Vilton v. Burns, No. X06-CV-00-0169481 S (CT 6/22/2004)

Decision Date22 June 2004
Docket NumberNo. X06-CV-00-0169483 S.,No. X06-CV-00-0169482 S.,No. X06-CV-00-0169481 S,X06-CV-00-0169481 S,X06-CV-00-0169482 S.,X06-CV-00-0169483 S.
CourtConnecticut Supreme Court
PartiesMitzie Vilton et al. v. Thomas Burns et al. Mulvoy-Tarlov-AcQuino Post No. 603, et al., Julia Johnson, et al., City of Norwalk, et al.


The above captioned cases have been consolidated for trial. Each asserts a claim for damages against the city of Norwalk and two of its police officers on behalf of pedestrians who were injured when a motor vehicle driven by an intoxicated driver struck them while fleeing the police. The defendants have moved for summary judgment on the grounds of governmental immunity.

Mitzie Vilton is the plaintiff on her own behalf in Vilton v. Burns and on behalf of her two children, Bianca Vilton and Christina Bryan, in Vilton v. Mulvoy-Tarlov-Acquino Post No. 603. The plaintiffs in Johnson v. City of Norwalk are Marc Grenier, executor of the estate of Julia Johnson, and Allen Johnson, the husband of Julia Johnson.

On September 5, 1998, Mitzie Vilton, Bianca Vilton, Christina Bryan and Julia Johnson were injured when a motor vehicle operated by Thomas Burns struck them while they were walking on the sidewalk of Henry Street Extension in Norwalk. A short time earlier, Burns, who was intoxicated, had been confronted by Officer Ronald Palmer and Officer David Vetare of the Norwalk Police Department because his vehicle was parked partially on the sidewalk of a nearby Street. Burns subsequently fled the scene in his motor vehicle and struck the plaintiffs while attempting to elude the police officers. The plaintiffs assert that Palmer, Vetare and the city of Norwalk are liable for negligently and recklessly allowing Burns to reenter his motor vehicle and flee, and engaging in a high speed pursuit of Burns.

The complaint of the plaintiff Mitzie Vilton asserts the following causes of action: negligence against the defendants Palmer and Vetare (first and fifth counts); recklessness against the defendants Palmer and Vetare (third, fourth, seventh and eighth counts); indemnity pursuant to General Statutes §7-465 and liability pursuant to General Statutes §52-557n(a)(1)(A) against the city of Norwalk (second and eighth counts). The plaintiff Marc Grenier asserts the following causes of action on behalf of the estate of Julia Johnson: negligence against the defendants Palmer and Vetare (first count); recklessness against the defendants Palmer and Vetare (seventh count); indemnity pursuant to General Statutes §7-465 against the city of Norwalk (fifth count); liability pursuant to General Statutes §52-557n(a)(1)(A) against the city of Norwalk (third count); violation of 42 U.S.C. §1983 against Palmer, Vetare and the city of Norwalk. The plaintiff Allen Johnson has asserted claims of loss of consortium based on each of the aforementioned causes of action.

The defendants have moved for summary judgment on each of the counts of the plaintiffs' complaints. The defendants assert that they are immune from liability for damages for the injuries suffered by the plaintiffs. Palmer and Vetare contend that they are entitled to governmental immunity for their allegedly negligent actions and that their actions do not constitute recklessness as a matter of law. The city of Norwalk maintains that it is not obligated to indemnify Palmer and Vetare pursuant to §7-465 and that it is not directly liable under §52-557n(a)(1)(A) for the actions of Palmer and Vetare. All three defendants argue that they are entitled to the entry of judgment on the claim of Grenier that they violated 42 U.S.C. §1983 because the acts complained of did not represent a governmental policy or custom and did not constitute a violation of the Due Process Clause of the Fourteenth Amendment.

The law governing the parties' motions for summary judgment is well established. "Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158 (1997).

"It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence, If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks and citations omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).


The plaintiffs assert that Palmer and Vetare are liable for damages because they negligently allowed Burns to flee and because they negligently engaged in a high risk pursuit of Burns in their police cars. Palmer and Vetare maintain that their actions are cloaked with governmental immunity because those actions involved the performance of purely governmental duties requiring the exercise of judgment or discretion. The plaintiffs respond that the officers' actions related to purely ministerial duties that must be performed in a prescribed manner for which governmental immunity does not apply. The plaintiffs also argue that, should the court determine that the defendants' actions involved the exercise of discretion, liability may still attach as the defendants' duty to act was clear and unequivocal because it was apparent that the defendants' failure to act would subject identifiable persons to imminent harm. I agree with the defendants Palmer and Vetare that they are protected by governmental immunity as a matter of law from liability for damages for their allegedly negligent failure to arrest Burns or to secure him and his vehicle and for their decision to engage in a high speed pursuit. I am not persuaded that summary judgment may enter on the plaintiffs' allegations that Palmer and Vetare negligently conducted a high speed pursuit.

"The common law doctrines that determine the tort liability of municipal employees are well established. Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). Although historically a municipality itself was generally immune from liability for its tortious acts at common law; Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984) . . . [municipal] employees faced the same personal tort liability as private individuals. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988); Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). Over the years, however, the doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. Burns v. Board of Education, supra, 645. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Id. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975)." (Internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 727 (1994).

Our Supreme Court has also recognized the "public duty doctrine" which provides immunity to municipal officers if the duty which the official authority imposes on the officer is a duty to the public, rather than a duty to the individual. Leger v. Kelley, 142 Conn. 585, 590 (1955). See also Shore v. Stonington, 187 Conn. 147, 152 (1982). "The court in Shore also went on to say: `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.' Id., 153. The Shore opinion outlined limited exceptions to the rule that officials who undertake discretionary actions are immune from civil liability. `[W]here 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.' Id. One exception is when `it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm.' Id.; see, e.g., Sestito v. Groton, supra, 528. Another exception is where `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...

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