Ashley Dempsey et al. v. Jared Rinehart et al. (2009)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 141)

With the permission of the court, the defendants, Robert Edwards, a police officer for the Town of Waterford, and the Town of Waterford, have filed a motion for summary judgment on Counts Twelve and Thirteen of the plaintiffs' second amended complaint, (dated April 1, 2008).   These defendants assert that they were entitled to summary judgment for two reasons.   First, the defendants assert the plaintiff has not disclosed an expert on the issue of liability and therefore, cannot establish the existence of a genuine issue of material fact as to liability.   Second, they assert that both Officer Edwards and the Town of Waterford are entitled to governmental immunity in accordance with General Statutes § 52-557n.  Section 52-557n reads in relevant part:

(a)(1) Except 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;  ․ (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:  (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.  (Italics added.)

The plaintiff Ashley Dempsey responds to the motion for summary judgment by asserting that there are material facts in dispute, that the plaintiff does not require or need an expert witness to establish liability in this case, and finally, governmental immunity does not apply in this case because while the decision to engage in pursuit is a discretionary act for which there is no liability, once the pursuit is commenced, the officer operating his vehicle is engaged in a ministerial act which is not afforded absolute governmental immunity.

Statement of Case

In order to place the issues raised by this motion in context the court will briefly summarize the claims asserted in the twelfth and thirteenth counts of the complaint.   The twelfth count is directed to the defendant Robert Edwards.   The plaintiff alleges that early on Sunday morning, April 9, 2006, the plaintiff was a passenger in a motor vehicle operated by the defendant Jared Rinehart and owned by the defendant Penny Kormylo.   Earlier that evening, the plaintiff was at a local nightclub, Septembers, with Mr. Rinehart.   The plaintiff left the nightclub with Mr. Rinehart and their vehicle proceeded to turn right out of the parking lot to travel eastbound on the Boston Post Road.

The plaintiff alleges the defendant Edwards was traveling westbound on the Boston Post Road, when he observed the operation of the Rinehart vehicle.   He executed a U-turn and then began to pursue the defendant Rinehart's vehicle at an excessive rate of speed.   Rinehart also began to travel at an excessive rate of speed and as Rinehart approached the intersection of Bank Street and Beckwith Street in New London, Rinehart attempted to make a right-hand turn, lost control of the car, struck parked vehicles and a utility pole.   The plaintiff Ashley Dempsey who was a back seat passenger was ejected from the vehicle.

The complaint further alleges that the plaintiff's injuries were caused by the negligence and carelessness of Edwards with a number of common-law and statutory allegations of negligence.   The plaintiff alleges that Edwards:

exceeded the posted speed limits or other speed limits imposed by or pursuant to § 14-218a or § 14-219 and, in doing so, endangered life or property, including the life of the plaintiff in violation of § 14-283(b)(3) of the Connecticut General Statutes,

failed to operate his police car with due regard for the safety of all persons and property, including the safety of the plaintiff in violation of § 14-283(d) of the General Statutes and § 14-283a-4(b)(4) of the regulations of the Connecticut State Agencies,

failed to operate his police vehicle in accordance with policies and procedures adopted by the Town of Waterford concerning the conduct of its officers in engaging in pursuit of a motor vehicle;  and

knew or should have known that in so operating his police vehicle under the circumstances as alleged, he was subjecting the plaintiff, a known and identifiable potential victim, to imminent harm of death or serious injury, and that by engaging in such conduct, it was likely to subject the plaintiff to such harm of death or serious injury.

In the thirteenth count of the complaint, the plaintiff Ashley Dempsey alleges that the Town of Waterford is liable to her because it is legally responsible for the conduct of the defendant Robert Edwards, because it was negligent in failing to train Officer Edwards, that it failed to supervise the pursuit engaged in by the defendant Robert Edwards in violation of § 14-283a-4(c) of the regulations of Connecticut State Agencies.

The defendants Edwards and the Town of Waterford filed an answer and special defenses.   In their first special defense, they allege that since the acts performed by the defendant Edwards were discretionary acts, both defendants were immune from liability under the doctrine of governmental immunity and General Statutes § 52-557n.   The second special defense alleges that the plaintiff was contributorily negligent.   The third special defense alleges that the plaintiff and the defendant Rinehart were engaged in a joint venture or enterprise and, therefore, asks that the negligence of Rinehart be imputed to the plaintiff as a matter of law.   In the fourth special defense, the defendants argue that the plaintiff assumed the risk of Rinehart's misconduct because she facilitated Rinehart's intoxication.   The fifth special defense filed was that the plaintiff's action was barred because she knew or, in the exercise of reasonable care, should have known of the intoxicated condition of the defendant Rinehart.   The sixth special defense alleges the plaintiff acted in a wanton and reckless disregard for her own safety and the seventh special defense claimed that any recovery must be reduced by collateral sources pursuant to Connecticut General Statutes § 52-225a.

Affidavits in Support and Opposition to the Motion

Affidavits were offered in support and opposition to the motion for summary judgment.   In support of its motion for summary judgment, Edwards and the Town of Waterford filed a copy of the police report generated by the police department with regard to the incident.   Included within the police report were reports from Officer Edwards, Officer Bunce and Officer Fortier.   The defendants also supported their motions by offering portions of the deposition testimony of Officer Edwards and an affidavit from Officer Edwards.   The plaintiff supported her opposition to the motion for summary judgment by submitting portions of her deposition testimony.

The Law of Summary Judgment

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279 (1989) (Citations omitted).   The burden of proof on a motion for summary judgment is on the moving party;  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984);  who must clearly show that there is no genuine dispute either as to the existence of one or more facts which, if established, would entitle him to judgment as a matter of law, or as to the nonexistence of one or more facts upon which his opponent's right to judgment materially depends.   In deciding a motion for summary judgment, the trial court must employ the same standard it would use in deciding a motion for a directed verdict.  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994).   In Connecticut, the direction of a verdict is only “justified if upon the evidence the jury could not reasonably and legally have reached any other conclusion than that embodied in the verdict as rendered.”  Bernardo v. Hoffman, 109 Conn. 158, 159 (1929).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Neuhaus v. Decholnoky, 280 Conn. 190, 199 (2006).  “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.”   Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

Whether or not there is a “genuine issue” as to any “material fact” is a two-part inquiry.   The first question to be answered is whether or not the fact as to which the moving party claims there is no genuine issue is indeed a “material fact” that is, “a fact which will make a difference in the result of the case[.]”  Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The court first considers the issue of the necessity of expert testimony.   Does the plaintiff in this action require an expert to establish a genuine issue of material fact as to liability?   The defendants rely on two cases to support their proposition that the plaintiff in this case must provide expert testimony with regard to their theory of liability.   In LePage v. Horne, 262 Conn. 116, 125 (2002), the court held that expert testimony was required to determine the standard of care for persons that tend to sleeping infants.   Further, in the case of Santopietro v. City of New Haven, 239 Conn. 207 (1996), the court required the plaintiff to introduce evidence as to the requisite standard of care that an umpire must use in managing players' unruly play.

The court is not persuaded after a review of these cases that they would require in all circumstances the utilization of an expert to define the standard of care applicable to a policeman operating a motor vehicle in a pursuit situation.

Connecticut General Statutes § 14-283 defines the rights and legal duty of a police officer in pursuit of fleeing law violators.¹  This statute, in particular subsection (b), authorizes the police vehicle to proceed past red lights or exceed posted speed limits “as long as such operator does not endanger life or property by doing so.”   Further, subsection (d) of this statute provides that this statute “shall not relieve the operator of the emergency vehicle from the duty to drive with due regard for the safety of all persons and property.”   This statute thus authorizes a police officer in certain situations and circumstances to ignore certain traffic control signs or control signals which would otherwise be evidence of negligence per se.   The determination of whether a police officer operated his motor vehicle in such a way as to “endanger life or property” or operate his motor vehicle with “due regard for the safety of all persons and property” are questions that are submitted to juries in this state on a regular basis without the assistance of expert testimony.   The court will not grant the motion for summary judgment on this ground.

The court will now turn to the second argument raised by the defendants.   Does governmental immunity apply to the conduct of Officer Edwards and the Town of Waterford in this case?   Defendants argue that the decision to engage in the pursuit of a motor vehicle and the actual pursuit of that motor vehicle are an exercise of discretion in the performance of a governmental act and, therefore, cloaked with the immunity provided by § 52-557n(a)(2)(B), which provides:  “A political subdivision of the state shall not be liable for damage to person or property 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.”

The defendants argue that the plaintiff Ashley Dempsey does not fall within any of the exceptions to this grant of governmental immunity.  “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 the failure to enforce certain laws ․ Third, liability may be imposed when circumstances make it apparent to the public officer that his or her failure to act would likely subject an identifiable person to imminent harm ․” (Citations omitted;  internal quotation omitted.)  Violano v. Fernandez, 280 Conn. 310, 319-20 (2006).   Defendant argues that the affidavits and reports demonstrate that Officer Edwards never pursued the plaintiff, that even if there was a pursuit, it was discretionary conduct, and finally, it could not have been apparent to Officer Edwards that the plaintiff was in the Rinehart vehicle or that she was subject to imminent harm.

The first question the court must answer is whether both the decision to engage in a pursuit and the conduct of engaging in the pursuit are discretionary acts.   If they are then the court will have to address whether the plaintiff fits within any of the exceptions to the application of governmental immunity.   The court has reviewed the cases cited by both the plaintiff and the defendants on this issue.   The court finds the reasoning and analysis set out in Vilon v. Burns, 2004 WL 1615850 (June 22, 2004, Alander, J.) [37 Conn. L. Rptr. 425], persuasive.   This case and other cases cited therein draw a distinction between the decision to pursue a fleeing violator and the actual conduct of the pursuit.   The former is a discretionary act in the performance of a governmental duty and thus immunity attaches.   The latter is a ministerial conduct which may be the predicate for municipal liability.

In Tetro v. Stamford, 189 Conn. 601 (1983), our Supreme Court interpreted § 14-283 of the General Statutes.  “We see no reason to read the words ‘safety of all persons and property’ so restrictively.   Other courts, construing similar statutory language, have explained that emergency vehicle legislation provides only limited shelter from liability for negligence.   The effect of the statute 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 defendant's negligence has been established.”  (Pg.609-10.)

In this case, the decision of Officer Edwards to follow the defendant Rinehart's vehicle was a discretionary act, but the manner in which he chose to follow or pursue the Rinehart vehicle is a ministerial act in which he is obliged to act in much a way as to not endanger life or property by doing so or to operate his vehicle with due regard for the safety of all persons and property.   As such, the conduct falls within § 52-557n(a)(1) which states “․ 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.”   For this reason the court cannot grant the motion for summary judgment on the second ground asserted by the defendants.

Finally, the court addresses the plaintiff's claims that there are material facts in genuine dispute.   There is no dispute that the plaintiff Ashley Dempsey was at the Septembers Nightclub, Boston Post Road, in the early morning of April 9, 2006.   There is no dispute that Ms. Dempsey left the nightclub in a motor vehicle driven by Mr. Rinehart.   Ms. Dempsey testified that as they were turning right out of the parking lot of the nightclub, she observed the police vehicle.   She further testified that as soon as they exited the parking lot, that “a cop coming right out to follow us as soon as we left.”  (Depo. Tr. Pg.57.)   She testified that she noticed that the police officer had lights and sirens on “right away.   Right as we were making the turn.”  (Depo. Tr. Pg.184.)

The evidentiary material offered by the defendants in support of its motion are not in accord with Ms. Dempsey's sworn testimony.   Officer Bunce admitted in the police report that he was on DUI patrol in the area of Septembers on April 9, 2006.   He further states he was patrolling in the parking lot area and that he observed a motor vehicle leaving the parking lot.   His report does not indicate that he followed the motor vehicle out of the parking lot of the nightclub.   The deposition testimony of Officer Edwards is consistent with his police report, which indicates that he first observed the Rinehart motor vehicle while he was traveling in the opposite direction on the Boston Post Road. He locates this initial siting of the Rinehart vehicle either as being by the Brookside trailer park or by SNET Pole No. 2703.   The report indicates from the point of the initial observation through the crash site is a distance of about 1.9 miles.   In the incident report, Officer Edwards indicates that he attempted to catch up with the Camaro and that he had activated his emergency lights and siren.   Officer Edwards indicates that he passed a motor vehicle and approached the rear of the Camaro “in the area of Boston Post Road and Rope Ferry Road.” Finally, Officer Edwards describes the Camaro as accelerating quickly away from him, that he heard the Camaro's tires make a “chirping” sound, travel through several red lights and that thereafter he lost visual contact with the vehicle until he later came upon the accident scene.   Officer Edwards' deposition indicates that at some point he turned his lights and siren off.

This review of the proffered supporting affidavits indicates to the court that there is a dispute as to when the Waterford police officer started to pursue the Rinehart vehicle with its lights and siren activated.   The duration of the pursuit and the continuity of the pursuit activity are material to a jury's evaluation of the defendant's ministerial conduct.

For all of the above reasons the court denies the defendant officer's motion for summary judgment as to count twelve of the complaint.   As count thirteen of the complaint asserts a claim against the defendant municipality based upon its legal responsibility for the conduct of its employee.   As count twelve still stands, the motion for summary judgment on count thirteen must also fail.

The Court

Cosgrove, J.

FOOTNOTES

FN1. Sec. 14-283.   Rights of emergency vehicles.   Obstruction of.(a) “Emergency vehicle,” as used in this section, 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) The operator of any emergency vehicle may (1) park or stand such vehicle, irrespective of the provisions of this chapter, (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 such 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 so doing, and (4) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.(c) The exemptions herein granted shall apply ․ 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..  FN1. Sec. 14-283.   Rights of emergency vehicles.   Obstruction of.(a) “Emergency vehicle,” as used in this section, 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) The operator of any emergency vehicle may (1) park or stand such vehicle, irrespective of the provisions of this chapter, (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 such 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 so doing, and (4) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.(c) The exemptions herein granted shall apply ․ 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.

Cosgrove, Emmet L., J.