Shore v. Town of Stonington

Peters, J.

(dissenting). I disagree with the majority opinion because I think this case is controlled by our recent decision in Sestito v. Groton, 178 Conn. 520 , 423 A.2d 165 (1979). Before Sestito , *158 our case law had accepted the limited rule of official responsibility which the majority opinion accurately reports. In Sestito , however, this court unanimously decided to follow a different course when, in considering the liability of a police officer, we held (p. 528) that “[t]he question in each case is whether the facts present a situation where the statute [General Statutes § 7-108] applies, that is, whether a public official’s constant general duty to the public has, in addition, subsumed a special duty to the individual claiming injury .... It is this factual inquiry that should be left for jury determination, whether the alleged duty to the individual arises from other statutes, regulations, or the common law.” Although Sestito was apparently not called to the attention of the trial court, that oversight cannot impair Sestito’s role as a binding precedent. 1 I do not see how the holding of Sestito can be reconciled with the affirmance of summary judgment for the defendants in this case.

The facts of Sestito v. Groton are important to an assessment of its relationship to this case. There a supernumerary police officer driving a town police car was on patrol when he observed a group of at least nine men drinking, arguing, and scuffling in a parking lot outside a bar. Despite the visible melee, and the officer’s belief that one of the men might be armed, the officer did not intervene until he heard gunshots. He then drove over and arrested the assailant. Suit was brought by the administratrix of the man who was shot and died of the gunshot wounds that same day. Sestito v. Groton, supra, 522-23 .

*159 We held in Sestito that these facts sufficed to permit the plaintiff’s case to be submitted to a jury. That holding seems to me inconsistent with the position taken in the majority opinion that a police officer’s private special duty cannot be established “by the mere fact that someone with whom the official had prior contact subsequently injured the plaintiff or the plaintiff’s decedent.” Sestito found that liability could be established, under sufficiently provocative circumstances, without any prior contact. The facts of the ease before us, furthermore, illustrate more than “mere . . . prior contact” since it is alleged that the driver was visibly under the influence of drugs or alcohol. Once an experienced police officer has the opportunity to observe a potentially volatile situation, Sestito teaches that he can ignore that situation only at his peril.

Nor am I persuaded that Sestito is limited to injury caused to an identifiable person. In Sestito itself, this court noted that the melee began with “at least” seven men, who were subsequently joined by two others. Sestito v. Groton, supra, 522-23 . There was no way to foresee who the eventual victim would be. Suppose, in Sestito , that the injured person had been not a member of the original melee but an innocent bystander, a hapless patron of the bar who emerged on the scene at the wrong moment. I believe that Sestito would have permitted a jury to find that the scope of the risk occasioned by uninterrupted continuation of the melee included an injury to a bystander, even though his identity would initially have been indeterminate. In other cases, this court has recognized that an action for negligence does not ineluctably depend upon the ability to foresee the identity of *160 future complainants. Wright v. Brown, 167 Conn. 464, 468-69 , 356 A.2d 176 (1975); Stiebitz v. Mahoney, 144 Conn. 443, 447 , 134 A.2d 71 (1957). I suggest that melees, and drunken drivers, are notoriously undiscriminating in their choice of victims. Under Sestito , a police officer is liable whenever the circumstances indicate that there is an imminent risk that someone will be seriously injured.

A holding that the plaintiff in this case has a right to have the case decided by a jury as a question of fact, rather than by a judge as a matter of law, is consistent with the developing case law in other jurisdictions. Other courts have held that public officials no longer enjoy complete immunity for the negligent performance of their duties. Flournoy v. McComas, 488 P.2d 1104, 1106 (Colo. 1971) (principal negligent for death of school child in traffic accident). Thus, a public employee may be held liable for negligence “even though his employer is clothed in the immunity and not liable on the principle of respondeat superior”; Givens v. Sellars, 273 N.C. 44, 49 , 159 S.E.2d 530 (1968); or if “he was malicious or abused his discretion”; Neiswender v. Edinger, 59 Ohio App. 2d 25, 28 , 392 N.E.2d 580 (1978); or, in the case of an agency, if an agent was negligent in transacting agency business. Weber v. Towner County, 565 F.2d 1001 , 1009 (2d Cir. 1977) (decided under North Dakota law). Where a court relied on the distinction between discretionary and ministerial acts in determining the liability of a police officer, the hot pursuit of a suspect was held to be a ministerial act carrying liability for negligence and permitting a common law action. Seymour National Bank v. State, 384 N.E.2d 1177, 1184-85 (Ind. 1979).

*161 Faced with the doctrine that a public employee must owe a specific, private duty to his victim for liability to arise, several courts have determined that certain circumstances may create such a private duty. In Seymour National Bank v. State, supra, the court recognized “that drivers of emergency vehicles owe a duty of care to the life and property of others when driving over the maximum speed limit”; id., 1184 ; it based that duty on case law and statute. After stating that “[a]n obligation owing to the general public can, however, be narrowed into a specific duty to an individual,” an Arizona court found that legislation authorizing the corporation commission to supervise the affairs of the state’s thrift associations created a private duty to protect individual depositors. State v. Superior Court of Maricopa County, 123 Ariz. 324, 326 , 599 P.2d 777 (1979). The Alaska Supreme Court found that state fire officials assumed a common law duty to victims of a hotel fire by having earlier identified fire hazards on the premises but failed to pursue their correction. Adams v. State, 555 P.2d 235, 240 (Alaska 1976). Even the decision relied on by the trial court acknowledges that “there are situations where a government, or agency thereof, can by its conduct, narrow an obligation owing to the general public into a special duty to an individual, for the breach of which it is responsive in damages.” Massengill v. Yuma County, 104 Ariz. 518, 519 , 456 P.2d 376 (1969).

The most sweeping approach to the problem of public and private duties is taken by the Supreme Court of Wisconsin, which characterized the distinction as “artificial” and proclaimed that “[a]ny duty owed to the public generally is a duty owed to *162 individual members of the public.” Coffey v. Milwaukee, 74 Wis. 2d 526, 534 , 247 N.W.2d 132 (1976). The court held that a complaint alleging negligence by a building inspector resulting in fire damage to an office building was “not properly demurrable on the grounds of municipal immunity from tort liability.” Id., 137.

In sum, I believe that our holding in Sestito signalled a change, such as has occurred in our sister jurisdictions, in the law governing the liability of public officers and of the municipalities that bear the ultimate responsibility for their negligence. Nothing in the case before us tempts me to confine Sestito to its facts. In that case, the legislature had enjoined police officers to suppress assemblages that disturbed the public peace. General Statutes § 7-108. In this case, the legislature has authorized the police to arrest those who drive recklessly or under the influence of alcohol. General Statutes §§ 14-222 and 14-227a. If anything, the latter statutes more directly imply a public purpose to prevent private harm. We all recognize that a drunken driver is like a ticking time bomb. 2 In the presence of a ticking bomb, or an inebriated driver, a police officer should not be encouraged simply to leave the scene. I do not believe that imposition of private liability for negligent failure to take suitable precautions in such conspicuously hazardous circumstances would unreasonably *163 cramp the exercise of official discretion. On the contrary, I find it more than passing strange to require a police officer to intervene, at some possible personal peril, to safeguard a willing participant in a drunken brawl, and to immunize a police officer who has voluntarily interposed himself and who might have prevented the fatal injury of an innocent lawful user of a public highway. Having entrusted to a jury the responsibility for enforcing a police officer’s discretionary duty to control a drunken brawl, we should not retreat from imposing a similar responsibility to control drunken driving. 3

I therefore dissent.

This ease was decided by the trial court after Sestito’s publication.

The Hartford Courant reported earlier this year that alcohol was a factor in 225 deaths from automobile accidents in Connecticut in 1980. The New York Times, on April 15, 1982, reported further national statistics compiled in conjunction with President Ronald Reagan's appointment of a commission to reduce drunken driving. Bach year drunken driving causes an estimated 25,000 automobile fatalities, 800,000 crashes, 750,000 serious injuries, and $5 billion in economic losses.

I am not prepared to assume that the death of the plaintiff’s deeedent was the result of an appointment in Samarra. O’Hara, Appointment in Samarra, p. 5 (1934).