Lund v. Milford Hospital, Inc. Dissent

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
LUND v. MILFORD HOSPITAL, INC.—DISSENT
ROBINSON, J., with whom McDONALD, J., joins, dis-
senting. I respectfully disagree with part II of the majori-
ty’s opinion, which concludes that the claims of the
plaintiff, Justin Lund, a Connecticut state trooper, are
not barred by the firefighter’s rule in accordance with
Sepega v. DeLaura, 326 Conn. , A.3d (2017),
also decided today, which limits that doctrine to prem-
ises liability cases.1 As I stated in my concurring opinion
in Sepega, I believe that, under Kaminski v. Fairfield,
216 Conn. 29, 578 A.2d 1048 (1990), and Lodge v. Arett
Sales Corp., 246 Conn. 563, 717 A.2d 215 (1998), along
with the vast majority of sister state decisions, the fire-
fighter’s rule is not so limited, notwithstanding some
unfortunate obiter dicta in Levandoski v. Cone, 267
Conn. 651, 841 A.2d 208 (2004). See Sepega v. DeLaura,
supra, . Applying the firefighter’s rule to the present
case, I conclude that it bars the ordinary negligence
claims made by the plaintiff, who was injured in the
line of duty while attempting to subdue an emotionally
disturbed person who had been committed to the cus-
tody of the defendant, Milford Hospital, Inc. I would
affirm the judgment of the trial court, rendered after
sustaining the defendant’s objection to a substitute
complaint, which the plaintiff filed after the court had
granted the defendant’s motion to strike the original
complaint. Accordingly, I respectfully dissent.
My analysis of the firefighter’s rule is framed by a
review of the operative facts, as pleaded in the substi-
tute complaint.2 The substitute complaint alleges that
Dale Pariseau was transported by ambulance to the
defendant’s emergency room for psychiatric observa-
tion following his violent and irrational behavior—
including attacks that injured two other Connecticut
state troopers—at the scene of an automobile accident
on Interstate 95. The plaintiff, who had been attending
to an earlier accident nearby, went to the defendant’s
emergency room to check on the two police officers
who had been injured by Pariseau; the defendant’s staff
did not ‘‘at any time’’ ask for the assistance of any other
police officers, including the plaintiff, with regard to
Pariseau. In the process of checking on the injured
officers, the defendant’s staff showed the plaintiff that
Pariseau was being restrained under observation while
undergoing a full psychiatric evaluation. The plaintiff
relied on their representations that Pariseau had been
properly secured and restrained.
After gathering up Pariseau’s effects and leaving the
emergency room, the plaintiff looked into Pariseau’s
room and noticed that he was no longer there. The
plaintiff asked where Pariseau had gone, and a nurse
indicated that he had gone unaccompanied and unre-
strained into a bathroom behind the nurse’s station to
change into a hospital gown. The plaintiff then knocked
on the locked bathroom door, heard water running in
the sink, and asked Pariseau to unlock the door. Pari-
seau asked for more time in the bathroom, with the
water still running. After ten minutes, Pariseau flung
open the door and ran out, hurling a garbage can that
was filled with a mix of hot water and his own urine
at the plaintiff, another police officer, and two nurses.
The plaintiff pursued Pariseau, but slipped in the mix
of urine and water on the floor. The plaintiff then caught
up to Pariseau, and sustained injuries to his head, shoul-
der, elbow, wrist, and hand in the ensuing struggle.
The plaintiff then brought the civil action underlying
the present appeal, alleging that the defendant was neg-
ligent in numerous ways, including (1) failing to super-
vise or restrain Pariseau properly, (2) failing to provide
for adequate security in the area where foreseeably
dangerous patients are held, (3) allowing Pariseau, who
was known to be dangerous, to go to the bathroom
unrestrained and unaccompanied, and (4) failing to
train its staff properly.
In my concurring opinion in Sepega, I disagreed with
the majority’s decision to limit the firefighter’s rule to
premises liability cases and concluded that, like the
vast majority of our sister states, Connecticut should
retain ‘‘the common-law firefighter’s rule as a matter
of public policy, notwithstanding underlying doctrinal
changes such as the statutory abolition of assumption
of risk or differing landowners’ duties.’’ Sepega v.
DeLaura, supra, 326 Conn. . In reaching this conclu-
sion, I agreed with the New Mexico Supreme Court’s
recent observation in Baldonado v. El Paso Natural
Gas Co., 143 N.M. 288, 293, 176 P.3d 277 (2008), that
grounding the firefighter’s rule in public policy allows
for an ‘‘approach [that] will encourage the public to ask
for rescue while allowing professional rescuers to seek
redress in limited but appropriate circumstances.’’
(Internal quotation marks omitted.) Sepega v. DeLaura,
supra, .
In Sepega, I agreed with the enumeration of the fire-
fighter’s rule by the Rhode Island Supreme Court in
Ellinwood v. Cohen, 87 A.3d 1054, 1057–58 (R.I. 2014),
namely, that an injured first responder3 is barred ‘‘from
maintaining a negligence action against a tortfeasor
whose alleged malfeasance is responsible for bringing
the officer to the scene of a fire, crime, or other emer-
gency where the officer is injured. . . . To be shielded
from liability under the public-safety officer’s rule, the
defendant, or alleged tortfeasor, must establish three
elements: (1) that the tortfeasor injured the [first
responder] . . . in the course of [the first responder’s]
employment; (2) that the risk the tortfeasor created
was the type of risk that one could reasonably anticipate
would arise in the dangerous situation which [the first
responder’s] employment requires [him or her] to
encounter; and (3) that the tortfeasor is the individual
who created the dangerous situation which brought the
[first responder] . . . to the . . . accident scene
. . . .’’ (Internal quotation marks omitted.) Sepega v.
DeLaura, supra, 326 Conn. .
With respect to the circumstances under which it is
appropriate for our first responders to seek redress, I
found instructive the Kansas Supreme Court’s recent
formulation of exceptions to the firefighter’s rule in
Apodaca v. Willmore, 306 Kan. 103, 392 P.3d 529 (2017),
under which ‘‘a law enforcement officer will not be
barred from recovery [1] for negligence or intentional
acts of misconduct by a third party, [2] if the individual
responsible for the [officer’s] presence engages in a
subsequent act of negligence after the [officer] arrives
at the scene, or [3] if an individual fails to warn of
known, hidden dangers on his premises or misrepre-
sents the nature of the hazard where such misconduct
causes the injury to the [officer].’’ (Footnote omitted;
internal quotation marks omitted.) Sepega v. DeLaura,
supra, 326 Conn. .
Assuming the applicability of the firefighter’s rule,
the plaintiff argues that the subsequent negligence
exception allows him to maintain this action against
the defendant. Specifically, the plaintiff argues that,
‘‘[w]hether [he] even came to the [defendant’s facilities]
in the exercise of any official capacity, he was clearly
not summoned by the [defendant]. He was, thus, injured
not by the negligence which caused his engagement
(the accident on the highway), but rather—once he
completed his official duties—by the [defendant’s] sub-
sequent negligence in failing properly to control a dan-
gerous psychiatric patient who had been previously
delivered to its custody.’’ (Emphasis in original.) I dis-
agree. Rather, in concluding that the plaintiff’s claim is
barred by the firefighter’s rule—despite the fact that
he acted independently and was not summoned by the
defendant’s staff to aid in controlling Pariseau—I find
highly instructive the decision of the California Court
of Appeal in Seibert Security Services, Inc. v. Superior
Court, 18 Cal. App. 4th 394, 22 Cal. Rptr. 2d 514 (1993),
the facts of which are remarkably similar to the pres-
ent case.
In Seibert Security Services, Inc., a police officer,
John Migailo, had brought a suspect in custody to a
hospital for examination of possible injuries. Id., 402.
While Migailo was doing paperwork, a psychiatric
patient became abusive toward a privately employed
security guard and another police officer. Id. At the
time, the patient ‘‘was restrained in a chair; Migailo
asked that he be handcuffed for greater control, but
[the security guard] failed to do so. Shortly thereafter,
[the patient] stood up and grabbed for [the security
guard’s] baton, and Migailo helped subdue him.’’ Id. The
patient ‘‘was then handcuffed and put in an isolation
cell, but the handcuffs were taken off because he
seemed ‘pretty pleasant’ ’’ to another security guard,
who believed that the patient was abusive toward only
black persons. Id. Within fifteen minutes, however, the
patient attacked the second security guard, who then
called for help. Id., 402–403. Migailo then helped subdue
the patient again and was injured. Id., 403.
The California court rejected the argument that the
firefighter’s rule did not apply because Migailo’s ‘‘pres-
ence was unrelated to the negligence which caused
his injury.’’ Id., 407. The court noted that, while at the
hospital, Migailo ‘‘was performing one duty—complet-
ing paperwork relating to the injured suspect—when
the alleged negligence of [the security guards] caused
him to initiate a new and different law enforcement
action and attempt to subdue [the patient]. While the
conduct of [the security guards] may have been ‘inde-
pendent of and unrelated to’ the conduct which origi-
nally brought Migailo to the hospital, it is factually
undisputed that it was the immediate cause of Migailo’s
presence in or near the holding cell . . . .’’ (Emphasis
in original.) Id., 411. The court emphasized that ‘‘the
fortuitous presence of such personnel cannot mean that
any negligent conduct which creates a crisis to which
such personnel react becomes actionable in tort . . . .’’
Id. It observed the inequity of ‘‘awarding tort recovery
to the officer who happens to be at the scene when a
negligently caused incident occurs, but barring recov-
ery for the officer who responds to a radio call. We
find such distinctions untenable and inconsistent with
the long-established purpose of the [firefighter’s] rule.’’
Id., 410; see also Kelhi v. Fitzpatrick, 25 Cal. App. 4th
1149, 1158–60, 31 Cal. Rptr. 2d 182 (1994) (The court
followed Seibert Security Services, Inc., and held that
the firefighter’s rule barred claims of a highway patrol
officer who was injured while blocking traffic from
runaway tires because ‘‘despite the fortuitous nature
of [officer’s] presence’’ riding department motorcycle
on way to work, ‘‘the runaway tires were a significant
factor in prompting [his] subsequent actions. Once
aware of the crippled truck and the runaway tires, [the
officer] unhesitatingly reacted as though on duty, which
he was, and as though he had been summoned to deal
with those precise hazards.’’); cf. Hodges v. Yarian, 53
Cal. App. 4th 973, 984–85, 62 Cal. Rptr. 2d 130 (1997)
(Following Seibert Security Services, Inc., and holding
that firefighter’s rule barred claim of off-duty deputy
sheriff injured while apprehending burglar in neighbor’s
garage, because ‘‘original reason’’ deputy was in garage
was ‘‘irrelevant’’ and apprehension of criminal suspect
is ‘‘precisely the [type] of public [function] the taxpayers
expect, pay, and equip . . . [police] officers to per-
form. When a [police] officer assumes responsibility for
performing such functions and is injured in the process,
his or her recourse is in the system of special public
benefits established to compensate the officer for such
injuries.’’ [Internal quotation marks omitted.]).
Similarly, in Higgins v. Rhode Island Hospital, 35
A.3d 919, 921 (R.I. 2012), the plaintiff, a firefighter and
emergency medical technician, was present in a hospi-
tal emergency room after transporting a patient there
by ambulance. A nurse asked the plaintiff for assistance
in restraining an emotionally disturbed patient who was
shouting and spitting at her, so that she could adminis-
ter medication to him. Id. The plaintiff was injured while
attempting to restrain the patient in conjunction with
two private security guards contracted by the hospital.
Id., 921–22. In holding that the plaintiff’s claim against
the hospital and the security firm was barred by the
firefighter’s rule, the Rhode Island Supreme Court
rejected his argument that ‘‘the firefighter’s rule should
bar claims only in those limited situations when an
emergency requires the firefighter to go to the scene,
and that for the rule to apply, injury must arise out
of the same circumstances that originally brought the
firefighter to the scene. [The plaintiff] points out that
the emergency that caused him to go to the hospital in
the first place had been resolved and that his efforts
to assist the nurse in subduing the unruly patient were
not a requirement of his job.’’ Id., 923.
The Rhode Island court emphasized in Higgins that
the firefighter’s rule ‘‘was never intended to impose a
literal requirement for the alleged tortfeasor to have
called the [first responder] to the scene in order for the
rule to apply. . . . What is required is that there be
some nexus or connection between the alleged tortfea-
sor and the emergency that brought the [first responder]
to the place where he or she was injured.’’ (Citations
omitted; internal quotation marks omitted.) Id. The
court held that the hospital and its nurse were ‘‘the
allegedly negligent tortfeasors who caused the [plain-
tiff] to go to the place where he was injured,’’ and
rejected the plaintiff’s ‘‘argument that he was injured
in an intervening incident that occurred at the original
emergency scene.’’ Id., 923–24. Focusing on the nurse,
the court emphasized that the plaintiff, as a firefighter
and emergency medical technician, ‘‘was responding to
a citizen who was in distress and who was at risk of
being injured by an unruly patient. Thus, he was reacting
to an emergency as opposed to a routine, previously
scheduled call.’’ Id., 924. The court emphasized that
when the plaintiff ‘‘completed his original task of trans-
porting the first patient to the hospital, he left the emer-
gency scene involving the first patient and moved to
a new emergency scene after a nurse at the hospital
requested [his] assistance with a difficult patient. At that
point, the first emergency ended and a new emergency,
allegedly created by the negligent restraint of the
patient, began.’’ Id., 925; see Read v. Keyfauver, 233
Ariz. 32, 34–37, 308 P.3d 1183 (App. 2013) (firefighter’s
rule barred claim of on-duty police officer injured while
extricating plaintiff from wrecked vehicle, despite fact
that officer’s actions exceeded his obligations because
‘‘[a]pplication of the rule . . . does not . . . turn on
[the officer’s] responsibilities and obligations once he
arrived on the scene; rather, the key to the analysis
is whether [the officer’s] on-duty obligations as a law
enforcement officer compelled his presence at the
scene in the first instance’’); Kennedy v. Tri-City Com-
prehensive Community Mental Health Center, Inc., 590
N.E.2d 140, 145 (Ind. App. 1992) (firefighter’s rule ‘‘par-
ticularly suited’’ to bar claim of police officers sum-
moned by group home to assist with emotionally
disturbed resident).
These cases demonstrate that, for purposes of the
firefighter’s rule, it was of no moment that the plaintiff
in the present case, as an on-duty police officer, did
not act in response to a formal request by the defendant
for assistance, but rather, exercised his own initiative
to check on, and ultimately subdue, Pariseau. I recog-
nize that, ‘‘while the firefighter’s rule may be a wise
one, implementation often depends on fortuitous cir-
cumstances,’’ and that, at least in some ways, its applica-
tion to the present case would have rewarded the
plaintiff ‘‘had he chosen to ignore his duty, and penal-
ize[d] him for his courage and conscientiousness’’ in
voluntarily acting to restrain Pariseau. Kelhi v. Fitzpa-
trick, supra, 25 Cal. App. 4th 1161. Nevertheless, the
significant public policy underlying the firefighter’s
rule; see Sepega v. DeLaura, supra, 326 Conn. (Rob-
inson, J., concurring); leads me to conclude that the
defendant did not owe the plaintiff a duty of care in
this situation, thus, barring the plaintiff’s negligence
claims. Accordingly, I conclude that the trial court prop-
erly sustained the defendant’s objection to the substi-
tute complaint and rendered judgment accordingly.
Because I would affirm the judgment of the trial court
in favor of the defendant, I respectfully dissent.
1
I note that I agree with, and join in, part I of the majority’s opinion.
2
The standards governing review of a motion to strike are well established.
See, e.g., Lawrence v. O & G Industries, Inc., 319 Conn. 641, 648–49, 126
A.3d 569 (2015).
3
I note that the doctrine known in Connecticut as the firefighter’s rule
has been described in other jurisdictions in broader terms such as the
‘‘public safety officer’s rule’’ or the ‘‘professional rescuer doctrine.’’ Sepega
v. Delaura, supra, 326 Conn. n.1 (Robinson, J., concurring). As in Sepega,
I refer to police officers, firefighters, and emergency medical technicians,
collectively, as first responders.