Ventura v. Town of E. Haven , 330 Conn. 613 ( 2019 )

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THOMAS VENTURA v. TOWN OF
EAST HAVEN ET AL.
(SC 19898)
Palmer, McDonald, Robinson, Kahn and DiPentima, Js.*
Syllabus
Pursuant to statute (§ 52-557n [a]), a municipality shall be liable for damages
to a person caused by the negligent acts or omissions of any employee
of such municipality acting within the scope of his employment or
official duties, unless those negligent acts or omissions require the
exercise of judgment or discretion.
The plaintiff sought to recover damages from the defendant, the town of
East Haven, for personal injuries he sustained when he was struck by
a vehicle driven by a third party, T. T had been detained prior to the
accident by S, a town police officer, in response to a 911 call concerning
a possible domestic violence incident involving T and his girlfriend
while they were in T’s vehicle in a restaurant parking lot. Although S
determined that there was no probable cause for arrest in connection
with that incident, he was unable to determine if T or his girlfriend had
valid driver’s licenses. S instructed T to park his vehicle in the restaurant
parking lot but to take his keys, and thereafter drove T home. T, however,
returned to the parking lot, retrieved his vehicle and, shortly thereafter,
struck the plaintiff. It was later determined that T had been operating
the vehicle in violation of several motor vehicle laws, including operating
a motor vehicle without valid insurance or registration. The plaintiff
alleged that S violated a ministerial duty imposed on him by the town
police department’s tow board rules and regulations by failing to have
T’s vehicle towed and impounded so that T could not return and operate
it unlawfully. The tow rules provide, inter alia, that it is within an officer’s
discretion to direct the towing of a motor vehicle and that ‘‘all motor
vehicle violations,’’ including operating an unregistered motor vehicle,
‘‘are to be towed . . . .’’ The town claimed in its motion for a directed
verdict that an officer’s decision to tow is a discretionary act and,
therefore, that the town was protected by governmental immunity pursu-
ant to § 52-557n (a). The jury returned a verdict for the plaintiff, and
the trial court denied the town’s motions for a directed verdict and to
set aside the verdict and rendered judgment for the plaintiff. Thereafter,
the town appealed to the Appellate Court, claiming, inter alia, that the
trial court improperly had denied its motion for a directed verdict on
the basis of governmental immunity. The Appellate Court concluded,
inter alia, that the tow rules, by their express and unambiguous terms,
did not purport to impose on town police officers a ministerial duty to
tow the vehicles of all drivers who have violated the state’s motor vehicle
laws but were promulgated solely for the purpose of clarifying the
responsibilities of towing companies seeking to do business with the
town police department. The Appellate Court also rejected the plaintiff’s
contention that the jury could have relied on the testimony of two police
officers to find that the tow rules imposed a ministerial duty on police
officers to tow particular vehicles, observing that the plaintiff had
ignored the officers’ unequivocal testimony that the decision to tow a
vehicle is always within the officer’s discretion. The Appellate Court
reversed the trial court’s judgment and remanded the case to that court
with direction to grant the town’s motion for a directed verdict and to
render judgment for the town, and the plaintiff, on the granting of
certification, appealed to this court. Held that the Appellate Court cor-
rectly determined that the plaintiff’s action against the town was fore-
closed by governmental immunity and, thus, properly reversed the trial
court’s judgment and directed that court to render judgment for the town:
1. The Appellate Court correctly determined that the issue of whether the
town’s tow rules imposed a ministerial duty on S to have T’s vehicle
towed was a question of law for resolution by the court that is subject
to plenary review on appeal and was not a question of fact for the jury;
this court reaffirmed its long-standing practice of deciding the issue of
governmental immunity as a matter of law, as the issue of whether a
statute, regulation or other provision of law imposes a ministerial duty
on a municipal official, on which governmental immunity depends, ordi-
narily presents a question of law to be decided by the court, and insofar
as language in Lombard v. Edward J. Peters, Jr., P.C. (252 Conn. 623) and
its progeny indicated otherwise, that language was expressly disavowed.
2. The Appellate Court correctly concluded that the town’s tow rules did
not apply to town police officers but were written solely to regulate
tow truck companies and their operators doing business with the town,
and, accordingly, S did not have a ministerial duty to have T’s vehicle
towed: the plain language of the tow rules was directed at tow truck
companies or their operators rather than the town police officers, the
memorandum that accompanied the tow rules stated that all establish-
ments that provided towing services for the town police department
were required to adhere to the tow rules, and the Appellate Court’s
interpretation of those rules was supported by the testimony of every
witness with knowledge of the rules, including the testimony of the
plaintiff’s expert; furthermore, the Appellate Court’s interpretation of
the tow rules avoided the absurd and unworkable result that would
occur if town police officers were required to tow and impound the
vehicle of every driver who committed a minor motor vehicle infraction,
such as failing to use a turn signal or driving in excess of the speed limit.
3. The plaintiff could not prevail on his claim that the jury reasonably could
have found, solely on the basis of the testimony of E, the police officer
designated by the town as the person most knowledgeable about the
police department’s rules and procedures, that S had a ministerial duty
to have T’s vehicle towed, independent of any duty allegedly imposed
on him by the tow rules, E having testified unequivocally that there was
no rule, written or unwritten, directing the manner in which a town
police officer must handle an unregistered vehicle; moreover, there was
no merit to the plaintiff’s claim that the jury could have reasonably
rejected E’s testimony regarding the discretionary nature of the decision
to tow and concluded that a ministerial duty existed on the basis of E’s
testimony that it was the general practice in the town to have unregis-
tered vehicles towed and that it was his practice as well, as the mere
fact that an officer, either by training or experience, ordinarily responds
to a situation in a particular manner does not transform that response
into a ministerial duty, and E’s testimony fell short of establishing the
existence of a ministerial rule dictating the manner in which such vehi-
cles are to be handled in every instance.
Argued April 2, 2018—officially released January 22, 2019
Procedural History
Action to recover damages for the alleged negligence
of the defendants, and for other relief, brought to the
Superior Court in the judicial district of New Haven,
where the complaint was withdrawn as to the defendant
Jeffrey R. Strand; thereafter, the case was tried to the
jury before Wilson, J.; verdict for the plaintiff; subse-
quently, the court denied the named defendant’s
motions for a directed verdict and to set aside the ver-
dict, and rendered judgment for the plaintiff; thereafter,
the court granted in part the named defendant’s motions
for remittitur and for a collateral source reduction, and
the named defendant appealed to the Appellate Court,
Keller, Prescott and West, Js., which reversed the trial
court’s judgment and remanded the case to that court
with direction to grant the named defendant’s motion
for a directed verdict and to render judgment for the
named defendant, and the plaintiff, on the granting of
certification, appealed to this court. Affirmed.
James J. Healy, with whom was Joel T. Faxon, for
the appellant (plaintiff).
Aaron S. Bayer, with whom was Tadhg Dooley, for
the appellee (named defendant).
Opinion
PALMER, J. The plaintiff, Thomas Ventura, com-
menced this action against the named defendant, the
town of East Haven, seeking damages for injuries he
sustained when he was struck by an unregistered vehi-
cle driven by a third party, Vladimir Trnka. The plaintiff
maintained that the defendant is liable for those dam-
ages because he would not have incurred them if Jeffrey
R. Strand, an East Haven police officer who had been
dispatched to respond to an incident involving Trnka
shortly before he was struck, had directed that Trnka’s
vehicle be towed in accordance with certain police
department tow rules.1 According to the plaintiff, those
rules require the towing of unregistered vehicles like
Trnka’s. Following a trial, the jury rejected the defen-
dant’s claim of governmental immunity,2 finding that
Strand had a ministerial duty under those tow rules
to have had Trnka’s vehicle towed, and awarded the
plaintiff $12,200,000 in damages. The trial court there-
after granted in part the defendant’s motion for remitti-
tur and reduced the verdict to $6,200,000. The defendant
appealed to the Appellate Court, which reversed the
judgment of the trial court on the ground that the defen-
dant was immune from suit because its tow rules did
not impose on Strand a clear ministerial duty to tow
Trnka’s vehicle. See Ventura v. East Haven, 170 Conn.
App. 388, 414–15, 154 A.3d 1020 (2017). We granted the
plaintiff’s petition for certification to appeal, limited
to the issue of whether the Appellate Court correctly
determined that governmental immunity barred the
plaintiff’s action. Ventura v. East Haven, 325 Conn. 905,
156 A.3d 537 (2017). We affirm the judgment of the
Appellate Court because we agree that the plaintiff’s
action is foreclosed by governmental immunity.
The Appellate Court’s opinion sets forth the following
procedural history and relevant facts, which the jury
reasonably could have found. ‘‘On November 4, 2006,
Strand was dispatched to investigate a ‘[p]ossible
domestic’ incident occurring inside a ‘[l]arge white
work van in the McDonald’s drive-[through]’ with an
‘[i]rate male . . . operator.’ The person who called 911
described the driver as possibly being ‘on drugs’ or
‘drunk’ and ‘nodding out.’ The caller further described
the driver as ‘punching the ceiling’ and ‘not normal.’
After arriving at the McDonald’s, Strand identified a
vehicle in the drive-through lane that he believed might
be the white work van described by dispatch. He pulled
his cruiser ‘face to face’ with the white work van, and
walked around the van to approach the driver from
behind, as he was ‘on a . . . domestic violence call.’
‘‘While approaching the driver, Strand radioed in the
license plate number, which dispatch confirmed as ‘an
’89 FORD cutaway cargo van, white . . . out of Towns-
end Ave. Val Trnka, ’07 expiration.’ Despite believing
that the ‘white work van’ that dispatch described was
the vehicle in front of him, Strand was mistaken in that
it was actually a 1997 white [Chevrolet] box truck. He
did not ask for registration or proof of insurance, and
did not check the emblems on the vehicle to ensure
that it was the make and model dispatch had described.
Strand then instructed Trnka, the driver, to pull into a
parking spot so he could continue his investigation.
Victoria Conte, another police officer, arrived on the
scene and helped Strand separate and interview Trnka
and his girlfriend, Kristen D’Aniello, who was a 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.3 Strand asked Trnka and
D’Aniello for their driver’s licenses, but neither could
produce one. He subsequently called dispatch to run
their names through the Department of Motor Vehicles
(DMV) database to check for valid driver’s licenses and
[the] National Crime Information Center database to
check for any outstanding warrants. The dispatcher
. . . was able to confirm [only] that there were no out-
standing 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 home and directed Trnka to
leave his truck parked in the McDonald’s parking lot and
keep his keys. Conte drove D’Aniello to her residence.
‘‘Fifty-six minutes later, Trnka retrieved his truck
from the McDonald’s parking lot and drove it to the
intersection of 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 . . . .’’
(Footnotes added and omitted.) Ventura v. East Haven,
supra, 170 Conn. App. 391–92.
‘‘Trnka was [later arrested and] charged with evasion
of responsibility in violation of General Statutes § 14-
224 and failure to drive in the proper lane in violation
of General Statutes § 14-236. . . . [A]s part of the
motor vehicle investigation, [it was also] determined
that the license plate affixed to the truck did not match
the description of the vehicle to which that plate had
been assigned and that Trnka was driving without valid
insurance or registration, determinations that were not
made by Strand at the time he investigated the report
of the domestic violence incident. Trnka was, therefore,
further charged with misuse of plates in violation of
General Statutes § 14-147, operating an unregistered
motor vehicle in violation of General Statutes § 14-12a,
and operating a motor vehicle without insurance in
violation of General Statutes § 14-213b. . . .
‘‘The plaintiff subsequently sought to recover dam-
ages for his injuries and commenced the present action
against Strand4 and the defendant, alleging that Strand
negligently violated a ministerial duty imposed on him
by the East Haven Police Department Tow Board
Rules & Regulations5 (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).6 In its answer, the defen-
dant raised several special defenses, including that of
governmental immunity.
‘‘During the trial, the plaintiff introduced into evi-
dence a copy of the tow rules. This document, effective
September 1, 1998, was prefaced by a memorandum
issue by then Chief of Police Leonard I. Gallo stating
that ‘[a]ll establishments who tow for the East Haven
Police Department [department] must adhere to these
Rules & Regulations.’ The first paragraph of the tow
rules provides that ‘any company or person with tow-
ing equipment and having their business within the
[t]own of East Haven may make application to the
[department] to be on the [department] rotating tow list
provided they conform to the following rules and 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 [plain-
tiff’s counsel] argued to the jury that the tow rules
applied in equal force to police officers and to busi-
nesses conducting towing operations at the direction
of the police. [Counsel] further argued that Strand was
negligent in not towing and impounding, or otherwise
securing, Trnka’s truck on the basis of the motor vehicle
violations that he knew existed at the time of his investi-
gation of the possible domestic violence incident in the
McDonald’s parking lot, and, because of that knowl-
edge, 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.7
Following trial, on January 3, 2014, the defendant filed
a renewed motion for a directed verdict and a motion
to set aside the verdict. It also filed a motion seeking
a remittitur in the amount of $11,000,000 and a collateral
source reduction. In a memorandum of decision dated
July 10, 2014, the court denied the defendant’s renewed
motion for a directed verdict and its motion to set aside
the verdict, but granted the motion for remittitur in
the amount of $6,000,000, thereby reducing the verdict
to $6,200,000.
‘‘In denying the defendant’s motions to direct or set
aside the verdict, the court found, on the issue of 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 $5,977,553.39 before inter-
est.’’ (Footnotes added and omitted.) Id., 394–98.
The defendant appealed to the Appellate Court,
claiming, inter alia, that the trial court improperly had
denied its motion for a directed verdict on the basis
of governmental immunity. Id., 399. Specifically, the
defendant argued that the trial court was incorrect in
concluding that paragraph 7 of the tow rules imposed
a clear ministerial duty on East Haven police officers
to tow the vehicles of all drivers who have violated
motor vehicle laws because that paragraph, along with
the other twenty paragraphs of those rules, is directed
at and regulates towing companies doing business with
the department and does not apply to police officers.8
Id., 407. The Appellate Court agreed with the defendant
and, in so doing, rejected the plaintiff’s contention that
whether the tow rules imposed a ministerial duty on
Strand presented a question of fact for the jury. Id.,
402. The court explained that when, as in the present
case, the question of whether an act is ministerial or
discretionary turns on the interpretation of a statute,
municipal ordinance or other written directive, that
issue gives rise to a question of law for the court. Id.,
403. The court further explained that ‘‘a plaintiff seeking
to avoid the immunity typically afforded to police offi-
cers must demonstrate that by statute or other rule of
law the official’s duty is clearly ministerial rather than
discretionary . . . .’’ (Emphasis in original; internal
quotation marks omitted.) Id., 406–407.
Applying these principles to the present facts, the
Appellate Court concluded that the tow rules, by their
express and unambiguous terms, did not purport to
impose on East Haven police officers a ministerial duty
to tow the vehicles of all drivers who have violated
the state’s motor vehicle laws; they were promulgated,
rather, solely for the purpose of clarifying the responsi-
bilities of towing companies wishing to do business
with the department. Id., 407–409, 413–14. This was
evidenced, the court explained, not only by the first
paragraph of the tow rules and prefatory memorandum
that accompanied them, but also by the signature line
at the end of the tow rules, which directed the ‘‘ ‘[a]ppli-
cant’ ’’ tow truck company to attest that it had ‘‘ ‘read
and under[stood] each of the above and will strictly
adhere to these [r]ules & [r]egulations.’ ’’ Id., 409.
In reaching its conclusion, the Appellate Court
rejected the plaintiff’s contention that paragraph 7 of
the tow rules, which provides that ‘‘[a]ll motor vehicle
violations are to be towed to include unregistered and
misuse of plates’’ and that ‘‘[o]perators of these vehicles
are not allowed to park vehicle or leave in private park-
ing areas,’’ imposed a clear ministerial duty on Strand
to tow Trnka’s vehicle. Id., 407. The court reasoned that
paragraph 7 must be read in conjunction with paragraph
6, which expressly states that ‘‘[o]fficer discretion will
prevail regarding vehicles that are to be towed. If vehi-
cle is not a hazard or obstructing traffic the officer may
contact [the American Automobile Association (AAA)],
etc. However, if vehicle is a hazard or obstructing the
tow log is to be used.’’ Id., 408. The court explained
that, ‘‘[w]hen read together, paragraphs 6 and 7 are
reconciled and make sense only with the understanding
that the tow rules regulate tow truck operators and not
police officers. Paragraph 6 informs tow truck 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.’ ’’ Id., 408–409. The court
further explained, moreover, that interpreting para-
graph 7 to impose on East Haven officers a ministerial
duty to tow ‘‘[a]ll motor vehicle violations’’ would ren-
der paragraph 6 superfluous, in violation of the cardinal
principle that such provisions are to be interpreted to
avoid such a construction. Id., 411.
The Appellate Court further observed that the plain-
tiff’s interpretation of paragraph 7 of the tow rules was
not only incompatible with the unfettered officer discre-
tion in regard to towing described in paragraph 6, but
would lead to a bizarre and unworkable result, namely,
that East Haven police officers would be required ‘‘to
tow a motor vehicle in every situation in which an
officer determined that a violation of the motor vehicle
laws had occurred,’’ including ‘‘every time a driver is
stopped for rolling through a stop sign or for failing to
obey a yield sign.’’ (Footnote omitted.) Id., 410. The
construction advanced by the plaintiff would yield such
a result, the court explained, because paragraph 7
expressly states that ‘‘[a]ll motor vehicle violations are
to be towed,’’ not just violations involving the failure
to register a vehicle or the misuse of plates. Id.
Finally, the Appellate Court addressed the plaintiff’s
claim that the jury reasonably could have relied on the
testimony of two East Haven officers, Sergeant Paul
Liquori, who drafted the tow rules, and Lieutenant
David Emerman, the officer designated by the defen-
dant as the person most knowledgeable about the
department’s rules and procedures, to find that the tow
rules imposed a ministerial duty on police officers to
tow particular vehicles. Id., 402 n.16. The court also
rejected this contention, explaining that both men had
testified unequivocally that the decision whether to tow
a vehicle is always within the officer’s discretion, and
that the plaintiff, in arguing to the contrary, had parsed
the officers’ testimony in such a manner as to ignore
this crucial testimony. Id. The court further observed
that the plaintiff’s own expert witness, Peter Fearon,
‘‘agreed that the tow rules were clearly directed toward
towing companies,’’ and that ‘‘[n]one of the plaintiff’s
witnesses testified that the tow rules imposed a ministe-
rial obligation on East Haven police officers to tow.’’
(Internal quotation marks omitted.) Id.
On appeal to this court, following our grant of certifi-
cation, the plaintiff claims that, notwithstanding the
contrary determination of the Appellate Court, the issue
of whether the tow rules imposed on Strand a ministe-
rial duty to tow Trnka’s vehicle was a question of fact
for the jury, not one of law for the court. The plaintiff
further contends that the Appellate Court incorrectly
construed the tow rules in concluding that Strand had
no ministerial duty under those rules to tow Trnka’s
vehicle. Finally, the plaintiff argues that the Appellate
Court incorrectly determined that the jury reasonably
could not have relied on Emerman’s testimony in find-
ing that department policy required Strand to tow
Trnka’s vehicle. We disagree with each of these con-
tentions.
We begin our review of the plaintiff’s claims by setting
forth the principles that guide our analysis, considering
first the law governing motions for a directed verdict.
‘‘The standards for appellate review of a directed verdict
are [clear]. 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
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 speculation. . . . A directed verdict is
justified if . . . the evidence 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.)
Coughlin v. Anderson, 270 Conn. 487, 497–98, 853 A.2d
460 (2004). In addition, ‘‘[a] verdict may be directed
[when] the decisive question is one of law . . . .’’
(Internal quotation marks omitted.) Ruff v. Yale-New
Haven Hospital, Inc., 172 Conn. App. 699, 716, 161 A.3d
552 (2017).
The law pertaining to municipal immunity is similarly
well settled. ‘‘[Section] 52-557n abandons the common-
law principle of municipal sovereign immunity and
establishes the circumstances in which a municipality
may be liable for damages. . . . One such circum-
stance is a negligent act or omission of a municipal
officer acting within the scope of his or her employment
or official duties. . . . [Section] 52-557n (a) (2) (B),
however, explicitly shields a municipality from liability
for damages to person or property caused by the negli-
gent acts or omissions [that] require the exercise of
judgment or discretion as an official function of the
authority expressly or impliedly granted by law.’’9 (Foot-
note omitted; internal quotation marks omitted.) Brooks
v. Powers, 328 Conn. 256, 264–65, 178 A.3d 366 (2018).
‘‘Municipal officials are immune from liability for neg-
ligence 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 discre-
tion beyond the limits desirable in our society. . . .
[D]iscretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officials and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, outweighs the bene-
fits to be had from imposing liability for that injury.’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) Coley v. Hartford, 312 Conn. 150, 161,
95 A.3d 480 (2014); see also Wadsworth v. Middletown,
94 Conn. 435, 440, 109 A. 246 (1920) (‘‘[t]imidity and
doubt would govern [public officials’] performance of
public duty if they acted in the consciousness that per-
sonal liability might follow, no matter how closely they
followed their best discretion’’). ‘‘In contrast, municipal
officers are not immune from liability for negligence
arising out of their ministerial acts, defined as acts
to be performed in a prescribed manner without the
exercise of judgment or discretion.’’ (Internal quotation
marks omitted.) Coley v. Hartford, supra, 162.
‘‘[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.’’
(Internal quotation marks omitted.) Gordon v. Bridge-
port Housing Authority, 208 Conn. 161, 180, 544 A.2d
1185 (1988). Indeed, this court has long recognized that
it is not in the public’s interest to ‘‘[allow] a jury of
laymen with the benefit of 20/20 hindsight to second-
guess the exercise of a policeman’s discretionary pro-
fessional duty. Such discretion is no discretion at all.’’
Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379
(1982); see also Coley v. Hartford, supra, 312 Conn.165
(our case law ‘‘underscores the considerable discretion
inherent in law enforcement’s response to an infinite
array of situations implicating public safety on a daily
basis’’). Thus, as a general rule, ‘‘[p]olice officers are
protected by discretionary act immunity when they per-
form the typical functions of a police officer.’’ (Internal
quotation marks omitted.) Smart v. Corbitt, 126 Conn.
App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907,
19 A.3d 177 (2011).
In accordance with these principles, our courts con-
sistently have held ‘‘that to demonstrate the existence
of a ministerial duty on the part of a municipality and
its agents, a plaintiff ordinarily must point to some
statute, city charter provision, ordinance, regulation,
rule, policy, or other directive that, by its clear language,
compels a municipal employee to act in a prescribed
manner, without the exercise of judgment or discretion.
See Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d
1188 (2006); Evon v. Andrews, 211 Conn. 501, 506–507,
559 A.2d 1131 (1989); DiMiceli v. Cheshire, [162 Conn.
App. 216, 224–25, 131 A.3d 771 (2016)]; Grignano v.
Milford, 106 Conn. App. 648, 659–60, 943 A.2d 507
(2008).’’ Northrup v. Witkowski, 175 Conn. App. 223,
235, 167 A.3d 443, cert. granted on other grounds, 327
Conn. 971, 173 A.3d 392 (2017); see also Bonington v.
Westport, 297 Conn. 297, 308, 999 A.2d 700 (2010) (cause
of action lies against municipality for allegedly negligent
performance of municipal official ‘‘[i]f by statute or
other rule of law the official’s duty is clearly ministerial
rather than discretionary’’ [internal quotation marks
omitted]). Because the construction of any such provi-
sion, including a municipal rule or regulation, presents
a question of law for the court; see, e.g., Kiewlen v.
Meriden, 317 Conn. 139, 149, 115 A.3d 1095 (2015) (‘‘[a]s
with any issue of statutory construction, the interpreta-
tion of a charter or municipal ordinance presents a
question of law, over which our review is plenary’’
[internal quotation marks omitted]); Honulik v. Green-
wich, 293 Conn. 698, 710, 980 A.2d 880 (2009) (‘‘[p]rinci-
ples of statutory construction govern our interpretation
of . . . [municipal rules and regulations]’’); A. Aiudi &
Sons, LLC v. Planning & Zoning Commission, 267
Conn. 192, 197, 837 A.2d 748 (2004) (‘‘plenary review
. . . applies to questions of law relating to the interpre-
tation of [municipal] regulations’’); whether the provi-
sion creates a ministerial duty gives rise to a legal issue
subject to plenary review on appeal. Thus, as we repeat-
edly have stated, ‘‘[t]he ultimate determination of
whether . . . immunity applies is ordinarily a question
of law for the court . . . [unless] there are unresolved
factual issues material to the applicability of the defense
. . . [in which case] resolution of those factual issues
is properly left to the jury.’’ (Internal quotation marks
omitted.) Strycharz v. Cady, 323 Conn. 548, 574, 148
A.3d 1011 (2016); accord Martinez v. New Haven, 328
Conn. 1, 8, 176 A.3d 531 (2018); Haynes v. Middletown,
314 Conn. 303, 313, 101 A.3d 249 (2014); Bonington v.
Westport, supra, 306; Hopkins v. O’Connor, 282 Conn.
821, 847, 925 A.2d 1030 (2007); Ham v. Greene, 248
Conn. 508, 525–26, 729 A.2d 740, cert. denied, 528 U.S.
929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999). With these
principles in mind, we turn to the merits of the plain-
tiff’s claims.
We begin with the plaintiff’s assertion that the Appel-
late Court incorrectly determined that the issue of
whether the tow rules imposed on Strand a ministerial
duty to tow Trnka’s vehicle was a question of law for the
court rather than one of fact for the jury. The plaintiff
maintains that, if allowed to stand, the Appellate Court
decision ‘‘would turn a traditional factual determination
into a legal determination in every instance.’’ In sup-
port of this contention, the plaintiff cites the following
language that has appeared in several of this court’s
governmental immunity cases: ‘‘Although the determi-
nation of whether official acts or omissions are ministe-
rial or discretionary is normally a question of fact for
the fact finder . . . there are cases [in which] it is
apparent from the complaint . . . [that the determina-
tion of whether an act or omission is discretionary in
nature] and, thus, whether governmental immunity may
be successfully invoked pursuant to . . . § 52-557n (a)
(2) (B), turns on the character of the act or omission
complained of in the complaint. . . . Accordingly,
[when] it is apparent from the complaint that the defen-
dants’ allegedly negligent acts or omissions necessarily
involved the exercise of judgment, and thus . . . nec-
essarily were discretionary in nature, summary judg-
ment is proper.’’ (Internal quotation marks omitted.)
Coley v. Hartford, supra, 312 Conn. 162, quoting Bonin-
gton v. Westport, supra, 297 Conn. 307–308. On the basis
of this language, the plaintiff argues that it was improper
for the Appellate Court to resolve the governmental
immunity question as a matter of law because it could
not have been apparent from his complaint that Strand’s
acts or omissions necessarily involved the exercise of
judgment. The plaintiff maintains that the only proper
course was the one taken by the trial court, namely, to
instruct the jury to decide whether the act was discre-
tionary or ministerial. According to the plaintiff, ‘‘[i]f
every single written municipal rule is to be subjected
to a statutory interpretation analysis conducted solely
by the court, it would render meaningless the long-
standing precedent that the ministerial-discretionary
determination is normally a question of fact for the fact
finder.’’ (Internal quotation marks omitted.)
The defendant responds that whether a municipal
rule or regulation imposes a ministerial duty on a munic-
ipal official is a question of law for the court. Likewise,
the defendant maintains, whether an act or omission
is ministerial or discretionary is also a question of law
for resolution by the court. The defendant further
asserts that, to the extent that the language relied on
by the plaintiff suggests otherwise, we should acknowl-
edge that it is an incorrect statement of the law. We
agree with each of the defendant’s contentions.
As we discussed previously, this court, on numerous
occasions, has stated unequivocally that the determina-
tion of whether a governmental or ministerial duty
exists gives rise to a question of law for resolution by
the court. See, e.g., Strycharz v. Cady, supra, 323 Conn.
564 n.21 (‘‘[t]he issue of governmental immunity is . . .
a question of the existence of a duty of care, and this
court has approved the practice of deciding the issue
of governmental immunity as a matter of law’’ [internal
quotation marks omitted]); Doe v. Petersen, 279 Conn.
607, 621, 903 A.2d 191 (2006) (‘‘the issue of governmen-
tal immunity is . . . a question of the existence of a
duty of care, which is a question of law [and] [o]nly 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’’ [emphasis in original;
internal quotation marks omitted]). Nevertheless, on a
number of occasions, we also have stated that whether
the acts or omissions of a municipal official are ministe-
rial or discretionary normally presents a question of
fact for the fact finder. See, e.g., Strycharz v. Cady,
supra, 565; Bonington v. Westport, supra, 297 Conn.
307–308; Martel v. Metropolitan District Commission,
275 Conn. 38, 49, 881 A.2d 194 (2005).10 As the defendant
aptly asserts, however, it is apparent that this statement,
which originated in Lombard v. Edward J. Peters, Jr.,
P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000), is based
on a misreading of Gordon v. Bridgeport Housing
Authority, supra, 208 Conn. 171. More specifically, in
Lombard, this court cited Gordon for the proposition
that whether an act or omission is ministerial or discre-
tionary is normally a question of fact for the fact finder.
See Lombard v. Edward J. Peters, Jr., P.C., supra, 628.
The passage in Gordon that Lombard cites, however,
merely sets forth the plaintiff’s claim in Gordon, which
this court ultimately rejected. Gordon v. Bridgeport
Housing Authority, supra, 170–71.
In Gordon, the plaintiff, Virginia N. Gordon, argued,
inter alia, ‘‘that there is a threshold inquiry in the area
of municipal liability—deciding if the official acts or
omissions are ministerial or discretionary—and
because that is a question for the trier of fact, it is
inappropriate to decide the issue on a motion to strike.’’
Id., 165. In support of this contention, Gordon relied
on a number of cases, including Gauvin v. New Haven,
187 Conn. 180, 186–87, 445 A.2d 1 (1982), and Tango
v. New Haven, 173 Conn. 203, 204, 377 A.2d 284 (1977),
which the plaintiff in the present case also cites. See
Gordon v. Bridgeport Housing Authority, supra, 208
Conn. 165. We expressly rejected Gordon’s claim, how-
ever, explaining that the cited cases were not control-
ling because, in all of them, the duty of the municipality
was ‘‘unquestioned under the facts pleaded . . . . See,
e.g., Gauvin v. New Haven, supra [186–87] (city had a
duty to use due care in operating city park); Tango v.
New Haven, supra, 205 (city had a duty to use due care
in permitting the public to use city property for sled
riding).’’ Gordon v. Bridgeport Housing Authority,
supra, 180–81. In other words, in all of the cases on
which Gordon relied, we were not required to determine
whether the existence of a ministerial duty presented
a question of law or fact. Squarely presented with that
issue, however, we disagreed with Gordon’s contention
that it gave rise to a question of fact. In so doing, we
reaffirmed our long-standing ‘‘practice of deciding the
issue of governmental immunity as a matter of law’’;
id., 170; and, quoting from Shore v. Stonington, supra,
187 Conn. 152, we explained: ‘‘The plaintiff [in Shore]
argue[d] that summary judgment is inappropriate in this
area because there existed a genuine dispute as to the
material facts relating to the extent of [a police officer’s]
duty to the plaintiff’s decedent. The law does not recog-
nize a duty in the air. . . . To sustain a cause of action,
the court must determine whether the [municipal]
defendant owed a duty to the plaintiff’s decedent . . .
and the applicable standard of care. . . . The existence
of a duty is a question of law. . . . Only if such a duty
is found to exist does the trier of fact then determine
whether the defendant violated that duty in the particu-
lar situation at hand.’’ (Citations omitted; internal quota-
tion marks omitted.) Gordon v. Bridgeport Housing
Authority, supra, 171. We then concluded in Gordon
as follows: ‘‘It is the existence of a duty that is the
dispositive factor concerning the motion to strike in
this case. To survive a motion to strike, the court must
determine that the [defendant] owed a duty to the [plain-
tiff]. The existence of this duty is a matter for the court
to decide, not a jury. . . . The plaintiff’s claim that the
trial court was precluded from deciding on a motion
to strike whether the [defendant] owed a duty to the
[plaintiff] is unavailing.’’ (Citation omitted.) Id., 171–72.
We therefore made it perfectly clear in Gordon that
the issue of whether a statute, regulation or other provi-
sion of law creates a ministerial duty ordinarily presents
a question of law to be decided by the court.11 Insofar
as our language in Lombard and in several subsequent
cases indicates otherwise, we expressly disavow that
language.12 Thus, as the Appellate Court concluded,
whether the tow rules at issue required that Strand have
Trnka’s truck towed, thereby creating a ministerial duty
on Stand’s part, is a question of law for the court, subject
to plenary review on appeal. Ventura v. East Haven,
supra, 170 Conn. App. 404. We now address that issue.
Having considered the parties’ arguments, we agree
fully with the Appellate Court’s thorough and persua-
sive analysis; see id., 407–14; and conclusion, on the
basis of that analysis, that the tow rules simply do not
apply to East Haven police officers but were written
solely to regulate tow truck operators doing business
with the department. Id., 414–15. As the Appellate Court
explained, this conclusion is compelled not only by the
plain language of the tow rules themselves; see footnote
5 of this opinion; all of which are directed at tow truck
companies or their operators; Ventura v. East Haven,
supra, 170 Conn. App. 409; but also by the memorandum
that accompanied the tow rules, which states that ‘‘[a]ll
establishments who tow for the [department] must
adhere to these [r]ules & [r]egulations’’ and must ‘‘read,
sign and provide the information necessary in order to
complete the process.’’ The Appellate Court’s interpre-
tation of the tow rules as applying only to tow truck
companies and operators also avoids the absurd and
unworkable result that would obtain from the interpre-
tation advanced by the plaintiff, which, as the Appellate
Court explained, would require East Haven police offi-
cers to impound the vehicle of every driver who fails
to use a turn signal or drives with a broken tail light
or in excess of the speed limit. Ventura v. East Haven,
supra, 410.
Furthermore, although we believe that the tow rules
are unambiguous as applied to the present facts,
thereby rendering extratextual evidence unnecessary,
even if they were not so clear, the Appellate Court’s
interpretation of those rules is supported by the testi-
mony of every witness with knowledge of the rules,
including the testimony of the plaintiff’s expert, Fearon,
who ‘‘conceded during cross-examination . . . 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.’ ’’ Ventura v. East
Haven, supra, 170 Conn. App. 414. The tow rules’
drafter, Liquori, confirmed Fearon’s suspicion regarding
the rules’ origin, explaining that, prior to their imple-
mentation, tow truck operators ‘‘were arriving simulta-
neously at calls, fighting, and causing damage to towed
vehicles . . . .’’ Id., 414 n.29. According to Liquori, the
tow rules were intended ‘‘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
. . . .’’13 (Internal quotation marks omitted.) Id., 414.
Finally, the plaintiff argues that the jury reasonably
could have found, solely on the basis of Emerman’s
testimony, that Strand had a ministerial duty to tow
Trnka’s vehicle, independent of any duty allegedly
imposed on him by the tow rules. As the Appellate Court
explained, however, Emerman testified unequivocally
that there was no rule, written or unwritten, dictating
the manner in which an East Haven police officer must
handle an unregistered vehicle or one with misused
plates. Emerman also testified that an officer’s decision
to tow a vehicle is always within the officer’s discretion.
Indeed, the plaintiff’s own expert testified that he was
aware of no Connecticut law requiring an officer to tow
an unregistered vehicle or a vehicle determined to have
misused plates.14
The plaintiff contends, nonetheless, that the jury rea-
sonably could have rejected Emerman’s testimony
regarding the discretionary nature of the decision to
tow as ‘‘self-serving’’ and concluded that a ministerial
duty existed on the basis of Emerman’s testimony that
unregistered vehicles are routinely towed in East
Haven, that, based on his training and experience, he
did not let anybody drive off in an unregistered vehicle
following a traffic stop, and that the ‘‘ ‘general rule’ ’’
among police officers is ‘‘ ‘to tow and impound’ ’’ such
vehicles, albeit with certain exceptions. There are, no
doubt, any number of guidelines and practices that
police officers adhere to when responding to the myriad
situations they confront on a daily basis. The mere
fact that an officer, either by training or experience,
ordinarily responds to a situation in a particular manner
does not transform his or her response into a ministerial
duty. If it did, governmental immunity would virtually
cease to exist.15 Thus, although Emerman’s testimony
was certainly evidence of the manner in which he and
other East Haven police officers exercise their discre-
tion with respect to unregistered vehicles, it fell far
short of establishing the existence of a ministerial rule
dictating the manner in which such vehicles are to be
handled in every instance. See, e.g., Strycharz v. Cady,
supra, 323 Conn. 566–67 (testimony that did not identify
specific directive but merely established manner in
which individual official performed his official duties
was insufficient to establish existence of ministerial
duty); Northrup v. Witkowski, supra, 175 Conn. App.
236 n.5 (explaining that ‘‘vague’’ testimony that ‘‘does
not come close to an admission that the town had a
nondiscretionary duty’’ is insufficient to establish minis-
terial duty in absence of written directive). Further-
more, although the plaintiff is correct that the jury was
free to disbelieve all or any portion of Emerman’s testi-
mony, it was not permitted to ‘‘draw a contrary infer-
ence on the basis of that disbelief.’’ Paige v. Saint
Andrew’s Roman Catholic Church Corp., 250 Conn. 14,
18, 734 A.2d 85 (1999); see also Novak v. Anderson, 178
Conn. 506, 508, 423 A.2d 147 (1979) (‘‘[w]hile it is true
that it is within the province of the jury to accept or
reject a defendant’s testimony, a jury in rejecting such
testimony cannot conclude that the opposite is true’’).
This principle has particular force when, as in the pres-
ent case, the contrary inference to be drawn concerns
the imposition of a ministerial duty on a municipal
official.
For all the foregoing reasons, the plaintiff cannot
prevail on his claim that the Appellate Court incorrectly
concluded that the defendant was immune from suit
because Strand had no ministerial duty to tow Trnka’s
vehicle from the McDonald’s parking lot. Accordingly,
the Appellate Court properly reversed the judgment of
the trial court and directed that court, on remand, to
render judgment for the defendant.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* This case was originally argued before a panel of this court consisting
of Justices Palmer, McDonald, Robinson, Kahn and Espinosa. Thereafter,
Justice Espinosa retired from this court and did not participate in the consid-
eration of this decision. Chief Judge DiPentima was added to the panel, and
she has read the briefs and appendices, and listened to a recording of oral
argument prior to participating in this decision.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
Strand originally was named as a defendant in this case, but the plaintiff
withdrew his claims against Strand prior to trial. All references to the defen-
dant are to the town of East Haven.
2
As we discuss more fully hereinafter, governmental immunity shields
municipalities and their employees from liability for negligence in circum-
stances in which the negligent acts or omissions are discretionary rather
than ministerial in nature. See, e.g., Haynes v. Middletown, 314 Conn. 303,
312, 101 A.3d 249 (2014).
3
In his incident report, Strand did state that Trnka was ‘‘highly agitated’’
and ‘‘emotional’’ following what was described as a ‘‘verbal argument’’
between ‘‘two people sitting inside a vehicle . . . .’’
4
See footnote 1 of this opinion.
5
The East Haven Police Department Tow Board Rules & Regulations
provide in relevant part: ‘‘[A]ny company or person with towing equipment
and having their business within the [t]own of East Haven may make applica-
tion 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 regulations.
‘‘1. That all towing companies shall provide [twenty-four] hour a day and
[seven] day a week towing service to the East Haven Police Department.
‘‘2. That all towing companies shall provide the East Haven Police Depart-
ment with both day and night telephone numbers.
‘‘3. That all tow companies give priority to calls received from the East
Haven Police Department and respond to the scene within [twenty] minutes.
‘‘4. That all tow companies will tow police vehicles on a rotation basis
with no charge to the [t]own of East Haven. . . .
‘‘5. If a tow company fails to answer [a] request, does not show or is
unavailable, credit that company with the tow and proceed to the next
available tow company.
‘‘6. Officer discretion will prevail regarding vehicles that are to be towed.
If vehicle is not a hazard or obstructing traffic the officer may contact [the
American Automobile Association], etc. However, if vehicle is a hazard or
obstructing the tow log is to be used.
‘‘7. All 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.
‘‘8. Tow companies are only to release towed vehicles upon permission
from the East Haven Police Department.
‘‘9. That all tow companies provide the East Haven Police Department
with a list of their equipment and capabilities. This includes heavy duty,
medium duty, light duty, flatbed, motorcycle slings and storage facilities.
‘‘10. That all tow companies agree that all wreckers used will be inspected
by the East Haven Police Department at any time and must at all times be
fully equipped as per the requirements of the Motor Vehicle Department
and [s]tate [s]tatute.
‘‘11. Tow companies may also be removed from the list if they are charging
in excess of the state authorized rate for towing or if the company is found
to be in violation of [s]tate [s]tatute or East Haven [Police Department Tow
Board] Rules & Regulations.
‘‘12. The tow companies agree that local residents will only be charged
a [$70] fee for towing. This rate applies only if the vehicle stays in the
confines of the [t]own of East Haven.
‘‘13. That the tow companies agree that they will clean all debris from
roadway at all accident scenes or situations where they are called upon
to tow a vehicle. This task must be performed to the satisfaction of the
investigating officer. Failure to do so may result in the suspension of the
tow company from the rotating list or other appropriate discipline may
occur as prescribed by the [c]hief of [p]olice.
‘‘14. That the tow companies agree that they will provide in town transpor-
tation for operator and occupants when possible, with respect to the tow
truck occupant capacity.
‘‘15. That all tow companies agree that during any police investigation or
emergency situation as determined by the police, the East Haven Police
Department reserves the right at any time to call a tow company without
regard to the tow rotation list.
‘‘16. That the tow company shall be responsible for the preservation,
condition, and safety of all vehicles towed and its contents therein.
‘‘17. That the tow company shall be responsible to respond to any part
of town when requested regardless of the distance within the confines of
the [t]own of East Haven.
‘‘18. That any tow company that refuses three service calls offered to
them by the East Haven Police Department in a [thirty] day monthly period,
the company will be notified in writing and suspended from the tow list for
the remainder of the month. If this occurs two months consecutively in any
calendar year, the company will be removed from the list and the [c]hief
of [p]olice notified. The company will be notified in writing of the removal
and it will be the company’s responsibility to notify the [c]hief of [p]olice
in writing that the company wishes to be reinstated on the rotating list. All
future offenses may result in the company being permanently removed
from the tow list. The above does not preclude the [c]hief of [p]olice from
removing a company for just cause.
‘‘19. If a customer makes a reasonable and responsible request for towing,
said company will be credited with a tow on the East Haven [p]olice [l]og.
‘‘20. That all companies agree not to [subcontract] any tow work if they
are unavailable to handle an assigned job. The East Haven Police Department
will utilize only towing companies that have made application and are on
the tow list.
‘‘21. The East Haven [c]hief of [p]olice reserves the right to amend [these]
[r]ules & [r]egulations at any time. If [these] [r]ules & [r]egulations are
amended all participating tow companies will be notified in writing. . . .’’
6
General Statutes § 52-557n provides in relevant part: ‘‘(a) (1) 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 . . . .
(2) Except 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 discre-
tion as an official function of the authority expressly or impliedly granted
by law.’’
7
‘‘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 [Trnka’s]
vehicle was within the discretion of . . . Officer Strand?’ The jury answered
‘no’ to this interrogatory.’’ Ventura v. East Haven, supra, 170 Conn. App.
397 n.11.
8
On appeal to the Appellate Court, the defendant also challenged several
of the trial court’s evidentiary rulings and claimed, as well, that the trial
court improperly had failed to direct or set aside the verdict on the ground
that there was insufficient evidence of actual and proximate causation.
Ventura v. East Haven, supra, 170 Conn. App. 390. The Appellate Court did
not reach these additional claims in light of its determination that the plain-
tiff’s action was barred by governmental immunity. Id., 390 n.2.
9
Although we have recognized several exceptions to discretionary act
immunity; see, e.g., Violano v. Fernandez, 280 Conn. 310, 319–20, 907 A.2d
1188 (2006); none is implicated in this case.
10
In fact, we have used this language in several of the cases in which we
also have stated that the determination of whether the acts of a municipal
official are ministerial or discretionary presents a question of law for the
court. See, e.g., Strycharz v. Cady, supra, 323 Conn. 565; Coley v. Hartford,
supra, 312 Conn. 162; Bonington v. Westport, supra, 297 Conn. 307–308.
11
As we observed previously, although the ultimate determination of
whether governmental immunity applies is typically a question of law for
the court, there may well be disputed factual issues material to the applicabil-
ity of the defense, the resolution of which are properly left to the trier of
fact. See, e.g., Strycharz v. Cady, supra, 323 Conn. 572–73 (remanding case
to trial court for finding on whether assistant principals had discharged
ministerial duty to create and distribute bus monitor roster to school staff);
Haynes v. Middletown, supra, 314 Conn. 331 (remanding case to trial court
for finding on whether plaintiff was identifiable person subject to imminent
harm for purposes of applying exception to governmental immunity); see
also Mulligan v. Rioux, 229 Conn. 716, 735–36 and n.22, 643 A.2d 1226
(1994) (noting that disputed factual issues material to applicability of police
officers’ qualified immunity defense, such as what officers knew or reason-
ably should have known with respect to certain matters, presented factual
questions for jury). In the present case, the material facts are either not in
dispute or were found by the jury. Consequently, the only issue is whether,
in light of those facts, Strand had a ministerial duty to tow Trnka’s vehicle,
an issue that presents a pure question of law for the court.
12
It bears noting that, in those cases in which we have incorrectly stated
that the question of whether official acts or omissions are ministerial gener-
ally is one of fact for the fact finder, we nevertheless decided the issue as
a matter of law. See Strycharz v. Cady, supra, 323 Conn. 567–69 (deciding
as matter of law that school officials had ministerial duty to assign school
staff to bus duty but not to ensure that assigned staff members actually
reported to and adequately discharged that duty pursuant to student safety
program); Coley v. Hartford, supra, 312 Conn. 152–53 (deciding as matter of
law that state statute and police department policy did not impose ministerial
duty on police officer to remain at scene of domestic violence incident);
Bonington v. Westport, supra, 297 Conn. 310–12 (deciding as matter of law
that municipal zoning regulations did not impose ministerial duty on planning
and zoning department employees to inspect property); Martel v. Metropoli-
tan District Commission, supra, 275 Conn. 50–51 (deciding as matter of
law that defendant’s decision whether to supervise, inspect, maintain, close
or barricade trails was discretionary rather than ministerial); Lombard v.
Edward J. Peters, Jr., P.C., supra, 252 Conn. 630 (deciding as matter of law
that foreclosure statute imposed ministerial duty on judicially appointed
foreclosure committee to properly identify property included in foreclo-
sure sale).
13
We note that the plaintiff also argues that the tow rules must apply
equally to East Haven police officers because otherwise the officers would
have no way of knowing about their ‘‘various powers’’ under the rules, such
as the power ‘‘to oversee tow truck compliance with motor vehicle laws,’’
and to enforce paragraph 13 of the rules, which requires ‘‘tow companies
[to] agree that they will clean all debris from [the] roadway at all accident
scenes . . . to the satisfaction of the investigating officer.’’ The plaintiff
further asserts that the tow rules must be binding on East Haven police
officers merely because they ‘‘were kept in the office of the police commis-
sioner, alongside all the other rules, policies and directives’’ of the depart-
ment, were ‘‘[f]ormally named the ‘East Haven Police Department Tow Board
Rules & Regulations,’ ’’ and bore the name of the former police chief, Leonard
I. Gallo, on every page. The plaintiff does not explain, however, why the
rules would have to be binding on an officer to ensure his or her familiarity
with them, or why the location where the rules are kept or the fact that
they are stamped with the former police chief’s name have any bearing on
whether they impose a ministerial duty on East Haven police officers to
tow all vehicles that violate the state’s motor vehicle laws. Indeed, under
the plaintiff’s reasoning, every written policy or rule of the department
would have to be deemed to impose a ministerial duty on the officers to
whom they apply, a proposition for which the plaintiff offers no legal or
factual support.
14
The plaintiff cites Strycharz v. Cady, supra, 323 Conn. 566, and Wisniew-
ski v. Darien, 135 Conn. App. 364, 373, 42 A.3d 436 (2012), for the proposition
that, in the absence of an explicit written directive, the testimony of a
municipal official may be sufficient to establish the existence of a ministerial
duty. Strycharz and Wisniewski bear no resemblance to the present case,
however, because, in both cases, the testimony relied on to establish the
ministerial duty did so unequivocally and was elicited directly from the
municipal official alleged to have breached that duty, or from that person’s
direct supervisor. See Strycharz v. Cady, supra, 566 (‘‘the deposition testi-
mony of [the superintendent of schools], who testified that [the school
principal] had a duty to assign school staff members to different posts,
including the bus port, and that he lacked the discretion not to do so . . .
provided a sufficient basis to conclude that school administrators had the
ministerial duty to assign staff members to monitor students throughout
the school’’ [citations omitted]); Wisniewski v. Darien, supra, 376–77 (‘‘[i]n
this case . . . the plaintiffs provided evidence through [the tree warden’s]
own testimony that he had a nondiscretionary duty to inspect the trees on
the town’s right-of-way in front of the property’’). No testimony was elicited
by the plaintiff in this case that was even remotely comparable to the
testimony elicited by the plaintiffs in Strycharz and Wisniewski concerning
the existence of an unwritten municipal rule or policy.
15
We note that, although police officers are trained to follow specific
procedures when investigating a suspected case of driving while under the
influence; see State v. Morelli, 293 Conn. 147, 156–57, 976 A.2d 678 (2009)
(officer followed ‘‘required procedure’’ during investigation of suspected
intoxicated driver); this court previously has held that a police officer owes
no ministerial duty to the public to enforce the state’s DUI laws. See Shore
v. Stonington, supra, 187 Conn. 150–51, 154, 157 (because police officer
owed no specific duty to decedent to enforce state’s motor vehicle laws,
no action in negligence could lie against police officer for death of person
whose car was struck by intoxicated driver shortly after officer had stopped
driver but let him drive away despite driver’s obvious signs of intoxication).
Accordingly, if Strand had stopped Trnka for driving erratically but had let
him go despite obvious signs of intoxication, and Trnka had subsequently
struck the plaintiff with his vehicle, any action brought by the plaintiff against
the defendant likely would have been barred by governmental immunity. It
would seem incongruous to construe the tow rules in such a manner that
the defendant would be liable for Strand’s failure to tow Trnka’s unregistered
vehicle but immune from liability for injuries resulting from Strand’s failure
to enforce the state’s DUI laws. Suffice it to say that we will not lightly
impute such an intent to the defendant.