Michael Svitek v. Gregory Martin et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 126)

FACTS AND PROCEDURAL HISTORY

The plaintiff, Michael Svitek, commenced the present action against the defendants, Gregory Martin and the town of Madison, by service of process on March 29, 2010.   The complaint alleges the following facts.   On April 6, 2008, at approximately 8:30 p.m., the plaintiff was operating his motor vehicle northbound on Route 79 (Durham Road) in Madison, when a police cruiser operated by Martin, a town of Madison police officer, began to tailgate the plaintiff's vehicle.   The plaintiff remained in his travel lane but pulled over slightly to the right in order to allow Martin to pass him.   Instead, Martin activated his emergency lights and caused the plaintiff to pull over so that Martin could interview him.   The plaintiff told Martin that he does not have his right patella knee bone and would therefore have difficulty with completing a field sobriety test.   Martin nonetheless required the plaintiff to complete a field sobriety test and subsequently arrested the plaintiff for driving under the influence.   Martin handcuffed the plaintiff in a manner that caused the plaintiff to suffer severe, permanent and painful injuries to his wrists.   When the plaintiff was taken to the town of Madison police department, he was administered Breathalyzer and urine analysis tests, both of which provided that the plaintiff had a blood alcohol content level of .000 and that he had not been under the influence when Martin arrested him.   The charges against the plaintiff, for driving under the influence and failing to drive in the proper lane, were dismissed on June 12, 2008.

Count one of the complaint is against Martin and sounds in negligence.   Count two is against the town of Madison and sounds in negligence under General Statutes § 52–557n(a)(1)(A).¹  Count three is against both defendants and sounds in false arrest that “violated the plaintiff's rights, privileges and immunities as secured by the 14th Amendment of the United States Constitution and in violation of 42 U.S.C. § 1983 et seq.”   Finally, count four is against the town of Madison and seeks that the town indemnify Martin pursuant to General Statutes § 7–465.²

The defendants filed their answer and special defense on May 3, 2010.   The defendants' first special defense is that the present action is barred by the governmental immunity doctrine, pursuant to both common law and General Statutes § 52–557n.   The defendants filed the present motion for summary judgment, a memorandum of law in support thereof and exhibits on October 28, 2011.   The plaintiff in turn filed an objection to the motion, a memorandum of law in support thereof and exhibits on December 21, 2011.   The defendant then filed a reply memorandum on January 20, 2012.   The court heard oral argument on the matter at short calendar on March 19, 2012.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).   “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   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.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendants move for summary judgment on the following grounds.   With respect to count three, which sounds in false arrest, the defendants argue that they are entitled to a judgment as a matter of law because there is no genuine issue of material fact about whether Martin had probable cause to arrest the plaintiff, and probable cause is an absolute defense to a false arrest claim.   The defendants also move for summary judgment on count three for the reason that Martin is entitled to federal qualified immunity.   With respect to counts one, two and four, which respectively sound in negligence against Martin, negligence against the town of Madison and indemnification of Martin pursuant to § 7–465, the defendants argue that they are entitled to a judgment as a matter of law because the governmental immunity doctrine bars the present action.   The defendants have submitted the following exhibits in support of the present motion:  the police report (Ex. A);  deposition testimony by the plaintiff (Ex. B);  deposition testimony by Martin (Ex. C);  the plaintiff's notice of rights (Ex. D);  the field sobriety test report (Ex. E);  and documentation of the dismissed charges against the plaintiff (Ex. F).³

The plaintiff opposes the present motion by making the following arguments.   First, the defendants are not entitled to summary judgment on count three because there are genuine issues of material fact about whether Martin had probable cause to arrest the plaintiff.   Second, the defendants are not entitled to summary judgment on counts one, two and four because Martin's handcuffing of the plaintiff was a ministerial act required by the town of Madison police department's standard operating procedures, and the governmental immunity doctrine only applies to officials' discretionary, not ministerial, acts.   In support of his opposition, the plaintiff has submitted the following exhibits:  deposition testimony by the plaintiff (Ex. A);  deposition testimony by Martin (Ex. B);  documentation of the dismissed charges against the plaintiff (Ex. C);  and the portion of the town of Madison police department's standard operating procedural manual upon which the plaintiff relies.

I

COUNT THREE

The defendants move for summary judgment on count three for the following reasons:  1) there is no genuine issue of material fact about whether Martin had probable cause to arrest the plaintiff for driving under the influence and failure to drive in the proper lane, and 2) Martin is entitled to qualified immunity.  “A § 1983 claim for false arrest derives from the right to be free from unreasonable search and seizures, including the right to be free from arrest absent probable cause.  Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) ․ A false arrest claim under § 1983 is substantially the same as a claim for false arrest under Connecticut law.   Parsons v. Town of Watertown, No. 3:00CV1519 (CJS), United States District Court, D. Connecticut (March 30, 2004, Squatrito, J.).   Under Connecticut law, ‘[f]alse imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another.’  Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982);  Outlaw v. City of Meriden, 43 Conn.App. 387, 392, 682 A.2d 1112, cert. denied, 239 Conn. 946, 686 A.2d 122 (1996).

“ ‘The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983.’  Weyant, 101 F.3d at 852 ․ The plaintiff bears the burden of demonstrating a lack of probable cause for the arrest.  Baker v. McCollan, 443 U.S. 137, 143–46 (1979) ․ Probable cause is a question that may be resolved on a motion for summary judgment if there is no dispute of material fact regarding the pertinent events and knowledge of the officers.  Singer v. Fulton County Sheriff, 63 F.3d 110, 118–19 (2d Cir.1995).”   Hunter v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 97 0344157 (June 4, 2004, Dewey, J.).  “[P]robable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime ․ Federal courts evaluate probable cause in the light of the totality of the circumstances.”  (Citations omitted;  internal quotation marks omitted.)  Frey v. Maloney, 476 F.Sup.2d 141, 150 (2007).

The probable cause standard is the same under Connecticut law.  Beinhorn v. Saraceno, 23 Conn.App. 487, 492, 582 A.2d 208, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1990).  “It is a flexible common sense standard that does not require the police officer's belief to be correct or more likely true than false ․ Probable cause is based on the objective facts available to the officer at the time of arrest, not on the officer's subjective state of mind ․ As our Supreme Court has noted, [w]hile probable cause requires more than mere suspicion ․ the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.”   (Citations omitted;  internal quotation marks omitted.)  Washington v. Blackmore, 119 Conn.App. 218, 221–22, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010).

Even if there is disagreement about whether there was probable cause, Martin would still be entitled to federal qualified immunity if he had arguable probable cause to arrest the plaintiff.  “In an unlawful arrest action, an officer is immune if he has arguable probable cause, and is subject to suit only if his judgment was so flawed that no reasonable officer would have made a similar choice ․ Arguable probable cause is all that is required because [t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints of particular police conduct ․ Thus, even if probable cause to arrest did not exist, [a police officer] would still be entitled to qualified immunity if [he or she] established that there was ‘arguable probable cause’ to arrest ․

“Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause ․ and in those situations courts will not hold that they have violated the Constitution ․ Therefore, in situations where an officer may have reasonably but mistakenly concluded that probable cause existed, the officer is nonetheless entitled to qualified immunity.   Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met ․ [T]he analytically distinct test for qualified immunity is more favorable to the officers than the one for probable cause;  ‘arguable probable cause’ will suffice to confer qualified immunity for the arrest.”   (Citations omitted;  internal quotation marks omitted.)   Faubel v. Stamford, Superior Court, judicial district of Fairfield, Docket No. CV 08 5012985 (January 25, 2010, Arnold, J.) (citing to federal law for qualified immunity standard in deciding motion for summary judgment on, inter alia, claim of false arrest in violation of § 1983).

The defendants characterize the events underlying the present action in the following manner, based upon their exhibits.   Martin was behind the plaintiff on Horse Pond Road and Wickford Place in Madison.   The plaintiff stopped and started three times before he came to a complete stop at the intersection of Horse Pond Road and Durham Road. He then turned right onto Durham Road without using his turn signal.   The plaintiff had trouble with driving in a straight line but nonetheless remained in his lane until he reached the traffic circle located at the intersection of Durham Road and Route 80.   He entered the traffic circle with a wide right turn and exited it with a wide left turn.   The plaintiff crossed the double yellow center line three times before Martin activated his emergency lights and caused the plaintiff to pull over onto the side of the road.

Martin tapped the plaintiff's window in order to get the plaintiff's attention.   He detected “the faint smell of an alcoholic type beverage masked by a minty smell” on the plaintiff's breath.   Def's Ex. A at 2. The plaintiff spoke slowly and deliberately.   When asked for his license and registration, the plaintiff initially gave Martin both his license and another identification card but promptly pulled back the second item.   Martin asked the plaintiff if he had been drinking.   The police report provides that the plaintiff consumed one beer, but Martin attested that the plaintiff consumed two beers.

Martin asked the plaintiff to exit his vehicle.   While doing so, the plaintiff leaned on the driver's side door for support.   Martin then told the plaintiff that he was going to conduct field sobriety tests and asked the plaintiff if he had any physical conditions that would affect his ability to perform the tests.   The plaintiff replied that he had a bad left knee due to surgery that caused balance problems.   Martin nonetheless performed the following tests:  horizontal gaze nystagmus, vertical gaze nystagmus, walk and turn and one leg stand.   Martin perceived a distinct nystagmus in both of the plaintiff's eyes prior to 45 degrees.   He also perceived that the plaintiff had difficulty performing the walk and turn and one leg stand tests.   Martin informed the plaintiff that he was under arrest for driving under the influence and failure to drive in the proper lane, based upon Martin's observations of the plaintiff's driving, demeanor and performance on the field sobriety tests.

The plaintiff's version of the underlying events differs from the defendants' version in the following relevant respects.   First, the plaintiff kept moving his vehicle from the center of the lane to the right side of the lane in order to allow Martin's vehicle to pass, because Martin was “tailgating” the plaintiff so closely that the plaintiff could not see Martin's headlights at times.   Pl.'s Ex. A at 20–21.   Martin followed the plaintiff for four or five miles.   Pl.'s Ex. B at 99.   The plaintiff was unaware that he was being followed by a police officer until he rolled down his window and saw Martin.   Pl.'s Ex. A at 30.   Second, the plaintiff disputes whether he crossed the double yellow center line, although he provides “that possibly one of [his] tires may have touched the yellow line,” “given the fact that [he] drive[s] a full-size pickup truck and that road.”   Pl.'s Ex. A at 25.

The court begins its analysis by examining the charges that were levied against the plaintiff.  General Statutes § 14–227a(a) provides in relevant part:  “No person shall operate a motor vehicle while under the influence of intoxicating liquor ․ A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor ․ if such person operates a motor vehicle (1) while under the influence of intoxicating liquor ․ or (2) while such person has an elevated blood alcohol content.”   General Statutes § 14–236 provides in relevant part:  “When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety ․”

“ ‘Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law.’   DeLaurentis v. New Haven, 220 Conn. 225, 252–53, 597 A.2d 807 (1991).   When the underlying facts concerning the existence of probable cause are in dispute, there is a constitutional right to have those facts determined by a jury.   Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980).”   Balogh v. Shelton, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 99 0067521 (March 18, 2002, Alander, J.) (31 Conn. L. Rptr. 566, 569).   See also Drew v. Groton, United States District Court, Civil No. 3:09cv1355 (JBA) (D.Conn. July 21, 2011).

The plaintiff disputes the factual basis of Martin's belief that he had probable cause to arrest the plaintiff for violations of §§ 14–227a and 14–236.   Specifically, the plaintiff disputes the factual basis of Martin's belief that the plaintiff was driving erratically, which was necessary to finding probable cause with respect to the § 14–236 charge and significant to finding probable cause with respect to the § 14–227a charge.   The issue of whether there were sufficient facts to justify Martin's belief that there were grounds to arrest the plaintiff under § 14–227a is further complicated by the results of the walk and turn and one legged stand field sobriety tests, given that the plaintiff disclosed his physical impairments to Martin before Martin administered the tests.

Again, “[i]n 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.)  Stewart v. Watertown, 303 Conn. 699, 710, 38 A.3d 72 (2012).   The court will not conclude, on summary judgment, that Martin had probable cause or arguable probable cause to arrest the plaintiff, given the parties' conflicting factual accounts of the plaintiff's driving mannerisms;  the questionable relationship between the plaintiff's injuries, about which Martin was aware, and the plaintiff's field sobriety test results;  and the remaining “totality of the circumstances.”   See also Drew v. Groton, supra, United States District Court, Civil No. 3:09cv1355 (motion for summary judgment on ground of federal qualified immunity in false arrest action denied where there was dispute “as to what the facts available to [the defendant police officer] at the time of the traffic stop and arrest actually were”).   The court instead concludes, like the court in Balogh v. Shelton, supra, 31 Conn. L. Rptr. 569, that “[t]he existence of probable cause for the plaintiff's arrest will rest on which version of events the fact finder chooses to believe and the reasonable inferences to be drawn from them.”   Therefore, the motion for summary judgment is denied as to count three.

II

COUNTS ONE, TWO AND FOUR

The defendants move for summary judgment on counts one, two and four for the reason that they are entitled to governmental immunity, due to the discretionary nature of the conduct that the plaintiff alleges was negligent.   “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 ․ Section 52–557n(a)(1) sets forth the circumstances when a political subdivision will be held liable for damages to a person.   This statute provides in relevant part:  ‘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 ․’ General Statutes § 52–557n(a)(1)(A).   The statute also lists two exceptions to the statutory abrogation of governmental immunity.   The exception relevant to [the present action] 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 ․ Although the determination of whether acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases where it is apparent from the complaint.”   (Citations omitted;  internal quotation marks omitted.)  Kastancuk v. East Haven, 120 Conn.App. 282, 286–87, 991 A.2d 681 (2010).

The plaintiff alleges that Martin was negligent in one or more of the following ways:  1) he “placed handcuffs on the plaintiff's left and right hands so tightly that he caused the plaintiff ․ injuries ․;” 2) he “failed, refused and neglected to properly assess and evaluate the precautions and steps necessary to prevent injury to the plaintiff's wrists by restraining the plaintiff with handcuffs which were too small for the plaintiff's wrists;” and 3) he “negligently evaluated the plaintiff's sobriety by failing to ascertain that the plaintiff was in fact not intoxicated to any degree and that the plaintiff presented no danger to the public or to the defendant requiring any handcuffs or restraints.”   Complaint ¶ 7.   The plaintiff further alleges that “the negligence and carelessness of the defendant, Martin, as an individual and as a servant and agent of the co-defendant, Town of Madison as aforesaid” caused the plaintiff to suffer “severe and painful injuries to his wrists, some or all of which may be permanent in nature ․” Complaint ¶ 9.

The plaintiff has submitted the following portion of the town of Madison police department's standard operating procedural manual for the court's consideration.   Section 11.3.4, “Restraining devices,” provides in relevant part:  “All persons under arrest shall be handcuffed with the following exceptions allowed at the officer's discretion ․ Exceptions and accommodations may be made for ․ [p]ersons who are ill, injured, handicapped, or otherwise incapacitated ․ [j]uvenile or elderly persons arrested for minor offenses.”   Pl.'s Affidavit in Opposition to Motion for Summary Judgment.   The plaintiff argues that the ministerial act exception to the governmental immunity doctrine applies in the present action, because the town of Madison police department's standard operating procedural manual prescribes that a police officer must handcuff a person under arrest.

The plaintiff alleges in the complaint, however, that he sustained wrist injuries because of the manner in which he was handcuffed by Martin, not because of the fact that he was handcuffed by Martin.  (Emphasis added.)   The manner in which Martin handcuffed the plaintiff is separate and distinct from the fact that Martin handcuffed the plaintiff, for purposes of identifying the injurious conduct upon which the plaintiff relies in claiming negligence.   To this end, the court notes that Section 11.3.4 of the town of Madison police department's standard operating procedural manual also provides:  “Each person should be handcuffed behind the back whenever possible, however, handcuffing in front is permissible at the officer's discretion.   The handcuffs shall be double locked except in those instances when this cannot be done due to the behavior of the prisoner.   The handcuffs shall be tightened only enough to secure the prisoner's wrists.”   Pl.'s Affidavit in Opposition to Motion for Summary Judgment.

A reasonable reading of the language “tightened only enough to secure the prisoner's wrists” does not accord with the well-established definition of a “ministerial act,” i.e., “a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”   The use of the qualifier “only enough” and the lack of further explanation for when tightened handcuffs are sufficiently “secure” provide leeway for a police officer to exercise his or her judgment or discretion when tightening handcuffs on a person under arrest.   The court further notes that “police officers, and police departments, are typically protected by discretionary act immunity,” a policy that “reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.”  (Citations omitted.)   Soderlund v. Merrigan, 110 Conn.App. 389, 399–400, 955 A.2d 107 (2008).   The parties do not dispute whether Martin was performing official functions at all times relevant to the present action.   Given the above articulated policy, the applicable standard operating procedural manual language and the specifics of the plaintiff's negligence allegations, the court concludes that the conduct for which the plaintiff seeks to hold the defendants liable was discretionary.   The defendants are therefore entitled to judgment as a matter of law on counts one, two and four, under the governmental immunity doctrine.   For the foregoing reasons, the court grants the present motion with respect to counts one, two and four.

CONCLUSION

For the foregoing reasons, the court grants the defendants' motion for summary judgment with respect to counts one, two and four and denies it with respect to count three.

Wilson, J.

FOOTNOTES

FN1. Section 52–557n(a)(1)(A) provides:  “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ․ [t]he 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.”.  FN1. Section 52–557n(a)(1)(A) provides:  “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ․ [t]he 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. Section 7–465(a) provides in relevant part:  “Any town, city or borough, notwithstanding any inconsistent provision of law ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ․ for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”.  FN2. Section 7–465(a) provides in relevant part:  “Any town, city or borough, notwithstanding any inconsistent provision of law ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ․ for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”

FN3. Certain of the exhibits submitted by both parties are uncertified.   “[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Conn.Code Evid. § 9–1(a), commentary.   Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”   A court may, however, “consider [an uncertified] submission without objection.”  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Neither party has raised any objection regarding the certified status of the exhibits.   The court will therefore consider all of the parties' exhibits in deciding the present motion..  FN3. Certain of the exhibits submitted by both parties are uncertified.   “[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Conn.Code Evid. § 9–1(a), commentary.   Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”   A court may, however, “consider [an uncertified] submission without objection.”  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Neither party has raised any objection regarding the certified status of the exhibits.   The court will therefore consider all of the parties' exhibits in deciding the present motion.

Wilson, Robin L., J.