http://www.stamfordadvocate.com/news/local/scn-sa-nor.lawsuit5jun29,0,877556.story?coll=stam-news-local-headlines
By Brian Lockhart
Staff Writer
June 29, 2004
NORWALK -- After drunken driver Thomas Burns plowed a red Nissan into four pedestrians in South Norwalk, the victims sued the two police officers who, minutes earlier on that night in 1998, had stopped the intoxicated driver but allowed him to drive away.
Now, the city's law department is claiming an early victory in the case, scheduled for trial in February.
Deputy Corporation Counsel Jeffry Spahr on Friday said a Waterbury Superior Court judge's preliminary findings on the case's merits have all but terminated the plaintiffs' ability to prove police Officers David Vetare and Ronald Palmer were negligent and reckless in allowing Burns to leave and then in pursuing him.
"It's a huge ruling. Huge," Spahr said of the summary judgment, issued June 22 by Superior Court Judge Jon Alander. "There is very little if anything left to the plaintiffs' claims."
Spahr noted the four victims were seeking combined damages that totaled millions of dollars. The estate of the fatally injured pedestrian, Julia Johnson, also was blaming her death in August 2001 of cancer on the city and is seeking additional compensation.
Johnson's attorney argues that, due to leg and spinal injuries and resulting paralysis caused by the accident, she missed an appointment for a mammogram that would have diagnosed a treatable lesion in her breast. Instead the cancer was not found until February 2000.
Attorneys representing the victims disagree that the ruling renders the case virtually null. In separate interviews Monday, they said the judge, while tossing out the negligence issue, still allowed the recklessness charge to proceed to trial. Recklessness involves failure to follow basic work rules.
"(It's) the heart of the case -- the police allowing a person they knew was drunk to get back in the car," said attorney Richard Jacobs of New Haven, who represents three of the four victims. "We feel we have an excellent chance of winning on the base of recklessness."
The victims include Johnson, Mitzie Vilton and her daughters Bianca Vilton and Christina Bryan.
According to court documents, at about 10 p.m. on Sept. 5, 1998, Palmer witnessed a red Nissan parked on the sidewalk at the corner of South Main and Monroe streets. He stopped and, along with Vetare, who arrived a few minutes later, confronted Burns when he left a nearby store and walked to the car.
The two officers suspected Burns was drunk. The documents state that while questioning Burns, the officers allowed him to enter the running Nissan three times and that he subsequently managed to shut the door, back into a police cruiser and speed away, causing the accident on Henry Street.
Spahr said Palmer and Vetare were allowing Burns to use a cell phone in his car to arrange for his Nissan to be picked up when he backed into the police cruiser. Vetare clung to the door, trying to pull the keys from the ignition, but was "scraped from the car when the door hit a pole," Spahr said.
With lights and sirens on, Palmer and Vetare chased the Nissan, which struck the four victims walking along the sidewalk a few blocks away on Henry Street.
Burns, who is in prison, in 1999 pleaded no contest to charges of first-degree assault, four counts of second-degree assault with a motor vehicle, assault on a police officer and evading responsibility.
Palmer and Vetare are assigned to the Norwalk Police Department's patrol divisions. Deputy Police Chief Mark Palmer yesterday said no disciplinary action was taken by the department against the two officers.
Spahr said Alander has aided the city's defense by ruling the officers are immune to a lawsuit for negligence, and by raising the bar for the plaintiffs' attorneys to prove their case of recklessness.
According to Spahr, state statutes prevent government officers who use their own discretion from being sued for negligence.
"Immunity says, 'You have a guy trying to do a good job for the city or government. He's doing the best he can. If he thought every time he made a bona fide mistake in judgment (he would be sued), he'd have to be looking over his shoulder and the government would come to a standstill," Spahr said. "But statutes don't want to immunize somebody who is just so far out of control, they don't have a leg to stand on," which is why police officers can be sued for recklessness.
But, Spahr said, Alander has made it difficult for the plaintiffs' to prove the cops were reckless.
"Reckless conduct," the judge writes, "is highly unreasonable conduct, involving an extreme departure from ordinary care, where a high degree of danger is apparent."
Alander says Palmer and Vetare did not technically ignore departmental policy by allowing Burns to re-enter his stopped vehicle. Regulations do not require officers to have intoxicated suspects exit a vehicle so it cannot be driven away.
The judge also notes that: "It was not foreseeable that the (four pedestrians) would be on the sidewalk around the corner from where the pursuit began."
The victims' attorneys, however, argue that Palmer and Vetare should have blocked Burns' vehicle or taken his car keys to ensure the drunken driver could not flee the scene.
Joel Faxon, who represents Johnson's estate, said yesterday that a jury can easily determine that allowing a known drunk to enter a running car on a busy city street is reckless.
Alander threw out a charge that Palmer and Vetare's actions violated Johnson's civil rights.
But Alander will allow Faxon and Jacobs to pursue the charge that, in chasing Burns, Palmer and Vetare were reckless. Witnesses said the drunken driver was speeding at 90 to 100 miles per hour.
Spahr calls the pursuit "a nothing part of this case."
"The guy backs into the car on Monroe and South Main (and) the people got hit a block-and-a-half away. You're not looking at a big, extended chase where the police continue at high rates of speed," Spahr said. "This accident probably had already occurred by the time the police had gotten . . . in their cars."
But Faxon said: "You don't conduct a high-speed chase on a busy city street of a highly intoxicated man, because he will crash. And that's what happened."
Alander also refused to throw out Faxon's claims that, as a result of the accident and actions of the two police officers, Johnson's breast cancer was not diagnosed until February, 2000.
The judge notes that there is sufficient evidence from physicians, along with videotaped statements from Johnson, that had a mammogram been performed in the fall of 1998, it is "medically probable" her cancerous lesions would have been discovered and effectively treated."
"Connecticut permits recovery for a lost chance provided that the evidence (shows) the defendant's negligence was the direct cause of a decrease in the chance of successful treatment," Alander writes.
Copyright © 2004, Southern Connecticut Newspapers, Inc.