December 14, 2009
CIVIL LIABILITY OF A MUNICIPAL OFFICIAL
By: George Coppolo, Chief Attorney
You asked for general information about the civil liability of a person who serves as a municipality's first selectman including whether (1) someone could sue the official individually for actions that he or she took in the capacity as first selectman and (2) the municipality's liability insurance might provide some protection.
Our office is not authorized to give legal opinions and this report should not be considered one.
Connecticut statutory and common law provides municipal officials with significant protection from civil liability. But the law does not provide total immunity. Thus, under certain circumstances municipal officials can be sued individually. Also, under certain circumstances, the law requires municipalities to indemnify municipal officials who are sued because of actions they took in their official capacity.
Municipalities can purchase insurance to protect themselves and municipal officials who are sued because of actions they took in their official capacity. Municipal officials should examine any insurance policy that a municipality has purchased to determine whether the insurance policy provides adequate protection from personal liability in light of Connecticut's law that provides limited immunity and requires municipalities to indemnify municipal officials under certain circumstances.
STATUTORY IMMUNITY FOR MUNICIPAL OFFICIALS
CGS § 52-557n(b) makes municipalities and their employees, officials, and agents acting within the scope of their employment or official duties immune from civil liability for damages resulting from:
1. the condition of natural land or unimproved property;
2. the condition of a reservoir, dam, canal, conduit, drain, or similar structure when used by a person in a manner that is not reasonably foreseeable;
3. the temporary condition of a road or bridge which results from weather, if the municipality has not received notice and has not had a reasonable opportunity to make the condition safe;
4. the condition of an unpaved road, trail, or footpath, the purpose of which is to provide access to a recreational or scenic area, if the municipality has not received notice and has not had a reasonable opportunity to make the condition safe;
5. starting a judicial or administrative proceeding, unless it was commenced or prosecuted without probable cause or with a malicious intent to vex or trouble;
6. the act or omission of someone other than a municipal employee, office, or agent;
7. the issuance, denial, suspension, or revocation of, or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization, when such authority is a discretionary function by law, unless the action or referral constitutes a reckless disregard for health or safety;
8. failure to inspect or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to the municipality, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the municipality (a) had notice the violation of law or such a hazard or (b) the failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances;
9. failure to detect or prevent pollution of the environment including groundwater, watercourses, and wells, by individuals or entities other than the municipality; or
10. conditions on land sold or transferred to the municipality by the state when such conditions existed at the time the land was sold or transferred to the municipality.
Liability of Uncompensated Municipal Officials
CGS § 52-557n(c) makes those who serve as a member of any municipal board, commission, committee, or agency and who are not compensated on a salary or prorated equivalent basis, immune from civil liability for damage or injury resulting from any act, error, or omission made in the exercise of their policy or decision-making responsibilities if they were:
1. acting in good faith and within the scope of their official functions and duties and
2. not violating (a) any state, municipal, or professional code of ethics regulating the conduct of such person, (b) their duty to prepare and print a concise explanatory text of local proposals or questions approved for submission to the electors of a municipality at a referendum as required by law (CGS § 9-369b(a)); or (c) the law prohibiting public officials from denying access to public records or meetings (CGS § 1-206(b) or (c))).
This immunity applies to negligence on the part of a public official in their decision making capacity. But it does not apply to damages or injuries caused by their reckless, willful, or wanton misconduct.
Negligence. In order to recover under a negligence theory, an injured person must prove (1) the defendant owed him a duty of care, (2) the defendant breached this duty, and (3) he or she was injured because of the breach.
Common-law negligence is the failure to use reasonable care under the circumstances. A duty to use care exists when a reasonable person, knowing what the defendant either knew or should have known at the time of the challenged conduct, would foresee that harm of the same general nature as that which occurred was likely to result from that conduct (Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375 (1982)).
Reasonable care is the care that a reasonably prudent person would use in the same circumstances (Hoelter v. Mohawk Services, Inc., 170 Conn. 495, 501 (1976)). In determining the care that a reasonably prudent person would use in the same circumstances, the jury (or court in a non-jury case) must consider all of the circumstances that were known or should have been known to the defendant at the time of the conduct in question. Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances (Galligan v. Blais, 170 Conn. 73, 77 (1976); Pleasure Beach Park Co. v. Bridgeport Dredge & Dock Co., 116 Conn. 496, 503 (1933); Geoghegan v. G. Fox & Co., 104 Conn. 129, 134 (1926)).
Willful, Wanton, and Reckless Misconduct. Under Connecticut law, willful, wanton, or reckless misconduct refers to unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent. The conduct must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness, inadvertence, or inattention (Pouliot v. Arpin Van Lines, Inc., 367 F. Supp. 267 (D. Conn. 2005)).
Common Law Immunity
The common law appears to provide similar immunity for compensated municipal officials as this statute does for uncompensated officials.
COMMON-LAW IMMUNITY FOR MUNICIPAL OFFICIALS
The common law gives compensated and uncompensated municipal officials qualified immunity from civil liability when performing discretionary functions. A municipal official's immunity for performing discretionary governmental functions is qualified by three recognized exceptions:
1. the circumstances make it apparent to the public official that his or her failure to act would be likely to subject an identifiable person to imminent harm;
2. a statute that authorizes a person to sue a municipality or municipal official for failure to enforce certain laws; or
3. the alleged acts involve malice, wantonness, or intent to injure, rather than negligence (Spears v Garcia, 263 Conn. 22 (2003)).
“Governmental acts” for which municipal officials have qualified immunity are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. The hallmark of a discretionary act is that involve the exercise of judgment. In contrast, ministerial acts refers to a duty that is to be performed in a prescribed manner without the exercise of judgment or discretion (Bailey v. Town of West Hartford, 100 Conn. App. 805 (2007)). The common law does not provide immunity to municipal officials for negligently performing ministerial acts.
The imminent harm exception to discretionary act immunity applies when the circumstances make it apparent to the public official that his or her failure to act would be likely to subject an identifiable person to imminent harm. This test requires three things: (1) imminent harm, (2) an identifiable victim, and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm (Violano v.Fernandez, 280 Conn. 310 (2006)).
An injured person who claims that an official's conduct was wanton, reckless, willful, or intentional must prove the official's conduct was more than negligence, and more than gross negligence. The injured person must prove that the official's conduct amounted to a reckless disregard of the rights or safety of others (Belanger v. City of Hartford, 578 F. Supp. 2d, 360, District of Connecticut (2008)).
INDEMNIFICATION AND REIMBURSEMENT FOR MUNICIPAL OFFICIALS
CGS § 7-101a
A statute requires each municipality to indemnify any elected or appointed municipal official, or any municipal employee from financial loss and expense, including legal fees and costs, arising out of any claim, demand, suit, or judgment for negligence or infringement of civil rights by the official or employee while acting in the discharge of his or her duties (CGS § 7-101a (a)).
The law also requires each municipality to indemnify municipal officials and employees from financial loss and expense, including legal fees and costs arising out of any claim, demand, or suit instituted against them by reason of an alleged malicious, wanton, or willful act, or any act beyond the scope of their authority while acting in the discharge of their duties. But an official or employee who has a judgment entered against him or her for a malicious, wanton, or willful act, must
reimburse the municipality for expenses it incurred in providing such defense and the municipality may not be held liable to such official or employee for any financial loss or expense resulting from such an act (CGS § 7-101a(b)).
This duty to indemnify only applies if (1) the lawsuit is initiated within two years after the cause of action arose and (2) written notice of the intention to sue and of the time and place where the damages were incurred or sustained has been filed with the municipality's clerk within six months after the cause of action has accrued (CGS § 7-101a(d)).
The law authorizes each municipality to insure against the duty to indemnify or elect to act as self-insurer of such liability (CGS § 7-101 a(c)).
CGS § 7-465
A separate statute also requires municipalities to indemnify municipal employees for all sums the employees become obligated to pay for damages awarded for infringing any person's civil rights or for physical damages to person or property, if the employees, at the time of the occurrence, accident, physical injury, or damages complained of, were (1) acting in the performance of their duties and within the scope of their employment, and (2) the occurrence, accident, physical injury, or damage was not the result of the their willful or wanton act (CGS § 7-465). This statute specifies that a municipality may arrange for and maintain appropriate insurance or may elect to act as a self-insurer to maintain protection for lawsuits filed against it under this statute's provisions.
This statute's indemnification requirement does not apply to:
1. libel or slander proceedings brought against an employee or
2. physical injury to an employee caused by another employee while both are engaged in the scope of their employment for the municipality if the injured employee or his or her dependent, has a right to workers' compensation benefits or compensation.
No action for personal physical injuries or damages to real or personal property may be maintained against such municipality and employee jointly unless (1) the lawsuit is commenced within two years after the cause of action arose and (2) written notice of the intention to commence the action and of the time and place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after the cause of action accrued.
This statute specifies that the doctrine of “governmental immunity” is not a defense in any lawsuit filed under its provisions.
This statute also specifies that in any lawsuit filed under its provisions, the municipality and the employee may be represented by the same attorney if the municipality, when the attorney enters his or her appearance, files a statement with the court that it will pay any final judgment rendered in the lawsuits against the employee.