Spitzer necessarily supports a contrary conclusion. We address each argument

in turn.

A

As previously set forth, our courts consistently have

adhered to the principle that to demonstrate the existence of a ministerial duty on the part of a municipality

and its agents, a plaintiff ordinarily must point to some

statute, city charter provision, ordinance, regulation,

rule, policy, or other directive that, by its clearlanguage,

compels a municipal employee to act in a prescribed

manner, without the exercise of judgment or discretion.

See Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d

1188 (2006); Evon v. Andrews, 211 Conn. 501, 506–507,

559 A.2d 1131 (1989); DiMiceli v. Cheshire, supra, 162

Conn. App. 224–25; Grignano v. Milford, 106 Conn.

App. 648, 659–60, 943 A.2d 507 (2008). In the present

case, the plaintiffs argue that § 16-32 of the town’s code

of ordinances, which assigns responsibility for the care,

management, and maintenance of the town’s storm

water drainage system to the town’s street commission,

contains such language. Specifically, the plaintiffs insist

that § 16-32 imposed a ministerial duty on the defendants to keep the storm drains and drainage pipes near

their property in a safe and operable condition, and their

failure to exercise that duty in a reasonable manner led

to the flooding of the plaintiffs’ property.

Section 16-32 of the town’s code of ordinances provides as follows: ‘‘Except as otherwise provided in this

article, the streets commission shall be responsible for

the care and management of all streets, avenues, high-
ways, alleys and bridges, and the opening, grading

improving, repairing and cleaning of the same; of the

construction, protection, repair, furnishing, cleaning,

heating, lighting and general care of all public streets

and appurtenances, except such as are by the express

terms of the Charter under the control of some other

officer or department; of the construction,repair, cleaning and general care of all drains, culverts, sluiceways

and catch basins, and the collection and disposing of

ashes, garbage and refuse. The streets commission shall

make all suitable rules and regulations in regard to the

department and the conduct of its business.’’5 Naugatuck Code of Ordinances, c. 16, art. II, § 16-32.

It is indisputable that the ordinance places the

responsibility of cleaning, maintaining and repairing the

town’s catch basins and other elements of the storm

water sewer squarely in the hands of the streets commission. The plaintiffs, however, have not alerted us

to, nor have we identified on the basis of our own

review, any language in § 16-32 of the town’s code of

ordinances that mandates the manner in which the

streets commission, the town, or any of its municipal

employees should endeavor to meet this responsibility.

The day-to-day decision-making regarding when and

how to direct town resources in furtherance of the duty

to keep the storm water systems up-to-date and working

properly necessarily is left to the judgment and discretion of street commission officials and employees. See

Grignano v. Milford, supra, 106 Conn. App. 656 (‘‘[a]

municipality necessarily makes discretionary policy

decisions with respect to the timing, frequency, method

and extent of inspections, maintenance and repairs’’).

‘‘There is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions.’’ Bonington v.

Westport, 297 Conn. 297, 308, 999 A.2d 700 (2010). This

court’s decision in Grignano v. Milford, supra, 106

Conn. App. 648, in which this court affirmed the granting of summary judgment in favor of the defendant

town, is illustrative of this point. The plaintiff in Grignano asserted that language in a town ordinance created a ministerial duty requiring the defendant town to

perform reasonable and proper inspections and maintenance activities on the premises where the plaintiff had

fallen and been injured. Id., 656. This court concluded

to the contrary that the defendant’s exercise of that

duty was discretionary because the ordinance did not

prescribe the frequency of or the manner in which the

defendant was to perform inspection and maintenance.

Id., 656–57.

Similarly, in DiMiceli v. Cheshire, supra, 162 Conn.

App. 219, the plaintiffs appealed from a summary judgment rendered on their complaint alleging that the

defendant town had negligently exercised its ministerial

duty to maintain a town park and seesaw, on which
the plaintiff child was injured. In support of their argument that the town’s duty was ministerial rather than

discretionary, the plaintiffs cited to, inter alia, a provision in the town’s code of ordinances. Id., 225. The

town ordinance at issue provided that ‘‘[t]he town’s

parks and recreational facilities shall be maintained for

the residents of Cheshire and guests in their company.’’

(Internal quotation marks omitted.) Id., 226. This court

agreed with the trial court that the ordinance did not

impose a ministerial duty on the town because it did not

mandate the mannerin which the town was supposed to

conduct maintenance. Because those decisions were

left to the judgment and discretion of municipal employees, the town was entitled to discretionary act immunity. Id., 226, 229.

Turning back to the present case, although there is

language in § 16-32 of the town’s code of ordinances

that requires the streets commission to maintain and

repair the town’s storm water sewer system, the ordinance contains no provisions that mandate the time

or manner in which those responsibilities are to be

executed, leaving such details to the discretion and

judgment of the municipal employees.

B

Despite the absence of any language limiting the discretion of the defendants, the plaintiffs nevertheless

argue on the basis of language from our Supreme

Court’s decision in Spitzer v. Waterbury, supra, 113

Conn. 85, that there remains a genuine issue of material

fact as to whether the defendants’ duty was discretionary in nature. We are unconvinced that Spitzer undermines our analysis in part I A of this opinion, because

the language on which the plaintiffs rely is dicta and

subsequent Supreme Court cases since Spitzer have

refined and clarified the appropriate analysis to apply

when determining whether acts or omissions of a

municipality are discretionary or ministerial for purposes of determining governmental immunity. Accordingly, we conclude that Spitzer does not support the

weight placed upon it by the plaintiffs.

In Spitzer, as in the present case, the plaintiff property owners sued the defendant city after the city’s

storm water sewer overflowed from a nearby catch

basin and flooded their cellar, causing damage. Spitzer

v. Waterbury, supra, 113 Conn. 85. The trial court ruled

against the property owners and in favor of the defendant city on the two counts of negligence, and the

Supreme Court affirmed that judgment on appeal.

According to the Supreme Court, the appeal was limited

to ‘‘the correctness of the court’s conclusion that the

city was not liable for the damage resulting from its

failure to provide an outlet of sufficient size to carry

off the water, which was discharged into [a] covered

stream after the rainfall . . . .’’ Id., 85–86. In other

words, the issue was not about whether catch basins
were properly maintained and cleaned regularly so as

to handle above ordinary rainfall, but whether the catch

basin system as it was planned could handle even ordinary amounts of rain.

In resolving that issue, the Supreme Court reasoned

that ‘‘if the plan adopted by the city failed to provide

an outlet of sufficient size to carry off the surface water

which might reasonably be expected to accumulate

under ordinary conditions, with the result that the water

thus collected was discharged in a body upon the plaintiffs’ property, the city could not escape liability for the

resulting invasion of the plaintiffs’ rights upon the plea

that it was acting in the discharge of a governmental

duty. . . . If, however, the drains and sewers of a

municipality are amply sufficient to meet all demands

upon them under ordinary conditions, the municipality

is not liable because they may prove inadequate to carry

off the surplus water from an extraordinary storm or

flood. . . . An extraordinary storm is not necessarily

an unprecedented one, but one that happens so rarely

that it is unusual and not ordinarily to be expected.’’

(Citations omitted.) Id., 90.

The Supreme Court cited to the trial court’s unchallenged findings that the rainfall that caused the flooding

of the Spitzers’ property was unusual and unprecedented and that the storm water system in the area

was of a sufficient size and construction to handle an

ordinary rainfall. Id. According to the Supreme Court,

those findings were ‘‘decisive, adverse to the plaintiffs’

contention, as to the liability of the city, either on the

ground of negligent construction or of a direct invasion

of the plaintiffs’ rights by reason of a defective plan of

construction.’’ Id., 90–91.

The claims of negligence at issue in Spitzer did not

involve claims that municipal employees had failed to

maintain the city’s storm water system properly, or

failed to correct or ignored problems brought to their

attention by property owners, and, therefore, the case

is factually distinguishable. Despite the fact that the

defendant municipality prevailed in Spitzer, the plaintiffs here nevertheless direct our attention to the following passage, which they contend supports their

assertion that discretionary act immunity should not

apply in the present case. In discussing a municipality’s

general duty to construct a storm water system, which

was not at issue in Spitzer, the Supreme Court observed

that a city is ‘‘bound to exercise due care in the construction of its storm water sewers, and would be liable for

its failure to do so, though the work was done in the

performance of a public and governmental duty. . . .

The work of constructing drains and sewers, as well

as that of keeping them in repair, is ministerial, and

the municipality is responsible for negligence in its performance.’’ (Citations omitted; emphasis added.) Id.,

88.
There is no further discussion or analysis in Spitzer

regarding the nature of a municipality’s duty to keep a

drainage system in good repair. The court does not

discuss, for example, whetherthe exercise of discretion

or judgment was needed to meet the municipality’s

obligation, a touchstone now in determining whether

a duty is ministerial in nature. Violano v. Fernandez,

supra, 280 Conn. 318. Moreover, the language was

superfluous to the issue before the court and unnecessary to the court’s holding. This language from Spitzer

has not been relied upon or cited favorably in any recent

appellate cases in which the court was tasked with

deciding whether a municipality had a discretionary or

ministerial duty. We view the highlighted language as

nothing more than dicta, which is not binding on this

court.6 See State v. DeJesus, 288 Conn. 418, 454 n.23,

953 A.2d 45 (2008).

Furthermore, in Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn. App. 262, 41 A.3d 1147 (2012),

this court, in addition to distinguishing Spitzer on its

facts, suggested that Spitzer was no longer broadly

applicable in distinguishing between ministerial and discretionary acts. The plaintiffs in Silberstein were homeowners who lived in a neighborhood association and

private tax district, and they filed a negligence action

against the association and tax district alleging that they

had failed to maintain the roads and drainage systems in

the neighborhood, resulting in periodic flooding of the

homeowners’ properties. Id., 265. The trial court determined that the duty to maintain the roads, storm drains,

and sewers was discretionary in nature and granted

summary judgment for the defendants on the basis of

governmental immunity. Id., 266. In affirming the judgment of the trial court, this court discussed the Spitzer

language, and noted, ‘‘[s]ince Spitzer, our Supreme

Court has refined its analysis of the relationship and

differences between ministerial and discretionary acts

to determine [questions of municipal liability].’’ Id., 272.

We agree with that analysis.

As we have already indicated, there is now a wellestablished legal distinction ‘‘between laws that impose

general duties on officials and those that mandate a

particular response to specific conditions.’’ Id., 273.

Under our existing jurisprudence, a ministerial duty on

the part of a municipality or its agents ordinarily will

be found only if some municipal ordinance, rule, policy,

or other official directive clearly compels a prescribed

manner of action that does not involve the exercise of

judgment or discretion. See Coley v. Hartford, 312

Conn. 150, 161–62, 95 A.3d 480 (2014); Bonington v.

Westport, supra, 297 Conn. 310–11; Violano v. Fernandez, supra, 280 Conn. 323.

Considered in light of our modern case law analyzing

qualified governmental immunity, we are convinced

that the court correctly determined that there was no
genuine issue of material fact to be resolved with

respect to whether the alleged negligent acts or omissions of the defendants were discretionary in nature

and, thus, subject to immunity. Accordingly, we reject

the plaintiffs’ claim.

II

The plaintiffs next claim that, even if the defendants’

actions were discretionary in nature, the court improperly concluded that the identifiable person-imminent

harm exception to governmental immunity did not

apply to the flooding of their property because the plaintiffs were not subject to imminent harm. We disagree.

‘‘The imminent harm exception to discretionary act

immunity [for municipalities and their employees]

applies when the circumstances make it apparent to

the public officer that his or her failure to act would

be likely to subject an identifiable person to imminent

harm. . . . By its own terms, this test requires three

things: (1) an imminent harm; (2) an identifiable [person]; and (3) a public official to whom it is apparent

that his or her conduct is likely to subject that [person]

to that harm. . . . [Our Supreme Court has] stated previously that this exception to the general rule of governmental immunity for employees engaged in

discretionary activities has received very limited recognition in this state.’’ (Internal quotation marks omitted.)

Strycharz v. Cady, 323 Conn. 548, 573–74, 148 A.3d

1011 (2016).

In Haynes v. Middletown, 314 Conn. 303, 101 A.3d

249 (2014), our SupremeCourtreexamined and clarified

our jurisprudence with respect to the principle of imminent harm. The court emphasized that in determining

whether a harm is ‘‘imminent,’’ it should focus on ‘‘the

magnitude of the risk that the condition created’’ not

‘‘the duration of the alleged dangerous condition.’’

(Emphasis in original.) Id., 322. This court later

explained that ‘‘when the court in Haynes spoke of the

magnitude of the risk . . . it specifically associated it

with the probability that harm would occur, not the

foreseeability of the harm.’’(Citation omitted; emphasis

in original; internal quotation marks omitted.) Williams

v. Housing Authority, 159 Conn. App. 679, 704–705,

124 A.3d 537, cert. granted on other grounds, 319 Conn.

947, 125 A.3d 528 (2015). ‘‘[T]he likelihood of the harm

must be sufficient to place upon the municipal defendant a ‘clear and unequivocal duty’ . . . to alleviate the

dangerous condition.’’ (Citation omitted.) Id., 706. In

other words, ‘‘the probability that harm will occur must

be so high as to require the defendant to act immediately

to prevent the harm.’’ (Emphasis omitted.) Id., 706.

The instances of flooding in the present case occurred

eight times over the course of four years, from 2009 to

2012. There is no indication in the record about the

number ofrainfalls that occurred each year, but it would
strain credulity to imagine the plaintiffs’ property

flooded each time it rained, a fact that was never

asserted by the plaintiffs. In fact, the evidence suggests

that the flooding at issue occurred during periods of

greater than usual rainfall, when the catch basins in the

area either were filled with snow and ice or otherwise

blocked by debris. Although the possibility of damaging

flooding to the plaintiffs’ property arguably should have

been apparent to the defendants given the property’s

history, the overall probability that conditions necessary to cause flooding would occur at any particular

time was relatively low. Accordingly, the court properly

determined that the plaintiffs could not demonstrate

imminent harm.

Our conclusion finds support in our case law. In discussing imminent harm in Haynes, the Supreme Court

discussed our decision in Silberstein v. 54 Hillcrest

Park Associates, LLC, supra, 135 Conn. App. 262, which

also involved a claim of repeated flooding during periods of heavy rainfall over the course of several years.

The Supreme Court observed in Haynes that the risk

of harm in Silberstein was not imminent ‘‘because it

was not apparent to the municipal defendant that the

risk of harm was so great that the defendant’s duty to

act immediately to prevent the harm was clear and

unequivocal.’’ Haynes v. Middletown, supra, 314 Conn.

322 n.14. In other words, because there was not a high

probability that damaging flooding would occur at any

particular time, there was no clear and urgent need for

action on the part of the defendants.

Furthermore, our Supreme Court’s decision in Bonington v. Westport, supra, 297 Conn. 297, also supports

our conclusion that the harm at issue in the present case

was not imminent harm for purposes of the identifiable

person-imminent harm exception. The court in Bonington rejected the plaintiff landowners’ argument that the

risk of flooding caused by excess surface water runoff

during periods of significant rainfall was an imminent

harm. The court indicated that such a risk fell ‘‘short

of the limited circumstances under which imminent

harm may be established.’’ Id., 314. As the court

explained: ‘‘Although the plaintiffs’ property undoubtedly constitutes a discrete place, and rainfall inevitably

would occur at that site at some point in the future,

a significant rainfall causing excessive surface runoff

necessarily would occur at an indefinite point in time.

Such harm is not imminent.’’ Id., 315.

Consistent with Bonington, we conclude that the risk

at issue here did not rise to imminent harm under the

test established in Haynes. Accordingly, the court properly rejected the plaintiffs’ claim that the identifiable

person-imminent harm exception was applicable under

the facts of this case.

III
Finally, the plaintiffs claim that the court improperly

raised sua sponte whether the plaintiff’s allegations of

recklessness directed against the individual defendants

could be maintained against them as a matter of law,

and ultimately decided adversely to the plaintiffs that

the counts alleging recklessness against the individual

defendants were barred by governmental immunity. For

the reasons that follow, we affirm the court’s decision

to grant summary judgment on these counts, albeit on

the basis of an alternative ground briefed by the parties.

See Diamond 67, LLC v. Oatis, 167 Conn. App. 659,

679–80, 144 A.3d 1055 (appellate court may affirm judgment on dispositive alternative ground for which there

is support in trial court record and provided parties not

prejudiced or unfairly surprised by consideration of

issue), cert. denied, 323 Conn. 927, 159 A.3d 229 (2016).

In their motion for summary judgment, the only basis

for summary judgment asserted by the defendants with

respect to the counts alleging recklessness was that

there was no evidence that the individual defendants

engaged in reckless behavior and that no genuine issue

of material fact existed with respect to that issue. The

court, however, later raised sua sponte and asked for

briefing on whether claims of recklessness against a

municipality or its agents could be maintained as a

matter of law. In reaching its conclusion, it appears

that the court made a subsidiary determination that the

plaintiffs had sued the individual defendants only in

their official capacities as town employees and that

claims of reckless conduct against a municipality

directly or against town officials in their official capacity are not legally cognizable because of governmental

immunity. See General Statutes § 52-557n (a) (2) (A)

(municipality not liable for personal injury or property

damages for ‘‘[a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud,

actual malice or wilful misconduct); Pane v. Danbury,

267 Conn. 669, 685, 841 A.2d 684 (2004) (holding that

concepts of wilful, wanton or reckless conduct indistinguishable for purposes of § 52-557n [a] [2] [A]); Himmelstein v. Bernard, 139 Conn. App. 446, 456, 57 A.3d

384 (2012) (‘‘well settled law that an action against a

government official in his or her official capacity is not

an action against the official, but, instead is one against

the official’s office and, thus, is treated as an action

against the entity itself’’ [internal quotation marks

omitted]).

The plaintiffs argue on appeal that the court should

have limited itself to the issues raised in the motion for

summary judgment, but that even if the court properly

considered the issue it raised sua sponte, it incorrectly

decided that the plaintiffs had sued the individual defendants only in their official capacities, and that governmental immunity therefore barred these claims.

The defendants respond that the trial court properly
raised and considered whether the plaintiffs’ counts

alleging recklessness against the individual defendants

were legally cognizable, but also argue as an alternative

ground for affirmance that, even if they were, the counts

also fail as a matter of law because there is no evidence

from which to conclude that the individual defendants

engaged in reckless or wanton misconduct.

We believe that it is unwise for us to decide whether

the individual defendants were sued only in their official

capacity under the circumstances of this case, given

the lack of findings by the trial court on that question.

We conclude on the basis of our plenary review of the

pleadings and evidentiary submissions in support and

in opposition to summary judgment that there was no

factual basis for the recklessness counts and, therefore,

summary judgment on these counts was proper, albeit

for a different reason. Accordingly, we need not reach

whether the individual defendants were sued in their

personal or official capacities.

‘‘Recklessness requires a conscious choice of a

course of action either with knowledge of the serious

danger to others involved in it or with knowledge of

facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct

involves a risk substantially greater . . . than that

which is necessary to make his conduct negligent. . . .

More recently, we have described recklessness as a

state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence,

more than gross negligence. . . . The state of mind

amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something

more than a failure to exercise a reasonable degree

of watchfulness to avoid danger to others or to take

reasonable precautions to avoid injury to them. . . .

Wanton misconduct is reckless misconduct. . . . It is

such conduct as indicates a reckless disregard of the

just rights or safety of others or of the consequences

of the action.’’ (Internal quotation marks omitted.) Doe

v. Boy Scouts of America Corp., 323 Conn. 303, 330,

147 A.3d 104 (2016). Reckless conduct ‘‘must be more

than any mere mistake resulting from inexperience,

excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . or

even of an intentional omission to perform a statutory

duty . . . .’’ W. Prosser & W. Keeton, Torts (5th Ed.)

§ 34, p. 214. ‘‘[In sum, reckless] conduct tends to take

on the aspect of highly unreasonable conduct, involving

an extreme departure from ordinary care, in a situation

where a high degree of danger is apparent.’’ (Internal

quotation marks omitted.) Lawrence v. Weiner, 154

Conn. App. 592, 598, 106 A.3d 963, cert. denied, 315

Conn. 925, 109 A.3d 921 (2015).

We first note that the allegations of recklessness in

the complaint are identical to those alleged in support
of the negligence counts. In Angiolillo v. Buckmiller,

102 Conn. App. 697, 927 A.2d 312, cert. denied, 284

Conn. 927, 934 A.2d 243 (2007), this court affirmed

the granting of summary judgment on counts alleging

common-law recklessness because the plaintiffs had

‘‘simply incorporated their allegations of negligence and

labeled the conduct recklessness.’’ Id., 705. This court

held that ‘‘[m]erely using the term ‘recklessness’ to

describe conduct previously alleged as negligence is

insufficient as a matter of law.’’ Id.; see also Dumond

v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958) (‘‘[t]here

is a wide difference between negligence and a reckless

disregard of the rights or safety of others, and a complaint should employ language explicit enough to

clearly inform the court and opposing counsel thatreckless misconduct is relied on’’ [internal quotation marks

omitted]). Although we must acknowledge that it is

possible for an allegation of negligence to sometimes

also describe reckless conduct, the plaintiffs’ allegations in the present case cannot reasonably be characterized as rising above mere negligence. Even accepting

all allegations as true, they do not, as a matter of law,

support submitting the recklessness counts to a jury,

and, therefore, summary judgment in favor of the individual defendants is appropriate.

Generally, the plaintiffs allege that the individual

defendants failed to maintain and keep the storm drainage system in a reasonably operative condition, and

that they had notice of the flooding that was occurring

in the Nettleton Avenue area but failed to warn the

plaintiffs and adopted a laissez faire attitude in

addressing the situation. There is no evidence in the

summary judgment record, however, that the defendants were aware of any existing drainage problem

specifically involving the plaintiff’s particular property

prior to the first reported incident of flooding. Furthermore, there is no evidence that the flooding in the neighborhood involved a situation of such a high degree

of danger that the failure to take immediate action to

prevent its recurrence demonstrated a conscious disregard for the safety of the plaintiffs’ or the neighborhood

generally. Although the plaintiffs’ frustration with what

they viewed as ineptness and a lack of urgency by

the town and the individual defendants to alleviate the

flooding situation in their neighborhood is understandable, there is nevertheless undisputed evidence that

some action was taken to improve the drainage in the

Nettleton Avenue area, albeit perhaps insufficient and

not before additional flooding occurred. The record

simply cannot support a finding that any of the individual defendants acted or failed to act with the type of

wanton disregard that is the hallmark ofreckless behavior. Moreover, in opposing summary judgment on the

recklessness counts, the plaintiffs failed to submit any

evidence that would alter that conclusion. Once the

defendants established that no genuine issue of material
fact existed that the recklessness allegations were

unsupported by evidence, the burden shifted to the

plaintiffs to produce that evidence. They failed to do

so. Accordingly, the defendants were entitled to summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Helen Northrup also brought the action as next friend on behalf of her

minor son, Timothy Northrup.

2 Through 2009, the superintendent of streets was the official responsible

for the care and management of the town’s streets. After 2009, it became

the responsibility of the town’s department of public works.

3 We refer to Witkowski, Jr., Stewart, and Mezzo collectively as the individual defendants.

4

In their complaint,the plaintiffs define ‘‘black water’’ as surface rainwater

that overwhelms and causes a back-up in the sanitary sewer system,resulting

in flood waters that contain sewage and other contaminants.

5 The plaintiffs have not directed us to any rules or regulations that were

promulgated in accordance with the ordinance or to any other written

internal policies or standards in place regarding the defendants’ duty to

inspect or maintain the storm water sewers. In their brief, however, the

plaintiffs quote a portion of Witkowski’s deposition testimony in which he

states that there was a schedule in place to ‘‘make sure’’ that all single catch

basins were ‘‘maintained at least once in the course of a year.’’ After oral

argument of the appeal, the plaintiffs filed a supplemental authority letter

pursuant to Practice Book § 67-10 raising, for the first time, our decision

in Wisniewski v. Darien, 135 Conn. App. 364, 42 A.3d 436 (2012). The

Wisniewski decision was not discussed or cited by the plaintiffs in their

opposition to summary judgment, in their motion to reargue or in their

briefs to this court. Accordingly, the defendants were never provided an

opportunity to discuss this case or its applicability to the facts here. In any

event, the Wisniewski holding is inapplicable to the facts of the present case.

Wisniewski involved a negligence action against the town of Darien and

its tree warden by plaintiffs who were injured when a tree located in the

town’s right of way fell onto their vehicle. Id., 366. In affirming a judgment

for the plaintiffs following a jury trial, this court concluded that the trial

court properly had declined to set aside the verdict, concluding in part that

the jury reasonably could have found that the town had a ministerial duty

of inspection on the basis of the defendant tree warden’s own testimony,

including ‘‘that upon receipt of a complaintregarding a potentially hazardous

tree, he has a nondiscretionary duty to perform an inspection.’’ Id, 374–75.

In contrast, unlike the tree warden in Wisniewski, Witkowski’s statement

is far more vague and does not come close to an admission that the town

had a nondiscretionary duty in this case. The statement, on its face, simply

is not one from which a ministerial duty reasonably could be inferred and,

thus, does not raise a genuine issue of material fact for a jury.

6 At least one decision from a trial court that has considered this language

also has reached the conclusion that the language in question is dicta.

See Blade Millworks, LLC v. Stamford, Superior Court, judicial district

of Stamford-Norwalk, Docket No. CV-09-5013039 (March 26, 2015) (Hon.

Taggert Adams, judge trial referee); see also Pyskaty v. Meriden, Superior

Court, judicial district of New Haven, Docket No. CV-12-6005514S (August

3, 2015) (Fisher, J.) (distinguishing and limiting Spitzer); but see DeMarco

v. Middletown, Superior Court, judicial district of Middlesex, Docket No.

CV-11-6006185S (April 3, 2014) (Domnarski, J.) (58 Conn. L. Rptr. 4) (following Spitzer).