Opinion
FSTCV166029691S
05-02-2018
Jonathan Torres v. City of Norwalk
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Povodator, Kenneth B., J.
MEMORANDUM OF DECISION re MOTION FOR SUMMARY JUDGMENT (#122.00)
POVODATOR, J.
Nature of the Proceeding
This is a lawsuit arising from a motor vehicle accident, involving a police car responding to an emergency call striking a pedestrian. At around 2:00 A.M. on the day in question- closing time for restaurants and bars- a " shots fired" emergency was reported to the police resulting in the dispatch of numerous vehicles to the scene. The plaintiff, who had been in the area of the disturbance leading to the emergency call, was struck by a responding vehicle as he attempted to cross the street.
The plaintiff has sued the defendant municipality, based on the claimed negligence of the officer who was operating the vehicle that struck the plaintiff. The defendant has moved for summary judgment on two bases. First, the defendant contends that it is entitled to governmental immunity, as a matter of law, given the discretionary nature of the operation of a motor vehicle in response to an emergency call. As an alternative, the defendant relies upon the video obtained from a nearby commercial establishment which shows the plaintiff entering the roadway and being struck by the vehicle (supplemented by other evidence), which the defendant contends establishes that the plaintiff was more than 50% responsible for the accident so as to bar his right to any recovery.
The plaintiff is required to establish legal responsibility of the identified operator, but was not required to name him as a party. Spears v. Garcia, 66 Conn.App. 669 (2001), aff’d, 263 Conn. 22 818 A.2d 37, 40 (2003). Any reference to the defendant, then, is intended to be based on the derivative liability of the defendant for the claimed negligence of the operator of the vehicle (who variously may be referred to as the defendant’s operator or similar terminology).
The plaintiff has objected, arguing that the claim of governmental immunity as advanced by the defendant is something of a minority position among judges, and further that there is a factual issue as to respective fault for the accident. In addition to the usual affidavits from both sides, the court has been provided with a copy of the video showing the actual accident.
Discussion
The generally-applicable standards for summary judgment are sufficiently well-established that they do not need to be recited in detail. See, e.g., Windsor Federal Savings & Loan Ass’n v. Reliable Mechanical Contractors, LLC, 175 Conn.App. 651, 658-59 (2017). The court notes, however, that the two theories advanced by the defendant implicate different levels of analysis. The claim that the defendant is entitled to governmental immunity is primarily a matter of statutory interpretation, as there does not appear to be any dispute that the defendant vehicle was responding to an emergency call at the time of the accident, with the defendant claiming that that limited and undisputed fact entitles assertion of governmental immunity. The alternative claim of the defendant, that the plaintiff cannot prove that the defendant was at least 50% responsible for the accident, is more fact-intensive. In that regard, the defendant relies heavily on the claimed indisputable nature of the video, showing the actual occurrence.
The court often refers to the asymmetry involved in summary judgment, particularly when it is a defendant moving for summary judgment. At trial, the burden will be on the plaintiff to prove his case, by a preponderance of the evidence. For purposes of summary judgment, however, the defendant has assumed the burden of proving that there are no material issues of fact, and that based on the undisputed facts, it is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the court cannot resolve factual issues, but rather is compelled to deny the motion should it identify any material issue of fact that needs to be resolved (or has been left open or unaddressed). In a non-technical sense, the burden is on the moving party to establish a variation on certainty- no material issue of fact.
To the extent that the defendant is relying upon an affirmative defense of governmental immunity, there is an additional burden- the defendant not only is obligated to establish the applicability of governmental immunity to the situation at hand, but it also must negate any exceptions that may have been identified by the non-moving party or otherwise might be applicable. Williams v. Housing Authority of the City of Bridgeport, 327 Conn. 338, 174 A.3d 137 (2017) (to obtain summary judgment based on defense of governmental immunity, defendants needed to negate applicability of potentially-applicable exception to immunity); see, also, TD Bank, N.A. v. J and M Holdings, LLC, 143 Conn.App. 340, 351 (2013) (reversing entry of summary judgment because trial court had not considered fifth special defense (in turn, because Appellate Court had concluded that that defense erroneously had been stricken)).
In light of the disparate views of the more detailed facts, the court notes an additional consideration. As recited in the recent case of Ferri v. Powell-Ferri, 317 Conn. 223, 116 A.3d 297 (2015), in connection with summary judgment, " [t]o satisfy [its] burden the movant must make a showing that it is quite clear what the truth is." 317 Conn. 228, 116 A.3d 302.
I. Immunity as a Matter of Law
At the time of the accident described in the plaintiff’s complaint, the defendant officer was responding to an emergency call- the officer was almost at his destination when this accident occurred. The defendant claims that the officer, in operating a motor vehicle in response to a dispatch for an emergency call, was entitled to governmental immunity, as a matter of law. That contention requires the court to analyze and consider the scope of General Statutes § 52-557n, the statutory codification of governmental immunity; requires the court to analyze and consider the scope of General Statutes § 14-283, a statute directed to operation of emergency motor vehicles, and especially the interaction of that statute with § 52-557n; and may require the court to consider the extent to which § 52-557n does or might apply to non-emergency operation of motor vehicles (if for no other reason than by way of contrast with emergency scenarios).
There does not appear to be any dispute- § 52-557n generally provides protection for conduct of municipal officials that involve the exercise of discretion. There also does not appear to be any dispute that much of the conduct of a police officer implicates discretion. The issue for the court is resolving the dispute between the parties as to which conduct properly implicates discretion for which immunity might apply, and which conduct (if any) is outside the scope of discretion, at least in the context of this case.
In many and perhaps most reported decisions, the assumption is made that an identified discretionary function presumptively entitles the municipal official to immunity, which then transitions to an issue of whether there is some overlay limiting the discretion in a manner that makes the conduct ministerial (or whether there are circumstances implicating another exception to immunity, such as identifiable victim or identifiable class of victims). The cases cited by the defendant, involving a " search" for some statute, policy, regulation, etc., that might create a ministerial duty, all seem to adopt that approach.
This case seems to require a more detailed analysis, starting earlier in the process. In other words, the court believes that the appropriate threshold question is not whether there is a provision creating a ministerial duty to a presumptive discretionary function but rather one step earlier- whether the police officer was performing a discretionary function that presumptively entitled him to the protection of governmental immunity (so as to then trigger an inquiry as to any possible exception to immunity). The statutory immunity for discretionary acts has qualifying language, usually not of concern and therefore usually not discussed- but potentially dispositive here. General Statutes § 52-557n(a)(2)(B) provides for non-liability for " 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." Therefore, for the defendant to assert governmental immunity based on discretionary acts, the acts (or omission) in question must be in connection with " an official function of the authority expressly or impliedly granted by law." Thus, while the issue often starts with the question of whether there is some directive converting what appears facially to be a discretionary function into a ministerial function, the true starting point, believed to be necessary here, is the claimed existence of a discretionary function- as contemplated by the statutory language- that does or might trigger presumptive immunity.
A brief review of statutory history and case law would appear to provide an appropriate context or starting point. At the time that General Statutes § 52-557n was enacted as part of Tort Reform I in 1986, General Statutes § 14-283 had been in existence for decades. No serious questions appeared to have been raised as to whether a police officer might be liable for negligence in the operation of a motor vehicle, prior to 1986; the municipal employer would be responsible for indemnification of an officer found to have been civilly liable, under the provisions of General Statutes § 7-465 (or possibly General Statutes § 7-101a).
The earliest appellate-level cases discussing the enactment of § 52-557n characterized it as an attempt by the legislature to codify and limit liability of municipalities and municipal officials. See, e.g., Sanzone v. Board of Police Commissioners, 219 Conn. 179, 188 (1991) (" The record of legislative debate does indicate that § 13 was intended, in a general sense, both to codify and to limit municipal liability, but it also reflects confusion with respect to precisely what part of the preexisting law was being codified, and what part was being limited" ). Subsequent cases have addressed proper interpretation of the statute itself, recognizing the need to interpret the language used (e.g., Williams v. Housing Authority of the City of Bridgeport, 327 Conn. 338, 174 A.3d 137 (2017)), as well as refining the common-law exceptions to immunity (e.g., Haynes v. City of Middletown, 314 Conn. 303 (2014)).
Shortly after enactment of § 52-557n, the issue of whether a police officer, and operating a motor vehicle, was engaged in a discretionary function for which immunity might apply, was raised in some cases. In Letowt v. City of Norwalk, 41 Conn.Supp. 402, 579 A.2d 601 (1989), the court found that the activity in question did not meet the threshold for consideration as an inherently discretionary function. Despite the issue having been identified in an officially-published opinion, the issue has not been addressed in any (known) appellate decision, since the enactment of the statute. (There has been no shortage of appellate-level decisions involving police officers involved in motor vehicle accidents; see, e.g., Winn v. Posades, 281 Conn. 50, 57 (2007); Burton v. City of Stamford, 115 Conn.App. 47 (2009); cert. denied, 293 Conn. 912 (2009); after remand, 52 Conn.Supp. 1 (2010), affirmed, 127 Conn.App. 651 (2011); cert. denied, 301 Conn. 915 (2011)). The absence of any appellate discussion generally must be attributed to the lack of any sustained effort by litigants to present the issue for appellate review, since an appellate court generally will only consider issues actually presented by the parties. The absence of any appellate claims can sometimes be attributed to a subtlety that has escaped detection, but sometimes can be attributed to a prevailing perception that it is not productive to litigate what seems to be obvious (Paulus v. LaSala, 56 Conn.App. 139, 150 (1999)).
There also have been appellate decisions relating to other emergency vehicles involved in motor vehicle accidents. In Keane v. Fischetti, 300 Conn. 395, 401, 13 A.3d 1089, 1093 (2011), the court addressed the unfortunate situation of a collision of two fire trucks. In upholding fellow-employee immunity under § 7-308, the court was required to address constitutional issues relating to equal protection; such a constitutional issue could have been avoided if the broader immunity under § 52-557n were deemed applicable. (Again, this court recognizes that appellate courts generally are limited to consideration of the issues raised by the parties, but notes the absence of any reference to § 52-557n, either as a means of avoiding the need to decide a constitutional issue when not necessary or as confirming the outcome as consistent with a different (if not explicitly raised) statutory analysis).
In recent years, a number of trial courts have revisited the question, and some have concluded that a police officer operating a motor vehicle may be entitled to immunity based on the discretionary quality of operation of a motor vehicle by a police officer (especially in an emergency context), and those are the decisions upon which this defendant relies. The plaintiff cites trial court decisions reaching the opposite conclusion. As set forth below, the court does not agree with the cases cited by the defendant, and will focus its analysis on the points raised in decisions that find immunity to apply.
Returning to the question of whether the discretion involved in operating a motor vehicle, even in an emergency context, implicates " the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law" : A somewhat analogous situation recently was addressed by this court in Collins v. Greenwich, J.D. Stamford/Norwalk at Stamford, FSTCV166028449S. In that case, the town’s tree warden claimed that any decision he made with respect to removal (or non-removal) of a tree was subject to his discretion, sufficient to entitle him to invoke governmental immunity under the discretionary function provisions of General Statutes § 52-557n(a). Although the ultimate decision on summary judgment centered on the provisions in General Statutes § 52-557n(b)(8), the court rejected the blanket claim of immunity-invoking discretion. See, memorandum of decision dated February 13, 2018.
Because the analysis is similar, the court will briefly discuss the approach taken in Collins as to this point. The controlling statute in Collins, General Statutes § 23-59, specifically addresses two areas in which the tree warden is authorized to remove a tree- hazardous conditions and nuisance conditions. The hazardous scenario is, in turn, subject to two situational alternatives- if the hazard is imminent, the tree warden can act essentially immediately. If the hazard is not imminent, the tree warden is required to post the tree for removal, giving members of the public an opportunity to object, and if a written objection is filed, the tree warden is required to conduct a public hearing on the issue. With respect to nuisances, the statute requires approval " of the selectmen or borough warden" before action can be taken. To the extent that the tree warden was claiming that he had discretion to remove a tree, simply because an abutting property owner requested removal, he may have that discretion and authority, in a functional/practical sense, but such a discretion is inconsistent with the legal constraints of the statute. If there is an imminent hazard, he can act without any further procedural requirements. If there is a non-imminent hazard, he is required to follow a due-process-type procedure. If there is a perceived nuisance (" any trees or other plants within the limits of public highways or grounds under the tree warden’s jurisdiction that are particularly obnoxious as hosts of insect or fungus pests" ), he is required to obtain approval from town officials. What is the point of these statutory provisions (conditions and limitations), if the tree warden has, in fact, overarching discretion as to when and if to remove a tree, for any or no reason? If there were to be recognized a general legal discretion to remove trees for any reason, with no procedural requirements, then the statutory procedures and limits would be superfluous. The court was compelled to read the statute’s designation of situations where discretion could be exercised, with designated procedures, to define the parameters of " the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." Again, there may be a practical discretion not encompassed by statutory authority, but there is a serious question- doubt- as to whether that properly would be characterized as " the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
The court also recognized that duly-enacted town ordinances might establish areas of legal discretion.
Thus, the mere exercise of discretion, without regard to context, does not entitle a municipality or municipal agent to governmental immunity. To return to the basic statutory premise: the discretion that is contemplated as entitling a town official/employee to immunity is set forth in General Statutes § 52-557n(a)(2): " (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." The statute is not worded so as to provide immunity for " (B) negligent acts or omissions which require the exercise of judgment or discretion."
In the performance of their duties, police officers have a great deal of discretion, " expressly or impliedly granted by law." They have discretion as to whether to make an arrest (Shore v. Stonington, 187 Conn. 147 (1982)) and they have discretion as to whether to engage in pursuit of a suspect- subject to relatively-recent statutory considerations (General Statutes § 14-283a (discussed below)). A decision as to whether a situation is sufficiently urgent as to warrant dispatching officers on an emergency-call basis also likely would be considered to be an exercise of discretion " expressly or impliedly granted by law." But does that same concept of discretion apply to operation of a motor vehicle, after the decision has been made to dispatch officers on that basis? There is no question that there is some level of discretion involved in driving a car, en route to an emergency call or in general. Is that, however, a discretionary function that can be characterized as " an official function of the authority expressly or impliedly granted by law" or is that a type of discretion that is applicable to everyone?
To be precise, in Shore, the court did not rely on a governmental immunity analysis but rather the so-called public duty rule- a municipal employee cannot be liable absent a duty running to the claimant in something of an individual (non-public) sense. This, in turn, led to the identifiable victim line of cases, starting with Sestito v. Groton, 178 Conn. 520 (1979). Legislative concern about the exercise of discretion in decisions relating to arrests in family violence situations led to enactment of General Statutes § 46b-38c.
It is only a modest exaggeration to say that " everyone" drives a motor vehicle. According to federal statistics, there are more than 2 1/2 million licensed drivers in Connecticut, representing approximately 1.2% of all drivers, which translates to over 200 million licensed drivers in this country. The discretion involved in driving a car generally is not subject to characterization as " an official function of the authority expressly or impliedly granted by law" to police officers or other public officials- everyone exercises that type of discretion. The rules of the road- statutory and common law- apply to everyone.
https://www.fhwa.dot.gov/policyinformation/statistics/abstracts/2015/connecticut_2015.pdf (last visited on 4/3/18).
Conversely, it also is only a modest exaggeration to say that even in connection with what is deemed a ministerial duty, at some level of scrutiny, some element of discretion can be discerned (or plausibly claimed). Thus, in Kolaniak v. Board of Education of the City of Bridgeport, 28 Conn.App. 277, 279, 610 A.2d 193, 194 (1992), the court was faced with the following factual scenario:
[T]he board of education had issued a bulletin to all custodians and maintenance personnel in Bridgeport indicating that the walkways were to be inspected and kept clean on a daily basis. The defendants John Domeracki and Eugene Plude were on duty as maintenance workers the night the plaintiff fell. While on duty, it was their responsibility to keep walkways clear of snow and ice. Although there were shovels kept on the school grounds for snow removal and a supply of salt and sand, there was no evidence that the walkway in question had been shoveled, salted or sanded prior to the plaintiff’s fall.
Based on these facts, the trial court had declined to charge the jury that governmental immunity might be available to the defendants.
The defendant asserts that because Domeracki and Plude had the responsibility of deciding whether there was sufficient accumulation to begin clearing the walkways, they were performing a discretionary function, and that, therefore, the jury should have decided whether the doctrine of governmental immunity applied. A determination as to when to clear a sidewalk, however, is not a discretionary function. Every voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor. In the present case, the board of education’s bulletin to all custodians and maintenance personnel was clear- they were to keep the walkways clear of snow and ice. We will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity. We conclude that it was proper for the trial court to have decided that Domeracki and Plude were involved in a ministerial function as a matter of law. The refusal to charge on the doctrine of governmental immunity, therefore, was proper. Id. at 281-82.
Connecticut jurisprudence relating to governmental immunity for discretionary acts typically is not framed in terms of operational versus policy determinations, but the decision above comes close. (" We will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity." ) In at least one instance, that type of distinction has been recognized by the Connecticut Supreme Court.
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. See 18 E. McQuillin, Municipal Corporations (3d Ed. 2003) § 53.04.10, pp. 179-81 (" [a] municipality is liable for negligence of its employees at the operational level where there is no room for policy judgment" ). (Internal quotation marks and citation, omitted.) Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191, 197 (2006).
Again, while the operational-policy dichotomy has not been the basis for analysis of governmental immunity in Connecticut, it is a useful background or contextual concept to which reference has been made at times, and it emphasizes the need to make sure that " judgment in the performance of ministerial acts" not be confused with judgment in the performance of a discretionary governmental function.
The other statute of concern- which has been invoked- is General Statutes § 14-283. Section 14-283 is a statute dedicated to emergency vehicles (including police vehicles), specifically responding to emergency calls with appropriate warning signals in operation, as provided in subsection (c). Subsection (d), in turn, provides: " The provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property." The intent of the statute clearly is to excuse operators of emergency vehicles, under the designated circumstances, from strict compliance with statutory or regulatory " rules of the road," posted and/or statutory speed limits, etc. but all under the umbrella of " due regard for the safety of all persons and property."
The statute also addresses the proper conduct of others, when an emergency vehicle in the vicinity (including penalties). For purposes of this decision, the court will focus solely on provisions relating to emergency responders, and will treat the statute as if it only pertained to responders.
The defendant effectively is arguing that there are no teeth to subsection (d)- it is directory or precatory in nature. The defendant’s analysis appears to be that driving a car (by a police officer)- especially in an emergency mode- is inherently discretionary such that governmental immunity applies.
Is the defendant treating § 14-283 as conferring immunity? There is nothing in the statute or case law suggesting such a broad sweep; it exempts emergency responders from compliance with specified statutes and rules, but subject to an overarching obligation of care for the safety of others. Nothing in the statute addresses liability or immunity- it authorizes conduct otherwise prohibited by statute or other applicable rule, but retaining a mandate for reasonable care with respect to safety.
The defendant’s interpretation of the statute either renders it partially or wholly redundant, notwithstanding the presumption that every statute and every provision in a statute must be presumed to have a purpose (Megos v. Ranta, 179 Conn.App. 546, 552 (2018)) and that implied repeal of a statute is disfavored and not to be inferred except when unavoidable (Amaral Bros., Inc. v. Department of Labor, 325 Conn. 72, 85, 155 A.3d 1255, 1262 (2017)). Subsection (d) serves no purpose, according to the defendant- at least in any functional sense.
Further, to the extent that the defendant implicitly is arguing that there is governmental immunity in the discretionary aspects of the operation of a motor vehicle, § 14-283 only governs formally-adopted statutes and policies and regulations but the police officer in question is also charged with violating common-law standards relating to braking and lookout- if there is immunity in those respects, it does not derive from § 14-283. After enumeration of specific exemptions relating to matters such as speed and traffic control signals, subdivision (b)(1)(D) provides a generalized exemption for " statutes, ordinances or regulations governing direction of movement or turning in specific directions" - so any claim for immunity from common-law obligations must be based on authority external to § 14-283.
Thus, there is some lack of clarity in what is being claimed, and on what basis. Is the claim that a police officer has discretion in driving a motor vehicle generally, or only in situations governed by § 14-283? As a modest variation, does the immunity apply only to emergency situations regardless of the existence and applicability of § 14-283? Further refinement might focus on whether, assuming that the immunity only applies in situations governed by § 14-283, does the immunity only apply to conduct identified in that statute?
There is a further problem in line-drawing, if there is to be recognition of discretionary immunity based on operation of a motor vehicle, not reliant on § 14-283. Many municipal officials, outside the police department, require use of a motor vehicle. Are building officials entitled to a similar immunity, when travelling to properties for routine inspections or for emergency inspections (e.g., to determine whether there is a hazard in need of immediate remediation or demolition)? Are health department officials entitled to a similar immunity, when travelling to properties for routine inspections or for emergency inspections? While all of these officials, including police officers, generally use private passenger type vehicles for transportation, that is not inherently and always required, but sanitation workers must use specialized equipment for picking up trash and plowing roads in the winter- are the operators of those vehicles entitled to immunity in the non-emergency operation of such vehicles? And in an emergency-type situation (to which § 14-283 does not apply), such as clearing roads of snow in winter, is there a level of urgency that is equivalent to the existence of an emergency, sufficient to warrant a claim of immunity?
Focusing on specific conduct governed by § 14-283, operators of emergency vehicles may " park or stand such vehicle, irrespective of the provisions of this chapter, [generally] proceed past any red light or stop signal or stop sign ... exceed the posted speed limits or other speed limits ... [and] disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions." As already noted, however, the allegations of the complaint include claims not within the scope of the statute. The plaintiff claims that the defendant’s driver did not maintain a reasonable lookout as he was approaching, and did not slow down- a variation on a claim of a failure to apply the brakes to avoid striking the pedestrian. There does not appear to be any overlap between these specifications of negligence and the scope of § 14-283. (Section 14-80h requires an adequate braking system, but that is equipment-oriented; there is no statute directing application of brakes to avoid a collision.)
Is the defendant claiming that a police officer has discretion as to whether to apply the brakes, to avoid a collision with a pedestrian or some other vehicle? Is the defendant claiming that a police officer has discretion as to whether he or she needs to maintain a reasonable lookout for pedestrians and other vehicles? Did the officer have immunity-protected discretion as to when to apply his brakes or maintain a reasonable lookout? The court can discern nothing inherent or explicit in the authority of a police officer, even one responding to a call on an emergency basis, that provides an overlay of discretion as to whether to be watchful or whether to apply brakes, and nothing inherent or explicit that makes the level of attention or degree to which brakes are applied a matter of police-authority-discretion.
Somewhat simplistically but accurately, § 14-283 is a statutory abrogation of the concept of negligence per se, as applicable to emergency vehicles on emergency calls- subject to some exceptions, points of emphasis, and qualifications. It does not address liability of an officer, in operating a vehicle. If the defendant is contending that the statute provides immunity, then there is no textual basis for such a position. That, however, requires consideration of the alternate postulate that there is immunity for operation of a motor vehicle under § 52-557n, without reliance on § 14-283 for protection.
If a police officer, responding to an emergency call, has immunity under § 52-557n without regard to § 14-283, then § 14-283, which has been repeatedly amended since 1986, has no substantive legal effect. If police officers (and by inference, other emergency responders) are entitled to immunity, as a matter of law, in the operation of a motor vehicle, without regard to § 14-283, then the statute has been repealed by implication by enactment of Tort Reform in 1986 and 1987, notwithstanding approximately 8 amendments to § 14-283 since enactment of § 52-557n. What is the point of multiple references in § 14-283 to the need for concern about safety of others, if § 52-557n precludes liability, regardless of whether there was adequate concern about the safety of others? Why add new classes of emergency responders, if emergency responders already had a superseding immunity under § 52-557n?
One of the amendments appears to have been purely technical in nature. One of the amendments appears to have only affected a penalty for violation of a provision directed to non-emergency vehicles (subsection (h)). Most of the remaining amendments focused on the scope of emergency vehicles (and operators) covered by the statute.
To the extent that there have been amendments adding new categories of State officials, an analogous analysis could be articulated relating to liability claims against State personnel.
As noted above, repeal by implication is highly disfavored. The fact that the General Assembly has revisited the statute on a number of occasions is further indication that the statute has a scope of operation (an intended scope of operation), notwithstanding enactment of § 52-557n. Two of the four exemptions set forth in subsection (b) specifically qualify the exemptions by reference to safety, and subsection (d) explicitly provides that " [t]he provisions of [§ 14-283] shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property" - are these repeated invocations of an overriding obligation to operate safely to be of no consequence?
The court already has alluded to the implicit issue- whether recognized by the defendant and its authorities or not- as to whether there is any basis to limit the claimed immunity only to emergency situations, or whether the discretionary immunity being claimed would also be applicable to police officers in non-emergency situations (if § 52-557n was sufficient to confer immunity). The court observed that somewhat simplistically, the effect of § 14-283 is to negate applicability of the doctrine of negligence per se to the operators of emergency vehicles. The repeated references to safety, as set forth in the preceding paragraph, can only be a reaffirmation of the requirement of a standard of reasonable care in the operation of an emergency vehicle, notwithstanding the emergency nature of the particular call. But that is just another way of saying that, except for application of the doctrine of negligence per se, negligence standards still apply to emergency vehicles. In enacting and amending § 14-283, the General Assembly implicitly recognized the distinction between statutory standards relating to operation of a motor vehicle (affected by the statute) and potential liability (the reason for exempting certain conduct from a basis for claiming negligence per se). Other than relief from negligence per se in emergency response situations, the same standard is (remains!) applicable to all drivers.
Before discussing Parker v. Stadalink, WYCV 136020769S, 2016 WL 2935567 (Conn.Super.Ct. May 4, 2016) , upon which the defendant relies, the court will discuss a recent decision that relies on Parker and which attempts to explain why Letowt was not perceived to be persuasive. In Daley v. Kashmanian, No. CV 156057627S, 2018 WL 1386155, at (Conn.Super.Ct. Feb. 8, 2018) , the court explained why it believed that Letowt had adopted an inappropriate line of analysis (which had relied, in part, on a then-recent Rhode Island Supreme Court decision):
The legal framework in Connecticut is clearly not the same as that on which the decision in Catone was based. Connecticut has not abolished the common-law immunity of the state or its municipalities. " It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued." (Citation omitted; internal quotation marks omitted.) Giannoni v. Commissioner of Transportation, 322 Conn. 344, 348 (2016). " [T]he general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Citation omitted; internal quotation marks omitted.) J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC, 164 Conn.App. 508, 514 (2016). Second, municipal employees, as part of their duties, perform many activities that private citizens perform, for example, cook, clean, shovel snow, etc. To expand the liability of municipalities to include responsibility for the negligence of their employees in those instances would allow the exception to swallow the rule of immunity. Such a determination is inconsistent with our Supreme and Appellate Courts’ definition of ministerial duties and the scope of municipal immunity set forth in our General Statutes. " Statutes that abrogate or modify governmental immunity are to be strictly construed ... This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction ... The court is to go no faster and no further than the legislature has gone ... A legislative intention not expressed in some appropriate manner has no legal existence." (Citations omitted; internal quotation marks omitted.) Segreto v. City of Bristol, 71 Conn.App. 844, 849-50 (2002).
Tort Reform was enacted more than 30 years ago, such that " remembering" the legal framework prior to § 52-557n can be a daunting task. Some of the nuances of the law, and the manner in which it was interpreted, require revisiting (in addition to the brief review, earlier).
The statement that " a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity," is accurate. Prior to 1986, the statutory framework for abrogation of governmental immunity in personal injury tort cases was primary reliance on § 7-465, with a modest supplementation by § 7-101a, § 7-308, and § 10-235, with narrow claim-specific abrogation via statutes such as § 13a-149. Suits against municipal employees based on operation of a motor vehicle were not only commonplace- the statutes themselves authorized and/or limited such lawsuits as between municipal employees.
Some of these statutes may not have authorized direct actions by claimants, but they all were parts of the framework for making a municipal entity (city, town, board of education) ultimately liable/responsible for the negligence of employees and other agents, as might be determined in a suit against such an employee/agent.
In Rowe v. Godou, 209 Conn. 273 (1988), the issue was the applicability of the notice requirement of § 7-308 to a claim of negligence arising from the operation of a fire truck by a member of the fire department, in connection with a claim of negligent damage to the plaintiff’s property. There was an issue as to whether the municipality might be liable under the statute, but no question of immunity of the operator was (or seemingly could be) raised.
Edmundson v. Rivera, 169 Conn. 630 (1975) was an action brought by one municipal employee against another, arising from the operation of a motor vehicle. No issue of individual immunity was raised or in issue; rather, the case turned on the asymmetry between fellow-employee immunity under the workers’ compensation laws (especially, § 31-293a) and similar but not identical provisions in § 7-465. See, also, Gurliacci v. Mayer, 218 Conn. 531 (1991), where that same asymmetry led the plaintiff to amend her complaint to allege recklessness, to avoid the then-operative bar against fellow municipal employee lawsuits arising from the operation of a motor vehicle.
A few years after Edmundson was decided, the General Assembly amended § 7-465 so as to allow fellow-employee lawsuits arising from motor vehicle accidents in the municipal context, as an exception to otherwise applicable fellow-employee immunity from suit, thereby restoring the symmetry with § 31-293a. (As reflected in Keane, supra, the statute applicable to firefighters does not contain analogous provisions.)
Against a legal background in which municipal employees could be sued for negligence in the operation of a motor vehicle, an exception to fellow-employee immunity was recognized (created) when the claim arose from the operation of a motor vehicle. The statutory right to sue a fellow employee under § 7-465 was not limited to non-emergency situations; it was a relatively unqualified exception to an otherwise applicable bar to a suit by one municipal employee against another, arising from workplace accidents. There was no suggestion in any of these decisions or statutory evolution that there might be governmental immunity inherent in operation of a motor vehicle; it would have been almost pointless to create an exception to fellow employee immunity if there also was a motor-vehicle-based aspect of governmental immunity. (It would be somewhat less pointless if the immunity were only in the context of emergency responses, but there is nothing in § 7-465 suggesting such a dichotomy.)
Cases involving claimed municipal liability for motor vehicle accidents continue to be decided, without any suggestion of governmental immunity associated with operation of a motor vehicle. Just recently, see Fiano v. Old Saybrook Fire Co. No. 1, Inc., 180 Conn.App. 717 (2018), in which summary judgment in favor of a volunteer fire company and the municipality was affirmed, with the case against the individual operator of a motor vehicle that struck the plaintiff allowed to proceed, because of a determination that the individual was not acting on behalf of the company or town at the time of the collision.
The court has reviewed the trial court file. The moving defendants had included a defense of governmental immunity in their answer and special defenses, but sought and obtained summary judgment based on generic principles of vicarious liability- the defendant operator had not been acting in the scope of his relationship with either the fire company or the town, such that an essential premise for vicarious liability was missing.
The point of the foregoing is to address the statement in Daley that " municipal employees, as part of their duties, perform many activities that private citizens perform, for example, cook, clean, shovel snow, etc. To expand the liability of municipalities to include responsibility for the negligence of their employees in those instances would allow the exception to swallow the rule of immunity." To the extent that the court in Daley was attempting to justify immunity for non-emergency operation of motor vehicles, § 7-465 and related statutes have always (since their enactment) allowed for liability of municipalities for essentially all actionable negligence of employees that were not governmental in nature, and the statutes themselves, prior to § 52-557n, were generally not deemed to be directed to immunizing employees for such mundane (non-governmental) conduct. Thus, the holding in Rowe was that even if the municipality could not be liable due to the failure to comply with the applicable statute and its requirements for establishing municipal liability, there was no impediment to pursuing a claim against the employee. The decision cited and relied upon Fraser v. Henninger, 173 Connecticut 52 (1977), which made clear that the liability of a municipality under § 7-465 was statutorily-derivative of the common-law liability of the employee, and the failure to satisfy the statutory requirements for a claim against the municipal employer had no bearing on the viability of the common-law claim against the employee.
As a further refinement: Although it was commonplace to the point of being almost universal that claimants would rely on the direct action provisions in § 7-465 to sue a municipality simultaneously with an action against the employee, both § 7-465 and § 7-101a are indemnification statutes, leaving open the option of an employee to seek indemnification should he/she be found liable in a proceeding in which the municipality was not a party.
This also addresses the discussion of the " rule of construction ... that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction ..." Although Spears v. Garcia, 66 Conn.App. 669 (2001); aff’d, 263 Conn. 22 818 A.2d 37, 40 (2003) allows elimination of the " middleman" as previously had been required under § 7-465- naming the employee as a party and establishing his/her legal responsibility, with the municipality acting as an indemnitor - the almost universal requirement (excepting situations where it might be claimed that conduct of a municipal entity, as an entity, was tortious) remains that there be established liability of an employee. Potential liability of a police officer, arising from negligence in the operation of a motor vehicle, does not extend, modify, repeal or enlarge the liability of a municipal employer- but for the elimination of the required separate step of establishing liability of the employee and then the derivative liability of the employer (again, the entire focus of the Spears decision), nothing of substance has changed in this aspect of tort law. If an employee were to cause harm to a third party by virtue of engaging in " activities that private citizens perform, for example, cook, clean, shovel snow, etc.," then unless the activity were entitled to protection, itself, there would be individual liability of the employee (common law and § 52-557n) and the liability of the municipal employer would exist under § 52-557n (as well as the now-all-but-dormant § 7-465).
Under § 7-465, it had been established (early on) that separate counts were required, one directed to the employee and one directed to the municipal employer as indemnitor; see, Martyn v. Donlin, 148 Conn. 27, 32 (1961); and the procedural requirement persisted up to the time of enactment of § 52-557n; see, Wu v. Fairfield, 204 Conn. 435, 438 (1987). See, also, preceding footnote.
From a claimant’s perspective, in addition to removing the requirement that the individual employee be sued there is no statutory notice requirement under § 52-557n, whereas § 7-465 and § 7-101a and § 7-308 do have statutory notice requirements.
The court will now turn its attention to Parker, quoted at length by the defendant. The decision includes a discussion of the distinction between ministerial and discretionary functions. As discussed earlier, to the extent that the defendant relies on discretionary actions in operating a motor vehicle, and especially in an emergency response scenario, the threshold question is whether that type of discretion is an attribute of the governmental function being performed, or is so commonplace as to be independent of governmental function and therefore not entitled to presumptive treatment as entitled to governmental immunity.
Somewhat related, in discussing § 14-283, the Parker court stated (at *4) that " There is a split of authority among Superior Court decisions as to whether the duties to drive safely [pursuant] to § 14-283 are discretionary or ministerial." Again, this is something of a false dichotomy. Although some courts may have presented the issue in that fashion, this court believes that the question is whether a police officer driving a motor vehicle- in all or just emergency situations- is exercising a governmental function implicating governmental decision-making. Although the end result may be the same, the court believes that it is a direct, single step process- is it a governmental-type act for which discretion presumptively entitles the actor to immunity- rather than the indirect or two-step process of assuming that the conduct is governmental and then seeking a basis for treating it as ministerial.
As suggested above, a potentially essential element of the analysis- especially if § 14-283 is part of the process- is determining whether there is governmental immunity in non-emergency situations. Once that is answered, the question then becomes the extent, if any, to which § 14-283 changes the analysis or outcome.
Viewed in isolation, the court must reject any suggestion that non-emergency operation of a motor vehicle, by a police officer, is a governmental function. Such operation includes the concept of routine patrol, immediately raising the question of why obeying common law and statutory rules of the road is (should be treated as) a governmental discretionary function in that context. Further, non-emergency operation of a patrol car also involves going to and from police headquarters, driving to a witness’ home for an interview, and even driving to lunch. Under workers’ compensation, and by extension for other purposes, driving to and from home is considered acting in the scope of employment; would such commuting also be considered a governmental function? Does it depend on whether the officer was driving an official vehicle or his/her own personal vehicle? Does it include driving to, from or during so-called extra duty or side jobs, especially if assigned or coordinated through the police department? See, e.g., Maio v. City of New Haven, 326 Conn. 708, 167 A.3d 338 (2017), discussing relationship between scope of employment under workers’ compensation and other aspects of police activities, including extra duty assignments. To the extent that for purposes of workers’ compensation, an officer driving to or from his home is deemed in the scope of employment (General Statutes § 31-275(1)(A)(i)), is that operation of a motor vehicle to be deemed a governmental function?
In Fiano, supra, the defendant operator of a motor vehicle involved in an accident had been driving his own personal vehicle, but the claim was made that the volunteer fire department and the town were legally responsible. As noted above, the outcome was determined by the absence of a basis for imposition of ordinary common-law vicarious liability.
In Parker, the court sought to utilize § 14-283a as reinforcing its interpretation of applicability of § 14-283: " If the duties to drive safely stated in § 14-283 were beyond discretion, it would have been unnecessary for the legislature, in the case of police officers, to have independent authorities define how and when police pursuits should be conducted" (*6). Rather than reinforcing the conclusion that operation of a motor vehicle on an emergency call basis is discretionary in a governmental immunity sense, the court believes that it may undermine that analysis. Section 14-283a is a statutory/legislative attempt to limit or put constraints on the exercise of what essentially indisputably would be a discretionary function- decisions as to when and how the police should engage a suspect in pursuit. Thus, whereas § 14-283a is intended to limit a governmental function- inherently governmental, since generally speaking, only the police, in performance of law enforcement functions, engage in pursuit of other vehicles (suspects) - § 14-283 excuses police officers from presumptively applicable rules of the road-type statutes, rules that are applicable to everyone. Simplistically, § 14-283 qualifiedly authorizes otherwise prohibited conduct, whereas § 14-283a attempts to limit otherwise allowed conduct (discretion as to when to engage in pursuit).
But see, Edgerton v. Town of Clinton, 311 Conn. 217, 86 A.3d 437 (2014), where a volunteer firefighter, who had been involved in a minor motor vehicle accident, engaged in what was tantamount to a pursuit as the operator of the " other" vehicle fled the scene, complete with use of " [b [lue courtesy lights, which are similar to police lights" (311 Conn. 221-22), and ongoing communication with the E-911 dispatch center. Although not " pursuit" within the meaning of § 14-283a, it is a rare exception to the near-universality of pursuit being undertaken almost exclusively as a law enforcement function of the police. (The conduct of the E-911 dispatcher was a central aspect of the claimed liability of the town.)
From a functional perspective (and as already noted), § 14-283 is primarily concerned with the extent to which rules applicable to everyone should be applicable to the conduct of emergency responders, excusing them from possible claims of negligence per se should a statute be disregarded in the operation of a motor vehicle on an emergency call. While § 14-283a is concerned about controlling scenarios involving officers relating to pursuit (a type of emergency response), the statute is probably as much- if not more so- concerned about the conduct of the operator of the fleeing vehicle. In a pursuit scenario, § 14-283 focuses on the conduct of the emergency responder during the course of pursuit (authorizing disregard of rules of the road), but the risk of panicky conduct by the pursued operator creates risks not only to the pursued operator (and occupants of his/her vehicle), but also to innocent third parties who may be the victims of the out-of-control conduct of pursued operators, and the consequences of the conduct of the pursued driver appears to be of greater concern. Tetro v. Town of Stratford, 189 Conn. 601, 458 A.2d 5 (1983) was a prime example of that problem. (Although the appellate decision was issued after § 14-283a had been enacted, the statute became law shortly after the events in Tetro had occurred.) It was precisely because such a scenario often does not involve actual involvement of the pursuing vehicle in the resulting accident that the focus in Tetro was on causation- can pursuit of a suspect, leading to a collision between the suspect and a third party, be treated as a legal cause of the injuries sustained by the third party? The answer, in Tetro, was yes.
Unfortunately, these incidents continue to occur. The court’s recollection is that decades ago, and possibly part of the movement towards passage of what is now § 14-283a, there had been two highly publicized chases, one involving East Haven-New Haven and one involving Trumbull-Bridgeport. In an effort to find any references to those chase-based accidents, the court did an online search, and found similar incidents of far more recent vintage. A chase in Bridgeport, last year, ended in a fatality (see, e.g., https://www.ctpost.com/local/article/Suspect-in-custody-after-fatal-car-chase-in-11748204.php), and a more recent chase (February of 2018) also ended in a crash in Bridgeport (without fatalities), https://patch.com/connecticut/bridgeport/high-speed-chase-ends-crash-bridgeport-state-police.
The anecdotal information set forth in footnote 16 is not entitled to any weight in determining the intended scope of the statute. The legislative history, however, is entitled to formal consideration. The court has reviewed the on-line legislative history of § 14-283a as available through the State Library’s website (http://ctstatelibrary.org/wp-content/lh-bills/1978_PA372_HB5874.pdf). The history reflects limited references to accidents involving a pursuing law enforcement official, but several references to accidents seemingly involving a pursued vehicle with or without an innocent (non-involved) third party. Thus, Representative Emmons, on the first page of the on-line history (Joint Standing Committing Hearings, Judiciary, Part 4, 1978 at page 1382 (March 27, 1978)), recites her informal research, identifying several high-speed pursuits in her area of the state, and mentioning specific accidents that did not appear to involve pursuing vehicles. More generally, Senator Hudson (1978 Special Session, volume 21 Part 8 at page 2949 (May 1, 1978)) observed that " [m]any of the chases involved young people who are frightened when they see a police car and speed to avoid arrest and therefore endanger themselves and innocent people who might be on the road at the time." While not ignoring the risk of accidents involving the pursuing vehicles, there was much emphasis on and recognition of the risks to non-law-enforcement operators and others on or near a road.
Focusing specifically on its application to police officers, perhaps the chief concern behind enactment of § 14-283a was the not-uncommon situation where a high speed pursuit was the result of a minor traffic stop or accident, a situation that might not justify the risks attendant to a high-speed chase through an urban environment. (Tetro involved a chase resulting from the subjective opinion of an officer that the person in the driver’s seat appeared to be too young to have a license. (" They thought the Chevrolet might have been stolen because the boys in the car looked too young to have valid drivers’ licenses," 189 Conn. 602-03 (and see, also, associated footnote 2).)) In addition to general comments in that regard, a hand-written letter is part of the Joint Standing Committee record (at pages 1549-50), reciting an incident in which the writer’s vehicle was struck, broadside, by the pursued vehicle, with pursuit, alleged to have involved speeds up to 100 mph, due to the operator having run a red traffic signal. While the focus may have been on the lack of teeth in the laws applicable to the fleeing operator, it was a concrete example of the concern elsewhere in the record concerning risky and uncontrolled responses to minor violations. For purposes of this case, the issue was less of a concern about how individual officers responded in the course of a pursuit, but rather whether there should be a pursuit, and the broader control of a pursuit once undertaken, including the number of vehicles and whether the pursuit should be terminated at some point. (Speed might be an area of overlap.)
Indeed, coming full circle, Tetro, although pre-dating enactment of § 52-557n (and the events in Tetro pre-dating enactment of § 14-283a), contains language discussing the proper scope of § 14-283 in the realm of tort liability of police officers:
The defendants argue, however, that these common-law principles are, for emergency vehicles like police cars, superseded by the provisions of General Statutes § 14-283. That statute defines the term " emergency vehicle" to include a " local police vehicle ... in the pursuit of fleeing law violators," and the plaintiff has not challenged its general applicability to this case. The statute, in subsection (b), permits the operator of an emergency vehicle, in disregard of traffic laws, inter alia, to " proceed past any red light or stop signal or stop sign ... exceed the posted speed limits ... and ... disregard ... regulations governing direction of movement or turning in specific directions." The subsection limits even this authority, however, by providing that the operator, in passing through traffic lights, must slow down " to the extent necessary for the safe operation of such [emergency] vehicle" and in exceeding normal speed limits, must " not endanger life or property by so doing." Furthermore, the statute expressly states, in subsection (d), that it " shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property." Read as a whole, the defendants contend, this statute limits their scope of duty to incidents involving collisions with the emergency vehicle itself.
We see no reason to read the words " safety of all persons and property" so restrictively. Other courts, construing similar statutory language, have explained that emergency vehicle legislation provides only limited shelter from liability for negligence. The effect of the statute is merely to displace the conclusive presumption of negligence that ordinarily arises from the violation of traffic rules. The statute does not relieve operators of emergency vehicles from their general duty to exercise due care for the safety of others. Brummett v. County of Sacramento, 21 Cal.3d 880, 886-87, 148 Cal.Rptr. 361, 582 P.2d 952 (1978); City of Sacramento v. Superior Court of the State of California, supra ; Mason v. Bitton, supra . We agree with this interpretation and conclude that § 14-283 provides no special zone of limited liability once the defendants’ negligence has been established. 189 Conn. 607-10, 458 A.2d 9-10 (1983).
The second quoted paragraph reinforces the analysis of § 14-283 as articulated by this court above, and would be superfluous (if not self-contradictory) if there were no possibility of liability of a police officer whose conduct came within the scope of § 14-283. " We agree with this interpretation and conclude that § 14-283 provides no special zone of limited liability once the defendants’ negligence has been established."
This not only precludes any claim that § 14-283 imparts a protected discretionary quality on conduct within the scope of the statute, but also appears to preclude any claim that there is discretionary immunity for a police officer in the operation of a motor vehicle without regard to emergency-call status. Section 14-283a does not change this analysis, especially in a non-pursuit situation such as this- it focuses on policies to be followed in an area of law enforcement where prior reliance on discretion and a lack of standards had proved to be less than satisfactory or acceptable. (For the first 20 years, § 14-283a required each municipality to adopt a local policy; when that also proved to be an inadequate solution, the statute was amended to require a state-wide policy, with detailed requirements.) The existence of § 14-283a does not address the existence or absence of immunity in emergency response situations, especially from a rules-of-the-road perspective; at most, it might present an overlay applicable to pursuit situations. Again, the statutes move in opposite directions, with § 14-283 modestly loosening constraints (eliminating concern about negligence per se and rigid adherence to rules of the road) whereas § 14-283a seeks to limit police conduct by mandating policies relating to police pursuit. Each statute can exist and operate with or without the other.
The remainder of the Parker decision is devoted to the claimed exception to immunity predicated on status as an identifiable victim in imminent risk of harm. The court notes that the burden is on the defendant, for purposes of summary judgment, to negate status as an identifiable victim (even though the plaintiff does not seem to assert such status in an affirmative sense). As identified earlier, a party seeking summary judgment in reliance upon a special defense has the burden of negating any asserted or likely-to-be-asserted exceptions to that defense. Williams v. Housing Authority, supra ; TD Bank, N.A., supra .
There is a " wheels within wheels" quality to this point, which will not be pursued further. The history of Haynes, supra, includes appellate decisions addressing the pleading requirement relating to avoidance of immunity; see, Haynes v. City of Middletown, 122 Conn.App. 72 (2010); reversed, 306 Conn. 471 (2012). Although this case is scheduled for imminent trial, such that the defendant presumptively should be allowed to rely on the absence of any claimed avoidance of immunity based on the identifiable victim exception (similar but distinct from the identifiable class of victims exception discussed in Haynes ), Haynes proceeded to address the issue of the identifiable class of victims exception despite the absence of any affirmative pleading to that effect. In this case, the plaintiff has not argued identifiable victim exception as a basis for avoidance of immunity in responding to summary judgment, such that the court will limit its attention to exceptions to immunity by simply noting it as a potential issue, but not dispositive in this context.
An appropriate, limiting nuance should be noted. The defendant is claiming that it is entitled to summary judgment, such that the motion must be denied if the defendant as the moving party does not carry its burden of proof. That does not require the non-moving party to establish, in an affirmative sense, the opposite proposition; all that is required is that the court determine that there is a material issue of fact, or that the undisputed facts as presented to the court do not establish the moving party’s right to judgment, as a matter of law. In other words, the court does not need to conclude, in absolute terms, that there is no immunity; it is sufficient to conclude that the defendant has not established the presumptive existence of governmental immunity, as a matter of law.
The court has concluded that the defendant has not established that the operator of the vehicle involved in the accident was engaged in conduct that is protected by the governmental immunity afforded to discretionary acts performed as part of " an official function of the authority expressly or impliedly granted by law." Section 14-283 does not immunize negligent driving- it exempts violations of statutory rules of the road from any claim of negligence per se, without disturbing the ability of an injured party to claim that the driver was responsible based on common-law principles of negligence. (It may be a matter of perspective or semantics, but the court prefers this approach to the more typical identification of operation of a motor vehicle as ministerial.) Therefore, the court denies the motion for summary judgment to the extent that it is based on the proposition that the defendant’s operator was entitled to governmental immunity as a matter of law.
II. Evidentiary Insufficiency
In the alternative, the defendant contends that the facts- as may be observed in a video clip from a nearby surveillance camera (supplemented by the operator’s affidavit)- demonstrate that the defendant is entitled to summary judgment. The claim is that no rational jury could conclude that the plaintiff was less than 51% responsible for his own injuries.
*16 Although seemingly rarely invoked together, the applicable standards are well-established. Under the rules of comparative negligence as established by General Statutes § 52-572h(b), a plaintiff can recover damages only if his negligence does not exceed the combined negligence of all other parties (including settled or released parties). In a pure two-party situation, where there are only two possible actors involved, a plaintiff would recover as long as his negligence did not exceed 50%.
In situations involving vicarious liability, such as principal-agent relationships, absent a claim that there is some level of differentiation in legal responsibility, the court would look to the liability of the actor without regard to the passive and presumptively identical legal responsibility of the principal.
For purposes of summary judgment, a useful reformulation of the benchmark is by way of reference to an alternate standard: " The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts." McCarroll v. Town of East Haven, 180 Conn.App. 515, 521 (2018). In turn, the application of the directed verdict standard to a motor vehicle accident (also involving a police officer on an emergency call) was reviewed, in great detail, in Burton v. City of Stamford, supra, 115 Conn.App. 66-88.
In stating that no rational juror could conclude that the plaintiff was not at least 51% negligent, the court interprets that statement in a somewhat rhetorical fashion. The court cannot make a determination of the precise percentages of responsibility in connection with a motion for summary judgment- issue resolution is not permissible in connection with summary judgment.
Summary judgment is, in a sense, an all-or-nothing proposition. If the defendant could prove that there is no material issue of fact but that the defendant operator was not responsible at all, that could be a proper basis for summary judgment in favor of the defendant. An alternative perspective would be that if the defendant could establish that the plaintiff was solely responsible for his own injuries, then again, summary judgment in favor of the defendant might be appropriate. The problem arises when intermediate levels of responsibility are being claimed- determining an intermediate level of responsibility necessarily involves weighing evidence which is improper in this procedural context.
To be sure, § 52-572h provides a statutory demarcation at 50%, but it is not clear how, consistent with the court’s obligation to view the evidence in a manner most favorable to the nonmoving party, the court can assign any specific percentage, or any range of percentages, in the context of summary judgment. The court agrees that the video of the incident could be highly persuasive to a factfinder as to the existence of negligence on the part of the plaintiff, and might be suggestive of the absence of negligence on the part of the defendant’s operator, but the reasonableness of the conduct of each of the actors must be measured in the context of all relevant evidence- and for summary judgment, the focus is on the relevant evidence supporting the non-moving party’s version of events. More importantly, in ruling on summary judgment, the court is not acting as a factfinder.
In his affidavit, the plaintiff states that there were a number of pedestrians at that time, due to bars and restaurants in the area closing at 2:00 A.M. The area was well lit. He states that he was already well into the street when he first saw the approach of the vehicle that struck him. He saw the blue lights of the approaching vehicle, and started running to avoid being hit, but the vehicle was going too fast for him to avoid being struck. He did not observe or hear anything indicating evasive action such as application of brakes or any attempt to swerve to avoid a collision. Subjectively, he believes that the vehicle was being driven too fast. When he gave a statement to the police at the hospital (admitting probable fault), he had been heavily medicated due to the seriousness of the injuries he sustained.
The court does not wish to second-guess the characterization of a " shots fired" emergency dispatch as being a high priority matter. (Indeed, going back to the first part of this decision, that appears to be a governmental-type discretionary decision/policy for which the court presumptively is required to avoid any second-guessing.) The court must note, however, that the video indicates that there had been a number of other emergency vehicles that had responded, prior to the arrival of the operator of the vehicle that struck the plaintiff. The defendant also has stated that the video showed a location very close to the scene of the call, such that vehicles shown in the video were almost at the designated location for response. The court also must note that the arrival of police, en masse, after a " shots fired" incident, reasonably could lead to people scattering if not fleeing the scene for various reasons, including avoidance of the police and avoidance of a dangerous situation (of unknown severity/risk- shots being fired). Finally, of unknown significance, the plaintiff in his affidavit states that he saw the lights of the approaching vehicle but no mention is made of a siren or other audible device- § 14-283 is only applicable to a police vehicle if there is an audible device in operation. (It is not clear whether the plaintiff’s omission of reference to a siren was inadvertent or intentional.)
From personal experience (observations), the court is aware that police vehicles sometimes proceed with flashing lights but no siren; while that may be sufficient to alert nearby motorists and pedestrians in a practical sense, it does not satisfy the prerequisites for application of the protection afforded by § 14-283. In approaching a destination, there might be a perceived justification for non-use of a siren, the inverse of the observation just made- a desire to avoid warning possible suspects at the scene of the approach of the police which might prompt dispersal or flight, but flashing lights are not sufficient (or even required for police vehicles; see final clause of § 14-283(c)).
The operator of the vehicle that struck the plaintiff, in his affidavit, states that he did have his siren in operation, and that he did attempt to take evasive action. He states that he did not have sufficient opportunity to avoid striking the plaintiff, given the suddenness with which the plaintiff crossed in front of his vehicle.
Those statements simply create material issues of fact. Even if the court were to disregard the plaintiff’s attempt to undermine his statement that the accident probably was his fault (based on the contention that he had been heavily medicated at the time he made the statement), that does not eliminate the possibility of concurrent fault, with a jury issue as to how to allocate fault under § 52-572h.
The same is true with respect to the statutes that the defendant claims were violated by the plaintiff. The defendant points to the defendant’s nolo contendere plea with respect to claimed violation of General Statutes § 53-182 (reckless use of highway by a pedestrian)- which is statutorily characterized as an " infraction." A nolo plea to an infraction is not admissible; see, Connecticut Code of Evidence § 4.8A(a). Assuming that the claim were to be made that the " conviction" (not the plea) has probative value or is otherwise admissible, the statute is not directed to specific conduct but a general characterization of conduct as negligent or reckless - which therefore has limited value in evaluating the specific conduct of the plaintiff. (But see, Town of Groton v. United Steelworkers of America, 254 Conn. 35, 51, 757 A.2d 501, 511 (2000) (reversing prior ruling, 252 Conn. 508, after reconsideration), wherein the court stated: " As these authorities state, under our law a prior plea of nolo contendere and a conviction based thereon may not be admitted into evidence in a subsequent civil action or administrative proceeding to establish either an admission of guilt or the fact of criminal conduct" (but recognizing after reconsideration what amounts to an exception in labor arbitration)).
As to recklessness in a case involving comparative negligence, see General Statutes § 52-572h(o).
The defendant also contends that much of the conduct of the plaintiff constitutes negligence per se under various statutes relating to use of a highway by pedestrians, as set forth in Chapter 249 of the General Statutes, and specifically § 14-300 et seq. The defendant may well be able to prove that the conduct of the plaintiff violated one or more of those statutes as claimed in its supporting memorandum, but General Statutes § 14-300(g) indicates that most such violations cannot be characterized as negligence per se. Again, even if the court were to view the conduct of the plaintiff as negligent or constituting negligence per se as claimed by the defendant, that would leave unresolved the extent of negligence, if any, of the defendant’s operator. The court cannot weigh and evaluate evidence; only if the evidence is sufficiently unambiguous and pointing in favor of the defendant- without any material issue of fact- could the court grant summary judgment as to a claim of negligence. As often noted, claims involving negligence are generally ill suited for resolution by way of summary judgment, recognizing that the burden is less daunting when there are legal issues such as immunity that might be less fact-dependent. Massad v. Eastern Connecticut Cable Television, Inc., 70 Conn.App. 635, 637, 801 A.2d 813, 816 (2002).
As reflected by Burton, supra, a directed verdict or summary judgment can be granted in a motor vehicle case where liability is contested only if, after a scrupulous review of the evidence, there is no evidence that supports the plaintiff’s position, sufficient to create a material issue of fact. The defendant has identified potentially-dispositive " problems" with the plaintiff’s case, but the court cannot evaluate " potentially-dispositive" weaknesses; it can only rule on necessarily-fatal weaknesses. However persuasive the video of the accident ultimately may prove to be to a factfinder, the court cannot conclude that the defendant has met the applicable standard here; the court cannot ignore the existence of evidence that could support a result in favor of the plaintiff.
" A judge’s function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment." (Internal quotation marks and citation, omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 631 (2012).
Conclusion
In deciding a motion for summary judgment, the court is not called upon to assess the relative merits of either side. The issue is not whether the plaintiff has a good case, a weak case, or an almost-certain-loser of a case. It is only if there is but one possible outcome, as a matter of law, based on the record presented to the court, can the court grant summary judgment.
The court recognizes that appellate courts usually address only the issues presented by the parties, such that the absence of any appellate decisions on the claimed governmental immunity arising from the operation of a motor vehicle by a police officer on an emergency call does not necessarily mean that the immunity does not exist. The court notes, however, the history of appellate cases involving police officers and others responding to emergency calls, with resulting motor vehicle accidents, with no suggestion that there is any generally-applicable governmental immunity based on the discretionary quality of the operation of a motor vehicle- not even a footnote identifying it as a possible issue, not properly presented. Section 14-283 does not create any such immunity (explicitly negated in Tetro ), and if such immunity exists without regard to that statute, then the statute itself would seem to be pointless. Why enact (and repeatedly amend) a statute that excuses emergency responders from compliance with certain statutes, coupled with references to the need to act " with due regard for the safety of all persons and property," if immunity already existed for the claimed discretionary function of operating the vehicle (either generally or under emergency conditions)? Conversely, if the statute had been intended to create an immunity, notwithstanding the actual language in the statute and the judicial interpretation of the statute as discussed above (see, especially, language quoted from Tetro ), is the limitation " with due regard for the safety of all persons and property," to be treated as surplusage- a legislative equivalent of a parental reminder to " be careful" ?
In driving a police vehicle, even in connection with an emergency situation, an officer may be exercising discretion and judgment, but the court cannot accept the implicit contention that that type of judgment comes within the scope of the applicable statutory language- " the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law," especially where the General Assembly has conditioned the authority to ignore statutory rules of the road by requiring " due regard for the safety of all persons and property" (essentially the standard for all drivers).
With respect to the video and other evidence claimed to establish that the plaintiff was more than 50% responsible for the accident, the defendant clearly is asking the court to weigh the evidence and disregard the obligation to view the evidence in a manner most favorable to the non-moving party. Assuming that the video and the plaintiff’s admission as to his own probable fault were to be the appropriate starting point (without possible consideration by the factfinder of the reasons why the plaintiff might have been running from the shots-fired scene to which the police had been summoned), there is an issue as to the level of fault (if any) of the officer operating the vehicle. Harkening back to the directed verdict standard, if a jury were to determine that each side had been 50% responsible for this accident, it is not at all clear that the court would be compelled to set aside the verdict and/or render judgment notwithstanding the verdict in favor of the defendant, based on a perceived inadequacy of the plaintiff’s case as a matter of law (assuming that the record at that time was equivalent to the record presented to the court in connection with this motion). The defendant’s operator and the plaintiff have given versions of events that differ enough so as to allow a jury to find for the defendant or for the plaintiff; under Burton and the cases cited therein, conflicting stories as to the defendant’s operator’s ability to see the plaintiff in sufficient time to avoid him and the reasonableness of the speed under the circumstances (approaching destination, possible need for concern about people fleeing, etc.), require the court to treat the matter as a factual dispute, not one that can be resolved by summary judgment.
For all of these reasons, the motion for summary judgment must be denied.
In East Haven, a non-fatal pursuit accident occurred within the past 2 weeks (https://www.nhregister.com/news/article/Stolen-car-chase-ends-in-East-Haven-crash-2-12853900.php) and a fatal crash occurred in Branford, after the East Haven police had terminated pursuit, less than two years ago (http://www.courant.com/news/connecticut/hc-east-haven-tyler-carey-20161130-story.html). In terms of currency/immediacy, on the morning of May 2, 2018, as this decision was being finalized, the Hartford Courant was carrying a story about a police pursuit of a stolen car in Fairfield, resulting in a crash involving only the pursued vehicle; http://www.courant.com/breaking-news/hc-br-fairfield-juvenile-car-thieves-arrests-20180501-story.html, and another story about a " low speed" pursuit in East Hartford where a car ended up in a river, requiring rescue of the driver and her two young children, http://www.courant.com/breaking-news/hc-br-east-hartford-slow-speed-chase-crash-20180502-story.html . Although this is not intended to be a comprehensive or statistically significant (or representative) search, in none of these incidents does it appear that the pursing vehicle was involved in the eventual crash. As a result, the manner in which the pursuing vehicle was driven (in a rules of the road sense) had no apparent bearing on the resulting accident.