Opinion
Nos. X06-CV-00-0169481 S, X06-CV-00-0169482 S, X06-CV-00-0169483 S
June 22, 2004
MEMORANDUM OF DECISION
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 § CT Page 9688 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).
I THE PLAINTIFFS' NEGLIGENCE CLAIMS AGAINST PALMER AND VETARE
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 assemblies. See, e.g., Sestito v. Groton, supra, 523-24 (General Statutes 7-108).' Shore v. Stonington, supra, 154. A third exception to the general rule is where the complaint alleges an action involving malice, wantonness or intent to injure, rather than negligence. Id., 155; see, e.g., Stiebitz v. Mahoney, 144 Conn. 443, 448-49, 134 A.2d 71 (1957); Medeiros v. Kondo, 55 Haw. 499, 503, 522 P.2d 1269 (1974); 63 Am.Jur.2d, Public Officers and Employees 290." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 166-67 (1988).
Turning to the precise issues of governmental immunity raised in this case, the defendants Palmer and Vetare assert that they are entitled to immunity because all the material facts show that their actions on September 5, 1998 with respect to the investigation and pursuit of Burns involved discretionary acts. The plaintiffs contend that they have submitted sufficient facts to establish that the defendants' acts were ministerial, rather than discretionary, and that the issue should be resolved by a jury.
The plaintiffs' allegations of negligence revolve around two sets of decisions by the defendants: (1) the failure to secure Burns and his vehicle and the failure to arrest him for operating a motor vehicle in violation of § 14-227a and (2) the decision to engage in pursuit of Burns and the unreasonable manner in which the pursuit was conducted. Viewed in a light most favorable to the plaintiffs, the facts, if credited by a jury, establish the following. At approximately 10:00 p.m. on September 5, 1998, Officer Palmer, while on duty, observed a red Nissan automobile parked partially on the roadway and partially on the sidewalk at the corner of South Main Street and Monroe Street in Norwalk. Palmer pulled his police cruiser some distance behind the red Nissan to investigate the situation. At this time, Thomas Burns exited a nearby store and approached the red Nissan. Shortly, thereafter, Officer Vetare arrived on the scene.
The parties vigorously dispute the distance between the red Nissan and Palmer's police car with the defendants asserting that the police car was parked immediately behind the Nissan. For purposes of addressing the defendants' motion for summary judgment, I have adopted the plaintiffs' version of the facts.
Burns admitted to being the operator of the Nissan. Palmer and Vetare observed that Burns appeared to be intoxicated. His speech was slurred, his eyes were glassy, and he had alcohol on this breath. Burns in fact was intoxicated. Palmer and Vetare questioned Burns while he was standing outside the vehicle. During the questioning, Burns was allowed by Palmer and Vetare to enter the vehicle, whose engine was running, on more than one occasion. On the last occasion, Burns sought to flee the scene. After Burns attempted to shut the driver's door, Vetare grabbed the door. Burns put the car in reverse and accelerated backwards. Vetare unsuccessfully tried to grab the keys from the ignition. Burns put the vehicle into drive, striking Vetare, and fled the scene.
Burns drove up South Main Street and turned onto Henry Street Extension. Palmer and Vetare, in separate police cruisers, activated their cruisers' overhead lights and sirens and gave chase at a high rate of speed. Burns' vehicle struck the plaintiffs as they were walking on the sidewalk on Henry Street Extension.
At the outset, the plaintiffs maintain that the issue of whether the duties owed to them by Palmer and Vetare were ministerial or discretionary is an issue of fact to be resolved by the jury. Under the facts of this case as presented by the parties, I do not agree.
"The ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court unless there are unresolved factual issues material to the applicability of the defense where resolution of those factual issues is properly left to the jury." (Internal quotation marks and citations omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107-08 (1998). Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder, it can be made by the court where it is apparent from the complaint, Colon v. City of New Haven, 60 Conn. App. 178, 181 (2000), and where there are no unresolved factual issues material to the determination, Tryon v. Town of North Branford, 58 Conn. App. 702, 708 (2000). See also Lyon v. Andrews, 211 Conn. 501 (1989), in which the court affirmed the granting of a motion to strike on the grounds that the duty owed to the plaintiffs was discretionary, rather than ministerial and Segreto v. Bristol, 71 Conn. App. 844 (2002), in which the court affirmed the entry of summary judgment on the grounds of governmental immunity finding that the alleged municipal actions were discretionary as a matter of law.
In this case, with respect to the defendants' failure to arrest and secure Burns and their decision to engage in pursuit of Burns, the plaintiffs have not made any allegations in their complaints nor proffered any material facts which establish that these acts involved the negligent performance of ministerial acts. As I conclude in parts IA and IB of this opinion, it would not be reasonable for a fact-finder to find that these actions of Palmer and Vetare constitute ministerial acts which are unprotected by governmental immunity. On the contrary, those actions were, as a matter of law, discretionary and cloaked with immunity.
A The Failure to Arrest or Secure Burns and His Vehicle
With respect to their actions in failing to arrest Burns for violation of § 14-227a or secure him and his vehicle, Palmer and Vetare assert that they are entitled to governmental immunity in accordance with our Supreme Court's decision in Shore v. Stonington, supra, 187 Conn. 147. The facts of Shore v. Stonington are instructive. A police officer of the town of Stonington observed a motor vehicle operating at a fast rate of speed and weaving over the center line of the highway. The officer followed the vehicle into the parking lot of the local VFW. The officer approached the driver, who identified himself as Mark Cugini. Cugini was under the influence of intoxicating liquor or drugs. Cugini stated that he was at the VFW to pick up his girlfriend. The officer informed Cugini that, if he wanted to keep his license, he had better slow down and he should let his girlfriend drive. The officer then departed.
After a short stay at the VFW, during which he did not imbibe, Cugini drove away in his vehicle. Approximately 50 minutes later, Cugini, driving at a high rate of speed, caused his vehicle to strike a vehicle driven by the plaintiff's decedent, Sherry Shore. Shore died of injuries suffered as a result of the collision.
The Supreme Court affirmed the trial court's grant of summary judgment on behalf of the police officer and the town on claims asserting that the defendants negligently failed to enforce § 14-222 (reckless driving) and § 14-227a (driving under the influence). The Supreme Court held that the police officer's duty to enforce the motor vehicle laws was a public duty and he owed no specific duty to the decedent to arrest Cugini for violation of § 14-222 and § 14-227a. Id. 152. The Supreme Court further rejected the claim that governmental immunity did not apply because it should have been apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm. Id. 153-54. The Supreme Court concluded that "the special duty required to maintain the action cannot be established by the mere fact that someone with whom the official had prior contact subsequently injured the plaintiff or the plaintiff's decedent." Id. 156.
Shore v. Stonington conclusively determines in the defendants' favor the issue of whether Palmer and Vetare are entitled to governmental immunity for their allegedly negligent failure to arrest Burns for violation of § 14-227a. As in Shore, Palmer and Vetare owed no individual duty to the plaintiffs to enforce the law against driving under the influence of liquor or drugs. The claim of a duty in this case is even more tenuous than the claim which was rejected in Shore. Here, the police officers were contemplating arresting Burns for driving under the influence immediately prior to Burns fleeing the scene. This is not a case in which the police willingly allowed the drunk driver the freedom to resume driving.
The plaintiffs have contended that the facts submitted in opposition to the defendants' motion for summary judgment show that Palmer and Vetare, fearing that they lacked probable cause to arrest Burns for driving under the influence, instructed Burns to move his car so that they could then arrest him. The only evidence submitted by the plaintiffs in support of this factual assertion is deposition testimony from Burns in which he states that he overheard Palmer and Vetare discussing with each other the option of having Burns move his car. No evidence was presented establishing that the police officers actually told Burns to move his car.
The plaintiffs seek to distinguish Shore v. Stonington from the facts here in a number of ways. First, they contend Palmer and Vetare also negligently violated the duty not to allow an intoxicated driver to reenter his vehicle; a duty which the plaintiffs claim is ministerial. The plaintiffs point to the procedures of the Department of Police Services of the City of Norwalk as support for this claim. Those procedures provide that "If after the initial contact with the driver, the officer believes the driver is under the influence, the officer should request the operator to exit the vehicle and move to a safe location to administer field sobriety tests." The plaintiffs assert that these procedures establish strict rules for dealing with known drunk drivers and require police officers to remove intoxicated drivers from their vehicles. The plaintiffs have also submitted an affidavit from an expert witness, Walter Connery, who states that in his opinion Palmer and Vetare had a ministerial duty to prohibit Burns from entering behind the wheel of a running motor vehicle in an intoxicated state. I am not persuaded.
I do not agree that it is reasonable to interpret the procedures of the Department of Police Services of the City of Norwalk as establishing a ministerial duty to prohibit drivers, suspected of driving under the influence of liquor or drugs from reentering their vehicles. First, the policy cited by the plaintiffs does not say that suspect drivers should not be allowed to reenter their vehicles. It simply states that officers should request that suspect drivers exit their vehicles in order to conduct field sobriety tests. Second, the statement in the departmental procedures cited by the plaintiffs needs to be read in context. That context is one of "detection." The procedures establish what a police officer should do to determine whether probable cause exists to arrest a person for driving under the influence of liquor or drugs. The policy states that the officer should have the suspect exit the vehicle so that sobriety tests can be administered. The policy does not impose an obligation on the officers to have the suspect exit the vehicle so that it cannot be driven away, which is the ministerial duty which the plaintiffs seek to impose here.
The relevant procedures of the Department of Police Services of the City of Norwalk are entitled "Procedures for Handling Persons Charged with Driving Under the Influence of Liquor or Drugs." Under the heading "Detection," the procedures provide in part as follows.
Detection is the first stage of DWI enforcement action. It is a critical stage as it is here that probable cause to arrest is established. This stage includes:
recognize and identify behaviors that would indicate the driver may be impaired
recognize and identify specific behaviors occurring during a motor vehicle stop that provide support of suspicion that the driver is under the influence
approach and interview the driver. If after the initial contact with the driver, the officer believes the driver is under the influence, the officer should request the operator to exit the vehicle and move to a safe location to administer field sobriety tests
select and administer appropriate field sobriety tests to assess impairment
note all observations which lead the officer to believe the driver may be intoxicated
formulate the appropriate arrest decision based upon driving ability, driver's behavior and sobriety tests. If the officer has probable cause to believe that the driver is under the influence of liquor and/or drugs, a physical arrest will be made of the driver, pursuant to Connecticut General Statutes 14-227a. (Infractions under Connecticut General Statutes 14-227a(b)), Operation While Impaired, shall not be issued. If probable cause to arrest for Operation under the Influence is absent, officers may not take custody of an operator simply to administer chemical testing)
In the absence of a policy directive, the decision by a police officer whether to require a driver suspected of driving under the influence to remain outside his vehicle while the officer is conducting an investigation is a matter of discretion. That decision will be influenced by a number of factors including where the motor vehicle stop occurred, the stage of the investigation, whether the suspect is alone in the vehicle, whether the suspect is being cooperative and whether backup has arrived for the police officer. It is not a ministerial act which is to be "performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action," Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 161, 167-68, for which the officer is without governmental immunity.
Our Supreme Court found, as a matter of law, in Shore v. Stonington that police officers owed no duty to another driver for the failure to arrest an intoxicated driver. The plaintiffs have provided no persuasive reason why, given that police officers have no duty to third persons to arrest an intoxicated driver, they should have a duty to prevent that same driver from entering his car while they investigate the situation. The opinion of the plaintiffs' witness, Walter Connery, that such a duty is ministerial is a statement of legal conclusion which is insufficient to raise genuine issue of material fact capable of defeating summary judgment. Chadha v. Shimelman, 75 Conn. App. 819, 828 (2003). This is so even if the conclusory affidavit comes from an expert witness. Morales v. Kagel, 58 Conn. App. 776, 781 (2000).
The plaintiffs also seek to distinguish Shore v. Stonington based on the immediacy in which the plaintiffs here were injured. They argue that the accident in Shore occurred many miles from and fifty minutes after the police officer confronted the drunk driver. Here, the plaintiffs were struck within minutes and a short distance from where Burns was stopped by the defendants. These facts, the plaintiffs contend, establish that it should have been apparent to the police officers that their failure to act would be likely to subject an identifiable person to imminent harm. I am not persuaded that these factual differences result in a contrary conclusion as to the police officers' duty to the plaintiffs.
In Shore v. Stonington, our Supreme Court concluded that the police officer had no reason to know that his failure to arrest the drunk driver would subject an identifiable person to imminent harm. Id., 156-57. See Doe v. Board of Education, 76 Conn. App. 296, 302 (2003). The relevant inquiry is what facts were known or should have been known to Palmer and Vetare at the time of their confrontation with Burns which made it apparent that their failure to act would likely subject an identifiable person to imminent harm. The 20/20 hindsight provided by the subsequent knowledge that pedestrians were soon injured does not illuminate what the police officers should have known at the time they confronted Burns.
B The High Speed Pursuit
The defendants further contend that they are immune from liability for their allegedly negligent actions regarding their pursuit of Burns because those actions were discretionary. The plaintiffs argue that the decision to engage in pursuit of Burns and the manner in which the pursuit was conducted involve ministerial duties unprotected by governmental immunity.
I agree with the defendants that the decision whether to engage in a high speed pursuit of a law violator involves judgment or discretion for which they are entitled to immunity. I do not agree that, given the material facts in dispute here, they are entitled to governmental immunity as a matter of law for the manner in which the pursuit was conducted.
"A municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . The word `ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations and internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 645 (1994).
The plaintiffs allege that Palmer and Vetare negligently decided to engage in a high speed pursuit of Burns in violation of due care and in violation of the pursuit policy of the Norwalk Police Department. Specifically, the plaintiffs claim that the defendants failed to consider the welfare of the public; engaged in pursuit when the danger to the public outweighed the advantage of apprehending the fleeing vehicle; failed to weigh the seriousness of the offense against the hazards posed to the health and safety of the public; failed to properly consider the time of day, traffic conditions, geographic location and density of population; and failed to consider the factors required by the pursuit policy of the Norwalk Police Department. The plaintiffs also assert that Palmer and Vetare were negligent in failing to terminate the pursuit.
At the time of the events in question, the Norwalk Police Department had established a written policy governing the initiation and operation of pursuits and high speed driving. A review of that policy establishes that the decision to engage in a high speed pursuit involved the exercise of judgment or discretion.
The Uniform Statewide Pursuit Policy established by the Commissioner of Public Safety, pursuant to General Statutes § 14-283a(b), is not applicable to the events in dispute as it was not adopted until August 24, 2000. See Regs., Conn. State Agencies § 14-283a-1 et seq.
The departmental policy required that a police officer weigh the potential danger to the officer and the public with the potential advantage of apprehending the suspect when deciding whether to commence a high speed pursuit. The officer was to consider a number of factors when making that decision with the paramount consideration being the nature and seriousness of the criminal offense. Additional factors included time of day, weather, road and traffic conditions, geographic location, population density and vehicle reliability and capability. The policy as written clearly granted discretion to the individual police officer to determine whether to engage in a pursuit of a fleeing suspect.
The relevant provisions of Section 4.7.1 of the "Pursuit and High Speed Driving" directive of the Department of Police Services of the City of Norwalk stated as follows: "3. Police officers should make reasonable efforts to apprehend a fleeing violator, but pursuit should not be carried to such an extent as to endanger the lives of innocent users of our streets and highways, or to the officer. 4. Pursuit is not recommended when the potential danger to the officer and the public outweighs the potential advantage of apprehending a fleeing vehicle. Pursuit is clearly inappropriate when the pursuit itself endangers life more than the escape of the person pursued. The nature and seriousness of the offense must be a paramount consideration when faced with pursuit . . . 5. However, hazardous violations that present a continuing danger to the public may require immediate and sometimes aggressive pursuit. Driving under the influence, reckless operation or excessive speed are examples of hazardous violations . . . 6. The seriousness of the possible outcome of a pursuit commands a police officer to weigh many factors when deciding whether or not to engage in the chase. Some of the specific questions officers must address when deciding whether or not to pursue include:
The nature of the offense.
Does the offense really justify pursuit? (e.g., simple misdemeanor situation, or serious felony)?
Time of day (12:00 noon, 4:30 PM, 3:00 AM)?
Weather conditions (Clear, rainy, for (sp), ice or snow)?
Road conditions.
Traffic conditions.
Geographic location (school zone, hospital zone, congested area)?
Population density (pedestrians in the area, children playing)?
Familiarity with the area.
Vehicle capability and reliability."
With respect to the decision to discontinue a pursuit, the departmental policy again reflects a decision involving the use of discretion. Section 4.7.3 states that "The initiating officer must terminate the pursuit when, in his opinion, the hazards to the officer and other citizens outweigh the seriousness of the offense committed. If an officer receives a communication from the dispatcher or supervisor to terminate the chase, he shall do so immediately . . ." Thus, it was only when the dispatcher or supervisor instructed the officer to end the pursuit that the duty to terminate became ministerial. The plaintiffs have not alleged any such communication here.
The determination by a police officer whether to commence a high speed pursuit of a fleeing law violator is unquestionably a matter of judgment. It depends on a multitude of factors including the seriousness of the offense, the potential danger to the public of engaging in pursuit, the potential danger to the public of the suspects remaining at large and the surrounding conditions, including weather conditions, traffic conditions, road conditions and the condition of the vehicles. See, e.g., Uniform Statewide Pursuit Policy, Regs., Conn. State Agencies § 14-283a-4(a). Accordingly, it is a decision that is discretionary and for which governmental immunity applies. See Docchio v. Bender, Superior Court, judicial district of Waterbury, Docket No. CV98-0146014S (Aug. 15, 2002, Holzberg, J.); Nunez v. VPSI, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0347902 (February 20, 2001, Melville, J.); and Boone v. Mills, Superior Court, judicial district of Litchfield, Docket No. 0051318 (October 17, 1990, McDonald, J.). See also County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) ("A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders").
While the Uniform Statewide Pursuit Policy does not govern this case, it is informative as to the factors that should be considered by a police officer when deciding whether to initiate a pursuit.
Moreover, just as other drivers on the road were not identifiable persons subject to imminent harm when a police officer fails to arrest a drunk driver, Shore v. Stonington, supra, 187 Conn. 147, the plaintiffs as pedestrians were not identifiable persons subject to imminent harm as a result of the defendants' decision to engage in a high speed pursuit. The plaintiffs were members of the general public and neither identifiable individually nor as a class. It was not foreseeable that the individual plaintiffs would be on the sidewalk around the corner from where the pursuit began. See Prescott v. Meriden, 80 Conn. App. 697, 703 (2003). Nor was harm imminent. An accident involving Burns' motor vehicle could have occurred at any time or not at all. See Lyon v. Andrews, 211 Conn. 501, 507-08 (1989).
The plaintiffs also allege in their complaint that Palmer and Vetare were negligent in the manner in which they conducted their pursuit of Burns. They claim that the defendants drove their police cruisers at an excessive and improper rate of speed so as to endanger innocent users of the streets in violation of General Statutes § 14-283(b) and in a manner without due regard for the safety of all persons in violation of General Statutes § 14-283(d). In support of their claims, the plaintiffs have submitted factual information that at the time of the pursuit there was substantial vehicular and pedestrian traffic in the area and that Burns was heavily intoxicated. The plaintiffs have also submitted an affidavit of an eyewitness to the chase that Burns was speeding 90 to 100 miles per hour with the police officers in pursuit behind him.
Section 14-283(b) provides that "The operator of any emergency vehicle may (1) park or stand such vehicle, irrespective of the provisions of this chapter, (2) proceed past any red light or stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as such operator does not endanger life or property by so doing, and (4) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions."
Section 14-283(d) provides that "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 three Superior Court decisions which have concluded that the decision to engage in a high speed dispute was discretionary have also determined that actions regarding the conduct of the pursuit may be ministerial. See Docchio v. Bender, supra; Nunez v. VPSI, Inc., supra; and Boone v. Mills, supra. Additional Superior Court decisions have held that the safe driving of a motor vehicle by a police officer is a ministerial act which is not protected by governmental immunity. Letowt v. City of Norwalk, 41 Conn. Sup. 402, 579 A.2d 601 (1989) (Lewis, J.); MacMillen v. Town of Branford, Superior Court, judicial district of New Haven, Docket No. 374004 (Mar. 30, 1998, Blue, J.) ( 21 Conn. L. Rptr. 561); and Hurdle v. City of Waterbury, Superior Court, judicial district of Waterbury, Docket No. 0123428 (December 11, 1995, Sullivan, J.). Another judge of the Superior Court has specifically held that the duty to operate an emergency vehicle with due care in accordance with § 14-283 is a ministerial duty. Allen v. Board of Fire Commissioners, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02 CV00-0167547S (August 2, 2002, Sheldon, J.) ( 33 Conn. L. Rptr. 113). I concur with this line of cases that the duty of a police officer to operate a police cruiser with due care and so as not to endanger the safety of others is a ministerial duty outside the ambit of governmental immunity.
General Statutes § 14-283 provides that a police officer operating a police vehicle in pursuit of fleeing law violators may exceed posted speed limits and disregard other statutes, ordinances, and regulations governing the movement of vehicles. The exemptions only apply when the police vehicle is properly and lawfully making use of an audible warning signal device. General Statutes § 14-283(c). The right to exceed posted speed limits or other speed limits imposed by § 14-218a or 14-219 is limited by the duty to not endanger life or property by doing so. General Statutes § 14-283(b)(3). Moreover, the statute does not relieve the police officer from the duty to drive with due regard for the safety of all persons and property. General Statutes § 14-283(d).
Similarly, the policy of the Department of Police Services of the City of Norwalk regarding pursuits and high speed driving mandates that "pursuit should not be carried out to such an extent as to endanger the lives of innocent users of our streets and highways . . ." Section 4.7.3 of the "Pursuit and High Speed Driving" directive of the Department of Police Services of the City of Norwalk. It further provides that "The officer must remember . . . that he is not relieved of the duty to drive with due regard for the safety of all persons . . ." Id.
The Norwalk Police Department's policy is also prescriptive in a number of respects regarding the manner in which the pursuit is to be conducted. Section 4.7.3 of the departmental directive dictates the immediate activation of the vehicle siren and emergency lighting equipment; immediate notification to the dispatcher and maintenance of continued radio contact; authorization of the use of road blocks by the supervisor; and the prohibition on the use of firearms while driving or occupying a vehicle engaged in a pursuit. The plaintiffs have not alleged that Palmer or Vetare violated any of these mandates.
Our Supreme Court has held that "The effect of [§ 14-283] 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. We . . . conclude that 14-283 provides no special zone of limited liability once the defendants' negligence has been established." (Citations omitted.) Tetro v. Stratford, 189 Conn. 601, 609-10 (1983).
The plaintiffs have submitted evidence that places in dispute material facts as to whether Palmer and Vetare violated their ministerial duty to drive safely and not endanger the lives of others. Accordingly, summary judgment is not appropriate on this issue.
II THE PLAINTIFFS' RECKLESSNESS CLAIMS AGAINST PALMER AND VETARE
The plaintiffs have also alleged that Palmer and Vetare acted recklessly. Their allegations of recklessness mirror their claims of negligence, i.e., that Palmer and Vetare allowed Burns to reenter his vehicle while its engine was running and when he was intoxicated; they improperly engaged in a high speed pursuit and improperly failed to terminate that pursuit; and they improperly conducted the pursuit. The plaintiffs also allege that Palmer and Vetare recklessly operated their police cruisers in violation of § 14-222 and were speeding in violation of §§ 14-218a and 14-219.
The defendants maintain that no reasonable trier of fact could conclude based on the evidence submitted that Palmer and Vetare were reckless. The plaintiffs contend that they have presented sufficient evidence to establish their claims of recklessness.
The defendants have not claimed in their motion for summary judgment that their conduct even if reckless is entitled to the protection of governmental immunity. See Elliot v. Waterbury, 245 Conn. 385, 414 n. 19 (1998).
Recklessness entails more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Craig v. Driscoll, 64 Conn. App. 699, 720 (2001). Reckless conduct is highly unreasonable conduct, involving an extreme departure from ordinary care, where a high degree of danger is apparent. Dubay v. Irish, 207 Conn. 518, 533 (1988). See also Elliot v. Waterbury, 245 Conn. 385, 415 (1998).
The plaintiffs claim that the evidence they offered in opposition to the defendants' motion for summary judgment establishes reckless conduct on the part of Palmer and Vetare. That evidence, if credited by a fact finder, shows that Palmer and Vetare knew that Burns was highly intoxicated. They allowed Burns to reenter his motor vehicle, when its engine was running, on three occasions during their investigation. Palmer and Vetare took no steps to prevent Burns from fleeing, such as blocking his car or taking his car keys. When Burns fled, the police officers decided to engage and did engage in a high speed pursuit of a highly intoxicated driver, at speeds reaching 90 to 100 miles per hour, at night in an area with heavy vehicular and pedestrian traffic.
Where the moving party challenges the sufficiency of the nonmovant's evidence to support his claim or cause of action, summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Dugan v. Mobile Testing Serv., 265 Conn. 791, 815 (2003). Viewing the evidence in the light most favorable to the plaintiffs, I cannot conclude that such evidence fails to provide a basis upon which a trier of fact reasonably could find that the conduct of the defendants was reckless.
III THE PLAINTIFFS' § 7-465 CLAIMS AGAINST THE CITY OF NORWALK
The plaintiffs assert claims under General Statutes § 7-465 against the city of Norwalk for the allegedly negligent actions of Norwalk police officers Palmer and Vetare in failing to arrest Burns, failing to prevent him from reentering his vehicle and engaging in a high speed pursuit of Burns. Norwalk requests summary judgment on the grounds that no indemnity is warranted under § 7-465 because the actions of Palmer and Vetare were discretionary and cloaked with governmental immunity.
General Statutes § 7-465 provides in relevant part: "(a) Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any persons civil rights or for physical damages to person or property . . . if the employee, at the time of the occurrence . . . or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence . . . or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . ."
"Section 7-465 is a municipal employee indemnification statute. The legislature has provided for indemnification by municipalities of municipal officers, agents or employees who incur liability for certain of their official conduct. To invoke § 7-465, the plaintiffs first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification. (Citations and internal quotation marks omitted.) Altfeter v. Naugatuck, 53 Conn. App. 791, 799 (1999). See also Wu, Administrator v. Town of Fairfield, 204 Conn. 435, 438 (1987). "Whatever may be the full scope and effect of [ 7-465], in no event may the municipality be held liable under it unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon . . . [him] by law for physical damages to person or property." (Internal quotation marks omitted.) Kostyal v. Cass, 163 Conn. 92, 97 (1972).
In part I of this opinion, I determined that the plaintiffs' negligence claims against the individual defendants were limited to those surrounding the manner in which they conducted their pursuit of Burns because the remaining conduct complained of was protected from liability by governmental immunity. Accordingly, the plaintiffs' claims for indemnification pursuant to § 7-465 against the city of Norwalk are similarly limited to those acts. See Burns v. Board of Education, 30 Conn. App. 594, 602 (1993).
IV THE PLAINTIFFS' § 52-557N CLAIMS AGAINST THE CITY OF NORWALK
The plaintiffs have each asserted a claim against the city of Norwalk pursuant to General Statutes § 52-557n for the allegedly negligent acts of Palmer and Vetare in failing to arrest and secure Burns, engaging in a high speed pursuit of Burns, and in conducting the pursuit at an unsafe speed and in a manner that endangered the lives of others. The city of Norwalk asserts in its motion for summary judgment that it is entitled to governmental immunity for the actions of Palmer and Vetare because those actions were discretionary.
Section 52-557n provides in relevant part as follows: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (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 abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents. Spears v. Garcia, 263 Conn. 22, 29 (2003).
Section 52-557n sets forth the circumstances in which governmental immunity is abrogated and a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents. The section goes on to expressly exclude liability for negligent acts that involve the exercise of judgment or discretion. General Statutes § 52-557n(a)(2)(B).
In part I of this opinion, I concluded that the allegedly negligent acts and omissions of the Norwalk police officers Palmer and Vetare surrounding their failure to arrest or secure Burns and their decision to engage in a high speed pursuit of Burns were discretionary acts for which they are entitled to governmental immunity. Similarly, the city of Norwalk is entitled to immunity from liability pursuant to § 52-557n for these same discretionary acts. See Segreto v. Bristol, 71 Conn. App. 844, 850 (2002). I also determined in part I that the allegedly negligent conduct of Palmer and Vetare in the manner in which they conducted the high speed pursuit of Burns constituted ministerial acts unprotected by governmental immunity. Accordingly, the city of Norwalk is not immunized from liability for those acts.
V THE PLAINTIFF GRENIER'S 42 U.S.C. § 1983 CLAIMS AGAINST THE DEFENDANTS
The plaintiff Grenier has also asserted a claim pursuant to 42 U.S.C. § 1983 against Palmer, Vetare and the city of Norwalk. Grenier contends that the defendants violated the decedent Julia Johnson's substantive due process rights by creating a dangerous condition in failing to arrest Burns and allowing him to reenter his car and drive away, subsequently striking Johnson. The city of Norwalk maintains that it is entitled to the entry of summary judgment on this count because Grenier has not alleged a policy or custom that resulted in a deprivation of constitutional rights. All three defendants also assert that the facts alleged by Grenier do not establish affirmative conduct by the defendants which created or increased the danger to the decedent as required to constitute a legally cognizable § 1983 claim. Grenier argues that he has proffered sufficient evidence to assert a claim under 42 U.S.C. § 1983. I agree with the defendants that Grenier has not come forward with the evidence required to properly support a claim pursuant to 42 U.S.C. § 1983.
Grenier does not assert in his complaint a substantive due process claim related to the police officers' high speed pursuit of Burns. To properly establish due process liability in the context of a police chase, the plaintiff would have to show that the officers' conduct "shocks the conscience" in that it involved an intent to injure. County of Sacramento v. Lewis, 523 U.S. 833, 854 (1998).
Section 1983 allows an individual to bring suit against persons who, under color of state law, have caused him to be subjected to "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), the United States Supreme Court held that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983. "It is only when the execution of the government's policy or custom . . . inflicts the injury that the municipality may be held liable under § 1983." (Citations and internal quotation marks omitted.) Canton v. Harris, 489 U.S. 378, 385 (1989). See also Board of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997).
Here, Grenier maintains that he has submitted evidence of a municipal policy sanctioning the conduct of Palmer and Vetare through the deposition testimony of Harry Rilling, the Norwalk Police Chef, in which Rilling stated that he approved of the actions of Palmer and Vetare and found them in full conformity with the practices and procedures of the Norwalk Police Department. Such evidence fails to satisfy the requirement necessary to establish municipal liability under § 1983 that the plaintiff's injury result from municipal policy.
To impose liability, on a municipality under § 1983, the plaintiff must identify a municipal policy or custom that caused the plaintiff's injury. Board of Comm'rs of Bryan County v. Brown, supra, 520 U.S. 403. "The plaintiff must . . . demonstrate that, through its deliberate conduct, the municipality was the `moving force'" behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Id., 404.
The plaintiff has submitted no evidence that the Norwalk Police Chief in any way directed Palmer and Vetare to act as they did. Rather, the plaintiff asserts that the police chief's subsequent affirmation of their conduct is sufficient. After the fact approval by a policy maker of an employee's conduct does not demonstrate action by a municipality that can be said to be the moving force behind an injury. Nor can it be the direct cause of the injury complained of, since the injury occurred prior to the official's sanctioning of the conduct. Because Grenier fails to point to any policy or custom of the city of Norwalk the execution of which resulted in injury to Johnson, his § 1983 claim against the city must fail.
The individual defendants contend that the facts as alleged by Grenier do not establish that their conduct created or increased the danger to Johnson as required for a substantive due process violation. I agree.
Although the individual defendants also maintain that they are entitled to qualified immunity with respect to the plaintiff's § 1983 claim, "the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998). Since I have concluded that the conduct of Palmer and Vetare as asserted by Grenier does not rise to the level of a constitutional violation, it is not necessary that I address the claim of qualified immunity.
In DeShaney v. Winnebago County Department of Social Services, CT Page 9704 489 U.S. 189, 197 (1989), the United States Supreme Court held that, as a general matter, a government official's failure to protect an individual from private harm does not constitute a denial of substantive due process. In language that has subsequently spawned an exception to this general rule, the Court noted that "While the State may have been aware of the dangers that [the individual] faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." Id., 201.
An overwhelming number of federal circuits, including the Second Circuit, have read this language in DeShaney as impliedly recognizing a substantive due process violation when government officials by their conduct assist in creating or increasing the danger to the victim. See Dwares v. City of New York, 985 F.2d 94, 98-100 (2d Cir. 1993); Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001); Hasenfuss v. Lejeunesse, F.3d 68, 73 (1st Cir. 1999); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998); Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1992); L.W. v. Grubbs, 974 F.2d 119, 121-22 (9th Cir. 1990); Cornelius v. Town of Highland Lake, 880 F.2d 348, 354 (11th Cir. 1989), overruled on other grounds by White v. Lemacks, 183 F.3d 1253, 1259 (11th Cir. 1999). While the federal circuit courts have adopted a variety of tests to determine whether government officials violate substantive due process when creating or increasing a danger that a private party will harm another, see, e.g., Kneipp v. Tedder, supra, 95 F.3d (3d Cir. 1996) in which the Third Circuit adopted a four-part test and Uhlrig v. Harder, supra, 64 F.3d 567, 574, in which the Tenth Circuit scrutinized five criteria, the considered view includes as a requirement of liability a showing of "affirmative conduct" by a governmental actor to increase or create the danger that results in harm to the individual. Butera v. District of Columbia, supra, 235 F.3d 650. "No constitutional liability exists where the State actors had no hand in creating a danger but simply stood by and did nothing when suspicious circumstances dictated a more active role for them. Absent such affirmative conduct by the State to endanger an individual, courts have rejected liability under a State endangerment concept." (Citations and internal quotation marks omitted.) Id. See also Reed v. Gardner, supra, 986 F.2d 1125; Kalistrom v. City of Columbus, supra, 136 F.3d 1066; and Frances-Colon v. Ramirez, 107 F.3d 62, 64 (1st Cir., 1997).
Eleven of the twelve federal circuits have recognized a state-created danger exception to the general rule against substantive due process liability for the government's failure to protect an individual from private harm. See RECENT CASE: Constitutional Law — Substantive Due Process — Fifth Circuit Rejects 1983 "State-Created Danger" Claim of Plaintiff Shot by an Undercover Informant Using a Gun on "Loan" from a City Police Officer — McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) (en banc), cert. denied, 71 U.S.L.W. 3416 (U.S. Mar. 3, 2003) (No. 02-861), 116 Harv.L.Rev. 1912 (April 2003). Although the D.C. Circuit in Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001), found that all twelve circuits have acknowledged such an exception, the Fifth Circuit has declared that it has never recognized the state-created danger theory of liability. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir., 2003).
Here, Grenier claims that Palmer and Vetare should have kept Burns from driving away from the scene, either by arresting him or, at least, preventing him from reentering his vehicle. These facts do not indicate affirmative misconduct on the part of the police officers which created or increased the danger to Johnson as she walked down the sidewalk on a nearby street.
The danger at hand was Burns' driving while he was intoxicated. Palmer and Vetare did not create this danger; Burns was intoxicated and he had access to his motor vehicle prior to the police officers' first encounter with him. Palmer and Vetare also did not increase the danger of Burns subsequently driving while intoxicated. There is no evidence that the police officers instructed Burns to drive away. Rather, they are being accused of failing to take steps to remove the danger. The failure of government officials to protect others from private harm, even when the danger is known to those officials, is not a constitutional violation. DeShaney v. Winnebago County Department of Social Services, supra, 489 U.S. 189.
The Seventh Circuit's decision in Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), is helpful in drawing the distinction between affirmative misconduct by police officers which creates a danger, which is potentially liable under § 1983, and the failure to protect a victim from danger, which is not. In Reed, the plaintiffs brought suit pursuant to § 1983 against defendant police officers for injuries which they sustained when their vehicle was struck head on by a car driven by a drunk driver. Earlier that day, the police officers had arrested the original driver of that car, who was not intoxicated, leaving behind a drunk passenger with keys to the car. The drunk passenger subsequently got behind the wheel with tragic results. The Court of Appeals held that the plaintiffs' claim against the police officers properly stated a state-created danger basis for liability. The court found that the police officers had created the danger by removing the sober driver from the car, while knowing that a drunk passenger with keys remained in the car. The court specifically noted that had the police officers taken no action, they would not have incurred any liability. "Taken to an extreme, police officers could watch drunk drivers stumble to their cars and drive off, weaving across the road, without incurring section 1983 liability. Similarly, if the defendants had failed to arrest [the sober driver], they would have had no liability if she had exchanged places with [the drunk passenger] and he had driven headlong into the [victim's] car. It was the police action in removing [the sober driver], combined with their knowledge of [the drunk passenger's] intoxication, which creates their liability for the subsequent accident." Id., 1125.
In contrast, here, Grenier is complaining that the police officers took no action to prevent Burns from reentering his car and driving away. A very different factual scenario with a constitutionally different result.
See footnote 2, supra.
VI THE CONSORTIUM CLAIMS OF ALLEN JOHNSON
The plaintiff Allen Johnson has asserted claims for lack of consortium that parallel the claims asserted by Grenier on behalf of Julia Johnson. The defendants have requested summary judgment on these consortium claims on the same basis as they have requested summary judgment on Grenier's claims.
"Loss of consortium is a derivative cause of action, meaning that it is dependent on the legal existence of the predicate action. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 555-56, 562 A.2d 1100 (1989). `Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse.' Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987). The two claims are `inextricably attached' in that ordinarily they are mirror images of one another. That is to say, if an adverse judgment or a settlement bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well. Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979)." Musorofiti v. Vlcek, 65 Conn. App. 365, 375-76 (2001).
Since I have determined that summary judgment should enter with respect to the negligence claims of Grenier on behalf of Julia Johnson concerning the defendants' actions in failing to arrest Burns, allowing Burns to reenter his motor vehicle and deciding to engage in pursuit of Burns, summary judgment may also enter on these claims of Allen Johnson. Summary judgment may also enter as to the loss of consortium claim of Allen Johnson based on an alleged violation of 42 U.S.C. § 1983.
The city of Norwalk also maintains that summary judgment should be granted with respect to all of Allen Johnson's claims pursuant to § 52-557n because that statute does not authorize claims for loss of consortium against a municipality. I agree.
Our Supreme Court has ruled that § 52-557n implicitly bars claims for loss of consortium asserted directly against a municipality. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 200 (1991). See also Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 294 (1993). Accordingly, summary judgment may enter on Allen Johnson's consortium claim asserted against the city of Norwalk pursuant to § 52-557n.
VII THE LOST CHANCE CLAIM OF JULIA JOHNSON
The defendants have also requested that summary judgment enter as to the claim made by Grenier on behalf of the decedent Julia Johnson that among the injuries suffered by Johnson as a result of the defendants' conduct was the lost chance of obtaining a cure for her breast cancer. Additional facts as alleged by the plaintiff are necessary for the resolution of this issue.
Julia Johnson died on August 6, 2001 due to widespread metastic breast cancer. At the time that Johnson was struck and injured by Burns' vehicle on September 5, 1998, she had scheduled an upcoming mammogram. Johnson received extensive injuries as a result of the motor vehicle accident, including becoming paralyzed, suffering an amputation and incurring a head injury. As a result of these injuries, she was unable to keep her appointment for a mammogram. Her breast cancer was not diagnosed until February 2000.
Grenier submitted portions of the deposition testimony of Dr. Steven Hajdu who examined the pathology slides of Johnson's breast tissue and determined that the cancer would likely have been diagnosed by a mammogram. Grenier also submitted an affidavit from Dr. Malin Dollinger, who reviewed Johnson's medical file and mammograms. Dollinger opined that, if Johnson had had a mammogram in the fall of 1998, it is medically probable that the mammogram would have revealed a cancerous lesion in her breast and, due to the small size and limited stage of the cancer, effective diagnosis and treatment would have been instituted which would have cured her breast cancer.
The defendants contend that Grenier has provided insufficient evidence upon which a trier of fact could find that their actions were a proximate cause of Johnson's lost chance of treating her breast cancer because Grenier has failed to submit admissible evidence that Johnson would have procured a mammogram had the motor vehicle accident not occurred. I am not persuaded.
Grenier provided a videotaped statement made by Johnson in opposition to the defendants' motion for summary judgment on this issue. Grenier represents that in that statement Johnson states that she had scheduled a mammogram for September of 1998. Grenier also provided medical records from Johnson's treating physician indicating that he had recommended that she schedule a mammogram.
The defendants maintain that the videotaped statement by Johnson is inadmissible evidence and therefore cannot serve as the basis upon which this court can find a disputed issue of material fact. While I agree that only evidence that would be admissible at trial may be used to oppose a motion for summary judgment, Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03 (1995), I do not agree that Johnson's videotaped statement constitutes inadmissible evidence.
General Statutes § 52-172 provides in relevant part that: "[i]n actions by or against the representatives of deceased persons . . . the entries, memoranda and declarations of the deceased, relevant to the matter in issue, maybe received as evidence . . ." This so called dead man's statute "creates an exception to the hearsay rule. C. Tait J. LaPlante, Connecticut Evidence (2d Ed. 1988) §§ 11.1-11.25. Its purpose is to create an equal footing between the living and the dead parties." Rosales v. Lupien, 50 Conn. App. 405, 407-08, 717 A.2d 821 (1998). Since the videotaped statement of the decedent Johnson concerning her scheduled mammogram is being offered in an action brought by her representative, Grenier, and is relevant to the issue of damages, it is admissible as evidence under this statute. Kalas v. Cook, 70 Conn. App. 477, 486 (2002).
"Connecticut permits recovery for a lost chance provided that the evidence would permit a finder of fact to conclude reasonably that more probably than not, the defendant's negligence was the direct and proximate cause of a decrease in the chance of successful treatment of the plaintiff's injury." (Citations and internal quotation marks omitted.) Drew v. William W. Backus Hospital, 77 Conn. App. 645, 662 (2003). The videotaped statement of Johnson, together with the affidavits supplied by Drs. Hadju and Dollinger, provide sufficient evidence, if credited by a fact finder, that the injuries suffered by Johnson as a result of the motor vehicle accident on September 5, 1998 prevented her from keeping a scheduled mammogram which would have, according to Dr. Dollinger, in all medical probability resulted in the diagnosis and successful treatment of her breast cancer. Accordingly, the defendants' motion for summary judgment on this issue is hereby denied.
VII CONCLUSION
To summarize, the court hereby grants partial summary judgment with respect to the negligence claims of the plaintiffs against the individual defendants Palmer and Vetare. Summary judgment may enter in favor of Palmer and Vetare on the plaintiffs' claims that they negligently failed to arrest Burns, allowed him to reenter his vehicle, and decided to engage in a high speed dispute of Burns. The request of Palmer and Vetare for summary judgment is denied with respect to the plaintiffs' claim that they negligently conducted a high speed pursuit of Burns.
Similarly, summary judgment may enter in favor of the city of Norwalk with respect to the plaintiffs' claims pursuant to § 7-465 for indemnity and § 52-557n for liability as a result of the conduct of Palmer and Vetare related to their failure to arrest Burns, their allowing him to reenter his vehicle and their decision to engage in a high speed pursuit. The city's request for summary judgment with respect to the manner in which the police officers conducted their high speed pursuit of Burns is denied.
The defendants' request that summary judgment enter on the plaintiffs' claims of recklessness is denied. Summary judgment may enter in favor of the defendants with respect to Grenier's § 1983 claim and in favor of the city of Norwalk on the loss of consortium claim of Allen Johnson asserted pursuant to § 52-557n.
Finally, the defendants' request that summary judgment enter on the claim of Grenier that the conduct of the defendants caused injury to Johnson in the form of the lost chance of diagnosing and successfully treating her breast cancer is denied.
BY THE COURT
Jon M. Alander Judge of the Superior Court