University of Vermont AAHS

Malloy v. Town of Colchester

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UNPUBLISHED,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.


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