Shore v. Town of Stonington

• Decision Date: 18 May 1982
• Citation: 444 A.2d 1379,187 Conn. 147
• Court: Connecticut Supreme Court
• Parties: Robert SHORE, Administrator (ESTATE of Sherry SHORE), et al. v. TOWN OF STONINGTON et al.

Page 1379

444 A.2d 1379

187 Conn. 147

Robert SHORE, Administrator (ESTATE of Sherry SHORE), et al. v. TOWN OF STONINGTON et al.

Supreme Court of Connecticut.

Argued Feb. 5, 1982.

Decided May 18, 1982.

James A. Wade, Hartford, with whom, on the brief, was Charles L. Howard, Hartford, for appellants (plaintiffs).

Thomas B. Wilson, Norwich, with whom were John A. Collins, Huntington, and, on the brief, Dale P. Faulkner, Groton, for appellee (named defendant).

Before PETERS, HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

PARSKEY, Associate Justice.

The issue presented in this appeal is whether the plaintiff, whose decedent was killed by a drunk driver who had been stopped but not arrested by a town police officer, has a cause of action in negligence against the officer and the town ¹ for failure to enforce §§ 14-222 and 14-227a of the Connecticut General Statutes. ² The trial court granted the defendant town's motion for summary judgment, finding that the police officer owed no specific duty to the plaintiff's decedent to enforce the motor vehicle laws of the state. ³ We affirm.

From the pleadings and the materials submitted in support of the motion for summary judgment the court set forth in its memorandum of decision the following facts which are unchallenged in this appeal: On January 14, 1980 at approximately 10:40 p.m., Lieutenant Edward Sylvia, a police officer of the town of Stonington, was engaged in the performance of his duties as a shift supervisor. As Sylvia proceeded east on Route One in Stonington, he observed a green Pontiac automobile on the same highway heading in a westerly direction at a fast rate of speed. Sylvia turned his cruiser around and proceeded to follow the Pontiac. He observed the vehicle cross the center line of the highway a few times and then pull into the parking lot of the defendant Veterans of Foreign Wars, Harley P. Chase Post 1265 (hereinafter V.F.W.).

Sylvia followed the vehicle into the lot, got out of his cruiser, and approached the driver, later identified as Mark Cugini. When the officer asked Cugini where he was going in such a hurry, Cugini replied that he was there to pick up his girlfriend at the V.F.W. Sylvia informed him that if he wanted to keep his driver's license, he had better slow down and should let his girlfriend drive. The officer departed for other duties. Cugini entered the V.F.W. The evidence concerning his condition of sobriety as he entered the V.F.W., considered in the light most favorable to the plaintiff, could reasonably lead to a conclusion that he was under the influence of intoxicating liquor or drugs. Cugini did not drink at the V.F.W. After a short conversation with one of its patrons, he left and drove away in the green Pontiac.

Subsequently that evening at about 11:30 p.m., Cugini, driving along Route 78 in Westerly, Rhode Island at a high rate of speed, struck a vehicle being operated by the plaintiff's decedent, Sherry Shore. Mrs. Shore died from the injuries suffered as a result of the collision.

"Negligence is a breach of duty." Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292 (1952). It is important to distinguish between the existence of a duty and the violation of that duty. The plaintiff argues that summary judgment is inappropriate in this area because there existed a genuine dispute as to the material facts relating to the extent of Sylvia's duty to the plaintiff's decedent. The law does not recognize a "duty in the air." See Pollock, Torts (13th Ed.) 468; Winfield, "Duty in Tortious Negligence," 34 Colum.L.Rev. 41, 42 n.8 (1934). To sustain a cause of action, the court must determine whether the defendant owed a duty to the plaintiff's decedent; Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); and the applicable standard of care. Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 482, 356 A.2d 117 (1975). The existence of a duty is a question of law. Nolan v. The New York, New Haven & Hartford Railroad Co., 53 Conn. 461, 471, 4 A. 106 (1885); Winfield, supra, 43. Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand. See Green, "The Duty Problem in Negligence Cases," 28 Colum.L.Rev. 1014, 1029-30 (1928).

We cannot agree with the plaintiff that the trier of fact must resolve the parties' dispute over the existence of the duty to the plaintiff's decedent. We turn to the question of whether the trial court correctly concluded that Sylvia's duty was public in nature and he owed no specific duty to Mrs. Shore to arrest Cugini for violation of §§ 14-222 and 14-227a of the General Statutes.

The rule of official responsibility applicable to this case is the following: "[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed, if at all in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it or to perform it properly, is an individual wrong, and may support an individual action for damages." Leger v. Kelley, 142 Conn. 585, 589-90, 116 A.2d 429 (1955); see also South v. Maryland, 59 U.S. (18 How.) 396, 402-403, 15 L.Ed. 433 (1855); Massengill v. Yuma County, 104 Ariz. 518, 521, 456 P.2d 376 (1969); 2 Cooley, Torts (4th Ed.) § 300; 63 Am.Jur.2d, Public Officers and Employees § 287; 65 C.J.S. Negligence § 4(8); annot., 41 A.L.R.3d 700.

The distinction between public and private duty is an expression of the many policy considerations which lead the law to determine whether interests of a particular type are entitled to protection against conduct by officials. See Reenders v. Ontario, 68 Cal.App.3d 1045, 137 Cal.Rptr. 736 (1977); Prosser, Torts (4th Ed.) § 53; Green, supra, 1034. Policy considerations have also resulted in the establishment of certain exceptions which provide that an individual cause of action may be brought against an official for breach of duty without regard to whether the duty is technically a public or private one. If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance. For example, an official may be sued in a civil action for refusing to recognize a validly cast vote; South v. Maryland, supra, 403; or for releasing from quarantine a dangerous dog before the expiration of the time period required of the official. Wright v. Brown, 167 Conn. 464, 471-72, 356 A.2d 176 (1975); see 63 Am.Jur.2d, supra, § 292. There is also authority for the proposition that where the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal. Rubinow v. San Bernardino, 169 Cal.App.2d 67, 336 P.2d 968 (1959). We have recognized the existence of such duty in situations where it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm. See Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979). Sestito involved a policeman who waited and watched a public disturbance without interfering until the plaintiff's decedent was shot. Resolving conflicting testimony on the issue of imminence of harm in favor of the plaintiff, we held that the case should then have been submitted to the jury. In the present case, however, resolving the issue of Cugini's sobriety in favor of the plaintiff does not overcome the threshold requirement for submission of the case to the jury, namely, that during his encounter with Cugini, Sylvia could have been aware that Cugini's conduct threatened an identifiable victim with imminent harm. The plaintiff's cause of action fails, therefore, for want of a ministerial or a clear and unequivocal discretionary duty.

Additionally, a statute may specifically provide for a cause of action against an official or a municipality for failure to enforce certain laws, such as those designed to prevent disturbances of the peace by riotous assemblies. See, e.g., Sestito v. Groton, supra, 523-24, 423 A.2d 165 (General Statutes § 7-108). ⁴ In this case, however, there is no analogous statute providing an action against Sylvia under these circumstances. Sylvia had authorization to enforce General Statutes §§ 14-222 and 14-227a which gave him the discretion to warn Cugini or to remove him from the road as the situation appeared to require. Such authorization is not the equivalent of General Statutes § 7-108 which specifically enjoins police officers to suppress riotous assemblies and holds the city or borough liable for all injuries suffered for failure of the officers to exercise reasonable care. A third exception to the general rule has been recognized where the complaint alleges an action involving malice, wantonness, or intent to injure, rather than negligence. Steibitz v. Mahoney, 144 Conn. 443, 448-49, 134 A.2d 71 (1957); Medeiros v. Kondo, 55 Hawaii 499, 503, 522 P.2d 1269 (1974); Neiswender v. Edinger, 59 Ohio App.2d 25, 28, 392 N.E.2d 580 (1978); Thomas v. Osborn, 38 Pa.D. & C.2d 431, 433 (1965); 63 Am.Jur.2d, supra, § 290. This exception cannot be applied in our case since the plaintiff's complaint alleges negligence only. An individual may sue in negligence if injured by an agent of an official body which has assumed the functions of a public corporation. Veach v. Phoenix, 102 Ariz. 195, 197, 427 P.2d 335 (1967). Also, if officials request aid from the public to apprehend criminals, a reciprocal duty arises to protect each person who aids them from foreseeable harm resulting from such assistance. Schuster v. New York, 5 N.Y.2d 75, 80-81, 154 N.E.2d...