PAUL BONINGTON et al. v. TOWN OF WESTPORT et al., SC 18514

Judicial District of Stamford

 Governmental Immunity; Enforcement of Zoning Regulations; Whether Trial Court Properly Found that Defendants' Actions were Discretionary; Whether Trial Court Properly Found that Identifiable Victim, Imminent Harm Exception was Inapplicable.  The plaintiffs brought this action against the town of Westport, its planning and zoning department and three of the department's employees, alleging that they failed to investigate claimed zoning violations and to enforce the town zoning regulations.  Specifically, the plaintiffs claimed that the individual defendants did not properly investigate their complaints that the owners of abutting property violated zoning regulations by raising the elevation of their property without obtaining a permit, which, the plaintiffs alleged, resulted in the redirection of surface water onto their property, causing flooding and "threatening the integrity of their septic system."  The plaintiffs also brought a claim against the town pursuant to General Statutes § 7-465, which requires municipalities to pay on behalf of any municipal employee "all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person or property. . . ."  The plaintiffs sought to recover the costs of the legal fees that they incurred in prosecuting an action against the abutting landowners to correct the problem.  The defendants moved for summary judgment, asserting that they did not owe a legal duty to the plaintiffs, and therefore, that they could not be found negligent.  They also argued that the plaintiffs' claims were barred by governmental immunity.  The court rendered summary judgment for the defendants.  As to the individual defendants, the court found that they were sued in their official capacity and that they were immune from liability under General Statutes § 52-557n because their actions were discretionary.  The court further determined that the identifiable person, imminent harm exception to municipal immunity that attaches to discretionary acts did not apply, as there was no evidentiary basis for a claim that any person was subjected to imminent harm.  In addition, the court concluded that the negligence claim against the individual defendants was not viable because they did not owe a duty of care to the plaintiffs.  As to the claim against the town, the court, noting that the damages claimed by the plaintiffs were the litigation expenses incurred in their action against the abutting landowners, found that such expenses were not "physical damages to person or property."  The plaintiffs now appeal.