Sena v. American Medical Response of Connecticut, Inc.

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MARINELIS SENA, ADMINISTRATRIX (ESTATE OF
TYRONE O. TILLMAN), ET AL. v. AMERICAN
MEDICAL RESPONSE OF CONNECTICUT,
INC., ET AL.
(SC 19971)
Robinson, C. J., and Palmer, D’Auria, Mullins,
Kahn, Ecker and Vertefeuille, Js.
Syllabus
Pursuant to statute (§ 28-13 [a]), ‘‘[n]either the state nor any political subdivi-
sion of the state . . . complying with or attempting to comply with
[civil preparedness statutes] or any order or regulation promulgated
pursuant to [those statutes] . . . shall be liable for the death of or injury
to persons . . . as a result of any such activity.’’
The plaintiff, both individually and as administratrix of the estate of the
decedent, T, sought to recover damages from, among others, the defen-
dant city alleging, inter alia, that the city was negligent in responding
to a medical emergency involving T. Specifically, the plaintiff alleged
that the city had improperly failed to dispatch a fire truck with an
emergency medical technician in response to T’s emergency call and
had impeded prompt arrival of an ambulance by allowing snow to remain
in certain public roadways following a statewide winter snowstorm.
Before the storm began, the city’s mayor declared a state of emergency
and activated the local emergency operations center. Shortly thereafter,
the governor declared a statewide civil preparedness emergency pursu-
ant to statute (§ 28-9). Snowfall during the storm was so significant that
both city and state roads were temporarily closed to the public, and
plowing and ambulance service were temporarily suspended. After the
storm, clearing roads proved unusually difficult, and the city requested
that the state summon the assistance of the National Guard, which
arrived the following day. Two days after the storm concluded, only
certain roads were open to emergency vehicles and several hundred
secondary roads, including the road on which T lived, remained impass-
able. On that day, T called 911 complaining of severe breathing difficulty.
An ambulance arrived approximately twenty minutes later and subse-
quently transported T to the hospital, where he was pronounced dead.
Three days after the storm concluded, at least one lane was open on each
of the city’s roads. The city’s emergency operations center maintained
command over storm response and snow removal for approximately
five days after the storm passed and remained staffed for approximately
three days thereafter. More than one month later, the governor issued
an executive order ending the statewide civil preparedness emergency.
The plaintiff subsequently commenced the present action, and the city
filed a motion for summary judgment, claiming immunity pursuant to
§ 28-13. The trial court denied that motion, concluding that there was
a genuine issue of material fact as to whether the city was still actively
experiencing a civil preparedness emergency at the time of the city’s
response to T’s emergency call, and the plaintiff appealed. Held:
1. This court had subject matter jurisdiction over the city’s appeal, as the
trial court’s denial of the city’s motion for summary judgment constituted
a final judgment because the city’s motion was based on a colorable
claim that § 28-13 (a) affords the city sovereign immunity from actions
taken in response to declared emergencies; although the plain text of
§ 28-13 (a) does not clearly define the nature of the immunity afforded
under that statute, an examination of relevant legislative history indi-
cated that the legislature had intended that statute to extend the state’s
own sovereign immunity, including both its immunity from suit and
liability, to political subdivisions such as the city.
2. The trial court improperly denied the city’s motion for summary judgment
on the basis of the court’s conclusion that a genuine issue of material
fact existed as to whether the city was still actively experiencing a civil
preparedness emergency at the time of T’s death, the trial court having
incorrectly concluded that immunity under § 28-13 applies only during
a civil preparedness emergency; the city’s command and control of
storm response and snow removal, including decisions regarding snow
plowing and the circumstances in which a fire truck should respond to
an emergency call, unambiguously fell within the statutory (§ 28-1 [4])
definition of civil preparedness, which explicitly includes measures
taken in preparation of, during, and following major disasters and emer-
gencies, and, therefore, evidence relating to whether the civil prepared-
ness emergency had ended at the time of the city’s response to T’s
emergency medical call did nothing to contradict the ample evidence
in the record that the city was still engaged in activities afforded immu-
nity by § 28-13 at that time.
Argued October 18, 2018—officially released September 3, 2019
Procedural History
Action to recover damages for, inter alia, the allegedly
wrongful death of the named plaintiff’s decedent as a
result of the alleged negligence of the named defendant
et al., and for other relief, brought to the Superior Court
in the judicial district of Fairfield, where the court,
Kamp, J., denied the motion for summary judgment
filed by the defendant city of Bridgeport, and the defen-
dant city of Bridgeport appealed. Reversed; judgment
directed.
J. Christopher Rooney, with whom were Alan Bowie
and, on the brief, Anne Peterson, for the appellant
(defendant city of Bridgeport).
Alan Scott Pickel, with whom, on the brief, was
Anthony L. Cenatiempo, for the appellees (plaintiffs).
Opinion
ROBINSON, C. J. This appeal requires us to consider
the nature and scope of the immunity provided to the
state and its political subdivisions by General Statutes
§ 28-13 (a)1 for actions taken in connection with a civil
preparedness emergency declared by the governor pur-
suant to General Statutes § 28-9,2 which, in the present
case, related to a blizzard that occurred in February,
2013. The defendant city of Bridgeport (city)3 appeals4
from the trial court’s denial of its motion for summary
judgment in the present case, which was commenced
by the plaintiff, Marinelis Sena, both individually and
as administratrix of the estate of Tyrone O. Tillman.5
The operative complaint alleges, inter alia, that the city
was negligent in (1) not following its usual practice of
sending a fire truck with an emergency medical techni-
cian in addition to an ambulance to render medical
care to Tillman when he experienced severe breathing
difficulty on February 11, 2013, and (2) preventing the
ambulance from arriving promptly by allowing snow to
remain on certain public roadways. On appeal, the city
claims, inter alia, that it was immune for its actions pur-
suant to § 28-13, and that the trial court improperly deter-
mined that a genuine issue of material fact existed as to
whether the civil preparedness emergency remained in
effect on the date of Tillman’s death. We conclude that
(1) an appealable final judgment exists because the
city’s claims of immunity pursuant to § 28-13 implicate
an extension of the state’s sovereign immunity to the
city, and (2) the trial court should have granted the
city’s motion for summary judgment because there was
no genuine issue of material fact with respect to the
applicability of § 28-13. Accordingly, we reverse the
judgment of the trial court.
The record reveals the following relevant facts6 and
procedural history. On February 8 and 9, 2013, a bliz-
zard, verified by the National Weather Service, occurred
in nearly all of southern Connecticut. In anticipation
of the blizzard, on February 7, 2013, at 1 p.m., represen-
tatives from the city’s various departments and the local
emergency preparedness board convened a meeting of
the Bridgeport Emergency Planning Group, which was
held at the city’s emergency operations center (EOC).
At that meeting, the members from the city’s depart-
ments reviewed the city’s emergency preparedness
plan, designated representatives who would attend civil
emergency planning sessions, and began to identify
essential personnel who would be assigned during the
expected emergency.
On February 8, 2013, beginning at 7 a.m., the city
began to implement its emergency preparedness plan.
Full operations at the EOC were initiated that morning,
and numerous city officials conducted a conference
call with the statewide emergency operations center
in order to ensure that the city’s storm response was
coordinated with the state’s efforts. At 11 a.m., Mayor
Bill Finch held a press conference and announced his
intention to declare a civil preparedness emergency for
the city, which included the institution of a citywide
ban on driving so that plows could keep the roads clear.
At 11:45 a.m., Governor Dannel Malloy held a press
conference and declared a civil preparedness emer-
gency pursuant to § 28-9.7 Shortly thereafter, the EOC
activated its response at level 4 and assumed centralized
control over the city’s response to the blizzard.8
By 5 p.m. on February 8, 2013, Governor Malloy had
issued a statewide travel ban of all vehicles on any state
road. By 8 p.m., snowfall was so severe that the EOC
determined that it was unsafe for all vehicles other than
plows to be on the city’s roads. Whiteout conditions
later that night required the recall of all plows. The
EOC then restricted the response of municipal fire and
police departments. Decisions regarding whether those
departments would respond to reported emergencies
were made by their representatives at the EOC, rather
than by emergency communications employees. Wil-
liam Schietinger, the representative at the EOC from
the city’s ambulance contractor, American Medical
Response of Connecticut, Inc. (AMR), similarly sus-
pended ambulance service temporarily because of
whiteout conditions. As visibility improved, the EOC
decided that AMR could resume providing ambulance
service, and, at 3 a.m. on February 9, 2013, plows
returned to the streets.
Beginning midday on February 9, 2013, the EOC
shifted its attention from storm response to snow
removal. The snow removal process was unusually diffi-
cult because snow accumulation reached a level higher
than the typical dump truck with plow attached could
move, and many cars had not been removed from public
streets, despite the parking bans in effect. This resulted
in vehicles having to be dug out and towed before
streets could be plowed. Because of the substantial
snow accumulation, the EOC requested that the state
send national guard personnel and equipment to assist
with snow removal and emergency responses. That
additional snow removal equipment did not begin to
arrive until February 10, 2013. Given the paralyzing
snow accumulation, most of the city’s residents were
confined to their homes.
The limited ability of the fire and police departments
to respond to calls for assistance continued in the wake
of the storm because most police and fire stations had
not yet dug out. On February 10, 2013, at 2 a.m., Brian
Rooney, the city’s fire chief, and Dominic Carfi, a deputy
fire chief who had been the fire department’s represen-
tative at the EOC during the storm, determined that, in
the case of medical emergencies, the only response
would be through AMR because it was not physically
possible for the city’s fire trucks to leave the stations.
Carfi conveyed that decision to the city’s 911 emergency
communications employees via their supervisor. Once
fire headquarters was cleared of snow by approximately
10 a.m. that day, the fire department was able to use a
limited number of four wheel drive sport utility vehicles
that could be driven on plowed streets to respond to
emergencies. In consultation with AMR’s representative
in the EOC, a deputy fire chief who had relieved Carfi
would authorize the dispatch of one of these sport utility
vehicles to emergency medical calls depending on road
conditions, the location of the call, and the severity of
the medical condition.
On Monday, February 11, 2013, twelve front end load-
ers arrived and provided assistance in the clearing of
the city’s primary roads. However, city offices remained
closed, no regular city employees reported for work,
and schools would remain closed for the remainder of
the week. As of 8 p.m. that day, a citywide driving ban
remained in effect, and only 100 roads were open to
emergency vehicles. Most of those were primary roads.
Several hundred secondary roads were still closed or
impassible, and tow trucks were still in the process of
removing abandoned vehicles.
At approximately 7:18 p.m. on February 11, 2013,
Tillman called 911 complaining of severe breathing diffi-
culty. At 7:27 p.m., AMR dispatched an ambulance to
assist Tillman. The fire department did not respond.
According to an affidavit submitted by Scott Appleby,
the city’s Director of Emergency Management and
Homeland Security, Stevens Street, on which Tillman
lived, had not yet been plowed at that time. Brian Walts
and William T. Ostroff, emergency medical technicians
employed by AMR, reached Tillman at 7:36 p.m. and
rendered emergency care until 8:04 p.m. Tillman was
subsequently transported to a local hospital, where he
was pronounced dead upon arrival.
The efforts to clear at least one lane on each of the
city’s roads continued until February 12, 2013. It took
an additional week for the city’s roads to be cleared to
the point where traffic could pass normally. The EOC
maintained command over storm response and snow
removal through February 14, 2013, after which opera-
tional control over the various city departments, includ-
ing the fire department, was returned to the normal
operating procedure. The EOC remained staffed and
active through February 17, 2013, at which point the
operational period ended, the response was terminated,
and the EOC was vacated by all personnel except
Appleby.
The plaintiff subsequently brought the present action
against the city, AMR, Ostroff, and Walts. In counts
twenty and twenty-one of the operative complaint, the
plaintiff claims the city negligently failed to follow the
local emergency service plan and permitted a highway
defect to exist pursuant to General Statutes § 13a-149.
On September 27, 2016, the city moved for summary
judgment on immunity grounds. On November 16, 2016,
the plaintiff filed an objection to that motion together
with an accompanying memorandum of law.
On March 8, 2017, the trial court issued a memoran-
dum of decision denying the city’s motion for summary
judgment. The trial court first rejected the city’s argu-
ment that the present action is barred by common-law
governmental immunity. The trial court next addressed
the city’s argument that it is absolutely immune from
liability pursuant to § 28-13. The trial court concluded
that, although the city had met its initial burden of
producing evidence sufficient to support a judgment in
its favor on the issue of § 28-13 immunity, the plaintiff
had submitted evidence contradicting the city’s evi-
dence concerning whether the city was still experienc-
ing a civil preparedness emergency at the time of Till-
man’s death. The trial court also observed that the
relevant statutes do not prescribe how to determine
when an emergency has ended for purposes of § 28-13
immunity and suggested that a ‘‘workable ‘end date’ is
needed.’’ Accordingly, the trial court concluded that,
on the basis of the evidence before it, the city could
not invoke the protections of § 28-13 immunity because
a genuine issue of material fact existed as to whether the
city was still actively experiencing a civil preparedness
emergency at the time of Tillman’s death. This appeal
followed. See footnote 4 of this opinion.
On appeal, the city argues that the trial court incor-
rectly concluded that the end date of a civil prepared-
ness emergency has statutory significance under § 28-
13, and incorrectly concluded that there was a genuine
issue of material fact concerning the issue of § 28-13
immunity. The plaintiff disagrees and also argues that
the trial court’s denial of the city’s motion for summary
judgment does not constitute an appealable final
judgment.
I
As a threshold issue, we must determine whether the
trial court’s denial of the city’s motion for summary
judgment is a final judgment over which we have sub-
ject matter jurisdiction.9 Relying on Shay v. Rossi, 253
Conn. 134, 749 A.2d 1147 (2000), overruled on other
grounds by Miller v. Egan, 265 Conn. 301, 828 A.2d 549
(2003), the city argues that there is an appealable final
judgment because its motion for summary judgment
was grounded on a colorable claim that § 28-13 grants
the city and its police and fire departments sovereign
immunity for actions taken in response to declared
emergencies. In response, the plaintiff relies on Vejseli
v. Pasha, 282 Conn. 561, 923 A.2d 688 (2007), and con-
tends that we lack jurisdiction over the city’s appeal
because the city’s motion for summary judgment under
§ 28-13 was founded on governmental, rather than sov-
ereign, immunity. Additionally, the plaintiff argues that
an issue of material fact still exists regarding whether
the city was undergoing a state of emergency at the
time of Tillman’s death and, thus, whether the immunity
afforded by the statute applies. We agree with the city
and conclude that the trial court’s denial of its motion
for summary judgment was an appealable final judg-
ment because § 28-13 extends the state’s sovereign
immunity to political subdivisions, such as munici-
palities.
‘‘The lack of a final judgment implicates the subject
matter jurisdiction of an appellate court to hear an
appeal. A determination regarding . . . subject matter
jurisdiction is a question of law [and, therefore] our
review is plenary. . . .
‘‘Neither the parties nor the trial court . . . can con-
fer jurisdiction upon [an appellate] court. . . . The
right of appeal is accorded only if the conditions fixed
by statute and the rules of court for taking and prosecut-
ing the appeal are met. . . . It is equally axiomatic that,
except insofar as the legislature has specifically pro-
vided for an interlocutory appeal or other form of inter-
locutory appellate review . . . appellate jurisdiction is
limited to final judgments of the trial court.’’ (Citation
omitted; internal quotation marks omitted.) Ledyard v.
WMS Gaming, Inc., 330 Conn. 75, 84, 191 A.3d 983
(2018); see also General Statutes § 52-263.10
‘‘As a general rule, an interlocutory ruling may not
be appealed pending the final disposition of a case. . . .
We previously have determined [however] that certain
interlocutory orders have the attributes of a final judg-
ment and consequently are appealable under . . . § 52-
263. . . . In State v. Curcio, [191 Conn. 27, 31, 463 A.2d
566 (1983)], we explicated two situations in which a
party can appeal an otherwise interlocutory order: (1)
where the order or action terminates a separate and
distinct proceeding, or (2) where the order or action
so concludes the rights of the parties that further pro-
ceedings cannot affect them.11 . . .
‘‘The second prong of the Curcio test focuses on
the nature of the right involved. It requires the parties
seeking to appeal to establish that the trial court’s order
threatens the preservation of a right already secured
to them and that that right will be irretrievably lost
and the [party] irreparably harmed unless they may
immediately appeal. . . . Thus, a bald assertion that
the defendant will be irreparably harmed if appellate
review is delayed until final adjudication . . . is insuffi-
cient to make an otherwise interlocutory order a final
judgment. One must make at least a colorable claim
that some recognized statutory or constitutional right
is at risk. . . .
‘‘In Shay v. Rossi, supra, 253 Conn. 165–67, we con-
cluded that [t]he nature of sovereign immunity is such
a right. It protects the state, not only from ultimate
liability for alleged wrongs, but also from being required
to litigate whether it is so liable. Therefore, unless the
state is permitted to appeal a trial court’s denial of its
motion to dismiss, filed on the basis of a colorable
claim of sovereign immunity, the state’s right not to be
required to litigate the claim filed against it would be
irretrievably lost.
‘‘We have in the past phrased the underlying rationale
of the doctrine of sovereign immunity in theoretical
terms. For example, in Horton v. Meskill, 172 Conn.
615, 623–24, 376 A.2d 359 (1977), we noted, as . . .
Justice [Oliver Wendell Holmes, Jr.] wrote: A sovereign
is exempt from suit, not because of any formal concep-
tion or obsolete theory, but on the logical and practical
ground that there can be no legal right as against the
authority that makes the law on which the right
depends. . . . The modern rationale for the doctrine,
however, rests on the more practical ground that the
subjection of the state and federal governments to pri-
vate litigation might constitute a serious interference
with the performance of their functions and with their
control over their respective instrumentalities, funds
and property. . . . This rationale suggests that the doc-
trine protects the state from unconsented to litigation,
as well as unconsented to liability.
‘‘Although we have never explicitly delineated this
particular aspect of the doctrine in final judgment
terms, our sovereign immunity cases implicitly have
recognized that the doctrine protects against suit as
well as liability—in effect, against having to litigate at
all. In Bergner v. State, 144 Conn. 282, 286, 130 A.2d
293 (1957), we recognized the distinction between
immunity from suit and from liability, and held that a
statutory waiver of sovereign immunity constituted a
waiver of suit and provided a remedy to enforce such
liability as the general law recognizes. . . . [T]he
state’s waiver of its immunity from liability only arises
after a prior determination that it has waived its immu-
nity from suit, and that a waiver of immunity from suit
does not necessarily imply a waiver of immunity from
all aspects of liability.
‘‘Thus . . . the state’s sovereign immunity right not
to be required to litigate at all, as opposed to its right
not to be ultimately subjected to liability, is analogous
to that facet of the criminal defendant’s constitutional
double jeopardy right not to be tried twice for the same
offense. Because that constitutional right includes the
right not even to be tried for the same offense, the
denial of a motion to dismiss criminal charges, filed on
the basis of a colorable claim of double jeopardy, is
an immediately appealable final judgment under the
second prong of Curcio. . . . Similarly, therefore, in a
civil case the denial of a motion to dismiss, filed on the
basis of a colorable claim of sovereign immunity, must
be regarded under Curcio as an immediately appealable
final judgment.’’ (Citation omitted; footnotes added and
omitted; internal quotation marks omitted.) Vejseli v.
Pasha, supra, 282 Conn. 568–71; see also Chadha v.
Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865
A.2d 1163 (2005) (partial denial of defendants’ motion
for summary judgment, which had colorable claim of
absolute immunity for participation in judicial and
quasi-judicial proceedings, constituted appealable final
judgment for same reason that rejection of colorable
claim of sovereign immunity gives rise to immediately
appealable final judgment, namely, to protect against
threat of suit).
Within our final judgment jurisprudence, we have
held that judgments affecting a right of governmental
immunity are treated differently under the second prong
of Curcio than those affecting a right of sovereign
immunity. ‘‘[W]hereas [t]he doctrine of sovereign immu-
nity implicates subject matter jurisdiction and is there-
fore a basis for granting a motion to dismiss . . . the
doctrine of governmental immunity implicates no such
interest. . . . Indeed, we expressly have recognized
that, [u]nlike the state, municipalities have no sovereign
immunity from suit. . . . Rather, municipal govern-
ments have a limited immunity from liability. . . .
‘‘Governmental immunity, which applies to munici-
palities, is different in historical origin, scope and appli-
cation from the sovereign immunity enjoyed by the
state. A suit against a municipality is not a suit against
a sovereign. Towns have no sovereign immunity, and
are capable of suing and being sued . . . in any action.
. . . Municipalities do, in certain circumstances, have
a governmental immunity from liability. . . . But that
is entirely different from the state’s sovereign immunity
from suit. . . . Accordingly . . . municipalities are
immune from liability only, and not from suit. . . .
‘‘Because municipalities are immune from liability,
but not from suit, the concerns that justify the availabil-
ity of an immediate appeal from the denial of a motion
to dismiss based on sovereign immunity are not impli-
cated in the context of governmental immunity. Put
differently, municipalities have no immunity from suit
that potentially might be rendered meaningless without
the opportunity for immediate appellate review before
being forced to defend, even successfully, a case at
trial. . . . Accordingly . . . the denial of a motion to
dismiss or to strike based on governmental immunity
is not an appealable final judgment under the second
prong of Curcio.’’ (Citations omitted; emphasis omitted;
footnote omitted; internal quotation marks omitted.)
Vejseli v. Pasha, supra, 282 Conn. 572–75.
In contrast to Shay, a case in which there was no
dispute that the defendants’ claim of sovereign immu-
nity was colorable; Shay v. Rossi, supra, 253 Conn. 168;
the parties in the present case disagree as to whether
the city has presented a colorable claim of sovereign
immunity. In determining whether a claim is colorable
for purposes of whether a ‘‘decision constitutes a final
judgment that provides this court with jurisdiction to
consider the merits of that decision,’’ we emphasize
that a ‘‘colorable claim is one that is superficially well
founded but that may ultimately be deemed invalid
. . . .’’ (Internal quotation marks omitted.) BNY West-
ern Trust v. Roman, 295 Conn. 194, 209, 990 A.2d 853
(2010). ‘‘For a claim to be colorable, the defendant need
not convince the . . . court that he necessarily will
prevail; he must demonstrate simply that he might pre-
vail.’’ (Emphasis in original; internal quotation marks
omitted.) In re Santiago G., 325 Conn. 221, 231, 157
A.3d 60 (2017).
Although it is now axiomatic that a political subdivi-
sion may not ordinarily claim sovereign immunity as a
defense to a claim against it; see, e.g., Vejseli v. Pasha,
supra, 282 Conn. 572; the city contends that the trial
court’s denial of its motion for summary judgment is
an appealable final judgment because § 28-13 extends
to it the state’s sovereign immunity under the circum-
stances of this case. We, therefore, turn to § 28-13 to
determine the nature of the immunity afforded to politi-
cal subdivisions. This presents a question of statu-
tory construction.
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . . The
test to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation.’’ (Internal quotation marks omit-
ted.) In re Henrry P. B.-P., 327 Conn. 312, 324–25, 173
A.3d 928 (2017).
We begin with the text of § 28-13 (a), which provides:
‘‘Neither the state nor any political subdivision of the
state nor, except in cases of wilful misconduct, the
agents or representatives of the state or any political
subdivision thereof nor any member of the civil pre-
paredness forces of the state nor any person authorized
by such civil preparedness forces or by any member
of such civil preparedness forces complying with or
attempting to comply with this chapter or any order or
regulation promulgated pursuant to the provisions of
this chapter, or pursuant to any ordinance relating to
blackout or other precautionary measures enacted by
any political subdivision of the state nor any person
employed by or authorized to assist any agency of the
federal government in the prevention or mitigation of
any major disaster or emergency, shall be liable for the
death of or injury to persons or for damage to property
as a result of any such activity. The Attorney General
shall appear for and defend the state, any political
subdivision of the state and the agents or representa-
tives of the state or any political subdivision thereof or
any member of the civil preparedness forces of the state
or any other person exempted from liability for his acts
under this section in any civil action brought for the
death of or injury to persons or for damage to property
as a result of any civil preparedness activity.’’ (Empha-
sis added.)
By its plain language, the statute provides that several
actors, including political subdivisions of the state, shall
not be ‘‘liable for the death of or injury to persons or
for damage to property as a result of any such activity.’’
‘‘[S]uch activity’’ refers to ‘‘complying with or
attempting to comply with this chapter or any order or
regulation promulgated pursuant to the provisions of
this chapter, or pursuant to any ordinance relating to
blackout or other precautionary measures enacted by
any political subdivision of the state . . . .’’ General
Statutes § 28-13 (a). The statute unambiguously pro-
vides immunity to political subdivisions for death or
injury to persons that result from, inter alia, attempted
compliance with chapter 517 of the General Statutes.
What is unclear from the plain language of the statute,
however, is the nature of that immunity. Because the
statute uses the word ‘‘liability,’’ it could reasonably be
interpreted as implicating governmental immunity—an
immunity from liability, but not from suit. But the stat-
ute could also reasonably be read as conferring statu-
tory immunity akin to sovereign immunity—an immu-
nity from suit as well as liability. That reading finds
support in the second half of § 28-13 (a), which requires
the attorney general to ‘‘appear for and defend’’ political
subdivisions. That dedication of state resources in the
form of representation by the attorney general to mat-
ters typically handled by the corporation counsel of a
political subdivision can reasonably be read as an
attempt to shield political subdivisions from the cost
and defense of lawsuits altogether. Because the statute
is susceptible to more than one reasonable interpreta-
tion, we conclude that it is ambiguous and, therefore,
consider extratextual evidence of legislative intent,
including the statute’s legislative history and the policy
objectives the statute was intended to implement. See
In re Henrry P. B.-P., supra, 327 Conn. 324–25.
The relevant legislative history, although scant, sup-
ports the city’s argument that § 28-13 immunity consti-
tutes an extension of sovereign immunity to political
subdivisions. The statutory scheme at issue, which was
originally enacted in 1949, addressed civil defense con-
cerns and contemplated new forms of warfare, includ-
ing the atomic bomb. See Conn. Joint Standing Commit-
tee Hearings, Judiciary, 1950 Spec. Sess., pp. 6–7.
Wesley A. Sturges, a former administrator of the State
Defense Council, testified before the Judiciary Commit-
tee during a 1950 public hearing concerning the reen-
actment of the statutory scheme, and opined as follows
on the issue of immunity: ‘‘My other suggestion con-
cerns [the provision of the] bill which has to do with
granting of immunity to personnel engaged in Civil
Defense Service and except for cases of [wilful] miscon-
duct there should be no liability as to tort liability or
under the [c]ivil [d]efense law. I recommend you con-
sider that the [s]tate and political subdivisions make
available defense counsel for these personnel members.
It is well to say he shall not be liable for acts necessary
in performance of duty but the opportunity for suit still
obtains. When a suit is brought against me it costs me
money and I believe it is worthy of consideration as a
check for costs and payment for services.’’ Id., pp. 7–9.
Sturges’ testimony highlighted the concern that suits
might still be brought against civil defense personnel
by requesting that the cost of representation in such a
suit be borne by the state, effectively protecting person-
nel from one of the key costs of litigation. This testi-
mony suggests that the legislature intended the lan-
guage at issue to address the difficulties faced by civil
defense personnel as a result of such suits, even in
cases in which people are ultimately immune from lia-
bility, thus indicating that the early intent of the legisla-
tion was to provide immunity from suit altogether.12
See Hatt v. Burlington Coat Factory, 263 Conn. 279,
314, 819 A.2d 260 (2003) (‘‘[I]t is now well settled that
testimony before legislative committees may be consid-
ered in determining the particular problem or issue that
the legislature sought to address by the legislation. . . .
This is because legislation is a purposive act . . . and,
therefore, identifying the particular problem that the
legislature sought to resolve helps to identify the pur-
pose or purposes for which the legislature used the
language in question.’’ [Internal quotation marks omit-
ted.]); see also, e.g., State v. Bush, 325 Conn. 272, 290–
91, 157 A.3d 586 (2017); Commissioner of Public Safety
v. Freedom of Information Commission, 301 Conn.
323, 351 and n.11, 21 A.3d 737 (2011).
Legislative history from debates on certain alter-
ations to the statutory scheme in 1979 resolves any
lingering questions as to the legislature’s intentions. In
1979, the legislature aligned the definitions of state law
with the federal statutory scheme, in order to allow for
a seamless response from federal, state, and local forces
under a unity of command.13 On the immunity provision
specifically, a proponent of the relevant bill in the Sen-
ate, Senator Clifton A. Leonhardt, remarked: ‘‘[W]hat
this [b]ill basically would do is bring certain aspects of
our [c]ivil [p]reparedness [s]tatutes into line with fed-
eral statutes and federal guidelines in five areas. First
of all, the [b]ill would distinguish between major disas-
ters on the one hand and emergencies on the other so
that the [state] could qualify for federal aid in emergen-
cies that are less than federal disasters; less than major
disasters. It would also clarify that civil preparedness
personnel, including federal employees, are protected
from liability for actions related to their civil pre-
paredness actions.’’ (Emphasis added.) 22 S. Proc., Pt.
7, 1979 Sess., p. 2121. Senator Leonhardt then expanded
on what it meant to be ‘‘protected from liability’’ in an
exchange with Senator Russell Lee Post, Jr.
‘‘Senator Post: [Am] I correct Senator Leonhardt, that
a person now who is authorized by the [s]tate as the
result of a snowstorm occurring anywhere in the coun-
try, could come onto your property . . . and do dam-
age, and you would not have the right to sue them? . . .
‘‘Senator Leonhardt: As long as they are executing a
civil preparedness function and they’re not engage in
a situation of [wilful] misconduct. That’s the case. . . .
‘‘Senator Post: If a person . . . is authorized by the
[s]tate [and] comes onto your property and does dam-
age, it’s not that that person is held harmless by the
[s]tate and would recover any expenses of suit, but
rather the property owner under this, has no recourse
against the [s]tate or the town or any local official,
operating under this [provision]? Is that correct?
‘‘Senator Leonhardt: [That] is correct. And I think
this is very much in keeping with the long-standing
tradition that in situations of civil emergency, the
[s]tate has certain extraordinary powers that have to
be executed and this statute is not changing the concept
there at all, except to extend it to federal officials who
are assisting the [s]tate. We’re really building on a very
long-time, well established concept and only saying
that the same, very same concepts that we, for a long
time had for local and state officials we’re now going
to extend to federal officials who come into the [s]tate
. . . at our request, to help us in times of civil emer-
gency.’’ (Emphasis added.) Id., pp. 2127–29.
This colloquy establishes that the bill’s proponent in
the Senate believed that the statute, as it previously
existed, included the ‘‘very long-time, well established
concept’’ that the immunity provided in the statute was
immunity from suit and not from liability alone. Given
the ambiguity of the statutory text, this language sug-
gests that the legislature intended to provide to certain
federal officials the same immunity from suit that it
believed political subdivisions already enjoyed under
the statute. Moreover, this construction is consistent
with the purpose of the 1979 amendments to the statute,
namely, bolstering a seamless unity of command
whereby political subdivisions and local officials may
be effectively conscripted into service on the state’s
behalf at the order of the governor. In such a situation,
it is entirely reasonable that the legislature would wish
to provide these local actors with the same immunity
from suit that the state itself enjoys. See, e.g., Cahill
v. Board of Education, 187 Conn. 94, 101–102, 444 A.2d
907 (1982) (municipal boards of education are ‘‘agents
of the state responsible for education in the towns’’
entitled to sovereign immunity if board’s ‘‘action would
operate to control the activities of the state or subject
it to liability’’); see also Vejseli v. Pasha, supra, 282
Conn. 575 n.12. Although the city does not possess
common-law sovereign immunity, it is clear from the
salient legislative history that the legislature intended
for § 28-13 to provide political subdivisions, like the
city, with immunity from suit and not just immunity
from liability. We conclude, therefore, that § 28-13
extends the state’s sovereign immunity, including both
its immunity from suit and liability, to political subdivi-
sions. Accordingly, we further conclude that the city has
a colorable claim of sovereign immunity, and, therefore,
the trial court’s denial of the city’s motion for summary
judgment constitutes a final judgment over which we
have jurisdiction.
II
We now consider whether the trial court properly
denied the city’s motion for summary judgment on the
basis of its determination that a genuine issue of mate-
rial fact existed as to whether the civil preparedness
emergency was still in effect on the date of the allega-
tions of the plaintiff’s complaint. The city’s principal
contentions are that the trial court improperly con-
strued the statutes at issue and that the dispute of fact
identified by the trial court, namely, whether the civil
preparedness emergency was still in effect, is not a
dispute of material fact. The plaintiff argues in
response that the trial court properly construed the
statutes, insofar as the city’s failures to follow its local
emergency service plan and to clear its roads are not
activities for which the city is afforded immunity under
§ 28-13, and that, even if such activities are covered by
§ 28-13, the trial court correctly concluded that an issue
of material fact still exists. We conclude that the trial
court improperly construed the nature and scope of
§ 28-13 immunity and also incorrectly determined that
there remains a genuine issue of material fact pertaining
to the application of § 28-13 immunity.
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
the material facts, which, under applicable principles
of substantive law, entitle[s] him to a judgment as a
matter of law. The courts hold the movant to a strict
standard. To satisfy [this] burden the movant must
make a showing that it is quite clear what the truth is,
and that excludes any real doubt as to the existence of
any genuine issue of material fact. . . . As the burden
of proof is on the movant, the evidence must be viewed
in the light most favorable to the opponent. . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue. . . . Once the moving party has met
its burden, however, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
such a disputed issue. Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court under Practice Book [§ 17-45] . . . .
Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) State Farm Fire & Casualty
Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
Given our conclusion in part I of this opinion that
§ 28-13 represents an extension of the state’s sovereign
immunity to political subdivisions, we note that it is
well established that ‘‘[s]overeign immunity relates to
a court’s subject matter jurisdiction over a case, and
therefore presents a question of law over which we
exercise de novo review. . . . In so doing, we must
decide whether [the trial court’s] conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Markley v. Dept. of Public Utility Control, 301
Conn. 56, 64–65, 23 A.3d 668 (2011). Accordingly, our
standard of review over the trial court’s legal construc-
tion of the statutory immunity provided for in § 28-13
is plenary.
As previously stated, our construction of a statute is
governed by § 1-2z. See, e.g., In re Henrry P. B.-P.,
supra, 327 Conn. 324–25. As we observed in part I of
this opinion, by its plain language, § 28-13 (a) provides
a number of actors, including political subdivisions of
the state, with immunity from suit ‘‘for the death of or
injury to persons or for damage to property as a result
of any such activity,’’ with ‘‘such activity’’ defined as
‘‘complying with or attempting to comply with this chap-
ter or any order or regulation promulgated pursuant
to the provisions of this chapter, or pursuant to any
ordinance relating to blackout or other precautionary
measures enacted by any political subdivision of the
state . . . .’’ (Emphasis added.) General Statutes § 28-
13 (a). The statute unambiguously affords political sub-
divisions immunity for death or injury to persons that
result from the ‘‘activity’’ delineated in § 28-13.
Our conclusion that this ‘‘activity’’ includes the EOC’s
command and control of storm response and snow
removal, as well as decisions made during that process,
such as those regarding which streets to plow and
whether to send a fire truck in response to an emer-
gency, finds further support in the plain text of § 28-13
(a). The first sentence of § 28-13 (a) immunizes political
subdivisions, such as the city, from suit for the ‘‘death
of or injury to persons or for damage to property’’ that
results from ‘‘complying with or attempting to comply
with this chapter or any order or regulation promul-
gated pursuant to the provisions of this chapter, or
pursuant to any ordinance relating to blackout or other
precautionary measures enacted by any political subdi-
vision of the state . . . .’’ The second sentence of § 28-
13 (a) executes the immunity provided by the first sen-
tence by requiring the attorney general to ‘‘appear for
and defend’’ those entities and individuals described in
the first sentence ‘‘in any civil action brought for the
death of or injury to persons or for damage to property
as a result of any civil preparedness activity.’’ (Empha-
sis added.)
General Statutes § 28-1 (4) defines civil preparedness
broadly to include ‘‘all those activities and measures
designed or undertaken (A) to minimize or control the
effects upon the civilian population of major disaster
or emergency, (B) to minimize the effects upon the
civilian population caused or which would be caused
by an attack upon the United States, (C) to deal with
the immediate emergency conditions which would be
created by any such attack, major disaster or emer-
gency, and (D) to effectuate emergency repairs to, or
the emergency restoration of, vital utilities and facilities
destroyed or damaged by any such attack, major disas-
ter or emergency. Such term shall include, but shall
not be limited to, (i) measures to be taken in prepara-
tion for anticipated attack, major disaster or emer-
gency, including the establishment of appropriate orga-
nizations, operational plans and supporting agreements;
the recruitment and training of personnel; the conduct
of research; the procurement and stockpiling of neces-
sary materials and supplies; the provision of suitable
warning systems; the construction and preparation of
shelters, shelter areas and control centers; and, when
appropriate, the nonmilitary evacuation of the civilian
population, pets and service animals; (ii) measures to
be taken during attack, major disaster or emergency,
including the enforcement of passive defense regula-
tions prescribed by duly established military or civil
authorities; the evacuation of personnel to shelter areas;
the control of traffic and panic; and the control and
use of lighting and civil communication; and (iii) mea-
sures to be taken following attack, major disaster or
emergency, including activities for firefighting; res-
cue, emergency medical, health and sanitation ser-
vices; monitoring for specific hazards of special weap-
ons; unexploded bomb reconnaissance; essential debris
clearance; emergency welfare measures; and immedi-
ately essential emergency repair or restoration of dam-
aged vital facilities.’’ (Emphasis added.) The scope of
activity included within § 28-13 is broad, as the types
of activity listed in § 28-1 (4) include, but are not limited
to, measures to be taken ‘‘in preparation for,’’ ‘‘during,’’
and ‘‘following’’ a major disaster or emergency.14 Gen-
eral Statutes § 28-1 (4). Measures undertaken ‘‘to mini-
mize or control the effects upon the civilian population
of major disaster or emergency’’ and measures taken
‘‘following [a] major disaster or emergency,’’ such as
‘‘activities for firefighting’’ and ‘‘rescue, emergency
medical, health and sanitation services’’; General Stat-
utes § 28-1 (4); unambiguously include the EOC’s com-
mand and control of storm response and snow removal,
as well as decisions made during that process, such
as decisions regarding which roads to clear and the
circumstances in which a fire truck should respond to
an emergency call.
The trial court concluded, however, that § 28-13
affords various state entities immunity from liability
only during a civil preparedness emergency. In so con-
cluding, the trial court relied on the catchline of § 28-
13: ‘‘Immunity from liability. Penalty for denial of access
to property during civil preparedness emergency.’’ We
observe, however, that catchlines such as this one ‘‘are
prepared, and from time to time changed, by the Revi-
sors [of the General Statutes] and are intended to be
informal brief descriptions of the contents of the [statu-
tory] sections. . . . These boldface catchlines should
not be read or considered as statements of legislative
intent since their sole purpose is to provide users with
a brief description of the contents of the sections.’’
Preface to the General Statutes, p. vii; see also Clark
v. Commissioner of Correction, 281 Conn. 380, 389 n.14,
917 A.2d 1 (2007). We conclude, therefore, that the
trial court incorrectly concluded that § 28-13 immunity
applies only during a civil preparedness emergency.
Instead, as we have discussed, § 28-13 immunity, by the
plain language of the statute, applies to the activities
discussed in the statute, which include measures to be
taken ‘‘in preparation for,’’ ‘‘during,’’ and ‘‘following’’ a
major disaster or emergency. General Statutes § 28-
1 (4).
Despite its construction of the statute, the trial court
nevertheless concluded that the city had ‘‘met its [ini-
tial] burden of putting forth evidence sufficient to sup-
port a judgment in its favor on the ground of § 28-13
(a) immunity’’ and pointed to the following evidence
to support its conclusion: (1) evidence showing that a
civil preparedness emergency was declared for the state
by Governor Malloy pursuant to § 28-9, and for the city
by Mayor Finch, on February 8, 2013; (2) the testimony
of Appleby that the EOC was in full operation by 8 a.m.
on February 8, 2013, despite neither Governor Malloy’s
nor Mayor Finch’s having yet officially declared a civil
preparedness emergency; (3) evidence showing that,
although snow stopped falling around noon on February
9, 2013, the EOC retained command and control of
storm response and snow removal through February
14, 2013, and remained staffed and active through Feb-
ruary 17, 2013, when the operational period ended,
response was terminated, and the office was vacated
by all personnel except Appleby; (4) a declaration from
the United States Department of Homeland Security’s
Federal Emergency Management Agency that federal
disaster aid had been made available to the state to
supplement state, tribal, and local recovery efforts in
the area affected by a severe winter storm and snow-
storm from February 8 through 11, 2013; (5) evidence
demonstrating that the relevant ‘‘incident period’’
occurred between February 8 and 12, 2013, and that a
‘‘major disaster’’ had been declared on March 21, 2013;
and (6) the testimony of Brenda M. Bergeron, principal
attorney for the Division of Emergency Management
and Homeland Security within the Connecticut Depart-
ment of Emergency Services and Public Protection, that
Governor Malloy’s declaration of a civil preparedness
emergency was still in effect on February 11 and 12,
2013, and was not formally revoked until March 18,
2013, pursuant to Executive Order No. 33.
The trial court observed, however, that ‘‘the plaintiff
has presented evidence contradicting the [city’s] evi-
dence with respect to whether [it] was still experiencing
a civil preparedness emergency, for purposes of § 28-
13 (a) immunity, at the time of [Tillman’s] death.’’ As
contradicting evidence, the trial court cited the follow-
ing: (1) ‘‘[w]ith respect to Mayor Finch’s declaration,
Appleby initially testified that he believe[d] it was
revoked on February 16, 2013, but then subsequently
stated that the EOC time line for the operational period
designated a termination of the emergency operations
response on February 17, 2013,’’ and also testified ‘‘that
he was unaware of any official declaration by [Mayor
Finch] revoking the state of emergency’’; (2) ‘‘with
respect to the city’s . . . fire response protocol during
the period in question, Appleby testified that, late in
the day on February 8, 2013, the EOC issued a directive
. . . that response of the police and fire departments
would be restricted,’’ Carfi testified ‘‘that the fire
response protocol restriction was lifted prior to the
evening of February 11, 2013,’’ and Rooney testified
that ‘‘fire engines and fire trucks could get out and
respond to calls [on February 11, 2013], if necessary.’’
(Internal quotation marks omitted.) We conclude that
none of these facts is ‘‘[a] material fact . . . which will
make a difference in the result of the case.’’ (Internal
quotation marks omitted.) Doe v. West Hartford, 328
Conn. 172, 191–92, 177 A.3d 1128 (2018).
First, with respect to Appleby’s testimony regarding
the revocation of Mayor Finch’s declaration, any dis-
pute concerning the date of the revocation is not mate-
rial because February 16 and 17, 2013, both came after
the events at issue in this case. Most saliently, the revo-
cation of Mayor Finch’s declaration does nothing to
dispute the ample evidence in the record showing that
the city was ‘‘complying with or attempting to comply
with [the civil preparedness statutes] or any order or
regulation promulgated pursuant to the [the civil pre-
paredness statutes]’’ on the date that the conduct at
issue occurred. Specifically, the record contains evi-
dence that the EOC retained command and control of
storm response and snow removal through February
14, 2013, and remained staffed and active through Feb-
ruary 17, 2013, evidence that a civil preparedness emer-
gency was ongoing at that time pursuant to Governor
Malloy’s declaration, and evidence that efforts to clean
city roads continued until at least February 12, 2013.
Second, whether the partial lifting of the fire response
protocol restriction occurred prior to the date of the
allegations in the plaintiff’s complaint likewise does not
give rise to a material fact because that distinction does
nothing to contradict the ample evidence in the record
that the city was still engaged in activities afforded
immunity by § 28-13 on the date relevant to the plain-
tiff’s allegations. Consequently, we conclude that the
trial court incorrectly concluded that the city had failed
to meet its ultimate burden of showing the absence of a
genuine issue of material fact. The trial court, therefore,
improperly denied the city’s motion for summary
judgment.15
The judgment is reversed and the case is remanded
with direction to grant the city’s motion for summary
judgment and to render judgment thereon.
In this opinion the other justices concurred.
1
General Statutes § 28-13 (a) provides: ‘‘Neither the state nor any political
subdivision of the state nor, except in cases of wilful misconduct, the agents
or representatives of the state or any political subdivision thereof nor any
member of the civil preparedness forces of the state nor any person author-
ized by such civil preparedness forces or by any member of such civil
preparedness forces complying with or attempting to comply with this chap-
ter or any order or regulation promulgated pursuant to the provisions of
this chapter, or pursuant to any ordinance relating to blackout or other
precautionary measures enacted by any political subdivision of the state
nor any person employed by or authorized to assist any agency of the
federal government in the prevention or mitigation of any major disaster
or emergency, shall be liable for the death of or injury to persons or for
damage to property as a result of any such activity. The Attorney General
shall appear for and defend the state, any political subdivision of the state
and the agents or representatives of the state or any political subdivision
thereof or any member of the civil preparedness forces of the state or any
other person exempted from liability for his acts under this section in any
civil action brought for the death of or injury to persons or for damage to
property as a result of any civil preparedness activity.’’
2
General Statutes § 28-9 (a) provides in relevant part: ‘‘In the event of
serious disaster, enemy attack, sabotage or other hostile action or in the
event of the imminence thereof, the Governor may proclaim that a state of
civil preparedness emergency exists, in which event the Governor may
personally take direct operational control of any or all parts of the civil
preparedness forces and functions in the state. Any such proclamation shall
be effective upon filing with the Secretary of the State. . . .’’
3
The plaintiff also named American Medical Response of Connecticut,
Inc., and two of its employees, Brian Walts and William T. Ostroff, as defen-
dants. These additional defendants are not participating in the present
appeal.
4
The city appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
5
For the sake of simplicity, we refer to Sena in both capacities as the
plaintiff.
6
Given the summary judgment posture of this appeal, we present the
facts in the light most favorable to the nonmoving party, which, in the
present case, is the plaintiff. See, e.g., Graham v. Commissioner of Trans-
portation, 330 Conn. 400, 414–15, 195 A.3d 664 (2018); Glastonbury v. Metro-
politan District Commission, 328 Conn. 326, 337, 179 A.3d 201 (2018); Doe
v. West Hartford, 328 Conn. 172, 191, 177 A.3d 1128 (2018).
7
A copy of Governor Malloy’s letter to Secretary of the State Denise
Merrill declaring a state of emergency pursuant to § 28-9 was attached as
an exhibit to the city’s motion for summary judgment. Governor Malloy
ended that state of civil preparedness emergency and rescinded Executive
Order 30, which also pertained to the February storm, on March 18, 2013,
through Executive Order 33. Executive Order 33 also ended the civil pre-
paredness emergency previously declared by Governor Malloy on October
27, 2012, in anticipation of Hurricane Sandy, and rescinded Executive Orders
21 through 28, which also pertained to Hurricane Sandy.
8
An affidavit from Scott Appleby, the city’s director of Emergency Manage-
ment and Homeland Security, describes level 4 as ‘‘a ‘full scale’ response
during which time the EOC takes complete control over the planning for
and response to the emergency. . . . The goal at a full scale response is
to centralize command and control over storm response in the hands of a
unified command in one location. This group has overriding authority over
department heads, who in general were sent home due to storm conditions.
This control would include dispatching police, fire and ambulances in
response to [911] calls. . . . Because the emergency call center is just down
the hall, we have a supervisor from that area of the building permanently
in the EOC room. In the case of this storm, Assistant Fire Chief Dominic
Carfi (or his replacement) became the liaison with the call center and would
give them instructions on how to handle calls. Occasionally, the supervisor
from the emergency call center would come to us to discuss an issue or
seek advice. The call center could also contact police and fire battalion
chiefs by radio or telephone for instructions and an update on whether units
could respond.’’
9
Prior to oral argument in this appeal, we ordered, sua sponte, that the
parties file supplemental briefs addressing the following question: ‘‘Is the
order denying the . . . city’s motion for summary judgment, which claimed
that the city was immune from liability pursuant to . . . § 28-13 (a), a final
judgment such that the Supreme Court has jurisdiction over the appeal?
See Vejseli v. Pasha, [282 Conn. 561, 923 A.2d 688] (2007).’’
10
General Statutes § 52-263 provides: ‘‘Upon the trial of all matters of fact
in any cause or action in the Superior Court, whether to the court or jury,
or before any judge thereof when the jurisdiction of any action or proceeding
is vested in him, if either party is aggrieved by the decision of the court or
judge upon any question or questions of law arising in the trial, including
the denial of a motion to set aside a verdict, he may appeal to the court
having jurisdiction from the final judgment of the court or of such judge,
or from the decision of the court granting a motion to set aside a verdict,
except in small claims cases, which shall not be appealable, and appeals
as provided in sections 8-8 and 8-9.’’
11
Neither party argues that the first prong of the Curcio test is applicable
to the present appeal.
12
Although this testimony could also be read to suggest that the early
intent of the legislation was merely to provide immunity from liability, given
that Sturges appears to have suggested that the opportunity for suit ‘‘still
obtains,’’ we decline to adopt such a reading because there is no colloquy
suggesting that Sturges used ‘‘liability’’ and ‘‘suit’’ as terms of art, as contem-
plated by subsequent case law. This buttresses our more purposive interpre-
tation of his testimony.
13
The proponent of the relevant bill in the House of Representatives,
Representative Michael R. Colucci, described the change as follows: ‘‘The
intent of this bill is to align the [s]tate laws with the [f]ederal laws. The
Disaster Relief Act of [1974] . . . has become the guideline in dealing with
natural disasters and [General Statutes (Rev. to 1979) § 28-1] is amended
by the addition of ‘or a disaster’ following the phrase ‘by any such attack.’
This is added purely for clarification purposes. Further, [the bill] inserts
two new definitions for major disasters and emergency, while repealing the
old definition for disaster. Again, this is done to align [f]ederal and [s]tate
legislation. Having [f]ederal and [s]tate legislation say the same thing facili-
tates the administration of these laws.’’ 22 H.R. Proc., Pt. 5, 1979 Sess., p. 1648.
14
In emphasizing the breadth of the immunity afforded by § 28-13, we
note that the activity prescribed by the statute includes ‘‘complying with or
attempting to comply with this chapter or any order or regulation promul-
gated pursuant to the provisions of this chapter, or pursuant to any ordinance
relating to blackout or other precautionary measures enacted by any political
subdivision of the state . . . .’’ (Emphasis added.) Our broad interpretation
of § 28-13 immunity is bolstered by the legislature’s decision to immunize
political subdivisions for even attempting to comply with the statutory
scheme at issue.
15
In her brief, the plaintiff also raises two constitutional issues, arguing
that, if this court concludes ‘‘that immunity under § 28-13 is solely determined
by the existence of a civil preparedness emergency, the statute is unconstitu-
tional as applied.’’ Because we do not conclude that the application of § 28-
13 immunity is solely determined by the existence of a civil preparedness
emergency, we need not address the plaintiff’s constitutional claims. See,
e.g., St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 813, 12 A.3d 852 (2011)
(court has ‘‘duty to eschew unnecessarily deciding constitutional questions’’
[internal quotation marks omitted]).