State and Municipal Liabliity for Acts of Police Officers and Firefighters

You asked whether under Connecticut law, the state or municipalities could be liable for injuries caused by Connecticut police officers or firefighters while assisting in the rescue and recovery efforts in New York. You also asked whether federal law relating to the Federal Emergency Management Agency (FEMA) shields the state or municipalities from such liability.

Our office is not authorized to give legal opinions and this report should no be considered one.

SUMMARY

The state and municipalities could face liability under Connecticut law if the police and firefighters were on duty in New York while assisting in rescue or recovery activities. The state could face liability under the claims commissioner law, which requires people injured by state employees to present their claim to the claims commissioner. Municipalities could be sued directly for the actions of their employees, and also face liability under laws that require them to indemnify municipal employees for amounts a court requires the employees to pay for their negligent actions committed during the course of their employment and within the scope of their duties.

The key is whether the police officers and firefighters were on duty or acting on their own as volunteers. If they were on duty and acting within the scope of their employment, the state and municipalities may be liable. If they were acting strictly on their own as volunteers, the state and municipalities would not be liable.

Connecticut police officers or firefighters who were assisting in New York as volunteers would have some protection from liability under a recently enacted federal law that gives volunteers certain protection from law suits. But we were not able to find any federal laws relating to FEMA that relieve states or municipalities from liability for actions of their police or firefighters.

Connecticut recently adopted the Emergency Management Assistance Compact act (PA 00-32, effective October 1, 2001). This act provides a legal framework for states to request and provide interstate assistance to manage emergencies and disasters declared by the governor of any party state. States that get such assistance are legally responsible for reimbursing states that provide it and barring lawsuits against out-of-state personnel who acted in good faith. But lawsuits involving claims of willful misconduct, gross negligence, or recklessness are not barred.

New York adopted the law effective September 17, 2001. But according to Dana Conover, Chief of Operations of Connecticut's Office of Emergency Management, New York never made a request under the compact and thus no Connecticut personnel were provided under its protections or procedures. A summary of Connecticut's law is enclosed along with a copy of New York's law.

Conover also informed us that municipalities that border on other states occasionally enter into mutual aid agreements that provide indemnification for lawsuits and it is possible that some Connecticut municipalities may have sent personnel pursuant to such agreements.

STATE LIABILITY FOR ACTIONS OF STATE EMPLOYEES

State employees, including state police officers, enjoy immunity under Connecticut law for their actions while on duty. Under this immunity, no state officers or employees are personally liable for damage or injury, in the discharge of their duties or within the scope of their employment unless their actions are wanton, reckless or malicious (CGS § 4-165). This immunity provision appears to apply to a state trooper's actions in connection with rescue or recovery efforts in New York as long as he was on duty and the actions were within the scope of his employment. Nothing in the statute's language requires or suggests that the actions must be performed in Connecticut in order for it to apply. Nor has any court held that it is limited to acts that occur in Connecticut.

People complaining of damage or injury caused by a state police officer or other state employee must present their claim against the state to the claims commissioner (CGS § 4-141 et. seq.). Just as in the immunity law, nothing in the statute's language or in court cases requires or suggests that it only applies to acts that occurred in Connecticut.

Claims Commissioner Procedure

Someone who is injured by a state employee must file his claim within one year of the date the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered. But he may not present it more than three years after the date of the act or event complained of (CGS § 4-148).

The law excepts certain types of claims from this law, but only one type applies to your question: claims that the law allows to go directly to court (CGS § 4-142). There are six statutes that allow classes of people to sue the state directly without first going to the claims commissioner. The one that is relevant to your question is CGS § 52-556, which allows anyone injured because of the negligence of any state official or employee when operating state owned and insured motor vehicles to sue the state for damages. Thus, if the injury was caused by a state police officer when operating a state vehicle, the injured person could sue the state without first going to the claims commissioner.

Awards of Less than $7,500. The commissioner can approve the immediate payment of “just claims” not exceeding $7,500. “Just claims” are those that in equity and justice the state should pay, as long as it caused the damage or injury or received a benefit (CGS § 4-141). The commissioner must report to the General Assembly on all claims paid in this way but does not need General Assembly approval (CGS § 4-158).

Anyone who filed a claim for more than $7,500 but is awarded $7,500 or less and wishes to protest the award, can waive immediate payment and have his claim submitted directly to the General Assembly (CGS § 4-158). He must file this waiver with the commissioner within 10 days after he receives a copy of the order approving immediate payment. These claims are then handled the same as claims exceeding $7,500 (see next section).

Claims in Excess of $7,500. If the commissioner recommends paying or rejecting claims over $7,500, must make this recommendation to the General Assembly within five days after it convenes or at such other times as the Senate president pro tempore and speaker of the House desire. He must include a copy of his findings and the hearing record of each claim he reports. The General Assembly may accept or alter such a recommendation or reject it and grant or deny the claimant permission to sue the state (CGS § 4-159).

Authorizations of Lawsuits Against the State. The General Assembly or the commissioner can authorize a claimant to sue the state when they deem it just and equitable and when the claim, in their opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. The state waives its immunity from liability and all defenses that might arise from the governmental nature of the activity complained of. The rights and liability of the state in these lawsuits are the same as those of private persons in similar circumstances (CGS § 4-159 and 4-160).

MUNICIPAL LIABILITY FOR ACTIONS OF POLICE OR FIREFIGHTERS

Municipalities are liable for damages caused by negligent acts or omissions of the municipality or any of its employees, officers, or agents acting within the scope of their employment or official duties; negligent performance of functions from which they derive profit or pecuniary benefit; or actions that create or participate in creation of a nuisance (CGS § 52-557n). But, a municipality is not liable for (1) damages caused by acts or omissions that constitute criminal conduct, fraud, actual malice, or willful misconduct, or (2) acts or omissions that require the exercise of judgment or discretion as an official function of the authority granted by law.

Municipal employees may be personally liable for their actions and municipalities are required to indemnify them for amounts a court requires them to pay for injuries they caused while on duty and acting within the scope of their authority. Following is a discussion of municipal employee liability and laws that require municipalities to indemnify them.

Liability of Municipal Employees

Municipal employees are generally immune from personal liability for discretionary actions they take (or do not take) in the performance of their official duties. They are allowed wide latitude in the performance of duties that involve supervisory or discretionary functions and are executed for the public's benefit, not for a specific person to whom a special duty is owed.

Employees performing these duties are generally immune from liability unless their actions are wanton, willful, or malicious or they acted negligently when they could have foreseen imminent injury to a specific person. Conversely, they are given much less latitude in performing ministerial duties, which are acts in which the employee must follow specific procedures and make no judgments. Employees may be held liable if they perform such ministerial duties negligently.

Wanton, Willful, and Malicious Misconduct. Connecticut courts have long held that municipal employees are immune from liability for their official acts or omissions as long as they are done “in good faith, in the exercise of an honest judgment, and not in abuse of discretion, or maliciously or wantonly . . .. Where the discretion has been exercised erroneously but in good faith through an error of judgment, the public official should not be required to pay damages for his acts” (Wadsworth v. Middletown, 94 Conn. 435).

The courts have generally equated wanton acts with acts done recklessly or with callous disregard. These are acts that indicate a reckless disregard of the rights or safety of others or of the consequences of the action. If these elements are present, it is not necessary to prove that an official actually intended to harm someone (West Haven v. Hartford Ins. Co., 221 Conn. 149).

A willful and malicious injury is one inflicted intentionally without just cause or excuse. Both the act and the resulting injury must be intentional. The intentional injury aspect may be satisfied if the resultant harm was the direct and natural consequence of the intended act (Markey v. Santangelo, 195 Conn. 76).

Willful misconduct is conduct that shows willful disregard of someone's interest, such as deliberate violations of procedure or of expected standards of behavior. It includes deliberate disobedience or the intentional violation of a known rule (Todd v. Administrator of Unemployment, 5 Conn. App. 309).

Negligence. Negligence is a breach of duty. The Wadsworth rule (noted above) makes no mention of negligence as a cause for losing immunity. In fact, it could be argued that using words such as “malicious and wanton” implies that negligent conduct is excluded. But public employees are liable

for their negligent acts in two situations: (1) when the employee is acting in a ministerial capacity and (2) when he could have foreseen that his act would subject a specific person to imminent harm.

Ministerial Acts. A ministerial act is one performed by an employee in “a given state of facts,” in a prescribed manner, without considering or using his own judgment or discretion on, the propriety of the act being done. A ministerial act often follows the employee's determination of the “given state of facts.” Making that determination itself is a discretionary act. But once the determination is made, the act that follows is ministerial (Pluhowsky v. New Haven, 151 Conn. 337).

For example, in Wright v. Brown, the court held that a dog warden's finding that a dog had bitten someone outside of its owner's premises was a discretionary determination of facts. Having made that finding, keeping the dog in quarantine for 14 days was a ministerial act. Releasing the dog before the mandatory end of quarantine was a negligent act for which she was liable (167 Conn. 464).

Duty Due to a Specific Person. Negligence in carrying out discretionary duties due to the public will not subject a public employee to liability. But Connecticut courts have noted situations where a public employee should recognize that a failure to act would likely subject an identifiable person to imminent harm. In these situations the courts have held that the employee could be liable.

Recognizing these situations is not always easy. In 1979 the Connecticut Supreme Court held that the estate of a person killed during a riot could bring a Groton policeman to trial because he failed to act to disperse the rioters (Sestito v. Groton, 178 Conn. 520). Three years later the court held that a Stonington policeman could not be brought to trial for failing to detain a probably drunken driver who later caused a death in a traffic accident (Shore v. Stonington, 187 Conn 147). Justice Peters failed to see the distinction between the two sets of circumstances and dissented in the latter case.

Indemnification of Municipal Employees

Under CGS § 7-465, a municipality must pay on behalf of its employees any sums they become obligated to pay because of liability imposed by the court for acts within the scope of their employment. The law covers police officers but not firefighters. A separate similar law (CGS 7-308), which we summarized below covers firefighters. Governmental immunity is not a defense to actions brought under this section. The indemnification applies to damages for infringement of someone's civil rights or personal property damage cased by negligence. The municipality does not have to indemnify someone for willful or wanton acts or for libel or slander. An injured person must notify the municipality of his intent to bring an action under this section within six months of the event and begin the suit within two years.

Another statute protects municipal employees and exposes municipalities to potential liability. Under this law, municipalities must “protect and save harmless” employees from financial loss and expense, including legal fees, from any lawsuit alleging: infringement of civil rights; a malicious, wanton, or willful misconduct; or actions that exceed one's authority (CGS § 7-101a). The employee must reimburse the municipality if the court finds that he acted maliciously, wantonly, or willfully, or exceeded his authority. Municipalities can insure against this liability, and an injured person must notify the municipality of his intent to bring an action under this section within six months of the event and begin the suit within two years. This law appears to cover police officer and firefighters.

Indemnification of Firefighters

State law requires municipalities to indemnify firefighters for damages to person or property caused by the fire fighters' negligence while performing their duties (CGS § 7-308). "Fire duties" include, among other things, duties performed while at fires and any other duty ordered to be performed by a superior or commanding officer in the fire department (CGS § 7-314a). The duty to indemnify does not apply to willful or wanton acts.

Further, the duty does not apply unless the injured person complies with certain notice and time limit requirements. The injured party must notify the municipality and the firefighter of his intent to file suit within six months of the accident. A suit cannot start against a municipality or firefighter until at least 30 days after the injured party has filed its claim with the municipality. The injured party must file the suit within one year of the accident.

FEDERAL IMMUNITY LAW

State and municipal employees who were in New York strictly as volunteers and who are sued for injuries they caused may have some protection from a recently enacted federal law. The Volunteer Protection Act of 1997 (P.L 105-19) became effective in September 1997. In addition to establishing immunity for acts of negligence, it also establishes a clear and convincing standard of proof for punitive damages to be awarded against volunteers and makes them liable for noneconomic damages (pain and suffering) only to the degree their wrongdoing caused the harm.

The act preempts state laws to the extent they are inconsistent with it. It does not preempt state laws that provide additional protection from liability.

Scope of Limitation on Liability

Under the act, no volunteer of a nonprofit organization or governmental entity can be liable for harm caused by his act or omission on its behalf if:


November 2, 2001		2001-R-0792
STATE AND MUNICIPAL LIABILITY FOR ACTS OF POLICE OFFICERS AND FIREFIGHTERS
By: George Coppolo, Chief Attorney