Argued
April 2, 2018
Procedural
History
Action
to recover damages for the alleged negligence of the
defendants, and for other relief, brought to the Superior
Court in the judicial district of New Haven, where the
complaint was withdrawn as to the defendant Jeffrey R.
Strand; thereafter, the case was tried to the jury before
Wilson, J.; verdict for the plaintiff;
subsequently, the court denied the named defendant's
motions for a directed verdict and to set aside the verdict,
and rendered judgment for the plaintiff; thereafter, the
court granted in part the named defendant's motions for
remittitur and for a collateral source reduction, and the
named defendant appealed to the Appellate Court,
Keller, Prescott and West,
Js., which reversed the trial court's judgment
and remanded the case to that court with direction to grant
the named defendant's motion for a directed verdict and
to render judgment for the named defendant, and the
plaintiff, on the granting of certification, appealed to this
court. Affirmed.
James
J. Healy, with whom was Joel T. Faxon, for the appellant
(plaintiff).
Aaron
S. Bayer, with whom was Tadhg Dooley, for the appellee (named
defendant).
Palmer, McDonald, Robinson, Kahn and DiPentima, Js. [*]
OPINION
PALMER, J.
The
plaintiff, Thomas Ventura, commenced this action against the
named defendant, the town of East Haven, seeking damages for
injuries he sustained when he was struck by an unregistered
vehicle driven by a third party, Vladimir Trnka. The
plaintiff maintained that the defendant is liable for those
damages because he would not have incurred them if Jeffrey R.
Strand, an East Haven police officer who had been dispatched
to respond to an incident involving Trnka shortly before he
was struck, had directed that Trnka's vehicle be towed in
accordance with certain police department tow
rules.[1] According to the plaintiff, those rules
require the towing of unregistered vehicles like Trnka's.
Following a trial, the jury rejected the defendant's
claim of governmental immunity, [2] finding that Strand had a
ministerial duty under those tow rules to have had
Trnka's vehicle towed, and awarded the plaintiff $12,
200, 000 in damages. The trial court thereafter granted in
part the defendant's motion for remittitur and reduced
the verdict to $6, 200, 000. The defendant appealed to the
Appellate Court, which reversed the judgment of the trial
court on the ground that the defendant was immune from suit
because its tow rules did not impose on Strand a clear
ministerial duty to tow Trnka's vehicle. See Ventura
v. East Haven, 170 Conn.App. 388, 414-15, 154
A.3d 1020 (2017). We granted the plaintiff's petition for
certification to appeal, limited to the issue of whether the
Appellate Court correctly determined that governmental
immunity barred the plaintiff's action. Ventura
v. East Haven, 325 Conn. 905, 156 A.3d 537
(2017). We affirm the judgment of the Appellate Court because
we agree that the plaintiff's action is foreclosed by
governmental immunity.
The
Appellate Court's opinion sets forth the following
procedural history and relevant facts, which the jury
reasonably could have found. ‘‘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-[through]' with an ‘[i]rate male . . .
operator.' 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.' After 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 Towns-end 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 [Chevrolet] box truck. He did not ask
for registration or proof of insurance, and did not check the
emblems on the vehicle to ensure that it was the make and
model dispatch had described. Strand then instructed Trnka,
the driver, to pull into a parking spot so he could continue
his investigation. Victoria Conte, another police officer,
arrived on the scene and helped Strand separate and interview
Trnka and his girlfriend, Kristen D'Aniello, who was a
passenger in the truck. After determining that there was no
probable cause for arrest because there was no physical
violence between Trnka and D'Aniello during the period of
time they were in the drive-through, Strand and Conte further
concluded that there was no need to administer a field
sobriety test to Trnka.[3] Strand asked Trnka and D'Aniello
for their driver's licenses, but neither could produce
one. He subsequently called dispatch to run their names
through the Department of Motor Vehicles (DMV) database to
check for valid driver's licenses and [the] National
Crime Information Center database to check for any
outstanding warrants. The dispatcher . . . was able to
confirm [only] that there were no outstanding warrants for
either individual, because the DMV database was
malfunctioning. Because Strand could not confirm that Trnka
hada valid driver's license, he decided to drive Trnka
home and directed Trnka to leave his truck parked in the
McDonald's parking lot and keep his keys. Conte drove
D'Aniello to her residence.
‘‘Fifty-six
minutes later, Trnka retrieved his truck from the
McDonald's parking lot and drove it to the intersection
of Town send Avenue and Park Lanein 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 . . . .'' (Footnotes added and omitted.)
Ventura v. East Haven, supra, 170 Conn.App.
391-92.
‘‘Trnka
was [later arrested and] charged with evasion of
responsibility in violation of General Statutes § 14-224
and failure to drive in the proper lane in violation of
General Statutes § 14-236. . . . [A]s part of the motor
vehicle investigation, [it was also] determined that the
license plate affixed to the truck did not match the
description of the vehicle to which that plate had been
assigned and that Trnka was driving without valid insurance
or registration, determinations that were not made by Strand
at the time he investigated the report of the domestic
violence incident. Trnka was, therefore, further charged with
misuse of plates in violation of General Statutes §
14-147, operating an unregistered motor vehicle in violation
of General Statutes § 14-12a, and operating a motor
vehicle without insurance in violation of General Statutes
§ 14-213b. . . .
‘‘The
plaintiff subsequently sought to recover damages for his
injuries and commenced the present action against
Strand[4] and the defendant, alleging that Strand
negligently violated a ministerial duty imposed on him by the
East Haven Police Department Tow Board Rules &
Regulations[5] (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
insurance 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
it unlawfully in violation of due care and police
procedures.' In particular, he alleged that paragraph 7
of the tow rules required 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 [the] vehicle or leave [it] in private parking
areas.' The complaint further alleged that the defendant
was directly liable for Strand's negligence under General
Statutes § 52-557n (a) (1) (A).[6] In its answer, the defendant
raised several special defenses, including that of
governmental immunity.
‘‘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 issue by then Chief of Police
Leonard I. Gallo stating that ‘[a]ll establishments who
tow for the East Haven Police Department [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 [t]own of East Haven may make application to the
[department] to be on the [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 Practice
Book § 16-37, and allowed the defense to proceed. In his
closing argument, the [plaintiff's counsel] argued to the
jury that the tow rules applied in equal force to police
officers and to businesses conducting towing operations at
the direction of the police. [Counsel] further argued that
Strand was negligent in not towing and impounding, or
otherwise securing, Trnka's truck on the basis of the
motor vehicle violations that he knew existed at the time of
his investigation of the possible domestic violence incident
in the McDonald's parking lot, and, because of that
knowledge, he did not have the discretion to decline to tow
the truck. The defendant argued that Strand did not know of
the motor vehicle violations existing at the time of the stop
and that, even if he was aware of such violations, the
decision to tow was discretionary, and, thus, the defendant
was protected by governmental immunity.
‘‘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 conduct. As I
stated earlier, the burden is on the defendant, who desires
the benefit of governmental immunity, to persuade you by a .
. . fair preponderance of the evidence, that . . .
Strand's actions or inactions were the result of the
exercise of discretion rather than the failure to comport
with a mandatory course of conduct.
‘‘
‘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.[7]Following trial, on January 3, 2014, the
defendant filed a renewed motion for a directed verdict and a
motion to set aside the verdict. 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, 553.39 before
interest.'' (Footnotes added and omitted.)
Id., 394-98.
The
defendant appealed to the Appellate Court, claiming, inter
alia, that the trial court improperly had denied its motion
for a directed verdict on the basis of governmental immunity.
Id., 399. Specifically, the defendant argued that
the trial court was incorrect in concluding that paragraph 7
of the tow rules imposed a clear ministerial duty on East
Haven police officers to tow the vehicles of all drivers who
have violated motor vehicle laws because that paragraph,
along with the other twenty paragraphs of those rules, is
directed at and regulates towing companies doing business
with the department and does not apply to police
officers.[8] Id., 407. The Appellate Court
agreed with the defendant and, in so doing, rejected the
plaintiff's contention that whether the tow rules imposed
a ministerial duty on Strand presented a question of fact for
the jury. Id., 402. The court explained that when,
as in the present case, the question of whether an act is
ministerial or discretionary turns on the interpretation of a
statute, municipal ordinance or other written directive, that
issue gives rise to a question of law for the court.
Id., 403. The court further explained that
‘‘a plaintiff seeking to avoid the immunity
typically afforded to police officers must demonstrate that
by statute or other rule of law the official's duty is
clearly ministerial rather than discretionary . . .
.'' (Emphasis in original; internal quotation marks
omitted.) Id., 406-407.
Applying
these principles to the present facts, the Appellate Court
concluded that the tow rules, by their express and
unambiguous terms, did not purport to impose on East Haven
police officers a ministerial duty to tow the vehicles of all
drivers who have violated the state's motor vehicle laws;
they were promulgated, rather, solely for the purpose of
clarifying the responsibilities of towing companies wishing
to do business with the department. Id., 407-409,
413-14. This was evidenced, the court explained, not only by
the first paragraph of the tow rules and prefatory memorandum
that accompanied them, but also by the signature line at the
end of the tow rules, which directed the ‘‘
‘[a]pplicant' '' tow truck company to
attest that it had ‘‘ ‘read and
under[stood] each of the above and will strictly adhere to
these [r]ules & [r]egulations.' ''
Id., 409.
In
reaching its conclusion, the Appellate Court rejected the
plaintiff's contention that paragraph 7 of the tow rules,
which provides that ‘‘[a]ll motor vehicle
violations are to be towed to include unregistered and misuse
of plates'' and that ‘‘[o]perators of
these vehicles are not allowed to park vehicle or leave in
private parking areas, '' imposed a clear ministerial
duty on Strand to tow Trnka's vehicle. Id., 407.
The court reasoned that paragraph 7 must be read in
conjunction with paragraph 6, which expressly states that
‘‘[o]fficer discretion will prevail regarding
vehicles that are to be towed. If vehicle is not a hazard or
obstructing traffic the officer may contact [the American
Automobile Association (AAA)], etc. However, if vehicle is a
hazard or obstructing the tow log is to be used.''
Id., 408. The court explained that,
‘‘[w]hen 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 tow it. Paragraph 7 then
clarifies that, once an officer has exercised his discretion
to order a motor vehicle towed, the tow company must follow
the officer's direction to tow the vehicle. Vehicle
owners cannot negotiate with tow truck companies to allow the
vehicle to remain in a ‘private parking area.'
'' Id., 408-409. The court further
explained, moreover, that interpreting paragraph 7 to impose
on East Haven officers a ministerial duty to tow
‘‘[a]ll motor vehicle violations'' would
render paragraph 6 superfluous, in violation of the cardinal
principle that such provisions are to be interpreted to avoid
such a construction. Id., 411.
The
Appellate Court further observed that the plaintiff's
interpretation of paragraph 7 of the tow rules was not only
incompatible with the unfettered officer discretion in regard
to towing described in paragraph 6, but would lead to a
bizarre and unworkable result, namely, that East Haven police
officers would be required ‘‘to tow a motor
vehicle in every situation in which an officer determined
that a violation of the motor vehicle laws had occurred,
'' including ‘‘every time a driver is
stopped for rolling through a stop sign or for failing to
obey a yield sign.'' (Footnote omitted.)
Id., 410. The construction advanced by the plaintiff
would yield such a result, the court explained, because
paragraph 7 expressly states that ‘‘[a]ll motor
vehicle violations are to be towed, '' not just
violations involving the failure to register a vehicle or the
misuse of plates. Id.
Finally,
the Appellate Court addressed the plaintiff's claim that
the jury reasonably could have relied on the testimony of two
East Haven officers, Sergeant Paul Liquori, who drafted the
tow rules, and Lieutenant David Emerman, the officer
designated by the defendant as the person most knowledgeable
about the department's rules and procedures, to find that
the tow rules imposed a ministerial duty on police officers
to tow particular vehicles. Id., 402 n.16. The court
also rejected this contention, explaining that both men had
testified unequivocally that the decision whether to tow a
vehicle is always within the officer's discretion, and
that the plaintiff, in arguing to the contrary, had parsed
the officers' testimony in such a manner as to ignore
this crucial testimony. Id. The court further
observed that the plaintiff's own expert witness, Peter
Fearon, ‘‘agreed that the tow rules were clearly
...