Torres v. City of Norwalk

• Decision Date: 02 May 2018
• Docket Number: FSTCV166029691S
• Court: Connecticut Superior Court
• Parties: Jonathan Torres v. City of Norwalk

Jonathan Torres v. City of Norwalk

No. FSTCV166029691S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

May 2, 2018

UNPUBLISHED OPINION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.^[1] 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 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 &amp 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,...