Opinion
No. CV04-0183954S
November 7, 2007.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#121)
FACTS
On October 20, 2004, the plaintiff, Vincent Carangelo, filed an amended complaint against the defendants, Officer James Palaia of the Berlin police department and the town of Berlin, Connecticut. The following facts are undisputed in the evidence provided by the parties to this motion. In the early morning hours of October 27, 2002, after consuming alcoholic beverages at Sliders Sports Bar in Berlin, Connecticut, the plaintiff, a minor at the time, proceeded to drive from Sliders Sports Bar to another friend's home in Woodbury, Connecticut. Shortly thereafter, Officer Palaia pulled over the plaintiff's car. After talking with the plaintiff, Palaia issued a citation for speeding and let the plaintiff go on his way. As he drove to meet up with his friends, the plaintiff crashed into a tree and sustained injuries.
The plaintiff's original complaint contained six counts. The first three counts alleged negligence, negligence per se and recklessness complaints against the defendants FTC, LLC, Christopher Tatro, and Frederick Marcantonio, who are not involved in this motion for summary judgment. After a successful motion to strike count two by these defendants, the plaintiff amended his complaint to reflect five counts. This motion attacks only the latter three counts of the amended complaint, which allege negligence against Palaia and the town of Berlin.
The plaintiff's complaint alleges that Palaia was negligent in failing to prevent the plaintiff from operating his motor vehicle after the traffic stop. The plaintiff further alleges that the town of Berlin is liable for Palaia's negligence through General Statutes §§ 7-465 and 52-557n. Palaia and the town of Berlin raised special defenses of governmental immunity and a statutory bar of liability through General Statutes §§ 7-465 and 52-557n. On January 23, 2007, Palaia and the town of Berlin filed a motion for summary judgment on the grounds that governmental immunity shields Palaia from liability and that, since Palaia is immune, the statutes bar liability for the town of Berlin. The plaintiff filed a memorandum of law in opposition to the motion on April 3, 2007. The court heard oral arguments on the short calendar for July 16, 2007.
DISCUSSION
"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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
In their memorandum of law supporting the motion for summary judgment, Palaia and the town of Berlin argue that the doctrine of governmental immunity shields an employee of the government from claims of negligence that arise in the course of his or her discretionary duties. They argue that Palaia was performing his duties as a police officer during the incident in question and that these duties were discretionary, as opposed to ministerial; therefore, Palaia and the town of Berlin assert that governmental immunity applies. Furthermore, if governmental immunity bars liability for Palaia, then the town of Berlin will have nothing to indemnify pursuant to § 7-465. Moreover, the town of Berlin argues that § 52-557n does not provide for municipal liability in this instance because Palaia's acts were discretionary in nature and therefore not covered by § 52-557n.
On the other hand, the plaintiff argues in his memorandum of law opposing summary judgment that governmental immunity does not apply here. Specifically, he states that, once an officer has conducted a traffic stop, the further step of detaining an intoxicated driver is a ministerial function, not a discretionary function, and therefore not covered by governmental immunity. Furthermore, the plaintiff asserts that, even if detaining an intoxicated driver is discretionary, this situation fits into the "imminent harm-identifiable victim" exception to governmental immunity and that this exception places into issue whether the officer was aware of the plaintiff's intoxication, creating a disputed issue of material fact. The plaintiff also argues that, since Palaia may be liable for damages, the town of Berlin may have to indemnify Palaia under § 7-465. Finally, the plaintiff contends that the provision of § 52-557n providing for immunity from discretionary acts of employees is subject to the same "imminent harm-identifiable victim" exception of common-law governmental immunity.
Public officials engaged in governmental duties enjoy immunity "so long as they act in good faith, in the exercise of an honest judgment, and not in the abuse of their discretion, or maliciously or wantonly. . ." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 166, 544 A.2d 1185 (1988). "Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003); see also Violano v. Fernandez, 280 Conn. 310, 335, 907 A.2d 1188 (2006). Therefore, the first step is to determine whether Officer Palaia's actions on October 27, 2002, were discretionary or ministerial.
"Whether the acts complained of . . . were governmental or ministerial is a factual question which depends upon the nature of the act complained of . . . If the acts are considered governmental in character, then the defendant is not liable. . ." (Citations omitted.) Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982). "If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance. For example, an official may be sued in a civil action for refusing to recognize a validly cast vote . . . or for releasing from quarantine a dangerous dog before the expiration of the time period required of the official." (Citation omitted.) Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982). "The Superior Court has consistently held that acts or omissions of police officers in the exercise of their duties are discretionary in nature." Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0147192 (January 2, 2001, D'Andrea, J.) (28 Conn. L. Rptr 671, 674). "[T]he investigation of crimes and decisions to make arrests for them is clearly a discretionary rather than a ministerial function." Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 88 253464 (June 4, 1993, Fuller, J.) [9 Conn. L. Rptr. 202]. "How far to investigate a complaint is a matter of police discretion and necessarily so. If the police were to employ exhaustive investigations in every complaint as a bureaucratic technique to avoid all future criticism or liability, the cost in intrusion on civil liberties would be intolerable in a free society." (Internal quotation marks omitted.) Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven, Docket No. CV 00 04368000 (July 23, 2003, Arnold, J.), aff'd sub nom. Trapani v. Scarcella, 83 Conn.App. 903, 853 A.2d 650, cert. denied, 270 Conn. 917, 853 A.2d 531 (2004).
In this case, it is an undisputed fact that Officer Palaia stopped the defendant, cited him for speeding, and released him on his way. The evidence shows that the Berlin police department had procedures in place for administering field sobriety tests, but nothing in the evidence shows that the decision to conduct such tests was anything but discretionary. See Plaintiff's exhibit 5, 30-35. The investigation of crimes necessarily involves an assessment of the facts before the officer and a decision on what the appropriate course of action may be. Here, the task before the officer was one involving a decision of whether to investigate a crime and make an arrest. Therefore, the nature of the act or omission was discretionary. This does not, however, end the analysis.
In cases involving discretionary actions by government officers, "liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm. . ." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 320. "The imminent harm exception to discretionary act immunity applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Internal quotation marks omitted.) Id., 329. "An individual may be `identifiable' for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition." Tryon v. North Branford, 58 Conn.App. 702, 710, 755 A.2d 317 (2000). In cases dealing with this exception, the courts of Connecticut "have utilized criteria including the duration, geographic scope, significance and foreseeability of the risk of harm to gauge whether that risk correctly may be considered imminent." Doe v. Petersen, 279 Conn. 607, 618 n. 10, 903 A.2d 191 (2006).
The plaintiff argues that the case before the court satisfies the "imminent harm-identifiable victim" exception to discretionary governmental immunity. Specifically, the plaintiff argues that he was the identifiable victim and that the imminent harm was his operation of the motor vehicle while being intoxicated. Finally, the plaintiff argues that this was apparent to Palaia in that Palaia knew or should have known that the plaintiff was intoxicated. Palaia and the town of Berlin argue that it was not apparent that the plaintiff would be in imminent harm, and therefore the exception to discretionary governmental immunity does not apply.
The argument of Palaia and the Town of Berlin relies heavily on Shore v. Stonington, supra, 187 Conn. 147, and Sarno v. Whalen, 233 Conn. 524, 658 A.2d 181 (1995). Those cases are both distinguishable from the case before the court. In Shore, an officer observed a man driving erratically. Shore v. Stonington, supra, 187 Conn. 150. The officer followed the man into the parking lot of a V.F.W. hall. Id. Upon being informed that the man was picking up his girlfriend at the V.F.W. hall, the officer told the man, who admitted to having consumed alcohol, that "he had better slow down and should let his girlfriend drive." Id. After the officer left, the driver entered the V.F.W. hall, stayed there long enough to have a conversation with one of its patrons and then left in his vehicle. Id., 151. Later, the intoxicated man crashed his vehicle, killing a third party. Id. The Supreme Court held that the imminent harm exception did not apply because "during his encounter with [the driver] [the officer] could not have been aware that [the driver's] conduct threatened an identifiable victim with imminent harm." Id., 154. In Sarno, an officer questioned an intoxicated man who was sitting in the driver's seat of a van. Sarno v. Whalen, supra, 233 Conn. 526-27. The officer instructed the man to let his wife drive, which he did, at least until they were out of sight of the officer; later, while driving the van, the intoxicated man injured a third party in a collision. Id., 527. The Supreme Court determined that no liability should attach because the officer "(1) did not observe [the man] driving his van; and (2) did not leave the scene, after having determined that [the man] was possibly impaired, without first directing someone other than [the man] to drive the van away and observing that person doing so." Id.
The facts of these cases are distinguishable from the case before the court. Both of these cases involve an officer who was never aware that an imminent harm threatened an identifiable victim. In both cases, the victim was a third party. In both cases, the intoxicated person had been instructed by a police officer not to drive; in both cases, the intoxicated person, once out of the officer's sight, resumed driving. In neither case did the officer have reason to believe that the intoxicated person would later be driving. The facts of the case at bar show that the victim was not a third party but was, in fact, the driver of the vehicle. Cf. Gantner v. State, Superior Court, judicial district of New Britain, Docket No. CV 01 0510371 (March 26, 2003, Dunnell, J.) (34 Conn. L. Rptr. 386, 387) (holding that passenger in car was identifiable victim). Officer Palaia observed the plaintiff driving the vehicle before the stop, may or may not have known that the plaintiff was intoxicated, and allowed the plaintiff to continue on his way.
A better case to use as a comparison to the one before the court is Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979). In Sestito, the Supreme Court applied the imminent harm exception when a participant in a donnybrook outside of a bar was shot and killed; the court found that immunity did not apply to an officer who observed the fight in progress yet failed to intervene. Id., 528. In that case, the dangerous situation was apparent to the officer: the officer knew there was a fight in progress, which posed imminent harm to the participants. Id., 522-23. Here, if the plaintiff was intoxicated, then his operation of the vehicle may have created an imminent harm (an alcohol-related car crash) to an identifiable victim (the plaintiff). If Palaia knew about the intoxication, then the imminent harm and identifiable victim may have been apparent to him.
Therefore, the issue of what Officer Palaia knew or should have known about the plaintiff's level of intoxication becomes a material fact. See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002) ("A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.)). The evidence filed with the memoranda from both parties to this motion shows conflicting reports as to what exactly the officer knew or should have known regarding the plaintiff's intoxication and what the plaintiff's level of intoxication actually was. The plaintiff's level of intoxication is one factor in determining the imminence of the harm, and whether the officer was aware of this intoxication is a key factor in determining whether the officer was aware of the harm. These issues are ones of fact too close to decide through summary judgment and, therefore, the court denies the defendants' motion for summary judgment as to count three.
As a result, the chance for liability for Officer Palaia still exists. Therefore, until Palaia's liability is determined, General Statutes § 7-465 may require the town of Berlin to pay "all sums which [an] employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages. . ." General Statutes § 7-465(a). Summary judgment is not appropriate for resolution of count four.
Finally, the town of Berlin argues that General Statutes § 52-557n bars municipal liability for negligent "acts or omissions which require the exercise of judgment or discretion. . ." General Statutes § 52-557n(a)(2)(B). This provision, however, is still subject to the "imminent harm-identifiable victim" exception of the doctrine of governmental immunity. See Colon v. Board of Education, 60 Conn.App. 178, 183-84, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). While Palaia's duties from the incident of October 27, 2000, are discretionary and normally would entitle the town of Berlin to enjoy the protections of § 52-557n(a)(2)(B), a question of fact still remains as to whether the "imminent harm-identifiable victim" exception applies in this situation. For the same reasons that summary judgment cannot resolve the allegations of count three, summary judgment cannot resolve the allegations of count five.
CONCLUSION
The court denies Palaia's motion for summary judgment as to count three because the evidence of the parties shows a genuine issue as to a material fact regarding the applicability of governmental immunity. The court denies the town of Berlin's motion for summary judgment as to counts four and five because Palaia's potential liability exposes the town of Berlin to liability through General Statutes §§ 7-465 and 52-557n.