|
|
Connecticut
Superior Court
UNPUBLISHED, 2003 WL 21214137
May 8, 2003
For an earlier opinion in this lawsuit, go to Malloy v. Colchester.
Summary
of Opinion
Plaintiff Malloy was
seriously injured when his automobile collided with a horse on the public
highway. He sued the Town of
Colchester, its zoning enforcement officer, its animal control officer and a
selectperson for damages on the theory they had notice by prior animal escapes
from this same property of the risks involved to motorists and took no
protective action.
A jury awarded over four
million dollars in damages. In this
trial court opinion, the court grants motions for directed verdicts in favor of
all of the defendants. Under
Connecticut law, none of the defendants had a duty to prevent the horse from
going onto the highway. Thus, the
jury’s verdict is wiped out.
Text
of Opinion
By complaint dated August
4, 2000, the plaintiff, James Michael Malloy
("Malloy"), brought this personal injury action against the
defendants, the Town of Colchester ("Colchester")
[FN1] and Alicia Lathrop ("Lathrop"), its Zoning Enforcement
Officer, Donald Favry ("Favry"), its Animal Control Officer, and Jenny
Contois ("Contois"), the First Selectperson, for damages allegedly
sustained as the result of the defendants' negligence in failing to prevent a
Colchester resident's horse from roaming onto Chestnut Hill Road, where it
collided with plaintiff's vehicle. The case was tried to a jury, the evidence
commencing on February 5, 2003, and concluding on February 18, 2003. By verdict
rendered on February 27, 2003, the jury found against the defendants Favry and
Contois and awarded the plaintiff economic damages in the amount of $1,757,847
and noneconomic damages in the amount of $2,417,583. In apportioning liability,
the jury found Favry at fault to the extent of 13%, Contois at fault to the
extent of 13%, the owner of the horse at fault to the extent of 38% and the
plaintiff at fault to the extent of 36%.
FN1.
The claim against Colchester is solely for indemnification, pursuant to Section
7‑465 of the Connecticut General Statutes.
The defendants timely moved
for a directed verdict as to all defendants. The court directed the verdict as
to Lathrop and reserved decision as to the remaining defendants. By motion dated
March 5, 2003, the plaintiff moved to set aside the directed verdict in favor of
Lathrop. By motion dated March 7, 2003, the defendants moved for remittitur of
the economic damages awarded to the plaintiff. By motion and supplemental motion
dated March 7, 2003, and March 10, 2003, respectively, the defendants moved to
set aside the verdicts rendered against Favry, Contois and the Town of
Colchester. A hearing on these motions was held on April 17, 2003.
Evidence Presented at Trial
Malloy was driving his
vehicle on Chestnut Hill Road in Colchester at approximately 1:15 a.m. on the
morning of October 24, 1998, when a dark‑colored horse walked into the
roadway and collided with Malloy's vehicle. Malloy, who was seventeen years of
age at the time, suffered serious and permanent injuries as the result of the
accident.
The owner of the subject
horse, John Ancona ("Ancona"), was not a defendant in this lawsuit
although he was involved for purposes of apportionment of liability. His
neighbor, Irene McMorrow ("McMorrow"), testified that Ancona's animals
often roamed off his property for years prior to the accident in October of
1998. In addition to dogs, Ancona's horses, pigs and sheep strayed onto adjacent
properties. She made various complaints to Favry, Colchester's Animal Control
Officer. She also contacted Contois, Colchester's First Selectperson, in July of
1995, because she felt her complaints to Favry were not producing any results.
Contois suggested she contact Lathrop, Colchester's Zoning Enforcement Officer.
According to McMorrow, Lathrop responded that there was nothing she could do
with respect to roaming livestock.
Plaintiff's Motion to Set
Aside Directed Verdict as to Lathrop
The plaintiff moves to set
aside the verdict the court directed in favor of Lathrop on February 19, 2003.
The standard for directing a verdict is well settled. "A trial court should
direct a verdict for a defendant if, viewing the evidence in the light most
favorable to the plaintiff, a jury could not reasonably and legally reach any
other conclusion than that the defendant is entitled to prevail ... In assessing
the evidence, the court should weigh both direct and circumstantial evidence,
including all reasonable inferences to be drawn therefrom." (Citations
omitted; internal quotation marks omitted.) Schimmelpfennig v. Cutler, 65 Conn.App. 388, 391‑92, 783 A.2d
1033 (2001); Harewood v. Carter, 63
Conn.App. 199, 202‑03, 772 A.2d 764 (2001).
In support of his motion,
plaintiff argues that Lathrop failed to perform any meaningful investigations
after complaints had been made by McMorrow regarding the roaming animals and
that she neglected to exercise the duties of her office. Lathrop was sued solely
in her capacity as Colchester's Zoning Enforcement Officer for her alleged
failure to enforce the Town's zoning regulations.
Despite plaintiff's
argument to the contrary, there are no provisions in the subject zoning
regulations which require the owners or keepers of livestock to fence the
animals within the confines of their properties. The only regulations pertaining
to the keeping of horses in Colchester require that the subject property be a
minimum of 2.75 acres and that any shelters for the animals be set back a
minimum of 100 feet from any property line. It is undisputed that Ancona's
property met these requirements.
Plaintiff claims that the
fencing requirements set forth under the "Site Plan Approval" and
"Site Plan Contents" sections of the regulations and the general
statement in Section 4A.2.2 of the regulations that the care of livestock
"shall conform to Federal and State Statutes"
[FN2] provide the basis for Lathrop's duty to take action in connection
with Ancona's roaming livestock. The court is not persuaded. The site plan
provisions are inapplicable to the Ancona property as no site plan was required
and Lathrop is not required to enforce the Department of Agriculture statutes
relative to the care of livestock.
FN2.
It should be noted that Section 4A.2.2 does not state that such federal and
state statutes are incorporated in and made a part of the Town's zoning
regulations.
Accordingly, the court
denies plaintiff's motion to set aside the directed verdict in favor of Lathrop.
Defendants' Motion To Set
Aside Verdict
The defendants moved for a
directed verdict as to all defendants. The court directed a verdict in favor of
Lathrop on February 19, 2003 and reserved decision as to the remaining
defendants. By motion dated March 7, 2003, Favry, Contois and Colchester moved
the court to set aside the jury verdict rendered on February 27, 2003.
"The trial court
possesses inherent power to set aside a jury verdict which, in the court's
opinion, is against the law or the evidence." (Internal quotation marks
omitted.) American National Fire Insurance
Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992); Palomba v. Gray, 208 Conn. 21, 23‑ 24, 543 A.2d 1331 (1988);
Tolbert v. Connecticut General Life Insurance Co., 58 Conn.App. 694, 698,
755 A.2d 293 (2000). In ruling on the defendants' motion with respect to their
claim that they owe no duty to the plaintiff, this court is required to make a
legal rather than a factual determination. "The issue of whether a
defendant owes a duty of care ... is one of law." (Internal quotation marks
omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 258, 815 A.2d 263 (2003);
Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d
1107 (1997).
A legal duty may arise by
common‑law, statute or contract.
State v. Miranda, 41 Conn.App. 333, 340, 675 A.2d 925 (1996),
rev'd., 245 Conn. 209 (1998). "Only if such a duty is found to exist
does the trier of fact then determine whether the defendant violated that duty
in the particular situation at hand."
Shore v.. Stonington, 187 Conn. 147, 151‑52, 444 A.2d 1379 (1982). The
plaintiff has alleged common‑law and statutory negligence claims against
Favry and Contois.
Statutory Duties as to
Favry
The operative complaint,
plaintiff's amended complaint dated February 5, 2003, alleges that Favry's duty
to the plaintiff arises by virtue of Sections 22‑ 329a, 22‑331,
22‑332 and 22‑368 of the Connecticut General Statutes. Section
22‑368 was repealed in 2000, but was in effect at the time of the subject
incident.
With respect to Sections
22‑329a, 22‑331 and 22‑332, all are contained in Chapter 435
entitled "Dogs and Other Companion Animals. Kennels and Pet Shops."
The term "animal" is defined in Section 22‑327 as "any
brute creature, including, but not limited to, dogs, cats, monkeys, guinea pigs,
hamsters, rabbits, birds and reptiles." The duties of a municipal animal
control officer, as stated in Section 22‑331, are "to administer and
enforce the laws relating to dogs or other domestic animals."
Section 22‑329a,
entitled "Seizure of neglected or cruelly treated animals," provides
that a municipal animal control officer "may lawfully take charge of any
animal found neglected or cruelly treated, in violation of Sections 22‑366
[cropping of dog's ears], 22‑415 [inhumane transportation of equines] and
53‑247 to 53‑252, inclusive [criminal offenses against animals]
..." The only provision in the criminal offenses statutes that could
conceivably apply is Section 53‑247, entitled "Cruelty to
animals." [FN4] The testimony
at trial was uncontested that Shadow, Ancona's horse that escaped from his
enclosure, was regularly seen by a veterinarian, was properly groomed and was
regularly fed. Shadow was not a neglected or cruelly treated animal as defined
in any of these statutory provisions.
FN4.
Sec. 53‑247. Cruelty to animals. Fighting animals. Intentional killing of
police animal.
(a)
Any person who overdrives, drives when overloaded, overworks, tortures, deprives
of necessary sustenance, mutilates or cruelly beats or kills or unjustifiably
injures any animal, or who, having impounded or confined any animal, fails to
give such animal proper care or neglects to cage or restrain any such animal
from doing injury to itself or to another animal or fails to supply any such
animal with wholesome air, food and water, or unjustifiably administers any
poisonous or noxious drug or substance to any domestic animal or unjustifiably
exposes any such drug or substance, with intent that the same shall be taken by
an animal, or causes it to be done, or, having charge or custody of any animal,
inflicts cruelty upon it or fails to provide it with proper food, drink or
protection from the weather or abandons it or carries it or causes it to be
carried in a cruel manner, or fights with or baits, harasses or worries any
animal for the purpose of making it perform for amusement, diversion or
exhibition, shall be fined not more than one thousand dollars or imprisoned not
more than one year or both.
(b)
Any person who maliciously and intentionally maims, mutilates, tortures, wounds
or kills an animal shall be fined not more than five thousand dollars or
imprisoned not more than five years or both ...
[Subsections
(c) and (d) pertain to fighting animals and police animals and are clearly not
relevant to the facts of this case.]
Section 22‑332, [FN5]
entitled "Impoundment and disposition of roaming, injured or mistreated
animals," empowers a municipal animal control officer to take into custody
any dog found roaming or injured on
any highway, or neglected, abandoned or cruelly treated. Although references to
"other animal [s]" is found sporadically in this section, the chapter
definition of "animal" does not include livestock. Plaintiff argues
that the statement that the officer "shall be responsible for the
enforcement of this chapter and shall make diligent search and inquiry for any
violation of any of its provisions" somehow imposes a mandatory (i.e.ministerial) duty on Favry to investigate McMorrow's
complaints about Ancona's roaming horses, sheep and pigs. The fact remains that
the provisions cited by the plaintiff pertain to dogs and "animals" as
defined in Section 22‑327, which do not include livestock, and that
Section 22‑329a, permitting the seizure of neglected or cruelly treated
animals as defined in certain designated statutory provisions, is not applicable
to the facts of this case.
FN5.
Sec. 22‑332. Impoundment and disposition of roaming, injured or mistreated
animals.
(a)
The Chief Animal Control Officer, any animal control officer or any municipal
animal control officer shall be responsible for the enforcement of this chapter
and shall make diligent search and inquiry for any violation of any of its
provisions. Any such officer may take into custody (1) any dog found roaming in
violation of the provisions of Section 22‑ 364, (2) any dog not having a
tag or plate on a collar about its neck or on a harness on its body as provided
by law or which is not confined or controlled in accordance with the provisions
of any order or regulation relating to rabies issued by the commissioner in
accordance with the provisions of this chapter, or (3) any dog found injured on
any highway, neglected, abandoned or cruelly treated. The officer shall impound
such dog at the pound serving the town where the dog is taken unless, in the
opinion of a licensed veterinarian, the dog is so injured or diseased that it
should be destroyed immediately, in which case the municipal animal control
officer of such town may cause the dog to be mercifully killed by a licensed
veterinarian or disposed of as the State Veterinarian may direct. The municipal
animal control officer shall immediately notify the owner or keeper of any dog
so taken, if known, of its impoundment. Such officer shall immediately notify
the owner or keeper of any other animal which is taken into custody, if such
owner or keeper is known. If the owner or keeper of any such dog or other animal
is unknown, the officer shall immediately tag or employ such other suitable
means of identification of the dog or other animal as may be approved by the
Chief Animal Control Officer and shall promptly cause a description of such dog
or other animal to be published once in the lost and found column of a newspaper
having a circulation in such town.
The language contained in
these cited statutes is clear; these provisions simply do not apply to roaming
horses. That, however, is only the beginning of the analysis. As our Supreme
Court recently held in State v. Courchesne,
262 Conn. 537, 577, 816 A.2d 562 (2003), the process of statutory interpretation
"begin[s] with a searching examination of the language of the statute,
because that is the most important factor to be considered. In doing so, we
attempt to determine its range of plausible meanings and, if possible, narrow
that range to those that appear most plausible. We do not, however, end with the
language. We recognize, further, that the purpose or purposes of the
legislation, and the context of the language, broadly understood, are directly
relevant to the meaning of the language of the statute."
It is important to note
that Chapter 435 is primarily addressed to dogs, cats and other companion
animals. There are provisions concerning their treatment, licensing, kenneling,
vaccinations and damage done by them to persons, property and other domestic
animals. There is a particular statute within this Chapter, Section
22‑362, imposing penalties upon "any person owning or having the
custody of any dog which habitually goes out on any highway and ... interferes
with any motor vehicle so using such highway." There is no comparable
provision in this Chapter for horses roaming upon the highway.
There was, however, a
provision in effect in October of 1998, the time of the accident, which was
subsequently repealed in 2000. Section 22‑368, contained in Chapter 436,
entitled "Pounds," provided as follows:
Any
person may impound horses, neat cattle, asses, mules, sheep, goats, swine or
geese found doing damage on his land enclosed by a sufficient fence or on land
where a fence is not required by law; and
any person may and the selectmen of any town shall, impound horses, asses,
mules, neat cattle, or sheep, swine, goats or geese found at large on any highway or commons, or any such animal found
abandoned or straying at large. Any person who impounds any such animal or
goose shall, within twenty‑four hours, give notice thereof to the owner,
if known, and shall forfeit to such owner twenty cents, for each such animal or
goose impounded, for each day that he neglects to give such notice; and shall
pay all necessary expense to the poundkeeper for providing food and water for
any such animal or goose until the owner has paid such poundage and such
expense.
(Emphasis added.) To
impound a horse, the selectmen or any person of the town must find the animal at large.
There is no authority provided in that statute to impound a horse that
was at large but back on the property of the owner or keeper when located by
a selectman or town person. The uncontradicted testimony at trial indicated that
neither Favry nor Contois came upon Ancona's horses while the animals were in
the process of roaming.
The court concludes that
the language of the statutes cited by plaintiff clearly excludes the situation
of the present case, i.e., a well cared for horse which periodically escaped the
confines of his enclosure to roam over adjacent properties. In discussing
legislative intent, "we look to the words of the statute itself, 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." (Citations omitted; internal quotation marks omitted.)
Cotto v. United Technologies Corp., 251 Conn. 1, 6, 738 A.2d 623 (1999). In
context with the other provisions in the Chapter and considering the times in
which these statutes were enacted, this conclusion remains the same. Connecticut
was a state of farmers. Statutes were enacted to protect the livestock from
roaming dogs, not to protect people from roaming livestock. There are no
statutory requirements to "fence in" the animals, as various other
states have enacted. See, Hine v. Wooding, 37 Conn. 123 (1870). Legislative history, although
minimal, is confirmatory. Thus, the purpose or purposes of the legislation cited
by plaintiff does not include protection of motorists from roaming livestock.
[FN6]
FN6.
In fact, there was a criminal statute which provided that "[e]very person
entitled to the custody of any horse, ... who shall permit the same to be at
large upon any highway or common, without a keeper, shall be fined ..."
General Statutes, Section 6439. The legislature repealed that statute.
For these reasons, no
statutory duty to the plaintiff can be found with respect to Favry.
Statutory Duties as to
Contois
The plaintiff alleges that
Contois' duty to him arises by virtue of Sections
22‑329a, 22‑331, 22‑332, 22‑344 and 22‑368 of the
Connecticut General Statutes. With the exception of Section 22‑344, these
are the same provisions discussed in connection with allegations against Favry.
The same reasoning and conclusions apply to Contois.
With respect to Section
22‑344, that provision is also contained in Chapter 435 and is entitled
"Licensing of commercial kennel, pet shop, training facility or grooming
facility. Fees. Inspection. Conformance to zoning regulations." Such
facilities cannot be maintained unless the zoning enforcement officer of the
subject town certifies that they conform to the municipal zoning regulations.
Plaintiff claims that Contois, as the First Selectperson, in failing to
supervise Lathrop in connection with this statutory provision, breached her duty
to the plaintiff. Again, this statute does not address a situation involving the
individual owner of a horse or any zoning regulations pertaining to the roaming
of horses.
No statutory duty to the
plaintiff can be found with respect to Contois.
Common‑law Duties as
to Favry
A duty does not exist in a
vacuum.
Duty is a legal conclusion
about relationships between individuals, made after the fact, and imperative to
a negligence cause of action. The nature of the duty, and the specific persons
to whom it is owed, are determined by the circumstances surrounding the conduct
of the individual
The
ultimate test of the existence of the duty to use care is found in the
foreseeability that harm may result if it is not exercised ... A simple
conclusion that the harm to the plaintiff was foreseeable, however, cannot by
itself mandate a determination that a legal duty exists ... The problem for the
law is to limit the legal consequences of wrongs to a controllable degree ...
The final step in the duty inquiry, then, is to make a determination of the
fundamental policy of the law, as to whether the defendant's responsibility
should extend to such results.
Soares v. George A. Tomasso Construction Corp., 66 Conn.App. 466, 471, 784 A.2d 1041 (2001) (citations omitted;
internal quotation marks omitted).
The common‑law
negligence claims against Favry all arise out of his alleged failure to
investigate McMorrow's complaints about Ancona's roaming livestock and his
failure to take action to prevent Ancona's horse from wandering into the
roadway. [FN7]
FN7.
Plaintiff's amended complaint dated February 5, 2003, reads as follows: Said
occurrence was due to the negligence and carelessness of the defendant Favry in
one or more of the following respects:
IN
THAT he failed to take charge of, seize, control or take possession of the
aforesaid horse which had been repeatedly neglected and allowed to roam, and
failed to take any action to prevent said occurrence;
IN
THAT he failed to notify the owner or keeper of the horse to attend to and/or
control the horse to prevent the repeated instances of roaming at large and on
the public highway, posing a danger to motorists including the claimant herein;
IN
THAT he failed to search and inquire into repeated instances wherein the horse
was allowed to roam to prevent the complained of occurrence;
IN
THAT he failed to issue an order or take other action to correct the
aforementioned conditions;
IN
THAT he failed to remedy said conditions when same were reasonably necessary
under the circumstances;
IN
THAT he failed to make a reasonable and proper inspection of the aforementioned
conditions;
IN
THAT he failed to warn of the aforementioned conditions;
IN
THAT he caused or allowed and permitted the aforementioned conditions to
continue, when he knew that the horse was unattended to, neglected, and had
repeatedly roamed on the said roadway before the complained of occurrence
thereby creating a grave risk of danger to motorists thereupon including the
plaintiff herein; and
IN
THAT he failed to act in a timely manner to remedy the aforesaid dangerous
conditions.
Even though Favry may have
been aware that Ancona's horses, sheep and pigs were roaming, by what authority
could he seize or take possession of Ancona's livestock when the animals had
returned to their owner's property? Plaintiff points to none and the court has
been unable to find any such authority. Favry was sued in his capacity as the
animal control officer, and yet none of the statutes cited by the plaintiff give
Favry the right to do what plaintiff claims under common‑law principles he
should have done. No case law is cited to indicate a common‑law duty
exists for such an officer to illegally enter upon a resident's property and
take custody of that resident's livestock simply because he has notice that
those animals had been roaming.
The court concludes there
is no common‑law duty owed by Favry to the plaintiff. [FN8]
FN8.
Exhibit TT demonstrates that contrary to plaintiff's claim, on sixteen occasions
Favry responded to complaints about roaming Ancona animals.
Common‑law Duties as
to Contois
The common‑law
negligence claims against Contois arise out of her alleged failure to supervise
Favry and Lathrop to make certain they were performing their duties relative to
the complaints concerning Ancona's roaming livestock.
[FN9]
FN9.
Plaintiff's amended complaint dated February 5, 2003, reads as follows:
Said
occurrence was due to the negligence and carelessness of the defendant Jenny
Contois in one or more of the following respects:
IN
THAT she failed to supervise the animal control officer and require such officer
to take charge of, seize, control or take possession of the aforesaid horse,
which had been repeatedly neglected and allowed to roam, and/or failed to
require the officer to take any action to prevent said occurrence;
IN
THAT she failed to supervise the zoning control enforcement officer and require
such officer to enforce the zoning regulations, or ensure that the premises
where the Ancona horse was kept be in conformity with the town's zoning
regulations, or to issue a cease and desist order to prevent the horse from
being kept on the premises when same was in violation and not authorized by
statute;
IN
THAT she failed to warn of the aforementioned conditions, or require that same
be remedied when the same were reasonably necessary under the circumstances;
IN
THAT she failed to make a reasonable and proper inspection of the aforementioned
conditions.
Because Lathrop and Favry
had no statutory or common‑law duty to plaintiff, Contois could not have
been negligent in failing to supervise them with respect to their alleged
failures to carry out their municipal responsibilities in connection with
roaming livestock.
The court concludes there
is no common‑law duty owed by Contois to the plaintiff.
Governmental Immunity
Even if this court were to
conclude that the requisite duty does exist with respect to Favry and Contois,
the doctrine of governmental immunity precludes recovery by the plaintiff under
the circumstances of this case.
"Although
municipalities have no sovereign immunity; see
Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596 (1963); it is well settled
that they are not liable for negligence under the doctrine of governmental
immunity." (Citations omitted.)
Caruso v. Milford, 75 Conn.App. 95, 99, 815 A.2d 167 (2003). Municipal
employees, however, historically were personally liable for their own negligent
actions. Evon v. Andrews, 211 Conn.
501, 505, 559 A.2d 1131 (1989). "The doctrine of governmental immunity has
provided some exceptions to the general rule of tort liability for municipal
employees. [A] municipal employee ... has a qualified immunity in the
performance of a governmental duty, but he may be liable if he misperforms a
ministerial act, as opposed to a discretionary act ... The word 'ministerial'
refers to a duty which is to be performed in a prescribed manner without the
exercise of judgment or discretion ... [If the duty owed is discretionary in
nature, a plaintiff must prove he is] entitled to recover within one of the
exceptions to a municipal employee's qualified immunity for discretionary acts.
Our cases recognize three such exceptions: first, where 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 ... second, where a statute
specifically provides for a cause of action against a municipality or municipal
officer for failure to enforce certain laws ... and third, where the alleged
acts involve malice, wantonness or intent to injure, rather than
negligence." (Citations omitted; internal quotation marks omitted.)
Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994).
The plaintiff does not
dispute that the duties of the zoning enforcement officer, animal control
officer and first selectwoman in this case were governmental duties. Enforcement
of a town's zoning regulations and animal control and protection statutes enures
to the benefit of the public at large. "If the duty which the official
authority imposes upon an officer is a duty to the public, a failure to perform
it, or an inadequate or erroneous performance, must be a public and not an
individual injury, and must be redressed, if at all in some form of public
prosecution. On the other hand, if the duty is a duty to the individual, then a
neglect to perform it or to perform it properly, is an individual wrong, and may
support an individual action for damages." (Citations omitted; internal
quotation marks omitted.) Shore v.
Stonington, 187 Conn. 147, 152, 444 A.2d 1379 (1982).
Because the defendants'
duties were public in nature and the defendants owed no specific duty to the
plaintiff, the plaintiff must fail within one of the enumerated exceptions in
order to prevail against theses defendants. Contrary to plaintiff's argument,
none of the duties alleged to have been breached are ministerial in nature
except for Section 22‑368, which requires a selectman to impound a horse
found at large on any highway or found straying at large; the remainder of all
common‑law and statutory duties involve the exercise of discretion as to
what action should or should not be taken. Contois' duties of supervision as to
Favry and Lathrop are classic discretionary actions. With respect to Section
22‑368, no evidence whatsoever was presented to indicate either Favry or
Contois found Ancona's horse roaming at large.
With respect to Favry,
plaintiff concedes the language in most of the cited statutes in Chapter 435
provides for discretion on Favry's part. Plaintiff argues, however, that the
language in Section 22‑332, which provides that the animal control officer
"shall be responsible for the
enforcement of this chapter and shall
make diligent search and inquiry for any violation of any of its
provisions" is a mandatory directive that becomes ministerial if such
officer does not undertake any investigation whatsoever after complaints have
been made. The fact is, however, that there is no case law that supports the
proposition that a discretionary act becomes a ministerial one if the municipal
employee fails to exercise his duty rather than exercising his duty in a
negligent manner. Further, if, after "search and inquiry," Favry found
Ancona's animals to be neglected or cruelly treated, plaintiff concedes it would
be within Favry's discretion whether or not to take the animal into custody.
For all of these reasons,
the court concludes that the common‑law and statutory duties of Favry and
Contois were discretionary in nature.
Because the duties are
discretionary, the only exception to the public duty doctrine which could
conceivably apply under these circumstances is whether the situation was such
that it would be apparent to the municipal officer that failure to act would be
likely to subject an identifiable person to imminent harm. Shore, supra, 153. To qualify for this exception, the fact finder
must determine that the plaintiff was an identifiable person subject to imminent
harm or a member of a "narrowly defined identified class of foreseeable
victims." Purzycki v. Fairfield,
244 Conn. 101, 108, 708 A.2d 937 (1998). The issue, therefore, is whether Favry
or Contois, by failing to investigate complaints made relative to Ancona's
roaming livestock, subjected Malloy to an imminent vehicular collision with one
of Ancona's horses on Chestnut Hill Road in the early morning hours of October
24, 1998.
There was no evidence that
either Favry or Contois knew of Malloy or the fact that he was driving on
Chestnut Hill Road on the day of the accident. Since he was not an
"identifiable person," he would have to be a member of a narrowly
defined identified class of foreseeable victims in order to fit within the
stated exception. Plaintiff argues that he belongs to a narrow class of those
persons driving on Chestnut Hill Road in the vicinity of the Ancona property
while the Ancona horse was loose.
To date, the only classes
of foreseeable victims recognized by our Supreme Court have been schoolchildren
who are statutorily compelled to attend school during certain hours on school
days. Purzycki, supra, 109;
Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (l994);
Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900 (2000). Schoolchildren
have received this designation, in large part, because of the policy
considerations our society places on keeping children safe at school and because
"school children attending public schools during school hours are intended
to be the beneficiaries of certain duties of care." Burns, supra, 648. Even this duty of care is not unlimited. See
Doe v. Board of Education, 76 Conn.App. 296 (2003). In
Doe the court emphasized that the risk had to be limited both in geography
and time for the exception to apply. Id.,
303.
"In delineating the
scope of a foreseeable class of victims exception to governmental immunity, our
courts have considered numerous criteria, including the imminency of any
potential harm, the likelihood that harm will result from a failure to act with
reasonable care, and the identifiability of the particular victim."
Burns, supra, 647. Courts have "also considered whether the legislature
specifically designated an identifiable subclass as the intended beneficiaries
of certain acts; ... whether the relationship was of a voluntary nature; ... the
seriousness of the injury threatened; ... the duration of the threat of injury;
... and whether the persons at risk had the opportunity to protect themselves
from harm." (Citations omitted.) Id.,
647.
Outside the context of
schoolchildren required by law to be at school, our Supreme Court has been
unwilling to extend the "identifiable class of victims" exception to
government immunity. [FN10] In Evon v.
Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), the plaintiffs' decedents died
in a fire in a multi‑ family dwelling. The plaintiffs sued the City of
Waterbury and various municipal officials for negligence in failing to enforce
various statutes and codes concerning the maintenance of rental dwellings. The
trial court struck this count of the complaint and the Supreme Court affirmed
that decision.
FN10.
The case of Sestito v. Groton, 178
Conn. 520, 528, 423 A.2d 165 (1979), is distinguishable. In Sestito, a police officer drove by a public disturbance involving a
group of approximately seven men. Some were drinking beer and the officer
believed one member of the group might be armed and a robbery suspect. The
officer, while the group was gathered, heard loud arguing and saw shoving, but
did not stop. Gunshots were fired and one of the members of the group was
killed. Our Supreme Court concluded the public duty doctrine enunciated in
Shore v. Stonington, supra, did not apply because this presented a situation
in which the officer owed "a specific duty to the individual claiming
injury." Sestito was identified as a member of the group (class) of persons
present where the melee was taking place. See
Doe v. Board of Education, supra.
The plaintiffs in
Evon maintained that even though the duties owed their decedents were
discretionary, the decedents were "a group that was discrete, readily
identifiable, and subject to imminent harm" and claimed that the
identifiable victim at imminent harm exception to governmental immunity applied
to save their negligence claim. The Supreme Court disagreed.
The
risk of fire implicates a wide range of factors that can occur, if at all, at
some unspecified time in the future. The
class of possible victims of an unspecified fire that may occur at some
unspecified time in the future is by no means a group of "identifiable
persons" within the meaning of
Shore v. Stonington, supra. Furthermore, the plaintiffs' decedents were not
subject to "imminent harm" ... the fire could have occurred at any
future time or not at all. We cannot accept the proposition that the plaintiffs'
decedents in this case were readily identifiable victims subject to imminent
harm.
Id., 508 (emphasis
added).
The facts in the present
case are more aligned with those presented in
Evon and Shore than in the
Burns and Purzycki school cases. The factors used to find the existence of a
narrowly defined class are not present in this case.
First, the plaintiff is not
readily "identifiable" as a potential victim; he was not identified at
all to the defendants prior to his accident. In contrast to schoolchildren who
are an easily identifiable, finite group of children at any one particular
school, the plaintiff is not a member of any such limited class. He is a member
of the general public, who voluntarily chose to use a particular road at a
particular time, and does not fit within a class any more narrow than that. Any
member of the public could have been traveling on Chestnut Hill Road at 1:15
a.m. on October 24, 1998. Similar to Evon,
"[t]he class of possible victims of an unspecified [motor vehicle accident]
that may occur at some unspecified time in the future is by no means a group of
'identifiable persons' ..." Evon,
supra, 508.
Second, the plaintiff was
not faced with imminent harm. As in Evon,
the accident involving the plaintiff could have occurred "at any future
time or not at all" and therefore cannot be considered imminent. The
concept of imminent harm has to be examined from the time of the alleged failure
to act. In this case, there was no alleged failure to act by either Favry or
Contois immediately before, or close in time to, the plaintiff's accident. The
evidence is undisputed that neither Favry nor Contois was informed that a horse
was loose in the early morning hours of October 24, 1998.
Third, the condition here,
i.e., a horse loose on the road, does not involve a "limited time
period" or "limited geographic area" as was found in the school
cases. Purzycki, supra, 110. In this
case, the dangerous condition created by Ancona's horse being loose was not
limited in time, because the risk of danger existed the entire time the horse
was loose. The horse could have been loose for minutes or hours, yet the risk
continues for whatever length of time the animal is outside of the corral and
roaming. This situation is in contrast to
Purzycki, where the students were unsupervised for a one‑half hour
period during the school day.
The condition here is not
limited in geographic scope because it is not possible to forecast the range
over which a loose animal will roam. This fact distinguishes this case from
Burns (danger limited to icy condition in "treacherous" area of
campus) and Purzycki (unsupervised hallway from lunchroom to recess area),
because the area in which Ancona's horse could have roamed is indeterminate.
For all of these reasons,
the court concludes that the plaintiff was not an identifiable person subject to
imminent harm. Accordingly, the identifiable victim exception to governmental
immunity is not applicable to this case and the jury verdict is set aside as to
all defendants.
Defendants' Motion for
Remittitur
The defendants move for
remittitur of the economic damages awarded to the plaintiff, claiming they are
contrary to the evidence presented to the jury at trial. Although the court is
setting aside the jury verdict and this motion is now moot, the court
nevertheless elects to address this issue for purposes of judicial economy in
the event of an appeal and reversal.
The jury awarded the
plaintiff $1,757,847 in economic damages. Dr. Crakes testified that plaintiff's
future economic loss from lost wages and future medical needs was $1,514,847.
Additionally, the jury had a summary of plaintiff's past medical expenses
totaling $179,161.88. The total of both figures is $1,694,008.88, which is
$63,838.12 less than the award of $1,757,847 At the time of the hearing on
post‑verdict motions, the parties agreed that the jury must not have
subtracted the $64,000 "Adjustment of capital fund for payout of interest,
quarterly" amount on Plaintiff's Exhibit 621D from the total award of
economic damages. Exhibit 621D is the summary of Dr. Crakes appraisal of the
plaintiff's economic losses. The jurors had copies of this demonstrative exhibit
to review while Dr. Crakes was testifying at trial but not during deliberation
because it was not a full exhibit. Although Dr. Crakes subtracted the $64,000
amount from his total of economic damages, the parties agreed that the jurors
did not, hence accounting for the $63,838.12 difference (the additional $161.88
would be accounted for by rounding off the $179,161.88 past medical expense
figure). The court finds, however, that the jury was not obligated to reduce the
total award by the $64,000 amount even though Dr. Crakes did in Plaintiff's
Exhibit 621D.
Furthermore, the court gave
the following charge to the jury concerning future medical expenses:
You
may find that James Malloy will require future physical therapy and medical
treatment as a result of the accident of October 24, 1998. It is proper for you
to award damages if you find that, within reasonable probability, he will need
such treatment in the future. You may find, for example that James Malloy will
require treatment, and that there has not been testimony regarding the specific
cost for the particular treatment. In that case, you may consider previous
treatment that he has received since the incident, his life expectancy, and the
cost of treatment he has already received.
The court concludes,
therefore, that the jury could have reached a figure for economic damages in
excess of the amount suggested by Dr. Crakes in accordance with this jury
charge.
Plaintiff's Motions:
Determination of Interest; Reallocation of Economic and
Non‑Economic Damages
The court declines to
address the issues of interest and reallocation because the jury verdict against
the defendants is being set aside and these motions are moot. Unlike the
previously discussed motion for remittitur, in the event of an appeal and
reversal, the calculation of interest and the reallocation of damages would be
simply mathematical in nature and easily determined.
Conclusion
The defendants owed no
statutory or common‑law duty to the plaintiff. Even if duties existed,
they were governmental duties and discretionary in nature. No exception to
governmental immunity applies under the circumstances of this case.
The plaintiff's motion to
set aside the directed verdict as to Lathrop is denied. The defendants' motion
to set aside the jury's verdict as to the defendants Colchester, Favry and
Contois is granted and the court enters judgment for the defendants.
Return to Top of This Page
Return to Horse Car Collisions Page