Coley v. Hartford ( 2014 )

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COLEY v. HARTFORD—DISSENT
EVELEIGH, J., dissenting. I respectfully dissent. The
majority opinion concludes that, in the present case
the police officers employed by the defendant, the city
of Hartford, performed discretionary acts and, there-
fore, since no exception was claimed by the plaintiff,
Orville Coley, the administrator of the estate of Lorna
Coley (decedent), the Appellate Court properly
affirmed the summary judgment rendered by the trial
court. I disagree. The trial court’s opinion regarding this
wrongful death case reads as follows: ‘‘Under [General
Statutes § 52-557n (a) (2) (B)], the [defendant] is not
liable for discretionary acts and the officers’ decision
to try and find and arrest the domestic violence perpe-
trator and eventual shooter, was a discretionary act.
The [decedent] . . . was not an identifiable victim sub-
ject to imminent harm, [her] daughter, [Jahmesha Wil-
liams], was. [General Statutes § 46b-38b (d)] requires
the officers to exercise reasonable time and reasonable
judgment which makes it discretionary.’’ The Appellate
Court agreed and further stated that ‘‘any duty owed
by the police under the police response procedures
was owed to Williams, not to [the decedent].’’ Coley v.
Hartford, 140 Conn. App. 315, 325, 59 A.3d 811 (2013);
see Hartford Police Dept. Policy and Procedure, No. 7-
40 (October 1, 1986) (police response procedure). I
disagree. In my view, since the decedent was a member
of the household, the police procedures specifically
applied to her. Further, I would conclude that, although
the manner in which the police investigated the com-
plaint was discretionary, once they determined that
there was probable cause to make an arrest, and that
the arrest could not be made at that time, they were
under a ministerial duty to remain in the household
with the family for a reasonable period of time. The
‘‘reasonable period of time’’ was again discretionary,
but that discretionary action describes only the manner
in which the police officers were to perform the ministe-
rial act of staying in the house. Therefore, I would
conclude that the act of not staying, which was admitted
in the pleadings, constituted a question for the jury that
should not have been discarded by way of summary
judgment.
There is no need for me to recite the facts of the
present case, which have been sufficiently set forth by
the majority. I wish to highlight, however, paragraph
15 of the complaint, which reads as follows: ‘‘Williams
had requested that the police officers stay at the scene,
but the officers did not do so.’’ The defendant’s answer
to paragraph 15 reads as follows: ‘‘Paragraph 15 is
admitted.’’ In my view, this answer becomes extremely
important in any analysis related to the actions of the
police officers when compared with their obligations
pursuant to the department’s regulations and proce-
dures. It is not, however, discussed in the majority opin-
ion. Rather, the majority concludes that the relevant
police procedures did not create a ministerial duty to
remain at the scene for at least some period of time
following their determination that probable cause
existed that a family violence crime had been commit-
ted. I have three difficulties with the majority’s con-
clusion.
First, this matter concerns the rendering of summary
judgment in which the trial court made no findings of
fact upon which it based its opinion. ‘‘Practice Book
[§ 17-49] provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . . Finally, the scope of our review of the
trial court’s decision to grant the plaintiff’s motion for
summary judgment is plenary.’’ (Internal quotation
marks omitted.) DiPietro v. Farmington Sports Arena,
LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012). As the
majority correctly states, ‘‘the trial court’s order grant-
ing summary judgment in favor of the defendant does
not discuss the facts alleged in this case, nor does it
reference any affidavits or supporting documents sub-
mitted by the parties.’’ See footnote 5 of the majority
opinion. It appears to me that the trial court based
its opinion entirely on a question of law relating to a
discretionary duty compared to a ministerial duty. With
regard to this issue, I believe that there exists an issue
of material fact. The majority concludes that the facts
contained within the police report are uncontested.
However, counsel for the plaintiff indicated during oral
argument that a crucial fact was contested, namely,
whether the police stayed for a reasonable period of
time after a determination of probable cause for an
arrest had been made. Therefore, I question the majori-
ty’s statement regarding the uncontested nature of all
of the facts in this case. It certainly appears that the
key fact in the case—whether the police remained in
the house after a probable cause to arrest determination
was made and the suspect could not be found—was,
indeed, contested. The majority goes on to recite some
facts that, it contends, may indicate that the police did
stay after a probable cause determination was made.
In my view, however, a material issue of fact is created
by the admission in the pleadings that the police did
not stay when requested to do so by Williams. Viewing
this issue in a light most favorable to the plaintiff, the
facts recited by the majority are directly contradicted
by the admission in the pleadings. In view of the fact
that this issue of material fact was never discussed, let
alone resolved, in either the trial court, Appellate Court
or the majority opinion, I believe that it can only be
resolved by the trier of fact, and the case must be
remanded for further proceedings.
Second, the majority explains the following: ‘‘At oral
argument before this court, the defendant, as evidenced
by the following colloquy, appeared to concede that
the police response procedures give rise to a duty to
remain at the scene for at least some period of time.
‘‘ ‘The Court: The procedures do require [the police]
to remain at the scene for some time?
‘‘ ‘The defendant: Yes. . . .
‘‘ ‘The Court: Would you agree [the police] have to
stay for a certain period of time?
‘‘ ‘The Defendant: Yes, they do have to stay for a
certain period of time. Of course, it’s difficult to put a
number on that . . . .’
‘‘It is unclear, however, whether the defendant’s state-
ment that the police officers had to remain at the scene
for some duration was a concession that they had to
remain at the scene after they determined there was
probable cause for arrest as opposed to after the police
initially responded to the scene.’’ See footnote 14 of
the majority opinion. I respectfully disagree with this
conclusion. In my view, upon reviewing the police
response procedures, it is very clear that the police
were required to stay after they had made a probable
cause determination for arrest and were unable to make
the arrest. I believe this fact was conceded by defen-
dant’s counsel.1 If, in fact, there was a concession by
the defendant, there can be no question that there was
a ministerial duty imposed on the police to remain at
the scene for a reasonable period of time. The premise
that counsel for the defendant would admit that the
police had a duty to stay at the house indicates the
mandatory nature of this requirement. This conclusion
runs contrary to the express decisions of both the
Appellate Court and the trial court. Even if there is
disagreement on this issue, its very determination
should be made in the trial court, not in this court,
when we are examining issues not considered by the
trial court.
Third, as discussed later in this dissent, the police had
a ministerial duty to remain at the house. The manner
in which they performed that duty was discretionary.
Perhaps, they could have chosen to post a guard at the
front of the house while the other officer applied for
the warrant. Perhaps, they could have remained in the
same room with the family. Perhaps, they could have
asked for backup and post guards at both entrances to
the house or remain in the yard. It would not matter
in terms of the execution of the ministerial duty. The
point remains that they had a mandatory duty to remain
at the house which unquestionably constituted a minis-
terial duty. Therefore, the suit was properly before the
trial court and should not have been dismissed. The
majority suggests that because the police response pro-
cedures contain a reasonableness clause, a discretion-
ary act is created and not a ministerial duty. This is the
precise point at which I part ways with the majority. The
duty to stay, in my view, was ministerial. The manner in
which they choose to stay was discretionary.
Although police officers, and police departments, are
typically protected by discretionary act immunity, the
mere status of a defendant as a police officer does not
itself impart a cloak of immunity. The policy behind
discretionary act immunity for police officers is based
on the desire to encourage police officers to use their
discretion in the performance of their typical duties.
‘‘Discretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officers and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, outweighs the bene-
fits to be had from imposing liability for that injury.’’
(Internal quotation marks omitted.) Soderlund v. Merri-
gan, 110 Conn. App. 389, 395, 955 A.2d 107 (2008).
‘‘Police officers are protected by discretionary act
immunity when they perform the typical functions of
a police officer.’’ Id., 400. Thus, in Soderlund, the Appel-
late Court held that the police officer’s failure to vacate
a warrant pursuant to a court order was a ministerial
duty and ‘‘[the police officer] should have taken steps to
vacate the warrant from the computer system because it
was at the direction of the court. It does not matter
how she performed this duty, but she was required to
vacate the warrant.’’ Id. Therefore, the Appellate Court
reversed the summary judgment entered by the trial
court.
However, under the common law, ‘‘[g]enerally, a
municipal employee is liable for the misperformance
of ministerial acts, but has a qualified immunity in the
performance of governmental acts. . . . Governmental
acts are performed wholly for the direct benefit of the
public and are supervisory or discretionary in nature.
. . . The hallmark of a discretionary act is that it
requires the exercise of judgment. . . . In contrast,
[m]inisterial refers to a duty [that] is to be performed
in a prescribed manner without the exercise of judg-
ment or discretion.’’ (Internal quotation marks omitted.)
Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d
700 (2010). ‘‘Although the determination of whether
official acts or omissions are ministerial or discretion-
ary is normally a question of fact for the fact finder
. . . there are cases where it is apparent from the com-
plaint . . . [that] [t]he determination of whether an act
or omission is discretionary in nature and, thus, whether
governmental immunity may be successfully invoked
pursuant to . . . § 52-557n (a) (2) (B), turns on the
character of the act or omission complained of in the
complaint. . . . Accordingly, where it is apparent from
the complaint that the defendants’ allegedly negligent
acts or omissions necessarily involved the exercise of
judgment, and thus, necessarily were discretionary in
nature, summary judgment is proper.’’ (Footnote omit-
ted; internal quotation marks omitted.) Id., 307–308. In
my view, the police were under a ministerial duty to
stay at the household. The manner in which they per-
formed this duty and the length of time they stayed
was discretionary. Therefore, the trial court improperly
granted summary judgment in favor of the defen-
dant.Paragraph 17 of the plaintiff’s complaint alleges
in relevant part as follows: ‘‘The losses suffered by the
plaintiff, as hereinafter alleged, are due to the negli-
gence and carelessness of the defendant, its agents,
servants or employees, in one or more of the following
ways . . . (d) in that they left the scene before the
likelihood of further imminent violence had been elimi-
nated, in violation of the [p]olice [r]esponse [p]roce-
dures.’’ The plaintiff relies on § III (B) (4) of the police
response procedures entitled ‘‘Police Response to
Cases of Family Violence,’’ which provides as follows:
‘‘Victim Safety: In the event that an arrest is not made,
[Public Acts 1986, No. 86-337] requires that officers shall
remain at the scene for a reasonable time until, in the
reasonable [judgment] of the officer, the likelihood of
further imminent violence has been eliminated.’’ Fur-
ther, § III (B) (5) of the police response procedures,
which deal with temporary restraining orders and pro-
tective orders, provides in relevant part: ‘‘c. Officers
shall arrest when there is probable cause to believe
that the subject of the [t]emporary [r]estraining or [p]ro-
tective [o]rder has violated the order. d. Violators shall
be arrested for a violation of the terms of the order
which may include criminal trespass in the first degree
[General Statutes § 53a-107] and any other violations
charged. e. If the violator is not present when the officer
arrives, the officer shall investigate the incident and, if
probable cause exists, the officer will apply for an arrest
warrant.’’ Moreover, § II (B) of the police response pro-
cedures provides the following relevant definitions: ‘‘[1]
‘[F]amily violence’—means an incident resulting in
physical harm, bodily injury or assault . . . between
family or household members. . . . [2] ‘[F]amily/
household members’—means spouse, parents, persons
eighteen years of age or older related by blood or mar-
riage and persons presently residing together or who
have resided together, and persons who have a child
in common regardless of whether they are or have been
married or have lived together at any time. [3] ‘[F]amily
violence crime’—means a crime defined in [General
Statutes § 53a-24] which, in addition to its other ele-
ments, contains as an element thereof an act of family
violence to a family member and shall not include acts
by parents or guardians disciplining minor children
unless such acts constitute abuse.’’
In my view, the trial court and Appellate Court were
correct that the actions of the police officers were dis-
cretionary up to the point that the police determined
that an arrest should be made, but could not be accom-
plished at that time due to the inability of the police to
locate the person who had violated the restraining
order. Neither court, however, evaluated the separate
ministerial duty to ‘‘remain at the scene for a reasonable
time.’’ Id., § III (B) (4). This duty commenced after the
police officers had conducted their investigation and
determined whether an arrest should take place. In
Bonington v. Westport, supra, 297 Conn. 319, we held
that ‘‘even when the duty to respond to a violation is
ministerial because the specific response is mandated,
the predicate act—determining whether a violation of
law exists—generally is deemed to be a discretionary
act.’’ (Emphasis omitted.) In this case, the officers
determined that there was probable cause for an arrest,
but they could not find the perpetrator. In this regard,
I find the case of Wright v. Brown, 167 Conn. 464, 356
A.2d 176 (1975), particularly instructive. In that case,
a state statute required a town dog warden to quarantine
a dog for a period of fourteen days after the dog had
bitten someone. Id., 466. The dog warden, after an initial
quarantine of several days, had released the dog prior
to the fourteen day period and, thereafter, it bit another
person. Id. We held that ‘‘[i]n this case, the dog warden
was charged under [General Statutes] § 22-358 with the
duty of quarantining the dog for fourteen days once she
found that the dog had bitten a person who was not
upon the premises of the owner or keeper of the dog.
While the determination of that state of facts involved
the exercise of judgment, the subsequent duty to quar-
antine for fourteen days was mandatory and, therefore,
ministerial.’’ Id., 471–72. Likewise, in this case, the
actions of the police in making a determination that
probable cause existed for an arrest and that the perpe-
trator could not be found, in my view, were the predi-
cate discretionary acts. However, at that point, the
language of § III (B) (4) of the police response proce-
dures controlled, requiring that the ‘‘officers shall
remain at the scene for a reasonable time until, in the
reasonable [judgment] of the officer, the likelihood of
further imminent violence has been eliminated.’’ In this
case, the police were required to remain at the scene.
There was no discretion involved in that mandatory
act. The defendant’s counsel conceded this fact at oral
argument. It is a classic ministerial duty. It is equally
clear, however, from the defendant’s answer to para-
graph 15, that the police did not remain at the scene
for any length of time, let alone a reasonable length of
time. The facts recited by the majority would create,
in my view, an issue for the trier of fact, at the time of
trial. Therefore, since I would conclude that there was
a ministerial duty to remain at the scene for some period
of time, and that the complaint and answer, when read
together, establish that the duty was breached, sum-
mary judgment is inappropriate in this case. ‘‘[M]unici-
pal officers are not immune from liability for negligence
arising out of their ministerial acts, defined as acts
to be performed in a prescribed manner without the
exercise of judgment or discretion. . . . This is
because society has no analogous interest in permitting
municipal officers to exercise judgment in the perfor-
mance of ministerial acts.’’ (Internal quotation marks
omitted.) Soderlund v. Merrigan, supra, 110 Conn. App.
395. In the present case, the police officers, or at least
one of them, as established by their own regulations,
were under a ministerial duty to remain at the scene
for some period of time. They, arguably, did not perform
this duty. The matter then becomes an issue of fact
for a decision by the fact finder. I would reverse the
summary judgment entered by the trial court and
affirmed by the Appellate Court, and remand the matter
for further proceedings. Therefore, I respectfully
dissent.
1
At oral argument, the defendant conceded that such a duty exists.
Although the majority concludes that ‘‘[i]t is unclear whether . . . the defen-
dant’s statement that the police officers had to remain at the scene for some
duration was a concession that they had to remain at the scene after they
determined there was probable cause for arrest as opposed to after the
police initially responded to the scene.’’ See footnote 14 of the majority
opinion. I find the defendant’s concession at oral argument to be far less
ambiguous. The relevant portion of the oral argument is as follows:
‘‘The Court: The procedures do require [the police officers] to remain at
the scene for some time?
‘‘The Defendant: Yes.
‘‘The Court: Do we know from this record whether they remained at
the scene?
‘‘The Defendant: Well, we do know from the record that [the police offi-
cers] took enough information from [the decedent] and from Williams as
to what happened that day, there [is] a three page report, they must have
stayed for some period of time to get that information.
‘‘The Court: But they first of all have to determine whether or not there
is probable cause for an arrest, I would think that [the police officers] would
have to take information for that, but after they determined whether or not
to make an arrest, it would seem that there is some requirement that they
have to stay at the scene. And do we know whether they stayed at the scene
here? Other than asking for information?
‘‘The Defendant: I guess it’s not clear as to how long they were there.
‘‘The Court: Would you agree they have to stay for a certain period of time?
‘‘The Defendant: Yes, they do have to stay for a certain period of time.
Of course, it’s difficult to put a number on that, whether it be an hour, two
hours, three hours, twenty-four hours.’’ (Emphasis added.)
In my opinion, it is clear from the transcript that the defendant conceded
that officers do have a ministerial duty to remain at the scene for at least
some period of time after a probable cause determination has been made
to arrest a given suspect for a family violence crime and the arrest has not
yet been made. At the very least, it is quite clear, both from the statements
made by the plaintiff and the defendant in their pleadings and at oral argu-
ment before this court, that the record is unclear as to whether the police
‘‘remained’’ at the scene following the determination of probable cause, and
as to whether the duty to ‘‘remain’’ is ministerial or discretionary in nature.
As a result, I believe that these questions should be resolved by a trier of
fact. See Tango v. New Haven, 173 Conn. 203, 205–206, 377 A.2d 284 (1977).