Barbara Michalewski v. Town of Farmington et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 110

I

PROCEDURAL HISTORY

The plaintiff, Barbara Michalewski, commenced the present two-count action against the defendants, the town of Farmington and a Farmington police officer, Kevin L. Naranjo, by service of process on March 1, 2012.   The complaint alleges the following relevant facts.   On October 10, 2010, the plaintiff was stopped and arrested for driving under the influence in violation of General Statutes § 14–227a by Naranjo.   The plaintiff was handcuffed and taken to the Farmington police station where she was booked and kept under close confinement for several hours.   The charge against the plaintiff was later dismissed by the prosecuting authority after approximately five court appearances.

Count one, directed against Naranjo, encompasses two separate causes of action.   First, the plaintiff alleges that her arrest and confinement by Naranjo was unlawful, without probable cause, and “wanton and malicious knowing that the [p]laintiff was not guilty of any crime.”   Second, the plaintiff alleges that Naranjo illegally searched her vehicle without a warrant, under Farmington police inventory policy.

In count two, directed against Farmington, the plaintiff alleges that Farmington “improperly employed, trained, supervised and instructed” Naranjo and that the town “has a policy regarding [d]riving under the [i]nfluence arrests such that an inordinate emphasis is placed on making arrest[s], resulting in an unacceptable rate of false arrests.”   For both counts the plaintiff seeks money damages and punitive and exemplary damages.

The defendants filed their answer and special defenses on March 30, 2012.   In relevant part, the defendants assert that the plaintiff's claims in both counts are barred by (1) the doctrine of governmental immunity pursuant to both common law and General Statutes § 52–557n and (2) the doctrine of qualified immunity.   On March 18, 2013, the defendants filed a joint motion for summary judgment, along with a memorandum of law and exhibits in support.   On May 1, 2013, the plaintiff filed an objection to the motion for summary judgment and a memorandum of law in support with no exhibits attached.   The matter was heard at short calendar on May 6, 2013.

II

STANDARD OF REVIEW

“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).  “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 strict standard ․ 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.”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “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, however, 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.)  Id. “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).

III

DISCUSSION

The defendants move for summary judgment on both counts on the following grounds:  (1) the plaintiff's claim for false arrest fails as there exists no genuine issue of material fact that the defendant Naranjo had probable cause for the plaintiff's arrest;  (2) the plaintiff's claim for unlawful search of her vehicle fails as there exists no genuine issue of material fact and the search was lawful;  (3) the plaintiff's claims are barred by the doctrine of qualified immunity;  (4) the plaintiff's claim for failure to train fails as a matter of law;  and (5) the plaintiff's claims are barred by the doctrine of governmental immunity to which no exception is applicable in this case.   The defendants have submitted the following exhibits in support of the present action:  the deposition testimony by the plaintiff (Ex. A);  an affidavit by the defendant, Naranjo (Ex. B);  General Orders of the Farmington Police Department, Assistance to Highway Motorists (Ex. 1);  the police report by Naranjo concerning the plaintiff (Ex. 2);  a police report by Officer Vincent concerning an incident involving the plaintiff's husband, Arthur Michalewski (“Arthur”), on the same night (Ex. 3);  and the transcript of the dismissal of State v. Michalewski, H14H–MV10–0465243, on May 11, 2011.¹  (Ex. C.)

In response, the plaintiff “asserts that he can make a showing of the existence of a genuine issue of fact ․ and, further, there is no legally sufficient defense that would bar the plaintiff's claim ․ as the doctrine of governmental immunity does not protect municipal employees from acts which are done with malice, wantonness or intent to injure.”   Furthermore, the plaintiff argues that governmental immunity does not protect the municipality itself from a failure “to train or supervise its employees in such a way that these intentional acts will not occur,” nor does it protect the municipality “from liability for policies that actually cause intentional [tortious] acts to occur.”   The plaintiff has not submitted any exhibits in support of her objection to the motion for summary judgment.

A

COUNT ONE

Count one is directed against Naranjo, and contains two claims:  unlawful arrest and warrantless search.

1

Unlawful Arrest

In the present case, the defendants argue that Naranjo had probable cause to arrest the plaintiff and that no questions of material fact remain.   The defendants assert that based upon the plaintiff's driving mannerisms, her field sobriety test results, and the remaining “totality of the circumstances,” Naranjo had probable cause to arrest the plaintiff.

In response, the plaintiff argues that “the exact reason [Naranjo] chose to arrest the [p]laintiff is known only to him, but intent is always an issue for the trier of fact.”   The plaintiff states that her position is that Naranjo “arrested her because she had been arguing with her husband earlier, and that her husband had been drinking, and therefore he assumed that she had been drinking as well.”   The plaintiff also asserts that “there is no claim that Officer Naranjo noticed the [p]laintiff's speech to be impaired or her eyes to be glassy or bloodshot.”

“The validity of a warrantless arrest hinges on the existence of probable cause.”  Washington v. Blackmore, 119 Conn.App. 218, 221, 986 A.2d 356 (2010), citing State v. Lamme, 216 Conn. 172, 178, 579 A.2d 484 (1990).   “The issue of whether an arresting officer had probable cause to arrest can be determined as a matter of law if the pertinent events and knowledge of the officers are not in dispute ․” Hunter v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 0344157 (June 4, 2004, Dewey, J.).   “Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.”  (Internal quotation marks omitted.)  State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991).

“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 for an arrest is based on the objective facts available to the officer at the time of arrest, not on the officer's subjective state of mind.”  (Citation omitted;  internal quotation marks omitted.)  Washington v. Blackmore, supra, 119 Conn.App. 221.   As our Supreme Court 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 ․ The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence.”  (Citations omitted;  internal quotation marks omitted.)  State v. Trine, 236 Conn. 216, 237, 673 A.2d 1098 (1996).

As the courts make clear, Naranjo's “intent” when he arrested the plaintiff is irrelevant as to the determination of whether there was probable cause.   Instead, the court must look to the circumstances and the objective facts that were available to Naranjo at the time of the arrest, and not his subjective state of mind, in order to determine whether probable cause existed.   The documents submitted by the defendants, including the plaintiff's affidavit (Def.Ex. A) and Naranjo's police report (Def.Ex. 2) and affidavit (Def.Ex. B), provide the evidentiary foundation for the following events:

Naranjo was on patrol when he encountered the plaintiff's husband, who was walking along Farmington Avenue at approximately 2:56 am.  (Def.Ex. B.) Shortly thereafter, Naranjo heard over the radio that other officers had discovered an abandoned vehicle that had gone off the road and struck a tree which was registered to the plaintiff's husband.  (Def.Ex. B.) At approximately 3:20 am, while searching for the plaintiff's husband, Naranjo observed the plaintiff's car being driven along Farmington Avenue with a flat tire and the hazard lights on.  (Def. Ex. B;  Def. Ex. 2.) The tire was so flat that the rubber had worn away and the wheel was making sparks on the pavement.  (Def.Ex. B.) Naranjo activated his emergency equipment and pulled over the vehicle.  (Def. Ex. B;  Def. Ex. 2.) Naranjo asked for the plaintiff's license (Def.Ex. A) and where the plaintiff was coming from.  (Def. Ex. B;  Def. Ex. 2.) Naranjo then noticed that the plaintiff's eyes were “bloodshot and glossy” and asked the plaintiff how she sustained the flat tire.  (Def. Ex. B;  Def. Ex. 2.) The plaintiff told Naranjo that she “struck a curb.” ²  (Def. Ex. A;  Def. Ex. B;  Def. Ex. 2.)

Upon the arrival of another officer, Narajno asked the plaintiff if she would be willing to perform the standardized field sobriety tests.  (Def. Ex. B;  Def. Ex. 2.) The plaintiff agreed.  (Def. Ex. B;  Def. Ex. 2.) When the plaintiff exited her vehicle, she had to lean on the rear of it to keep her balance.  (Def. Ex. B;  Def. Ex. 2.) Naranjo administered three standard field sobriety tests to the plaintiff.  (Def. Ex. B;  Def. Ex. 2.) The plaintiff experienced difficulties when attempting to comply with these tests.³  (Def. Ex. B;  Def. Ex. 2.) Based upon his observations and investigation Naranjo advised the plaintiff that she was being placed under arrest for driving under the influence.  (Def.Ex. 2.)

Even when read in the light most favorable to the plaintiff, the evidence before the court, including Naranjo's observations of the plaintiff's driving mannerisms, her bloodshot and glossy eyes, field sobriety test results, and the remaining “totality of the circumstances” collectively clearly demonstrate that Naranjo had personal knowledge sufficient to warrant a person of reasonable caution probable cause for the plaintiff's arrest.   The defendants also had the plaintiff read Naranjo's entire police report (Def.Ex. 1) during her deposition, and specifically asked her whether there was “anything in this police report ․ which you believe to be incorrect or that you dispute.”   The plaintiff indicated that there was nothing in the report that she disputed.⁴  The defendants have therefore demonstrated that no questions of material fact remain as to the pertinent events or Naranjo's knowledge at the time of the arrest.   Consequently, the court concludes that the defendants have met their burden.

The burden now shifts to the plaintiff to present evidence establishing the existence of a genuine issue of material fact.   While the plaintiff has asserted in her brief that questions of material fact remain, she has not submitted any evidence in support.⁵  Furthermore, in her brief, the plaintiff asserts that “there is no claim that Officer Naranjo noticed the [p]laintiff's speech to be impaired or her eyes to be glassy or bloodshot.”   That is not the case, however, as the defendant's brief and evidence in support make a clear reference to Naranjo observing the plaintiff's eyes to be “glossy” and “bloodshot.”  (Def.Ex. 1.) Mere assertions of fact are insufficient to establish the existence of questions of material fact, and the plaintiff's broad assertions cannot refute the evidence properly submitted by the defendants.   When a party moves for summary judgment “and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof.”   Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).   Accordingly, because no dispute of material fact exists, and because the evidence submitted by the defendant is objectively sufficient to establish that Naranjo had probable cause to arrest the plaintiff, the court finds that probable cause existed as a matter of law.

B

Unlawful Search of Vehicle

Having determined that probable cause existed to arrest the plaintiff, the court next addresses the defendant's argument that the plaintiff's claim for unlawful search of her vehicle fails as a matter of law.   Specifically the defendants argue that the present matter clearly falls into three of the recognized situations in which a warrantless search of a car is reasonable:  (1) the search was made incident to a lawful arrest;  (2) the search was conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime;  and (3) the search was conducted pursuant to an inventory of the vehicle's contents.   The plaintiff did not address these arguments in her brief.   At oral argument, the plaintiff argued broadly that there is no copy of the inventory, that a search incident to an arrest is restricted to the wingspan of the arrested individual, that the car was on private property at the time of the arrest, and that there was not a search warrant.

“It is a basic principle of constitutional law that [t]he fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents.   A warrantless search and seizure is per se unreasonable, subject to a few well-defined exceptions.”  (Internal quotation marks omitted.)  State v. Vallejo, 102 Conn.App. 628, 638, 926 A.2d 681 (2007).   “There are four recognized situations in which a warrantless search of a car may lead to the conclusion that such a search was reasonable under the United States or state constitutions.   They are that the search was:  (1) made incident to a lawful arrest;  (2) conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime;  (3) based upon consent;  or (4) conducted pursuant to an inventory of the car's contents incident to impounding the car.”   Id., 638 n.9.

“An inventory search is a well-defined exception to the warrant requirement.”  (Internal quotation marks omitted.)  State v. Whealton, 108 Conn.App. 172, 179, 947 A.2d 965, cert. denied, 288 Conn. 909, 953 A.2d 655 (2008).  “United States v. Opperman, [428 U.S. 364, 366, 96 S.Ct. 3092 (1976) ], mandates that an inventory search be conducted using a standard inventory form pursuant to standard police procedures.   The reason for requiring such procedures is to avoid arbitrary determinations by police with respect to an inventory search.  Id., at 383.”  (Internal quotation marks omitted.)  State v. Nelson, 17 Conn.App. 556, 573, 555 A.2d 426 (1989).

In the present case, the defendants have submitted a copy of the General Orders of the Farmington Police Department (Def.Ex. 1) that states that it is the policy of the Farmington police department to inventory impounded vehicles.⁶  The policy specifically references a “property card/inventory form.”   It is not in dispute that the plaintiff was arrested, and that the search of her vehicle occurred after her arrest.   The defendants have submitted the copy of Naranjo's police report, in which Naranjo records that he “inventoried the vehicle per Farmington [p]olice [d]epartment policy and completed a vehicle inventory form” prior to the vehicle being towed and impounded.  (Def.Ex. 2.) Accordingly, the defendants have met their burden in establishing that they are entitled to judgment as matter of law under the inventory search exception to the warrant requirement, and that no questions of material fact remain regarding whether an inventory search was conducted using a standard inventory form pursuant to standard police procedures.

The plaintiff has failed to offer an affidavit or any other evidence that would dispute the validity of the Farmington police department policy or raise a question of material fact as to whether Naranjo's inventory of the vehicle was conducted pursuant to that policy.   Furthermore, the plaintiff's arguments at oral argument are irrelevant to this issue.   All the plaintiff has done is make broad assertions in her brief and at oral argument that Naranjo did not perform a written inventory.   Mere assertions of fact are insufficient to establish the existence of questions of material fact, and the plaintiff's broad assertions cannot refute the evidence properly submitted by the defendants.   Accordingly, Naranjo is entitled to summary judgment with respect to the unlawful search claim.⁷

3

Qualified Immunity

The defendants argue that the plaintiff's claims are barred by the doctrine of qualified immunity.   The plaintiff has not brought a cause of action pursuant to 42 U.S.C. § 1983 ⁸ or any other federal claim.   Accordingly, qualified immunity does not apply to the present action.   See, e.g., Schnabel v. Tyler, 230 Conn. 735, 742–43, 646 A.2d 152 (1994) (Qualified immunity is defense to civil suit brought under § 1983).

B

COUNT TWO

In count two, the plaintiff alleges that Farmington “improperly employed, trained, supervised and instructed” Naranjo and that the town “has a policy regarding [d]riving under the [i]nfluence arrests such that an inordinate emphasis is placed on making arrest[s], resulting in an unacceptable rate of false arrests.”

1

Governmental Immunity

The defendants argue that the doctrine of governmental immunity operates to bar the plaintiff's claim against the defendants set forth in both counts of the complaint as a matter of law.   Specifically, they argue that the plaintiff has alleged discretionary acts to which governmental immunity applies, and that none of the exceptions to governmental immunity apply.

In response, the plaintiff argues that governmental immunity does not bar:  (1) her claim against Naranjo because “his decision to arrest her was done with malice, wantonness or intent to injure her” as well as to “conform to a department policy to increase arrests for operating a motor vehicle under the influence of drugs or alcohol”;  (2) her claims against Farmington because “governmental immunity does not protect against that municipality instituting policies or [issuing] directives to law enforcement officials that ultimately harm its citizens”;  and (3) her claims against Farmington because “the town's own policy caused [Naranjo] to intentionally and falsely arrest the Plaintiff.”

The law governing governmental liability and governmental immunity is now largely controlled by statute, and General Statutes § 52–557n(a)(2) establishes that governmental immunity depends on whether the act in question involves a ministerial or discretionary act.  “[A] municipal employee ․ has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act ․ The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  Cotto v. Board of Education, 294 Conn. 265, 272–73 n.8, 984 A.2d 58 (2009).

“Although 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 where it is apparent from the complaint ․ [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ․ § 52–557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ․ Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”  (Citations omitted;  internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 307–08, 999 A.2d 700 (2010).   There are, however, exceptions to discretionary act governmental immunity, including that “liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.” ⁹  Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006).

In the present case, the complaint does not allege that Naranjo failed to take any required, prescribed action in his stop and arrest of the plaintiff.   Similarly, the complaint does not allege that Farmington was required to take any prescribed action when training and supervising police officers “in statutory recognition and enforcement, arrest procedures and handling of the persons and property of the people they arrest.”   Courts in Connecticut consistently have held that hiring, supervising, training and firing police officers are discretionary duties protected by governmental immunity.   See, e.g. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179–80, 544 A.2d 1185 (1988) (“[T]he great weight of authority [is] that the operation of the police department is a discretionary governmental function”);  Doe v. Nunes, Superior Court, judicial district of New Britain, Docket No. 463832 (April 15, 1995, Handy, J.) (granting motion to strike complaint alleging negligent hiring, supervising and firing of officer because such actions are discretionary duties protected by governmental immunity).   Accordingly, the alleged acts and omissions alleged in the complaint involve the performance of the typical functions of a police officer as well as law enforcement training and supervision of officers.   These actions are inherently discretionary activities as a matter of law, to which governmental immunity applies.

The plaintiff's complaint, through its use of “wanton” and “malicious,” appears to be insinuating that the defendant's actions fall within the first exception to governmental immunity.   This position is echoed in the plaintiff's objection, wherein she argues that Naranjo “falsely arrest[ed] her with the intent to cause her injury” and did so “deliberately in order to conform to a [d]epartment policy to increase arrest[s] for [o]perating a[m]otor [v]ehicle [u]nder the [i]nfluence of [d]rugs or [a]lcohol.”   The court has already determined that Naranjo had probable cause to arrest the defendant as a matter of law.   Furthermore, the summary judgment record, including the plaintiff's affidavit (Def.Ex. A) and Naranjo's police report (Def.Ex. 2), does not contain any evidence of an “intent to cause [the plaintiff] harm” or any wanton and malicious conduct by Naranjo.

Finally, the court turns to the plaintiff's argument that Farmington has a policy which “causes its law enforcement officials to make false arrests” and that such a policy is unprotected by governmental immunity.  (Pl.'s Memo. 5/1/13, p. 4.) As an initial matter, the court notes that the plaintiff has inadequately briefed this issue.   See, e.g., Gorman v. New Milford, Superior Court, judicial district of Danbury, Docket No. CV 08 5004455 (September 28, 2011, Cobb, J.) [52 Conn. L. Rptr. 654] citing Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (“Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned”).   Nevertheless, even if the court were to assume that such an arrest policy existed, it would be irrelevant in the present case because the court previously determined that there is no genuine issue of material fact that Naranjo had probable cause to arrest the defendant.   See, e.g., Beinhorn v. Saraceno, 23 Conn.App. 487, 490–91, 582 A.2d 208 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991) (lack of probable cause essential element in claim of false arrest).

IV

CONCLUSION

For the forgoing reasons, the defendants' motion for summary judgment is hereby granted.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. It is well established that “before a document may be considered by the court in support of 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.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   In the present case, the plaintiff's deposition testimony was not certified as it was not signed or dated by the notary public, and the police reports and general orders of the Farmington police department were not authenticated.   If uncertified deposition transcripts are submitted and there is no objection thereto, the court may, however, in its discretion, consider them.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Here, the plaintiff did not object to the inclusion of these documents in support of the motion.   Accordingly, this court will consider the otherwise inadmissible portions of the police reports that are relevant in reaching its decision..  FN1. It is well established that “before a document may be considered by the court in support of 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.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   In the present case, the plaintiff's deposition testimony was not certified as it was not signed or dated by the notary public, and the police reports and general orders of the Farmington police department were not authenticated.   If uncertified deposition transcripts are submitted and there is no objection thereto, the court may, however, in its discretion, consider them.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Here, the plaintiff did not object to the inclusion of these documents in support of the motion.   Accordingly, this court will consider the otherwise inadmissible portions of the police reports that are relevant in reaching its decision.

FN2. The transcript of the plaintiff's deposition makes repeated references to a “curve.”  (Def.Ex. A.) The court assumes that this is an unintended misspelling, and that the plaintiff was actually referring to a “curb.”.  FN2. The transcript of the plaintiff's deposition makes repeated references to a “curve.”  (Def.Ex. A.) The court assumes that this is an unintended misspelling, and that the plaintiff was actually referring to a “curb.”

FN3. When administering the horizontal gaze nystagmus test, Naranjo observed the plaintiff to lack a smooth pursuit, have distinct nystagmus at maximum deviation, and possess the onset of nystagmus prior to forty-five degrees at either end.  (Def. Ex. B;  Def. Ex. 2.) During the walk and turn test, Naranjo observed that the plaintiff lost her balance when walking forward, raised her arm more than six inches for balance, and had no heel to toe contact, stepped on the line, stopped to steady herself, and turned incorrectly.  (Def. Ex. B;  Def. Ex. 2.) Finally, when performing the one-leg-stand test, Naranjo observed that the plaintiff swayed while balancing, used her arms as balance by raising them more than six inches, and put her foot down three times.  (Def. Ex. B;  Def. Ex. 2.).  FN3. When administering the horizontal gaze nystagmus test, Naranjo observed the plaintiff to lack a smooth pursuit, have distinct nystagmus at maximum deviation, and possess the onset of nystagmus prior to forty-five degrees at either end.  (Def. Ex. B;  Def. Ex. 2.) During the walk and turn test, Naranjo observed that the plaintiff lost her balance when walking forward, raised her arm more than six inches for balance, and had no heel to toe contact, stepped on the line, stopped to steady herself, and turned incorrectly.  (Def. Ex. B;  Def. Ex. 2.) Finally, when performing the one-leg-stand test, Naranjo observed that the plaintiff swayed while balancing, used her arms as balance by raising them more than six inches, and put her foot down three times.  (Def. Ex. B;  Def. Ex. 2.)

FN4. In addition, the defendant had the plaintiff review the statements made by the prosecutor during the dismissal of her case before Judge Vitale.  (Def.Ex. C.) This included the prosecutor noting that “[t]he officer ․ did see bloodshot and glossy eyes” and concluding that “[b]ased upon the early activity of the driving on the road with a flat tire for a long period of time ․ and the bloodshot eyes, it was certainly a circumstance whereby probable cause was there for arrest.”  (Def.Ex. C.) When asked by the defendant whether she disputed anything that the state prosecutor said, the plaintiff replied “no.”  (Def.Ex. A.).  FN4. In addition, the defendant had the plaintiff review the statements made by the prosecutor during the dismissal of her case before Judge Vitale.  (Def.Ex. C.) This included the prosecutor noting that “[t]he officer ․ did see bloodshot and glossy eyes” and concluding that “[b]ased upon the early activity of the driving on the road with a flat tire for a long period of time ․ and the bloodshot eyes, it was certainly a circumstance whereby probable cause was there for arrest.”  (Def.Ex. C.) When asked by the defendant whether she disputed anything that the state prosecutor said, the plaintiff replied “no.”  (Def.Ex. A.)

FN5. Although not submitted by the plaintiff, the only evidence before the court that could even potentially support the plaintiff's position is one of the plaintiff's statements during her deposition.   In response to the questions “What happened once the officer pulled you over?” the plaintiff provided the following narrative:  “Well, the officer asked me for my license and I give him my license, and he asked me, ‘Are you looking for your husband?’   I said, ‘No.’ And he asked me, ‘What happened?’   So I told him what happened.   He said, ‘Did you drink?’   I said, ‘No.’ He said, ‘Yes, you did.   You did drink.’   I said, ‘No, I did not.’   And then they were search for something in the car, and at one point they told me that my husband have accident, but I wasn't know what's going on.   So, they arrest me.   I got cuffs on and I got arrested.”  (Def.Ex. A.) This evidence alone is insufficient to create a question of material fact, as regardless of whether there was an exchange between the plaintiff and Naranjo concerning whether the plaintiff had been drinking, it is not disputed that Naranjo administered three standard field sobriety tests to the plaintiff, and that the plaintiff experienced difficulties performing those tests.   Furthermore, the plaintiff was subsequently given the opportunity to review Naranjo's account of the evening's events in his police report (Def.Ex. 2) and did not dispute or identify anything wrong in that report.  (Def.Ex. A.).  FN5. Although not submitted by the plaintiff, the only evidence before the court that could even potentially support the plaintiff's position is one of the plaintiff's statements during her deposition.   In response to the questions “What happened once the officer pulled you over?” the plaintiff provided the following narrative:  “Well, the officer asked me for my license and I give him my license, and he asked me, ‘Are you looking for your husband?’   I said, ‘No.’ And he asked me, ‘What happened?’   So I told him what happened.   He said, ‘Did you drink?’   I said, ‘No.’ He said, ‘Yes, you did.   You did drink.’   I said, ‘No, I did not.’   And then they were search for something in the car, and at one point they told me that my husband have accident, but I wasn't know what's going on.   So, they arrest me.   I got cuffs on and I got arrested.”  (Def.Ex. A.) This evidence alone is insufficient to create a question of material fact, as regardless of whether there was an exchange between the plaintiff and Naranjo concerning whether the plaintiff had been drinking, it is not disputed that Naranjo administered three standard field sobriety tests to the plaintiff, and that the plaintiff experienced difficulties performing those tests.   Furthermore, the plaintiff was subsequently given the opportunity to review Naranjo's account of the evening's events in his police report (Def.Ex. 2) and did not dispute or identify anything wrong in that report.  (Def.Ex. A.)

FN6. The policy does state that any vehicle towed at an owner's request will not be subject to an inventory.   There has been no allegation or evidence offered in the present case that the plaintiff requested her car to be towed..  FN6. The policy does state that any vehicle towed at an owner's request will not be subject to an inventory.   There has been no allegation or evidence offered in the present case that the plaintiff requested her car to be towed.

FN7. Even if there is disagreement about whether summary judgment should be granted on this ground, Naranjo is still entitled to summary judgment on the ground that there was probable cause to believe that the car contained contraband or evidence pertaining to a crime.“The justification for this so-called ‘automobile exception’ is twofold:  (1) the inherent mobility of an automobile creates ‘exigent circumstances';  and (2) the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office ․ This exception to the warrant requirement demands that the officers have probable cause to believe that the vehicle contains contraband ․ The probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made.”  (Citations omitted.)   State v. Badgett, 200 Conn. 412, 428–29, 512 A.2d 160 (1986), cert. denied, 541 U.S. 940 (1986).  “Probable cause to search exists if:  (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ․ and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.”  State v. Buddhu, 264 Conn. 449, 460, 825 A.2d 48 (2003), cert. denied, 541 U.S. 1030 (2004).Based upon the unchallenged evidentiary foundation established by the defendants, Naranjo encountered the plaintiff at approximately 3:20 am while she was driving on a flat tire that was sparking along the road.   (Def.Ex. 2.) Naranjo's conversation with the plaintiff revealed that she had sustained that flat tire that evening when she struck a curb, and he observed her eyes to be bloodshot and glossy.  (Def. Ex. A;  Def. Ex. 2.) The plaintiff failed the three standardized field sobriety tests that Naranjo administered.  (Def.Ex. 2.) Based upon these undisputed, objective facts, Naranjo had probable cause to search the plaintiff's car for evidence of the crime for which the plaintiff was arrested.Thus, even if it was determined that Naranjo's warrantless search of the plaintiff's vehicle was not a reasonable search conducted pursuant to an inventory of the car's contents incident to impounding the car, it would still be considered a reasonable search conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime..  FN7. Even if there is disagreement about whether summary judgment should be granted on this ground, Naranjo is still entitled to summary judgment on the ground that there was probable cause to believe that the car contained contraband or evidence pertaining to a crime.“The justification for this so-called ‘automobile exception’ is twofold:  (1) the inherent mobility of an automobile creates ‘exigent circumstances';  and (2) the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office ․ This exception to the warrant requirement demands that the officers have probable cause to believe that the vehicle contains contraband ․ The probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made.”  (Citations omitted.)   State v. Badgett, 200 Conn. 412, 428–29, 512 A.2d 160 (1986), cert. denied, 541 U.S. 940 (1986).  “Probable cause to search exists if:  (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ․ and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.”  State v. Buddhu, 264 Conn. 449, 460, 825 A.2d 48 (2003), cert. denied, 541 U.S. 1030 (2004).Based upon the unchallenged evidentiary foundation established by the defendants, Naranjo encountered the plaintiff at approximately 3:20 am while she was driving on a flat tire that was sparking along the road.   (Def.Ex. 2.) Naranjo's conversation with the plaintiff revealed that she had sustained that flat tire that evening when she struck a curb, and he observed her eyes to be bloodshot and glossy.  (Def. Ex. A;  Def. Ex. 2.) The plaintiff failed the three standardized field sobriety tests that Naranjo administered.  (Def.Ex. 2.) Based upon these undisputed, objective facts, Naranjo had probable cause to search the plaintiff's car for evidence of the crime for which the plaintiff was arrested.Thus, even if it was determined that Naranjo's warrantless search of the plaintiff's vehicle was not a reasonable search conducted pursuant to an inventory of the car's contents incident to impounding the car, it would still be considered a reasonable search conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime.

FN8. 42 U.S.C. § 1983 provides, in pertinent part:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ․”.  FN8. 42 U.S.C. § 1983 provides, in pertinent part:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ․”

FN9. In their motion for summary judgment, the defendants preemptively addressed another exception related to discretionary acts.Municipal employees and municipalities are immune from liability for discretionary acts except “when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.”  (Internal quotation marks omitted.)  Doe v. Petersen, supra, 279 Conn. 609.   In order to state a viable claim in such a case, the plaintiff must show “(1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”  Bailey v. West Hartford, 100 Conn.App. 805, 812, 921 A.2d 611 (2007).   All three allegations must be pled by a plaintiff, or the complaint seeking liability on these grounds will be stricken.  Id.Despite the defendants addressing why this exception does not apply to the present case, the plaintiffs did not allege or argue the imminent harm/identifiable victim exception in their objection to the motion for summary.   Therefore, the court is only concerned in the present case with the exception stated above and whether there is a genuine issue of material fact as to whether Farmington breached a ministerial duty..  FN9. In their motion for summary judgment, the defendants preemptively addressed another exception related to discretionary acts.Municipal employees and municipalities are immune from liability for discretionary acts except “when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.”  (Internal quotation marks omitted.)  Doe v. Petersen, supra, 279 Conn. 609.   In order to state a viable claim in such a case, the plaintiff must show “(1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”  Bailey v. West Hartford, 100 Conn.App. 805, 812, 921 A.2d 611 (2007).   All three allegations must be pled by a plaintiff, or the complaint seeking liability on these grounds will be stricken.  Id.Despite the defendants addressing why this exception does not apply to the present case, the plaintiffs did not allege or argue the imminent harm/identifiable victim exception in their objection to the motion for summary.   Therefore, the court is only concerned in the present case with the exception stated above and whether there is a genuine issue of material fact as to whether Farmington breached a ministerial duty.

Wiese, Peter E., J.