Rawling v. City of New Haven

• Decision Date: 26 January 1988
• Docket Number: No. 13251,13251
• Citation: 537 A.2d 439,206 Conn. 100
• Court: Connecticut Supreme Court
• Parties: Richard E. RAWLING, Jr. v. CITY OF NEW HAVEN.

Page 439

537 A.2d 439

206 Conn. 100

Richard E. RAWLING, Jr. v. CITY OF NEW HAVEN.

No. 13251.

Supreme Court of Connecticut.

Argued Dec. 3, 1987.

Decided Jan. 26, 1988.

Carolyn W. Kone, Asst. Corp. Counsel, with whom was Carolyn Spencer, New Haven, for the appellant-appellee (defendant).

Frank B. Velardi, Jr., New Haven, for the appellee-appellant (plaintiff).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

PETERS, Chief Justice.

The sole issue in this case is whether the trial court erred in granting summary judgment in favor of a police officer who sought indemnity for expenses incurred in defending against criminal charges for sexual assault that were ultimately dismissed. The plaintiff, Richard E. Rawling, Jr., brought this action for indemnification against the defendant city of New Haven under General Statutes § 53-39a. ¹ The defendant has appealed from the entry of summary judgment, claiming that its opposing affidavits raise a genuine issue of material fact as to whether the plaintiff was "in the course of his duty" at the time of the alleged criminal offense. The plaintiff has cross appealed from the judgment of the trial court denying him interest on his timely offer of judgment. General Statutes § 52-192a. We find error on the defendant's appeal and therefore need not address the cross appeal.

The following facts are undisputed: The plaintiff was on patrol on the morning of November 18, 1983, when he received a radio dispatch to investigate a citizen complaint. The complainant, D.T., told the plaintiff that he had received harassing phone calls from A.D., and that he wished to have her arrested. At about the same time, A.D. also filed a complaint with the New Haven police, charging D.T. with the same offense. While the plaintiff conducted his investigation at the D.T. residence, the police department dispatched another officer to A.D.'s home to investigate her complaint. That officer was, however, recalled at the plaintiff's initiative. After speaking with D.T., the plaintiff went to A.D.'s home and, unaccompanied by a fellow officer, spoke with A.D., who was home alone. That evening, the plaintiff was arrested pursuant to a warrant issued on the basis of sworn statements by A.D. The plaintiff was charged with committing the crimes of sexual assault in the third degree in violation of General Statutes § 53a-72a and unlawful restraint in the second degree in violation of General Statutes § 53a-96. Roughly one year later, the criminal charges against the plaintiff, to which he had pleaded not guilty, were dismissed.

Following the dismissal, the plaintiff brought the present action against the city of New Haven for: (1) indemnification under § 53-39a for economic loss sustained by him as a result of the prosecution; and (2) interest on the judgment under § 52-192a. In support of his motion for summary judgment, the plaintiff submitted an affidavit, which essentially recounted the undisputed facts described above. In addition, however, the affidavit averred that the plaintiff, after telling A.D. that she could be arrested if the harassing phone calls continued, "immediately left" A.D.'s home.

In opposition to the motion, the defendant submitted two affidavits designed to raise a genuine issue of material fact. The principal affidavit was that of A.D., who maintained that during the plaintiff's visit to the A.D. home he had sexually assaulted her. In particular, the affiant stated that the plaintiff had asked her to change into "sexy bras, swimsuits or underwear" so that he could see if she was bruised, grabbed her and while forcing her into his lap touched her breast, asked her if she would be embarrassed to dance nude in front of him, forced her onto a bed and asked lewd questions about her breasts, prevented her from leaving the bedroom, and repeatedly asked her if she wanted to earn $300. Before leaving her home, A.D. claimed the plaintiff warned her not to report what had happened. Finally, the affiant stated that when the criminal case against the plaintiff had been reached for trial she was nine months pregnant and therefore did not wish to testify.

The second affidavit, that of H.R. Brereton of the New Haven police department, was offered primarily to substantiate the allegations of A.D. To this end, Brereton, a sergeant who had initially investigated the sexual assault complaint of A.D. against the plaintiff, disclosed three central facts that, according to the defendant, helped to raise a genuine issue of material fact. First, the affiant stated that the plaintiff, prior to entering the A.D. home, told his dispatcher to cancel the other squad car that had been assigned to investigate A.D.'s complaint of harassing phone calls. According to a transcription appended as an exhibit to the affidavit, the plaintiff said: "Yeh, I'm gonna speak with her, I'll solve it all." Second, the transcription showed that the plaintiff had not clocked back into service from his squad car until forty-two minutes after he had arrived at the A.D. home, contrary to his statement that "[the investigation is] going to be settled in about a minute." Third, Brereton's affidavit stated that the plaintiff had violated a department order by conducting a solo interview with a female.

On the basis of the representations contained in these two affidavits, the defendant urged the trial court to deny the motion for summary judgment because there existed a genuine dispute as to whether the plaintiff was "in the course of his duty" within the meaning of § 53-39a throughout his appearance at the A.D. home. The trial court, relying on its findings that the criminal charges against the plaintiff had been dismissed and that the criminal acts were allegedly committed during the course of investigating a complaint, granted the plaintiff's motion for summary judgment.

On appeal, the defendant claims that the trial court erroneously granted summary judgment. In reviewing this claim, we are bound by familiar rules. Summary judgment is appropriate when "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." Practice Book § 384; Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983). The party seeking summary judgment has the burden of showing the nonexistence of any genuinely disputed material facts. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). A party opposing summary judgment must substantiate its adverse claim by presenting evidence that demonstrates the existence of a genuine issue of material fact. Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). The facts presented must be viewed in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).

In our determination of whether the plaintiff demonstrated his entitlement to judgment as a matter of law, we must begin with the text of § 53-39a. That statute affords a police officer a right of indemnity for economic loss incurred for a prosecution "for a crime allegedly committed by such officer in the course of his duty as such" if "the charge is dismissed or the officer found not guilty." In the present case, it is undisputed that the plaintiff has satisfied his burden of proving that the charge was dismissed. The issue before us is what meaning to attribute to "crime allegedly committed ... in the course of ... duty."

We approach our construction of the statutory language in § 53-39a in accordance with well established principles. Our principal objective is to ascertain the apparent intent of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986). "In our pursuit of that objective, we look to the language of the statute itself, its legislative history, and previous judicial construction. State v. Kozlowski, [199 Conn. 667, 673-74, 509 A.2d 20 (1986) ]; DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985)." Id. Statutes that abrogate or modify governmental immunity are to be strictly construed. Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987); Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983). 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." Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975); see also Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951).

With respect to the proper construction of § 53-39a, we are guided by our decision in Link v. Shelton, 186 Conn. 623, 627-28, 443 A.2d 902 (1982). The plaintiff in Link sought indemnity after his acquittal on a charge of breach of the peace. From the summary judgment in favor of the plaintiff, the defendant city of Shelton appealed, claiming that the plaintiff had deviated from the course of his duty by reporting late to work, throwing temper tantrums and creating a disturbance in the police station waiting room. We held that these alleged facts, if true, would not suffice to preclude indemnity because, under analogous provisions of workers' compensation law, such assaultive conduct is considered to be in the course of employment " 'either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work.' " Id., at 628-29, 443 A.2d 902, quoting 1 A. Larson, Workmen's Compensation (1978) § 11.00. Although the holding in Link v. Shelton was that the claimant therein was entitled to indemnity, the underlying rule of that case, and its...