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Zdrojeski v. Combs

Superior Court of Connecticut, Judicial District of Hartford, Hartford

June 15, 2016

Robert Zdrojeski et al.
v.
Kenneth Combs et al

          MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#143)

          Sheila A. Huddleston, Judge.

         The plaintiffs, Robert Zdrojeski, Scott Menard, and Darren Connolly, are state troopers who were injured while conducting a traffic stop in the early morning hours of September 1, 2012. A vehicle operated by William Bowers collided with Zdrojeski's police cruiser and caused it to collide with Connolly and Menard, who were standing near the cruiser. The defendant Kenneth Combs is a sergeant in the East Hartford Police Department (EHPD). The plaintiffs allege that Combs negligently failed to prevent Bowers from driving after he had seen him in an intoxicated state at an East Hartford strip club. In the first count, they allege negligence against Combs individually. In the second count, they allege negligence against Combs in his official capacity and seek indemnification from the defendant town of East Hartford (town) pursuant to General Statutes § § 7-465 and 7-101a. The defendants denied that Combs was negligent. They have moved for summary judgment, asserting that the plaintiffs' claims are barred by the doctrine of governmental immunity as codified in General Statutes § 52-557n(a)(2)(B). They also assert that Combs did not owe a duty to the plaintiffs, that his actions were not the proximate cause of the plaintiffs' injuries, and the criminal conduct of Bowers was an unforeseeable superseding event. The town asserts that it is not liable because the plaintiffs' claims against Combs are not viable. The plaintiffs respond that Combs had a ministerial duty to prevent a visibly intoxicated person from driving away from a bar; that, as a police officer, he owed a duty to ensure the safety of others; and that his negligence was the legal cause of the plaintiffs' injuries. The court agrees with the defendants that Combs is entitled to governmental immunity for his discretionary acts, and that no exception applies.

         FACTS

         In support of their motion for summary judgment, the defendants presented excerpts from a deposition of defendant Combs; an affidavit by Joshua Litwin, a sergeant in the EHPD's Office of Professional Standards; a transcript of an interview with Combs in the course of a departmental investigation after the town received notice of the plaintiffs' intention to sue; and excerpts from the accident report concerning the accident in which the plaintiffs were injured. In opposition, the plaintiffs presented excerpts from Combs' deposition and excerpts from the accident report. From that evidence, the court draws the following summary of the undisputed material facts.

         On Friday, August 31, 2012, Combs was on duty working the midnight shift as a patrol supervisor for the town's police department. His shift began at 10:30 p.m. and ended at 8:00 a.m. on September 1, 2012. As the patrol supervisor, Combs was tasked with monitoring activities on the road, responding to officers requesting assistance, and visiting establishments such as bars and restaurants to confer with management to determine whether there were any ongoing problems, such as drug trafficking, or specific incidents, such as a patron causing a disturbance, that should be addressed by the police.

         On August 31, 2012, at approximately 11:24 p.m., Combs entered Kahoots, an East Hartford establishment with exotic dancers. As he was monitoring activity from a position near a DJ booth, he was approached by Bowers, who was holding a drink. Combs had seen Bowers at Kahoots on earlier occasions but had never encountered him in a " police situation." Bowers told Combs of a sale at Bowers' place of work, and Combs understood him to be promoting his business. In response to an inquiry from Combs, Bowers said he was at Kahoots with a friend, Anthony Meucci, who was driving. Combs had seen Meucci previously and observed that he was in fact present at Kahoots that evening.

         Although Bowers was holding a drink, Combs did not perceive him to be intoxicated. Combs left Kahoots and continued on his patrol duties. About two hours later, at approximately 1:30 a.m., Combs returned to Kahoots to determine whether any problems needed to be addressed before closing time. He entered the establishment but did not see Bowers.

         Having determined that nothing was occurring that required his presence, Combs returned to his cruiser and began to exit the parking lot. As he drove past the front entrance to Kahoots toward the parking lot, he saw Bowers leaving the establishment. His cruiser was about twenty to twenty-five feet from Bowers. Through the open window of his cruiser, Combs greeted Bowers and asked him if everything was all right. Bowers replied that it was.

         Combs testified that nothing occurred in this brief interaction to give him any indication that Bowers was intoxicated. Bowers appeared to him to be walking normally; he was not leaning against a wall; he did not need support; he was not stumbling, getting sick, or propping himself up. Various other individuals were also outside Kahoots. Combs did not observe Bowers approach a motor vehicle and did not know what he was doing outside--that is, he did not know whether he had stepped outside to smoke or make a phone call or talk to someone. In addition, during their earlier interaction, Bowers had told Combs that he was with a friend, Meucci, who was driving, and Bowers had no reason to disbelieve him. Combs left the Kahoots parking lot.

         Sometime later, Bowers left Kahoots with Meucci, but Bowers was driving. They traveled westbound on Interstate 84, leaving the highway at exit 46. While traveling on the exit ramp, Bowers' vehicle struck Zdrojeski's cruiser, which had just pulled to a stop to assist in a traffic stop by Menard and Connolly. Zdrojeski's cruiser then struck Menard and Connolly, who were outside their own cruiser. It was later determined that Bowers had been driving while intoxicated.

         In the subsequent investigation of the accident, two bartenders at Kahoots gave witness statements in which they reported that Bowers had appeared drunk to them. One of the bartenders stated that she did not think Bowers and Meucci were driving because " they usually call a cab."

         The defendants furnished an affidavit by Litwin, of the EHPD's Office of Professional Standards, who attested that " [a]t the time of the accident, the EHPD did not maintain any general order or other policy prescribing the manner in which an officer was to proceed when encountering a potentially intoxicated person at an establishment serving alcohol."

         DISCUSSION

         Summary ...


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