DocketNumber: SC 19727
Citation Numbers: 178 A.3d 366, 328 Conn. 256
Judges: Espinosa, Eveleigh, McDonald, Palmer, Robinson, Rogers
Filed Date: 2/2/2018
Status: Precedential
Modified Date: 6/24/2022
**258The plaintiff in this certified appeal, Bernadine Brooks, administratrix of the estate of Elsie White, brought this action against the defendants, Robert Powers and Rhea Milardo, constables in the town of Westbrook,
The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "The parties submitted numerous deposition transcripts, police reports, and other exhibits in support of and in opposition to the [defendants'] motion for summary judgment. Viewed in the light most favorable to the plaintiff as the party opposing summary judgment, that **260evidence would permit the following findings of fact. At roughly 6 p.m. on June 18, 2008, a storm rolled into the coastal town of Westbrook (town). Powers testified at the internal affairs investigation into his conduct, the transcript of which the plaintiff included in her opposition to the defendants' motion for summary judgment, that '[i]t was ... a dark and stormy night.... Very, very dark and very stormy.'
"The defendants were scheduled for boat patrol that evening from 6 ... until 10 p.m. By the time they arrived for work, however, the weather was already severe. The thunderstorm brought with it both torrential downpours and lightning. Due to the storm, the defendants were unable to take the boat out onto the water for the regular boat patrol and were not required to work that night. If they did work, they were to patrol the marinas and other parts of town, ensure that the boat was ready to go out if necessary, and respond to any emergencies that arose.
"When the defendants arrived for work, they punched in, got into a cruiser, and drove to [a donut shop]. After that, they drove to the marina to inspect the boat. Milardo testified at her deposition that 'the main concern [was] that the bilge pumps were operating properly.' Powers testified at his deposition that they did not need to get out of the [cruiser] to inspect the boat: '[W]e would just look to make sure that the boat was still there and check the pumps. I don't know.' Milardo testified at her deposition that she and Powers 'just sat in the parking lot and could see that the water was being discharged from the back of the boat through the bilge pumps.' The bilge pumps were brand new.
"Once they completed their inspection, the defendants drove to a [convenience store] on [Boston Post Road in Westbrook]. Powers stayed with the cruiser while Milardo went in to get some snacks. At [approximately **2617:30 p.m.], the town tax collector drove up to the [store]. She appeared concerned and told Powers that there was a woman who needed medical attention in a field just up the road. She said that the woman was wearing a shirt and pants, without a coat or any other rain gear, and was standing with her hands raised to the sky. At that time, [although it *371was still light outside] it was raining heavily and there was thunder and lightning. The field was about one-half mile from the ocean and less than one-half mile from the [convenience store].
"Powers told the tax collector that he would take care of the situation, and [the tax collector] drove away under the impression that she no longer needed to call 911 because the constable was going to take care of [the matter]. Powers then called the 911 dispatcher and told her that 'a person stopped by and they said there's a lady up on [Boston Post Road] up by Ambleside [Apartments] ... standing in a field with a raincoat on, looking up at the sky.' While Powers and the dispatcher chuckled over this, he told the dispatcher that '[t]hey think she might need medical help,' to which the dispatcher replied, '[g]eez, do you think?' Powers asked the dispatcher to send 'Rizzo or one of [the other constables],' explaining that 'I can't leave the boat.' The dispatcher asked where the person was, and Powers said that she was in a field on the side of [Boston Post Road] near Ambleside Apartments. 'She should be the person standing out in the rain,' he said, chuckling, before saying goodbye.
"The dispatcher never sent anyone to the field. She testified at her deposition: 'I didn't put [Powers' 911 call] in the computer like I normally do. I didn't write it down to remind me to send someone.' She testified that she simply 'forgot.'
"After speaking with the dispatcher, the defendants drove back to the marina to check the boat again. They **262did not get out of the [cruiser] ... but looked at the boat from [inside] the [cruiser]. The bilge pumps were still pumping. Powers testified at his deposition that he knew the pumps were new.
"The defendants then heard a call on the police scanner about a baby choking and joined the fire department in responding to that call. A couple of hours later, the defendants drove along [Boston Post Road] past the field by Ambleside Apartments out to the town line and then looped back toward the center of town. As they passed the field where the tax collector had seen the woman, they drove more slowly and turned the cruiser's spotlight on. The grass in the field was knee-high. They did not see anyone. Neither constable got out of the [cruiser]. Powers testified at the internal affairs investigation ... that, '[n]o. I wouldn't go out and walk through a field in the pouring rain.' When asked if [he and Milardo] could have gotten out to do a more thorough sweep of the area, since the woman 'could have fallen down or something,' Powers replied: '[C]ould have gone home. Could have gone for a walk. Could have.'
"A former police officer, whom the plaintiff deposed as to the adequacy of the defendants' response, remarked that 'the single most important thing that I saw [was] that [the tax collector] clearly told [Powers] that [there was] a woman that needed medical attention.... If you've got somebody that might need [medical attention] or somebody that does need it, you go.... The fact that you have somebody that's a human needing something that someone else interprets as medical attention, whether it's might or does, you respond.' Powers testified at his deposition that, '[i]f a person was in physical danger ... [he] would respond,' but that he did not think the woman in the field presented a 'true emergency.'
**263"The morning after the storm, on June 19, 2008, a fisherman went out on the water in his boat at about 7 a.m. When he returned from fishing at about 10 a.m., he noticed something washed up among the large rock boulders near the shore just west of his house, less than one mile from *372where White was last seen. When the fisherman went to inspect [what he noticed], he discovered that it was a body floating face down in the water. [The] [p]olice identified the body as White by the CVS pharmacy and Stop & Shop [scan] cards attached to a keychain clenched in her fist. The tax collector, who knew White personally, later confirmed that this was the same woman she had seen in the field the night before. White was pronounced dead at 11:01 a.m. The cause of death was accidental drowning.
"As to time of death, the police incident report stated that the 'investigation did not conclusively pinpoint a time when White entered the water.' [The defendants, however, submitted the deposition testimony of Julie Wolf, a special investigator for the state medical examiner's office, who arrived at the scene at approximately 12:30 p.m. on June 19, 2008, and examined White's body. Wolf] testified that she observed rigor mortis of the fingers, elbows, and knees, but not of the hips, and no lividity of the body.... The defendants also submitted a single page of [a] transcript from an arbitration hearing at which Ira Kanfer, an associate medical examiner, [estimated the time of death to be between 7 and 10 a.m. on June 19, 2008, which, according to Kanfer, was consistent with the beginning stages of rigor mortis observed by Wolf at 12:30 p.m.]."
**264The plaintiff commenced this action, alleging that the defendants' actions on the night of June 18, 2008, were negligent and the cause of White's death. The defendants moved for summary judgment, claiming that they were shielded from liability as a matter of law by the immunity afforded municipal employees for their discretionary acts. In response, the plaintiff maintained that the defendants' conduct fell within the identifiable victim, imminent harm exception to that immunity and that summary judgment was therefore inappropriate because the defendants' entitlement to such immunity presented a factual issue to be decided by the jury.
The trial court granted the defendants' motion. First, however, the court reviewed the principles pertaining to the doctrine of governmental immunity, which may be summarized as follows: "[Section] 52-557n
This protection for acts requiring the exercise of judgment or discretion, however, is qualified by what has become known as the identifiable person, imminent harm exception to discretionary act immunity. That exception, which we have characterized as "very limited";
**266Strycharz v. Cady ,
Applying these principles, the trial court concluded in relevant part: "The evidence submitted establishes the absence of a genuine issue of material fact that the *374harm to which the decedent was ultimately exposed, drowning in Long Island Sound, was not [evident] to the defendants .... 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.... The uncontroverted evidence submitted demonstrates that the decedent drowned the next morning in Long Island Sound, although she was initially reported to be located in a field on [Boston Post Road] ... the previous night. [In view of] the allegations [contained in] the plaintiff's complaint, and the evidence presented, the identifiable victim, imminent harm exception does not apply in this case."
The trial court further determined that, even if White were an identifiable person subject to imminent harm, **267the plaintiff's claim would nevertheless fail under the apparentness prong of the identifiable person, imminent harm exception. In support of this conclusion, the court explained that, "[i]n order to meet the apparentness requirement, the plaintiff must show that the circumstances would have made the government agent aware that his or her acts or omissions would likely have subjected the victim to imminent harm.... This is an objective test pursuant to which we consider the information available to the government agent at the time of [his or] her discretionary act or omission.... We do not consider what the government agent could have discovered after engaging in additional inquiry.... Imposing such a requirement on government officials would run counter to the policy goal underlying all discretionary act immunity, that is, keeping public officials unafraid to exercise judgment." (Internal quotation marks omitted.) In light of the facts presented by the plaintiff, the court concluded that, once the defendants were told by the dispatcher that another officer would be dispatched to check on White, it could not possibly have been apparent to the defendants that their failure to check on her themselves would subject White to a risk of imminent harm.
The plaintiff appealed to the Appellate Court, and that court, with one judge dissenting, reversed the judgment of the trial court. Brooks v. Powers , supra,
Judge (now Justice) Mullins dissented from the majority opinion. Among other concerns, he disagreed **270with the majority that White's drowning was of the same general nature as the risk of harm attendant to standing outside during a severe storm. See
"Additionally, nothing in the record or in the pleadings indicates that the defendants knew that [White] would accidentally drown after she ventured from the field .... Although the storm may have been a dangerous condition that could have subjected [White] to harm, the zone of such harm is not limitless. The harm suffered must be related to the dangerous condition.... [T]he 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 drowning later that night or the next morning in ... Long Island Sound, approximately one-half mile away from that field. Thus, the nexus between the alleged dangerous condition ... and the imminent harm actually suffered by [White] simply is not there." (Citation omitted; emphasis in original.)
Judge Mullins further concluded that, even if there were a nexus between the storm and White's drowning, **271the plaintiff's claim would still fail because the plaintiff could not establish that the harm that White suffered was imminent when the defendants were informed about her presence in the field. See
On appeal to this court following our grant of certification,
**272The defendants further *377contend that, as a matter of law, once they were informed by the 911 dispatcher that another officer would be dispatched to check on White, it could not possibly have been apparent to them that White was at risk of imminent harm or that they themselves-rather than the officer whom they were told would be sent to check on her-had a clear and unequivocal duty to protect White from that harm. The plaintiff, on the other hand, maintains that the Appellate Court correctly determined that a jury reasonably could find that the harm that befell White was foreseeable and so likely to occur that the defendants had a clear and unequivocal duty to take immediate steps to avert it.
We agree with the defendants and Judge Mullins that the Appellate Court incorrectly determined that White's drowning fell within the scope of the risk created by the defendants' failure to immediately investigate the tax collector's report that a woman was standing in a field during the storm, possibly in need of medical attention. Rather, consistent with Judge Mullins' well reasoned dissent, we conclude that White's drowning was far too attenuated from the risk of harm created by the storm for a jury reasonably to conclude that it was storm related, much less imminent in the sense that it was so likely to occur that the defendants had a clear and unequivocal duty to act to prevent it, as the plaintiff was required to prove.
Indeed, it is clear that the plaintiff cannot prevail, even under ordinary negligence principles. To establish a claim of negligence, a plaintiff must demonstrate that the defendant was under a duty of care, that the defendant's conduct breached that duty, and that the breach caused an actual injury to the plaintiff. See, e.g., Doe v. Saint Francis Hospital & Medical Center , supra,
The first step in any duty analysis requires a determination of whether the plaintiff's injury was a "reasonably foreseeable" result of the defendant's conduct. Ruiz v. Victory Properties, LLC ,
We also agree with the defendants that White's drowning was too attenuated from the risk of harm created by the defendants' conduct for a jury reasonably to conclude that it was imminent. Indeed, even if White's drowning reasonably could be characterized as storm related, it nevertheless strains credulity to conclude that the defendants, in failing to respond to a report of a woman out in a field during a storm-and instead, relaying that report to a 911 dispatcher, albeit in a light-**275hearted or even flippant manner-ignored a risk that the woman would drown in waters one-half mile away from the field, most likely the next day, after the storm presumably had passed. Indeed, it is no less implausible to believe that that harm was so likely to occur that "the defendant[s] had a clear and unequivocal duty to act immediately to prevent the harm." Haynes v. Middletown , supra,
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to **277render judgment affirming the judgment of the trial court.
In this opinion ROGERS, C.J., and McDONALD, ROBINSON and ESPINOSA, Js., concurred.
The town of Westbrook also is a defendant in this action. Because the town's liability is derivative of that of its employees, Powers and Milardo, all references to the defendants are to Powers and Milardo.
As we explain more fully hereinafter, governmental immunity shields municipalities and their employees from liability for negligence when the negligent acts are discretionary rather than ministerial in nature. See, e.g., Haynes v. Middletown ,
After this appeal was filed, we granted the applications of the Connecticut Trial Lawyers Association, the Connecticut Conference of Municipalities and the Connecticut Interlocal Risk Management Agency to file amicus curiae briefs in support of the parties' respective claims.
We further note that the police also interviewed White's next-door neighbor, Patricia Martin, who reported hearing White's apartment door slam twice on the night of June 18, 2008, once at approximately 8 p.m., shortly after the tax collector had observed White standing in the field, and a second time at approximately 10 p.m. Martin was subsequently deposed and testified that the apartments in which she and White resided shared a common wall and that White was the only person in her building who slammed her apartment door upon entering or exiting the building. Martin further stated that, on the evening of June 18, 2008, at approximately 10 p.m., she had just gotten into bed when the door to White's apartment was slammed so hard that the wall between their two apartments vibrated, startling Martin.
General Statutes § 52-557n (a) provides: "(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
As we have explained, "[m]unicipal officials are immune 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 discretion beyond the limits desirable in our society.... Therefore, [d]iscretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officials and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; footnote omitted; internal quotations marks omitted.) Coley v. Hartford , supra,
In the trial court, the plaintiff asserted that the acts of the defendants were ministerial and, therefore, not subject to immunity. The trial court rejected that claim, however, and the plaintiff has not challenged that ruling on appeal.
In addition to Doe v. Petersen , supra,
The Appellate Court also reasoned that, in those cases in which this court has used the word "specific" to delimit the term "imminent harm" for purposes of the identifiable person, imminent harm exception, "the specificity of the harm played no role in [this] court's analysis, and the court gave no indication that by including the word 'specific' in one sentence it intended to overrule the prior consensus-at least in duty of care cases, to which the court has likened immunity cases-that the general nature of the harm is what matters." Brooks v. Powers , supra,
Our grant of certification to appeal was limited to the following issue: "Did the Appellate Court use the correct standard for determining whether the 'harm' was imminent, and properly apply the identifiable victim, imminent harm standard to the facts of this case, in determining that the trial court improperly granted summary judgment in favor of the defendants?" Brooks v. Powers ,
See, e.g., Haynes v. Middletown , supra,
In light of this conclusion, we have no occasion to revisit our prior cases characterizing the identifiable person, imminent harm exception as requiring a showing that the specific harm that that the identifiable person imminently faced is the harm that actually occurred. Suffice it to say that the Appellate Court's contrary determination finds little if any support in this court's relevant precedent.
It bears mention, moreover, that uncontroverted evidence indicates that White made it safely out of the field after being observed there between 7:30 and 8 p.m.-her next-door neighbor twice heard White slam her front door between 8 and 10 p.m. that evening, and, as the trial court noted, the unchallenged evidence established her time of death at between 7 and 10 a.m. the next morning. See footnote 4 of this opinion. The fact that she was able to make her way home after leaving the field cannot be squared with a finding that her standing in the field during the storm was "so dangerous that it merit[ed] an immediate response." Brooks v. Powers , supra,
Asserting that "the legislature intends for police officers to be the first line of defense when helping people with mental illness who could be dangerous to themselves or [to] others," the dissenting justice contends that the trial court should not have granted the defendants' motion for summary judgment because, in light of White's conduct, there existed a "reasonable likelihood" that "she could [have been] trying to hurt herself" due to a mental illness, and that such a risk should have been apparent to the defendants. According to the dissenting justice, it is that risk, and not the risk that she would be harmed by the storm, that should be our focus for purposes of this appeal. The plaintiff, however, has never even attempted to explain how the evidence demonstrates, first, that it should have been obvious to the defendants that White suffered from a serious mental illness and, second, that such mental illness gave rise to an imminent risk of self-inflicted harm. Indeed, we do not see how the plaintiff could have prevailed on that claim if she had made it, which she did not. With respect to defeating the defendants' governmental immunity, it is undisputed that the plaintiff's claim-as advanced in the trial court, in the Appellate Court and in this court-consistently has been that the defendants should have been aware that White was exposed to a serious risk of harm from the storm . For that reason alone, it would improper for us to entertain the claim that the dissenting justice raises for the first time in this certified appeal. See, e.g., White v. Mazda Motor of America, Inc. ,