Ventura v. Town of E. Haven

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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.