November 2010 - Parks & Recreation - 37

not be liable for damages caused by
" 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 " ...
[M]unicipalities and municipal officials are immune from liability for
negligence arising out of their discretionary, as opposed to ministerial,
acts. Ministerial acts are acts to be
performed in a prescribed manner
without the exercise of judgment or
discretion. The maintenance of parks
is a governmental function and is usually subject to municipal immunity for
negligence.

Applying such statutory immunity
for discretionary acts to the facts of this
case, the federal district court found the
Town and the parks and recreation director would be entitled to qualified
immunity and thus the Popow's claims
would still fail " even if the Town of Stratford and Patusky had a duty to warn the
decedent of the conditions in Long Island Sound by posting signs or erecting
barriers. " In so doing, the court found
Popow had failed " to cite any statute or
regulation prescribing the posting of
signs or warnings, or the stationing of
life guards, at public beach areas during the winter months. "
Further, the court found no evidence
" suggesting that the Town of Stratford or
Patusky, as Director of Parks and Recreation for the Town, were obligated or
expected to post signs and warnings or
station lifeguards at public beaches during the winter months. " On the contrary,
Patusky submitted her job description
as the parks and recreation director to
establish that she was " not responsible
for placing signs, erecting barriers, or
warning the public that lifeguards are
not on duty at Long Beach during the
winter months. " Further, the court found
" no ordinance, statute, or regulation prescribing the provision of a phone service, whether hard-wired or cellular, at
Long Beach. "
Accordingly, in the absence of any
statutory or other obligation, the federal
district court concluded that the acts in
question were discretionary, rather than

ministerial. As a result, the court found
the Town of Stratford and Patusky are entitled to qualified immunity as to Popow's
claims of negligence for failure to warn
and failure to provide phone services.

Premises Liability
The federal district court also addressed
Popow's claims based on principles

of premises liability. In her complaint,
Popow alleged the town and Patusky
were negligent for failing " to post warning signs or erect barriers preventing
access to Long Beach during the winter. "
Popow also alleged premises liability
based on the town's negligent failure " to
have lifeguards on duty or warn that no
lifeguards were on duty. " Finally, Popow

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Parks & Recreation	 35
November 2010 - Parks & Recreation

Table of Contents for the Digital Edition of November 2010 - Parks & Recreation
