Opinion
No. CV05 400 23 96 S
October 22, 2009
MEMORANDUM OF DECISION
The plaintiff filed her original complaint against the defendants in Federal Court on October 11, 2001, alleging Fourth Amendment violations against the defendant Merrigan and a derivative claim against the defendant City of Meriden. On January 25, 2005, the Federal District Court for Connecticut granted the defendants' motion for summary judgment on all counts. That decision was upheld on appeal to the Second Circuit Court of Appeals on October 14, 2005. The plaintiff filed the present action on March 3, 2005. The defendants moved for summary judgment which was initially granted in favor of the defendants based on police officers' discretionary act governmental immunity. On appeal, the Appellate Court reversed, holding that the "actions of a police officer to follow the orders of a superior court judge were ministerial, not discretionary." The case was reversed and remanded, with the Appellate Court stating that "[t]here are questions of material fact at issue in the present case. There is conflicting testimony as to where the missteps occurred. We have no opinion as to whether the plaintiff can prove that the defendants were negligent in failing to vacate the warrant. Rather, we simply conclude that governmental immunity does not protect the defendants against the plaintiff's claim." Soderlund v. Merrigan, 110 Conn.App. 389, 401, 955 A.2d 107 (2008).
The defendants now move for summary judgment, arguing that with respect to count one, the facts fail to establish a common-law claim of negligence and General Statutes §§ 52-142a(a) and 54-142a(e) do not provide a private cause of action; with respect to count two, the facts fail to establish a common-law claim of negligence against the municipality; and with respect to count three, that claim is moot if the court appropriately enters summary judgment as to count one against the defendant Merrigan.
The plaintiff argues in opposition that as to count one, the Appellate Court's opinion that questions of material fact are at issue should be enforced by this court. The plaintiff further argues that the Appellate Court cited § 54-142a "favorably in the context of being `mandatory to vacate the warrant,'" and that it is "only logical that the reason to for a failure to follow a mandate is automatically a question of fact." As to count two, the plaintiff argues that "the Appellate Court has authorized such a suit by its decision [and] the statute authorizes a claim for false arrest." Finally, as to count three, the plaintiff artfully states that "it is not the plaintiff's, but the defendant's arguments that is moot."
The plaintiff further states that the "Appellate Court decision is consistent with an acquiescence that General Statutes 54-142a creates a duty. It is now a question of fact whether that duty was violated."
A hearing on the matter was held on June 23, 2009, at which time the briefing was extended by Gould, J., until July 31, 2009.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #134
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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "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." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
COUNT ONE
"The essential elements for a cause of action in negligence are well established: duty; breach of that duty; causation; and actually injury." Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
In count one of the complaint, the plaintiff alleges, among other things, that the defendant Officer Merrigan was negligent by breaching her duty to vacate the plaintiff's arrest warrant in "failing to take reasonable steps to remove said arrest warrant from police records and the statewide computer" and also by "failing to act in accordance with Conn. Gen. Stat. § 54-142a(a)" and § 54-142a(e), which was the direct and proximate cause of the plaintiff's injuries.
I. Duty
"[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).
In Soderlund v. Merrigan, supra, 110 Conn.App. 400-01, the Appellate Court stated that "[i]f the defendants failed in their duty to vacate the warrant, they failed to perform a ministerial act." Thus, the Appellate Court established that a duty to vacate did exist in this instance, but it did not make any judgment as to whether that duty was breached by the defendants here. See Id.
"Generally, liability may attach for a negligently performed ministerial act . . ." Kolaniak v. Board of Education, 28 Conn.App. 277, 281, 610 A.2d 193 (1992). 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 . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).
In the present case, the defendants state that "Officer Merrigan['s] . . . ministerial duty to obey the Court order to vacate the plaintiff's arrest warrant" is undisputed. The plaintiff does not disagree with this proposition. Accordingly, the ministerial duty of the defendant Merrigan has been established here as a result of Soderlund v. Merrigan, supra, 110 Conn.App. 400. Further discussion of the defendants' duty in relation to a private cause of action is discussed in count two, section one, infra.
II. Breach
"A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence." (Internal quotation marks omitted.) Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 805, 817 A.2d 619 (2003).
The defendants generally argue that "Officer Merrigan did not breach her duty to vacate an arrest warrant since the arrest warrant was not in the police department's possession and that any claim to the contrary is merely speculative. The plaintiff counters, citing to various deposition testimony, that there is conflicting evidence of whether the police department received the arrest warrant, and thus a genuine issue of material fact exists as to whether the defendant Merrigan breached a duty owed to the plaintiff.
As stated by the Appellate Court in Soderlund v. Merrigan, supra, 110 Conn.App. 400, "it is unclear exactly what misstep occurred and whether it occurred at the Courthouse or in the police department." It is clear from the evidence presented, however, that there is a genuine issue as to how it occurred that the arrest warrant for the plaintiff was not vacated in proper course. Accordingly, summary judgment cannot be granted where the defendants have not established that is no genuine issue of material fact as to whether or not the defendant Merrigan breached the duty she owed to vacate the arrest warrant.
III. Causation
"To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries . . . [L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . . In negligence cases . . . in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the plaintiff . . ." Pike v. Bugbee, 115 Conn.App. 820, 823-24, 974 A.2d 743 (2009).
"Although the issue of causation generally is a question for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).
In the present case, the defendants argue that the "plaintiff cannot maintain her claim of negligence because she has failed to identify what actions or inactions of Officer Merrigan constitute negligence or caused the plaintiff's injuries. There is nothing in the record, and the plaintiff has offered no evidence that warrants the presumption or inference that the actions of the defendant caused her injury and was therefore negligent." (Internal quotation marks omitted.) In their supplemental memorandum, the defendants argue that because the arrest warrant was not in the police department's possession, the defendant Merrigan could not have breached her duty to vacate the arrest warrant, so she did all that she could and was expected to do.
The plaintiff, however, has submitted evidence in the form of relevant deposition testimony and exhibits that present a genuine issue of material fact as to whether the defendant Merrigan was the actual or proximate cause of the harm that occurred to the plaintiff. The plaintiff cites deposition testimony for the proposition that the warrant was delivered to the liaison officer, returned to the clerk's office and placed in the Soderlund case file. (Plaintiff's Appendix A23-54, A55-71, A72-79, A93-130.) Other deposition testimony is cited for the proposition that the defendant Merrigan directed the warrant for a failure to appear be entered into the statewide computer a month after the criminal Soderlund case was closed. (Plaintiff's Appendix A18.) Further deposition testimony of the state's attorney is cited to show that a warrant for a failure to appear "has never left the State's Attorney office after a notice to vacate was ordered by the court." (Plaintiff's Appendix A143-44.) As such, there is a material issue of fact as to when the warrant and the notice to vacate were delivered to the defendant Merrigan and what action she subsequently took. The issue of causation is one for the trier of fact on this count because a fair and reasonable person could reach more than one conclusion as to the issue of causation. See Abrahams v. Young Rubicam, Inc., supra, 240 Conn. 307.
COUNT TWO I. Liability of City of Meriden for Negligence
The law governing the liability of a municipality for its negligence and that of its agents and employees in Connecticut is well settled. "General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages." Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). The statute provides in relevant part: "[e]xcept 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 . . ." General Statutes § 52-557n.
"In Spears v. Garcia, 263 Conn. 22, 818 A.2d 37 (2003), the [Supreme Court] concluded . . . § 52-557n allows a plaintiff to bring a direct cause of action for negligence against a political subdivision of the state." Pane v. Danbury, 267 Conn. 669, 677-84 n. 9, 841 A.2d 684 (2004).
The defendants argue that "[t]he plaintiff has claimed that an allegedly negligent violation of Conn. Gen. Stat. § 54-142a(a) and § 54-142a(e) by the defendant Officer Merrigan creates a private cause of action by which the plaintiff can pursue her claim against Officer Merrigan and the City of Meriden." In count two, paragraph eleven, of her complaint, however, the plaintiff alleges that "[t]he liability of the City of Meriden is based upon Conn. Gen. Stat. § 52-557n." In paragraph eight of count two the plaintiff cites General Statutes § 54-142a(a) for the proposition that the defendant City of Meriden "is mandated . . . to erase all police records whenever a criminal case is dismissed and further is mandated under Conn. Gen. Stat. § 54-142a(e) to not disclose said erased records." The plaintiff thus bases her ability to bring this negligence claim against the municipality upon § 52-557n, and argues that the defendants' actions were negligent as a result of both the ministerial duty to vacate the warrant pursuant to the court order, as described in Soderlund v. Merrigan, supra, 110 Conn.App. 400, and the alleged violation of § 54-142a. As such, the plaintiff has properly brought her claim of negligence pursuant to § 52-557n, and the same genuine issues of material fact that exist relevant to count one are also present in count two.
As a point of clarification: although briefing was extended by your honor on June 23, 2009, on the issue of how the ministerial acts, as described by the Appellate Court in their review of the prior decision, relate to the plaintiff's negligence claims against the defendants, the parties have not provided substantial insight into the issue. The defendants did further argue that the plaintiff has not properly stated a private cause of action because § 54-142a does not provide such. The plaintiff responds by arguing that the erasure statute, § 54-142a, creates a duty, breach of which is negligence per se. The plaintiff cites Appellate Court authority for her negligence per se argument, but nothing for the proposition that § 54-142a creates a duty and private cause of action other than, as previously stated, "the Appellate Court opinion [in Soderlund], a reading of the statute at (f) and the fact that all cases cited by the defendant are not on point."
In Commercial Union Ins. Co. v. Frank Perrotti Sons, Inc., 20 Conn.App. 253, 258, 566 A.2d 431 (1989), the Appellate Court held that "[i]f a plaintiff alleges that a statute . . . has been violated, thereby relying on negligence per se, and also alleges that there is a causal connection between such negligence and the injuries sustained, a cause of action has been stated." Although the parties' progression of argument is confusing, the plaintiff seem to argue that it thus follows that as a matter of law she has properly alleged a cause of action by basing the municipality's liability under § 52-557n and the officer's negligence under a violation of § 54-142a.
Conversely, the defendants cite to Superior Court case law in support of their argument that no such private cause of action exists under § 54-142a(f). In Ferdinand v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 97 0401180 (January 28, 2003, Skolnick, J.) ( 34 Conn. L. Rptr. 65), the plaintiff brought suit against the City of New Haven and several police officers in four counts, alleging that "they negligently failed to comply with General Statutes . . . § 54-142a" by failing to comply with the mandates of the erasure statute. The court noted that "[a]bsent from the text of either subdivision [of § 54-142a] is express authorization for a private cause of action for a violation of the statutory erasure provisions." Id. The court granted the defendants' motion to strike the entire complaint, holding that "no private right of action is allowed for violation of the statutory erasure provisions," citing Ericksen v. Rocky Hill, Superior Court, judicial district of Hartford, Docket No. CV 93 0529218 (November 3, 1995, Corradino, J.) ( 15 Conn. L. Rptr. 431) and Saccente v. Rocky Hill, Superior Court, judicial district of Hartford, Docket No. CV 93 0529219 (January 23, 1995, Wagner, J.) ( 13 Conn. L. Rptr. 382) for the same proposition, as is noted by the defendants in their brief here. Ferdinand v. New Haven, supra, 34 Conn. L. Rptr. 65.
Unlike Ferdinand, however, the plaintiff here also claims liability of the defendant city of Meriden in count two pursuant to § 52-557n. None of the cases cited by the defendants discuss the claim against the municipality as being brought under § 52-557n as well. Perhaps more importantly, the Appellate Court has already ruled in this case that the defendants had a ministerial duty to vacate the plaintiff's arrest warrant as a result of the court order, which appears to be independent of the parties' arguments related to § 54-142a. Soderlund v. Merrigan, supra, 110 Conn.App. 400. Accordingly, summary judgment cannot be granted as a matter of law on count two.
This is an important distinction, as the Superior Court in Ferdinand stated that "[t]he plaintiff's argument that he is not bringing claims based on a violation of § 54-142a, but instead, based upon tort claims is without merit. The tort claims could not have arisen absent the defendants' alleged violation of § 54-142a." Ferdinand v. New Haven, supra, 34 Conn. L. Rptr. 65. Such is not the case here, where the Appellate Court has found an independent ministerial duty to vacate an arrest warrant based on the court order.
COUNT THREE I. Indemnity
In count three the plaintiff seeks indemnity from the defendant City of Meriden for the alleged negligence of its employee defendant Merrigan pursuant to General Statutes § 7-465.
General Statutes § 7-465 provides in relevant part: "(a) Any . . . city . . . notwithstanding any inconsistent provision of law, general, special or local, 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 person's civil rights or for physical damages to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment . . ."
"A plaintiff bringing suit under General Statutes § 7-465 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." (Emphasis in original.) Fraser v. Henninger, 173 Conn. 52, 56-57, 376 A.2d 406 (1977).
In the present case, the defendants argue that because summary judgment must be granted as to count one, summary judgment must also be granted as to count three, since the plaintiff's claim for indemnification is dependent on the count alleging negligence on the part of the defendant Merrigan. As the court cannot enter summary judgment in favor of the defendant Merrigan in count one for the reasons detailed above, and the defendants' submit no other argument as to why summary judgment should be granted as to count thee, the defendants motion for summary judgment as to count three must be denied.
CONCLUSION
As stated by the Appellate Court in Soderlund v. Merrigan, supra, 110 Conn.App. 401, "[t]here are questions of material fact at issue in the present case. There is conflicting testimony as to where the missteps occurred." Although the Appellate Court had "no opinion as to whether the plaintiff [could] prove that the defendants were negligent in failing to vacate the warrant," the defendants here have not shown that no genuine issues of material fact exist on the common-law negligence claim brought by the plaintiff in count one. Id. Further, the plaintiff has submitted evidence raising a genuine issue of material fact as to whether or not the defendants were negligent. As such, summary judgment cannot enter on count one.
As to count two, summary judgment cannot enter because the plaintiff bases her ability to bring a negligence claim against the municipality upon § 52-557n. The plaintiff argues that the defendants' actions were negligent as a result of both the ministerial duty to vacate the warrant pursuant to the court order, as described in Soderlund v. Merrigan, supra, 110 Conn.App. 400, and the alleged violation of § 54-142a. As such, the plaintiff has properly brought her claim of negligence pursuant to § 52-557n, and the same genuine issues of material fact that exist relevant to count one are also present in count two.
Finally, summary judgment cannot be granted on count three because summary judgment is denied as to count one.