Opinion
No. CV03-0349547S
July 30, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON COUNTS THREE AND FOUR
This case requires the court to answer a municipal liability question not yet resolved at appellate levels. It is whether a plaintiff can avail himself of the "imminent harm to an identifiable individual" common-law exception to immunity for discretionary conduct of municipal employees in a statutory action pursuant to C.G.S. § 52-557n against a town directly.
Section 52-557n (a) declares that a town "shall be liable for damages . . . caused by: (A) the negligent acts or omissions of such [town] or any employee . . . thereof acting within the scope of his employment or official duties . . ."
Within said same section (a) of the statute, a part (2) states: "Except as otherwise provided by law [town] shall not be liable for damages . . . caused by: . . . (B) negligent acts or omissions which require the exercise of judgment or discretion . . ."
Plaintiff has brought suit against the town of Bethel pursuant to Connecticut General Statutes § 52-557n(a) alleging negligence and negligent infliction of emotional distress premised upon the conduct of two police officers as they investigated a report regarding a stolen vehicle, during which the plaintiff was called in for questioning. Plaintiff alleges that she has sustained emotional distress from an unreasonable and harassing investigation.
The factual background involves a dating relationship between plaintiff and a town official. Each having an interest in vintage autos, a 1956 automobile was purchased with plaintiff's money but with title and registration placed into the official's name. As the relationship foundered, plaintiff utilized self-help to retrieve the auto, to which she had keys, in order to protect her equitable interest, the official having apparently no longer returned her calls. The official was instrumental in initiating the police contacts with plaintiff, essentially for the "benefit" of the "victim" official, leading to her suit claiming harassment.
The town has moved for summary judgment on the grounds of governmental immunity pursuant to § 52-557n(a)(2)(B) because the alleged negligent conduct involved exercise of the officers' own judgment or discretion.
Plaintiff's opposition is two-fold. The first is resolved in the footnotes. The second raises the issue noted in the introduction; that is to say, plaintiff asserts that the "imminent harm" exception which permits recovery against municipal employees under common law case rulings remains an exception to immunity (now unstated in this 1986 legislative scheme) which would allow liability in statutory causes of action under § 52-557n.
Plaintiff's first argument is somewhat difficult to discern, but it appears to suggest that Spears v. Garcia, 263 Conn. 22 (2003), held that Connecticut General Statutes § 52-557n abrogated the town's immunity, which is true, as far as it goes; but plaintiff then asserts that this abrogation nullifies another section of the same statute which reinstates, in effect a limited immunity by legislating that a town is CT Page 9515-cp not liable for damages "caused by negligent acts or omissions which require the exercise of judgment or discretion . . ." C.G.S. § 52-557n(a)(2)(B). This court is unable to learn from plaintiff's brief or argument how the residual immunity apparently left in place in that subsection disappears and Spears goes nowhere near as far as that. As a result plaintiff's first argument must be rejected.
An exposition in more detail is merited. Since the time of Shore v. Stonington, 187 Conn. 147, in 1982, it has been so that municipal employees, who had no blanket immunity, were allowed a qualified immunity for non-ministerial acts involving the use of discretion. (Other bases for this qualified immunity being pierced have been articulated, but they CT Page 9515-cj have consumed little attention and need none here.) The major exception to that qualified immunity involved situations in which discretionary negligent conduct or omissions placed an identifiable individual in imminent harm (hereinafter, the "imminent harm" exception). If it did, common-law liability could attach and, per Connecticut General Statutes § 7-465, the employing town would have to indemnify the employee suffering a judgment.
This common-law qualified immunity may also be pierced where a statute specifically allows a cause of action for failure to enforce certain laws and where the conduct involves malice or intent to injure. See, e.g. Burns v. Board of Education, 228 Conn. 640 (1994); Evon v. Andrews, 211 Conn. 501, 505 (1989).
The case law progeny of the early decisions has wrestled with who may be deemed to fit within the designation "identifiable individual." Eventually, this phrase grew to expand so as to include specific classes of individuals. Burns v. Board of Education, 228 Conn. 640 (1994). At the same time, historically, the difficult conceptual parameters regarding what constitutes "imminent harm" came to be addressed. See, e.g., Purzycki v. Fairfield, 244 Conn. 101 (1998).
Setting aside the scope of those terms, we approach the problem this case presents.
In 1986, a package of legislation created a statutory, not common-law basis for municipal liability (and immunity). C.G.S. § 52-557n. This statutory scheme at its threshold abrogated municipal immunity. (One should keep in mind that in the "common-law" cases the towns and cities were immune but the employees were not.) The towns had to indemnify liable employees, C.G.S. § 7-465; thus, under the 1986 legislation, without the need to make an employee a defendant, the town could be directly sued and be without the simple, broad defense of municipal immunity.
However, figuratively in the same breath, section (b) of the legislation stated that the town would not be liable for harm caused by negligent acts or omissions which require the exercise of judgment or discretion.
Obviously, for a claimant with a negligence-based injury claim, the foreword of the statutory scheme, abrogating the town's immunity, might mean little, for "door number 2" (subsection (b)) threw up a hurdle of discretion-based immunity.
This brings us to the sharp demarcation. At common law the claimant has been allowed to proceed in the face of discretion-based immunity under a banner proclaiming, "I was an identifiable individual in imminent harm." Under the direct statutory "557n" claim against the town, presented here, the defendant Bethel says claimant can go no further because § 557n(a)(2)(B) does not specifically invite a claimant to carry on, to CT Page 9515-ck pierce immunity, by virtue of being an identifiable individual placed in imminent harm. Plaintiff asserts that this immunity-piercing opportunity resides in the statutory scheme just as it does in the common-law (or § 7-465) cases.
This is the determination that must be made. No appellate ruling has decided the point.
One Superior Court case has ruled that the "imminent harm to an identifiable individual" opening for a claimant (under suits against employees with an accompanying § 7-465 claim) is not available to pierce the discretion-based immunity set out in statute-based suits. The court's rationale was that "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." Thus, the court granted summary judgment for the movant town. Gaudino v. East Hartford, Superior Court, Complex Litigation at Tolland, Docket No. X07 CV01 0081310 (September 10, 2003, Sferrazza, J.) ( 35 Conn.L.Rptr. 448). Accord, Johnson v. New Haven, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0282191 (February 23, 2004, Tanzer, J.).
This court is not fully persuaded that this silence is of such significance.
For Supreme Court wariness regarding the significance of silence, see Spears, supra, 263 Conn. at 34 and 39.
Some cases appear to superficially disagree with Gaudino, in that the imminent harm exception is treated as though it of course applied in the § 52-557n context or in suits blending both § 7-465 common-law and § 557n statutory causes of action. See, e.g., Florence v. Plainfield, 48 Conn.Sup. 440, 36 Conn.L.Rptr. 361 (2004) Foley, J., relying upon Bonamico v. Middetown, 47 Conn.App. 758 (1998) ( Bonamico was obviously a hybrid case in that individuals and the town were named defendants. It discussed the imminent harm exception without distinguishing between any counts that might have been § 557n-based vs. § 7-465-based; Rossetti v. Middlefield, Superior Court, judicial district of New Haven, Docket No. CV 01 0452129, 37 Conn.L.Rptr. 129 (May 11, 1994, Arnold, J.). See, also, Cousins v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0467165 (February 13, 2004, Skolnick, J.) which appears to be a pure § 557n case which relies in its analysis of imminent harm-identifiable individual issues upon Prescott v. Meriden, 80 Conn.App. 697 (2003), a clearly pure common-law, § 7-465 indemnity case.).
Some cases at Appellate levels also resolve imminent harm type claims in settings where it is not clear whether the matter is pure common-law CT Page 9515-cl based, § 557n-based, or both. It does seem that no defense argument urged the inapplicability of the doctrine, only that plaintiffs' situation, as pleaded, did not fit within. See, e.g., Doe v. Board of Education, 76 Conn.App. 296 (2003). A review of the underlying trial court opinion, affirmed by the Appellate Court in Doe, makes clear that the case bears a frank § 557n cast out of which the Appellate Court wrestled with the imminent harm fit of plaintiff.
Why has this court concluded that the imminent harm exception is available to a claimant in the § 557n setting?
First it seems to make sense out of this messy confusion and averts an anomaly that would truly become a trap for the unwary. Consider the irony: if a § 557n claimant cannot utilize the exception, he has a vastly better chance for victory in the § 7-465 setting where the lead banner reads "towns immune" than he does in the § 557n setting, where the banner, the front row banner, reads "municipalities no longer immune."
It is fair to say that in the personal injury realm this exception takes up most of the oxygen in the (municipal immunity) room. How odd it would be, how hard to explain, that if one were to plead through the recently ostensibly opened door (of immunity abrogated) one were to find that once the almost universal conclusion of discretionary conduct is reached, the door is slammed shut. Yet this is the result were the imminent harm exception to be unavailable in the § 557n arena.
Next, there is a preeminent statutory doctrine of statutory construction to the effect that any statute in derogation of the common law must be strictly construed, obviously meaning any disassembly of the common law must be only what is precisely produced by the statute. Here, the common law dictates that limited immunity exists for a municipal-type defendant (i.e. an employee who must be indemnified if liable) for discretionary conduct unless or except where a certain person is in imminent harm. Now § 557n defendants, i.e., towns, would have courts freeze out that exception, that is derogate the common law, not from a reasonably worded or constructed written effort to do so, but from silence. Surely, if a written effort to derogate gets the narrowest hospitality, silence ought get none. This then, expresses the quarrel this court has with the Gaudino opinion, supra, which in effect would disallow the common-law imminent harm exception for § 557n cases because the legislature did not put it in. This derogation by silence or omission would seem to violate the notion that derogation must be affirmatively prescribed and tightly interpreted to accomplish alterations to the common law. CT Page 9515-cm
One might ask, is it "derogation?" That the evaporation of the imminent harm exception would be a significant alteration cannot be doubted. In some expressions of the strict construction doctrine, one finds the notion that "when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be enlarged in its scope by the mechanics of construction." Edmundson v. Rivera, 169 Conn. 630, 633 (1975), citing Stoll v. Judd Co., 106 Conn. 551, 556 (1927) (which, however, does not contain the expansion of liability proscription). But this court's conclusion, leaving the imminent harm exception available under § 557n, does not create liability where none existed; it leaves the status quo or prevents a shrinkage of liability.
The phrase "except as otherwise provided by law," which prefaces the § 557n(a)(2)(B) declaration that a town is not liable for discretionary conduct, cannot be used as ammunition for the suggestion that the case-law common-law imminent harm exception remains applicable for a claimant's use in 557n cases. This is so because this phrase has been explained in a recent Supreme Court case on this very statute, albeit in § 557n(a)(1), wherein it was held that this "savings" clause "pertains only to state and federal statutes, not to the common law." (Citation omitted.) Spears v. Garcia, 263 Conn. 22, 29 (2003). Thus, this phrase is not an obedient bow to welcome into the 557n scheme the common-law prospect of piercing immunity via use of the common-law imminent harm exception. One might also come to feel that this court's conclusion garners support in the notion some have expressed to the effect that § 557n codifies the common law. See, e.g. Florence v. Plainfield, 48 Conn.Sup. 440, 36 Conn.L.Rptr. 361 (2004) (Foley, J.), citing Bonamico v. Middletown, 47 Conn.App. 758, 761 (1998). But Florence does not further explain the conduit which moves the imminent harm exception into the 557n(a)(2)(B) vacuum. It is hard to envision that "codification" is any better a term for the 1986 legislation than "murky" or "contradictory." Sansone v. Board of Police Commissioners, 219 Conn. 179, 188 (1991). The codification argument can be made, but this court has decided not to contort to do so and thus it is not a primary rationale for this court's conclusion.
Finally, another principle seems to be of guidance toward the result suggested herein. It has been called the "golden rule of statutory interpretation" and it is "that the legislature is presumed to have intended a reasonable, just and constitutional result." (Citations omitted.) Sansone v. Board of Police Commissioners, 219 Conn. 179, 187 (1991). This rule is said to be followed throughout the exercise of looking first to the language of the statute itself, and through "extrinsic aids," such as legislative history with apparent ambiguity. Much of that written in the § 557n arena has found the legislative history unavailing. Indeed, with regard to the very section this opinion addresses our Supreme Court has stated that "the act represents a complex web of interdependent concessions and bargains struck by hostile interest groups and individuals of opposing philosophical positions." Id. at 185.
Thus, this court has come to conclude that the "reasonable" and "just" result is one in which § 557n(a)(2)(B) is interpreted to have left in place the common-law exception to discretion-based immunity. A different holding leads to chaos. As long as it is so that § 7-465 indemnification/common-law actions and § 557n claims can be deemed "coextensive"; Spears v. Garcia, supra at 37; and as long as it is so that the cases reveal complaints which clearly mix towns and employees as direct defendants, thus melding § 557n and the common law (except in some where the town is a "mere" § 7-465 indemnifier), a trial judge will be a confusing instructor to any jury upon setting out to explain the imminent harm exception as to the defendant-employees and the stronger immunity barrier as to the town, and yet the existence of the § 7-465 indemnification liability of the town for employee negligence. Then the instructing court might well have to go on to explain that the exception does not apply (re § 557n). Intelligent jurors would almost certainly find this elusive and, if they did not, would think the instructor had taken leave of senses. CT Page 9515-cn
This court believes that this "reasonable" and "just" application represents the historical reality of the post-1986 case law anyway. In no case found has the difficult imminent harm exception been weighed wherein the court has indicated anything to the effect that: "We wouldn't be having this (imminent harm) discussion under 557n."
See, e.g., Doe v. Board of Education, 76 Conn.App. 296 (2003); Purzycki v. Fairfield, 244 Conn. 101 (1998); Burns v. Board of Education, 228 Conn. 640 (1994); Evon v. Andrews, 211 Conn. 501 (1989); Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988).
For all the reasons stated above, defendant town's motion for summary judgment as to counts three and four is denied to the extent it suggests the imminent harm/identifiable individual exception regarding discretion-based immunity does NOT exist under § 52-557n. This court holds that it does exist, as it has at common law since 1979.
The parties devoted the vast majority of their efforts to the legal issues discussed above. Little discourse addresses whether this plaintiff is entitled to cloak herself within the imminent harm exception. (Pages 11 and 12, defendant's brief, dated June 1, 2004, and plaintiff's brief, pages 17-19, under date of June 16, 2004.)
There is often a large gap between a strong case and one merely sufficient to avert summary judgment. This matter seems to fit the latter category much more closely than the former.
Much is likely to depend on facts not yet extracted in discovery or which are otherwise unknown at present. The conduct of the officers under examination takes on different shadings depending upon the early focus of the investigation subsequent to the officers' first discussion with the car theft complainant. The affidavit of Mathew Dirago (paragraphs 9 through 13) makes clear that plaintiff, while not the certain suspect or perpetrator, was easily the obvious avenue of initial exploration, and this avenue was indeed taken immediately. Summary judgment cannot seriously be considered on the defense's suggestion that plaintiff was not an identifiable individual.
It is true that most of the cases discussing this exception are faced with passive conduct of omission, making the "identifiable individual" determination a subtle one. Where the alleged tortfeasors set out to interact with a known person, the topic loses its nuance and that prong is met. See e.g., Florence v. Plainfield, Superior Court, judicial district of Windham at Putman, Docket No. CV03 0069580, 36 Conn.L.Rptr. 361 (January 16, 2004, Foley J.).
In its last submission, dated July 30, 2004, defendant points to an October 1, 2003 memorandum of decision on summary judgment in an earlier matter brought by this plaintiff. Skrobacz v. Sweeney, Superior Court, judicial district of Danbury, Docket No. CV01-0344015 (October 2, 2003, White, J.). (This prior case and this opinion were not raised heretofore by either party to this case.) There, the court concluded, at page 18, in the single core of its conclusion on the "identifiable individual" topic that: "As a part of the investigation initiated by [the stolen car complainant Sweeney], the plaintiff was no more of an identifiable person than any member of the general public involved in removing a motor vehicle from the property of the owner." CT Page 9515-co
The undersigned court cannot accept that it should be bound by what it concludes is manifestly erroneous. Notions of estoppel ought not lead to the result defendant suggests where the earlier judicial act relied upon is not one of pure fact determination but a granting of summary judgment upon an interpretation, here believed erroneous, of part of an affidavit. Surely the law would not command a later court, in the name of finality, to tread a path believed clearly erroneous. The topic of "imminent harm" has been left to ride the coattails of the identifiable individual equation. It seems apparent that the fact finder must determine the presence of the alleged negligent infliction of emotional distress, to determine the harm and its imminence.
However, the court will entertain re-argument upon this sole topic of whether Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58 (2002), mandates the remedy defendant has urged at the eleventh hour.
Nadeau, J.