Bad News for Attorney Who Worked 10 Years Pro Bono on Case That Reached Conn. Supreme Court
The Connecticut Supreme Court has ruled in favor of Naugatuck in a case by a family who claimed its house flooded eight times in three years because of the town's allegedly mismanaged storm drains. The high court found the town had governmental immunity and said a 1931 state Supreme Court ruling that showed liability on the part of the town was outdated.
July 01, 2019 at 06:13 PM
4 minute read
Norwalk attorney Joshua Gilman received bad news from the Connecticut Supreme Court, which ruled a 1931 precedent on which he'd hinged decadelong litigation was no longer relevant.
Gilman, of the Law Offices of Gilman & Francis, hoped to show that Spitzer v. Waterbury, which held municipalities liable for damage from improper storm-drain management, would still stand today, 88 years after the decision.
His clients, George and Helen Northrup, sued the town of Naugatuck, claiming its negligence caused their property to flood eight times in three years. The Northrups claimed a nearby municipality-owned catch basin routinely clogged, or otherwise failed to prevent storm water from inundating their property.
Under Spitzer, the plaintiffs would have prevailed, according to a divided high court, which ultimately stripped away at the decades-old precedent, and upheld a Superior Court and Connecticut Appellate Court ruling in favor of the town.
The issue, the Supreme Court said, came down to whether the town could use its discretion, or had a responsibility to act in a particular way.
In writing for the majority, Connecticut Supreme Court Chief Justice Richard Robinson wrote: “We disagree with the plaintiffs' claims that the Appellate Court improperly failed to follow Spitzer because we conclude the decision must be overruled in light of modern case law governing the distinction between ministerial and discretionary duties.” He wrote that the only way the town could have been held liable was “if there was some legal directive prescribing the specific manner in which they were required to maintain and repair the town's storm sewer system.”
Under more recent case law, Robinson wrote, maintaining storm drains and drainage systems is a discretionary function subject to governmental immunity, rather than a ministerial one that could subject negligent municipalities to liability.
Supreme Court Justice Steven Ecker was the lone dissenter.
“In my view, this case presents the strongest imaginable rationale for retaining liability for municipal negligence in the absence of a legislative mandate to the contrary,” he wrote. “If the plaintiffs cannot come to court for redress under these circumstances, then they have nowhere to turn to obtain compensation for the property damage they sustained as a result of the defendants' alleged negligence.”
Naugatuck's counsel, Howd & Ludorf attorneys Thomas Gerarde and Beatrice Jordan, welcomed the ruling in the town's favor.
“Our office has been arguing for nearly 30 years that the Spitzer decision should not be followed, and the Supreme Court has finally laid it to rest,” Gerarde said in a statement. “We are also pleased the court has recognized that when a supervisor or foreman establishes a general plan for ongoing maintenance and inspection, that does not change discretionary acts into ministerial duties, even when the plan is for regular, periodic inspections.”
But Gilman said he relied on Spitzer for his Oct. 16 oral arguments in Northrup v. Witkowski based on decades of case law.
“We have all these Superior Court cases saying Spitzer was precedent as late as 2015,” he said. “But there has been a shift.”
Now, he believes the changing tide might require action from the Connecticut Legislature.
“I respect the Connecticut Supreme Court's ruling,” Gilman said. “The Legislature might have to look at this and decide if they want these outcomes in these cases. It's basically giving a blank check to towns to do bad things. I'm sure the Supreme Court does not want that.”
Meanwhile, Gilman said the Northrup family still lives in the Nettleton Street neighborhood, which has since resolved its flooding problem.
“I'm very proud that my litigation helped initiate a neighborhood overhaul,” he said. “The town redid the entire drainage with new pipes and new drains, and they redirected the water.”
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