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Ventura v. Town of East Haven

Supreme Court of Connecticut

January 22, 2019

THOMAS VENTURA
v.
TOWN OF EAST HAVEN ET AL.

          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and for other relief, brought to the Superior Court in the judicial district of New Haven, where the complaint was withdrawn as to the defendant Jeffrey R. Strand; thereafter, the case was tried to the jury before Wilson, J.; verdict for the plaintiff; subsequently, the court denied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 ...


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