Ventura v. East Haven , 170 Conn. App. 388 ( 2017 )

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THOMAS VENTURA v. TOWN OF EAST HAVEN ET AL.
(AC 37833)
Keller, Prescott and West Js.
Argued September 21, 2016—officially released January 31, 2017
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
Aaron S. Bayer, with whom was Tadhg A.J. Dooley,
for the appellant (named defendant).
James J. Healy, with whom were Joel T. Faxon, and,
on the brief, Timothy P. Pothin and Jason K. Gamsby,
for the appellee (plaintiff).
Opinion
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 ver-
dict 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 con-
cluded that the defendant was not immune from liability
because, earlier in the evening on the day of the acci-
dent, 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 defen-
dant 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 court.2
On the basis of the evidence presented, the jury rea-
sonably 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.’’ 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 iden-
tified 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 Chevy box truck.3 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 passen-
ger 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. 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
National Crime Information Center database to check
for any outstanding warrants. The dispatcher only was
able to confirm that there were no outstanding warrants
for either individual, because the DMV database was
malfunctioning. Because Strand could not confirm that
Trnka had a valid driver’s license, he decided to drive
Trnka home4 and directed Trnka to leave his truck
parked in the McDonald’s parking lot and keep his keys.5
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 intersec-
tion 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 trans-
mission 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. 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,6 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
truck at Trnka’s residence against the license plate num-
ber he had earlier called in at the McDonald’s, and
found that they matched. Montagna then relayed that
the vehicle involved was a white box truck with a miss-
ing driver’s side mirror and red paint transfer on the
passenger side. Strand corroborated the damage to the
truck and stated that such damage was not present at
the time of the incident in the McDonald’s parking lot.
Strand then requested that New Haven police be dis-
patched to Trnka’s residence, because they had jurisdic-
tion over the New Haven hit-and-run.
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 General Statutes § 14-
224 and failure to drive in the proper lane in violation
of General Statutes § 14-236. Foster, as part of the motor
vehicle investigation, further 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 insur-
ance or registration, determinations that were not made
by Strand at the time he investigated the report of the
domestic violence incident. Trnka was, therefore, fur-
ther charged with misuse of plates in violation of Gen-
eral 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.
Although Foster was aware that the 911 caller, when
reporting the earlier possible domestic violence inci-
dent, 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 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 proce-
dures.’’ 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).10 In its answer, the defen-
dant 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 Sep-
tember 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 regu-
lations.’’
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 permit-
ted under Practice Book § 16-37, and allowed the
defense to proceed. In his closing argument, the plaintiff
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. The
plaintiff 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 govern-
mental 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 ministe-
rial act when the plaintiff was allegedly injured by his
conduct. As I stated earlier, the burden is on the defen-
dant, who desires the benefit of governmental immu-
nity, 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 negli-
gently 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 gov-
ernmental immunity, that ‘‘[t]here was sufficient evi-
dence 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 ministe-
rial. 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 inter-
est.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
in the light most favorable to the plaintiff. . . .
Although it is the jury’s right to draw logical deductions
and make reasonable inferences from the facts proven
. . . it may not resort to mere conjecture and specula-
tion. . . . A directed verdict is justified if . . . the evi-
dence is so weak that it would be proper for the court
to set aside a verdict rendered for the other party.’’
(Internal quotation marks omitted.) Ibar v. Stratek Plas-
tic Ltd., 145 Conn. App. 401, 410, 76 A.3d 202, cert.
denied, 310 Conn. 938, 79 A.3d 891 (2013); see also
Perez-Dickson v. Bridgeport, 304 Conn. 483, 512–13, 43
A.3d 69 (2012). Important to our analysis is that a ‘‘ver-
dict may be directed where the decisive question is
one of law . . . .’’ (Internal quotation marks omitted.)
Beckenstein Enterprises-Prestige Park, LLC v. Keller,
115 Conn. App. 680, 693, 974 A.2d 764, cert. denied, 293
Conn. 916, 979 A.2d 488 (2009).
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 vehicle 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 minis-
terial 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 govern-
mental 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. . . . [Accord-
ingly] [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 city.’’ (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-
nity 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 benefits to be had from impos-
ing liability for that injury. . . . In contrast, municipal
officers are not immune from liability for negligence
arising out of their ministerial acts . . . . 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.) Silberstein v. 54 Hillcrest Park Associates,
LLC, 135 Conn. App. 262, 270–71, 41 A.3d 1147 (2012).
Thus, ‘‘[u]nder § 52-557n (a) (1) (A), a municipality
generally is liable for the ministerial acts of its agents.
Section 52-557n (a) (2) (B), however, explicitly shields
a municipality from liability for damages to person or
property caused by the negligent acts or omissions
which require the exercise of judgment or discretion
as an official function of the authority expressly or
impliedly granted by law.’’ (Footnotes omitted; internal
quotation marks omitted.) Mills v. Solution, LLC, 138
Conn. App. 40, 47, 50 A.3d 381, cert. denied, 307 Conn.
928, 55 A.3d 570 (2012).
‘‘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 individ-
ual injured from allegedly negligent performance. . . .
[M]inisterial refers to a duty which is to be performed
in a prescribed manner without the exercise of judg-
ment 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, ordi-
nance 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 unequiv-
ocal that the policy rationale underlying discretionary
act immunity—to encourage municipal officers to exer-
cise 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 offi-
cers 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 determina-
tion of whether the tow rules imposed a ministerial
duty properly was left to the jury. The plaintiff argues
that ‘‘the question of whether a duty is ministerial or
discretionary is a fact question that could only have
been resolved by the jury.’’16 The defendant argues, in
turn, that the question of whether the tow rules imposed
a ministerial obligation to tow should have been decided
by the court as a matter of law, and never should have
been submitted to the jury. The defendant is correct in
its analysis that, although the ‘‘subsidiary question of
whether official acts are ministerial or discretionary is
normally a question of fact [see Coley v. Hartford, supra,
312 Conn. 162] where, as here, that determination
depends on the interpretation of a statute or municipal
ordinance, the question is one of law, which this court
may resolve de novo.’’ Thus, where a question turns on
the interpretation of a municipal ordinance or policy,
it is inappropriate for a jury to decide. The court should
have made this determination and not left it to the jury.
See Honulik v. Greenwich, 293 Conn. 698, 710, 980
A.2d 880 (2009) (observing that principles of statutory
construction govern interpretation of town policies);
State v. Orr, 291 Conn. 642, 650, 969 A.2d 750 (2009)
(‘‘statutory interpretation is a question of law’’); Sev-
igny v. Dibble Hollow Condominium Assn., Inc., 76
Conn. App. 306, 318–19, 819 A.2d 844 (2003) (referring
to General Statutes § 52-216 and Practice Book § 16-9 in
holding that court decides all issues of law and submits
questions of fact to jury); General Accident Ins. Co. of
America v. Powers, Bolles, Houlihan & Hartline, Inc.,
38 Conn. App. 290, 296–97, 660 A.2d 369 (jury instruction
which forced jury to decide material question of law
requiring statutory interpretation analysis was
improper), cert. denied, 235 Conn. 904, 665 A.2d 901
(1995).
Because the resolution of this issue calls for the inter-
pretation of the tow rules as they apply to police offi-
cers, 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 munici-
pal 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, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) Mickey v.
Mickey, 292 Conn. 597, 613–14, 974 A.2d 641 (2009).
The principles of statutory construction favor a
‘‘rational and sensible [result]. . . . The unreason-
ableness 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 possi-
bly 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 ques-
tion in this appeal, namely, whether the tow rules apply
to East Haven police officers and impose a clear minis-
terial duty on East 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 § 52-557n (a) (1) constitutes
an abrogation of common-law governmental immunity,
it must be strictly construed. Segreto v. Bristol, 71 Conn.
App. 844, 849, 804 A.2d 928 (2002). Our Supreme Court
has concluded that ‘‘for the purposes of § 52-557n,
municipal acts that would otherwise be considered dis-
cretionary will only be deemed ministerial if a policy
or rule limiting discretion in the completion of such
acts exists.’’ Benedict v. Norfolk, 296 Conn. 518, 520
n.4, 997 A.2d 449 (2010). Moreover, as stated, 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 added;
internal quotation marks omitted.) Mills v. Solution,
LLC, supra, 138 Conn. App. 48; see also Grignano v.
Milford, supra, 106 Conn. App. 654. The standard calls
for a statute, rule, or ordinance to ‘‘clearly’’ impose a
ministerial standard so as to eliminate the possibility
that the municipality waived immunity inadvertently,
inconsistently, or ambiguously.
Although the operative complaint characterizes
Strand’s actions as ministerial in nature, the tow rules
specifically provide, in paragraph 6, that police discre-
tion ‘‘will prevail regarding vehicles that are to be
towed.’’ Here, the plaintiff argues that a single para-
graph in the tow rules, out of twenty-one total, imposes
a clear ministerial duty and thereby obligates East
Haven police officers to tow the vehicles of all drivers
who have violated motor vehicle laws. The defendant
counters that the plaintiff failed to identify a statute or
rule of law ‘‘clearly’’ demonstrating that Strand had a
ministerial obligation to tow Trnka’s truck, and that a
single paragraph in a set of tow rules that are directed
at and regulate tow companies doing business with the
defendant is inapplicable to police officers. The court,
agreeing with the plaintiff, determined that ‘‘[t]he 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.’’ We dis-
agree with this isolated and unworkable interpretation
of that single paragraph.
We begin with the text of the tow rules at issue,
which are prefaced by the statement that ‘‘any company
or person with towing equipment and having their busi-
ness within the town of East Haven may make applica-
tion to the East Haven Police Department to be on the
East Haven Police Department rotating tow list pro-
vided they conform to the following rules and regula-
tions.’’ (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 inter-
pretation, the immediately preceding paragraph, para-
graph 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 con-
tact 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 pre-
vail, the rule in paragraph 7 cannot reasonably be inter-
preted 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 opera-
tors 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 direc-
tion to tow the vehicle. Vehicle owners cannot negotiate
with tow truck companies to allow the vehicle to remain
in a ‘‘private parking area.’’ Examination of the sur-
rounding paragraphs further reinforces this reading, as
paragraph 8 prohibits tow truck operators from releas-
ing towed vehicles to their owners without first
obtaining permission from the East Haven Police
Department. In fact, every rule is directed at a tow truck
company or its operators;21 eighteen out of the twenty-
one paragraphs expressly provide a directive to ‘‘tow
compan[ies].’’ The other three, which include para-
graphs 6 and 7, are also clearly directed at tow compa-
nies. It would defy common sense to bury a rule that
imposes a ministerial obligation on police officers to
tow the vehicles of drivers who have committed motor
vehicle infractions in the middle of a set of regulations
directed at tow companies. Indeed, the plaintiff’s
expert, Peter Fearon, acknowledged that the tow rules
are directed at tow truck operators. Finally, the tow
rules are followed on the last page by a signature line
for the ‘‘Applicant’’ to attest that ‘‘I have read and under-
stand each of the above [rules] and will strictly adhere
to these Rules & Regulations.’’ ‘‘Applicant’’ clearly
refers to tow truck operators because there is no place
for a police officer to sign. Fearon himself conceded
that the signature line is intended for a representative
of ‘‘the tow company who wants to be on that tow list.’’
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 interpre-
tation 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 violation of the
motor vehicle laws had occurred, not just those circum-
stances 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
focused on here—the results would still be absurd and
unjust. That would mean, for example, that an officer
who pulls over a man speeding to the labor and delivery
ward with his pregnant wife would have no choice but
to have the vehicle towed if the man could not provide
his registration.’’25 Such a conclusion would violate the
principle of statutory construction against unworkable
and bizarre results. ‘‘Indeed, it is particularly indefensi-
ble to indulge in a presumption that achieves such a
bizarre and irrational result when, as in the present case,
an alternative interpretation . . . leads to a perfectly
reasonable and logical result.’’ State v. Courchesne, 296
Conn. 622, 710, 998 A.2d 1 (2010). If paragraph 7 com-
pletely eliminated police officers’ discretion in this
regard, it would clearly contradict the language in para-
graph 6 that ‘‘[o]fficers’ discretion will prevail regarding
vehicles that are to be towed,’’ rendering it unworkable
and superfluous. See American Promotional Events,
Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184
(2008) (‘‘[i]nterpreting a statute to render some of its
language superfluous violates cardinal principles of
statutory interpretation’’); State v. Anonymous, supra,
237 Conn. 515 (where two interpretations possible,
court will adopt one that renders rule workable).
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 clear 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 pre-
viously, 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 immu-
nity are to be strictly construed. . . . This rule of con-
struction stems from the basic principle that when a
statute is in derogation of common law or creates liabil-
ity 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 isola-
tion, 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 paragraph
works to completely deprive police officers of the dis-
cretion that they are normally afforded.
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 circum-
stances in this case. In fact, the plaintiff’s own expert,
Fearon, conceded that no state statute ‘‘says all unregis-
tered 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 depart-
ment’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 Charter, 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 Establish-
ments.’’ The memorandum states that ‘‘[a]ll establish-
ments 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 appli-
cable 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
drafter, Liquori, testified at trial that ‘‘[t]he purpose of
these [rules] was to let the tow companies know what
we expected of them if they wanted to work for the
town or work with the police department in regards
to the towing of vehicles.’’ The rules were drafted in
response to past issues that the police department had
experienced with tow truck operators.29
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 plain-
tiff’s injuries. As a result, the defendant is immune from
liability. The trial court improperly denied the defen-
dant’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.
1
Jeffrey Strand, a police officer, initially was named as a defendant in
this case, but the plaintiff withdrew the action as to him prior to trial. We
will refer in this opinion to the town of East Haven as the defendant and
to Strand by name.
2
The defendant, in its second claim, argued that the court erred in ‘‘refus-
ing to direct or set aside the verdict on the ground that [the] plaintiff had
not produced sufficient evidence that . . . Strand’s alleged negligence actu-
ally or proximately caused the plaintiff’s injuries.’’ The defendant, in its
third claim, appealed from the court’s alleged error in not setting aside the
jury’s verdict on account of its erroneous and prejudicial evidentiary rulings.
We need not reach the defendant’s second and third claims, because our
decision with respect to the first claim is dispositive of this case.
3
Despite the 911 caller’s description of the vehicle as a ‘‘big white . . .
work van,’’ Strand, while testifying, described the vehicle as a ‘‘large, white
box truck.’’ Pictures from the record reveal that the vehicle appears to
match Strand’s description best. A box truck is a utility truck with a box
type body; therefore, in order to avoid confusion, we will refer to Trnka’s
vehicle as a truck.
4
Trnka’s residence was located one-half mile from the McDonald’s.
5
Officer Robert Ranfone of the East Haven Police Department, working
an ‘‘extra duty job next door’’ to the McDonald’s that evening, joined Strand
and Conte at the scene. Ranfone allegedly knew Trnka for years and sug-
gested the solution that Strand and Conte drive Trnka and D’Aniello to their
respective homes.
6
Another East Haven officer, Sergeant Frank Montagna, radioed Strand
to point out the similarity in the description of the vehicle involved in the
hit-and-run to the vehicle Strand had earlier encountered at the McDonald’s.
7
Foster completed a case incident report and a Connecticut uniform
police accident report, the latter being required during a motor vehicle
accident investigation. Strand testified that he completed only a case incident
report because his response and investigation of the possible domestic
incident at the McDonald’s was not a motor vehicle stop.
8
Strand’s case incident report identified the vehicle as a 1989 Ford
‘‘cargo van.’’
9
See footnote 1 of this opinion.
10
General Statutes § 52-557n (a) (1) provides in relevant part: ‘‘Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties. . . .’’
Thus, the statute makes the defendant liable for the negligent acts or omis-
sions of its police officers acting within the scope of their employment or
official duties, as Strand was here. But see General Statutes § 52-557n (a)
(2) (‘‘[e]xcept as otherwise provided by law, a political subdivision of the
state shall not be liable for damages to person or property caused by . . .
[B] negligent acts or omissions which require the exercise of judgment or
discretion as an official function of the authority expressly or impliedly
granted by law’’).
11
On the issue of governmental immunity, the court posed the following
interrogatory to the jury: ‘‘Did the defendant prove by preponderance of
the evidence that the decision on whether to tow and/or impound Vladimir
Trnka’s vehicle was within the discretion of . . . Officer Strand?’’ The jury
answered ‘‘no’’ to this interrogatory.
12
The underlying grounds for both the defendant’s renewed motion for
a directed verdict and the motion to set aside the verdict were that ‘‘[t]he
verdict was against the evidence; [t]he verdict was against the law; and [t]he
court erred in various evidentiary rulings thus preventing the defendant
from having a fair trial.’’ In the defendant’s memorandum of law in support
of its posttrial motions, it argued ‘‘that the evidence could not permit the
jury to legally, logically, and reasonably conclude that liability existed here.’’
More specifically, the defendant argued that the ‘‘evidence before the jury
could not support a finding that there was a ministerial duty to tow Trnka’s
[truck] in this case.’’
13
The plaintiff also filed a cross appeal challenging the trial court’s ruling
on the collateral source reduction, but subsequently withdrew his appeal.
14
We note that the plaintiff has not alleged that any exception to govern-
mental immunity, such as the identifiable person-imminent harm exception,
applies here, and that this case concerns only whether Strand had a ministe-
rial duty to tow. See Edgerton v. Clinton, 311 Conn. 217, 230, 86 A.3d 437
(2014) (recognizing exception to discretionary act immunity that allows for
liability when ‘‘the circumstances make it apparent to the public officer that
his or her failure to act would be likely to subject an identifiable person
to imminent harm’’ [internal quotation marks omitted]). In the operative
complaint, the plaintiff alleged that Strand failed to tow Trnka’s truck as
mandated by the tow rules, which created a ministerial duty to tow such
that Strand was left with no discretion in the matter. If the plaintiff had
pleaded that Strand failed to arrest Trnka during the course of the possible
domestic violence investigation, the defendant would have been protected
by governmental immunity, as the failure to arrest would have been a discre-
tionary act and the identifiable person-imminent harm exception would not
have applied. See Shore v. Stonington, 187 Conn. 147, 153–54, 444 A.2d 1379
(1982) (although legally intoxicated driver was not arrested by police officer,
plaintiff lacked cause of action in negligence against officer and town for
failure to enforce motor vehicle laws governing reckless driving and driving
while under influence because there was no identifiable person likely subject
to imminent harm).
15
‘‘There is also authority for the proposition that where the duty of the
public official to act is not ministerial but instead involves the exercise of
discretion, the negligent failure to act will not subject the public official to
liability unless the duty to act is clear and unequivocal.’’ Shore v. Stonington,
187 Conn. 147, 153, 444 A.2d 1379 (1982). As the plaintiff based his case on
a breach of a clear ministerial duty, we limit our discussion to such.
16
We also briefly address the plaintiff’s argument that the ‘‘[t]estimony
of a municipal official . . . may provide an evidentiary basis from which
a jury could find the existence of a specific duty or administrative directive’’;
Wisiewski v. Darien, supra, 135 Conn. App. 374; and that the jury reasonably
relied on certain testimony at trial to conclude that the tow rules imposed
a ministerial duty on police officers to tow a particular vehicle. Specifically,
the plaintiff relies on the testimony of Sergeant Paul Liquori of the East
Haven Police Department, the author of the tow rules, who testified that
paragraph 7 of the tow rules made no reference to officer discretion. Liquori
also testified that whether the officer has discretion or not is ‘‘not in [para-
graph] 7,’’ but that ‘‘discretion prevails,’’ and that he ‘‘probably could have
written it better.’’ The plaintiff parses Liquori’s testimony when he argues
that Liquori stated that ‘‘the provision did not contain any reference to
officer discretion.’’ Also unavailing is the plaintiff’s reliance on the testimony
of Lieutenant David Emerman, ‘‘the police department’s person most knowl-
edgeable about the rules and procedures relating to a variety of police
policies.’’ Although Emerman testified that he would not ‘‘let uninsured or
unregistered drivers drive off,’’ he also stated that officers were ‘‘allowed
to let people . . . park vehicles. For example, if they had just pulled into
their driveway and the motor vehicle stop was conducted on police station
or other private property where the vehicle was off the roadway . . . then
officers could use discretion in towing that vehicle.’’ The plaintiff does not
reference the latter testimony in his brief to this court. Neither of the
witnesses’ testimony provides a foundation for the plaintiff’s conclusion
that, pursuant to the tow rules, ‘‘police had [an] obligation to tow vehicle[s]
that [are] unregistered and/or [have] misused plates.’’ In fact, Liquori
responded that the rules ‘‘were never intended for’’ individual police officers,
and the plaintiff’s expert, Peter Fearon, agreed that the tow rules were
‘‘clearly directed toward towing companies.’’ None of the plaintiff’s witnesses
testified that the tow rules imposed a ministerial obligation on East Haven
police officers to tow.
17
The plaintiff argues that the proper standard of review is abuse of
discretion. As previously noted, however, we interpret the defendant’s claim
on appeal as a challenge to the interpretation of the tow rules, and abuse
of discretion is not the standard of review applicable to such claims. See
Kelly v. New Haven, supra, 275 Conn. 607.
18
Because we conclude that the rule at issue is not ambiguous, we do
not conduct a public policy analysis here, as there is no need to turn to
extratextual evidence to assist in our interpretation. But see Carmel Hollow
Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 137, 848 A.2d 451
(2004) (public policy underlying statutory scheme consistent with statutory
interpretation analysis conclusion that statute was unambiguous). Even if
it were necessary for us to interpret the tow rules in light of public policy,
however, those considerations strongly militate against the plaintiff’s asser-
tion that the interpretation of the tow rules was properly left to the jury.
A police officer’s discretionary decisions should not be subject to challenge
by a jury with the benefit of hindsight, and allowing a jury to decide on a
case-by-case basis whether a policy imputes a ministerial duty would lead
to inconsistent results. Here, that was precisely what the trial court permitted
when it allowed the jury to determine the issue of whether the tow rules
imposed a ministerial duty on police to tow. The plaintiff also argues that
public policy is served by interpreting the tow rules as creating a clear
ministerial duty to tow since requiring such a rule promotes the safe opera-
tion of vehicles on the roads. The plaintiff claims that general public safety
considerations require the towing of motor vehicles that are unregistered
or have misused plates, and makes the novel argument that the operation
of a noncompliant vehicle is somehow more dangerous than a compliant
vehicle, which can ‘‘resume a safe and lawful operation.’’ We are not per-
suaded. This argument defies logic, as both noncompliant and compliant
vehicles are equally likely to endanger public safety. Strand stopped the
vehicle on the basis of a domestic violence investigation and, thus, was not
investigating whether the driver or owner of the motor vehicle was in full
compliance with motor vehicle laws. Paramount to an officer’s discretion
is the ability to determine how to pursue an investigation, and we will not
undermine that discretion by second-guessing Strand’s assessment here.
Public policy considerations would not justify reading the tow rules to
impose on police officers a clear ministerial obligation to tow. Our courts
have long recognized that it is essential to allow police officers to ‘‘exercise
judgment and discretion in their official functions, unhampered by fear of
second-guessing and retaliatory lawsuits . . . .’’ (Internal quotation marks
omitted.) Doe v. Peterson, 279 Conn. 607, 615, 903 A.2d 191 (2006); see also
Coley v. Hartford, supra, 312 Conn. 172.
19
The plaintiff argues that Strand violated this provision when he ‘‘[f]aile[d]
to tow the Chevy truck bearing a license plate registered to a 1989 Ford.’’
20
See also Coley v. Hartford, supra, 312 Conn. 169 (‘‘[t]he mere fact that
a statute uses the word shall in prescribing the function of a government
entity or officer should not be assumed to render the function necessarily
obligatory in the sense of removing the discretionary nature of the function’’
[internal quotation marks omitted]); Mills v. Solution, LLC, supra, 138 Conn.
App. 51 (‘‘[w]e disagree with the plaintiff that the word ‘shall’ is sufficient
to convert what is otherwise a discretionary act into a ministerial duty
where the text of the statute leaves to the discretion of the police official
how to perform the function and whether to perform the function at all’’).
21
For example, paragraph 4 of the tow rules mandates that all ‘‘tow
companies will tow police vehicles on a rotation basis with no charge to
the Town of East Haven’’; paragraph 12 mandates that tow companies ‘‘agree
that local residents will only be charged a $70.00 fee for towing’’; and
paragraph 16 requires that ‘‘the tow company shall be responsible for the
preservation, condition, and safety of all vehicles towed and its contents
therein.’’
22
A violation under Connecticut law is any offense for which the only
sentence authorized is a fine and which is not expressly deemed an infrac-
tion. General Statutes § 53a-27.
23
See General Statutes § 14-301.
24
See General Statutes § 14-302.
25
The plaintiff makes the unavailing counterargument that paragraph 7
of the tow rules mandates only that the motor vehicle violations for which
a vehicle must be towed include ‘‘unregistered and misuse of plates,’’ and
that to consider any other violation is ‘‘not before the court.’’ We disagree,
as paragraph 7 states plainly that ‘‘[a]ll motor vehicle violations are to be
towed to include unregistered and misuse of plates.’’ (Emphasis added.)
Unregistered vehicles and those with misused plates are a subset of ‘‘all’’
motor vehicle violations that paragraph 7 contemplates.
26
None of the state motor vehicle statutes that Trnka eventually was
charged with violating required that his vehicle be towed. See General
Statutes §§ 14-224, 14-236, 14-147, 14-12a, and 14-213b. A review of the
Connecticut statutes regarding motor vehicles reflects that officer discretion
is to be preserved, under most circumstances, in determining whether to
tow or impound a vehicle. See, e.g., General Statutes § 14-12h (if police
officer sees motor vehicle, either parked or operated on public highway,
with suspended license plate displayed, he ‘‘may seize and impound the
vehicle’’ [emphasis added]). There are few statutes in the title fourteen of
the General Statutes pertaining to motor vehicles that use mandatory lan-
guage, and none apply here.
27
In its memorandum of decision, the trial court cited only the fact that
the tow rules were ‘‘issued by Chief of Police Leonard Gallo . . . and there-
fore known to [the East Haven Police Department]’’ to support its conclusion
that the rules are binding on police officers. Simply because police officers
may be aware of a set of rules not intended for them does not make those
rules binding and eliminate police officer discretion.
28
Fearon also agreed with the statement at trial that ‘‘what Chief Gallo
and Sergeant Liquori are saying in paragraph 6 is a reminder to the tow
truck operators and companies that it’s the discretion of the individual
police officers that will prevail regarding what vehicles are to be towed and
under what circumstances . . . .’’
29
Liquori testified that tow truck operators were arriving simultaneously
at calls, fighting, and causing damage to towed vehicles prior to the imple-
mentation of the tow rules.