Opinion
No. CV08-5004821S
March 24, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #121
Facts
By service of the writ of summons and complaint, the plaintiff, the city of Derby, commenced this action against the defendant, Marc Garofalo, the former mayor of that city, on December 18, 2007. On February 4, 2008, the plaintiff filed a one-count revised complaint sounding in negligence in which it alleges the following. "On various date[s] from on or about November 8, 2005 and contin[uing] until on or about December 3, 2005, the Defendant . . . caused or directed other persons to delete and erase []the hard drives of [] up to five of the computers owned by the Plaintiff [and] caused or directed other persons to remove `backup' computer data storage tapes from the plaintiff's premises." These actions "were not authorized by the keeper of records and were in violation of . . . The Freedom of Information Act . . ." As a result, the plaintiff "incurred considerable costs to investigate the removal of the tapes, for the unauthorized erasure of data and to restore the memory to the computer systems."
The defendant filed an answer on August 27, 2008, and alleged as special defenses that he is not liable under "the common law or the statutes cited by the plaintiff for his discretionary acts," that the action is time barred, that he has qualified immunity, and that the complaint is relying on "mere conclusions of law." On October 19, 2009, the defendant filed a motion for summary judgment on three grounds: that the action is nonjusticiable as it raises a political question; that the defendant had qualified immunity for any alleged negligent conduct; and that the action is time barred because service of process was made outside the applicable two-year statute of limitations. In support of his motion, the defendant submitted his own sworn affidavit, a certified excerpt from the deposition of Philip Robertson, the chief administrative officer of the current mayor's administration, and a copy of the marshal's return. On December 4, 2009, the plaintiff filed a memorandum of law in opposition and submitted evidence including a copy of its responses to defendant's interrogatories and requests for production, three witness statements taken at the Derby Police Department, and the affidavit of Anthony Staffieri, the current mayor of the city. The defendant replied on December 11, 2009 and submitted the marshal's affidavit dated December 4, 2009 attesting to service pursuant to General Statutes § 52-593(a). The court heard oral argument at the short calendar on December 14, 2009.
The deposition transcript excerpt provided does not indicate Robertson's job title. That information was supplied in the defendant's brief and was not disputed by the plaintiff.
Discussion
"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. Practice Book [§ 17-46]. . ." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 119, 971 A.2d 17 (2009).
I Admissibility of Evidence
The plaintiff submitted as evidence three statements from the police investigation into the defendant's acts that are at issue in this suit. The defendant opposes the court's consideration of this evidence on the ground that it is "irrelevant and immaterial" and that it is "replete with hearsay and opinion and not probative of any facts that might be deemed in dispute." The defendant did not object on the ground that the documents were not authenticated.
"Under Connecticut law, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be . . . New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)." (Internal quotation marks omitted.) THE DEFENDANT: TD Bank North v. Owens, Superior Court, judicial district of Fairfield, Docket No. CV 08 5013636 (February 25, 2009, Bellis, J.).
Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
The statements at issue are the sworn statements of Richard Dabate, Richard Maruccio and Richard Lutz, taken on December 4, 8, and 10, 2005, respectively, by various officers of the Derby Police Department. Each statement contains a declaration of facts as to the events on or about December 2, 2005. Each statement has the date of birth of the maker, indicating he is over 18 years old. Each statement is signed by the maker after a statement in which he avers that the statement is "true to the best of [his] knowledge." Each statement is also signed and dated by an officer who attests he is competent to take an oath "under the authority of the . . . General Statutes § 1-24" and who attests that the signer "personally appeared . . . and made oath before me to the truth of the matters contained therein." These statements, made under oath, have the necessary indicia of reliability required for a summary judgment determination. See Torrenti v. Kancir, Superior Court, judicial district of New Haven, Docket No. CV 07 5012366 (December 19, 2007, Holden, J.). The statements at issue have the necessary indicia of reliability, and I now address whether they are relevant and contain hearsay.
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is material to the determination of the proceedings more probable or less probable than it would be without the evidence." Code of Evidence, § 4-1. Here, the statements at issue are indeed relevant to the defendant's claim of qualified immunity and probative of facts related thereto.
"`Hearsay' means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." Code of Evidence, § 8-1(3). Hearsay evidence is inadmissible for the purpose of defeating a motion for summary judgment. Great Country Bank v. Pastore, 241 Conn. 423, 437, 696 A.2d 1254 (1997). "Hearsay statements are insufficient to contradict facts offered by the moving party . . . and if an affidavit contains inadmissible evidence it will be disregarded." (Citations omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, 636 A.2d 1377 (1994). "It is axiomatic that an affiant must have personal knowledge of facts to be competent to testify about those facts . . . Personal knowledge is not expressly defined in the general statutes or our rules of practice, but the phrase is commonly understood to mean knowledge gained through one's senses. One lacks personal knowledge if one has received no sensory impressions." (Citation omitted; internal quotation marks omitted.) State v. Sunrise Herbal Remedies, Inc., Superior Court, judicial district of Hartford, Docket Nos. CV 07 4028460 (March 13, 2009, Bentivegna, J.) ( 47 Conn. L. Rptr. 455, 459).
While relevant, the statements at issue contain both declarations of fact which are based upon their personal knowledge as well as hearsay. Accordingly, the court will consider only the admissible declarations contained therein and disregard the inadmissible hearsay statements.
II Justiciability
The defendant, in support of his motion for summary judgment, argues that the issue in this case is a political dispute between two mayors on the appropriateness of discretionary decisions and, therefore, is a nonjusticiable political question. In response, the plaintiff essentially counters that this is merely a claim of simple negligence.
"A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 91, 713 A.2d 1267 (1998). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings belong . . . [O]nce the question of lack of jurisdiction is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Emphasis added; internal quotation marks omitted.) Weiner v. Clinton, 100 Conn.App. 753, 757, 919 A.2d 103, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007).
"Whether a controversy so directly implicates the primary authority of the legislative or executive branch, such that a court is not the proper forum for its resolution, is a determination that must be made on a case-by-case inquiry . . . Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. Baker v. Carr, [ 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)]." (Citation omitted; internal quotation marks omitted.) Seymour v. Region One Board of Education, 261 Conn. 475, 482, 803 A.2d 318 (2002).
The defendant argues that the present case involves a lack of judicially discoverable and manageable standards for resolving it, the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion, and the possibility of the court's expressing lack of the respect due coordinate branches of government.
"[T]he principle that a case should not be dismissed for nonjusticiability as a political question unless . . . [the political question] is inextricable from the case, means that courts should view such cases with a heavy thumb on the side of justiciability, and with the recognition that, simply because the case is connected to the political sphere, it does not necessarily follow that it is a political question." Seymour v. Region One Board of Education, supra, 261 Conn. 488. "[D]iscoverable and manageable judicial standards" can be found in cases connected to the political sphere. Compare Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 574, 858 A.2d 709 (2004) (finding "no special impediments to our ascertainment and application of the standards" to resolve question as to whether "the defendant, consistent with principle of separation of powers, may . . . compel the testimony of the sitting chief executive on issues related to the performance of his official duties") with Pellegrino v. O'Neill, 193 Conn. 670, 673-74, 685, 480 A.2d 476 (1984), cert. denied, 469 U.S. 875 (1984) (finding claim that inadequate financing of state's judicial system had produced backlog of civil jury cases in violation of state constitution to be nonjusticiable political question). The Supreme Court noted that: "The fundamental characteristic of a political question . . . is that its adjudication would place the court in conflict with a coequal branch of government in violation of the primary authority of that coordinate branch." Seymour v. Region One Board of Education, supra, 482 (noting that "a local legislative body is [not] what is meant by `coordinate branch of government' in the context of the nonjusticiability doctrine . . . because local legislative bodies . . . are not branches of government coordinate with the judicial branch" [citation omitted] id., 487).
In the present case, there are discoverable and manageable judicial standards for determining the merits of the plaintiff's claim of negligence and the defendant's claim of qualified immunity and timeliness of service. Deciding these issues is possible without an initial policy determination of a kind clearly for nonjudicial discretion, and will not require that the court make a policy determination regarding the current mayor's discretionary authority to bring this action. Finally, adjudication of this dispute does not implicate the primary authority of a coordinate branch of government because the office of the mayor of a municipality is not such a coordinate branch. This case may be connected to the political sphere, but does not raise political questions of the kind that would place the court in conflict with the primary authority of a coordinate branch of government.
Accordingly, the defendant's motion for summary judgment on this ground is denied.
III Statute of Limitations
The defendant has also moved for summary judgment on the ground that the action is untimely. The defendant argues that service of process was on December 18, 2007, two years and twelve days after the last date of any act of negligence alleged in the complaint. The plaintiff responds that the action is saved by General Statutes § 52-593a.
When determining the date a civil action has commenced, our Supreme Court notes that, "under the law of our state, an action is commenced not when the writ is returned but when it is served upon the defendant." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004). "An exception to this rule, however, may be found in General Statutes § 52-593a(a) . . ." Stingone v. Elephant's Trunk Flea Market, 53 Conn.App. 725, 729, 732 A.2d 200 (1999). Section 52-593a(a) provides in relevant part that "a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery." Section 52-593a(b) provides: "In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section."
In the present case, the complaint indicates that the defendant's acts of alleged negligence occurred from November 8, 2005, through December 3, 2005. Under General Statutes § 52-584, the plaintiff's claim is subject to a two-year statute of limitations. The marshal's return shows that process was served on December 18, 2007, which is outside the two-year limitation period. The original return of service did not indicate the date on which the marshal received the writ of summons and complaint from the plaintiff. On December 11, 2009, after the defendant had filed his motion for summary judgment, the plaintiff filed a supplemental return signed by the same marshal who signed the original return in which the marshal averred that he received the complaint on November 30, 2007, which is within the two-year limitation period. Service was made December 18, 2007, which is within thirty days of that date. The plaintiff maintains that the action is therefore saved. The defendant argues that this supplemental return, filed almost two years after the service of process, does not satisfy the requirements of the savings statute, § 52-593a.
According to his affidavit, the defendant's last day in office was Friday, December 2, 2005.
Section 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
There is a split of authority among the courts as to whether amended or supplemental returns or affidavits from the marshal can be used to establish the date on which the plaintiff delivered to the marshal the writ of summons and complaint for the purposes of the savings statute. Those holding in the negative reason that strict compliance with § 52-593a(b) at the time of service is a necessary prerequisite to the application of the savings provision of § 52-593a(a). "Reading the subsections of 52-593a together, the plain language meaning of subsection (b) renders subsection (a) ineffective without compliance with the endorsement requirement . . . [S]ubsections (a) and (b) must be read together . . . first, because they are parts of the same section, second because in subsection (b) the expression `any such case' refers to subsection (a) and third, because the requirement of an endorsement under oath shows the seriousness of the requirement in order to support any subsection (a) action." (Internal quotation marks omitted.) Cronin v. Minnefield, Superior Court, judicial district of Waterbury, Docket No. CV 08 5008698 (January 16, 2009, Alvord, J.) ( 47 Conn. L. Rptr. 122, 123 n. 1) (holding that applicability of savings provision was contingent upon marshal's endorsement on return).
See also Renz Construction Corp. v. Kirschner, Superior Court, judicial district of Fairfield, Docket No. CV 96 0329403 (July 15, 1996, Moran, J.) ( 17 Conn. L. Rptr. 205, 206) (stating that plaintiffs could not use § 52-593a to save their cause of action because sheriff's return did not contain an endorsement); Buck v. Esman, Superior Court, judicial district of Hartford, Docket No. CV 365584 (November 19, 1993, O'Neill, J.) ( 10 Conn. L. Rptr. 413, 415) (reading subsections (a) and (b) together and concluding that subsection (b) is ineffective without compliance with subsection (a)).
In other cases, when finding that § 52-593a did not save the plaintiff's claim, the courts noted irregularities beyond the marshal's failure to endorse. See, e.g., Castaneda v. New London County Mutual Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 04 0833740 (November 29, 2004, Hale, J.T.R.) (granting motion to strike where plaintiff provided evidence in his brief that delivery of process to marshal was made before statute of limitations expired, but actual return was not properly dated in accordance with § 52-593a(b), and where marshal who signed return of service was not same marshal to whom delivery was made); Neligon v. Port Associates, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0273345 (October 12, 2001, Gilardi, J.) (granting motion for summary judgment when marshal's return and affidavit indicated plaintiff delivered summons and complaint to him two days after statute of limitations ran); Ruffino v. Gasparri, Superior Court, judicial district of Waterbury, Docket No. CV 97 0137998 (September 8, 1997, Pellegrino, J.) (granting motion for summary judgment where plaintiff did not strictly comply with requirements of § 52-593a(b) in that, marshal verifying delivery was not same marshal who actually made service, and where marshal's actual service occurred seventeen days after delivery when time period granted in § 52-593a(a) was only fifteen days).
Section 52-593a, however, is a remedial statute and is to be liberally interpreted. Metcalfe v. Sandford, 271 Conn. 531, 538, 858 A.2d 757 (2004); Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 55, 850 A.2d 1032 (2004). "There is a presumption of truth in matters asserted in the officer's return." (Internal quotation marks omitted.) Pagan v. Gonzalez, 113 Conn.App. 135, 139, 965 A.2d 582 (2009). "The fact that a sheriff's return may be amended has been recognized by Connecticut's courts. `[T]he return did not conform with the statutory requirement that the deputy sheriff who made service endorse thereon the date of delivery of the writ to him. Since this irregularity has not been questioned, and since, in any event, it is curable by amendment of the return . . . we may proceed to consider the ground upon which the trial court granted summary judgment.' . . . CT Page 7370 Zarillo v. Peck, 33 Conn.Sup. 676, 677, 366 A.2d 1165 (App. Sess. 1976), cert. denied, 171 Conn. 731, 357 A.2d 515 (1976)." Martidis v. Lombard Realty, Superior Court, judicial district of Waterbury, Docket No. CV 97 0142374 (July 30, 1998, Pellegrino, J.) ( 22 Conn. L. Rptr. 534, 534).
In Brown v. Brookville Transport Ltd., Superior Court, judicial district of New Haven, Docket No. CV 392820 (January 4, 2001, Blue, J.) ( 28 Conn. L. Rptr. 662, 664), the court determined that "[n]either the defendant nor the administration of justice is harmed in any way by the establishment of the date of delivery by means of subsequent affidavits." The court noted: "[T]he requirement of § 52-193a(b) that the officer making the service endorse the date of delivery on his return is plainly directory. The requirement is not the essence of the thing to be accomplished. The thing to be accomplished is the accurate determination of the date of delivery. The requirement in question relates to a matter of convenience. The provision is designed to secure order, system and dispatch in the proceedings. It is also a requirement stated in affirmative terms unaccompanied by negative words. For these reasons, the requirement that the date of delivery be endorsed upon the return is directory rather than mandatory." Id. In a more recent case, Judge Blue noted: "It would, in any event, be overly harsh to make compliance with subsection (b) mandatory. This would place the plaintiff entirely at the mercy of the punctiliousness (or lack thereof) of the state marshal, a matter over which he has no control. It would also be inconsistent with the manifest intention of both the legislature and our Supreme Court to take the sharp edges off the common law in matters concerning paperwork involving the service of process." DaSilva v. East Coast Concrete Products, LLC, Superior Court, judicial district of New Haven, Docket No. CV 08 5016910 (October 20, 2008, Blue, J.) ( 46 Conn. L. Rptr. 512, 513).
The majority of the courts have held that the endorsement of the date of delivery on the original return is directory and not mandatory, and that an affidavit or amended return can cure an initial failure to comply with § 52-593a(b). See, e.g., Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV 09 5010404 (December 17, 2009, Cosgrove, J.) ( 49 Conn. L. Rptr. 29, 31); Tate v. Lerner, Superior Court, judicial district of Waterbury, Docket No. CV 09 5011864 (September 23, 2009, Brunetti, J.) ( 48 Conn. L. Rptr. 483, 486); Minney v. Dasent, Superior Court, judicial district of New London, Docket No. CV 06 5000642 (October 23, 2006, Hurley, J.T.R.) ( 42 Conn. L. Rptr. 229, 231); Desimini v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 05 4003250 (January 12, 2006, Domnarski, J.) ( 40 Conn. L. Rptr. 611, 614); Roldan v. Avanti Screw, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0521915 (December 28, 2004, Bergen, J.) ( 38 Conn. L. Rptr 466, 468); Cartsounis v. Rosenstein, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 00 0176589 (March 6, 2003, Lewis, J.) ( 34 Conn. L. Rptr. 243, 245); Holness v. Gray, Superior Court, judicial district of Hartford, Docket No. 01 0805850 (April 17, 2002, Wagner, J.) ( 32 Conn. L. Rptr. 109, 110); Hornyak v. St. Pierre, Superior Court, judicial district of Waterbury, Docket No. CV 96 0131012 (August 1, 2000, Wiese, J.) ( 27 Conn. L. Rptr. 716, 717).
The majority line of cases is more persuasive. I find that the endorsement of the date of delivery on the original return is directory and not mandatory and such omission is curable by the filing of a supplemental return and/or marshal's affidavit. In the present case, the plaintiff has submitted an affidavit by the same marshal who signed the original return in which he averred that he received the writ, summons, and complaint from the plaintiff before the expiration of the statute of limitations. The plaintiff has substantially complied with § 52-593a(b). The defendant has failed to submit evidence that would tend to put the marshal's affidavit in dispute. Accordingly, the plaintiff's action was timely commenced pursuant to § 52-593a and the defendant's motion for summary judgment on this ground is denied.
Insofar as the defendant implies that a "late-blooming recollection" of a marshal is generally suspect and "invites finagling," in appropriate situations, the defendant's concerns can be addressed adequately by an evidentiary hearing on the matter. See, e.g, DaSilva v. East Coast Concrete Products, LLC, supra, 46 Conn. L. Rptr. 513 (court, heard evidence by agreement of parties and found date that process was personally delivered to marshal); Fiore v. Schwartz, Superior Court, judicial district of New Haven, Docket No. CV 02 0468116 (November 28, 2007, Cosgrove, J.) ( 44 Conn. L. Rptr. 572) (noting "an amended return or substitute affidavit may be the preferable means of bringing this information to the court's attention"); Martidis v. Lombard Realty, supra, 22 Conn. L. Rptr. 535 n. 2 (denying motion to dismiss and noting "[t]his court may also determine that a hearing is necessary to supplement the facts set forth in this amended sheriff's return").
IV Qualified Immunity
Finally, the defendant has moved for summary judgment on the ground that he has qualified immunity for the acts alleged to be negligent. He argues that he is entitled to qualified immunity because he reasonably believed that, at the time he erased the hard drives and removed the backup tapes, he was acting within the scope of his official duties as mayor and has qualified immunity for his discretionary acts pursuant to General Statutes § 52-557 and at common law. In opposition, the plaintiff argues: (1) that the defendant's actions were ministerial in nature in that he had a mandatory duty to follow the obligations imposed by a number of statutes, and that because qualified immunity does not protect the misperformance of ministerial acts, he is not immune from suit; and (2) because he was not engaged in a governmental function and acting for the benefit of the public, the defendant cannot claim the protection of qualified immunity.
General Statutes § 52-557n(a) provides in relevant part: "(1) 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 . . . (2) 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."
Our Supreme Court has noted that "employee immunity for discretionary acts is identical to the municipality's immunity for its employees' discretionary acts under § 52-557n." (Internal quotation marks omitted.) CT Page 7372 Grady v. Somers, 294 Conn. 324, 339-40 n. 15, 984 A.2d 684 (2009). "Section 52-557n, enacted in 1986 . . . specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity . . . Although the statute contains no express exceptions to governmental immunity for discretionary acts, this court has assume[d], without deciding, that § 52-557n(a)(2)(B) codifies the common law relating to circumstances in which immunity is abrogated." (Citation omitted; internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 105, 931 A.2d 859 (2007).
"[Our Supreme Court has] identified three exceptions to discretionary act immunity . . . 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, 279 Conn. 607, 615-16, 903 A.2d 191 (2006).
The parties in the present case have not raised any of these exceptions.
"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 second-guessing 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; 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 . . . [M]unicipal officers are not immune from liability for negligence arising out of their ministerial acts." Violano v. Fernandez, 280 Conn. 310, 318-19, 907 A.2d 1188 (2006). A determinative factor as to whether an action is ministerial is the presence of a written policy, directive or guideline given to employees with regard to their actions in a particular situation. Compare Violano v. Fernandez, supra, 323 (determining qualified immunity applied to defendant's alleged failure to "reasonably or adequately secure the property that was under his care, custody, or control" because plaintiffs failed to allege that defendant "was required by any city charter provision, ordinance, regulation, rule, policy, or other directive to secure the property in any prescribed manner") with Kolaniak v. Board of Education, 28 Conn.App. 277, 280-81, 610 A.2d 193 (1992) (determining that immunity did not apply because act of clearing snow and ice by maintenance workers, in accordance with directive by policymaking board of education, was ministerial). "See also 2A E. McQuillin, The Law of Municipal Corporations (3rd Ed. Rev. 2006) § 10.52, p. 531 ([o]fficial action . . . is ministerial when it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law that imposes it prescribes and defines the time, manner, and occasion of the performance with such certainty that nothing remains for judgment or discretion)" (internal quotation marks omitted). Bridgeport Harbor Place, I, LLC v. Ganim, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 04 0184523 (October 5, 2007, Stevens, J.).
"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 it is apparent from the complaint . . . [T]he determination of whether 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." (Citation omitted; internal quotation marks omitted.) Grignano v. Milford, 106 Conn.App. 648, 654-55, 943 A.2d 507 (2008).
In the present case, the plaintiff alleges that the defendant "caused or directed other persons to delete and erase the hard drives of up to five of the computers owned by the [p]laintiff [and] caused or directed other persons to remove `backup' computer data storage tapes from the plaintiff's premises." The defendant has provided evidence in the form of an affidavit in which he avers: "It was obvious we would not be able to review all the documents on our personal computers during that brief period [after he lost the election and before the new mayor was to be sworn in] . . . The accumulation of e-mails, trivia, and other daily flotsam over the years was immense . . . During my administration . . . any document that was arguably needed in hard copy was to be printed as soon as it was read and filed in a paper file in the appropriate office . . . There was no written policy on such matters [retention of electronic records when paper copies were printed and filed] in effect at that time and I used my discretion to decide that this [deleting the hard drives on five office computers] was a reasonable way to prepare the computers for use by the incoming staff." He further attests that he decided to "scrub" the hard drives on his personal office computer and that of four of his aides. Regarding the backup tapes, he attests: "The clean out of our City Hall offices was lengthy, laborious and tedious process, done under deadline and in a state of near exhaustion . . . The backup tapes for the subject computers ended up in a box of my personal effects because someone (not me) threw them in there without my knowledge."
The allegations of the complaint coupled with the defendant's evidence suggests that the defendant's allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature. The burden is on the plaintiff to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact as to whether the defendant misperformed a ministerial act. The plaintiff presented evidence that a municipality must retain certain electronic records in order to comply with, for example, the Freedom of Information Act. The plaintiff alleges that the defendant's acts "were not authorized by the keeper of records." In both its response to the defendant's interrogatories and in its brief, the plaintiff cites, without analysis, General Statutes §§ 1-211, 1-277, 1-282, 11-8b and the city of Derby ordinance § 32-30 as examples of the defendant's mandatory obligations with regard to electronic records.
Section 1-211 provides in part: "Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made . . .
Section 1-277 provides in part: "(a) If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record that: (1) Accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and (2) Remains accessible for later reference . . . (f) A record retained as an electronic record in accordance with subsection (a) of this section satisfies a law requiring a person to retain a record for evidentiary, audit or like purposes, unless a law enacted after October 1, 2002, specifically prohibits the use of an electronic record for the specified purpose. (g) This section does not preclude a governmental agency in this state from specifying additional requirements for the retention of a record subject to the agency's jurisdiction, except as otherwise required by the State Librarian or the Public Records Administrator in accordance with sections 11-8 and 11-8a."
Section 1-282 provides in part: "Except as otherwise required by the State Librarian or the Public Records Administrator in accordance with sections 11-8 and 11-8a, each governmental agency in this state shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records."
Section 11-8b, regarding the document retention policies of the state librarian, provides: "All public records, as defined in section 11-8 or section 11-8a, or other such records, created by public offices, are the property of the agency concerned and shall not be removed, destroyed, mutilated, transferred or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules and regulations adopted by the State Library Board pursuant to the provisions of chapter 54. Such public records shall be delivered by outgoing officials and employees to their successors and shall not be otherwise removed, transferred, or destroyed unlawfully."
In exhibit one, the plaintiff included a copy of city of Derby ordinance § 32-30. The ordinance provides: "On and after the effective date hereof, any engineer, architect, land surveyor, contractor or other person, partnership, or corporation employed or retained by the City or any agency or department thereof for the purpose of furnishing any design, drawing, survey, map, proposal, plan, or other such document shall be required to convey a copy of the original thereof to the City Clerk for retention in the permanent records of the municipality."
The plaintiff has not shown what specific ministerial rule or regulation the defendant violated through his conduct. While the statutes and the ordinance cited prescribe certain conduct, they do not delineate or establish any manner or mode of conduct such that they impose the time, manner, and occasion of the performance with such certainty that nothing remains for judgment or discretion. The plaintiff has failed to support its claim that the defendant misperformed a ministerial act.
The plaintiff also argues that the defendant's acts and omissions cannot be afforded immunity because they were not governmental acts performed within the scope of the defendant's official duties wholly for the direct benefit of the public. The plaintiff maintains that "[e]rasing data that is needed to effectively run the city is not conducting his employer's business but rather abandoning his employer's business."
Neither the Supreme nor the Appellate Court has had occasion to determine when an employee, officer or agent is "acting within the scope of his employment or official duties" as that phrase is used in § 52-557n(a)(1)(A). The Appellate Court has noted, however: "Comment g to § 895D of the Restatement (Second) of Torts (1979), provides in relevant part: An immunity protects an officer only to the extent that he is acting in the general scope of his official authority. When he goes entirely beyond it and does an act that is not permitted at all by that duty, he is not acting in his capacity as a public officer or employee and he has no more immunity than a private citizen." (Internal quotation marks omitted.) Gerstenzang v. Glenville News Florist, Inc., 71 Conn.App. 531, 534-35, 802 A.2d 230 (2002). In that case, the plaintiff claimed "that the court acted improperly in refusing to instruct the jury on ultra vires acts . . . [because if] the instruction were given, it would have allowed the jury to find that the defendant had engaged in an ultra vires act, i.e., an act beyond the scope of his authority as commissioner of public works. Therefore, the doctrine of qualified immunity for discretionary acts of municipal employees would not apply to shield the defendant from liability." Id., 534. The court held that a reasonable jury could not have found that the defendant had acted outside the scope of his authority as a municipal agent when he removed from private property a planter alleged to be a highway obstruction and the trial court properly refused to instruct the jury on ultra vires acts. Id., 537.
In the present case, the defendant attests in his affidavit: "When I assumed the office of Mayor in 1997 . . . there was a single desktop computer available for the use of the Mayor; I inherited it from [the] outgoing Mayor . . . When I began using the machine, it had been purged of its documents . . ." He attests further that in his belief, deleting the hard drives on five office computers "was a reasonable way to prepare the computers for use by the incoming staff" and that, during the clean out of the city hall offices, "[t]he backup tapes for the subject computers ended up in a box of [his] personal effects because someone (not me) threw them in there without [his] knowledge." To raise a triable issue of fact, the plaintiff must present some evidence which tends to show that the defendant went entirely beyond the general scope of his authority as mayor and that his acts were not permitted at all by that duty.
The plaintiff presents evidence in the form of an affidavit by Staffieri in which he attests that when he took office on December 3, 2005: "the backup system had failed and did not store the back up data from sometime before my arrival . . . a number of computers were not functioning . . . I could not locate [ten] additional computer data backup tapes and could not reinstate the backup process . . . [and] that I immediately engaged the services of the staff to locate the data tapes." He attests further that "on a date after December 3, 2005, I was informed that the backup tapes were in the possession of the [defendant]." Finally, he avers that he has knowledge of the "confidential and public information such as tax records, accounts, budgets, personnel records, payroll records and other data that is electronically stored on the `back up' tapes for the [c]ity of Derby."
The plaintiff also presents a sworn statement by Dabate, a "computer technician for Connecticut Computer Services." He states: "Our company is contracted by the city of Derby to install and maintain the computer network in City Hall . . . On [December 2, 2005] . . . I gave [the defendant and Lutz] another option of using a wipe utility which would over-write the data and make it unrecoverable . . . The plan was to continue to delete the user accounts, email, and personal network folders. I was then to run a Kill Disk wiping utility on [five] personal computers . . . After the program was run and the systems were wiped, I was scheduled to return on Monday morning and reimage the machines. This could bring [the machines] back to their base state . . . and allow us to set new users and passwords for the next staff." He also states that "after I made all the changes on the system, [I] placed the blank [back up] tape into the drive so the system could be able to backup the next time it was scheduled to run . . . [This] would not give the ability to recover anything that was changed before the backup." He did not know who ended up with the other backup tapes, but only saw the defendant and Lutz in possession of them that day. Maruccio states that, "at [the defendant's] direction and in the presence of [Lutz]," he "used a high power video/audio tape eraser to erase ten backup tapes." Lutz states that Dabate ran the "Killz" software at the direction of the defendant and that Maruccio "had brought in a device from home . . . [to] clear the tapes" at the direction of the defendant. Lutz also states that he did not take the tapes when he left that day.
The plaintiff argues that the deletion of the data amounts to the defendant's abandoning the business of his employer, the city of Derby. Staffieri attests that "confidential and public information such as tax records, accounts, budgets, personnel records, payroll records and other data that is electronically stored on the `back up' tapes for the [c]ity of Derby" and presents evidence that those tapes were erased. The defendant attested that while he was in office, "any document that was arguably needed in hard copy was to be printed as soon as it was read and filed in a paper file in the appropriate office." The plaintiff has not offered any evidence to contradict this. Both parties acknowledge that the defendant caused the hard drives of the five computers to be "scrubbed." Both parties acknowledge that the defendant had possession of the tapes after he left office. These facts are not in dispute.
Discretionary act immunity exists to allow a government officer, such as a mayor, freedom to exercise judgment and discretion in his official functions. The defendant has presented evidence that as part of the transition from one administration to the next, it was within the official function of the outgoing mayor to clear out his office, and that this included deleting some computer records. Nothing in the evidence that the plaintiff has submitted raises a triable issue of fact as to whether the deletion of the hard drives or backup tapes was part of an outgoing mayor's routine when leaving office. The plaintiff has not met its burden of raising a triable issue of fact as to whether the acts and omissions alleged to be negligent went beyond the general scope of the defendant's authority as mayor.
Accordingly, the defendant's motion for summary judgment on the ground that the defendant has discretionary act immunity for the acts and omissions alleged to be negligent is granted.
Conclusion
For the forgoing reasons, the defendant's motion for summary judgment is granted on the ground that the defendant has discretionary act immunity for the acts and omissions alleged to be negligent.