Jonathan Cortes v. City of Hartford and Mark Rostkowski (2010)

MEMORANDUM OF DECISION

FACTS AND PROCEDURE:

On June 12, 2006 at approximately 11:30 p.m., the plaintiff, Jonathan Cortes, (hereinafter also “Cortes”) was traveling westbound on Bond Street in Hartford, Connecticut.   The defendant, police officer of the City of Hartford, Mark Rostkowski (hereinafter also “Officer”) had received a report of an attempted robbery by a Hispanic male in a white Ford Escort vehicle with a white T-shirt and in possession of a gun, and upon witnessing the plaintiff attempted to pull the plaintiff over to the side of the road.   The plaintiff, who was 16 years old at the time, was driving without his lights proceeding down Maple Avenue and onto Kenneth Street until he was finally stopped by the Officer who veered his cruiser in front of the plaintiff's vehicle causing the plaintiff to stop.   Because the report to the Officer was of an attempted robbery, this was a felony stop.   In addition, the plaintiff had no identification, did not have a driver's license and was driving without lights on.   The Officer then ran to the driver's side of the plaintiff's motor vehicle with his weapon drawn.   At that point the Officer believed that the plaintiff was a suspect in the attempted robbery based upon the report that was given to him, the plaintiff being an Hispanic male in a white Ford Escort with a white T-shirt.   The Officer's gun was drawn because of the report that the suspect possessed a gun.   The Officer approached the plaintiff's vehicle and told the plaintiff to put the car in park and show his hands.   The plaintiff did not comply, so the Officer opened the driver's side door.   The plaintiff started to get out of his automobile when it began to roll backwards.   The Officer pulled the plaintiff out of the way and leaned into the vehicle to put it in park with his left hand on the brake and his right hand putting the gear in park.   By this time, the Officer determined that the plaintiff was not carrying a gun.   At or about the same time the Officer removed the plaintiff from his car resulting in the plaintiff falling face down beside the car.   The plaintiff claims that the front left tire of the car rode over his left ankle causing him to sustain injuries.   The Officer conducted a further search of the automobile but did not find a weapon.   The plaintiff is seeking damages for the injuries he allegedly suffered as a result of his automobile tire rolling over his left ankle.   The case was tried before this Court without a jury.   The plaintiff and the Officer testified, and the parties filed briefs and reply briefs.

STANDARD OF REVIEW:

“The plaintiff in a civil case sustains his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true.”  Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968).   This is also known as proof by a preponderance of the evidence.

In addition, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.

Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.

The burden is on the plaintiff to prove his allegations by a preponderance of the evidence.

ISSUES AND FINDINGS:

1. CREDIBILITY

The Court finds the Officer more credible than the plaintiff.   This is partly based upon the two witnesses' testimony and their appearance on the witness stand.   In addition, the Court finds that the plaintiff, lacking identification and a driver's license and having his headlights off are factors negatively affecting his credibility.   His age of 16 years also calls into question his judgment.   In contrast, the Court found no problem with the Officer's background, experience and his testimony.   This becomes important because the Court believes the Officer as to his finding it necessary to place the automobile in park because the plaintiff did not comply with the Officer's command to put the automobile in park.   The Court does not believe the plaintiff's claim that he yelled to the Officer that he had not put the car in park and that he should have been allowed to do so before he left the vehicle.

The plaintiff has brought this action in two counts.   The first count claims that the plaintiff's injuries were caused by the negligence of the defendant, City of Hartford, and seeks damages from the City pursuant to the indemnification statute, C.G.S. § 7-465.   The second count alleges that the Officer “․ willfully did cause and/or with reckless disregard ․ a harmful contact with the plaintiff's person.”

2. Was the City of Hartford Negligent?

The short answer is No.

In order to find the City of Hartford negligent, this Court would have to find that the Officer was negligent.   It does not so find.   Based upon the circumstances as described, the Officer had every right to approach the plaintiff's automobile and order him out of the driver's seat and out of the automobile.   He was faced with a report of a suspect who matched the description of the suspect in an attempted robbery armed with a weapon.   As stated above, the Court believes the Officer that the plaintiff failed to comply with putting the automobile in park, and the Officer was required to do it himself, and in order to do that, he had to remove the plaintiff from the automobile.   Based upon the totality of the evidence, the Court finds that the Officer's actions were reasonable.   It is unfortunate that the left front tire allegedly rolled over the plaintiff's left ankle, but he has only himself to blame.   Accordingly, there is no indemnification as a result of the Officer's actions because the Officer's actions were not negligent.

3. Were the Officer's actions willful, wanton and/or reckless as Claimed in Count Two?

The short answer is No.

The Court concludes that the Officer's actions and conduct were not negligent and certainly as described above were not willful, wanton and/or reckless.   His conduct was reasonable under the circumstances.

4. Is there Immunity for the City of Hartford and the Officer?

The short answer is Yes.

Connecticut General Statutes § 52-557n gives immunity to municipalities for negligent acts or omissions by an employee which required the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.   First, the Court has already found that the Officer's actions and conduct were not negligent.   The Court also finds that the Officer exercised discretion and judgment in the carrying out of his official functions.

As for the Officer, his actions were discretionary as a matter of law.   There is nothing in the record to indicate that he acted with malice, wantonness or with intent to injure.

It is true that there are three exceptions to discretionary act immunity.   Liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.   This is not the case here.   Secondly, 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.   That is not the case here.   Finally, “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 ․” Violano v. Fernandez, 280 Conn. 310, 318-20 (2006).   As our Supreme Court provided in Grady v. Somers, 294 Conn. 324 (2009), Connecticut has not yet recognized any additional classes of foreseeable victims outside the of the public school contexts and, even in such a context, such a class has only been recognized where attendance has been compulsory.   In this case the public school context obviously does not apply.   Finally, the third exception is for failure to act.   Plaintiff claims that the failure to act was the Officer not moving quickly enough to put the automobile in park.   The Court disagrees.   It is obvious from the evidence that the Officer acted as quickly as was possible.

CONCLUSION:

For the above reasons, the plaintiff has not sustained his burden of proof in this case, and, accordingly, judgment is entered for the defendants.¹

Rittenband, JTR

FOOTNOTES

FN1. This decision has been made without the benefit of a reply brief from the plaintiff.  (The original brief was filed late on May 26, 2010 after a telephone call from the clerk of the court.   Plaintiff's reply brief was due no later than June 8, 2010.   As of June 21, 2010, it has still not been received despite another call from the clerk.).  FN1. This decision has been made without the benefit of a reply brief from the plaintiff.  (The original brief was filed late on May 26, 2010 after a telephone call from the clerk of the court.   Plaintiff's reply brief was due no later than June 8, 2010.   As of June 21, 2010, it has still not been received despite another call from the clerk.)

Rittenband, Richard M., J.T.R.