Brooks v. Powers ( 2016 )

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BROOKS v. POWERS—DISSENT
MULLINS, J., dissenting. I respectfully disagree with
the majority’s conclusion that the trial court improperly
rendered summary judgment on the ground of govern-
mental immunity. I generally agree with the facts set
forth by the majority and need not recite them again.
I disagree, however, with the majority’s analysis and
conclusion on what constitutes the dangerous condition
and imminent harm in this case. Accordingly, I dissent.
In this case, the plaintiff, Bernadine Brooks, admin-
istratrix of the estate of Elsie White, filed a six count
amended complaint, in which she alleged negligence
against the defendants Robert Powers and Rhea
Milardo, two constables who were employed by the
defendant town of Westbrook (town),1 and counts of
vicarious liability and indemnification against the
town.2 In her amended complaint, the plaintiff alleged,
in relevant part:
‘‘8. Sometime between the evening of June 18, 2008,
and the morning of June 19, 2008, the decedent, Elsie
White, a resident of Westbrook, Connecticut, tragically
died in the water along the shore of Westbrook.
‘‘9. Upon information and belief, on the evening of
June 18, 2008, Officers Powers and Milardo were sched-
uled to work marine patrol. When they arrived for duty,
however, there was a severe storm, including heavy
rain, thunder and lightning. As such, they determined
the weather was too severe for marine patrol along the
shore and accordingly resumed patrol inland in the
town of Westbrook.
‘‘10. Upon information and belief, on June 18,
2008, at approximately 7:50 p.m., Officers Powers and
Milardo stopped at a gas station/convenience store in
. . . Westbrook in order to put on their rain gear.
‘‘11. While at the gas station/convenience store, Offi-
cer Powers was approached by Ms. Kimberly Bratz
. . . . Ms. Bratz alerted Officer Powers that an individ-
ual (later determined to be the decedent) . . . was
standing in a field along the shore with her arms out-
stretched and looking into the sky in the middle of
severe weather. Further, Ms. Bratz reported the individ-
ual’s location and expressed concern because of the
individual’s unusual behavior.3
‘‘12. Thereafter, Officer Powers contacted Dispatcher
[Theresa] Smith with this information and requested
that she send an officer to the individual’s location.
Officer Powers explained that because he and Officer
Milardo were working on the marine patrol boat . . .
they could not respond to the location. In actuality,
however, Officers Powers and Milardo were not patrol-
ling on the boat and were available to respond.
‘‘13. Once obtaining the information from Officer
Powers, Dispatcher Smith failed to enter the call for
services in the computer automated dispatch . . . sys-
tem as requested, failed to dispatch one of several con-
stables working in Westbrook and a patrol trooper, who
were available at that time and could have responded
if dispatched, and failed to take any further action.
‘‘14. Having received no care or intervention as a
result of Dispatcher Smith’s failure to log the call or
dispatch a police officer, and Officers Powers’ and
Milardo’s failure to be truthful and satisfy their roles as
constables, Ms. White lingered in her unstable condition
and later died (due to drowning) in the water off the
shore of Westbrook.’’ (Footnote added.)
As a result of these alleged acts, the plaintiff claimed
that the defendants, acting in their official capacities,
were negligent and liable for the death of White (dece-
dent). The defendants filed an answer and several spe-
cial defenses, including governmental immunity
pursuant to the common law and General Statutes § 52-
557n. The plaintiff filed a general reply to the special
defenses.4
On April 3, 2014, the defendants filed a motion for
summary judgment on grounds including lack of proxi-
mate cause and governmental immunity. Along with the
memorandum of law in support of their motion, they
filed many exhibits, including portions of depositions
and a supplemental police report concerning the dece-
dent’s untimely death.5 The plaintiff timely filed an
objection, claiming that the defendants had failed to
prove that there existed no genuine issues of material
fact, that the defendants’ duty was ministerial, and that
the decedent was an identifiable person, subject to
imminent harm.6 The plaintiff also filed a memorandum
of law in support of her objection, along with several
exhibits.
The trial court rendered summary judgment in favor
of the defendants in a July 23, 2014 memorandum of
decision, concluding that the defendants’ acts were dis-
cretionary and that the plaintiff’s claims did not fall
within an exception to the doctrine of governmental
immunity. Specifically, the court found, in relevant part:
‘‘The evidence submitted establishe[d] the absence of
a genuine issue of material fact that the harm to which
the decedent was ultimately exposed, drowning in Long
Island Sound, was not apparent to the defendants in
this case. The defendants were made aware only that
the decedent was standing in a field during a severe
storm on the night before her death, and that she may
have been in need of medical attention. Moreover, the
subject harm to which the decedent was exposed,
drowning, was not limited in duration and geographic
scope, as it could have occurred at any time in the future
or not at all. The uncontroverted evidence submitted
demonstrates that the decedent drowned the next
morning in Long Island Sound, although she was ini-
tially reported to be located in a field on Route 1 on the
previous night. Under the allegations of the plaintiff’s
complaint, and the evidence presented, the identifiable
victim, imminent harm exception does not apply in
this case.’’
The court also determined that ‘‘the evidence pre-
sented demonstrates the absence of a genuine issue of
material fact that [the defendants] were not aware that
their discretionary acts of failing to investigate and
respond to the complaint made by Bratz exposed the
decedent to imminent harm by drowning [in Long Island
Sound].’’ Accordingly, the court rendered summary
judgment in favor of the defendants. The plaintiff there-
after filed a motion to reconsider and reargue, which
the court denied. This appeal followed.
The plaintiff contends that the court improperly ren-
dered summary judgment in this case because it
weighed facts, it overlooked the fact that the defendants
lied to avoid their duty, it improperly looked to facts
that arose after the defendants refused to act, and it
‘‘either applied the incorrect standard as to imminent
harm or construed the scope of the harm to which
the plaintiff was exposed too narrowly.’’ Unlike the
majority, I would conclude that the trial court properly
rendered summary judgment on the ground of govern-
mental immunity.
I begin with the standard of review applicable to this
case. ‘‘Practice Book [§ 17-49] provides that summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . Our review of the trial court’s decision to grant
[a] motion for summary judgment is plenary. . . .
‘‘[T]he ultimate determination of whether qualified
immunity applies is ordinarily a question of law for the
court . . . [unless] there are unresolved factual issues
material to the applicability of the defense . . . [where
the] resolution of those factual issues is properly left
to the jury. . . . [Where] the material facts . . . are
undisputed . . . we exercise plenary review over the
trial court’s determination that the defendant is entitled
to qualified immunity as a matter of law.’’ (Citations
omitted; internal quotation marks omitted.) Coley v.
Hartford, 312 Conn. 150, 160, 95 A.3d 480 (2014).
The following principles of governmental immunity
are pertinent to the resolution of the plaintiff’s claims.
‘‘The [common-law] doctrines that determine the tort
liability of municipal employees are well established.
. . . Generally, a municipal employee is liable for the
misperformance of ministerial acts, but has a qualified
immunity in the performance of governmental acts.
. . . Governmental acts are performed wholly for the
direct benefit of the public and are supervisory or dis-
cretionary in nature. . . . The hallmark of a discretion-
ary act is that it requires the exercise of judgment. . . .
In contrast, [m]inisterial refers to a duty which is to be
performed in a prescribed manner without the exercise
of judgment or discretion. . . .
‘‘Municipal officials are immunized from liability for
negligence 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. . . .
Discretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officers 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.
. . . In contrast, municipal officers are not immune
from liability for negligence arising out of their ministe-
rial acts . . . because society has no analogous inter-
est in permitting municipal officers to exercise
judgment in the performance of ministerial acts. . . .
‘‘There are three exceptions to discretionary act
immunity. Each of these exceptions represents a situa-
tion in which the public official’s duty to act is [so] clear
and unequivocal that the policy rationale underlying
discretionary act immunity—to encourage municipal
officers to exercise judgment—has no force. . . .
First, liability may be imposed for a discretionary act
when the alleged conduct involves malice, wantonness
or intent to injure. . . . Second, liability may be
imposed for a discretionary act when a statute provides
for a cause of action against a municipality or municipal
official for failure to enforce certain laws. . . . Third,
liability may be imposed when the circumstances make
it apparent to the public officer that his or her failure
to act would be likely to subject an identifiable person
to imminent harm . . . .’’ (Citations omitted; internal
quotation marks omitted.) Violano v. Fernandez, 280
Conn. 310, 318–20, 907 A.2d 1188 (2006). The only
exception at issue in this case is the imminent harm
exception.
‘‘The imminent harm exception to discretionary act
immunity applies when the circumstances make it
apparent to the public officer that his or her failure to
act would be likely to subject an identifiable person to
imminent harm . . . . By its own terms, this test
requires three things: (1) an imminent harm; (2) an
identifiable victim; and (3) a public official to whom it
is apparent that his or her conduct is likely to subject
that victim to that harm.’’ (Emphasis added; footnote
omitted; internal quotation marks omitted.) Id., 329.
Our Supreme Court previously has explained that
‘‘this exception to the general rule of governmental
immunity for employees engaged in discretionary activi-
ties has received very limited recognition in this state.
. . . If the plaintiffs fail to establish any one of the
three prongs, this failure will be fatal to their claim
that they come within the imminent harm exception.’’
(Citation omitted; internal quotation marks omitted.) Id.Here, although the plaintiff frames her claims around
the fact that the defendants lied to Smith, the question
facing this court is whether the trial court properly
rendered summary judgment in favor of the defendants
on the ground of governmental immunity, not whether
the actions of the defendants were egregious.7 The par-
ties do not dispute that the decedent was an identifiable
victim, and the court also found as such. I, therefore,
will look to the remaining prongs, namely, whether the
decedent was subject to imminent harm and whether
it was apparent to the defendants that their conduct
likely would subject the decedent to that harm. See id.To start, I examine whether the decedent was subject
to imminent harm, which necessarily must be caused
by a dangerous condition, and whether it was apparent
to the defendants that their conduct likely would sub-
ject the decedent to that imminent harm. See Williams
v. Housing Authority, 159 Conn. App. 679, 705, 124
A.3d 537 (plaintiff must first establish that dangerous
condition alleged to have harmed identifiable person
was apparent to municipal defendant), cert. granted on
other grounds, 319 Conn. 947, 125 A.3d 528 (2015); see
also Haynes v. Middletown, 314 Conn. 303, 323, 101
A.3d 249 (2014).8
In Williams, we opined that our Supreme Court, in
Haynes, had modified the identifiable person subject
to imminent harm test, and that the test could now be
interpreted to have four prongs rather than three. ‘‘First,
the dangerous condition alleged by the plaintiff must
be apparent to the municipal defendant. . . . We inter-
pret this to mean that the dangerous condition must not
be latent or otherwise undiscoverable by a reasonably
objective person in the position and with the knowledge
of the defendant. Second, the alleged dangerous condi-
tion must be likely to have caused the harm suffered
by the plaintiff. A dangerous condition that is unre-
lated to the cause of the harm is insufficient to satisfy
the Haynes test. Third, the likelihood of the harm must
be sufficient to place upon the municipal defendant a
clear and unequivocal duty . . . to alleviate the danger-
ous condition. The court in Haynes tied the duty to
prevent the harm to the likelihood that the dangerous
condition would cause harm. . . . Thus, we consider
a clear and unequivocal duty . . . to be one that arises
when the probability that harm will occur from the
dangerous condition is high enough to necessitate that
the defendant act to alleviate the defect. Finally, the
probability that harm will occur must be so high as to
require the defendant to act immediately to prevent
the harm.
‘‘All four of these prongs must be met to satisfy the
Haynes test, and our Supreme Court concluded that
the test presents a question of law.’’ (Citations omitted;
emphasis altered; footnote omitted; internal quotation
marks omitted.) Williams v. Housing Authority, supra,
159 Conn. App. 705–706.
In this case, the plaintiff and the majority seem to
imply that the dangerous condition was the severe
storm on the night of June 18, 2008, and that the dece-
dent suffered an imminent harm as a result thereof.
The fact remains, however, that the decedent died on
the night of the storm or in the early morning of June
19, 2008, from drowning in Long Island Sound, which
was approximately one-half mile from the field in which
she was seen during the severe storm. There also are
no facts alleged in the pleadings or presented in the
record that tie her drowning to the storm and her pres-
ence in the field. She did not drown in the field, nor
was she struck by lightning or injured in the field as
result of the storm, i.e., struck by a downed tree limb,
flying debris, etc.
Additionally, nothing in the record or in the pleadings
indicates that the defendants knew that the decedent
would accidentally drown after she ventured from the
field to the Long Island Sound. Although the storm
may have been a dangerous condition that could have
subjected the decedent to harm, the zone of such harm
is not limitless. The harm suffered must be related to
the dangerous condition. See id., 706. In my view, the
general risk of harm presented by standing in the middle
of a field during a severe storm is too attenuated from
the harm that the decedent suffered, which was drown-
ing later that night or the next morning in the Long
Island Sound, approximately one-half mile away from
that field. Thus, the nexus between the alleged danger-
ous condition here and the imminent harm actually
suffered by the decedent simply is not there.
As to imminent harm, our Supreme Court recently
explained that ‘‘the proper standard for determining
whether a harm was imminent is whether it was appar-
ent to the municipal defendant that the dangerous con-
dition was so likely to cause harm that the defendant
had a clear and unequivocal duty to act immediately to
prevent the harm.’’ Haynes v. Middletown, supra, 314
Conn. 322–23. Obviously, the harm that was suffered
by the decedent in this case was her tragic death by
drowning in Long Island Sound. I cannot ascertain, how-
ever, how that harm was imminent when the decedent
was in the field and the defendants were notified that
she needed medical help, or how that imminent harm
was or should have been apparent to the defendants.
It appears to me that the plaintiff and the majority
are viewing imminent harm far too broadly. In their
view, the plaintiff can demonstrate a dangerous condi-
tion and imminent harm simply by showing that the
defendants knew that the decedent was standing in the
middle of an open field during a severe storm, in need
of medical attention, and that the defendants failed to
go to the field. Once they failed to act by going to the
field,9 any harm, no matter how far removed, becomes
the defendants’ responsibility, and the plaintiff does not
have to establish that the specific harm suffered by the
decedent was the specific harm of which the defendants
were aware. My view of the law is otherwise. See Doe
v. Petersen, 279 Conn. 607, 620–21, 903 A.2d 191 (2006)
(‘‘[a]n allegedly identifiable person must be identifiable
as a potential victim of a specific imminent harm’’
[emphasis added]).
Stated simply, the majority has identified a danger-
ous condition and the potential for harm from that
dangerous condition, but has not identified the danger-
ous condition that actually caused the harm to the
decedent or how the defendants knew of it. In my view,
to survive summary judgment the plaintiff must allege
specifically the dangerous condition that actually
caused the injury to the decedent, not simply that a
dangerous condition existed, which potentially could
have harmed the decedent, and that an injury then
resulted. See id. My disagreement with the majority
centers on the fact that there is no nexus between the
alleged dangerous condition (the storm), the potential
imminent harm to which the decedent would be sub-
jected from that dangerous condition (being struck by
lightning, debris, etc., while in the field), and the actual
harm suffered (drowning sometime later that night or
the next morning approximately one-half mile away
from where she was last seen).
Thus, even accepting all the facts as set forth by the
plaintiff in this case, she has failed to provide any nexus
between the decedent’s death by drowning in Long
Island Sound, the storm, and the conduct of the defen-
dants in not checking on her when she was in the field
and they had been told that she was in need of medical
attention. Aside from the generalized danger the storm
may have posed to the decedent while she was in the
field, I do not see the specific dangerous condition that
the plaintiff is alleging to be the cause of decedent’s
death. See Williams v. Housing Authority, supra, 159
Conn. App. 705–706 (alleged dangerous condition must
be likely to have caused harm suffered by identifiable
person); see also Haynes v. Middletown, supra, 314
Conn. 322–23.
The plaintiff’s contention that once the defendants
failed to respond to the decedent’s need for medical
help, any harm that befell the decedent after their failure
to act, no matter how attenuated from the dangerous
condition, was imminent harm of which the defendants
were aware is inconsistent with our precedent.10 Under
our law, the general nature of the harm must have some
connection to the harm actually suffered. See Doe v.
Petersen, supra, 279 Conn. 620–21.
In other words, just establishing a dangerous condi-
tion, in this case, the storm, does not mean that any
harm that befell the decedent was a result of that dan-
gerous condition and that the defendants were aware
that their failure to respond would put the decedent at
risk of any and all possible harm she could have suffered
thereafter. Thus, the decedent standing in the storm
was not so likely to cause the harm that she suffered
that the defendants had a clear and unequivocal duty
to act. Indeed, there is not even an allegation, let alone
any factual basis submitted in opposition to the defen-
dants’ motion for summary judgment, that would indi-
cate that the specific harm suffered by the decedent
was even remotely connected to her standing in the
open field during the storm.
On the basis of the foregoing analysis, I would affirm
the judgment of the trial court and conclude that it
properly rendered summary judgment on the ground
of governmental immunity.
Accordingly, I respectfully dissent.
1
Because the matter at issue in this appeal is whether liability can be
imposed against Powers and Milardo, the derivative liability of their
employer, the town, which would be coextensive with that of Powers and
Milardo, is not at issue here. I therefore refer in this opinion to Powers and
Milardo as the defendants.
2
In her original complaint, the plaintiff also had named as a defendant
Theresa Smith, a dispatcher for the state police, alleging that she was negli-
gent. Smith filed a motion to dismiss the complaint as to her on the ground
of sovereign immunity. The plaintiff then withdrew her claim as to Smith
and filed an amended complaint.
3
In her deposition, which was submitted as exhibit C to the defendants’
memorandum of law in support of their motion for summary judgment,
Bratz stated that she knew the decedent, although she had never met her,
because the decedent lived at the Ambleside apartment complex as did
Bratz’ mother. She also explained that, on the night of June 18, 2008, between
approximately 7:30 and 8 p.m., during a thunder and lightning storm, she
and her husband drove by the apartment complex as they returned from
Old Saybrook, when she saw the decedent on the other side of Route 1, in
a field, where there were no homes. She stated that it was still light out at
the time, so she could see and identify the decedent, who was not wearing
rain gear or carrying an umbrella, but was dressed in pants and a shirt. The
grass in the field was approximately knee high, and the decedent was stand-
ing in the middle of the field with her hands raised to the sky.
4
Practice Book § 10-57 provides: ‘‘Matter in avoidance of affirmative alle-
gations in an answer or counterclaim shall be specially pleaded in the reply.
Such a reply may contain two or more distinct avoidances of the same
defense or counterclaim, but they must be separately stated.’’
Although Practice Book § 10-57 requires that matters in avoidance be
specially pleaded in the plaintiff’s reply, the defendants did not object to
the plaintiff raising this matter in her objection to the motion for summary
judgment. We note that our Supreme Court previously has afforded the trial
court ‘‘discretion to overlook violations of the rules of practice and to review
claims brought in violation of those rules as long as the opposing party
has not raised a timely objection to the procedural deficiency.’’ Schilberg
Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273,
819 A.2d 773 (2003).
5
In the supplemental police report, the investigating state police trooper,
Eric Kelly, averred that he had attended the autopsy of the decedent and
that the medical examiner had ruled the decedent’s cause of death as an
accidental drowning. Trooper Kelly also averred that he had clocked the
relevant distances related to this incident: ‘‘From the entrance to Ambleside
Apartments straight down Old Salt Works Road to the water is four-tenths
(4/10) of a mile. From the entrance of Ambleside Apartments, traveling East
on Route 1, and turning South on Old Kelsey Point Road to the water is
six-tenths (6/10) of a mile. From the entrance to Ambleside Apartments,
traveling West on Route 1 to the field next to Old Forge Road is one-tenth
(1/10) of a mile. From the field next to Old Forge Road, traveling West on
Route 1 to the Valero Gas Station at the intersection of Route 1 and Salt
Island Road is seven-tenths (7/10) of a mile.’’ I see nothing in the record
that contradicts these distances. Thus, it is uncontested that the distance
between the field on Route 1, near the Ambleside Apartments, where Bratz
saw the decedent, and the water, was somewhere between four-tenths of
one mile and six-tenths of one mile.
6
On appeal, the plaintiff has waived her claim that the defendants’ actions
or inactions were ministerial in nature.
7
I, in no way, seek to diminish the egregiousness of the defendants’ actions
in this case and, like the majority, am appalled by the conversation Powers
had with Smith. This case, however, concerns whether the decedent was
subject to imminent harm and whether it was apparent to the defendants
that their conduct likely would subject the decedent to that harm. This
case was brought against the defendants in their official capacities and does
not allege any personal liability.
8
The trial court rendered judgment in the present case before the publica-
tion of the appellate decisions in either Williams or Haynes.
9
I emphasize at this point that the plaintiff has conceded that the defen-
dants had no ministerial duty here.
10
The majority cites to Ruiz v. Victory Properties, LLC, 315 Conn. 335,
107 A.3d 381 (2015), for the proposition that all that is required is the general
nature of the harm and that it does not matter if the harm occurs in a bizarre
way. Although I agree with this proposition, I conclude that the harm that
befell the decedent in this case was not harm that occurred in a bizarre
way, but, rather, was harm that was unrelated to the dangerous condition
or the potential for imminent harm to which she was subjected in the field.