Opinion
No. CV 04 0832044S
November 15, 2005
MEMORANDUM OF DECISION ON DEFENDANTS, TOWN OF WEST HARTFORD AND WEST HARTFORD POLICE DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT
The plaintiffs, Cheryl and Timothy Disabella, bring this action by way of an eleven-count Complaint for injuries allegedly sustained as a result of plaintiff Timothy Disabella's arrest on January 19, 2002. Specifically, the plaintiffs allege that, on January 19, 2002, they were en route to St. Francis Hospital as plaintiff Cheryl Disabella was in labor. The plaintiffs allege they were traveling to the hospital and were stopped by the co-defendant, Officer Samuel Ferrucci, for allegedly traveling too fast for snowy conditions. The plaintiffs claim that they advised Officer Ferrucci that plaintiff Cheryl Disabella was in labor and had to get to the hospital. They further claim that Officer Bernicci disregarded their concerns of getting to the hospital, and was focused solely on the traffic stop. As a result, the plaintiff, Timothy Disabella, advised Officer Ferrucci that they were going to the hospital and drove away. Officer Ferrucci followed the plaintiffs to the hospital.
The plaintiffs allege that, shortly thereafter, Officer Ferrucci and Officer David Dubiel arrived at the hospital and had plaintiff Timothy Disabdfla removed from the labor and delivery room, placed him under arrest and took him into custody.
Nine of the eleven counts of the Complaint are directed to the co-defendants, Samuel Ferrucci, David Dubiel and James Stillacci, Chief of Police for the Town of West Hartford, and allege intentional and negligent infliction of emotional distress, failure to train, false light, breach of duty and false imprisonment.
The Sixth and Seventh Counts of the Complaint are directed to the defendants, Town of West Hartford and West Hartford Police Department. Specifically, in the Sixth Count, the plaintiff alleges that the West Hartford Police Department had a duty to: (1) ensure that police officers are properly trained to handle situations whereby medical emergencies are discovered during a traffic stop and to use good judgment in dealing with such situations; and (2) ensure that police officers, are properly trained to investigate situations by interviewing witnesses. Finally, the plaintiffs allege that the West Hartford Police Department breached the above duties in failing to train co-defendants, Officers Ferrucci and Dubiel, resulting in injury to the plaintiffs.
The Seventh Count of the Complaint, directed to the Town of West Hartford, alleges an identical claim of failure to properly train the police officers.
On June 10, 2005 the defendants, Town of West Hartford and West Hartford Police Department filed a motion for summary judgment as to the Sixth and Seventh Counts of the Complaint. On September 23, 2005, the plaintiffs filed an objection. Both sides have submitted memoranda of law.
I
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." Practice Book § 17-49. A "material fact" is a fact that will make a difference in the outcome of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971). While the party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, the opposing party must present evidence demonstrating the existence of such an issue. Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). "It is not enough, however, for the opposing party merely to assert the existence of . . . 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 [in support of a motion for summary judgment.]" Water Way Properties v. Clot's Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994).
In deciding a motion for summary judgment, "the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990); Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 387, 717 A.2d 811 (1998). 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." Perrile v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985); Beebe v. East Haddam, 48 Conn.App. 60, 64, 708 A.2d 231 (1998).
The question of municipal or governmental immunity is a question of law for the court and may be decided by way of a motion for summary judgment. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988); Purzycki v. Town of Fairfield, 244 Conn. 101, 108, 708 A.2d 937 (1998).
II
In the Sixth Count of their complaint, the plaintiffs allege a direct cause of action against the West Hartford Police Department for failure to properly train its police officers. The plaintiffs cannot, however, maintain a direct cause of action against the West Hartford Police Department.
In order to confer jurisdiction on the court the party must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to be sued. Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600 490 A.2d 1024 (1985). Entities which have no legal existence cannot sue or be sued. Id.
The Connecticut General Statutes contain no provision establishing municipal departments, including police departments, as legal entities separate and apart from the municipality they serve, or providing that they have the capacity to sue or be sued. See Weitz v. Greenwich Police Dept., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 04-0200464S (January 10, 2005, Jennings, J.) ( 38 Conn. L. Rptr. 512); Levine v. Fairfield Fire Dept., Superior Court, judicial district of Waterbury, Complex Litigation Docket No. X01-CV89-0146670S, (April 9, 1999, Hodgson, J.). Rather, pursuant to Connecticut enabling legislation, it is the municipality itself which possesses the capacity to sue and be sued. Id. "Unless departments within municipal government constitute distinct "bodies politic" under state law, the proper defendant is the municipality itself, not an administrative subdivision." Levine, supra. Accordingly, those Connecticut courts addressing this issue have held that municipal police departments do not constitute an independent legal entity amenable to suit. See also Warren v. Streater, Superior Court, judicial district of New Haven at New Haven, Docket No. 304012 (January 20, 1995, Fracasse, J.). Thus, the plaintiffs' claims against the West Hartford Police Department, as set forth in the Sixth Count of the Complaint, fails as a matter of law.
III
In the seventh count, the plaintiffs allege a direct cause of action against the defendant, Town of West Hartford, for failure to properly train its police officers.
This court already has held the police department cannot be sued as an independent entity in the sixth count. Assuming, arguendo, that the police department could be sued independently, the discussion on governmental immunity applicable to the seventh count would apply in identical fashion to the sixth count.
Although not specifically referenced in the sixth or seventh counts, the plaintiffs argue that General Statutes § 52-557n(a)(1)(A) abrogates the town and police department's immunity from suit, rendering them liable for the actions of employees, officers or agents who failed to properly train its police officers.
The determination as to whether the doctrine of government immunity applies to a municipality first depends upon whether the municipality was engaged in the performance of a government duty, namely a public duty as opposed to a private duty. Gordon v. Bridgeport Housing Authority supra, 208 Conn. 165-66. Under Connecticut law, where an act is such that its performance or omission affects an individual in a fashion different than the general public, the action is deemed private in nature. Roman v. Stamford, 116 Conn.App. 213, 230, 547 A.2d 94 (1988); affirmed, 211 Conn. 396, 559 A.2d 710 (1989) quoting Leger v. Kelly, 142 Conn. 585, 590-91, 116 A.2d 429 (1955). Conversely, an act which affects an individual in the same fashion as it would the general public is deemed public in nature. Id. In this case, the Town of West Hartford (and its police department) were engaged in the performance of a public duty in the operation and supervision of the police department.
In the instant matter, the plaintiffs allege acts and/or omissions on the part of the Town of West Hartford (and the police department) which breached a duty to (1) insure that police officers are properly trained to handle situations whereby medical emergencies are discovered during a traffic stop and to use good judgment in dealing with such situations, and (2) ensure that police officers are properly trained to investigate situations by interviewing witnesses. Such alleged duties fall squarely within the operation of the police department and therefore, constitute governmental, not private acts which may afford the municipality immunity.
Generally, a "municipality is immune from liability for [negligence] unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004); Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). General Statutes § 52-557n(a)(1) "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." Id., 29. General Statutes § 52-557n(a)(2), however, expressly makes a municipality not liable for "negligent acts or omissions which require the exercise of judgment or discretion . . ." In addition, "[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 . . . [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." (Internal quotation marks omitted.) Doe v. Board of Education, 76 Conn.App. 296, 300, 819 A.2d 289 (2003). Therefore, "barring the possible application of an exception, both municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliot v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998); see also Bonamico v. Middletown, 47 Conn.App. 758, 761, 706 A.2d 1386, remanded, 244 Conn. 923, 714 A.2d 8, vacated and remanded, 49 Conn.App. 605, 713 A.2d 1291 (1998). "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 exercise of judgment or discretion as to the propriety of the action," (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "[T]he determination as to whether governmental immunity may successfully be invoked by a municipality . . . turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint." Segreto v. Bristol, 71 Conn.App. 844, 854, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
In fact, plaintiffs specifically allege in their complaint that the duties they claim were breached required the exercise of "good judgment."
Although generally the determination of whether the acts or omissions of a municipality are discretionary in nature versus ministerial in nature is a question of fact for the jury, the determination maybe made as a matter of law where it is apparent from the complaint. Segreto v. Bristol, 71 Conn.App. 844, 855 (2002), citing Colon v. City of New Haven, 60 Conn.App. 178, 181-82, 758 A.2d 900 (2000); Evon v. Andrews, 211 Conn. 501, 505-07, 559 A.2d 1131 (1980), Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000); Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180; Redfearn v. Ennis, 28 Conn.App. 398, 401, 610 A.2d 1338 (1992).
It is firmly established that the operation of a police department by each town in this state is not meant to be performed in a prescribed manner without any allowance for discretion and judgment. The operations of a police department constitutes a governmental act such that its acts or omissions with regard to its operation ordinarily will not give rise to liability on the part of the municipality. Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180.
Several Connecticut courts have held that the act of training and supervision of police officers constitutes discretionary acts as a matter of law. Gordon, supra, 208 Conn. 179-80; Glorioso v. Police Dept. of the Town of Burlington, 49 Conn.Sup. 200 876 A.2d 160 (2004); Alexander v. Vernon, Superior Court, judicial district of Tolland, Complex Litigation Docket No. X07CV020078935S (May 3, 2004 Sferrazza, J.); Cook v. City of Hartford, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 89-0362482 (Aug. 31, 1992 Aurigemma, J.) ( 7 Conn. L. Rptr. 270); Czap v. Town of Newtown, Superior Court, judicial district of Danbury, Docket No. CV 95-0322425S (Dec. 18, 1998 Moraghan, J.). Specifically,
[t]he act of training and supervising police officers is clearly a discretionary governmental function. Considerations of who to hire, how to train such people, and how to supervise police officers on the job are decisions requiring the use of judgment and discretion. A municipality cannot employ a standard list of actions which must be taken in utilizing its police department.
Cook v. City of Hartford, supra, at *2.
Decisions on how to train officers with regard to traffic stops and investigations, and what such training should consist of, constitute discretionary governmental acts.
The plaintiffs argue that even if the town (and police department) would ordinarily be immune from liability in the operation of the police department, their immunity is also abrogated by the "imminent harm to identifiable persons" exception to the doctrine of governmental immunity, For this exception to apply, the plaintiff must allege facts sufficient to support a finding both that the plaintiffs were identifiable persons and that the plaintiffs were subject to imminent harm. See Shore v. Stonington, 187 Conn. 147, 156, 444 A.2d 1379 (1982). The identifiable person aspect of this exception has been construed "to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994). "[S]chool children who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." Purzycki v. Fairfield, supra, 244 Conn. 109; Burns v. Board of Education, supra, 228 Conn. 650; Sanchez v. New Milford, Superior court, judicial district of New Haven, Docket No. CV 01 0453299 (July 7, 2004, Arnold, J.). Even if the plaintiffs fall within such a narrowly defined class of foreseeable victims, the common-law identifiable person/imminent harm exception . . . has been determined to be inapplicable to any direct liability imposed against a municipality under § 52-557n. Recently, in Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004), the Connecticut Supreme Court addressed the issue of whether any exception to the doctrine of governmental immunity was applicable to claims against a municipality. Specifically, the Court noted that the exceptions to the doctrine of governmental immunity applicable to the conduct of municipal employees do not apply to the municipality itself. Thus, the Court explicitly noted that the identifiable victim/imminent harm exception is not applicable to claims against a municipality, In Pane, supra, at 686 n. 9, the Court stated ". . . there is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself `where 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' . . . That exception does not apply in this case because the claims against Merullo (the employee) have been withdrawn." Id.
Connecticut Superior Courts subsequently addressing this issue have held, consistent with the ruling in Pane, that the exceptions to governmental immunity are not applicable to claims against the municipality itself, but rather, they apply only to claims against the municipal employee. See Rodriguez v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 00 0437974 (June 25, 2004, Licari, J.); Zaborowski v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV04-0093025S (February 2, 2005, Brunetti, J.) ( 38 Conn. L. Rptr. 638); Sanchez v. New Milford, Superior Court, judicial district of New Haven at New Haven, Docket No. CV01-0453299S (July 7, 2004, Arnold, J.); Coggins v. New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 00-0443858 (May 26, 2004, Thompson, J.), (37 Conn. L. Rptr 3); Johnson v. New Haven, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02-0282191 (February 23, 2003, Tanzer, J.); Glorioso v. Police Department of Town of Burlington, supra, 49 Conn.Sup. 208.
"[T]he proper means to expose a municipality to liability in cases alleging imminent harm to identifiable persons is through the indemnification provisions of § 7-465." Gaudino v. Town of East Hartford, Superior Court, judicial district of Tolland, Complex Litigation Docket No. X07 CV 01 0081310 (September 10, 2003, Sferazza, J.) ( 35 Conn. L. Rptr. 448). "[U]nder Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), the town has no direct common-law liability. The holding of Williams is that town liability only arises by statute. Therefore, one must look to § 52-557n to define that direct liability and cannot rely on common-law exceptions regarding employee immunity." Id. Section 52-557n(a) sets forth and circumscribes municipal liability generally and, it excludes liability for "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. General Statutes § 52-517n(a)(2)(B).
"When the Tort Reform Act of 1986, which spawned § 52-557n, was enacted, [the] legislature chose to omit the imminent harm to identifiable persons exception, applicable under the common law to employees, from § 52-557n(a) which pertains to the municipality itself. That exception to qualified immunity for town servants has existed since Sestito v. Groton . . . was decided in 1979. If the legislature wished municipalities to be subject to such an exception to governmental immunity, one would have expected to see that exception explicitly stated along with the other exceptions which were set forth. In short, the common-law imminent harm exception to qualified immunity for municipal employees is inapplicable to the direct liability imposed against a municipality under § 52-557n." (Internal quotation marks omitted.) Gaudino v. Town of East Hartford, supra, 2. In counts six and seven, no municipal employee is named as a defendant. The court therefore finds that the identifiable person-imminent harm exception does not apply. Governmental immunity shields the town (and its police department) from liability.
The Town of West Hartford and West Hartford Police Department are, therefore, entitled to judgment as a matter of law as the operation and training of police officers are discretionary governmental acts which are protected pursuant to the doctrine of governmental immunity.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment in their favor is GRANTED as to the Sixth and Seventh Counts of the Complaint.