Opinion
FBTCV146042098
02-14-2017
Corey Paternoster et al. v. Raymond Paszkowski
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Richard E. Arnold, J.
The issue before the court is the defendant's motion for summary judgment as to the counts directed against defendants Kevin Lyman, a Stratford police officer and the Town of Stratford on the grounds that the alleged actions of Lyman, in the performance of his duties, were discretionary and thus, are protected from liability by governmental and qualified immunity.
The motion for summary judgment is directed to Counts Two, Three, and Four of the amended complaint dated August 31, 2016. These are the counts against Officer Lyman and the Town of Stratford. Count One is directed to defendant Raymond Paszkowski.
The plaintiffs, Corey Paternoster, his wife Gina Paternoster, and their children; the minor plaintiffs Brianna, Corey, Michael, and Sophia Paternoster (" plaintiffs") brought the present action on April 11, 2014, against Raymond Paszkowski, Allstate Insurance Company, Stratford police officer Kevin Lyman, and the Town of Stratford, seeking compensation for injuries they suffered when their vehicle was struck by a vehicle driven by the co-defendant Paszkowski, who was then fleeing from Lyman, who was operating a Stratford Police vehicle. Lyman and Stratford (" defendants"), have moved for summary judgment on the counts directed against them in the amended complaint dated August 31, 2016, claiming qualified immunity and governmental immunity. The plaintiffs have filed an objection and a memorandum of law. The court heard oral argument on the motion on October 31, 2016. Both the defendants and the plaintiffs have submitted additional documentary materials for the court's review, as well as reply briefs and sur-reply briefs.
The named plaintiffs are Corey Paternoster, Gina Paternoster, Brianna Paternoster, a minor by her Mother and Next Friend Gina Paternoster, Corey Paternoster, a minor by his Mother and Next Friend, Gina Paternoster, Sophia Paternoster, a minor by her mother and next friend, Gina Paternoster and Michael Paternoster, a minor by his mother and next friend, Gina Paternoster. The named defendants are Raymond Paszkowski, Allstate Insurance Company, Officer Kevin Lyman and the Town of Stratford. The complaint was withdrawn as to the defendant Allstate Insurance Company on October 17, 2016.
Judge Kamp's decision denying a motion to strike was directed to an amended complaint dated September 15, 2014. See Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield at Bridgeport, No. FBTCV146042098, (Sept. 1, 2015, Kamp, J.)
I
Facts
Previous to the filing of the motion for summary judgment, the defendants filed a motion to strike based upon the similar grounds of governmental immunity and qualified immunity. That motion was denied by the court. Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield at Bridgeport, No. FBTCV146042098, (Sept. 1, 2015, Kamp, J.). In rendering his decision, Judge Kamp set forth a preliminary statement of facts derived from the amended complaint which this court adopts and repeats herein.
The court is aware that Judge Kamp in deciding a motion to strike was confined to the allegations contained in the complaint, and must interpret the complaint in a light favorable to the plaintiff. In considering a motion for summary judgment this court may consider additional documents submitted by the parties, which this court has, in fact, received.
" The amended complaint filed on September 15, 2014, alleges the following facts. The plaintiffs were driving in a motor vehicle operated by Corey Paternoster on April 14, 2012, proceeding in a southerly direction. At the same time and place, Paszkowski was operating a vehicle at a high rate of speed proceeding in a northerly direction, and was being pursued by Lyman, then employed by Stratford and acting in the performance of his duties as a police officer. The plaintiffs were struck and injured by Paszkowski's vehicle." Id. As to the defendant Lyman, the plaintiffs allege the " injuries and damages suffered by Corey Paternoster and Gina Paternoster were caused by the negligence and carelessness of Lyman in that he initiated, engaged in, and furthered an improper motor vehicle pursuit in violation of General Statutes § 14-283, General Statutes § 14-240, General Statutes § 14-218a, General Statutes § 14-219, § 14-283a-4 of the Regulations of Connecticut State Agencies, and the Department of Police Policies/Procedures of the Town of Stratford, Connecticut. He proceeded past a red light and/or stop sign without slowing down or stopping to the extent necessary for the safe operation of such vehicle; exceeded the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 without making sure not to endanger life or property by so doing; and violated his duty to drive with due regard for the safety of all persons and property. He furthermore improperly determined a pursuit was necessary and failed to terminate the pursuit when he knew the danger to the public outweighed the need for the pursuit. He engaged in the pursuit even though it was unreasonably dangerous to pedestrians and users of the roadway, including the plaintiffs." Id.
" The plaintiffs also allege that Stratford is made liable by General Statutes § 7-465 to indemnify them for all sums which Lyman becomes liable to pay by reason of liability imposed against him as an employee of Stratford. The plaintiffs gave the Clerk of the Town of Stratford written notice of their claim on or about October 10, 2012 as required by § 7-465. They further allege that Stratford is directly liable pursuant to General Statutes § 52-557n for the aforementioned actions of Lyman and other employees who failed to supervise the chase, or if they supervised it, failed to evaluate the situation, insure that the proper procedures were used, and determine whether the pursuit should be initiated and continued, in violation of General Statutes § 14-283a." Id.
In addition to claiming that the cited statutes created ministerial duties, the plaintiffs also claimed that if the court were to find that the defendants' actions were discretionary, they were identifiable people subject to imminent harm entitled to an exception to governmental and qualified immunity.
In denying the motion to strike, Judge Kamp made find a finding that " the allegations of the complaint and the statutes, regulations, and Stratford [police department ]policy referenced do not give rise to any ministerial duties, " and that the actions of Lyman were discretionary. Id. As to the plaintiffs' claims that they were identifiable people subject to imminent harm entitled to an exception to governmental and qualified immunity Judge Kamp stated:
Based on the complaint, it is not clear whether the plaintiffs are alleging that they are part of a class of identifiable victims, or were themselves identifiable victims. The complaint at one point alleges that Lyman " failed to terminate the pursuit when he knew or should have known that continuing it created a risk of bodily injury or harm to the public, and the plaintiff in particular, along the route of said pursuit at the time and place thereof . . ." (Emphasis added.) This reference to the plaintiff in particular suggests that the plaintiffs themselves were in some way identifiable apart from all individuals using the roadways. Even aside from this reference, at this early stage of the pleadings the court cannot say that there is no way that under the facts alleged the plaintiffs could not have been individually identifiable by Lyman. It may be unlikely, given that they allege they were injured by Paszkowski rather than Lyman, but the court could conceive that Lyman saw the plaintiffs prior to Paszkowski hitting them and nonetheless maintained his pursuit or acted negligently in some way.Id.
The court, herein, will review the findings of Judge Kamp in denying the motion to strike because the defendants in their motion for summary judgment argue that these findings regarding discretionary acts and ministerial acts represent the law of the case regarding the issues of governmental immunity and qualified immunity as they relate to the actions of the defendants. See Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield at Bridgeport, No. FBTCV146042098, (Sept. 1, 2016, Kamp, J.)
II
Law of the Case Doctrine as It Applies to a Subsequent Motion for Summary Judgment
The defendants argue that Judge Kamp's determination that Lyman's actions in the operation of his Stratford Police vehicle were discretionary is the law of the case and should be applied to the motion for summary judgment. Therefore, court first reviews the law of the case doctrine.
" The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . New pleadings intended to raise again a question of law which has already been presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). See Wasko v. Manella, 87 Conn.App. 390, 396, 865 A.2d 1223 (2003) (court reasonably relied on its prior determination on summary judgment regarding scope of insurance coverage as law of the case).
" Although " [a] judge should hesitate to change his own rulings in a case and should be more reluctant to overrule those of another judge" (internal quotation marks omitted); Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999); " [a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings . . . [I]f the same point is again raised he [or she] has the same right to reconsider the question as if he [or she] had himself [or herself] made the original decision . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law . . ." (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 656-57, 954 A.2d 816 (2008).
When one compares the standard of law for a motion to strike to the standard of law for a motion for summary judgment, it is apparent that the court can review more than just the plaintiff's complaint to determine if a cause of action previously found to have been sufficiently alleged, can withstand the evidentiary underpinnings of whether or not genuine issues of material fact exist. In the present case, both the plaintiffs and the defendants have submitted documentary evidence and affidavits, which would not normally be reviewed in determining the merits of a motion to strike. Thus, the parties are entitled to a review of the issues of governmental and qualified immunity, and specifically as those issues relate to ministerial and discretionary acts, as well as the identifiable victim subject to imminent harm exception to a discretionary act. This review will be done with deference to Judge Kamp's well-reasoned decision regarding the previous motion to strike. See. Paternoster v. Paszkowski, supra, No. FBTCV146042098 (Sept. 1, 2016, Kamp, J.).
The court has reviewed documents that were made available to Judge Kamp for review during the motion to strike proceedings and those submitted to this court. This court has received additional documents, deposition transcripts, affidavits, video and audio recordings. While the court has not viewed video or heard audio recordings, the parties have noted their content in their briefs.
The standard of law for a motion to strike is well-established. " The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see Practice Book § 10-39. " A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
The standard of law for a motion for summary judgment is also well-established. Summary judgment may be granted under Practice Book § 17-49 of the Practice Book 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 part is entitled to judgment as a matter of law. " A material fact is a fact that will make a difference in the result of the case . . . the party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005). Once the moving party has presented evidence in support of a motion for summary judgment, the burden shifts to the opposing party to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Fernandez v. Standard Fire Ins. Co., 44 Conn.App. 220, 222, 688 A.2d 349 (1997); State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988).
To oppose a motion for summary judgment, a party must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence and is not rebutted by bald assertions. To oppose a motion for summary judgment successfully, the non-movant must recite specific facts which contradict those stated in the movant's affidavits and documents. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997); 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994); State v. Goggin, supra, 616. When the non-moving party makes no motion in opposition to summary judgment or recites no specific facts to contradict the facts stated in the motion for summary judgment, the court has to rely on the facts stated in the movant's affidavit as being undisputed. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983). In deciding whether there is a material issue of fact, the court considers the evidence in the light most favorable to the non-moving party. Fernandez v. Standard Fire Ins. Co., supra, 222; Connell v. Colwell, 214 Conn. 242, 247, 571 A.2d 116 (1990).
With these standards in mind, the court will review the claims of the parties in the pending motion for summary judgment, bearing in mind Judge Kamp's findings and conclusions in his September 1, 2016, decision on the motion to strike. See Paternoster v. Paszkowski, supra, No. FBTCV146042098 (Sept. 1, 2016, Kamp, J.).
III
Discussion
Ministerial Acts and Discretionary Act Immunity
The defendants argue that there are no genuine issues of material fact establishing that as a matter of law, Officer Lyman's actions were discretionary rather than ministerial, thus triggering discretionary act immunity. Further, they argue there are no issues of fact that the plaintiffs were not " identifiable victims" subject to imminent harm, which would be an exception to discretionary act immunity.
" The following principles of governmental immunity are pertinent to our resolution of the claims raised by the plaintiffs . . . 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." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318-20, 907 A.2d 1188 (2006).
" 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." (Citations omitted; internal quotation marks omitted.) Id., 318-19; Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006).
" 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.) Id., at 319-20.
" 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." Id., 320.
" Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer . . . The policy behind discretionary act immunity for police officers is based on the desire to encourage police officers to use their discretion in the performance of their typical duties. 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." (Internal quotation marks and citation omitted.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011). Paternoster v. Paszkowski, supra, No. FBTCV146042098 (Sept. 1, 2016, Kamp, J.).
The defendants, as they did before Judge Kamp, argue the acts of Officer Lyman in: (1) initiating a pursuit of Paszkowski; (2) continuing the pursuit; and (3) terminating the pursuit were discretionary acts. Further they argue that Lyman did not see the plaintiffs prior to Paszkowski colliding with the plaintiffs' vehicle and could not have possibly known the plaintiffs were traveling along the same road in the opposite direction on the other side of a hill. Thus, the victims were not identifiable, which is an essential element of the identifiable person subject to imminent harm exception to discretionary act governmental immunity. The defendants then continue on to analyze the Stratford Police Pursuit Policy that was issued in accordance with General Statutes § 14-283a and Connecticut Regulations § 14-283a-1. These matters and the circumstances which led to the initiation of the pursuit were covered in Paternoster v. Paszkowski, supra, No. FBTCV146042098 (Sept. 1, 2016, Kamp, J.), as were the recitation of facts regarding the actual pursuit and the termination of pursuit. The court will not recite them again. See Id.
§ 14-283a. Adoption of state-wide policy for pursuits by police officer reads as follows:
The defendant Lyman terminated the pursuit before the Paszkowski vehicle struck the plaintiff's vehicle. Lyman was on the other side of a hill before the accident and could not view either Paszkowski's vehicle or the plaintiffs' vehicle. Plaintiff Corey Paternoster testified at his deposition that as Paszkowski was coming toward his vehicle, he could not see over the hill to see if Officer Lyman was behind Paszkowski. The defendants argue that there is no genuine issue of fact that Lyman was not able to see the plaintiffs' vehicle prior to his terminating the pursuit and the eventual collision, and thus, the plaintiffs were not identifiable victims subject to imminent harm, unlike the victim in Sestito v. Groton, 178 Conn. 520, 522-23, 423 A.2d 165 (1979). " In the absence of a specific, identifiable person, Connecticut appellate courts . . . have declined to extend the identifiable victim in imminent harm exception to the general public using roads and highways." Chirieleison v. Lucas, 144 Conn.App. 430, 442, 72 A.3d 1218 (2013).
Lyman's sworn affidavit states that he lost sight of Paszkowski's vehicle, when he reduced his speed while in the process of terminating the pursuit and could not see over the crest of the hill. It was only as he came over the crest of the hill that he saw Paszkowski's vehicle collide with the plaintiffs' vehicle. The Affidavit states that Lyman had " no way of knowing the plaintiff in particular was traveling southbound on Nichols Avenue on the other side of the hill . . . I could not have possibly identified him prior to his car being struck by [Paszkowski's] Firebird."
As the defendants did in their motion to strike, they direct the court to Coley v. Hartford, 312 Conn. 150, 161, 95 A.3d 480 (2014) for the premise that municipal officers are immune from liability for negligence arising from their discretionary acts and that to create a ministerial duty, there must be a " city charter provision, ordinance, regulation, rule, policy or any other directive [compelling a municipal employee] to [act] in any prescribed manner." Coley v. City of Hartford, 140 Conn.App. 315, 323, 59 A.3d 811 (2013), aff'd., 312 Conn. 150, 95 A.3d 480 (2014).
The defendants, once again, also rely on Faulkner v. Daddona, 142 Conn.App. 113, 122, 63 A.3d 993 (2013) for the premise that the " fact that a claim is based upon a defendant's alleged failure to enforce a statute, however, does not, in itself, make enforcement of that statute a ministerial duty . . . Rather a police officer's decision whether and how to enforce a statute necessarily requires examination of the surrounding circumstances and a determination as to what enforcement action, if any, is necessary and appropriate in those circumstances. Such a decision thus invariably involves the exercise of judgment and discretion." (Internal citations omitted) Id., 122-23. The court notes that the difference in the present matter is not whether Officer Lyman failed to enforce a statute, but rather whether Lyman obeyed the provisions of certain statutes and state regulations regarding police pursuits and the operation of his police vehicle.
The defendants then proceed to again discuss General Statutes § 14-283a and Connecticut Regulations § 14-283a-1 and how the uniform state policy for handling police pursuits were incorporated and adopted by the Stratford Police Policy regarding pursuits. A detailed analysis by the defendants of the discretionary standards created by the statutes, regulations and policies are contained in the defendants' memorandum of law filed in support of their motion to strike, and the defendants have incorporated their same arguments in support of their motion for summary judgment. For the sake of brevity, the court directs the parties, hereto, to that memorandum of law. In summary, the defendants' previous arguments regarding discretionary immunity that wereconsidered by Judge Kamp, during the motion to strike, have been again placed before this court in support of summary judgment.
Plaintiffs, in opposing summary judgment, set forth in detailed recitation of facts regarding the pursuit, highlighting Lyman's operation of his police cruiser at speeds ranging from 69 miles per hour upwards to 99 miles per hour. They note that while the emergency lights on the police cruiser were activated, the audible siren was not always activated. The plaintiffs recite ways in which Lyman drove through several stop signs and crossed over double yellow lines through residential areas, playground areas and a school zone. They note that several times, Lyman failed to call in his speed or location to dispatch at multiple times during the pursuit. Lyman passed various vehicles and nearly collided with an oncoming vehicle. The plaintiffs relate that at his deposition, Lyman admitted he failed to activate his siren on Rockland Avenue and failed to stop at a stop sign. Further, Lyman recognized that the pursued vehicle operated by Paszkowski was driving at a high rate of speed and a reckless manner throughout the pursuit. Lyman never provided the police dispatcher with his speed during the entire pursuit, and there was no supervisor on the dispatch radio evaluating his pursuit. The plaintiffs argue that the " vast majority" of Connecticut Superior Court cases addressing this issue have held that the safe driving of a police vehicle by a police officer during a pursuit is a ministerial duty, and therefore, is not protected by governmental immunity. Moreover, the plaintiffs argue that even if this court agrees with Judge Kamp that Lyman's acts were discretionary in nature, the plaintiffs have satisfied the recognized exception of identifiable victims subject to imminent harm. The arguments of the plaintiffs also are similar to those made to Judge Kamp at the time the motion to strike was being considered. However, as noted earlier herein, documents, affidavits and deposition testimony have now been submitted in support and in opposition to the motion for summary judgment that were not reviewed by Judge Kamp during the motion to strike proceedings.
Plaintiffs cite to various pages of Lyman's deposition testimony and other submitted exhibits.
The plaintiffs make reference to a dash camera video, a copy of which has been filed as an exhibit, but was not viewed by the court at oral argument.
Additionally, the plaintiffs filed an amended complaint dated August 31, 2016, that differs in several ways from their amended complaint dated September 15, 2014, which was the complaint reviewed by Judge Kamp when he denied the defendants' motion to strike. The amended complaint of August 31, 2016, contains only four counts, as compared to the Twelve Counts contained in the amended complaint dated September 15, 2014. The Amended Complaint adds new allegations of negligence regarding the violation of the Department of Police Policies and Procedures of the Town of Stratford, Connecticut States Agencies Regulations § 14-283a-4 and General Statutes § 14-283, regarding the alleged failure of Lyman to use an audible warning device or siren during the entire pursuit.
The plaintiffs in paragraph 9 of the August 31, 2016 Amended Complaint also allege additional violations of pursuit policies and procedures of the Town of Stratford Police Department, Connecticut States Agencies Regulations § 14-283a-4 and General Statutes 14-283. These new allegations were not reviewed by Judge Kamp when he denied the motion to strike various counts of the Amended Complaint dated September 15, 2014 pertaining to Lyman and the Town of Stratford. In large part, however, the Amended Complaint of September 15, 2014, and the allegations of negligence and recklessness alleged against Lyman and the Town of Stratford contained therein, mirror the Amended Complaint of August 31, 2016, and the documents filed by the parties for the court's review of the motion for summary judgment somewhat refine those arguments that were already considered by Judge Kamp. Issues already considered by Judge Kamp regarding the Amended Complaint dated September 15, 2014, will not be reconsidered by this court. Thus, the court will undertake a review of only new issues raised by the parties and will consider newly submitted documentary evidence only where those documents apply to newly raised issues, and as they apply to the Amended Complaint of August 31, 2016.
Regs. Conn. State Agencies § 14-283a-4 reads in relevant parts as follows:
For example, submitted documents as to Lyman's exact speeds and certain statutory violations during the pursuit such as General Statutes § § 14-240, 14-218a, 14-219 are supportive of claims made by the plaintiffs; yet the allegations regarding the violations of these statutes were already analyzed by Judge Kamp in the context of applying General Statutes § § 14-283a, 14-283 and the Stratford Police Policy and Procedures relating to pursuits. Judge Kamp additionally commented on the allegations in the Amended Complaints regarding Lyman's failure to operate his police cruiser safely without endangering the safety for all persons, as those allegations apply to General Statutes § 14-283 and the Stratford Police Policies and Procedures relating to pursuits. While Judge Kamp did not have the supportive documents submitted for the motion for summary judgment and the objection, thereto, he was under the obligation to review the plaintiff's amended complaint of September 15, 2014, in a light favorable to the plaintiffs. That Amended Complaint alleged " high rates of speed, " negligence and carelessness, violations of General Statutes § § 14-283, 14-283a, 14-218a, 14-219, 14-240, and Connecticut State Agencies Regulations § § 14-283a-4, as well as, Stratford Police Policy and Procedures relating to pursuits.
The plaintiffs claim the defendant Lyman did not use an audible warning device during his initial pursuit of Paszkowski in violation of General Statutes § 14-283(c). While this is not disputed, it is documented that this failure lasted a period of four seconds at the initiation of the pursuit. The siren and emergency lights were then activated while Lyman proceeded with his active pursuit. Paskowski's collision with the plaintiffs' vehicle occurred several miles away, approximately one and one-half minute after the pursuit was initiated. Judge Kamp reviewed this claim, as it applied to the earlier claim that Lyman passed through the stop sign, and in the context of applying General Statutes § 14-283, found it to be a discretionary act. However, a review of Judge Kamp's decision does not reveal that he made any determination as to ministerial or discretionary duty regarding Lyman's failure to use an audible siren or signal for a period of four seconds at the very commencement of the pursuit, as this claim was first alleged in the plaintiffs' amended complaint dated August 31, 2016. General Statutes § 14-283 states in relevant parts as follows:
The plaintiffs in their Sur-Reply to the defendant's motion for summary judgment concede that the failure of Lyman to use an audible siren was for a period of only four seconds at the commencement of the pursuit, but argue that, nonetheless, this is a violation of General Statutes § 14-283(c) and the exemptions contained therein because during those four seconds Lyman passed through a stop sign while accelerating from a speed of 7 miles per hour to 23 miles per hour. The Amended Complaint of August 31, 2016, alleges that Lyman was negligent when he passed a stop sign " without slowing down or stopping . . ." In their Sur-Reply, the plaintiffs state this would be a violation of General Statutes § 14-301(c), but the Amended Complaint contains no specific allegation that Lyman violated § 14-301(c).
(b)(1) The operator of any emergency vehicle may (A) park or stand such vehicle, irrespective of the provisions of this chapter, (B) except as provided in subdivision (2) of this subsection, 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 such vehicle, (C) 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 so doing, and (D) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.
(c) The exemptions granted in this section shall apply only when an emergency vehicle is making use of an audible warning signal device, including but not limited to a siren, whistle or bell which meets the requirements of subsection (f) of section 14-80, and visible flashing or revolving lights which meet the requirements of sections 14-96p and 14-96q, and to any state or local police vehicle properly and lawfully making use of an audible warning signal device only .
(d) The provisions of this section shall not relieve the operator of an emergencyvehicle from the duty to drive with due regard for the safety of all persons and property.(Emphasis added.) General Statutes § 14-283(b), (c) and (d).
The plaintiffs argue that even if the delay in activating a siren was only four seconds, this delay is a violation of the plain language of § 14-283, and therefore, the exemption to disregard statutes, ordinances or regulations governing the movement or turning in specific directions would not apply to Lyman's operation of his police cruiser when he proceeded through a stop sign at the commencement of his pursuit of Paszkowski. Thus, Lyman's failure to immediately activate his siren was a failure to comply with § 14-283(c), which was a ministerial duty. " 'Ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." 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." Reg. Conn. State Agencies § 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." (Internal citations and quotation marks omitted) Estate of Foster v. Town of Branford, Superior Court, judicial district of Waterbury, No. X10UWYCV054010120S (January 30, 2007, Munro, J.) [42 Conn.L.Rptr. 852, ].
The defendants argue that the sequence of events show that Lyman initially pulled behind Paszkowski's vehicle, which was in a stopped position. Lyman turned off his siren, exited his police cruiser and approached Paszkowski's vehicle. As he did, Paszkowski's vehicle resumed moving and turned left. Lyman returned to his cruiser and began to move forward toward a stop sign at seven miles per hour. Lyman slowed his vehicle by applying the brakes and proceeded through the stop sign, accelerating and making a left turn in the direction where Paszkowski vehicle had gone. At that time Lyman activated his siren. This sequence of events took approximately four seconds from the time Lyman re-entered his police cruiser until he activated his siren. Defendants argue that Lyman's small delay in activating his siren cannot be considered a material fact when considering Lyman was simultaneously driving his police cruiser; keeping his eyes on the road; memorizing and relaying Paszkowski's license plate information, all while communicating with his police dispatcher. " 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 . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
The time sequences noted, herein, are documented by recordings and the information has been supplied to the court by the parties in their briefs. As noted earlier, this court has not, itself viewed or listened to any recordings. However, the information supplied to the court is not disputed by either party.
The defendants conclude that the undisputed facts are that the collision between Paszkowski's vehicle and the plaintiffs' vehicle occurred more than a minute and a half after Lyman activated the siren on police vehicle, and the delay in activating his siren was not a material fact, as it did not in any way cause or contribute to the collision between Paszkowski's vehicle and the plaintiffs' vehicle. In essence, although it is not conceded by the defendants that Lyman violated § 14-283(c) or a provision of the Connecticut State Agencies Regulation § 14-283a, the defendants appear to argue that even if the court were to find that Lyman violated a ministerial duty, such a violation would not be a proximate cause of the collision between Paszkowski's vehicle and the plaintiffs' vehicle. The court chooses not to travel that path. " 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." (Internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010). " [I]ssues of proximate cause may be determined by way of summary judgment only in rare circumstances." Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011), aff'd, 307 Conn. 620, 58 A.3d 247 (2013). " The question of proximate causation . . . belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Sapko v. State, 305 Conn. 360, 373, 44 A.3d 827 (2012). In the present case, reasonable minds could disagree as to the proximate cause of the collision and the plaintiffs' injuries, rendering the question of proximate cause appropriate for the fact-finder.
The court finds there is a genuine issue of material fact regarding whether the acts of Officer Lyman in waiting four seconds to activate his audible siren violated a ministerial duty or was a discretionary act. In making this determination, the court is also mindful that a ministerial duty to act in the prescribed manner may follow a discretionary determination as to whether to act. Mills v. The Solution, LLC, 138 Conn.App. 40, 52-53, 50 A.3d 381 (2012). However, except for the issue of fact regarding officer's slight delay in activating his siren, the court does adopt the remainder of Judge Kamp's findings that the allegations brought by the plaintiffs regarding alleged violations of various statutes, regulations, and the Stratford Police pursuit policy referenced do not give rise to any ministerial duties. Those findings of Judge Kamp are found to be the law of the case. Paternoster v. Paszkowski, supra, No. FBTCV146042098 (Sept. 1, 2016, Kamp, J.); see also, Parker v. Stadalink, Superior Court of Connecticut. judicial district of Waterbury, No. UWYCV136020769S (May 4, 2016, Brazzel-Massaro, J.) [62 Conn.L.Rptr. 281, ] (Concurring that the duty of emergency vehicle operators to drive safely under statute permitting emergency vehicles to disregard traffic laws in response to emergency was discretionary, rather than ministerial, and thus operators disregarding traffic laws under such conditions would ordinarily be entitled to governmental immunity; duty to drive safely stated in statute was not defined to be performed in prescribed manner, and operators were required to balance need to proceed in excess of traffic laws to apprehend suspect with need to proceed safely so that operators or suspect did not cause injury to citizens. General Statutes § § 14-283(a), 14-283(b), 14-283(d), 52-557n.)
IV
Identifiable Victim Subject to Imminent Harm Exception to Discretionary Act Immunity
The defendants also advanced their argument that the plaintiffs were not identifiable victims subject to imminent harm. Despite the undisputed evidence presented that Lyman could not see the plaintiffs and the plaintiffs, who were members of the general public using the roadway, could not see Lyman, it is not necessary at this time to determine this issue. See Chirieleison v. Lucas, supra, 144 Conn.App. 442. The question of whether Lyman's actions regarding the timing of the activation of his audible siren were discretionary or violated a ministerial duty, as mandated by General Statutes § 14-283 will be determined by the trier of fact. The court will not discuss the applicability of the identifiable person imminent harm exception to a claimed violation of a discretionary duty, since the court already has found a material issue of fact as to the ministerial duty allegations. It would be premature to resolve the issue of identifiable victim subject to imminent harm before the trier of fact first resolves the issue of whether Lyman violated a ministerial duty. Only if the matter of his operation of the police cruiser is determined to be discretionary would the exception to discretionary act immunity be considered.
The parties have discussed additional matters such as the opinion of the plaintiffs' expert, the record of counseling of Lyman after the incident, training and supervision of Lyman by the Stratford Police Department as to the conduct of police pursuits. It is not necessary to discuss these issues, given the court has already denied summary judgment on other grounds.
Order
For the reasons set forth herein, the defendants' motion for summary judgment is denied.
(a) As used in this section, " police officer" means a sworn member of an organized local police department or a state police officer, which member or officer is assigned to patrol duties on public streets or highways, and " pursuit" means an attempt by a police officer in an authorized emergency vehicle to apprehend any occupant of another moving motor vehicle, when the driver of the fleeing vehicle is attempting to avoid apprehension by maintaining or increasing the speed of such vehicle or by ignoring the police officer's attempt to stop such vehicle. (b) The Commissioner of Emergency Services and Public Protection, in conjunction with the Chief State's Attorney, the Police Officer Standards and Training Council, the Connecticut Police Chiefs Association and the Connecticut Coalition of Police and Correctional Officers, shall adopt in accordance with chapter 541 a uniform, state-wide policy for handling pursuits by police officers. Such policy shall specify: (1) The conditions under which a police officer may engage in a pursuit and discontinue a pursuit, (2) alternative measures to be employed by any such police officer in order to apprehend any occupant of the fleeing motor vehicle or to impede the movement of such motor vehicle, (3) the coordination and responsibility, including control over the pursuit, of supervisory personnel and the police officer engaged in such pursuit, (4) in the case of a pursuit that may proceed and continue into another municipality, (A) the requirement to notify and the procedures to be used to notify the police department in such other municipality or, if there is no organized police department in such other municipality, the officers responsible for law enforcement in such other municipality, that there is a pursuit in progress, and (B) the coordination and responsibility of supervisory personnel in each such municipality and the police officer engaged in such pursuit, (5) the type and amount of training in pursuits, that each police officer shall undergo, which may include training in vehicle simulators, if vehicle simulator training is determined to be necessary, and (6) that a police officer immediately notify supervisory personnel or the officer in charge after the police officer begins a pursuit. The chief of police or Commissioner of Emergency Services and Public Protection, as the case may be, shall inform each officer within such chief's or said commissioner's department and each officer responsible for law enforcement in a municipality in which there is no such department of the existence of the policy of pursuit to be employed by any such officer and shall take whatever measures that are necessary to assure that each such officer understands the pursuit policy established. Reg. Conn. State Agencies Sec. 14-283a-1 reads as follows:
The purpose of this policy is to establish a Uniform Statewide Pursuit Policy in accordance with the provisions of Public Act 99-171. This policy shall serve as the minimum standard for all police pursuits in Connecticut. Additional requirements adopted by an individual police agency shall not conflict with any provision of this policy.
(a) Initiation of Pursuit. (1) The decision to initiate a pursuit shall be based on the pursuing police officer's conclusion that the immediate danger to the police officer and the public created by the pursuit is less than the immediate or potential danger to the public should the occupants of such vehicle remain at large. (2) In deciding whether to initiate a pursuit, the police officer shall take the following factors into consideration: (A) Road, weather and environmental conditions; (B) Population density and vehicular and pedestrian traffic; (C) Whether the identity of the occupants is known and immediate apprehension is not necessary to protect the public or police officers and apprehension at a later time is feasible; (D) The relative performance capabilities of the pursuit vehicle and the vehicle being pursued; (E) The seriousness of the offense; and (F) The presence of other persons in the police vehicle. (b) Pursuit Operations. (1) All authorized emergency vehicle operations shall be conducted in strict conformity with Sections 14-283a-1 to 14-283a-4, inclusive, of the Regulations of Connecticut State Agencies, and section 14-283a of the Connecticut General Statutes. (2) Upon engaging in or entering into a pursuit, the pursuing vehicle shall activate appropriate warning equipment. An audible warning device shall be used during all such pursuits. (3) Upon engaging in a pursuit, the police officer shall immediately notify communications of the location, direction and speed of the pursuit, the description of the pursued vehicle and the initial purpose of the stop. The police officers shall keep communications updated on the pursuit. Communications personnel shall immediately notify any available supervisor of the agency or agencies involved in such pursuit, clear the radio channel of non-emergency traffic, and relay necessary information to other police officers of the involved police agency or agencies, and adjacent police agencies in whose direction the pursuit is proceeding. (4) When engaged in a pursuit, police officers shall drive with due regard for the safety of persons and property . . . (c) Supervisory Responsibilities. (1) When made aware of a pursuit, the appropriate supervisor shall evaluate the situation and conditions that caused the pursuit to be initiated, the need to continue the pursuit, and shall monitor incoming information, coordinate and direct activities as needed to ensure that proper procedures are used. Such supervisor shall also have the authority to terminate the pursuit. When the agency supervisor communicates a termination directive, all agency vehicles shall disengage warning devices and cease the pursuit. (2) Where possible, a supervisory police officer shall respond to the location where a vehicle has been stopped following a pursuit. (d) Pursuit Tactics . . . (4) All intervention techniques short of deadly force shall be used when it is possible to do so in safety and when the police officers utilizing them have received appropriate training in their use. Such techniques shall include, but not be limited to, boxing in the vehicle or using controlled termination devices. (5) Firearms shall not be discharged from pursuit vehicles while such vehicles are in motion, except to the extent necessary to protect a police officer or innocent person from the imminent use of deadly physical force. Roadblocks are prohibited unless specifically authorized by the supervisor in charge after consideration of the necessity of applying deadly physical force to end the pursuit. (6) Once the pursued vehicle is stopped, police officers shall utilize appropriate police officer safety tactics and shall be aware of the necessity to utilize only the force the police officer reasonably believes to be necessary to take occupants into custody. (e) Termination of the Pursuit. (1) The police officer serving as the primary unit engaged in the pursuit shall continually re-evaluate and assess the pursuit situation, including all of the initiating factors, and terminate the pursuit whenever he or she reasonably believes that the risks associated with continued pursuit are greater than the public safety benefit of making an immediate apprehension. (2) The pursuit may be terminated by the primary unit at any time. (3) A supervisor may order the termination of a pursuit at any time and shall order the termination of a pursuit when the potential danger to the public outweighs the need for immediate apprehension. Such decision shall be based on information known to the supervisor at the time of the pursuit. (4) A pursuit may be terminated if the identity of the occupants has been determined, immediate apprehension is not necessary to protect the public or police officers, and apprehension at a later time is feasible. (5) A pursuit may be terminated when the police officers are prevented from communicating with their supervisors, communications or other police officers. (g) After-pursuit Reporting. (1) Whenever a police officer engages in a pursuit, the police officer shall file a written report on the appropriate form required by his or her agency describing the circumstances. This report shall be reviewed by the appropriate supervisor or supervisors to determine if policy has been complied with and to detect and correct any training deficiencies. (2) Each police agency shall periodically analyze its police pursuit activity and identify any additions, deletions or modifications warranted in agency pursuit procedures. (h) Training. Police officers who drive police vehicles shall be given initial and periodic update training in the agency's pursuit policy and in safe driving tactics. The provisions of Sections 14-283a-1 to 14-283a-4, inclusive, of the Regulations of Connecticut State Agencies shall be a part of the curriculum for all police basic recruit-training and re-certification programs in Connecticut.Section 14-283, Rights and duties re: emergency vehicles reads in relevant parts:
(a) As used in this section, " emergency vehicle" means any . . . state or local police vehicle operated by a police officer or inspector of the Department of Motor Vehicles answering an emergency call or in the pursuit of fleeing law violators . . . (b)(1) The operator of any emergency vehicle may (A) park or stand such vehicle, irrespective of the provisions of this chapter, (B) except as provided in subdivision (2) of this subsection, 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 such vehicle, (c) 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 so doing, and (D) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions. (2) The operator of any emergency vehicle shall immediately bring such vehicle to a stop not less than ten feet from the front when approaching and not less than ten feet from the rear when overtaking or following any registered school bus on any highway or private road or in any parking area or on any school property when such school bus is displaying flashing red signal lights and such operator may then proceed as long as he or she does not endanger life or property by so doing. (c) The exemptions granted in this section shall apply only when an emergency vehicle is making use of an audible warning signal device, including but not limited to a siren, whistle or bell which meets the requirements of subsection (f) of section 14-80, and visible flashing or revolving lights which meet the requirements of sections 14-96p and 14-96q, and to any state or local police vehicle properly and lawfully making use of an audible warning signal device only. (d) The provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property. (e) Upon the immediate approach of an emergency vehicle making use of such an audible warning signal device and such visible flashing or revolving lights or of any state or local police vehicle properly and lawfully making use of an audible warning signal device only, the operator of every other vehicle in the immediate vicinity shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a state or local police officer or a firefighter . . .