Case Information
*1 ***********************************************
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MARINELIS SENA, ADMINISTRATRIX (ESTATE OF
TYRONE O. TILLMAN), ET AL. AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INC., ET AL.
(SC 19971) Robinson, C. J., and Palmer, D’Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.
Syllabus Pursuant to statute (§ 28-13 [a]), ‘‘[n]either the state nor any political subdivi- sion of the state . . . complying with or attempting to comply with [civil preparedness statutes] or any order or regulation promulgated
pursuant to [those statutes] . . . shall be liable for the death of or injury to persons . . . as a result of any such activity.’’ The plaintiff, both individually and as administratrix of the estate of the decedent, T, sought to recover damages from, among others, the defen-
dant city alleging, inter alia, that the city was negligent in responding to a medical emergency involving T. Specifically, the plaintiff alleged that the city had improperly failed to dispatch a fire truck with an emergency medical technician in response to T’s emergency call and had impeded prompt arrival of an ambulance by allowing snow to remain in certain public roadways following a statewide winter snowstorm. Before the storm began, the city’s mayor declared a state of emergency and activated the local emergency operations center. Shortly thereafter, the governоr declared a statewide civil preparedness emergency pursu- ant to statute (§ 28-9). Snowfall during the storm was so significant that both city and state roads were temporarily closed to the public, and plowing and ambulance service were temporarily suspended. After the storm, clearing roads proved unusually difficult, and the city requested that the state summon the assistance of the National Guard, which arrived the following day. Two days after the storm concluded, only certain roads were open to emergency vehicles and several hundred secondary roads, including the road on which T lived, remained impass- able. On that day, T called 911 complaining of severe breathing difficulty. An ambulance arrived approximately twenty minutes later and subse- quently transported T to the hospital, where he was pronounced dead. Three days after the storm concluded, at least one lane was open on each of the city’s roads. The city’s emergency operations center maintained command over storm response and snow removal for approximately five days after the storm passed and remained staffed for approximately three days thereafter. More than one month later, the governor issued an executive order ending the statewide civil preparedness emergency. The plaintiff subsequently commenced the present action, and the city filed a motion for summary judgment, claiming immunity pursuant to § 28-13. The trial court denied that motion, concluding that there was a genuine issue of material fact as to whether the city was still actively experiencing a civil preparedness emergency at the time of the city’s response to T’s emergency call, and the plaintiff appealed. Held : 1. This court had subject matter jurisdiction over the city’s appeal, as the trial court’s denial of the city’s motion for summary judgment constituted
a final judgment because the city’s motion was based on a colorable claim that § 28-13 (a) affords the city sovereign immunity from actions taken in response to declared emergencies; although the plain text of § 28-13 (a) does not clearly define the nature of the immunity afforded under that statute, an examination of relevant legislative history indi- cated that the legislature had intended that statute to extend the state’s own sovereign immunity, including both its immunity from suit and liability, to political subdivisions such as the city. 2. The trial court improperly denied the city’s motion for summary judgment
on the basis of the court’s сonclusion that a genuine issue of material fact existed as to whether the city was still actively experiencing a civil preparedness emergency at the time of T’s death, the trial court having *3 incorrectly concluded that immunity under § 28-13 applies only during a civil preparedness emergency; the city’s command and control of storm response and snow removal, including decisions regarding snow plowing and the circumstances in which a fire truck should respond to an emergency call, unambiguously fell within the statutory (§ 28-1 [4])
definition of civil preparedness, which explicitly includes measures taken in preparation of, during, and following major disasters and emer- gencies, and, therefore, evidence relating to whether the civil prepared- ness emergency had ended at the time of the city’s response to T’s emergency medical call did nothing to contradict the ample evidence in the record that the city was still engaged in activities afforded immu- nity by § 28-13 at that time. Argued October 18, 2018—officially released September 3, 2019
Procedural History Action to recover damages for, inter alia, the allegedly wrongful death of the named plaintiff’s decedent as a result of the alleged negligence of the named defendant et al., and fоr other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Kamp, J. , denied the motion for summary judgment filed by the defendant city of Bridgeport, and the defen- dant city of Bridgeport appealed. Reversed ; judgment directed .
J. Christopher Rooney , with whom were Alan Bowie and, on the brief, Anne Peterson , for the appellant (defendant city of Bridgeport).
Alan Scott Pickel , with whom, on the brief, was Anthony L. Cenatiempo , for the appellees (plaintiffs).
Opinion ROBINSON, C. J. This appeal requires us to consider the nature and scope of the immunity provided to the state and its political subdivisions by General Statutes § 28-13 (a) [1] for actions taken in connection with a civil preparedness emergency declared by the governor pur- suant to General Statutes § 28-9, [2] which, in the present case, related to a blizzard that occurred in February, 2013. The defendant city of Bridgeport (city) [3] appeals [4] from the trial court’s denial of its motion for summary judgment in the present case, which was commenced by the plaintiff, Marinelis Sena, both individually and as administratrix of the estate of Tyrone O. Tillman. [5] The operative complaint alleges, inter alia, that the city was negligent in (1) not following its usual practice of sending a fire truck with an emergency medical techni- cian in addition to an ambulance to render medical care to Tillman when he experienced severe breathing difficulty on February 11, 2013, and (2) preventing the ambulance from arriving promptly by allowing snow to remain on certain public roadways. On appeal, the city claims, inter alia, that it was immune for its actions pur- suant to § 28-13, and that the trial court improperly deter- mined that a genuine issue of material fact existed as to whether the civil preparedness emergency remained in effect on the date of Tillman’s death. We conclude that (1) an appealable final judgment exists because the city’s claims of immunity pursuant to § 28-13 implicate an extension of the state’s sovereign immunity to the city, and (2) the trial court should have granted the city’s motion for summary judgment because there was no genuine issue of material fact with respect to the applicability of § 28-13. Accordingly, we reverse the judgment of the trial court.
The record reveals the following relevant facts [6] and procedural history. On February 8 and 9, 2013, a bliz- zard, verified by the National Weather Service, occurred in nearly all of southern Connecticut. In anticipation of the blizzard, on February 7, 2013, at 1 p.m., represen- tatives from the city’s various departments and the local emergency preparedness board convened a meeting of the Bridgeport Emergency Planning Group, which was held at the city’s emergency operations center (EOC). At that meeting, the members from the city’s depart- ments reviewed the city’s emergency preparedness plan, designated representatives who would attend civil emergency planning sessions, and began to identify essential personnel who would be assigned during the expected emergency.
On February 8, 2013, beginning at 7 a.m., the city began to implement its emergency preparedness plan. Full operations at the EOC were initiated that morning, and numerous city officials conducted a conference call with the statewide emergency operations center in order to ensure that the city’s storm response was *5 coordinated with the state’s efforts. At 11 a.m., Mayor Bill Finch held a press conference and announced his intention to declare a civil preparedness emergency for the city, which included the institution of a citywide ban on driving so that plows could keep the roads clear. At 11:45 a.m., Governor Dannel Malloy held a press conference and declared a civil preparedness emer- gency pursuant to § 28-9. [7] Shortly thereafter, the EOC activated its response at level 4 and assumed centralized control over the city’s response to the blizzard. [8]
By 5 p.m. on February 8, 2013, Governor Malloy had issued a statewide travel ban of all vehicles on any state road. By 8 p.m., snowfall was so severe that the EOC determined thаt it was unsafe for all vehicles other than plows to be on the city’s roads. Whiteout conditions later that night required the recall of all plows. The EOC then restricted the response of municipal fire and police departments. Decisions regarding whether those departments would respond to reported emergencies were made by their representatives at the EOC, rather than by emergency communications employees. Wil- liam Schietinger, the representative at the EOC from the city’s ambulance contractor, American Medical Response of Connecticut, Inc. (AMR), similarly sus- pended ambulance service temporarily because of whiteout conditions. As visibility improved, the EOC decided that AMR could resume providing ambulance service, and, at 3 a.m. on February 9, 2013, plows returned to the streets.
Beginning midday on February 9, 2013, the EOC shifted its attention from storm response to snow removal. The snow removal process was unusually diffi- cult because snow accumulation reached a level higher than the typical dump truck with plow attached could move, and many cars had not been removed from public streets, despite the parking bans in effect. This resulted in vehicles having to be dug out and towed before streets сould be plowed. Because of the substantial snow accumulation, the EOC requested that the state send national guard personnel and equipment to assist with snow removal and emergency responses. That additional snow removal equipment did not begin to arrive until February 10, 2013. Given the paralyzing snow accumulation, most of the city’s residents were confined to their homes.
The limited ability of the fire and police departments to respond to calls for assistance continued in the wake of the storm because most police and fire stations had not yet dug out. On February 10, 2013, at 2 a.m., Brian Rooney, the city’s fire chief, and Dominic Carfi, a deputy fire chief who had been the fire department’s represen- tative at the EOC during the storm, determined that, in the case of medical emergencies, the only response would be through AMR because it was not physically possible for the city’s fire trucks to leave the stations. *6 Carfi conveyed that decision to the city’s 911 emergency communications employees via their supervisor. Once fire headquarters was cleared of snow by approximately 10 a.m. that day, the fire department was able to use a limited number of four wheel drive sport utility vehicles that could be driven on plowеd streets to respond to emergencies. In consultation with AMR’s representative in the EOC, a deputy fire chief who had relieved Carfi would authorize the dispatch of one of these sport utility vehicles to emergency medical calls depending on road conditions, the location of the call, and the severity of the medical condition.
On Monday, February 11, 2013, twelve front end load- ers arrived and provided assistance in the clearing of the city’s primary roads. However, city offices remained closed, no regular city employees reported for work, and schools would remain closed for the remainder of the week. As of 8 p.m. that day, a citywide driving ban remained in effect, and only 100 roads were open to emergency vehicles. Most of those were primary roads. Several hundred secondary roads were still closed or impassible, and tow trucks were still in the process of removing abandoned vehicles.
At approximately 7:18 p.m. on February 11, 2013, Tillman called 911 complaining of severe breathing diffi- culty. At 7:27 p.m., AMR dispatched an ambulance to assist Tillman. The fire department did not respond. According to an affidavit submitted by Scott Appleby, the city’s Director of Emergency Management and Homeland Security, Stevens Street, on which Tillman lived, had not yet been plowed at that time. Brian Walts and William T. Ostroff, emergency medical technicians employed by AMR, reached Tillman at 7:36 p.m. and rendered emergency care until 8:04 p.m. Tillman was subsequently transported to a local hospital, where he was pronounced dead upon arrival.
The efforts to clear at least one lane on each of the city’s roads continued until February 12, 2013. It took an additional week for the city’s roads to be cleared to the point where traffic could pass normally. The EOC maintained command over storm response and snow removal through February 14, 2013, after which opera- tional control over the various city departments, includ- ing the fire department, was returned to the normal operating procedure. The EOC remained staffed and active through February 17, 2013, at which point the operational period ended, the response was terminated, and the EOC was vacated by all personnel except Appleby.
The plaintiff subsequently brought the present action against the city, AMR, Ostroff, and Walts. In counts twenty and twenty-one of the operative complaint, the plaintiff claims the city negligently failed to follow the local еmergency service plan and permitted a highway defect to exist pursuant to General Statutes § 13a-149. *7 On September 27, 2016, the city moved for summary judgment on immunity grounds. On November 16, 2016, the plaintiff filed an objection to that motion together with an accompanying memorandum of law.
On March 8, 2017, the trial court issued a memoran- dum of decision denying the city’s motion for summary judgment. The trial court first rejected the city’s argu- ment that the present action is barred by common-law governmental immunity. The trial court next addressed the city’s argument that it is absolutely immune from liability pursuant to § 28-13. The trial court concluded that, although the city had met its initial burden of producing evidence sufficient to support a judgment in its favor on the issue of § 28-13 immunity, the plaintiff had submitted evidence contradicting the city’s evi- dence concerning whether the city was still experienc- ing a civil preparedness emergency at the time of Till- man’s death. The trial court also observed that the relevant statutes do not prescribe how to determine when an emergency has ended for purposes of § 28-13 immunity and suggested that a ‘‘workable ‘end date’ is needed.’’ Accordingly, the trial court concluded that, on the basis of the evidence before it, the city could not invoke the protections of § 28-13 immunity because a genuine issue of material fact existed as to whether the city was still actively experiencing a civil preparedness emergency at the time of Tillman’s death. This appeal followed. See footnote 4 of this opinion.
On appeal, the city argues that the trial court incor- rectly concluded that the end date of a civil prepared- ness emergency has statutory significance under § 28- 13, and incorrectly concluded that there was a genuine issue of material fact concerning the issue of § 28-13 immunity. The plaintiff disagrees and also argues that the trial court’s denial of the city’s motion for summary judgment does not constitute an appealable final judgment.
I
As a threshold issue, we must determine whether the
trial court’s denial of the city’s motion for summary
judgment is a final judgment over which we have sub-
ject matter jurisdiction.
[9]
Relying on
Shay
v.
Rossi
, 253
Conn. 134,
‘‘The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [and, therefore] our review is plenary. . . .
‘‘Neither the parties nor the trial court . . . can con-
fer jurisdiction upon [an appellate] court.
.
.
. The
right of appeal is accorded only if the conditions fixed
by statute and the rules of court for taking and prosecut-
ing the appeal are met. . . . It is equally axiomatic that,
except insofar as the legislature has specifically pro-
vided for an interlocutory appeal or other form of inter-
locutory appellate review . . . appellate jurisdiction is
limited to final judgments of the trial court.’’ (Citation
omitted; internal quotation marks omitted.)
Ledyard
v.
WMS Gaming, Inc.
,
‘‘As a general rule, an interlocutory ruling may not
be appealed pending the final disposition of a case. . . .
We previously have determined [however] that certain
interlocutory orders have the attributes of a final judg-
ment and consequently are appealable under . . . § 52-
263. . . . In
State Curcio
, [
‘‘The second prong of the Curcio test focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal. . . . Thus, a bald assertion that the defendant will be irreparably harmed if appellate review is delayed until final adjudication . . . is insuffi- cient to make an otherwise interlocutory order a final judgment. One must mаke at least a colorable claim that some recognized statutory or constitutional right is at risk. . . .
‘‘In
Shay Rossi
, supra,
‘‘We have in the past phrased the underlying rationale
of the doctrine of sovereign immunity in theoretical
terms. For example, in
Horton Meskill
, 172 Conn.
615, 623–24,
‘‘Although we have never explicitly delineated this
particular aspect of the doctrine in final judgment
terms, our sovereign immunity cases implicitly have
recognized that the doctrine protects against suit as
well as liability—in effect, against having to litigate at
all. In
Bergner State
,
‘‘Thus . . . the state’s sovereign immunity right not
to be required to litigate at all, as opposed to its right
not to be ultimately subjected to liability, is analogous
to that facet of the criminal defendant’s constitutional
double jeopardy right not to be tried twice for the same
offense. Because that constitutional right includes the
right not even to be tried for the same offense, the
denial of a motion to dismiss criminal charges, filed on
the basis of a colorable claim of double jeopardy, is
an immediately appealable final judgment under the
second prong of
Curcio
. . . . Similarly, therefore, in a
civil case the denial of a motion to dismiss, filed on the
basis of a colorable claim of sovereign immunity, must
be regarded under
Curcio
as an immediately appealable
*10
final judgment.’’ (Citation omitted; footnotes added and
omitted; internal quotation marks omitted.)
Vejseli
v.
Pasha
, supra,
Within our final judgment jurisprudence, we have held that judgments affecting a right of governmental immunity are treated differently under the second prong of Curcio than those affecting a right of sovereign immunity. ‘‘[W]hereas [t]he doctrine of sovereign immu- nity implicates subject matter jurisdiction and is there- fore a basis for granting a motion to dismiss . . . the doctrine of governmental immunity implicates no such interest. . . . Indeed, we expressly have recognized that, [u]nlike thе state, municipalities have no sovereign immunity from suit. . . . Rather, municipal govern- ments have a limited immunity from liability. . . .
‘‘Governmental immunity, which applies to munici- palities, is different in historical origin, scope and appli- cation from the sovereign immunity enjoyed by the state. A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued . . . in any action. . . . Municipalities do, in certain circumstances, have a governmental immunity from liability. . . . But that is entirely different from the state’s sovereign immunity from suit. . . . Accordingly . . . municipalities are immune from liability only, and not from suit. . . .
‘‘Because municipalities are immune from liability,
but not from suit, the concerns that justify the availabil-
ity of an immediate appeal from the denial of a motion
to dismiss based on sovereign immunity are not impli-
cated in the context of governmental immunity. Put
differently, municipalities have no immunity from suit
that potentially might be rendered meaningless without
the opportunity for immediate appellate review before
being forced to defend, even successfully, a case at
trial. . . . Accordingly . . . the denial of a motion to
dismiss or to strike based on governmental immunity
is not an appealable final judgment under the second
prong of
Curcio
.’’ (Citations omitted; emphasis оmitted;
footnote omitted; internal quotation marks omitted.)
Vejseli Pasha
, supra,
In contrast to
Shay
, a case in which there was no
dispute that the defendants’ claim of sovereign immu-
nity was colorable;
Shay Rossi
, supra,
Although it is now axiomatic that a political subdivi-
sion may not ordinarily claim sovereign immunity as a
defense to a claim against it; see, e.g.,
Vejseli Pasha
,
supra,
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature.
.
.
. In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
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 interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship 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 reasоn-
able interpretation.’’ (Internal quotation marks omit-
ted.)
In re Henrry P. B.-P.
,
We begin with the text of § 28-13 (a), which provides: ‘‘Neither the state nor any political subdivision of the state nor, except in cases of wilful misconduct, the agents or representatives of the state or any political subdivision thereof nor any member of the civil pre- *12 paredness forces of the state nor any person authorized by such civil preparedness forces or by any member of such civil preparedness forces complying with or attempting to comply with this chapter or any order or regulation promulgated pursuant to the provisions of this chapter, or pursuant to any ordinance relating to blackout or other precautionary measures enacted by any political subdivision of the state nor any person employed by or authorized to assist any agency of the federal government in the prevention or mitigation of any major disaster or emergency, shall be liable for the death of or injury to persons or for damage to property as a result of any such activity . The Attorney General shall appear for and defend the state, any political subdivision of the state and the agents or representa- tives of the state or any political subdivision thereof or any member of the civil preparedness forces of the state or any other person exempted from liability for his acts under this section in any civil action brought for the death of or injury to persons or for damage to property as a result of any civil preparedness activity .’’ (Empha- sis added.)
By its plain language, the statute provides that several
actors, including political subdivisions of the state, shall
not be ‘‘liable for the death of or injury to persons or
for damage to property as a result of any such activity.’’
‘‘[S]uch activity’’ refers to ‘‘complying with or
attempting to comply with this chapter or any order or
regulation promulgated pursuant to the provisions of
this chapter, or pursuant to any ordinance relating to
blackout or other precautionary measures enacted by
any political subdivision of the state . . . .’’ General
Statutes § 28-13 (a). The statute unambiguously pro-
vides immunity to political subdivisions for death or
injury to persons that result from, inter alia, attempted
compliance with chapter 517 of the General Statutes.
What is unclear from the plain language of the statute,
however, is the nature of that immunity. Because the
statute uses the word ‘‘liability,’’ it could reasonably be
interpreted as implicating governmental immunity—an
immunity from liability, but not from suit. But the stat-
ute could also reasonably be read as conferring statu-
tory immunity akin to sovereign immunity—an immu-
nity from suit as well as liability. That reading finds
support in the second half of § 28-13 (a), which requires
the attorney general to ‘‘appear for and defend’’ political
subdivisions. That dedication of state resources in the
form of representation by the attorney general to mat-
ters typically handled by the corporation counsel of a
political subdivision can reasonably be read as an
attempt to shield political subdivisions from the cost
and defense of lawsuits altogether. Because the statute
is susceptible to more than one reasonable interpreta-
tion, we conclude that it is ambiguous and, therefore,
consider extratextual evidence of legislative intent,
including the statute’s legislative history and the policy
*13
objectives the statute was intended to implement. See
In re Henrry P. B.-P.
, supra,
The relevant legislative history, although scant, sup-
ports the city’s argument that § 28-13 immunity consti-
tutes an extension of sovereign immunity to political
subdivisions. The statutory scheme at issue, which was
originally enacted in 1949, addressed civil defense con-
cerns and contemplated new forms of warfare, includ-
ing the atomic bomb. See Conn. Joint Standing Commit-
tee Hearings, Judiciary, 1950 Spec. Sess., pp. 6–7.
Wesley A. Sturges, a former administrator of the State
Defense Council, testified before thе Judiciary Commit-
tee during a 1950 public hearing concerning the reen-
actment of the statutory scheme, and opined as follows
on the issue of immunity: ‘‘My other suggestion con-
cerns [the provision of the] bill which has to do with
granting of immunity to personnel engaged in Civil
Defense Service and except for cases of [wilful] miscon-
duct there should be no liability as to tort liability or
under the [c]ivil [d]efense law. I recommend you con-
sider that the [s]tate and political subdivisions make
available defense counsel for these personnel members.
It is well to say he shall not be liable for acts necessary
in performance of duty but the opportunity for suit still
obtains. When a suit is brought against me it costs me
money and I believe it is worthy of consideration as a
check for costs and payment for services.’’ Id., pp. 7–9.
Sturges’ testimony highlighted the concern that suits
might still be brought against civil defense personnel
by requesting that the cost of representation in such a
suit be borne by the state, effectively protecting person-
nel from one of the key costs of litigation. This testi-
mony suggests that the legislature intended the lan-
guage at issue to address the difficulties faced by civil
defense personnel as a result of such suits, even in
cases in which people are ultimatеly immune from lia-
bility, thus indicating that the early intent of the legisla-
tion was to provide immunity from suit altogether.
[12]
See
Hatt
v.
Burlington Coat Factory
,
Legislative history from debates on certain alter- ations to the statutory scheme in 1979 resolves any lingering questions as to the legislature’s intentions. In 1979, the legislature aligned the definitions of state law *14 with the federal statutory scheme, in order to allow for a seamless response from federal, state, and local forces under a unity of command. [13] On the immunity provision specifically, a proponent of the relevant bill in the Sen- ate, Senator Clifton A. Leonhardt, remarked: ‘‘[W]hat this [b]ill basically would do is bring certain aspects of our [c]ivil [p]reparedness [s]tatutes into line with fed- eral statutes and federal guidelines in fivе areas. First of all, the [b]ill would distinguish between major disas- ters on the one hand and emergencies on the other so that the [state] could qualify for federal aid in emergen- cies that are less than federal disasters; less than major disasters. It would also clarify that civil preparedness personnel, including federal employees, are protected from liability for actions related to their civil pre- paredness actions .’’ (Emphasis added.) 22 S. Proc., Pt. 7, 1979 Sess., p. 2121. Senator Leonhardt then expanded on what it meant to be ‘‘protected from liability’’ in an exchange with Senator Russell Lee Post, Jr.
‘‘Senator Post: [Am] I correct Senator Leonhardt, that a person now who is authorized by the [s]tate as the result of a snowstorm occurring anywhere in the coun- try, could come onto your property . . . and do dam- age, and you would not have the right to sue them ? . . .
‘‘Senator Leonhardt: As long as they are executing a civil preparedness function and they’re not engage in a situation of [wilful] misconduct. That’s the case. . . .
‘‘Senator Post: If a person . . . is authorized by the [s]tate [and] comes onto your property and does dam- age, it’s not that that person is held harmless by the [ s ] tate and would recover any expenses of suit, but rather the property owner under this, has no recourse against the [ s ] tate or the town or any local official, operating under this [ provision ] ? Is that correct?
‘‘Senator Leonhardt: [ That ] is correct. And I think this is very much in keeping with the long-standing tradition that in situations of civil emergency, the [ s ] tate has certain extraordinary powers that have to be executed and this statute is not changing the concept there at all , except to extend it to federal officials who are assisting the [s]tate. We’re really building on a very long-time, well established concept and only saying that the same, very same concepts that we, for a long time had for local and state officials we’re now going to extend to federal officials who come into the [s]tate . . . at our request, to help us in times of civil emer- gency.’’ (Emphasis added.) Id., pp. 2127–29.
This colloquy establishes that the bill’s proponent in
the Senate believed that the statute, as it previously
existed, included the ‘‘very long-time, well established
concept’’ that the immunity provided in the statute was
immunity from suit and not from liability alone. Given
the ambiguity of the statutory text, this language sug-
gests that the legislature intended to provide to certain
*15
federal officials the same immunity from suit that it
believed political subdivisions already enjoyed under
the statute. Moreover, this construction is consistent
with the purpose of the 1979 amendments to the statute,
namely, bolstering a seamless unity of command
whereby political subdivisions and local officials may
be effectively conscripted into service on the state’s
behalf at the order of the governor. In such a situation,
it is entirely reasonable that the legislature would wish
to provide these local actors with the same immunity
from suit that the state itself enjoys. See, e.g.,
Cahill
Board of Education
,
II We now consider whether the trial court properly denied the city’s motion for summаry judgment on the basis of its determination that a genuine issue of mate- rial fact existed as to whether the civil preparedness emergency was still in effect on the date of the allega- tions of the plaintiff’s complaint. The city’s principal contentions are that the trial court improperly con- strued the statutes at issue and that the dispute of fact identified by the trial court, namely, whether the civil preparedness emergency was still in effect, is not a dispute of material fact. The plaintiff argues in response that the trial court properly construed the statutes, insofar as the city’s failures to follow its local emergency service plan and to clear its roads are not activities for which the city is afforded immunity under § 28-13, and that, even if such activities are covered by § 28-13, the trial court correctly concluded that an issue of material fact still exists. We conclude that the trial court improperly construed the nature and scope of § 28-13 immunity and also incorrectly determined that there remains a genuine issue of material fact pertaining to the application of § 28-13 immunity.
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
*16
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[s] him to a judgment as a
matter of law. The courts hold the movant to a strict
standard. To satisfy [this] 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 sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation 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 dis-
puted 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 pre-
sented to the court undеr Practice Book [§ 17-45] . . . .
Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.)
State Farm Fire & Casualty
Co. Tully
,
Given our conclusion in part I of this opinion that
§ 28-13 represents an extension of the state’s sovereign
immunity to political subdivisions, we note that it is
well established that ‘‘[s]overeign immunity relates to
a court’s subject matter jurisdiction over a case, and
therefore presents a question of law over which we
exercise de novo review. . . . In so doing, we must
decide whether [the trial court’s] conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.)
Markley Dept. of Public Utility Control
, 301
Conn. 56, 64–65,
As previously stated, our construction of a statute is
governed by § 1-2z. See, e.g.,
In re Henrry P. B.-P.
,
supra,
Our conclusion that this ‘‘activity’’ includes the EOC’s command and control of storm response and snow removal, as well as decisions made during that process, such as those regarding which streets to plow and whether to send a fire truck in response to an emer- gency, finds further support in the plain text of § 28-13 (a). The first sentence of § 28-13 (a) immunizes political subdivisions, such as the city, from suit for the ‘‘death of or injury to persons or for damage to property’’ that results from ‘‘complying with or attempting to comply with this chapter or any order or regulation promul- gated pursuant to the provisions of this chapter, or pursuant to any ordinance relating to blackout or other precautionary measures enacted by any political subdi- vision of the state . . . .’’ The second sentence of § 28- 13 (a) executes the immunity provided by the first sen- tence by requiring the attorney general to ‘‘appear for and defend’’ those entities and individuals described in the first sentence ‘‘in any civil action brought for the death of or injury to persons or for damage to property as a result of any civil preparedness activity .’’ (Empha- sis added.)
General Statutes § 28-1 (4) defines civil preparedness broadly to include ‘‘ all those activities and measures designed or undertaken (A) to minimize or control the effects upon the civilian population of major disaster or emergency , (B) to minimize the effects upon the civilian population caused or which would be caused by an attack upon the United States, (C) to deal with the immediate emergency conditions which would be created by any such attack, major disaster or emer- gency , and (D) to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by any such attack, major disas- ter or emergency. Such term shall include, but shall not be limited to, (i) measures to be taken in prepara- tion for anticipated attack, major disaster or emer- gency, including the establishment of appropriate orga- nizations, operational plans and supporting agreements; the recruitment and training of personnel; the conduct of research; the procurement and stockpiling of neces- sary materials and supplies; the provision of suitable warning systems; the construction and preparation of shelters, shelter areas and control centers; and, when appropriate, the nonmilitary evacuation of the civilian population, pets and service animals; (ii) measures to be taken during attack, major disaster or emergency, including the enforcement of passive defense regula- tions prescribed by duly established military or civil authorities; the evacuation of personnel to shelter areas; the control of traffic and panic; and the control and *18 use of lighting and civil communication; and (iii) mea- sures to be taken following attack, major disaster or emergency, including activities for firefighting; res- cue, emergency medical, health and sanitation ser- vices ; monitoring for specific hazards of special weap- ons; unexploded bomb reconnaissance; essential debris clearance; emergency welfare measures; and immedi- ately essential emergency repair or restoration of dam- aged vital facilities.’’ (Emphasis added.) The scope of activity included within § 28-13 is broad, as the types of activity listed in § 28-1 (4) include, but are not limited to, measures to be taken ‘‘in preparation for,’’ ‘‘during,’’ and ‘‘following’’ a major disaster or emergency. [14] Gen- eral Statutes § 28-1 (4). Measures undertaken ‘‘to mini- mize or control the effects upon the civilian population of major disaster or emergenсy’’ and measures taken ‘‘following [a] major disaster or emergency,’’ such as ‘‘activities for firefighting’’ and ‘‘rescue, emergency medical, health and sanitation services’’; General Stat- utes § 28-1 (4); unambiguously include the EOC’s com- mand and control of storm response and snow removal, as well as decisions made during that process, such as decisions regarding which roads to clear and the circumstances in which a fire truck should respond to an emergency call.
The trial court concluded, however, that § 28-13
affords various state entities immunity from liability
only
during
a civil preparedness emergency. In so con-
cluding, the trial court relied on the catchline of § 28-
13: ‘‘Immunity from liability. Penalty for denial of access
to property during civil preparedness emergency.’’ We
observe, however, that catchlines such as this one ‘‘are
prepared, and from time to time changed, by the Revi-
sors [of the General Statutes] and are intended to be
informal brief descriptions of the contents of the [statu-
tory] sections. . . . These boldface catchlines should
not be read or considered as statements of legislative
intent since their sole purpose is to provide users with
a brief description of the contents of the sections.’’
Prefaсe to the General Statutes, p. vii; see also
Clark
Commissioner of Correction
,
Despite its construction of the statute, the trial court nevertheless concluded that the city had ‘‘met its [ini- tial] burden of putting forth evidence sufficient to sup- port a judgment in its favor on the ground of § 28-13 (a) immunity’’ and pointed to the following evidence to support its conclusion: (1) evidence showing that a *19 civil preparedness emergency was declared for the state by Governor Malloy pursuant to § 28-9, and for the city by Mayor Finch, on February 8, 2013; (2) the testimony of Appleby that the EOC was in full operation by 8 a.m. on February 8, 2013, despite neither Governor Malloy’s nor Mayor Finch’s having yet officially declared a civil preparedness emergency; (3) evidence showing that, although snow stopped falling around noon on February 9, 2013, the EOC retained command and control of storm response and snow removal through February 14, 2013, and remained staffed and active through Feb- ruary 17, 2013, when the operational period ended, response was terminated, and the office was vacated by all personnel except Appleby; (4) a declaration from the United States Department of Homeland Security’s Federal Emergency Management Agency that federal disaster aid had been made available to the state to supplement state, tribal, and local recovery efforts in the area affected by a severe winter storm and snow- storm from February 8 through 11, 2013; (5) evidence demonstrating that the relevant ‘‘incident period’’ occurred between February 8 and 12, 2013, and that a ‘‘major disaster’’ had been declared on March 21, 2013; and (6) the testimony of Brenda M. Bergeron, principal attorney for the Division of Emergency Management and Homeland Security within the Connecticut Depart- ment of Emergency Services and Public Protection, that Governor Malloy’s declaration of a civil preparedness emergency was still in effect on February 11 and 12, 2013, and was not formally revoked until March 18, 2013, pursuant to Executive Order No. 33.
The trial court observed, however, that ‘‘the plaintiff
has presented evidence contradicting the [city’s] evi-
dence with respect to whether [it] was still experiencing
a civil preparedness emergency, for purposes of § 28-
13 (a) immunity, at the time of [Tillman’s] death.’’ As
contradicting evidence, the trial court cited the follow-
ing: (1) ‘‘[w]ith respect to Mayor Finch’s declaration,
Appleby initially testified that he believe[d] it was
revoked on February 16, 2013, but then subsequently
stated that the EOC time line for the operational period
designated a termination of the emergency operations
response on February 17, 2013,’’ and also testified ‘‘that
he was unaware of any official declaration by [Mayor
Finch] revoking the state of emergency’’; (2) ‘‘with
respect to the city’s . . . fire response protocol during
the period in question, Appleby testified that, late in
the day on February 8, 2013, the EOC issued a directive
. . . that response of the police and fire departments
would be restricted,’’ Carfi testified ‘‘that the fire
response protocol restriction was lifted prior to the
evening of February 11, 2013,’’ and Rooney testified
that ‘‘fire engines and fire trucks could get out and
respond to calls [on February 11, 2013], if necessary.’’
(Internal quotation marks omitted.) We conclude that
none of these facts is ‘‘[a] material fact . . . which will
*20
make a difference in the result оf the case.’’ (Internal
quotation marks omitted.)
Doe West Hartford
, 328
Conn. 172, 191–92,
First, with respect to Appleby’s testimony regarding the revocation of Mayor Finch’s declaration, any dis- pute concerning the date of the revocation is not mate- rial because February 16 and 17, 2013, both came after the events at issue in this case. Most saliently, the revo- cation of Mayor Finch’s declaration does nothing to dispute the ample evidence in the record showing that the city was ‘‘complying with or attempting to comply with [the civil preparedness statutes] or any order or regulation promulgated pursuant to the [the civil pre- paredness statutes]’’ on the date that the conduct at issue occurred. Specifically, the record contains evi- dence that the EOC retained command and control of storm response and snow removal through February 14, 2013, and remained staffed and active through Feb- ruary 17, 2013, evidence that a civil preparedness emer- gency was ongoing at that time pursuant to Governor Malloy’s declaration, and evidence that efforts to clean city roads continued until at least February 12, 2013. Second, whether the partial lifting of the fire response protocol restriction occurred prior to the date of thе allegations in the plaintiff’s complaint likewise does not give rise to a material fact because that distinction does nothing to contradict the ample evidence in the record that the city was still engaged in activities afforded immunity by § 28-13 on the date relevant to the plain- tiff’s allegations. Consequently, we conclude that the trial court incorrectly concluded that the city had failed to meet its ultimate burden of showing the absence of a genuine issue of material fact. The trial court, therefore, improperly denied the city’s motion for summary judgment. [15]
The judgment is reversed and the case is remanded with direction to grant the city’s motion for summary judgment and to render judgment thereon.
In this opinion the other justices concurred.
[1]
General Statutes § 28-13 (a) provides: ‘‘Neither the state nor any political
subdivision of the state nor, except in cases of wilful misconduct, the agents
or representatives of the state or any political subdivision thereof nor any
member of the civil preparedness forces of the state nor any person author-
ized by such civil preparedness forces or by any member of such civil
preparedness forces complying with or attempting to comply with this chap-
ter or any order or regulation promulgated pursuant to thе provisions of
this chapter, or pursuant to any ordinance relating to blackout or other
precautionary measures enacted by any political subdivision of the state
nor any person employed by or authorized to assist any agency of the
federal government in the prevention or mitigation of any major disaster
or emergency, shall be liable for the death of or injury to persons or for
damage to property as a result of any such activity. The Attorney General
shall appear for and defend the state, any political subdivision of the state
and the agents or representatives of the state or any political subdivision
thereof or any member of the civil preparedness forces of the state or any
other person exempted from liability for his acts under this section in any
civil action brought for the death of or injury to persons or for damage to
property as a result of any civil preparedness activity.’’
[2]
General Statutes § 28-9 (a) provides in relevant part: ‘‘In the event of
*21
serious disaster, enemy attack, sabotage or other hostile action or in the
event of the imminence thereof, the Governor may proclaim that a state of
civil preparеdness emergency exists, in which event the Governor may
personally take direct operational control of any or all parts of the civil
preparedness forces and functions in the state. Any such proclamation shall
be effective upon filing with the Secretary of the State. . . .’’
The plaintiff also named American Medical Response of Connecticut,
Inc., and two of its employees, Brian Walts and William T. Ostroff, as defen-
dants. These additional defendants are not participating in the present
appeal.
The city appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
For the sake of simplicity, we refer to Sena in both capacities as the
plaintiff.
Given the summary judgment posture of this appeal, we present the
facts in the light most favorable to the nonmoving party, which, in the
present case, is the plaintiff. See, e.g.,
Graham
v.
Commissioner of Trans-
portation
,