Opinion
No. CV 06-5003842
September 29, 2008
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT No. 124
On May 16, 2004 the plaintiffs in this matter attended a parade conducted, in part, in the streets of New Haven. The parade was organized and presented by Freddy Fixer, Inc. and is known as the Freddy Fixer Parade. The City of New Haven, through its police department, provided security during the parade and is a defendant to this action. Malvin Howard was the operator of a motorcycle.
The plaintiffs allege that, while attending the parade, they suffered injuries as a result of a motorcyclist crashing into the crowd after losing control of his motorcycle. The plaintiffs claim that the city was negligent in providing the security necessary to have prevented the motorcycle accident and, therefore, is liable for the plaintiffs' alleged injuries. Specifically the plaintiffs allege the city was negligent in that:
a. they failed to erect barriers between the spectators and the vehicles participating in the parade;
b. they failed to adequately supervise the parade participants to ensure that they operated their vehicles safely;
c. they failed to warn spectators about the lack of barriers and the risk that they could be harmed by a vehicle participating in the parade; and
d. they failed to have an adequate amount of police personnel monitoring the conduct of the parade participants.
The defendant Freddy Fixer filed an apportionment complaint against Malvin Howard, the operator of the motorcycle that struck and injured the plaintiffs. The city of New Haven filed several special defenses, specifically that they were entitled to common-law and statutory governmental immunity, that the plaintiffs were contributorily negligent and that the conduct of Malvin Howard was an intervening and superceding cause of the harms claimed by the plaintiffs.
The defendant, New Haven, moves for summary judgment on the grounds that the municipality is immune from suit in this matter, that there is no exception to immunity, and that the plaintiffs have not pleaded facts sufficient to establish causation. Supporting the motion are excerpts from several depositions, map of the parade route, and other documentation. The plaintiffs oppose this motion asserting that Gen. Stat. 7-284 creates a ministerial duty on New Haven or at the very least an issue of fact as to whether the police department's acts and/or omissions were ministerial or discretionary. Further the plaintiffs claim that causation is necessarily fact based and therefore inappropriate for resolution by a motion for summary judgment. The plaintiffs support their opposition to this motion with an excerpt of a deposition.
DISCUSSION
[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).
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.)
Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).
In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 him to a judgment as a matter of law. (Internal quotation marks omitted.)
Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
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 plaintiffs claim and involves no triable issue of fact. (Internal quotation marks omitted.)
Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
Only one of [a defendant's] defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried. (Internal quotation marks omitted.)
Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).
FACTS
On May 16, 2004, during a parade sponsored by the defendant, Freddy Fixer, Inc. (Freddy Fixer), the plaintiffs, Ronald Walker, individually and as PPA for each of his minor children, Amy Walker and Patrick Millinghaus, Lyntina Cook, PPA Angelina Cook, Angelina Cook, Olevia Cook and Randy Wiggins allege they suffered various injuries when apportionment defendant Malvin Howard, Jr. (Howard), lost control of his motorcycle and allowed it to crash into them during the parade.
In their sixteen-count complaint the plaintiffs allege that their injuries were caused by negligence on the part of both Freddy Fixer, and the defendant, the city of New Haven. Counts one, three, five, seven, nine, eleven, thirteen and fifteen are directed to the defendant Freddy Fixer, Inc. Counts two (Amy Walker ppa Ronald Walker), Count four (Patrick Millinghaus ppa Ronald Walker), Count six (Lyntina Cook ppa Angelina Cook), Count eight (Olevia Cook), Count ten (Randy Wiggins), Count Twelve (Ronald Walker), Count fourteen (Ronald Walker), and Count sixteen (Angelina Cook) are directed against the city of New Haven. These counts are the subject of this motion for summary judgment.
A. Qualified Governmental Immunity
The plaintiffs bring their suit under Connecticut General Statutes § 52-557n.
When negligence is alleged against a municipality, our Supreme Court has stated that [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [H]owever, that governmental immunity may be abrogated by statute . . . General Statutes § 52-557n(a)(1) provides in relevant part: Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he 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 . . . [T]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents, except under the circumstances set forth in subsection (a)(2)(B). (Internal quotation marks omitted.)
Grignano v. Milford, 106 Conn.App. 648, 652-53, 943 A.2d 507 (2008). The statute itself, however, goes on to say that immunity may survive because
a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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. Connecticut General Statutes § 52-557n(a)(2).
New Haven claims immunity because its police department was acting in a discretionary, rather than ministerial, manner when it was planning and executing the security plan for the Freddy Fixer Parade. The defendant Freddy Fixer, Inc. applied for an "Obstruction Permit" to conduct the parade. The application detailed the route and length of the parade, approximately two miles. After review, the police department developed a "Special Events Detail" designating a detail supervisor and identifying additional personnel and assigning them general responsibilities. The plaintiff complains that the City failed to erect barriers, failed to supervise parade participants, failed to warn spectators of the lack of barriers and the risk of harm from vehicles participating in the parade and that they failed to have an adequate number of personnel to monitor parade participants.
For example, motorcycle units were "to ensure the entire route has been properly posted"; traffic control was detailed to "keep traffic moving and close off same when notified by the traffic supervisor, using good judgment for local access whenever possible;" barricade locations were identified for particular intersections along the parade route.
The City asserts that each of the plaintiffs' negligence allegations involve the governmental and discretionary actions of its employees. The governmental versus ministerial functions of a public employee are described in the statute above, as well as in common law.
The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . 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, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The question before the court then, is whether the city had discretion in providing parade security. The plaintiffs, in opposing the motion for summary judgment, claim that New Haven had a statutory obligation to provide security for the parade and that the effect of this statute is to render the defendant's role as ministerial. Connecticut General Statutes § 7-284, provides:
When police protection is necessary or required at any boxing bout or wrestling match, place of public amusement, sport contest or hockey, baseball or basketball game, or any other exhibition or contest, which is being held or is to be held in any municipality, the amount of such protection necessary shall be determined and shall be furnished by (1) the chief or superintendent of the police department in any municipality having an organized or paid police department or (2) the commanding officer of the state police troop having jurisdiction over the municipality in any municipality having a resident state trooper. Any such protection shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest.
The City first argues that this statute does not apply to parades, as the only categories which parades might fall under in the statute, "public amusements" or "exhibitions," have been defined in caselaw in a manner that does not explicitly include parades. See Morascini v. Commissioner of Public Safety, 236 Conn. 781, 236 A.2d 1340 (1996) (Using caselaw from New York and South Carolina, as well as various law dictionaries, to determine that § 7-284 applies to concerts). The case cited by the defendant for the definitions, however, does not necessarily exclude parades either. The Merriam Webster On-line Dictionary defines "Parade" as "a pompous show: exhibition." The Random House Dictionary defines "Parade" as "a large public procession, usually including a marching band and of a festive nature, held in honor of an anniversary, a person, or an event." Among the purposes that parades are held include amusement of the public, albeit at a public venue rather than a theatre, and parades are by definition "exhibitions."
"The word `amusement' means anything that amuses, as an entertainment or spectacle . . . Radcliffe v. Query, 153 S.C. 76, 150 S.E. 352 [1929]." 4 Am.Jur.2d 121 n. 1, Amusements and Exhibitions § 1.
A statute providing for the regulation of places of amusement includes all classes of public exhibitions, such as are usually conducted upon a stage for the observation and amusement of the public. Hence, a place of public amusement where concerts are given upon a stage is within its terms. New York v. Eden Musee American Co., 102 N.Y. 593, 8 N.E. 40 [1886].
Id.
"Theaters and concert halls are places of public amusement . . ." Id., pp. 121-22, citing People ex rel McShane v. Keller, 96 Misc. 92, 161 N.Y.S. 132 (1916). A "place of amusement" is "[a] place to which people resort for diversion or pleasure, some being exhibitive and others participative, the former being represented by theaters, stadiums, and so forth and the latter by skating rinks, bowling alleys and so forth." Ballentine's Law Dictionary (3d Ed. 1969)." Morascini v. Commissioner of Public Safety, 236 Conn. 781, 788 (1996).
In the court's view parades fall within the purview of the statute, Gen Stat. 7-284. A reading of the statute makes it evident that it does not state that such events must have police protection. The statute only applies "when" police protection is deemed necessary or required. It does not state that such events automatically trigger a need for the municipal police to provide such services. Also, when such protection is thought to be necessary or required, the statute leaves it up to the discretion of the police in determining the manner in which the security is to be provided. The only requirements created by the statute relate to identifying the municipal employee responsible for making the logistical determinations for the security, as well as stating that the person or organization presenting the event, and not the municipality, is responsible for paying for the police services. This court, in addressing an earlier issue pertaining to the present suit, stated that § 7-284
places the discretion to determine the amount of security, and the determination of types of security required, within the local police department. The plaintiffs' complaints regarding the erection of barriers or the failure to have an adequate amount of security personnel to monitor the conduct of parade participants, would appear to fall within the purview of the statute.
Walker v. Freddy Fixer, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5003842 (March 31, 2008, Cosgrove, J.) [45 Conn. L. Rptr. 311].
While this statute does apply to the City in the circumstances of this case, it does not create a ministerial duty. In complying with the statute the municipal employees were acting in a discretionary, governmental manner. Further, under a common-law analysis, the conduct complained is governmental and discretionary in nature and therefore the City is entitled to qualified immunity.
Consequently, absent the application of an exception to immunity, the defendant's actions in planning and executing the security plan are shielded by the doctrine of qualified governmental immunity. The statute and the common law permit the police department to employ its expert judgment, and generally the judgments are shielded from liability by the doctrine of qualified immunity.
In arguing that the municipal police are imbued with discretionary authority, the defendant cites the Supreme Court decision in Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988):
[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 . . . [T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city. The deployment of officers is particularly a governmental function. Considerable latitude must be allowed to [a police chief] in the deployment of his officers . . . Indeed, because a police chief's authority to assign his officers to particular duties is deemed a matter that concerns the public safety, he may not be deprived of his power to exercise his own discretion safety, he may not be deprived of his power to exercise his own discretion and judgment as to the number, qualifications and identity of officers needed for particular situations at any given time . . . (Citations omitted, internal quotation marks omitted.)
Id., 180.
B. Exceptions to Government Qualified Immunity
The immunity for a discretionary act can be abrogated under certain circumstances. "We will permit official liability for discretionary acts only if 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." Fleming v. Bridgeport, 284 Conn. 502, 533, 935 A.2d 126 (2007).
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 . . . (Citations omitted, internal quotation marks omitted.)
Violano v. Fernandez, supra, 280 Conn. 319-20. As § 7-284 does not provide a separate cause of action, the only potentially available exception to immunity that would be applicable would be the identifiable person and imminent harm exception.
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.)
Violano v. Fernandez, supra, 280 Conn. 329.
[T]he criteria of "identifiable person" and "imminent harm" must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person.
Doe v. Petersen, 279 Conn., 607, 620-21, 903 A.2d 191 (2006).
[T]he question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts . . .
Durrant v. Board of Education, 284 Conn. 91, 100, 931 A.2d 859 (2007).
The "discrete person/imminent harm" exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state.
Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989).
Examining the cases where the identifiable person/imminent harm exception has been discussed, it usually applies in a situation where the injured party was either required to be in the location where they were injured or was known to be there at a particular time. For instance, students on school grounds during school hours are often found to be identifiable persons. See Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998) (School students are subject to a limited time period and geographic location, making it possible for a jury to find them subject to imminent harm). Whereas, a parent who is visiting school grounds, either escorting the student or as a spectator at a sporting event, has not been deemed as an identifiable person. See Durrant v. Board of Education, supra, 284 Conn. 91; Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005) (Parents are not the intended beneficiary of the duty the school owes, students are the only foreseeable victim). Also, the identifiable person/imminent harm exception was not found to apply when a police officer could not have been aware that a particular motorist posed an imminent harm to an identifiable person. Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982) (Qualified immunity found to apply when an intoxicated driver responsible for a fatal automotive accident had been pulled over by police prior to the accident but permitted to continue).
In the case before the court, there is a difference between members of the general population voluntarily attending a parade and school children who are required to attend school. Declaring spectators at a parade to be identifiable victims would expand the immunity exception to a point far beyond a level that has been accepted by courts in this state. Even if the plaintiffs were identifiable victims, it is not evident that the alleged facts reflect an imminent harm. A motorcycle rider in a parade losing control of his motorcycle and striking onlookers is distinguishable from situations involving students on school grounds. Until the motorcycle lost control, it was unknown that it posed an imminent harm to a particular identifiable person. It could not have been foreseen to a degree that would permit a responsible official the time to identify the situation and act to remedy it. Consequently, neither the identifiable person or imminent harm prongs required to grant the exception immunity are met.
C. Causation
The defendant, to augment its argument that summary judgment should be granted, claims that for a jury to find that the actions of the municipality were the cause of the plaintiffs' injuries would require the jury to make inferences based on sheer speculation. Even if the plaintiffs could successfully argue that the actions of municipality in providing security along the parade route were indeed the cause of the injuries the issue need not be decided upon because the municipality is entitled to immunity and no exception to that immunity will apply.
CONCLUSION
Section 7-284 of the Connecticut General Statutes does not impose a ministerial duty on a municipality. As such, New Haven is entitled to qualified immunity in this matter. The plain language of the statute is clear in that the municipality has discretion in deciding whether to provide security for an event and to what degree. The plaintiffs do not fall within any exception to the application of the qualified immunity doctrine. The defendant City's motion for summary judgment is granted.