Opinion
No. CV 06-5002138
March 26, 2008
Memorandum of Decision Re Motion for Summary Judgment (No. 130)
ISSUE
The plaintiffs, a corporation and an individual, allege that by requiring a police presence at various work sites in Hamden, Connecticut, the municipal defendants tortiously interfered with the plaintiffs' business relations. At issue is whether General Statutes § 52-557n(b)(7), which provides immunity for municipal defendants sued for damages resulting from certain discretionary actions within the scope of their employment, bars the plaintiffs' claim.
FACTS
On February 21, 2006, the plaintiffs, Blackhawk Security Services, Inc. (Blackhawk) and Richard Verrill, filed a one-count complaint against the defendants, Robert Nolan and Jack Kennelly. Blackhawk provides certified flaggers to construction contractors and utility providers in Connecticut, while Verrill is Blackhawk's president and sole shareholder. Nolan was Hamden's chief of police at all times relevant to the complaint until November 20, 2005. On that date, Kennelly, who had previously served as Nolan's deputy police chief and acting police chief, became Hamden's chief of police.
The plaintiffs allege the following facts. Pursuant to Hamden Code of Ordinances § 97.03, the police chief "would determine under which circumstances a police officer would be required at a construction or utility work site either on or adjacent to a public highway." While serving as police chief, Nolan never provided written guidelines to his staff regarding when police officers, as compared to private flaggers, should be used at work sites and failed to exercise his discretion regarding police presence at work sites on a case-by-case basis. Instead, Nolan adopted and allowed to be enforced a de facto policy that gave Hamden police officers the exclusive right to provide temporary traffic control services to Hamden work sites and permitted the officers to interfere improperly with Blackhawk's commercial activities within Hamden. By adopting this policy, Nolan interfered with Blackhawk's business relations with contractors who used Blackhawk's flagger service, causing both plaintiffs to suffer financial loss. The plaintiffs allege that Kennelly adopted this same policy while serving as both deputy police chief and police chief.
On June 19, 2006, the defendants filed their second amended answer and special defenses. The special defenses were as follows: 1) because the defendants had engaged in legislative activity by enforcing Hamden Code of Ordinances § 97.03, a presumptively valid ordinance, they were entitled to legislative immunity; and 2) because § 97.03 granted police chiefs the discretion to decide when police officers were required at work sites, a decision not to exercise that discretion on a case-by-case basis was itself a discretionary act, and the defendants were therefore entitled to both common-law and statutory governmental immunity.
On September 22, 2006, the plaintiffs filed a motion to strike the special defenses on the grounds that the defendants failed to allege any acts that would qualify as being legislative in nature and governmental immunity is inapplicable to the plaintiffs' claim. On February 23, 2007, the court, Holden, J., granted the motion to strike the legislative immunity defense as well as the common-law governmental immunity defense; however, the court denied the motion with respect to the special defense of statutory governmental immunity. See Blackhawk Security Services, Inc. v. Nolan, Superior Court, judicial district of New Haven, Docket No. CV 06 5002138 (February 23, 2007, Holden, J.).
On October 2, 2007, the defendants filed a motion for summary judgment on the grounds that statutory governmental immunity bars the plaintiffs' claims and discretionary enforcement of a valid ordinance cannot constitute tortious interference with contracts or business expectancies. The plaintiffs filed a memorandum in opposition to the motion on January 17, 2008. On January 22, 2008, the defendants filed a reply and the plaintiffs provided a supplementary filing.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., 282 Conn. 745, 750, 924 A.2d 831 (2007). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Hamden Code of Ordinances § 97.03 states the following: "The provisions of this section shall apply to excavations and all other construction work and repairs on public streets that restrict roadway traffic, including work performed adjacent to public streets . . . The use of a uniformed police officer(s) shall be required for all excavations, construction work and repairs on public streets, road closures and work performed adjacent to roadways that significantly restrict said roadway to traffic and create a traffic hazard, or when construction is performed upon any part of town or state roadways, when deemed a hazard by the chief of police or his/her designee, due to the effect on traffic patterns and flow at the time of the work, for the purpose of traffic control and public safety. Such officer(s) shall be authorized by the police department of the Town and the cost of same be charged directly to the permittee or company performing such work. Where such officer(s) provides services to more than one permittee, each permittee shall be responsible proportionately for such expense." Additionally, § 97.08 explains that "[i]n the event of any question as to the interpretation of any of the provisions of this chapter, with the exception of the use of police officers, which is in the sole discretion of the chief of police or his/her designee, the decision of the department of pubic works shall be final."
The defendants contend that pursuant to § 97.03, police chiefs have the discretion to determine whether a police officer, rather than a private flagger, must be present at work sites. They further assert that even assuming arguendo that the defendants implemented a de facto policy of using police officers for traffic control to the exclusion of private flaggers and did not exercise their discretion on a case-by-case basis, a decision to require police officers on every occasion is itself an exercise of discretion. Therefore, the defendants argue, they are entitled to statutory immunity based on General Statutes § 52-557n(b)(7), which states: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety."
As our Appellate Court has explained, "[w]hile [a] municipality itself was generally immune from liability for its tortious acts at common law, its employees faced the same personal tort liability as private individuals . . . [Under § 52-557n, however, like the municipality itself, 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 hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Citation omitted; internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 850-51, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
The court agrees that the defendants were performing "a discretionary function by law" within the meaning of § 52-557n(b)(7). The decision to deploy police officers pursuant to Hamden Code of Ordinances § 93.07, whether at a single work site or at all work sites, involves an exercise of judgment. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988) ("the general deployment of police officers is a discretionary governmental action as a matter of law"). Even assuming that the defendants did not expressly consider the specifics of each placement, they were still performing a discretionary role. Cf. Martel v. Metropolitan District Commission, 275 Conn. 38, 50 n. 8, 881 A.2d 194 (2005) (affirming a grant of summary judgment in favor of municipal defendants pursuant to General Statutes § 52-557n(a)(2)(B) because "even if the defendants did not expressly consider inspecting and maintaining the [government property at issue], the fact that they did not do so reflects an implicit exercise of discretion") (emphasis in original). Moreover, the plaintiffs' own deposition testimony supports the perspective that the defendants engaged in a deliberative process, as Verrill testified that the defendants " determined that police only would be used in all traffic control situations." (Emphasis added.) Accordingly, there can be no question as to whether the defendants were performing a discretionary function.
The parties dispute whether this court may find that the defendants were performing a discretionary function based on law of the case. The court need not address this issue, as an independent review of the record and case law confirms that the defendants were engaged in discretionary activity.
Immunity based on § 52-557n(b)(7) would still elude the defendants if an issue of fact remained as to whether they acted with reckless disregard in exercising their discretion. The plaintiffs, however, have not alleged reckless disregard in their complaint. Additionally, the defendants have referred the court to several pages of deposition testimony in which Verrill states that the defendants' decision to use police officers at every work site did not endanger the health or safety of any person. The plaintiffs have not countered this testimony with any evidence. Therefore, based on the record before the court, the reckless disregard exception to § 52-557n(b)(7) does not apply in this case.
The plaintiffs also argue that summary judgment must be denied because a genuine issue of material fact exists as to whether the defendants acted within the scope of their employment as required under § 52-557n(b)(7). Conversely, the defendants posit that rather than engaging in impermissible behavior, they were simply doing their jobs by exercising their discretion under § 97.03. The defendants' position is supported by substantial evidence. Section 93.07 clearly authorized the defendants to place officers at any work site. Although the plaintiffs allege in their complaint that the defendants failed to enact written guidelines regarding the placement of police officers at work sites, Verrill acknowledged during his deposition that he was aware of no requirement that the defendants provide such guidelines, and the ordinance itself imposes no such requirement. Additionally, Verrill conceded in his deposition that he was aware of no requirement that the defendants perform case-by-case analyses regarding officers' placements, nor does the ordinance contain such a requirement. Moreover, although placements made out of malice would presumably be verboten, the defendants direct the court to several pages of Verrill's testimony in which Verrill states that he was not aware of any malice or animus on the defendants' part towards either the plaintiffs or the plaintiffs' employees.
Once again, the plaintiffs cannot prevail because they have not provided any evidence that contradicts the defendants' position. In their opposing memorandum, the plaintiffs contend that on numerous occasions, Hamden police officers wrongfully ordered Blackhawk's flaggers off of work sites. They accuse the defendants of promoting a policy that permitted the officers to behave inappropriately, and assert that the defendants' purpose in promoting such a policy was to provide extra-duty income to Hamden officers. According to the plaintiffs, the defendants' goal of providing extra duty income was impermissible, and the defendants were therefore acting outside the scope of their employment. The plaintiffs' allegations of misconduct, however, do not include citations to the record. As the defendants point out in their reply memorandum and as noted earlier in this opinion, "[m]ere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Zielinski v. Kotsoris, supra, 279 Conn. 312, 319.
The plaintiffs' supplementary filing does not alleviate the problems caused by their failure to cite any evidence in their brief. Not only are the deposition transcript excerpts contained in the filing uncertified, but the plaintiffs fail to explain the purpose of those excerpts, leaving it to the court to determine exactly which of the plaintiffs' positions are supposedly bolstered by the testimony.
The court notes that a review of all of the documents included in the supplementary filing reveals no evidence helpful to the plaintiffs. Exhibit A, which is an excerpt of Verrill's deposition transcript, at most reflects that the defendants required police officers at all work sites to the exclusion of private flaggers. The defendants have already conceded this point for purposes of their summary judgment motion. Exhibit B, which is three separate excerpts from Nolan's deposition transcript, is also unhelpful. The first excerpt is similar in theme to Exhibit A, while the second excerpt contains a long answer from Nolan, but fails to include the question, making it impossible to determine what point is being made. In the third excerpt, Nolan merely agrees that assignments to work sites provided extra income to some police officers. This statement does not support the plaintiffs' argument that Nolan intentionally made such assignments in order to provide the officers with additional income. Lastly, Exhibit C, which is purportedly a business record generated by a Blackhawk employee, consists of a traffic services form with the following comment purportedly made by a police officer: "Take your vest off, get off the road." The plaintiffs provide no contextual information regarding this document; indeed, nothing in the document even ties the incident to Blackhawk. Additionally, there is no evidence before the court that either defendant was aware of or condoned such behavior, assuming that the incident occurred.
Accordingly, while the defendants have met their evidentiary burden with respect to their claim that they were merely enforcing § 93.07, an act that falls squarely within the scope of their employment, the plaintiffs presented no "evidence that demonstrates the existence of some disputed factual issue." Id. The defendants are therefore entitled to immunity under § 52-557n(b)(7).
The plaintiffs' reliance on Town Brooke Development, LLC v. Fox, Superior Court, judicial district of Danbury, Docket No. CV 03 0347962 (November 26, 2004, Moraghan, J.T.R.) [38 Conn. L. Rptr. 355], is misplaced. The Town Brooke plaintiff alleged that zoning commission members and the chairman of a fire company water source committee maliciously interfered with its business expectancies, among other things, by preventing the plaintiff from building affordable housing. The defendants claimed immunity under § 52-557n(b)(7). In denying the defendants' summary judgment motion, the court noted that there were genuine issues of material fact as to whether the defendants acted with malice or within the scope of their official duties. This court has already explained that unlike Town Brooke, the current case is devoid of genuine factual disputes.
In light of this finding, the court need not address the defendants' other assertions.
For the foregoing reasons, the defendants' motion for summary judgment is granted.