Opinion
No. CV05 4002396-S
July 13, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #123
FACTS
The plaintiff, Sandra Soderlund, brings this action against Janice Merrigan, a Meriden police officer, and the City of Meriden. Count one, in negligence, is directed against Merrigan; counts two and three, in negligence and indemnity, respectively, are directed against the City of Meriden.
In her complaint, the plaintiff makes the following allegations:
1. That on January 27, 2001, the plaintiff was arrested by the Meriden Police Department pursuant to a January 21, 2000 arrest warrant charging her with failure to appear.
2. That following her arrest the plaintiff was held in lieu of bond until her release by the Superior Court, G.A. 7 on January 29, 2001.
3. That the January 21, 2000 arrest warrant was vacated on March 9, 2000, by the Superior Court at Meriden.
4. That the state attorney's office in Meriden gave written notice of the court's order vacating the arrest warrant to Officer Merrigan, who was the liaison between the Meriden police department and the Superior Court. Merrigan personally delivered the notice to vacate to the Meriden police department.
5. That the city of Meriden was given specific instructions by the Superior Court to locate the original warrant and return it to the Superior Court immediately, and was advised in writing that "[t]he execution of this warrant after receipt of this notice may result in claims for money damages against the state of Connecticut and liability for civil money damages imposed against your agency."
6. That Merrigan had a duty to remove the arrest warrant from Meriden police records and the statewide computer system and a duty to act in accordance with General Statutes § 54-142a(a) and (e)
7. That Merrigan failed to take reasonable steps to perform her duties by allowing the arrest warrant to be disseminated to other police officers, by failing to tell other police officers that the arrest warrant had been vacated and by failing to remove the vacated warrant from the city and statewide computer system.
8. That the city of Meriden was negligent in the following ways: it failed to take reasonable steps to remove the arrest warrant from Meriden police records and the statewide computer; it failed to act in accordance with General Statutes § 54-142a(a) in failing to erase the charge; it failed to act in accordance with General Statutes § 54-142a(e) in allowing the arrest warrant to be disseminated to other police officers; it failed to exercise due care in communicating and sharing information regarding the arrest warrant with police officers; it failed to tell police officers that the arrest warrant had been vacated; and that the liability of Meriden is based upon General Statutes § 52-557n.
The defendants now move for summary judgment arguing that the principles of governmental immunity bar the plaintiff's action against defendant Merrigan and the City of Meriden.
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." (Citation omitted; internal quotation marks omitted.) Morris v. Congdon, 277 Conn. 565, 568-69, 893 A.2d 413 (2006). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. . . 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.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006). "A motion for summary judgment is properly granted if it 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.) Rosato v. Mascardo, 82 Conn.App. 396, 400, 844 A.2d 893 (2004).
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents. . . be made under oath or be otherwise reliable." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 233-34 n. 10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
As previously noted, Merrigan and the city of Meriden move for summary judgment claiming that there is no genuine issue as to any material fact and they are entitled to a judgment as a matter of law because the plaintiff's claims of negligence against the defendants are barred by the doctrine of governmental immunity. In their memorandum of law, Merrigan and the city of Meriden argue that "the plaintiff does not fall under any of the exceptions that abrogate governmental immunity involving discretionary acts" because "the plaintiff does not qualify as an identifiable victim subject to imminent harm."
In her memorandum in opposition, the plaintiff argues that there are genuine issues of material fact as to what caused the delay in entering the vacated arrest warrant into the computer and why the cancellation of the warrant was not entered into the computer or made a part of the court file in March 2000. The plaintiff further argues that Merrigan owed a mandatory duty to the plaintiff to distribute the notice to vacate the warrant and to enter in into the statewide computer in compliance with General Statutes § 54-142(a) and (e) and was negligent in the manner in which she carried out this duty. The plaintiff also argues that Meriden failed to provide adequate training and supervision to Merrigan and failed to take reasonable steps to correct the existing problems with transferring notices to vacate from the court to the police department. With regard to the issue of governmental immunity, the plaintiff argues that, in order to find that Merrigan's acts were discretionary, the court must find that Merrigan had discretion to: (1) remove the arrest warrant from police records; (2) to direct the dispatch officer to enter a vacated warrant into the statewide computer; and (3) to allow the plaintiff to continue to be held in custody even though she had notice that the arrest warrant was vacated. The plaintiff further contends that, "even if the acts were discretionary, in order to find for the defendants, the court must find that the notices to vacate do not create a court order, that General Statutes § 52-557n does not provide for a cause of action for failure to obey a court order or for failure to obey General Statutes § 54-142a, or that the plaintiff was not an identifiable person subject to imminent arrest since the moment Merrigan published the vacated warrant." The plaintiff argues that she was an identifiable victim and the likelihood of arrest was imminent from the moment the vacated warrant was published to other police officers.
"The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides that `[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. . .' Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by `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.'" Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006).
"The issue of governmental immunity is simply a question of the existence of a duty of care, and [the Supreme] [C]ourt has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). "[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court. . ." (Internal quotation marks omitted.) Colon v. Board of Education, 60 Conn.App. 178, 181, 758 A.2d. 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).
"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318-19. Consequently, in deciding whether the plaintiff's claims are barred by governmental immunity, the threshold question is whether the municipal official's and municipality's acts at issue were ministerial or discretionary.
"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. . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318. In order to establish that the acts or omissions complained of were ministerial in nature, the plaintiff must allege and demonstrate that the defendants were "required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to [act] in any prescribed manner." Id., 323 Moreover, it must be apparent from the plaintiff's complaint that the defendants were performing a ministerial function. See Colon v. Board of Education, supra, 60 Conn.App. 182 (finding defendant's actions were discretionary because it was apparent from complaint that defendant was not performing ministerial duty). Governmental immunity applies where the plaintiff fails to allege the existence of any directive describing the manner in which the duty was to be performed. Id., 182-83.
In addition, "[i]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988). "While it is so that statutes, regulations, and policies can create ministerial duties, when they relate to fire, police, or other public safety services, they are most often held to create discretionary duties. See, e.g., Evon v. Andrews, [ 211 Conn. 501, 505, 559 A.2d 1131 (1989)]; Gordon v. Bridgeport Housing Authority, [ supra, 208 Conn. 169-70]; Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982); Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979); Stiebitz v. Mahoney, 144 Conn. 443, 446, 134 A.2d 71 (1957); Alexander v. Vernon, Superior Court, Complex Litigation Docket at Tolland, Docket No. X07 CV 02 0078935 (May 3, 2004, Sferrazza, J.)." Assurance Co. of America v. Yakemore, 50 Conn.Sup. 28, 43, 911 A.2d 777 (2006). "The Superior Court has consistently held that the [a]cts and omissions of police officers in the exercise of their duties are discretionary in nature; Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven, Docket No. CV 00 0436800 (July 23, 2003, Arnold, J.), aff'd, 83 Conn.App. 903, 853 A.2d 650, cert denied, 270 Conn. 917, 853 A.2d 531 (2004); see also 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); Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. CV 95 0321879 (March 12, 1998, Nadeau, J.). . ." (Internal quotation marks omitted.) Susman v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0468497 (May 9, 2007, Skolnick, J.T.R.).
In the present case, the plaintiff alleges that Merrigan and the city of Meriden were negligent in failing to take reasonable steps to remove the arrest warrant from the police records and the statewide computer and in failing to act in accordance with General Statutes § 54-142a(a) and (e). The plaintiff argues that subsections (a) and (e) of General Statutes § 54-142a create a duty to enter a notice to vacate an arrest warrant into the statewide computer, to distribute the information about the notice to vacate to other police officers and to refrain from dissemination information about arrest warrant to other police officers. The plaintiff's argument is without merit.
General Statutes § 54-142a(a) provides in relevant part: "(a) Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken." (Emphasis added.) An arrest warrant for failure to appear is not a final judgment. Therefore, General Statutes § 54-142a does not apply to the arrest warrants for failure to appear. Moreover, even if General Statutes § 54-142a would create a duty to erase the plaintiff's warrant record, it does not prescribe the manner in which it must be done. The manner in which police officers' duties are to be performed is discretionary in nature. Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180.
Subsection (e) further provides that "the clerk of the court or any person charged with retention and control of such records in the records center of the Judicial Department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record. . . information pertaining to any charge erased under any provision of this section and such clerk or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. Such clerk or such person, as the case may be, shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records. . ." General Statutes § 54-142a(e).
Furthermore, while General Statutes § 7-148(c)(4)(A) provides that municipalities have power to "[p]rovide for police protection, regulate and prescribe the duties of the persons providing police protection with respect to criminal matters within the limits of the municipality and maintain and regulate a suitable place of detention within the limits of the municipality for the safekeeping of all persons arrested and awaiting trial and do all other things necessary or desirable for the policing of the municipality," it does not direct municipalities to do so in any prescribed manner. Moreover, the plaintiff's allegation that Merrigan and the city of Meriden "failed to take reasonable steps" in performing their duties, further indicates that the duties were discretionary, as the determination of what is "reasonable" necessarily involves judgment or discretion. Violano v. Fernandez, 88 Conn.App. 1, 10, 868 A.2d 69 (2005), aff'd, 280 Conn. 310, 907 A.2d 1188 (2006). The allegation that the notice to vacate contains "specific mandated instructions by the Superior Court to locate the original warrant and all copies of the warrant and return them to the Superior Court immediately" is insufficient to establish the existence of a ministerial duty, as it does not indicate the time or the manner in which these instructions were to be performed.
Therefore, the plaintiff has failed to allege and prove the existence of any ordinance, regulation, rule, policy or any other clear directive requiring Merrigan to act in any prescribed manner with respect to handling of the notices to vacate arrest warrants or requiring the city of Meriden to train and supervise the police officers in a prescribed manner.
For the reasons stated above, the acts of Merrigan in handling of the notice to vacate an arrest warrant and the acts of the city of Meriden in supervising and training police officers are discretionary acts and, consequently, the discretionary act immunity applies.
"There are three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force. . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. . . Third, 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. 319-20. The resolution of the present case turns on whether the third exception applies.
"Discretionary act immunity is abrogated 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." (Citation omitted; internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 616.
In the present case, the plaintiff argues that she was an identifiable victim and it was apparent to Merrigan and the city of Meriden that the failure to take reasonable steps to enter the notice to vacate the arrest warrant into statewide computer would subject the plaintiff to imminent harm. The defendant argues that the risk of harm was not imminent.
It is undisputed that the plaintiff was identified on the notice to vacate the warrant. Nevertheless, the plaintiff failed to establish that it was apparent to Merrigan and the city of Meriden that the harm to the plaintiff was imminent.
"A number of [the Supreme Court's] decisions. . . 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, supra, 279 Conn. 618 n. 10 (affirming trial court's finding that imminent harm exception only applies to temporary hazardous conditions confined to limited temporal and geographical zone.) In Purzycki v. Fairfield, 244 Conn. 101, 110, 708 A.2d 937 (1998), the court concluded that the abrogation of governmental immunity was appropriate where "the jury reasonably could have found a foreseeably dangerous condition that was limited in duration and geographical scope." In Evon v. Andrews, supra, 211 Conn. 508, the court found that the imminent harm exception did not apply to the plaintiff's decedent who was killed in an apartment hour fire because, inter alia, "the risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. . . [and because] the [victims of fire] were not subject to imminent harm."
The imminent harm exception applies where "the danger involved a limited time period and limited geographical area. . . [and] the risk of harm was significant and foreseeable. . ." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 331. Where the harm, of which the plaintiff purports to be the victim, could have occurred at some unspecified time in the future or not at all, such harm is not imminent for the purpose of abrogating the discretionary act immunity. Evon v. Andrews, supra, 211 Conn. 508.
In the present case, it is undisputed that the arrest of the plaintiff occurred in Cheshire in January 2001, ten months after the arrest warrant was vacated. Therefore, the plaintiff's allegations and the supporting documentation demonstrate that the danger, i.e., the arrest of the plaintiff, did not involve a limited time period or a limited geographical area. The arrest could have occurred at some unspecified time in the future or not at all and did not involve a limited geographical area.
CONCLUSION
Accepting all of the plaintiff's allegations as true, the court finds that she has failed to demonstrate that she was subject to imminent harm as a result of the negligence on the part of Merrigan and the city of Meriden. Merrigan and the city of Meriden met their burden of showing that there is no genuine issue of any material fact and that they are entitled to a judgment as a matter of law because the plaintiff's negligence claims against them are barred by governmental immunity.
Accordingly, the defendants motion for summary judgment is granted.
Because the court finds that the plaintiff's claims against Merrigan and the city of Meriden are barred by governmental immunity, the court need not address either the plaintiff's claim in count three, seeking indemnification from the city of Meriden or the argument of Merrigan and the city of Meriden that the facts fail to establish the plaintiff's claim of negligence.
SO ORDERED.