Kenny Santos v. City of Waterbury et al. (2011)

MEMORANDUM OF DECISION RE CITY'S MOTION FOR SUMMARY JUDGMENT # 110

I. Nature and History of Proceedings

This case arises out of an alleged altercation between the plaintiff and certain unnamed officers of the Waterbury Police Department that the plaintiff claims occurred at the Waterbury police station on August 25, 2008.   The plaintiff initially erroneously filed his complaint in the judicial district of New Haven, whereupon the matter was transferred to this district on January 25, 2010.   In his one count complaint dated September 18, 2009, the plaintiff alleges that he was arrested on various charges and was processed at the Waterbury police station where he was placed in a holding cell.   While so incarcerated he claims that he had, not one but two, physical altercations with officers of that department, each at different times.   The second altercation occurred after he was removed to a different cell due to the first altercation.   He alleges that he was subsequently charged with one count of assault on a public safety officer.  (C.G.S.Sec.53a–167c), two counts of interfering with an officer (53a–167a) and one count of criminal mischief in the first degree (53a–115).   He further alleges that each altercation was videotaped and, if that record were still in existence, would clearly show that the officers used excessive force upon his person, which has caused him permanent injuries and has resulted in his having a cause of action against those officers, although unnamed and not parties to the case, and the city of Waterbury.¹  The plaintiff alleges that the videotapes of both altercations were relevant evidence, not only to his claimed civil cause of action, but would have been evidence in his criminal prosecution.   Because, however, the recording/surveillance system employed by the Waterbury Police Department had a “thirty day record over cycle,” the tapes were, in effect, destroyed, thereby depriving the plaintiff of their use in his criminal defense and his pursuit of a civil action against the officers and the city.   The plaintiff brings this action against the city, alleging in Paragraph # 15, that the Waterbury police in permitting the tapes to be destroyed violated department rules and regulations in several respects including the failure to have the Records Division review the tapes prior to their disposal and the failure to prepare a Records Disposal Authorization (FORM RC–075), which required the signature of the chief of police and the mayor.   The plaintiff further alleges that the failure to preserve the videotapes violated two specific sections of the state of Connecticut Municipal Records Retention Schedule:  M7–435, which deals with individual identification records and M7–385, which covers daily records.   The plaintiff claims that the failure to retain tapes of the two alleged altercations while he was in police custody deprived him of the ability to establish a prima facie case against the city, resulting in the loss of his cause of action based upon the alleged “excessive force” used on him by the unnamed Waterbury police officers and the resultant “severe” injuries to his person.   The plaintiff brings this suit against the city pursuant to general statutes section 52–557n(a)(1)(A).²

On February 8, 2010, the city filed its answer and two special defenses, the first alleging that the plaintiff has failed to state a claim upon which relief may be granted and the second alleging that the plaintiff's action is barred by the doctrine of governmental immunity.   On September 8, 2010, the plaintiff filed a reply in which he denied both of the city's special defenses.   On November 24, 2010, the city filed its motion for summary judgment (# 110), asserting that there is no genuine issue of material fact to be decided by a trier of fact as to any claimed violations of state or city document retention rules or regulations.   In addition, the city claims the benefit of governmental immunity in that the installation, operation and maintenance of the police security surveillance system was a governmental function relative to which the city owed no private duty to the plaintiff.   Furthermore, the city argues that the plaintiff can demonstrate a prima facie case based upon the alleged assault by city police officers without the necessity of introducing the destroyed videotapes or recordings.

The city's motion was accompanied by a memorandum of law and fourteen exhibits that included, inter alia, copies of five Connecticut statutes (some of which are hereinafter cited and discussed), applicable sections of Connecticut's Municipal Retention Schedule, the Waterbury police duty manual and an affidavit from the police department's systems administrator, Mr. Aviles.   On January 13, 2011, the plaintiff filed his Objection (# 113) and oppositional memorandum that was accompanied by eleven exhibits, which, inter alia, included additional sections of this state's Municipal Retention Schedule, discovery responses and correspondence, the police incident report and excerpts from the deposition of Sgt. Mainiero, the officer in charge of the police department's Records Division.   The city filed a reply on January 20, 2011, to which the plaintiff responded on February 4, 2011.   The court heard oral argument at the short calendar on February 22, 2011.

The court, after reading all of the memoranda, reviewing all the exhibits submitted by the parties and the cases cited by each, and after considering the oral arguments will grant the city's motion for summary judgment.

II. Summary Judgment

“Practice Book Sec. 17–49 requires that judgment will be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The facts at issue are those alleged in the pleadings ․ The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ [A] party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Emphasis included.)  Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593–94 (2008).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as a trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact but rather to determine whether any such issues exist.”  Coss v. Steward, 126 Conn.App. 30, 40 (2011).  “The existence of a genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence ․ If the affidavits and the other supporting documents are inadequate then the court is justified in granting summary judgment, assuming that the movant has met his burden of proof.  Little v. Yale University, 92 Conn. 232, 235 (2005), cert. denied, 276 Conn. 936 (2006).   The use of summary judgment is an appropriate mechanism in order to decide the issue of governmental immunity.  Doe v. Peterson, 279 Conn. 607, 613 (2006).   The vehicle is also appropriate for a determination as to whether a defendant owed a duty of care to the plaintiff, which has been held to be a question of law.  Gorden v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988).

Thus, although it is inappropriate for the court to determine facts when called upon to rule on a motion for summary judgment, it is most appropriate for the court to consider and decide questions of law via the summary judgment process.   As hereinafter explained this court finds that the crucial issue presented by the city's motion is whether the Waterbury Police Department was in violation of this state's Municipal Records Retention Schedule, when it permitted the surveillance tapes or recordings of the events that took place on August 25, 2008, while the plaintiff was incarcerated to be erased or recorded over and thereby destroyed.   In this court's view, the answer to that question is a matter of law, not a matter of fact.   The resolution of that issue therefore is appropriate for disposition by summary judgment.

III. Governmental Immunity

As noted, the city argues that the plaintiff's action, which the plaintiff brings pursuant to the municipal liability statute, is barred by the doctrine of governmental immunity, as the installation, operation and maintenance of the Waterbury Police Department's security surveillance system was a governmental function which the city claims required the exercise of judgment and discretion and was not ministerial in nature.

“The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties.   The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52–557n ․ The statute also lists two exceptions to the statutory abrogation of governmental immunity.   The exception relevant to this appeal provides:  ‘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.’  General Statutes § 52–557n(a)(2) ․ Generally, the common law states that a municipal employee is liable for the misperformance of a ministerial act, but has a qualified immunity in the performance of a discretionary act ․ This employee immunity for discretionary acts is identical to the municipality's immunity for its employees' discretionary acts under § 52–557n ․ 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 ․ Kastancuk v. Town of East Haven, 120 Conn.App. 282, 286–87 (2010).  “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 ․ Whether conduct is ministerial or discretionary may be determined as a matter of law ․ [a]lthough the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases [, however,] where it is apparent from the complaint.  (Internal citations and quotation marks omitted;  emphasis added).  Smart, Adm. v. Corbitt et al., 126 Conn.App. 788, 800 (2011).  “A ministerial duty on the part of an official often follows a quasi judicial determination by that official as to the existence of a state of facts.   Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act the duty of giving effect, by taking appropriate action, to the determination is often ministerial.   Emphasis included.  Id., page 801–02.  “[M]unicipal 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.”  Violano v. Fernandez, 280 Conn. 310, 318–19 (2006).   A plaintiff's failure to plead and present evidence that demonstrates the existence of a policy or directive that required the defendant to perform specified duties in a prescribed manner is fatal to the plaintiff's effort to establish a ministerial duty.  Martel v. Metropolitan District Commission, et al., 275 Conn. 38, 50 (2005).

In this case the plaintiff has pled that the city violated regulations that prescribe the manner in which certain duties should be performed that do not involve or require the exercise of judgment or discretion.   The plaintiff claims that in destroying the recordings of the two incidents that occurred while the plaintiff was in the custody of the Waterbury Police Department, the city violated the state's records retention regulations and the directives contained in the police duty manual.   Both the state regulations and the local rules prescribe the length of time that certain specified records are to be retained and thereby prohibit the destruction of those records without strict compliance with the directives contained therein.   Thus both the state and local retention rules do mandate the manner in which specified duties are to be performed.   The duties implicated by the allegations contained in the plaintiff's complaint are ministerial in nature.   Contrary to the city's argument in this regard, the plaintiff is not attacking the manner in which the police surveillance system was designed, installed, operated or maintained.   The crux of the plaintiff's claim is that the automatic “record over” function violated prescribed state regulations and local rules.   Governmental immunity is therefore not a bar to the plaintiff's action.

IV. Connecticut's Municipal Records Retention Schedule

General Statutes Section 11–8(a) provides, in pertinent part:  “Under the direction of the State Library Board, the State Librarian shall be responsible for developing and directing a records management program for the books, records, papers and documents of ․ the several towns, cities, boroughs, districts and other political subdivisions of the state ․” The statute further authorizes the State Librarian to “adopt regulations for the creation and preservation of the records of the several towns, cities, boroughs and districts ․ [and empowers him/her to] order any person having the care and custody of such records to comply with such statutes or with such regulations.”   Subsection (b) mandates that the State Librarian appoint an assistant to be known as the Public Records Administrator, upon whom is delegated the responsibility to implement and enforce the record retention regulations.   The regulations which have been promulgated pursuant to this statute take the form of various schedules, collectively referred to as the Municipal Records Retention Schedule.   In general, the regulations mandate specific retention periods for a great many documents, each of which are specifically identified throughout each schedule.   Footnotes are added to further identify and particularize the document referred to.   Cautionary instructions and commentary are also provided in the footnotes.   The clear purpose and function of these regulations is to provide very specific instructions as to the length of time that a municipal official who has custody or possession of specifically described public records is mandated to retain and preserve those records.   As noted, the dispositive issue presented by the plaintiff's complaint and the city's motion for summary judgment is whether the destruction of the video recordings of the two occurrences in two separate holding cells, while the plaintiff was in police custody on August 25, 2008, violated the state's records retention schedule.   Specifically, the question raised by the motion for summary judgment is whether a genuine issue of material fact exists relative to that dispositive issue.   The plaintiff asserts that it is up to the trier of fact to determine whether the Waterbury Police Department's destruction of the video, via the thirty-day record over function, violated the retention schedule.   Contrary to that assertion, this court finds that the question as to which of the several records retention schedules cited by the parties is applicable to the facts alleged in the plaintiff's complaint is a question of statutory interpretation.   It is therefore a question of law which is an appropriate issue to be determined via the summary judgment vehicle.

V. Statutory Interpretation

“The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation ․ Statutory interpretation presents a question of law for the court.   The court, therefore, had the power to interpret the statutory and regulatory language in light of the undisputed facts before it, and we conclude that it did not make improper factual findings.”  (Internal quotation marks omitted.   Emphasis added.)   Massad v. Eastern Connecticut Cable Television, Inc., 70 Conn.App. 635, 639, cert. denied, 261 Conn. 926 (2002).  “Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended ․” Kraiza v. Planning and Zoning Commission of the Town of Hartland, 121 Conn.App. 478, 483 (2010).   In this case the underlying facts are not in dispute;  there is no question that there was a video record of the two holding cell incidents, a record which was not retained by the Waterbury Police Department but was in fact automatically destroyed thirty days after the incident.   Whether that destruction was contrary to applicable regulations requires the court to interpret those regulations in order to determine which regulations, i.e., which schedule, is applicable to the undisputed facts.

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.   In seeking to determine [the] meaning [of a statute], General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.   When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  (Internal quotation marks omitted.)   Thomas v. Department of Developmental Services, et al., 297 Conn. 391, 399 (2010).  “The purpose of statutory construction is to give effect to the intended purpose of the legislature ․ If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature's intent ․ Common sense must be used [when construing statutes] and courts will assume that the legislature intended to accomplish a reasonable and rational result ․ We must presume that each sentence, clause and phrase in a public act has a purpose and that the legislature did not intend to enact a meaningless law.”  (Citation omitted;  internal quotation marks omitted.)  In re Kachainy C., 67 Conn.App. 401, 411 (2001).  “In giving a statute its full meaning where that construction is in harmony with the context and policy of the statute, there is no canon against using common sense in construing laws as saying what they obviously mean.”  Pritchard v. Pritchard, 103 Conn.App. 276, 285 (2007).   “We have often recognized that those which promulgate statutes ․ do not intend to promulgate statutes ․ that lead to absurd consequences or bizarre results.”  (Internal quotation marks omitted.)  Shortell v. Cavanaugh et al., 300 Conn. 383, 388–89 (2011).

In reaching the decision to grant the city's motion for summary judgment this court has followed the above cited principles of statutory interpretation.   In doing so, the court agrees with the city and concludes, as a matter of law, that the record retention item that applies to the destroyed video tapes or recordings is M1–265, which requires a two week retention period.   The Waterbury Police Department, by retaining those tapes or recordings for a period of thirty days, as the surveillance system was designed to do, did in fact comply with that schedule.   The court will now address that portion of the state's retention schedule as well as those portions that the plaintiff asserts are applicable to the facts of this case.

VI. Discussion

A. The Plaintiff's Complaint

In Paragraph # 15 the plaintiff alleges that the losses and damages claimed by him were due to the negligence and carelessness of the city through its police employees:  (e) “IN THAT they failed [to] retain the videotapes, which was an individual identification record, for the life of the case file, in violation of the state of Connecticut Municipal Records Retention Schedule M7–435;” and, further:  (f) “IN THAT they failed to retain the videotapes, which were daily records, for two years, in violation of the state of Connecticut Municipal Records Retention Schedule M7–385.”   Notably, in his oppositional memorandum the plaintiff raises, for the first time, Item M7–580 which is not referred to in the operative complaint, the allegations of which must form the factual basis for the court's decision on the city's motion.  Tuccio Development, Inc. v. Neumann, supra, 111 Conn.App. 593.

B. Item M7–435—Individual Identification Records

Schedule M7 is under the general heading of “Public Safety and Emergency Services Records,” is found under the subheading of “General Law Enforcement” and refers to “Individual Identification Records.”   See Defendant's Exhibit D. Those records include;  “but [are] not limited to:  fingerprint card [s];  photographs (mug shots);  descriptions;  videotapes;  any other technology, whether digitalized, computerized or produced by any current or future technology.”   Several footnotes are referenced therein.   Note # 13 provides:  “When a case or incident crosses boundaries of a records series, go to the highest retention period.   Note # 20 provides:  “Refer to CGS 29–15 regarding return of fingerprints, pictures and descriptions.” ³  Note # 25 provides:  “If a mug shot exists videotape can be considered duplicate record.”

The plaintiff argues that the holding cell videotapes or recordings automatically destroyed by the police department's video recording system were covered by this item of the retention schedule.   The plaintiff asserts that the closed-circuit surveillance digital recording, the content and function of which is described in detail by its system coordinator, Victor Aviles (Defendant's Exhibit J ) is included in the types of records covered by Item M7–435 and, per the mandate contained therein, should have been retained for the life of the case file.

Aviles' affidavit provides pertinent and detailed information as to the makeup and function of the Waterbury Police Department's “closed-circuit television security system,” the purpose of which “is to provide security surveillance and monitoring at various locations inside and outside” the department.   Aviles is the Systems Administrator in the department's information technology department, which is “not affiliated with the Records Division” of the police department.   The system is maintained by ADT Security Systems and consists of thirty-five (35) surveillance monitors located inside and outside the department, including monitors for each of the seventeen (17) male and three (3) female holding cells.   The motion-activated digital recording system has limited hard drive and memory storage;  the system can store video recordings for up to thirty days after which it “automatically re-loop's or recycles itself” so that new recordings can be made over the old.

The city asserts that, given the nature and purpose of the aforementioned system, which is a security surveillance system, the video recordings generated by that system have nothing to do with and no relationship to individual identification records.   The system has everything to do with the safety of those persons who are confined to the holding cells and those officers who interact with them.

In assessing the unambiguous plain language of this regulation and in light of the specific context of the footnotes referred to therein and the more general context of this portion of the retention schedule, this court agrees with the defendant's position.   In this regard, the defendant asserts that, in referring to such things as fingerprint cards and mugshots, this part of the schedule clearly deals with standard identification information that is filed with the state police Bureau of Identification when an individual is arrested and is part of the Uniform Arrest Report.   See Defendant's Exhibit G. The city argues that nowhere in this portion of the schedule, footnotes included, is it even implied that a digital surveillance recording from a system in a jail cell is an individual identification record within the meaning of Item 7–435.

If the court were to adopt the plaintiff's interpretation of this portion of the record retention schedule all police departments throughout the state would be compelled to preserve every second of all recordings of all arrested persons while confined to the holding cells until each case occasioned by the arrest was fully completed.   Such a mandate would put an undue burden on the department with regard to personnel, record-keeping and expense.   Such a mandate in light of more applicable items in the schedule would be unreasonable and irrational.   It could not have been the intention of the Public Records Administrator to impose such an oppressive burden on local law enforcement agencies.   Moreover, as hereinafter discussed, there is an item in the schedule that governs the retention of the digital recordings generated by the Waterbury Police Department's security surveillance system—Item M1–265.   This court finds that Item 7–435 is not applicable to the Waterbury Police Department's digital recording surveillance system.   Thus, as a matter of law, there is no genuine issue of material fact which arises out of the allegation in the plaintiff's complaint that the destruction of the subject video recordings was in violation of this portion of the retention schedule.

C. Item M7–385—Daily Activity Records

This portion of the records retention schedule is also under the general heading of Public Safety and Emergency Services Records and under the subheading of General Law Enforcement.   It refers to;  “Daily activity records, CAD, activity records, blotter- daily journal.”   Footnote # 17 is referenced therein which provides:  “File may be either hard copy or computer-generated.   If the record is electronically generated, the record creator must be able to interpret and retrieve the data for the minimum retention requirement.”   The plaintiff asserts that the closed-circuit surveillance digital recording system employed by the Waterbury Police Department is included in the types of records covered by Item M7–385 and, per the mandate contained therein should have been retained for a period of two years.

The city disagrees and asserts that the cited footnote's use of the terms “file,” “hard copy” and “computer-generated” in the context of the subtitle, clearly does not include security surveillance recordings.   The city argues that this portion of the retention schedule refers to the daily journals or “blotter” routinely kept by police department's, including log sheets and the so-called daybook, referring to Chapter 401, Article 6 of the department's duty manual entitled, “Prison Detention Processing.”   See Defendant's Exhibit N. Again, the city points out that there is no way one could imply from the records referred to in Item M7–385 that the digital recordings generated by the Waterbury Police Department's digital security surveillance system are encompassed by that regulation.

Again, the court is persuaded by the city's position and finds that, in light of the plain language of this regulation and in consideration of its specific and more general context within the entire records retention schedule, the police department security surveillance system is completely unrelated to the records referred to in Item M7–385 The court further finds that the interpretation urged by the plaintiff would impose an undue and unintended burden on law enforcement to preserve every second of all cell surveillance records for a period of two years.   As noted, in this court's view, Item M7–265 is the applicable regulation in so far as the retention of security surveillance recordings are concerned.   The court finds that Item M7–385, is not applicable here.   There is no genuine issue of material fact arising out of the plaintiff's allegations to the contrary.   The court finds as a matter of law that the destruction of the subject video recordings did not violate this portion of the retention schedule.

D. Item M1–265

Schedule M1 is under the general heading, “General Administrative Schedule,” is found under the subheading, “Tapes:  audio or video,” and refers to, “c. Security surveillance.”   See Defendant's Exhibit I. The retention period mandated for such records is two weeks.   The city asserts that there can be no genuine issue of material fact that this item clearly applies to the type of digital security surveillance system utilized by the Waterbury Police Department.   The city points to the word “recycle,” which is the disposition mandated by the regulation, as a further indication that this portion of the retention schedule is the regulation that governs and controls the videotapes or recordings made by that system, as its sole purpose and function is security surveillance.   In Paragraph # 9 of his affidavit, Aviles avers:  “The purpose of the closed-circuit television system is to provide security surveillance and monitoring at various locations inside and outside Waterbury Police Department.”   In paragraph # 16, he asserts that the security surveillance system automatic record-over function is in full compliance with Item M1–265.   “The Waterbury Police Department complies with the provisions of Item Number M1–265, Municipal Records Retention Schedule M1, which requires that any video or audio tape recordings from a security surveillance system have a minimum required retention of two (2) weeks with a disposition of recycle.”   See Defendant's Exhibit J.

In response to the city's position, the plaintiff directs the court's attention to footnote # 12 which provides:  “If the tapes become evidence in any kind of disciplinary proceeding, litigation, if notice of pending action has been filed with the town clerk CGS [Sec.] 7–101a(d), or otherwise take on a status that would require a longer retention according to the schedule, the tape would be retained for the amount of time specified by the retention schedule, and until all actions have been resolved.”   Emphasis added.   Based upon the language employed in that footnote the plaintiff asserts that his arrest and subsequent prosecution constituted “pending litigation” and thus required the city to preserve the tapes until the litigation, i.e., the criminal prosecution, was terminated.   Further, the plaintiff points to Sgt. Mainiero's deposition (Plaintiff's Exhibit B) wherein he “assume[s]” that the recording of the two cell incidents would be of interest to the prosecution and defense (pages 19–20);  that he was aware that the type of altercation alleged by the plaintiff sometimes leads to civil lawsuits (pages 24–25), and that the tape recordings could be relevant evidence in such a suit (pages 26–27).

The court disagrees.   First, General Statutes Section 7–101a provides indemnification of and protection for municipal employees who are sued for money damages for injury to person or property as a result of alleged negligent conduct within the scope of his or her municipal employment.   Subparagraph (d) provides as a condition precedent to commencing such an action against the municipality and/or the employee that the claimant must provide specific notice to the municipal clerk within six months after the cause of action has accrued.   This statute, which is cited in footnote # 12, has nothing to do with a criminal prosecution.   It refers to civil litigation only, which is generally considered as a dispute between two or more private entities.   In this case the plaintiff has not produced any evidence that the city was made aware of any civil action via the cited statute prior to the destruction of the security surveillance tapes through the record-over function that was built into the system maintained by the Waterbury Police Department.   Second, there has been no evidence offered by the plaintiff to show that any type of disciplinary proceeding was pending.   Third, the plaintiff has not shown that he, anyone acting on his behalf or the office of the state's attorney requested the preservation of the security surveillance tapes prior to their automatic destruction.

The court agrees with the city that the plaintiff has failed to produce any concrete evidence that demonstrates that the security surveillance tapes of the two alleged holding cell incidents rose to the elevated status that is referred to in footnote # 12 of Item M1–265.   This court finds that as a matter of law Item M1–265 is the portion of the Municipal Records Retention Schedule that was and is applicable to the security surveillance tapes or recordings generated by the system utilized by the Waterbury Police Department.   Thus, the thirty-day record-over function that was built into the system did not violate state-implemented regulations that constitute that schedule.

E. Item M7–580

As noted, the plaintiff's complaint alleges that the city's destruction of the subject tapes violated either Item M7–435 (individual identification records) or Item M7–385 (the daily activity records) or both.   The court has detailed its disagreement with both assertions, and has expressed its agreement with the city that Item M1–265 was the applicable portion of the records retention schedule.

In his brief, the plaintiff first raises his claim that Item M7–580 applies to the security surveillance tapes at issue in this case.   No reference, however, is made to this item in the plaintiff's complaint.   The court disagrees with the city's argument that this late insertion of Item M7–580 into the case implicates the statute of limitations.   The attempt to do so appears to be more analogous to a belated amendment to a motor vehicle personal injury complaint in order to add, for example, a statutory speeding allegation to those specifications of negligence previously and timely pled.   The plaintiff is simply adding another regulation of the Municipal Records Retention Schedule which he claims may have been violated by the city.   Such an amendment does not add a new cause of action;  it simply adds a new specification of negligence.   However, the attempted insertion of this new issue via the plaintiff's brief rather than by way of a request to amend pursuant to the Sec 10–60 of the Practice Book is inappropriate for the purposes of the motion now before the court.⁴  The court must render its decision on the city's motion for summary judgment based upon the allegations the plaintiff has made in his complaint.   The court cannot base its decision on legal claims that are not supported by those allegations.  Tuccio Development, Inc. v. Neumann, supra, 11 Conn.App. 593.   Nevertheless, the court will briefly address this issue.

M7–580 (Plaintiff's Exhibit H ) is found under the general heading, “Public Safety and Emergency Services Records” and under the subheading, “Lockups, Jail/Holding Facilities.”   The specific item refers to “videotapes.”   The length of retention provides, “no requirement.”   The plaintiff refers to footnote # 33, which provides:  “Length of retention is an administrative decision but police department's must be aware of any pending litigation.”   This court has previously addressed herein the issue of “pending litigation.   The plaintiff has produced no evidence that any city employee or official was aware of pending litigation prior to the time that the thirty-day automatic record-over function erased the subject tapes.   The criminal prosecution that was ongoing at the time did not fall into that category.   Again, the plaintiff asks the court to read Item M7–580 in conjunction with M7–435 and to factor in footnote # 13, which would require retention of the tapes “for the life of the case.”   As this court has previously cautioned such an unreasonable and irrational requirement would unduly burden the department, the city and its taxpayers.   Again, this court finds that the city complied with M1–265, which is the portion of the state regulations (Municipal Records Retention and Schedule) that is applicable to the Waterbury Police Department's security surveillance system.

F. Section 7–109 and Footnote # 1

General Statutes Section 7–109 provides:  “Any official board or commissioner of a municipality may, with the approval of the chief administrative officer of such municipality and of the public records administrator, destroy any document in his or its custody relating to any matter which has been disposed of and of which no record is required by law to be kept, after such document has been held for the period of time specified in a retention schedule adopted by the Public Records Administrator.”   The plaintiff argues that regardless of which portion of the Municipal Records Retention Schedule is applicable to the Waterbury Police Department's security surveillance tapes or recordings, unless the city obtained a form known as RC–075, which must be signed by the city's chief executive and the public records administrator, it has not complied with the statutory mandate or the state regulations embodied in said schedule.   There is no question that such a form was not completed in this case.   See Plaintiff's Exhibit G. The plaintiff claims that the failure to do so violates the plain language of Section 7–109, footnote # 1 of the retention schedule and the mandate provided in the police department's own duty manual.

Both the General Administration (M1) and Public Safety and Emergency Services (M7) portions of the Municipal Records Retention Schedule refer throughout to footnote # 1 with just one notable exception.   The footnote complements the statute and provides:  “Municipalities may destroy records only after receiving the signed approval form (RC–075, rev.2/2005) from the Office of the Public Records Administrator.   Retention periods established on this schedule are minimum retention requirements.   Records may be retained for longer periods of time.”  (Italics included.   Boldface provided.)   As noted, all records listed in the schedules cited by each party make reference to footnote # 1 and mandate that the disposition would be to “destroy” the referenced record, but only after form RC–075 is properly executed by the municipality's chief executive and submitted to the Public Records Administrator for his signature.   All records identified in the retention schedule are subject to footnote # 1 with the notable exception of one category;  the only records excepted from the mandate of footnote # 1 and, presumably, the statute, are the videotapes or recordings which are the subject of this action and the city's motion for summary judgment.   A careful review of the M1 and the M7 schedules reveals that M1–265, entitled “Security surveillance” and falling under the heading, “Tapes:  audio or video” is the only portion of the schedule that makes no reference to footnote # 1, referring only the footnote # 12 (dealing with pending litigation or disciplinary proceedings) which has been previously thoroughly addressed.   Moreover, M1–265 is the only portion of the records retention schedule where the disposition is not “destroy.”   The disposition mandated by M1–265 is, as previously noted, “recycle.”   In this court's view the lack of reference to footnote # 1 and a reference to a disposition of recycle rather than destruction of the security surveillance tapes or recordings evinces a clear intent on the part of the drafter of these state regulations to create an exception to the mandate of, not only footnote # 1, but that provided in the cited enabling statute.   Were it otherwise, as the plaintiff insists, the regulation and the statute would be completely contradictory.   The plain and unambiguous language in M1–265 in its lack of reference to footnote # 1, its “recycle” mandate and the two-week retention period provided therein belie the plaintiff's position.   To require the Public Record Administrator and the municipality's chief executive (mayor) to execute From RC–075, given the purpose, nature and function of the Waterbury Police Department's security surveillance system, would be ludicrous, irrational and impossible for the city to comply.   Those who drafted the records retention schedule and the enabling legislation could not have intended such a nonsensical result.

“We have often stated that those who promulgate statutes ․ do not intend to promulgate statutes ․ that lead to absurd consequences or bizarre results.”   (Internal quotation marks omitted.)  State v. Harrison, 228 Conn. 758, 765 (1994).  “We are further guided ․ by the presumption that the legislature, in amending and enacting statutes, always [is] presumed to have created a harmonious and consistent body of law ․ Accordingly, in determining the meaning of the statute ․ [w]e look not only at the provision at issue but also the broader statutory scheme to ensure the coherency of our construction.”  (Internal citations and quotation marks omitted.)  Thomas v. Department of Developmental Services, supra, 297 Conn. 404.   A statute should not be interpreted in a manner that leads to an illogical result.  Cox Cable and Advisory Council v. Departmental Public Utility Control, 259 Conn. 56, 63 (2002).

The court finds that the thirty-day record-over component of the security surveillance system utilized by the Waterbury Police Department did not violate the state's Municipal Records Retention Schedule or that schedule's enabling legislation.   The city was in full compliance with Item M1–265, which is that portion of the retention schedule that applies to the tapes and recordings generated by said system.   Pursuant to the dictates of M1–265 and given the lack of reference to footnote # 1, the city, in recycling the recordings every thirty days, was in full compliance with the two-week retention period provided therein and the applicable statute.

G. The Duty Manual

In addition to the alleged specific violations of the state's Municipal Records Retention Schedule, the plaintiff alleges that the destruction of the holding cell videotapes or recordings in the manner alleged violated several sections of the police department's rules and regulations.   Specifically in Paragraph # 15(a) through (d) the plaintiff alleges that Chapter 302, Section 1.1III.E. of the Waterbury Police Department's rules and regulations were violated in that the recordings were destroyed, i.e., recycled, without first undergoing a review by the department's Records Division and without obtaining the signatures of the Chief of Police and the Mayor on form RC–075.   See Defendant's Exhibit L.

Chapter 302 of the police department's duty manual is entitled, “Records Division.”   Article 1 is entitled, “Administration.”   Section 1.1.III.E., (Subparagraphs 1., 2. and 3.) refers to the state's Municipal Records Retention Schedule and mandates the preparation of RC–075 with the signatures of the chief and the mayor affixed thereto.   As noted in the previous section of this memorandum, that form must also be signed by the Public Records Administrator.   The procedure outlined in the local rules is the exact procedure referred to in footnote # 1 to the retention schedule and C.G.S. Section 7–109, an issue which this court has extensively addressed.   As the city points out, however, one must interpret that procedure in light of Section 1.1.II of the local rules, which is entitled, “POLICY” and provides:  “It shall be the policy of the Waterbury Police Department that all personnel shall act in accordance with all applicable state and federal laws concerning privacy, security, data entry, report dissemination, record maintenance and disposal, freedom of information and erasure procedures.   All departmental records shall be maintained, retained and destroyed in accordance with the guidelines set forth in the Connecticut Records and Destruction Schedule and mandated in Section 7–109 of the Connecticut General Statutes.”   Emphasis added.

As this court concluded in its analysis of Section 7–109 and footnote # 1, as applied to the department's security surveillance system, it would be ludicrous, irrational and nonsensical to require the city to execute form RC–075 in the manner indicated, by obtaining the signatures of the Chief of Police, the Mayor of the city and the state Public Records Administrator.   Such an unreasonable procedure would defeat the very purpose for which the security surveillance system was installed and would place a heavy financial and personnel burden on the city and its taxpayers.   This court therefore finds as a matter of law that by following the dictates of Item M1–265, the city has complied with the applicable state regulations and those evidenced by the rules and regulations set forth in the police department's duty manual.   In this regard there is no genuine issue of material fact to be decided by the trier of fact.   The entry of summary judgment is therefore warranted.

VII. The Non–Dispositive Issues

Since the sole basis of the plaintiff's negligence claim against the city is the allegation that the city violated both the state records retention schedule and the police duty manual when it recorded over the recordings made of the two alleged holding cell incidents, the court's finding that there is no genuine issue of material fact to be resolved in this regard is dispositive of the city's motion for summary judgment.   The court, however, will briefly address three non-dispositive issues that are raised by the plaintiff.

First, citing Beers v. Bayliner Marine Corp., 236 Conn. 769 (1996), the plaintiff asserts that he should be entitled to an adverse inference, i.e., a presumption in his favor that some sinister motive was behind the destruction of the recordings that are the subject of this action.   The court agrees with the plaintiff's attorney who on page # 9 of his memorandum admitted that the resolution of this issue depends upon “whether the duty to preserve the video arose from the municipal records retention statute.”   The court has found that, as a matter of law, the city complied with the duty imposed upon it in M1–265 of the retention schedule.   In light of that finding there is no evidential issue as that finding removes the case from any fact-finding function including a fact-finder's consideration of any factual inferences, adverse or otherwise.

Second, in his oppositional memorandum the plaintiff, for the first time, raises a claim based upon a spoliation cause of action, which is not a cause of action contained in his complaint.   As the city points out, however, such a cause of action, if pursued by the plaintiff, would fail under the elements established in Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244 (2006).   In that case, our Supreme Court instructed that this intentional tort consisted of five essential elements:  (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff;  (2) the defendant's destruction of evidence;  (3), in bad faith, that is, with the intent to deprive the plaintiff of his cause of action;  (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence;  and (5) damages.   Emphasis added.   Thus, in order to establish a cause of action for spoliation of evidence, the act of destroying the evidence must have been intentional and motivated by bad faith with a specific intent to deprive the plaintiff of his underlying cause of action.  General Statutes Section 52–577n(a)(2)(A) negates any liability on the part of a municipality for any injury to person or damage to property arising out of acts or omissions of its employees which constitute willful conduct.   Therefore, as a matter of law, the city cannot be held legally responsible under a claim of spoliation.

Finally, in an argument related to both the spoliation and adverse inference claim, the plaintiff asserts that the destruction of the holding cell recordings deprived him of his ability to prove a prima facie case based upon the alleged assault by the unnamed Waterbury police officers.   Again, this is an evidential issue the resolution of which is not necessary to the disposition of the city's motion for summary judgment.   The court, however, agrees with the city that the plaintiff's version of the actions of the unnamed officers on August 25, 2008, would be sufficient to establish a prima facie case at a trial without the necessity of producing the holding cell recordings.   The issue, however, is academic in light of this court's finding that, as a matter of law, the city is entitled to summary judgment based upon the allegations set forth in the plaintiff's complaint and the court's analysis of Connecticut's Municipal Records Retention Schedule.

VIII. Conclusion

For the reasons articulated herein, the court finds that there is no genuine issue of material fact to be determined by a trier of fact.   The court will therefore grant the city's motion for summary judgment (# 110) and will overrule the plaintiff's objection thereto (# 113).   Judgment may enter accordingly.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. The plaintiff initially sued the city of Waterbury and the “Waterbury Police Department,” however, the plaintiff withdrew against the latter defendant after counsel for the defendants correctly pointed out in her memorandum in support of the motion for summary judgment that the police department was not a legal entity unto itself.  “Unless the department within municipal government constitute[s] a distinct ‘bod[y] politic under state law, the proper defendant is the municipality itself not an administrative subdivision.’   Levine v. Fairfield Fire Dept. (X01–CV89–0146670), Superior Court, Judicial District of Waterbury, complex litigation docket (April 9, 1999, Hodgson, J.);   See also Disabella v. Town of West Hartford (CV04–0832044), Superior Court, Judicial District of Hartford at Hartford (June 9, 2005, Keller, J.), which held that municipal police departments do not constitute an independent legal entity amenable to suit.”.  FN1. The plaintiff initially sued the city of Waterbury and the “Waterbury Police Department,” however, the plaintiff withdrew against the latter defendant after counsel for the defendants correctly pointed out in her memorandum in support of the motion for summary judgment that the police department was not a legal entity unto itself.  “Unless the department within municipal government constitute[s] a distinct ‘bod[y] politic under state law, the proper defendant is the municipality itself not an administrative subdivision.’   Levine v. Fairfield Fire Dept. (X01–CV89–0146670), Superior Court, Judicial District of Waterbury, complex litigation docket (April 9, 1999, Hodgson, J.);   See also Disabella v. Town of West Hartford (CV04–0832044), Superior Court, Judicial District of Hartford at Hartford (June 9, 2005, Keller, J.), which held that municipal police departments do not constitute an independent legal entity amenable to suit.”

FN2. The cited portion of this so-called “municipal liability statute” provides:  “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..  FN2. The cited portion of this so-called “municipal liability statute” provides:  “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.

FN3. Sec. 29–15.   Return or destruction of fingerprints, photograph and physical description.(a)(1) Except as provided in subdivision (2) of this subsection, whenever any person, having no record of prior criminal conviction, whose fingerprints, photograph and physical description are filed with the State Police Bureau of Identification in accordance with section 29–12 has been found not guilty of the offense charged, or has had such charge dismissed or nolled, such person's fingerprints, photograph and physical description and other identification data, and all copies and duplicates thereof, shall be returned to such person not later than sixty days after the finding of not guilty or after such dismissal or in the case of a nolle within sixty days after thirteen months of such nolle.(2) Whenever any person, having no record of prior criminal conviction, whose fingerprints, photograph and physical description and other identification data have been filed and stored in an electronic format, has been found not guilty of the offense charged, or has had such charge dismissed or nolled, such electronically stored images and data shall be permanently deleted and any paper copy of such fingerprints, photograph and physical description and other identification data, and all copies and duplicates thereof, shall be destroyed not later than sixty days after the finding of not guilty or after such dismissal or in the case of a nolle within sixty days after thirteen months of such nolle.(b) Any person having no record of prior criminal conviction whose fingerprints and pictures are so filed, who has been found not guilty of the offense charged or has had such charge dismissed or nolled prior to October 1, 1974, may, upon application to the person charged with the retention and control of such identification data at the State Police Bureau of Identification, have his fingerprints, pictures and description and other identification data and all copies and duplicates thereof, returned to him not later than sixty days after the filing of such application provided in the case of a nolle, such nolle shall have occurred thirteen months prior to filing of such application..  FN3. Sec. 29–15.   Return or destruction of fingerprints, photograph and physical description.(a)(1) Except as provided in subdivision (2) of this subsection, whenever any person, having no record of prior criminal conviction, whose fingerprints, photograph and physical description are filed with the State Police Bureau of Identification in accordance with section 29–12 has been found not guilty of the offense charged, or has had such charge dismissed or nolled, such person's fingerprints, photograph and physical description and other identification data, and all copies and duplicates thereof, shall be returned to such person not later than sixty days after the finding of not guilty or after such dismissal or in the case of a nolle within sixty days after thirteen months of such nolle.(2) Whenever any person, having no record of prior criminal conviction, whose fingerprints, photograph and physical description and other identification data have been filed and stored in an electronic format, has been found not guilty of the offense charged, or has had such charge dismissed or nolled, such electronically stored images and data shall be permanently deleted and any paper copy of such fingerprints, photograph and physical description and other identification data, and all copies and duplicates thereof, shall be destroyed not later than sixty days after the finding of not guilty or after such dismissal or in the case of a nolle within sixty days after thirteen months of such nolle.(b) Any person having no record of prior criminal conviction whose fingerprints and pictures are so filed, who has been found not guilty of the offense charged or has had such charge dismissed or nolled prior to October 1, 1974, may, upon application to the person charged with the retention and control of such identification data at the State Police Bureau of Identification, have his fingerprints, pictures and description and other identification data and all copies and duplicates thereof, returned to him not later than sixty days after the filing of such application provided in the case of a nolle, such nolle shall have occurred thirteen months prior to filing of such application.

FN4. Practice Book Sec. 10–60 provides, in pertinent part:(a) Except as provided in Section 10–66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:(1) By order of judicial authority;  or(2) By written consent of the adverse party;  or(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10–12 through 10–17, and with proof of service endorsed thereon.   If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.   If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10–12 through 10–17 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list..  FN4. Practice Book Sec. 10–60 provides, in pertinent part:(a) Except as provided in Section 10–66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:(1) By order of judicial authority;  or(2) By written consent of the adverse party;  or(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10–12 through 10–17, and with proof of service endorsed thereon.   If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.   If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10–12 through 10–17 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list.

Trombley, Wilson J., J.