Opinion
No. X10-UWYCV-054010120S
January 30, 2007
CORRECTED MEMORANDUM OF DECISION
Before the court, in the consolidated cases of the Estate of Patrick Foster v. Town of Branford and Linda Hawthorne v. Town of Branford is the Town of Branford and Officer John Finkle's motion for summary judgment on counts 1, 2, 3, 4 and 5 of the plaintiffs' complaints. Because of the impending trial date, at the request of counsel, the court is issuing a truncated memorandum of decision to address all of the issues in an expedited fashion.
The undisputed facts that lead to this cause of action occurred at about 2:30 a.m. on May 10, 2003 in the Town of Branford. Officer John Finkle, the defendant, was on patrol driving south on North Main St./Route 1 in a marked police car. In the opposite lane heading towards Office Finkle was Thomas Bishop, the defendant driving a white BMW 325i. Bishop, without signaling (according to Officer Finkle), turned left into the parking lot of Motel 6 crossing over in front of Officer Finkle causing Officer Finkle to brake slightly. Based on the traffic violation Officer Finkle determined there was reasonable suspicion to warrant further investigation. Officer Finkle proceeded into the Motel 6 parking lot having turned on his overhead emergency lights and began following the BMW maintaining a distance of several car lengths. The BMW did not stop and Officer Finkle assumed that Bishop was looking for an appropriate place to pull over. As the BMW came around the parking lot and approached the driveway entrance/exit Officer Finkle sounded his air horn to ensure that Bishop knew that he was behind him and that he wanted him to pull over. Bishop proceeded onto North Main St. and gradually started accelerating. Officer Finkle, believing that Bishop had no intention of stopping, started pursuing Bishop in an effort to stop him. Bishop was entering the intersection of North Main St. and Cedar St. when John Foster was operating a van with Linda Hawthorne as a passenger. They were entering the intersection when the two vehicles collided. Upon colliding the two vehicles slid off the road into a parking a lot. At the time that the vehicles were approaching the intersection, Audra Mirando was approaching from the other side of Cedar St. She witnessed the collision, called the police and stated that the van ran a red light. Officer Finkle, having lost sight of Bishop and the accident occurring rapidly, did not witness the accident. He drove through the intersection and did not notice the vehicles in the parking lot.
The first count of the complaints is a claim for negligence against Officer Finkle arising out his pursuit of Thomas Bishop. Plaintiffs claim that Officer Finkle was negligent in failing to follow proper police procedures in initiating and conducting a vehicle pursuit in violation of the Uniform Statewide Pursuit Policy, C.G.S. § 14-283a which the Town of Branford has implemented as its pursuit policy.
The second count of the complaints is a claim for negligence against the Town of Branford pursuant to C.G.S. § 52-577n(a)(1)(A) for the negligent acts of its employees who were acting within the scope of their employment.
The third count of the complaints is a claim for negligence against the Town of Branford for failure to provide proper and adequate training and for failure to establish proper police procedures pursuant to C.G.S. § 14-283a.
The fourth count of the complaints is a claim for the liability of the Town of Branford under C.G.S. § 7-465 based upon the conduct of Officer Finkle.
The fifth count of the complaints is a claim for recklessness against Officer Finkle arising out of his pursuit of Thomas Bishop. Plaintiff claim that Officer Finkle was reckless in violation of C.G.S. § 14-218 (traveling unreasonably fast), C.G.S. § 14-219 (speeding) and C.G.S. § 14-222 (reckless driving) and claim double or treble damages under C.G.S. § 14-295.
"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 a 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.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
I. Counts One (Officer Finkle) and Two (Town of Branford) — Negligence
The defendants assert that they are immune from liability for the claims of negligence based on the doctrine of governmental immunity. They rely upon C.G.S. § 52-557n(a)(2) which removes liability, for both municipalities and their employees, for acts that require the exercise of judgment or discretion unless there is an applicable exception. Defendants argue that Officer Finkle's decision to initiate the pursuit, his decision to continue or terminate the pursuit, and the manner with which he drove his vehicle are discretionary within the meaning of the statute. The plaintiffs counter that there is a genuine issue of material fact regarding Officer Finkle's decision to initiate pursuit under the guidelines of the pursuit policy of the Town of Branford. They contend that even if the decision to initiate pursuit is discretionary the imminent harm exception applies and there is no immunity. Lastly they argue that Officer Finkle was negligent in the operation of his vehicle.
The Court agrees with the defendants that the decision to initiate a police pursuit is a discretionary decision and therefore afforded immunity. As to this issue in counts one and two the motion is granted.
The Court disagrees with the defendants that the manner that Officer Finkle operated his vehicle is a discretionary act afforded immunity. "The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [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. [T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." (Citations omitted; internal quotation marks omitted.) Purzicki v. Fairfield, 244 Conn. 101, 107, 108, 708 A.2d 937 (1998).
At the time of the events in question the Town of Branford had adopted the State of Connecticut pursuit policy as a minimum standard with the provision that more stringent procedures would be adopted when the department believed it to be appropriate. The policy states that "[t]he decision to initiate pursuit shall be based on the pursuing police officer's conclusion that the immediate danger . . . created by the pursuit is less than the immediate or potential danger . . . should . . . such vehicle remain at large." General Order Number: 01-03, General Orders of the Branford Police Department. The policy also identifies the various factors the officer is to consider when balancing the potential dangers. The very language of this policy demonstrates that the decision to initiate a pursuit involves the exercise of judgment or discretion; the officer is to weigh the dangers considering the factors outlined to reach his conclusion.
Relying on Kolaniak v. Board of Education, 28 Conn.App. 277 (1992) the plaintiffs contend that negligence in the application of a written policy (emphasis added) is not shielded with immunity. In Kolaniak the board of education, prior to winter, had issued a bulletin specifying that all walkways were to be inspected and kept clean on daily basis. "A determination as to when to clear a sidewalk, however, is not a discretionary function. Every voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor." Kolaniak, supra at 281. The plaintiffs fail to distinguish between a written policy that mandates a ministerial act and one that permits discretion. "[W]hen the act complained of is ministerial, the municipality is responsible for its negligent execution. `Ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted.) Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975). For example, "upon engaging . . . into a pursuit, the pursuing vehicle shall activate appropriate warning equipment. An audible warning device shall be used during all such pursuits." R.C.S.A. § 14-283a-4(b)(2). The use of an audible warning device is not optional and must be used when a pursuit is engaged, ergo it is a ministerial act. Plaintiffs incorrectly conclude that because there are specific factors to be considered before making a decision to initiate a pursuit this is a ministerial act. However, the evaluating, the adding up, and the weighing of these factors requires judgment and discretion for the officer to be able to reach a conclusion as to whether the pursuit would create a greater danger than not pursuing.
The plaintiffs also point to Tetro v. Stratford, 189 Conn. 601 (1983) to buttress their argument that an officer's failure to follow policy when initiating a pursuit is not granted immunity. However, not only is the language relied upon in Tetro dicta, but the opinion that the pursuit was in violation of the Stratford pursuit policy was another officer's opinion which is a reasonable conclusion because there will be times when reasonable minds will differ regarding the same situation. This is one reason why there is immunity because law enforcement officials would be paralyzed if they had to second guess their judgment knowing that their decision will be scrutinized in hindsight. On the other hand, once in pursuit an officer is engaged in an inherently dangerous act. Therefore, as a matter of public policy, the duty to adhere to the regulations is ministerial in nature as a means of protecting the public.
Lastly the plaintiffs point to the 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. We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Citation omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 329, 907 A.2d 1188 (2006).
Plaintiffs reason that they were part of an identifiable class, i.e. "identifiable person," subject to an imminent harm. Our supreme court has ". . . construed this exception 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). Plaintiff argues that the public in the geographical area of the pursuit is the class of victims and support their proposition by extrapolating their definition from the Branford pursuit policy. However, the class that plaintiffs propose is too ill defined and too broad.
"Public" has no limit to its definition, and, to attempt to limit it by reference to the geographical area of the pursuit assumes that one knows where the pursuit will lead prior to it happening. This class of victims is not comparable to the school children in Burns. The school children in Burns is a well-defined group, i.e. all the children enrolled at a particular school. The public using the roads has no practical or defining limitation since anyone could be using the roads at any time. Accordingly, the court finds that the imminent harm exception does not apply.
The plaintiffs assert that there is a genuine issue of fact regarding the manner in which Officer Finkle operated his vehicle during the pursuit and the court agrees. As noted in Vilton v. Burns, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 00 0169481 (June 22, 2004, Alander, J.) a number of superior courts have held that the operation of an emergency vehicle is a ministerial act.
Defendants argue that the language of C.G.S. § 14-283(b)(3) and R.C.S.A. § 14-283a-4(b)(4) does not establish mandatory criteria that must be satisfied before an officer may exceed speed limits or other traffic regulations and compliance with these sections is not a ministerial act but a discretionary act. C.G.S. § 14-283(b) states "The operator of any emergency vehicle may . . . (2) proceed past any red light or stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of the vehicle, (3) exceed the posted speed limits or other speed limits imposed by or pursuant to Section 14-218a or 14-219 as long as such operator does not endanger life or property by doing so . . ." the defendants note that the statute does not specify what speed(s) are permissible and leaves that to the discretion of the officer. However, our Supreme Court has held "[t]he effect of the [§ 14-283] is merely to displace the conclusive presumption of negligence that ordinarily arises from the violation of traffic rules. The statute does not relieve operators of emergency vehicles from their general duty to exercise due care for the safety of others . . . We . . . conclude that 14-283 provides no special zone of limited liability once the defendants negligence has been established." (Citations omitted.) Tetro v. Stratford, 189 Conn. 601, 609, 610, 458 A.2d 5 (1983). Likewise R.C.S.A. § 14-283a-4(b)(4) and General Order 01-03 both state "[w]hen engaged in a pursuit police officers shall drive with due regard for the safety of persons and property."
In General Order 01-03 the Town of Branford adopted R.C.S.A. § 14-283a-4 as its pursuit policy.
Additionally the defendants assert that the factors considered in initiating a pursuit are the same as those in continuing a pursuit as well as terminating a pursuit. According to the defendants since initiating a pursuit is discretionary, then terminating and continuing a pursuit are also discretionary; ergo the operation of the vehicle during the pursuit is discretionary.
Officer Jay Kaufman, the Branford Police Department's accident reconstructionist reviewed the video tape of the pursuit. He calculated the speed at which Officer Finkle's vehicle was traveling and testified that it was between 76.73 and 102.31 miles per hour. Viewing the evidence in the light most favorable to the nonmoving party, the plaintiffs have submitted evidence that leaves a factual issue regarding Officer Finkle's ministerial duty to operate his vehicle with due care for the safety of others. The motion for summary judgment on this issue in counts 1 and 2 is denied.
II. Count Three (Town of Branford) — Duty to Train and Supervise
Consistent with the logic of Gordon v. Bridgeport Housing Authority 208 Conn. 161, 544 A.2d 1185 (1988) the duty to provide training and to establish police procedures is ministerial, how training and establishing police procedures is discharged is discretionary. Although the issue in Gordon concerned the number of police patrols in an apartment housing project the court noted "[t]he plaintiffs claims run counter to the great weight of authority that the operation of a police department is a discretionary governmental function. [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." (Citations omitted; internal quotations marks omitted.) Gordon, supra at 179-80. "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 (sic) and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury." (Citations omitted; internal quotations marks omitted.) Doe v. Peterson, 279 Conn. 607, 615, 903 A.2d 191 (2006). Officer Finkle testified that he received training concerning police pursuits while at the police academy and as a member of the Branford Police Department. There is no question of fact as to training only its adequacy which is a discretionary act and therefore afforded immunity. There is no question of fact regarding the establishment of police procedures in accordance with C.G.S. § 14-283a as the Town of Branford has adopted R.C.S.A. § 14-283a-4 as its pursuit policy. Likewise the duty to supervise the pursuit is ministerial, how this duty is discharged is discretionary. There is no question of fact as to whether the pursuit was supervised only its adequacy which is discretionary and therefore afforded immunity. The motion for summary judgment on these issues is granted.
III. Count Four (Town of Branford) — § 7-465
The motion for summary judgment on the plaintiffs § 7-465 claims against the Town of Branford for the alleged negligent and reckless actions of Officer Finkle is granted in part and denied in part. Section 7-465 provides for indemnification of a municipal employee by the municipality and is applicable when an employee has breached a duty to the injured party. "[I]n no event may the municipality be held liable under it unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon . . . [him] by law for physical damages to person or property. While 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first-instance. Once a plaintiff has successfully pursued a cause of action and obtained judgment against the defendant municipal employee the latter can (1) pay the judgment and request reimbursement from the municipality or (2) request the municipality to pay the judgment in his behalf." (Citations omitted; internal quotation marks omitted.) Kostyal v. Cass, 163 Conn. 92, 97-98, 302 A.2d 121 (1972).
Therefore, the motion is denied as to the ministerial claims which have survived the motion for summary judgment and granted as to those claims which are discretionary and shielded with immunity.
IV. Count Five (Officer Finkle) — Recklessness
The plaintiffs have also alleged that Officer Finkle acted recklessly. They claim that Officer Finkle operated his vehicle recklessly in violation of C.G.S § 14-222, and was speeding in violation C.G.S § 14-218, and C.G.S § 14-219. The defendants argue that the plaintiffs have only repeated the allegations of negligence substituting recklessness or recklessly where negligence or negligently appeared and that a negligence claim cannot be converted to a reckless claim merely by changing or appending a few words. Additionally they claim the facts do not support a claim for reckless or wanton misconduct and fail to demonstrate that Officer Finkle acted in reckless disregard of the safety or rights of others.
Although the recklessness count in both complaints each contain claims for recklessness based upon the decision to pursue and to continue pursuing Bishop, the counts for recklessness also contain specific allegations of acts alleged to be reckless.
"Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence. The state of mind amounting to recklessness may be inferred from conduct. But in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Wanton misconduct is reckless misconduct, It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Citations omitted; internal quotations omitted.) Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988).
As noted before the plaintiff has submitted evidence regarding the speed at which Officer Finkle was traveling. The fact finder could conclude that the defendant's operation of his motor vehicle while in pursuit, as alleged in the complaints at a high rate of speed under all circumstances then and there existing, could constitute reckless behavior. It would not be unreasonable for a jury to find that the conduct of the defendant was reckless. (Neither side has briefed the issue of whether recklessness claims can survive where the duty is discretionary.) The motion for summary judgment is denied on count 5.
Some counts have summary judgment granted in part and denied in part, which this court finds procedurally problematic. The parties however have sought the ruling of this court on the various sub-issues of counts and it was prudent to rule accordingly because of the shortness of time to trial.
Munro, J.