THOMAS VENTURA v. TOWN OF EAST HAVEN ET AL.
(AC 37833)
Appellate Court of Connecticut
Arguеd September 21, 2016—officially released January 31, 2017
Keller, Prescott and West Js.
(Appeal from Superior Court, judicial district of New Haven, Wilson, J.)
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James J. Healy, with whom were Joel T. Faxon, and, on the brief, Timothy P. Pothin and Jason K. Gamsby, for the appellee (plaintiff).
KELLER, J. The defendant, the town of East Haven,1 appeals from the judgment rendered in favor of the plaintiff, Thomas Ventura, after the jury returned a verdict awarding him damages for personal injuries he sustained when he was struck by a motor vehicle driven by a private individual, Vladimir Trnka. The jury concluded that the defendant was not immune from liability because, earlier in the evening on the dаy of the accident, East Haven police officer Jeffrey Strand, after investigating an unrelated domestic violence incident involving Trnka, had a clear ministerial duty to tow Trnka‘s vehicle on the basis of the vehicle‘s invalid registration and improper plates. The court denied the defendant‘s motions to direct or to set aside the verdict.
On appeal, the defendant claims that the trial court erred when it failed to (1) direct a verdict for the defendant on the basis of governmental immunity; (2) direct or set aside the verdict on the ground that the plaintiff had not produced sufficient evidence that Strand‘s alleged negligence actually or proximately caused the plaintiff‘s injuries; and (3) set aside the jury‘s verdict because the court admitted irrelevant and prejudicial testimony regarding Trnka‘s possible intoxication and agitation, and permitted the plaintiff‘s expert to testify about East Haven police procedures despite his having no special knowledge about them. We agree with the defendant‘s first claim and, accordingly, reverse the judgment of the trial cоurt.2
On the basis of the evidence presented, the jury reasonably could have found the following facts. On November 4, 2006, Strand was dispatched to investigate a “[p]ossible domestic” incident occurring inside a “[l]arge white work van in the McDonald‘s drive-thru” with an “[i]rate male . . . operator.”3 The person who called 911 described the driver as possibly being “on drugs” or “drunk” and “nodding out.” The caller further described the driver as “punching the ceiling” and “not normal.” Upon arriving at the McDonald‘s, Strand identified a vehicle in the drive-through lane that he believed might be the white work van described by dispatch. He pulled his cruiser “face to face” with the white work van, and walked around the van to approach the driver from behind, as he was “on a . . . domestic violence call.”
While approaching the driver, Strand radioed in the license plate number, which dispatch confirmed as “an ‘89 FORD cutaway cargo van, white . . . out of Townsend Ave. Val Trnka, ‘07 expiration.” Despite believing that the “white work van” that dispatch described was the vehicle in front of him, Strand was mistaken in that it was actually a 1997 white Chevy box truck. He did not ask for registration or proof of insurance, and did not check the emblems on the vehicle to ensure that
Fifty-six minutes later, Trnka retrieved his truck from the McDonald‘s parking lot and drove it to the intersection of Townsend Avenue and Park Lane in New Haven, less than one mile from Trnka‘s residence. The plaintiff, an eighteen year old high school student at that time, was entering his vehicle, which was parked on the side of the road. Trnka hit the plaintiff with his vehicle, causing him to suffer severe injuries including several compound fractures and the rupture of both testicles. Trnka fled the scene. Shortly thereafter, a radio transmission indicated that a hit-and-run had occurred on Townsend Avenue. As Strand was still patrolling, he radioed for more information because he believed the driver of the fleeing vehicle might attempt to enter East Haven.6 When Strand was informed that the vehicle‘s description was a “large white pickup truck,” or a “box truck, a white truck,” he realized that it might be the same vehicle that he had previously directed Trnka to leave in the McDonald‘s parking lot, and “mov[ed] in the direction of the lot at that point.” After informing his supervisor that the truck that was the subject of his earlier stop at the McDonald‘s was no longer there, Strand subsequently drove to Trnka‘s residence on Townsend Avenue to further investigate his suspicion that Trnka‘s vehicle may have been involved in the hit-and-run.
At Trnka‘s residence, Strand immediately spotted a white box truck on the property and radioed Sergeant Frank Montagna, who was then at the accident scene, for additional information regarding the vehicle involved. He further checked the license plate of the
New Haven police officer Mark Foster arrested Trnka based on the evidence of the red paint transfer, the broken mirror, and Strand‘s statements that the white box truck was the same truck that he had encountered earlier and that the damage to the driver‘s side had not been present earlier. Trnka was charged with evasion of responsibility in violation of
Although Foster was aware that the 911 caller, when reporting the earlier possible domestic violence incident, stated that there may have been drugs or alcohol involved, Foster did not smell alcohol on Trnka or believe that there was probable cause to conduct a field sobriety test. In Strand‘s case incident report,7 he described Trnka as “highly agitated” and “emotional,” after describing the alleged domestic violence incident as a “verbal argument” between “two people sitting in a vehicle.”8
The plaintiff subsequently sought to recover damages for his injuries and commenced the present action against Strand9 and the defendant, alleging that Strand negligently violated a ministerial duty imposed on him by the East Haven Police Department Tow Board Rules & Regulations (tow rules) by failing to have Trnka‘s truck towed from the McDonald‘s parking lot. The plaintiff‘s operative complaint alleged that Strand “failed to have Trnka‘s [truck] towed and impounded as required in every case involving misuse of plates, lack of insuranсe or registration by rules promulgated by and for the East Haven police,” and “failed to secure Trnka‘s [truck] so that he could not return and operate
During the trial, the plaintiff introduced into evidence a copy of the tow rules. This document, effective September 1, 1998, was prefaced by a memorandum issued by then Chief of Police Leonard I. Gallo stating that “[a]ll establishments who tow for the East Haven Police Department must adhere to these Rules & Regulations.” The first paragraph of the tow rules provides that “any company or person with towing equipment and having their business within the Town of East Haven may make application to the East Haven Police Department to be on the East Haven Police Department rotating tow list provided they conform to the following rules and regulations.”
The defendant moved for a directed verdict after the close of the plaintiff‘s case-in-chief. The court reserved decision on the motion for directed verdict, as permitted under
Regarding the defendant‘s special defense of governmental immunity, the court instructed the jury that “[i]n this case, the parties agree and the court instructs you that . . . Strand was a municipal employee engaged in a governmental function at the time of the plaintiff‘s alleged injuries. The parties disagree, however, as to whether . . . Strand was free to exercise discretion when acting or failing to act as he did.
“The question for you . . . [to decide] is whether . . . Strand was performing a discretionary or ministerial act when the plaintiff was allegedly injured by his
“If you find that the defendant has failed to meet the burden of establishing this special defense, then no immunity would protect the defendant from liability if you determine that . . . Strand was negligent, and that negligence proximately caused the injuries claimed by the plaintiff, you would therefore find in favor of the plaintiff. If, however, you find that the defendant has satisfied this burden, you would then render a verdict for the defendant.”
The jury returned a verdict for the plaintiff and found damages in the amount of $12,200,000, finding, by way of its response to a jury interrogatory, that Strand negligently violated a ministerial duty to tow Trnka‘s truck.11 Following trial, on January 3, 2014, the defendant filed a renewed motion for a directed verdict and a motion to set aside the verdict.12 It also filed a motion seeking a remittitur in the amount of $11,000,000 and a collateral source reduction. In a memorandum of decision dated July 10, 2014, the court denied the defendant‘s renewed motion for a directed verdict and its motion to set aside the verdict, but granted the motion for remittitur in the amount of $6,000,000, thereby reducing the verdict to $6,200,000.
In denying the defendant‘s motions to direct or set aside the verdict, the court found, on the issue of governmental immunity, that “[t]here was sufficient evidence adduced during the plaintiff‘s case-in-chief on the issue of whether Strand‘s actions were ministerial or discretionary. . . . The plain language of [paragraph 7 of the tow rules] falls within the definition of ministerial. There is no exercise of judgment in the language of the regulation.” Later, while rendering judgment for the plaintiff on March 13, 2015, the court granted the defendant‘s request for a collateral source reduction, and reduced the judgment to $5,977,553.59 before interest.13 This appeal followed.
Before turning to the specifics of the defendant‘s first claim, we set forth our standard of review for determining whether a court has erred in denying a motion for a directed verdict. “Whether the evidence presented by the plaintiff was sufficient to withstand a motion for directed verdict is a question of law, over which our review is plenary. . . . Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court‘s decision [as to whether] to direct a verdict in favor of a defendant we must consider the evidence
The defendant claims that the court improperly denied its motion for a directed verdict on the basis of governmental immunity because (1) there was no statute, ordinance, or rule that imposed on East Haven police officers a clear ministerial duty to tow,14 and (2) even if there was a ministerial duty to tow, there was insufficient evidence to conclude that Strand was aware of the motor vehiсle violations that allegedly triggered the ministerial duty to tow Trnka‘s truck under the tow rules. In response, the plaintiff argues that the jury properly found that the tow rules created a clear ministerial duty that required Strand to tow Trnka‘s truck, and that there was sufficient evidence from which the jury could have concluded that Strand was aware of the motor vehicle violations that triggered such a duty. We agree with the defendant on the first ground and conclude, as a matter of law, that the tow rules did not impose a clear ministerial obligation on Strand to tow Trnka‘s truck.
“We begin by observing the broad scope of governmental immunity that is traditionally afforded to the actions of municipal police departments. [I]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality. . . . [Accordingly] [t]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a сity.” (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 164, 95 A.3d 480 (2014).
We now turn to the general principles of municipal liability. As we have noted, “[m]unicipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immu-
Thus, “[u]nder
“The hallmark of a discretionary act is that it requires the exercise of judgment. . . . If by statute or other rule of law the official‘s duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance. . . . [M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” (Citations omitted; emphasis added; internal quotation marks omitted.) Grignano v. Milford, 106 Conn. App. 648, 654, 943 A.2d 507 (2008). “[E]vidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive.” Wisniewski v. Darien, 135 Conn. App. 364, 374, 42 A.3d 436 (2012).
Exceptions to governmental immunity will be found only if there is a duty to act that is so “clear and unequivocal that the policy rationale underlying discretionary act immunity—to encоurage municipal officers to exercise judgment—has no force.” (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). As such, our analysis in the present case turns on whether the alleged duty to tow under the tow rules applied to East Haven police officers and, if so, whether that duty is clearly ministerial rather than discretionary,15 which necessarily involves an interpretation of the tow rules.
Before turning to the merits of the defendant‘s claim, we address the plaintiff‘s argument that the determination of whether the tow rules imposed a ministerial duty properly was left to the jury. The plaintiff argues
Because the resolution of this issue calls for the interpretation of the tow rules as they apply to police officers, we exercise plenary review in accordance with our well established rules of statutory construction. Rules of this nature are to be interpreted in the manner that we interpret statutes. Honulik v. Greenwich, supra, 293 Conn. 710 (“[p]rinciples of statutory construction govern our interpretation of town policy manual and pay plan“); Kelly v. New Haven, 275 Conn. 580, 607, 881 A.2d 978 (2005) (“[a]s with any issue of statutory construction, the interpretation of a charter or municipal ordinance presents a question of law, over which our review is plenary” [internal quotation marks omitted]).17
“The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective 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,
The principles of statutory construction favor a “rational and sensible [result]. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. . . . When two constructions are possible, courts will adopt the one which makes the statute effective and workable, and not one which leads to difficult and possibly bizarre results.” (Internal quotation marks omitted.) State v. Anonymous, 237 Conn. 501, 514–15, 680 A.2d 956 (1996).
We now turn to the merits of the fundamental question in this appeal, namely, whether the tow rules apply to East Haven police officers and impose a clear ministerial duty on Eаst Haven police officers to tow the vehicles of all drivers who have violated motor vehicle laws. We conclude that the plain language of the tow rules does not place such a duty on East Haven police officers.18
We note that, because
We begin with the text of the tow rules at issue, which are prefaced by thе statement that “any company or person with towing equipment and having their business within the town of East Haven may make application to the East Haven Police Department to be on the East Haven Police Department rotating tow list provided they conform to the following rules and regulations.” (Emphasis added.) Paragraph 7 states that “[a]ll motor vehicle violations are to be towed to include unregistered and misuse of plates. Operators of these vehicles are not allowed to park vehicle or leave in private parking areas.”19 Contrary to the plaintiff‘s interpretation, the immediately preceding paragraph, paragraph 6, states that “[o]fficer‘s discretion will prevail regarding vehicles that are to be towed. If vehicle is not a hazard or obstructing traffic the officer may contact AAA, etc. However, if vehicle is a hazard or obstructing the tow log is to be used.”
Although, at first blush, paragraph 7 of the tow rules appears to mandate that “[a]ll motor vehicle violations are to be towed,” when read in conjunction with the mandate in paragraph 6 that officer discretion will prevail, the rule in paragraph 7 cannot reasonably be interpreted as creating a clearly ministerial obligation to tow that is directed at police officers. The tow rules must be read as a whole, and cannot be parsed to force the reading of one paragraph in a proverbial vacuum.20 Ugrin v. Cheshire, 307 Conn. 364, 383, 54 A.3d 532 (2012). When read together, paragraphs 6 and 7 are reconciled and make sense only with the understanding that the tow rules regulate tow truck operators and not police officers. Paragraph 6 informs tow truck operators that it is ultimately within police discretion as to whether a motor vehicle will be towed, and who may
The plaintiff‘s interpretation of the tow rules also would lead to bizarre results that cannot be deemed workable under a statutory construction analysis. See State v. Anonymous, supra, 237 Conn. 515. Both the plaintiff and the trial court focused solely on the portion of paragraph 7 mandating the towing of vehicles that are unregistered and have misused plates, but they both failed to contemplate or discuss the ramifications of the entire clause—specifically, its directive that “all motor vehicle violations” must be towed. If the interpretation advanced by the plaintiff and adopted by the trial court is correct, East Haven police officers would be obligated to tow a motor vehicle in every situation in which an officer determined that a violаtion of the motor vehicle laws had occurred, not just those circumstances in which the motor vehicle is unregistered or has misused plates. For example, even if limited to the statutory definition of “violation” under Connecticut law,22 the plaintiff‘s and the court‘s reading of paragraph 7 would mean that a police officer would be required to tow a motor vehicle every time a driver is stopped for rolling through a stop sign23 or for failing to obey a yield sign.24 As the defendant aptly points out in its brief, “even if the purported ministerial duty to tow were limited to violations involving misused plates and lack of registration—the violations that the trial court
As previously discussed, however, there is no conflict between paragraphs 6 and 7 of the tow rules when they are interpreted and read together so as to apply to tow truck operators and not police officers. Of the two constructions that are possible, we adopt the one that makes the tow rules effective and workable, which, in this case, is that there is no cleаr ministerial duty of a police officer to tow.
Moreover, to the extent that any ambiguity exists in the tow rules, we must resolve any such ambiguity in favor of governmental immunity. As we noted previously, the principles of statutory construction govern our interpretation of town policies such as the tow rules. See Honulik v. Greenwich, supra, 293 Conn. 710. “Statutes that abrogate or modify governmental immunity are to be strictly construed. . . . This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.” (Internal quotation marks omitted.) Segreto v. Bristol, supra, 71 Conn. App. 849–50. As our case law makes clear, immunity can be overcome only if an official‘s duty is clearly ministerial rather than discretionary. Mills v. Solution, LLC, supra, 138 Conn. App. 48. Paragraph 7 of the tow rules, viewed in isolation, is perhaps ambiguous as to whether police officers have a duty to tow, but when that paragraph is read in conjunction with and harmonized with the rest of the tow rules, we cannot conclude that that one pаragraph works to completely deprive police officers of the dis-
Additional considerations support our conclusion that the tow rules do not create a clearly ministerial duty to tow. First, there is no state statute,26 regulation, or municipal ordinance that requires police officers to tow or impound motor vehicles under the circumstances in this case. In fact, the plaintiff‘s own expert, Fearon, conceded that no state statute “says all unregistered vehicles must be towed.”
Second, the plaintiff argues that the tow rules must apply to police officers because they were formally named the “East Haven Police Department Tow Board Rules & Regulations,” and that each page of the tow rules has the name of the police department, the department‘s seal, and the name of the police chief, Gallo. This is incorrect. Only policies promulgated by the Board of Police Commissioners are binding on East Haven police officers and can create ministerial duties. See generally East Haven Town Chаrter, Ch. VI, § 7 (a) (“[t]he Police Commission shall have jurisdiction and general control of the Police Department and may make such rule and regulations that are not inconsistent with this section“). The tow rules were not promulgated by the Board of Police Commissioners; instead, they were drafted by an individual police officer, Liquori, and issued by the police chief, Gallo.
Third, while the plaintiff argues that Connecticut law does not impose a formal requirement on the types of policies that can qualify as ministerial obligations;27 see, e.g., Kolaniak v. Board of Education, 28 Conn. App. 277, 279, 610 A.2d 193 (1992) (duty may be established through bulletins); and thus, it may not be relevant that the tow rules were not promulgated by the Board of Police Commissioners, those rules are expressly directed at tow truck operators, not East Haven police officers. They are prefaced by a memorandum, issued by Gallo, addressed to “Business Towing Establishments.” The memorandum states that “[a]ll establishments who tow for the East Haven Police Department must adhere to these Rules & Regulations.” Nowhere in the preface or body of the tow rules does it state that police officers must adhere to them. Especially discounting is the testimony of Liquori, the author of the tow rules, who testified at trial that they were applicable to “[t]he tow companies that wanted to tow for the police department.” Liquori further testified that “they were never intended” for police officers. Fearon conceded during cross-examination at trial that the tow rules were “directed toward towing companies” and “not police officers,” and that “[o]ne reason for [these] rule[s] might be that . . . the chief of police doesn‘t want any dispute out on the road between the tow truck companies and the police officers.”28
Finally, the purpose of the tow rules is inconsistent with imposing a ministerial duty on police officers. The
Accordingly, we conclude that the plaintiff‘s cause of action fails as a matter of law because the tow rules imposed no clear ministerial duty on Strand to tow Trnka‘s truck prior to the accident that caused the plaintiff‘s injuries. As a result, the defendant is immune from liability. The trial court improperly denied the defendant‘s motion for a directed verdict on the ground of governmental immunity.
The judgment is reversed and the case is remanded to the trial court with direction to grant the defendant‘s motion for a directed verdict and to render judgment in favor of the defendant.
In this opinion the other judges concurred.