You asked for information about a recent judgment against the Town of Seymour concerning an off-duty town police officer's negligence, the likelihood of an appeal, and the probability of the appeal's success.

SUMMARY

In December 2005, a Waterbury Superior Court jury found an off-duty Seymour police detective negligent for failing to prevent an intoxicated driver who was drinking at a bar with him from driving. That driver veered off the road after leaving the bar, killing himself and two passengers and seriously injuring another passenger. The jury awarded more than $ 1 million each to the families of the deceased men, and $ 2 million to the crash survivor.

Although the police officer was found negligent, the court found the town responsible for paying damages because of the state's indemnification law. This law requires municipalities to assume liability for any injuries caused by an employee in the performance of his duties and within the scope of his employment that are not the result of wanton or willful conduct.

Seymour filed a motion to set aside the verdict, a motion for judgment notwithstanding the verdict, and a motion for a new trial. These motions will not be heard until May because the defendants cannot file motion briefs without reviewing the trial transcripts, which will not be available until then. Once these briefs are filed, the judge may accept the jury's verdict, set it aside in favor of the town, or order a new trial.

According to attorneys for both sides, if the judge upholds the jury's verdict, the town is unlikely to appeal the amount of the verdict because the damages are typical for this type of case. Instead, a potential appeal would probably concern legal issues such as the duty of care of an off-duty police officer, or apportionment of responsibility among the liable parties. These issues are summarized below.

MUNICIPAL LIABILITY FOR POLICE OFFICER

Generally, a municipal employee, such as a police officer, has a qualified immunity in the performance of a governmental duty. But he may be personally liable if he (1) fails to perform a ministerial act, as opposed to a discretionary act; (2) acts outside his official authority; or (3) abuses his qualified privilege by bad faith or improper motive.

Ministerial acts involve duties that must be performed in a prescribed manner without the exercise of judgment or discretion (See, Connecticut Law of Torts, 3^rd ed. (1991)). Although a municipal employee is liable for misperformance of ministerial acts, he has qualified immunity in the performance of discretionary acts. Most decisions made by police officers are discretionary, from investigating complaints to arresting suspects. Thus, qualified immunity for discretionary acts will generally shield an officer from liability unless the officer's act is outside his official authority or motivated by bad faith.

Imminent Harm Exception

The Connecticut Supreme Court has established an exception to this qualified immunity. To qualify for this exception, the plaintiff must show that the officer had a specific duty to the individual bringing the suit, rather than a general duty to the public at large. In other words, the plaintiff must demonstrate that the officer should have known that his failure to act would be likely to subject an identifiable person to imminent harm.

For example, the Connecticut Supreme Court held that the estate of a person killed in a public disturbance could sue the town for the negligence of a police officer who had reason to believe that violence would occur but failed to intervene until the person was shot (Sestito v. Groton, 178 Conn. 520 (1979)).

But Connecticut courts rarely permit lawsuits under the imminent harm exception. In a leading case, the Connecticut Supreme Court held that a plaintiff, whose decedent was killed by a drunk driver, could not sue the town or its police for negligence even though a town police officer had pulled over, but failed to arrest, the drunk driver before the fatal accident. Despite the imminent harm exception, the court held that the officer was protected by qualified immunity, and concluded that “[w]e do not think the public interest is served by allowing a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman's discretionary professional duty. Such discretion is no discretion at all” (Shore v. Stonington, 187 Conn. 147 (1982)).

INDEMNIFICATION

In the event that an officer is sued, the law provides that the municipality must indemnify the officer for damage or injury, not wanton or willful, caused in the performance of his duties and within the scope of his employment (CGS § 7-465). The statute allows officers “excused from official duty” to be indemnified as long as they are engaged in “the immediate and actual performance of a public duty imposed by law” at the time of the injury (CGS § 7-465).

Apparently, in the Seymour case, the jury concluded that the indemnification statute required the town to assume liability for its police officer. According to Frank Szilagyi, attorney for the defendants, because town regulations stated that police officers were on duty 24 hours a day, the town was obliged to indemnify off-duty officers even if they were not engaged in a “public duty imposed by law” as required by the statute.

APPORTIONMENT OF LIABILITY

Under Connecticut's comparative negligence statute, the jury or, if there is no jury, the court, apportions responsibility for negligence among the parties in the lawsuit (CGS § 52-572h(f)). The fact that the plaintiff's negligence may have been a proximate cause of the damage does not necessarily prevent the plaintiff from receiving compensation (CGS § 52-572h(b)). But if the plaintiff is found more than 50% responsible for the damage, then he cannot be compensated (CGS § 52-572h(b)).

The procedural history of this case led to a complicated apportionment of liability between the parties. The case began as four lawsuits, on behalf of the each occupant of the car involved in the crash, including the driver. The passengers each individually sued the town of Seymour, the driver, and the owner of the bar that served the alcohol. The driver sued the town and the bar.

Before trial, these individual suits were consolidated. Yet the jury did not read a collective verdict at the end of the trial, but found different levels of liability among the parties. In the lawsuit where the plaintiff was the car driver, the jury divided responsibility equally between the driver and the town. Yet in the other three lawsuits, the jury found the driver 53% responsible, the town 35%, and the bar that served the alcohol 12%.

Douglas Mahoney, attorney for the plaintiffs, said that the inconsistency can be explained by settlements between the parties before the jury reached a verdict. In this case, the car driver's family settled with the bar before the verdict, leaving the jury to apportion liability between only two parties, the driver and the town, rather than three parties. Attorney Szilagyi also said that the bar's withdrawal from the driver's lawsuit caused confusion among the jurors and may have led them to reach the dual verdict.

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