Brooks v. Powers

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BERNADINE BROOKS, ADMINISTRATRIX
(ESTATE OF ELSIE WHITE) v. ROBERT
POWERS ET AL.
(AC 37301)
Gruendel, Mullins and Mihalakos, Js.*
Argued December 2, 2015—officially released April 26, 2016
(Appeal from Superior Court, judicial district of
Middlesex, Domnarski, J.)
Daniel P. Scholfield, with whom, on the brief, were
Steven J. Errante and Marisa A. Bellair, for the appel-
lant (plaintiff).
Thomas R. Gerarde, with whom was Emily Holland,
for the appellees (named defendant et al.).
James N. Tallberg and Dennis M. Durao filed a brief
for the appellee (defendant town of Westbrook).
Opinion
GRUENDEL, J. The plaintiff, Bernadine Brooks,
administratrix of the estate of Elsie White, appeals from
the rendering of summary judgment against her on her
claims that the defendants, Constables Robert Powers
and Rhea Milardo,1 were negligent in responding to a
report that there was a woman, in a field near the ocean
during a severe storm, who needed medical attention.
No one attended to White, and the next morning her
body washed up on the shore. The court held, as a
matter of law, that the plaintiff’s claims were barred
by discretionary act immunity and that the imminent
harm, identifiable victim exception to that immunity
did not apply.
On appeal, the plaintiff argues that the court erred
in granting the defendants’ summary judgment motion
and thus barring her claims as a matter of law because
the evidence she submitted in response to the defen-
dants’ motion permitted a jury reasonably to conclude
that the imminent harm, identifiable victim exception
did apply, making summary judgment improper.2 We
agree with the plaintiff. The imminent harm, identifiable
victim exception has three elements: ‘‘(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.’’ (Internal quotation
marks omitted.) Haynes v. Middletown, 314 Conn. 303,
313, 101 A.3d 249 (2014). Here, the evidence submitted
in response to the defendants’ summary judgment
motion would permit a jury reasonably to find that the
defendants were told that White was in a field near the
ocean during a severe storm, that they were told she
needed medical attention, and that it was apparent that
if the defendants isolated her from any chance of aid—
by reporting the situation to dispatch in such a way
that it would be thought a joke and then driving off
without helping her—they would likely subject her to
imminent harm from the coastal storm. Because those
facts would permit a jury reasonably to conclude that
all three elements of the imminent harm, identifiable
victim exception were met, summary judgment was
improper. Accordingly, we reverse the judgment of the
trial court and remand the case for further proceedings.
I
The parties submitted numerous deposition tran-
scripts, police reports, and other exhibits in support of
and in opposition to the motion for summary judgment.
Viewed in the light most favorable to the plaintiff as
the party opposing summary judgment, that evidence
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 inter-
nal 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 p.m. until 10 p.m. By the time they
arrived for work, however, the weather was already
severe. The thunderstorm brought with it both torren-
tial 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 Dunkin’ Donuts.
After that, they drove to the marina to inspect the boat.
Milardo testified at her deposition that ‘‘the main con-
cern [was] that the bilge pumps were operating prop-
erly.’’ Powers testified at his deposition that they did
not need to get out of the car 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 JoJo’s Food Mart on Route 1. Powers stayed
with the cruiser while Milardo went in to get some
snacks. At this time, the town tax collector drove up
to the food mart. 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, 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 food mart.
Powers told the tax collector that he would take
care of the situation, and she drove away under the
impression that she no longer needed to call 911
because the constable was going to take care of it.
Powers then called the 911 dispatcher and told her that
‘‘a person stopped by and they said there’s a lady up on
Route 1 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 Route 1 near Ambleside Apartments. ‘‘She should be
the person standing out in the rain,’’ he said, chuckling,
before saying goodbye.3
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
did not get out of the car, but looked at the boat from
the car. 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 scan-
ner about a baby choking and joined the fire department
in responding to that call. A couple of hours later, the
defendants drove along Route 1 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 spot-
light on. The grass in the field was knee-high. They did
not see anyone. Neither constable got out of the car.
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, ‘‘[n]o. I wouldn’t go out
and walk through a field in the pouring rain.’’ When
asked if the defendants 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 we had a woman that needed medical attention.
. . . If you’ve got somebody that might need [medical
attention] or somebody that does need it, you go.
Whether it’s might or wasn’t might, it does not make a
difference. 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.’’
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 where White was last seen. When
the fisherman went to inspect it, he discovered that it
was a body floating face down in the water. Police
identified the body as White by the CVS pharmacy and
Stop & Shop grocery 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.’’ In the excerpts
from the deposition testimony of an investigator for
the state medical examiner’s office that the defendants
submitted, she testified that she observed rigor mortis
of the fingers, elbows, and knees, but not of the hips,
and no lividity of the body. She did not testify whether
that meant White died minutes after the tax collector
saw her on the night of June 18, 2008, minutes before
the fisherman found her body the next morning, or
somewhere in between. The defendants also submitted
a single page of transcript from an arbitration hearing
at which Ira Kanfer, an associate medical examiner,
stated the following:
‘‘Q. So, based on those factors you would estimate
the time of death between 7 a.m. and 10 a.m. on the
morning of June 19?
‘‘A. Right.
‘‘Q. And you believe that that’s consistent with the
beginning stages of rigor mortis found by the medical
examiner at 12:30?
‘‘A. Yeah.’’
It is unclear what Kanfer meant by ‘‘those factors,’’
and it is unclear, as to the medical evidence, whether
it made a time of death between 7 a.m. and 10 a.m.
especially likely, or was merely ‘‘consistent with’’ such
a time of death.
On January 16, 2010, the plaintiff brought this action
against the defendants, alleging that their actions on
the night of June 18, 2008, were negligent and caused
the death of White. The defendants moved for summary
judgment in April, 2014, arguing that, as a matter of
law, discretionary act immunity shielded them from any
liability. The plaintiff objected, arguing that her claims
fell within the imminent harm, identifiable victim excep-
tion to that immunity. Both parties submitted exhibits
and transcripts in support of their positions. On July
23, 2014, the court held, on the basis of the evidence
before it, as a matter of law, that (1) discretionary act
immunity applied because the defendants were engaged
in the typical functions of police officers; and (2) the
imminent harm, identifiable victim exception did not
apply because the defendants could not have predicted,
given what they knew, that White would have
‘‘drown[ed] in Long Island Sound . . . .’’ The court thus
rendered summary judgment in favor of the defendants.
The plaintiff filed a motion for reconsideration, which
the court denied. On October 14, 2014, the plaintiff
appealed to this court.
II
The question before us is whether the court properly
granted the defendants’ motion for summary judgment
on the ground that, as a matter of law, discretionary
act immunity shielded them from liability, and that the
imminent harm, identifiable victim exception to that
immunity did not apply.4 To meet their burden to estab-
lish that they were entitled to summary judgment, the
defendants needed to prove two things: (1) there was
no genuine issue as to the facts establishing that, as a
matter of law, their actions were discretionary rather
than ministerial, thus triggering discretionary act immu-
nity; and (2) there was no genuine issue as to the facts
establishing that, as a matter of law, the plaintiff had
failed to meet at least one of the three elements of
the exception to that immunity for identifiable victims
subject to imminent harm. See Practice Book § 17-49.
The plaintiff concedes that the defendants’ actions
were not ministerial. She argues, however, that a jury
reasonably could conclude from the evidence that all
three elements of the exception—(1) imminent harm;
(2) identifiable victim; and (3) apparentness—were met
because, when the tax collector told Powers that a
specific woman out in a field near the ocean during a
severe storm needed medical attention, it was apparent
that, if the defendants said they would take care of it,
but relayed the report to the 911 dispatcher in such a
way that she thought it a joke and did not themselves
respond, then they isolated the woman from any chance
of aid and put her at risk of imminent harm from the
coastal storm.
We begin by parsing the requirements of the imminent
harm, identifiable victim exception. We conclude, as a
general matter, that the exception requires not only that
it be apparent that a victim was at risk of imminent
harm, but also that it was apparent that the defendants’
chosen response or nonresponse to the imminent dan-
ger likely would subject the victim to that harm. With
that general requirement in mind, we then turn more
specifically to the three elements of the exception.
We first conclude that the defendants failed to carry
their burden on their motion for summary judgment as
to at least two of the three elements—i.e., (2) identifi-
able victim; and (3) apparentness—because there was
evidence from which a jury reasonably could find both
that the tax collector identified White with sufficient
specificity and that Powers had all the relevant facts
before him. We then turn to the final element—(1) immi-
nent harm—and conclude that the defendants failed to
carry their burden as to it as well. We begin by laying
out the test for whether a harm is imminent. We con-
clude both that it is the general nature of that harm—
not its specific manifestation—that must be imminent;
and that a harm is imminent if, on a given day, it is
more likely than not to occur. Applying that test to
the facts here, we thus ask if a jury reasonably could
conclude from the evidence submitted in support of
and in opposition to the defendants’ summary judgment
motion that it was apparent that the joking manner
in which Powers called in the emergency to dispatch,
together with the defendants’ failure to respond them-
selves, made it more likely than not that White would
become a victim of the storm. We hold that a jury
reasonably could so conclude. Accordingly, we reverse
the summary judgment in favor of the defendants and
remand the case for further proceedings.
A
We begin with the standard of review. Because the
appropriateness of summary judgment is a question of
law, ‘‘[o]ur review of the trial court’s decision to grant
[a] motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Martel v. Metropolitan Dis-
trict Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005).
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.’’
(Internal quotation marks omitted.) Segreto v. Bristol,
71 Conn. App. 844, 848, 804 A.2d 928, cert. denied, 261
Conn. 941, 808 A.2d 1132 (2002). ‘‘A material fact . . .
[is] a fact which will make a difference in the result of
the case.’’ (Internal quotation marks omitted.) Stuart
v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
Accordingly, ‘‘[a] defendant’s motion for summary judg-
ment is properly granted if it raises at least one legally
sufficient defense that would bar the plaintiff’s claim
and involves no triable issue of fact.’’ Perille v.
Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543,
494 A.2d 555 (1985).
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
the material facts, which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law. The courts hold the movant to a strict standard.
To satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an
issue. . . .
‘‘Once the moving party has met its burden, however,
the opposing party must present evidence that demon-
strates the existence of some disputed . . . issue [of
material fact]. . . . It is not enough, however, for the
opposing party merely to assert the existence of such
a disputed issue. Mere assertions of fact . . . are insuf-
ficient to establish the existence of a material fact and,
therefore, cannot refute evidence properly presented
to the court under Practice Book § [17-45].’’ (Internal
quotation marks omitted.) Martel v. Metropolitan Dis-
trict Commission, supra, 275 Conn. 46–47. Likewise,
‘‘testimony [that] is too speculative, too conjectural
. . . [to support] a judgment for the plaintiff’’ at trial
‘‘cannot serve as a basis for opposition to a motion
for summary judgment.’’5 (Citations omitted; internal
quotation marks omitted.) Nolan v. Borkowski, 206
Conn. 495, 507, 538 A.2d 1031 (1988).
In sum, the test is ‘‘whether [the movant] would be
entitled to a directed verdict on the same facts’’; (inter-
nal quotation marks omitted) Connell v. Colwell, 214
Conn. 242, 247, 571 A.2d 116 (1990); i.e., whether ‘‘a
jury could not reasonably and legally have reached any
other conclusion.’’ (Internal quotation marks omitted.)
Curran v. Kroll, 303 Conn. 845, 856, 37 A.3d 700 (2012).
‘‘[A] summary disposition . . . should be on evidence
which a jury would not be at liberty to disbelieve . . . .’’
(Internal quotation marks omitted.) 2830 Whitney Ave-
nue Corp. v. Heritage Canal Development Associates,
Inc., 33 Conn. App. 563, 566, 636 A.2d 1377 (1994).
This demanding burden is due to ‘‘the well established
standards compelling great deference to the historical
function of the jury [which] find their roots in the consti-
tutional right to a trial by jury.’’ (Internal quotation
marks omitted.) Curran v. Kroll, supra, 856. Our courts
have ‘‘give[n] great weight . . . to the plaintiff’s consti-
tutional right to have his or her case presented to a
jury.’’ Id., 856 n.7.
Here, the defendants moved for summary judgment
arguing that they were immune from liability because
there was no genuine issue as to the facts establishing
that, as a matter of law: (1) their allegedly negligent
conduct was discretionary—not ministerial—thus trig-
gering discretionary act immunity; and (2) no exception
applied to defeat that immunity.6 The plaintiff concedes
that the defendants’ conduct was not ministerial, but
argues that the imminent harm, identifiable victim
exception to discretionary act immunity applied. We
thus briefly review the law of discretionary act immu-
nity and the imminent harm, identifiable victim
exception.
At common law, ‘‘a municipal employee is liable for
the misperformance of ministerial acts, but has a quali-
fied immunity in the performance of [discretionary]
acts.’’ (Internal quotation marks omitted.) Spears v.
Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003); see also
Grady v. Somers, 294 Conn. 324, 337–38, 984 A.2d 684(2009) (reviewing scope of discretionary act immunity).
Even if an act is discretionary, our Supreme Court ‘‘has
recognized an exception to discretionary act immunity
that allows for liability 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 . . . . This identifiable person-
imminent harm exception has three requirements: (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.
. . . All three must be proven in order for the exception
to apply.’’ (Internal quotation marks omitted.) Haynes
v. Middletown, supra, 314 Conn. 312–13 (discussing
exception in context of derivative claim against munici-
pality). Nevertheless, the exception ‘‘has received very
limited recognition in this state.’’7 (Internal quotation
marks omitted.) Id., 319.
‘‘[T]he ultimate determination of whether [discretion-
ary act] 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] resolution of those factual issues is prop-
erly left to the jury.’’8 (Internal quotation marks omit-
ted.) Id., 313. ‘‘We therefore exercise plenary review
over the issue of whether the identifiable person-immi-
nent harm exception to governmental immunity
applies.’’ Edgerton v. Clinton, 311 Conn. 217, 227–28,
86 A.3d 437 (2014).
Thus, fitting the substantive law at issue here into
the general summary judgment standard, we ask: (1)
did the defendant initially put forth evidence that a jury
would not be at liberty to disbelieve and from which
the only reasonable conclusion was that the plaintiff
had failed to establish at least one element of the immi-
nent harm, identifiable victim exception to immunity;
and (2) if so, did the plaintiff nonetheless put forth
such additional evidence that a jury reasonably could
conclude from all the evidence that the plaintiff had
established all three elements of the exception? In this
case, our analysis begins and ends with the second
question.
B
As a threshold matter, we must determine the general
contours of the imminent harm, identifiable victim
exception. Our Supreme Court has stated that excep-
tion in two different ways.
First, the court has said that the exception applies if
‘‘the circumstances make it apparent to the public offi-
cer that his or her failure to act would be likely to
subject an identifiable person to imminent harm . . . .’’
(Emphasis added; internal quotation marks omitted.)
Haynes v. Middletown, supra, 314 Conn. 312. Read liter-
ally, this would mean that if it is clear before the officer
acts that doing nothing likely would result in harm
to the victim, then the exception applies, immunity is
turned off, and whatever response or nonresponse the
officer makes must be reasonable; a negligent response
would subject the officer to liability. On this reading,
the exception would operate as an off switch for immu-
nity in a subset of high stakes situations, requiring offi-
cers to act reasonably when someone’s life was on
the line.
Second, the court has said that the exception applies
if the plaintiff can show ‘‘(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; internal
quotation marks omitted.) Id., 313. Read literally, this
would mean that an officer who has identified a victim
as threatened by imminent harm is still free to respond
unreasonably, so long as it is not apparent that the
officer’s particular response will likely result in harm
to the victim. On this reading, the exception would
generally permit officers to act unreasonably, even in
high stakes situations, but would peel back that immu-
nity if an officer showed a particularly egregious disre-
gard for life.
We conclude that our Supreme Court’s immunity
jurisprudence supports the second reading of the excep-
tion. A plaintiff must therefore prove not only that it
was apparent that a victim was at risk of imminent
harm, but also that it was apparent that the defendants’
chosen response or nonresponse to the imminent dan-
ger would likely subject the victim to that harm.
We reach this conclusion due to the policy concerns
that underlie both discretionary act immunity and the
imminent harm, identifiable victim exception.
As to discretionary act immunity, it ‘‘reflects a value
judgment that—despite injury to a member of the pub-
lic—the broader interest in having government officers
and employees free to exercise judgment and discretion
in their official functions, unhampered by fear of sec-
ond-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 ministe-
rial acts, defined as acts to be performed in a prescribed
manner without the exercise of judgment or discretion.
. . . This is because society has no analogous interest
in permitting municipal officers to exercise judgment
in the performance of ministerial acts.’’ (Internal quota-
tion marks omitted.) Edgerton v. Clinton, supra, 311
Conn. 229–30.
The rationale behind the imminent harm, identifiable
victim exception is similar. It ‘‘represents a situation in
which the public official’s duty to act is [so] clear and
unequivocal that the policy rationale underlying discre-
tionary act immunity—to encourage municipal officers
to exercise judgment—has no force.’’ (Internal quota-
tion marks omitted.) Bonington v. Westport, 297 Conn.
297, 307, 999 A.2d 700 (2010). Our Supreme Court has
thus held that, where police may have unreasonably
failed to ask a woman if she lived in an apartment before
forcibly removing her, the imminent harm, identifiable
victim exception did not apply because ‘‘[t]hese are,
indeed, the situations in which we want to encourage
police to use their discretion in order to parse as care-
fully as possible between the extremes of an unwanted
guest that is causing a criminal disturbance and a peace-
able actual possessor whom the landlords are endeav-
oring to use the police to evict.’’ Fleming v. Bridgeport,
284 Conn. 502, 535, 935 A.2d 126 (2007).
Thus, the imminent harm, identifiable victim excep-
tion and the broader rule that an officer is liable for
breaching a ministerial duty appear to be two sides of
the same coin. Both reflect a value judgment that, when
a municipal officer must choose between various
responses to a situation, making that officer liable for
choosing unreasonably would distract the officer with
fears of second-guessing and retaliatory lawsuits, and
so would discourage the officer from choosing reason-
ably. On the flip side, if—for one reason or another—
a particular course of action is mandated, then the
threat of liability operates normally and encourages the
officer to choose the mandated course of action.
The ministerial duty rule and the imminent harm,
identifiable victim exception simply embody two differ-
ent reasons why a particular course of action would be
mandated, such that liability is appropriate if the officer
makes the wrong choice. On the one hand, a ministerial
duty entails a duty to act in a certain way that is man-
dated by rules, policies or directives. See Violano v.
Fernandez, 280 Conn. 310, 325, 907 A.2d 1188 (2006). On
the other hand, the imminent harm, identifiable victim
exception entails a duty to avoid acting in a certain
way and is mandated because, if one did act in that
way, it would expose a victim to imminent harm. See
Sestito v. Groton, 178 Conn. 520, 522–23, 423 A.2d 165(1979) (police officer sat in car and watched drunken
brawl unfold until victim was shot).
This understanding of the policies behind discretion-
ary act immunity and the imminent harm, identifiable
victim exception makes it highly unlikely that the first
formulation—that the exception operates as an off
switch for immunity in high stakes situations—is cor-
rect. If making officers liable for choosing unreasonably
is understood to distract them with secondary concerns
about liability and so discourage reasonable choices,
then it would be especially dangerous for tort law to
require officers to choose reasonably in high stakes
situations.9 Rather, the second formulation seems to be
correct, namely, that the exception applies only if an
officer chooses a course of action that was clearly
beyond the pale because it was apparent that it would
likely subject someone to imminent harm.
Accordingly, the exception requires not only that it
be apparent that a victim was at risk of imminent harm,
but also that it be apparent that the defendants’ chosen
response or nonresponse to the imminent danger was
likely to subject the victim to that harm.
C
Keeping this general framework in mind, we next
turn to the specific elements of the imminent harm,
identifiable victim exception. The defendants, as the
parties moving for summary judgment, had the burden
of showing that as to at least one of the three elements
of the imminent harm, identifiable victim exception—
(1) imminent harm; (2) identifiable victim; (3) appar-
entness—no reasonable jury could conclude from the
evidence submitted that it was met. See Haynes v. Mid-
dletown, supra, 314 Conn. 313.
We hold that a jury reasonably could conclude that
each of the three elements was met. The evidence and
reasonable inferences from it permitted a jury to find
both that the defendants relayed the report of an emer-
gency to the 911 dispatcher in such a way that she
thought it a joke and that it was apparent that this
would likely prevent her from sending anyone, leaving
White’s emergency unaddressed and so subjecting her
to imminent harm from the storm. See footnote 3 of
this opinion.
1
We begin with the third element, apparentness,
because the defendants focus the bulk of their argu-
ments on it. We conclude, however, that this focus is
misguided. Each of the three cases from our Supreme
Court discussing apparentness has done so in the con-
text of an information asymmetry, i.e., where some
other person knew more than the municipal defendant
and those extra facts were crucial to understanding the
danger at hand.10 See Doe v. Petersen, 279 Conn. 607,
610, 620, 903 A.2d 191 (2006) (because town employee
nervously interrupted rape victim, telling her to ‘‘ ‘hold
on a second’ ’’ when she tried to tell him that her tennis
coach had raped her, and then got in his car and drove
off, it was not apparent to employee that she had been
raped or that treating her this way would compound
trauma); Fleming v. Bridgeport, supra, 284 Conn. 508n.8, 534–35 (because police never asked woman if she
lived in apartment, it was not apparent to them that
she was a resident and that forcibly removing her was
thus unwarranted); Edgerton v. Clinton, supra, 311
Conn. 234 (because car chase sounded quiet over
phone, it was not apparent to 911 operator that car
might be driving at dangerously high speed and so
should be told to stop chase).
By contrast, here there was no information asymme-
try. A jury could reasonably infer that the tax collector
told Powers all the relevant facts: there was a woman
without rain gear, with her hands raised to the sky,
who was standing out in a field near the ocean during
a severe storm, and she needed medical attention. There
is no additional fact that the defendants lacked at the
time but that later came to light, which would have
revealed the true nature of the emergency. Accordingly,
the real question is not the apparentness of any immi-
nent harm under the third element of the exception,
but whether, on the basis of the facts the defendants
had, any harm was imminent under the first element
of the exception.11 Because no information asymmetry
existed, if the evidence established that harm was immi-
nent, then the same evidence would have made that
harm apparent to the defendants.
2
The second element of the exception—whether
White was an identifiable victim—similarly presents no
obstacle. The defendants do not dispute this element,
except insofar as it is intertwined with the imminent
harm element because an ‘‘allegedly identifiable person
must be identifiable as a potential victim of a specific
imminent harm.’’ (Emphasis added.) Doe v. Petersen,
supra, 279 Conn. 620–21. Here, a jury could reasonably
infer that the tax collector pinpointed White as a poten-
tial victim of the storm. Powers acknowledged as much
in his call to the 911 dispatcher, joking that White should
be easy to identify because ‘‘[s]he should be the person
standing out in the rain’’ in the field. A jury reasonably
could conclude that White was an identifiable victim.
3
Finally, we turn to the first element of the exception,
whether harm was imminent. We begin by discussing
the scope of the harm and conclude that it is the general
nature of the harm—not its specific manifestation—
that must be imminent. We then set forth the test for
whether a harm is imminent. We conclude from our
Supreme Court’s decisions that the test is whether, on
a given day, the harm is more likely than not to occur.
Applying that test to the facts here, we hold that a jury
reasonably could conclude from the evidence that it
was apparent that the manner in which Powers called
the emergency in to dispatch, together with the defen-
dants’ failure to respond themselves, ensured that
White’s emergency would go unaddressed, leaving her
to fend for herself close to the ocean during a severe
storm, and thus likely subjecting her to imminent harm
from the storm. As such, there was a genuine issue of
fact as to whether the imminent harm element was met.
a
We begin by determining the scope of the harm that
must be imminent. The plaintiff argues that it is the
general nature of the harm that must be imminent—
here, harm from the storm. By contrast, the defendants
argue that it is the specific manner of harm that befell
the victim that must have been imminent—here, White’s
‘‘drowning off of the coastline.’’ We agree with the plain-
tiff. The ‘‘general nature’’ test is supported by two lines
of cases, one about the scope of harm in the duty of
care context, and the other cautioning against hyper-
technical application of the law. As to the court’s pass-
ing remark in Doe v. Petersen, supra, 279 Conn. 620–21,
about a ‘‘specific imminent harm,’’ we conclude that it
did not change the standard to require that harm be
more narrowly defined.
In the context of the duty of care, our Supreme Court
has held that so long as ‘‘harm of the general nature
as that which occurred is foreseeable there is a basis for
liability even though the manner in which the accident
happens is unusual, bizarre or unforeseeable.’’ (Empha-
sis added; internal quotation marks omitted.) Ruiz v.
Victory Properties, LLC, 315 Conn. 320, 335, 107 A.3d
381 (2015). The Supreme Court has directly likened
immunity to the duty of care. Doe v. Petersen, supra,
279 Conn. 613 (‘‘[t]he issue of governmental immunity
is simply a question of the existence of a duty of care’’);
Durrant v. Board of Education, 284 Conn. 91, 100–101,
931 A.2d 859 (2007) (‘‘immunity . . . is in effect a ques-
tion of whether to impose a duty of care’’). It would
thus seem that—although a much higher level of risk
is needed to establish an imminent harm than to estab-
lish a foreseeable harm—the harm should be defined
at the same level of generality in each case. See Haynes
v. Middletown, supra, 314 Conn. 320–23 (contrasting
level of risk required for imminent harm test versus
foreseeable harm test).
Adopting the defendant’s narrow framing of the scope
of harm also ‘‘would be inconsistent with our long-
standing body of case law that repeatedly has eschewed
applying the law in such a hypertechnical manner so
as to elevate form over substance.’’ (Internal quotation
marks omitted.) Grady v. Somers, supra, 294 Conn. 348.
Especially in the context of imminent harm, a cry for
help need not cite chapter and verse to warrant a
response. These are precisely the cases in which a
lengthy exposition of the specific manner in which one
is about to be injured is both unnecessary and
impractical.
We note, however, that our Supreme Court did state
in passing, in Doe v. Petersen, supra, 279 Conn. 620–21,
that a plaintiff ‘‘must be identifiable as a potential victim
of a specific imminent harm.’’12 (Emphasis added.) We
conclude, for two reasons, that this language does not
narrow the framing of imminent harm.
First, in Doe itself, the specificity of the harm played
no role in the 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. Id.; see also Gazo v. Stamford,
255 Conn. 245, 250, 765 A.2d 505 (2001) (‘‘the test for
the existence of a legal duty of care entails . . . a deter-
mination of whether an ordinary person . . . would
anticipate that harm of the general nature of that suf-
fered was likely to result’’ [emphasis added; internal
quotation marks omitted]); Pisel v. Stamford Hospital,
180 Conn. 314, 333, 430 A.2d 1 (1980) (‘‘so long as
harm of the general nature as that which occurred is
foreseeable there is a basis for liability even though
the manner in which the accident happens is unusual,
bizarre or unforeseeable’’ [emphasis added]); Figlar v.
Gordon, 133 Conn. 577, 582, 53 A.2d 645 (1947) (‘‘the test
is, would the ordinary man in the defendant’s position,
knowing what he knew or should have known, antici-
pate that harm of the general nature of that suffered
was likely to result . . . .’’ [emphasis added]).
Second, although the ‘‘specific imminent harm’’ lan-
guage from Doe has been quoted in a handful of subse-
quent appellate cases, the court has never relied on that
language in its analysis. See Cotto v. Board of Educa-
tion, 294 Conn. 265, 276, 984 A.2d 58 (2009) (‘‘[a]n alleg-
edly identifiable person must be identifiable as a
potential victim of a specific imminent harm’’ [emphasis
added; internal quotation marks omitted]);13 Grady v.
Somers, supra, 294 Conn. 354 (same); Merritt v. Bethel
Police Dept., 120 Conn. App. 806, 816, 993 A.2d 1006(2010) (same); Thivierge v. Witham, 150 Conn. App.
769, 779, 93 A.3d 608 (2014) (same); Jahn v. Board of
Education, 152 Conn. App. 652, 662, 99 A.3d 1230 (2014)
(same); Texidor v. Thibedeau, 163 Conn. App. 847, 861,
A.3d (2016) (same). Moreover, our Supreme
Court’s most recent cases omit the ‘‘specific imminent
harm’’ language entirely. See Bonington v. Westport,
supra, 297 Conn. 314–15 (omitting ‘‘specific imminent
harm’’ language), Edgerton v. Clinton, supra, 311 Conn.
227–31 (same); Haynes v. Middletown, supra, 314 Conn.
312–13 (same). We thus conclude that it is the general
nature of the harm—not its specific manifestation—
that must be imminent.14
b
We next set forth the test for whether a harm is
imminent. ‘‘[T]he 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.’’15 (Emphasis added.) Haynes v.
Middletown, supra, 314 Conn. 322–23. This test focuses
on the ‘‘magnitude of the risk,’’ not on the temporal or
geographical scope of that risk. (Emphasis omitted.)
Id., 322. In short, the question is whether a situation is
so dangerous that it merits an immediate response. See
id., 325.
Such a test for the imminent harm element is highly
fact specific. See Williams v. Housing Authority, 159
Conn. App. 679, 705–707, 124 A.3d 537 (breaking out
imminent harm test into four prongs), cert. granted
on other grounds, 319 Conn. 947, 125 A.3d 528 (2015).
Reasonable people often disagree over how dangerous
something is, and over how urgent a response is
required. Nevertheless, seven cases from our Supreme
Court provide guideposts within which to navigate that
test. The rough rule of thumb gleaned from these cases
is that a harm merits an immediate response—and thus
is ‘‘imminent’’—if, on a given day, it is more likely than
not to occur.
In three cases, the court held that a jury reasonably
could conclude that harm was imminent. In the first
case, a jury reasonably could have found that a police
officer remained in his car and watched as a drunken
brawl involving the victim as well as a suspected armed
robber and several bar patrons unfolded in a bar’s park-
ing lot. Sestito v. Groton, supra, 178 Conn. 522–23. One
of the assailants ultimately shot and killed the victim.
Id., 523. The court held that these facts were egregious
enough that the case should have been submitted to
the jury.16 Id., 528.
In the second case, a jury reasonably could have
found that school administrators knew that elementary
school children needed to be supervised lest they ‘‘run
and engage in horseplay that often results in injuries.’’
(Internal quotation marks omitted.) Purzycki v. Fair-
field, 244 Conn. 101, 110, 708 A.2d 937 (1998), overruled
in part on other grounds by Haynes v. Middletown, 314
Conn. 303, 323, 101 A.3d 249 (2014). Nevertheless, the
students were dismissed from lunch to traverse an unsu-
pervised hallway on their way to recess. Id. On one
such occasion, the eight year old victim was tripped by
another student as he ran down the hallway, causing
him to plunge headfirst through the window of the exit
door and sustain injuries. Id., 104. The court held that
a jury reasonably could have concluded that the unsu-
pervised hallway presented an imminent harm.17 Id.,
110.
In the third case, a jury reasonably could have found
that school administrators knew students were prone
to horseplay while changing clothes in the locker room.
Haynes v. Middletown, supra, 314 Conn. 325. Neverthe-
less, the students were left to change unsupervised in
a locker room where one locker was broken with a
jagged edge. See id., 308, 325. On one such occasion,
the minor victim was shoved into the jagged locker and
he sustained injuries. Id., 306, 308. The court held that
a jury reasonably could have concluded that the unsu-
pervised locker room with the jagged locker presented
an imminent harm. Id., 325–26.
In the other four imminent harm cases, the court held
that no reasonable jury could conclude that harm was
imminent.18 In the first case, the complaint alleged that
municipal officers failed to adequately inspect apart-
ment buildings for fire code violations. Evon v.
Andrews, 211 Conn. 501, 502 n.4, 559 A.2d 1131 (1989).
Eventually, the victims’ apartment burned down, killing
them. Id., 502. The court held that, although a fire did
eventually occur, ‘‘[t]he risk of fire implicates a wide
range of factors that can occur, if at all, at some unspeci-
fied time in the future.’’ Id., 508. Without more, the
general risk of fire was so attenuated that, as a matter
of law, it was not an imminent harm. See id.
In the second case, the complaint alleged that a city
failed to adequately supervise, secure, and lock up a
building after taking it by eminent domain, from which
the previous owners-victims had yet to remove their
personal possessions. Violano v. Fernandez, supra, 280
Conn. 313–14, 322. Seven months after the taking, some-
one stole the victims’ possessions from the building.
Id., 313–14. The court held that, although a theft did
eventually occur, ‘‘[t]he risk of a theft, like the risk of
a fire, implicates a wide range of factors that can occur,
if at all, at some unspecified time in the future.’’ (Internal
quotation marks omitted.) Id., 331. Without more, the
general risk of theft was so attenuated that, as a matter
of law, it was not an imminent harm. See id., 332.
In the third case, the trier of fact found that custodi-
ans failed to adequately clean and inspect a school
bathroom, often leaving its floor covered in urine during
the summer months when various youth programs met
at the school. Cotto v. Board of Education, supra, 294
Conn. 270. One day, the victim—a director of one of
the youth programs—slipped on the wet floor as he
walked into the bathroom, sustaining injuries. Id., 268–
69. The court held that, although the victim did eventu-
ally slip on the floor, the risk of harm ‘‘was neither
sufficiently immediate nor sufficiently certain. . . .
[B]ecause any person using the bathroom could have
slipped at any time . . . during the summer months
. . . the risk of harm was not imminent . . . .’’
(Emphasis in original.) Id., 279. Without more, the gen-
eral risk of slipping was so attenuated that, as a matter
of law, it was not an imminent harm.19 See id., 279–80.
In the fourth case, the complaint alleged that the
victims’ neighbors raised the grade of their property in
such a way that significant rainfall caused ‘‘excessive
amounts of surface water [to be] discharged onto the
[victims’] property causing flooding, erosion and threat-
ening the integrity of the septic system . . . .’’ (Internal
quotation marks omitted.) Bonington v. Westport,
supra, 297 Conn. 313; see id., 315. Because town zoning
officials would not act, the victims eventually were
forced to incur legal costs to correct the problem them-
selves. Id., 313–14. The court held that, although rain
may have been inevitable and the victims did ultimately
bring legal action, ‘‘a significant rainfall causing exces-
sive surface runoff necessarily would occur at an indefi-
nite point in time’’ and so ‘‘there was no definite point
in time when the [victims] necessarily would have
undertaken [legal] action.’’20 (Emphasis added.) Id., 315.
The general risk of rain heavy enough to force the
victims to bring legal action was so attenuated that, as
a matter of law, it was not an imminent harm. See id.The primary difference between the three cases send-
ing the question of imminent harm to the jury and the
four cases holding that as a matter of law harm was
not imminent appears to be that, whereas in the former,
a jury reasonably could conclude that, on a given day,
the harm was more likely than not to occur; in the
latter, the complaint alleged only a low level general
risk that, after a long enough time, eventually came
to fruition. Such a distinction is certainly somewhat
subjective on the margins. It is, however, the most logi-
cal reading of the standard announced by our Supreme
Court in Haynes v. Middletown, supra, 314 Conn. 323,
and it holds true to the ordinary meaning of the term
‘‘imminent harm.’’ See id., 318 n.10 (American Heritage
Dictionary of the English Language defines ‘‘imminent’’
as ‘‘[a]bout to occur; impending’’ and Merriam-Web-
ster’s Collegiate Dictionary defines ‘‘imminent’’ as
‘‘ready to take place; esp[ecially]: hanging threateningly
over one’s head’’ [internal quotation marks omitted]).
c
We thus turn to the facts of this case. To be entitled
to summary judgment, the defendants ultimately bore
the burden of proving that the exhibits presented in
support of and in opposition to their motion for sum-
mary judgment, considered as a whole, would not per-
mit any reasonable jury to conclude that it was apparent
that the manner in which the defendants reported the
situation to dispatch, combined with their failure to
respond themselves, subjected White to imminent
harm—i.e., made it more likely than not that she would
become a victim of the storm. We hold that a jury
reasonably could so conclude and thus the court erred
in granting the defendants’ motion for summary
judgment.
As to the scope of the harm, at least on the facts
of this case, ‘‘harm from the storm’’ is an appropriate
framing. The defendants were told of a woman out
in a severe storm by the ocean who needed medical
attention. Ultimately, she drowned. Although there
were many ways that the storm could have taken
White’s life, the general nature of the harm was the
same—exposure to the elements while she was in a
vulnerable state. For purposes of the imminent harm
analysis, that is what matters. The dissent argues that
this is too general a framing, and that it amounts to
saying that ‘‘any harm that befell [White] . . . no mat-
ter how attenuated from the dangerous condition, was
imminent harm . . . .’’ We do not mean to suggest that
any harm would suffice. For example, if White had been
mugged, or had injured her hand on a defective, jagged
railing, or had otherwise been injured by something
apart from the storm, then we would agree with the
dissent that such a harm, as a matter of law, was too
attenuated from the risk posed. Nevertheless, wander-
ing out near the ocean, at night, during a severe storm,
poses certain risks, including being hit by debris that
is caught up in the wind, being electrocuted by downed
power lines or by lightning, slipping on a wet surface
and hitting one’s head, as well as drowning in a pool
of water or in the ocean. Those risks are heightened if
the person out in the storm needs medical attention or
otherwise is in a vulnerable state.
The dissent seems to agree that had White fallen in
the field and drowned in a pool of water there—a risk
that came up at the internal police investigation into
the adequacy of the defendants’ response that night—
then that harm would have been within the general
nature of the risk posed. The dissent concludes, how-
ever, that the extra one-half mile between where White
was last seen and where a jury could find that she
drowned removes her drowning from the general nature
of harm posed by the storm, as a matter of law. We do
not attribute the same importance to that one-half mile,
and so we conclude that a jury reasonably could find
that White’s drowning in the storm was harm of the
same general nature as the risk posed by the storm.21
Cf. Haynes v. Middletown, supra, 314 Conn. 325 (‘‘we
are unable to conclude that no reasonable juror could
find that [the imminent harm, identifiable victim excep-
tion was met]’’).
As to whether that harm was imminent, the evidence
presented on the defendants’ motion for summary judg-
ment, construed in the light most favorable to the plain-
tiff, permitted an inference that the storm was so severe
that the defendants were unable to perform their regular
boat patrol. The storm prevented the defendants even
from leaving their cruiser to check the field for White,
in case she had fallen and was injured.
There was evidence before the court that Powers
nevertheless did not take the report that White was in
danger seriously.22 He testified at his deposition that
‘‘[i]f a person was in physical danger . . . [he] would
respond’’ but that he did not think White presented a
‘‘true emergency.’’ His actions, in driving away from
White to go inspect the brand new bilge pumps from
the car for a second time, and in refusing to leave his
cruiser to look for White lest he have to ‘‘walk through
a field in the pouring rain,’’ both suggest that he did
not think White presented a true emergency.
There was evidence before the court that Powers
conveyed his opinion that White did not present a true
emergency to the 911 dispatcher. The transcript of the
911 call shows that, rather than tell the dispatcher that
a woman out in the storm needed medical attention,
Powers chuckled with the dispatcher over the ‘‘lady
. . . standing in a field with a raincoat on, looking up
at the sky.’’ When Powers followed that comment with
‘‘[t]hey think she might need medical help,’’ both the
context and the dispatcher’s response of, ‘‘[g]eez, do
you think?’’ suggest that this remark was meant and
understood not in its literal sense, as a statement that
White was in danger and needed assistance, but as a
joke about White’s mental health. Powers’ chuckling
throughout the 911 call similarly suggested to the dis-
patcher that this was not a serious report of an emer-
gency. Given the overall tone of the call, a jury
reasonably could conclude that Powers’ request that
the dispatcher ‘‘send, uh, Rizzo or one of them’’ to the
‘‘person standing out in the rain’’ was made in much
the same joking manner.23
A jury reasonably could conclude that the defendants
thus cut off all three avenues of help available to White.
First, Powers told the tax collector that ‘‘he would take
care of it,’’ leading her to believe that there was no
more that she needed to do. Second, he reported the
emergency to the 911 dispatcher in such a way that she
would think it was a joke and not send anyone. Third,
he and Milardo did not respond themselves, but rather
drove away from White and did not return until a couple
of hours later, by which time White was no longer stand-
ing in the field. Accordingly, a jury reasonably could
conclude that it was apparent to the defendants that
by cutting off all avenues of help available to a woman
out in a severe storm by the ocean who needed medical
attention, they made it more likely than not that White
would wind up a victim of the storm. Indeed, that is
what happened.
Because the defendants failed to carry their burden
of proving that there was no genuine issue of fact that
at least one element of the imminent harm, identifiable
victim exception was not met, the defendants were not
entitled to judgment as a matter of law. The court’s
rendering of summary judgment was thus improper.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion MIHALAKOS, J., concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
We refer to Powers and Milardo as the defendants. Although their
employer, the town of Westbrook, is an additional defendant, for purposes
of this appeal all parties agree that the town’s liability derives from and is
the same as the constables’ liability, if any.
2
The plaintiff raised a second claim on appeal as ‘‘an issue of first impres-
sion,’’ namely, that we should adopt a new exception to discretionary act
immunity, to be applied when an officer ‘‘make[s] misrepresentations of
fact . . . to avoid having to do any work.’’ We do not review that claim
because the plaintiff never raised it before the trial court. See White v.
Mazda Motor of America, Inc., 313 Conn. 610, 619, 99 A.3d 1079 (2014)
(‘‘[a]n appellate court is under no obligation to consider a claim that is not
distinctly raised at the trial level’’ [internal quotation marks omitted]). The
plaintiff argues that she did raise the claim before the trial court in four
ways: (1) in her complaint, when she alleged that White died ‘‘as a result
of,’’ ‘‘Officers Powers’ and Milardo’s failure to be truthful and satisfy their
roles as Constables’’; (2) in her opposition to the defendants’ motion for
summary judgment, when she argued that the defendants had ‘‘breached
the duty they owed the plaintiff’’ because ‘‘[a] reasonable officer would not
have misrepresented his or her whereabouts to dispatch in order to avoid
responding to a call for medical aid’’; (3) at oral argument on the summary
judgment motion, when she argued that Powers ‘‘misrepresented where he
was’’ because he ‘‘wanted to fly under the radar that night’’; and (4) in her
motion for reconsideration, when she argued that ‘‘the Officers’ misrepresen-
tation about their assignment and whereabouts’’ in response to ‘‘a report
of a citizen in need of aid’’ raised a ‘‘genuine issue of material fact [as to
whether] the decedent, Elsie White, was an identifiable victim subject to
imminent harm.’’ (Emphasis added.)
We disagree that any of these four statements to the trial court raised
the legal issue of whether the court should carve out a new exception to
discretionary act immunity for lying. The first two statements did not concern
immunity. The third statement, even in context, was vague and failed to
raise anything distinctly. The fourth statement expressly concerned an
exception to discretionary act immunity that already exists, namely, the
imminent harm, identifiable victim exception. As a result, the trial court’s
memorandum of decision did not address the issue of whether to adopt a
new exception to discretionary act immunity for lying. We will not decide
that issue for the first time on appeal.
3
The full transcript of Powers’ call to the 911 dispatcher was as follows:
‘‘Dispatcher [Theresa] Smith: State police dispatcher Smith, can I help you?
‘‘Officer Powers: You always say that same thing. Is this a recording or
what? (chuckles)
‘‘Dispatcher Smith: I’m gonna try like hell.
‘‘Officer Powers: Try like hell. Listen, uh, a person stopped by and they
said there’s a lady up on Route 1 up by Ambleside,
‘‘Dispatcher Smith: Ok.
‘‘Officer Powers: standing in a field with a raincoat on, looking up at the sky
‘‘Dispatcher Smith: (chuckles)
‘‘Officer Powers: (chuckles) They think she might need medical help. Can
‘‘Dispatcher Smith: Geez, do you think?
‘‘Officer Powers: you send, uh, send, uh, Rizzo or one of them
‘‘Dispatcher Smith: Ok.
‘‘Officer Powers: I can’t leave the boat.
‘‘Dispatcher Smith: Ok. Where, she’s at Route 1 near Ambleside?
‘‘Officer Powers: Yeah, someplace in a field up there.
‘‘Dispatcher Smith: Ok.
‘‘Officer Powers: She should be the person standing out in the rain.
(chuckling)
‘‘Dispatcher Smith: Ok.
‘‘Officer Powers: Bye.
‘‘Dispatcher Smith: Bye.’’
4
The plaintiff did not properly raise any other exceptions to the doctrine
of discretionary act immunity.
5
See also Curran v. Kroll, 303 Conn. 845, 857, 37 A.3d 700 (2012) (‘‘[T]he
line between permissible inference and impermissible speculation is not
always easy to discern. . . . At some point, the link between the facts and
the conclusion becomes so tenuous that we call it speculation. When that
point is reached is, frankly, a matter of judgment. . . . [P]roof of a material
fact by inference from circumstantial evidence need not be so conclusive
as to exclude every other hypothesis. It is sufficient if the evidence produces
in the mind of the trier a reasonable belief in the probability of the existence
of the material fact. . . . Thus, in determining whether the evidence sup-
ports a particular inference, we ask whether that inference is so unreason-
able as to be unjustifiable. . . . In other words, an inference need not be
compelled by the evidence; rather, the evidence need only be reasonably
susceptible of such an inference.’’ [Internal quotation marks omitted.]).
6
The defendants also moved for summary judgment on two other grounds,
namely, duty and proximate cause. Because the court granted summary
judgment in favor of the defendants on the basis of immunity, the court did
not rule on these two other issues.
7
As to the town, its liability derives from two statutes. First, General
Statutes § 52-557n makes ‘‘a municipality . . . liable for . . . [the] negli-
gent act or omission of a municipal officer acting within the scope of his
or her employment or official duties . . . [but] shields a municipality from
liability for . . . [an officer’s] negligent acts or omissions which require the
exercise of judgment or discretion . . . .’’ (Internal quotation marks omit-
ted.) Haynes v. Middletown, supra, 314 Conn. 312. The imminent harm,
identifiable victim exception qualifies the town’s discretionary act immunity
under § 52-557n just as it qualifies the officer’s common-law discretionary
act immunity. Grady v. Somers, supra, 294 Conn. 348. Second, General
Statutes § 7-465 permits a plaintiff to seek indemnification from a municipal-
ity for its officers’ negligent conduct. Id., 337–38.
8
Discretionary act immunity may be decided by a jury because it shields
a defendant only from liability, not from being sued. See Edgerton v. Clinton,
311 Conn. 217, 227 n.9, 86 A.3d 437 (2014). By contrast, sovereign immunity,
which is not at issue here, implicates subject matter jurisdiction and includes
both immunity from liability and immunity from suit. Id.9
But see Purzycki v. Fairfield, 244 Conn. 101, 108 n.5, 708 A.2d 937 (1998)
(‘‘[t]he ultimate test of the existence of a duty to use care is found in the
foreseeability that harm may result if it is not exercised’’ [emphasis added;
internal quotation marks omitted]), overruled in part on other grounds by
Haynes v. Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014).
10
A fourth case, although superficially relevant, is not instructive. To wit,
in one of the earliest cases to address the imminent harm, identifiable victim
exception, our Supreme Court summarily held that the exception did not
apply because the police officer in that case ‘‘could [not] have been aware
that [the] conduct [of the drunk driver whom he pulled over and who later
crashed into another motorist after being let off with a warning] threatened
an identifiable victim with imminent harm.’’ Shore v. Stonington, 187 Conn.
147, 154, 444 A.2d 1379 (1982). Although that holding has been variously
characterized as turning on the imminent harm element; see Evon v.
Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989) (‘‘[t]he present allegations
do not even rise to the level of the imminence we rejected in Shore v.
Stonington’’); and the apparentness element; see Doe v. Petersen, 279 Conn.
607, 617, 903 A.2d 191 (2006) (‘‘Shore remains our only decision in which
we declined to abrogate discretionary act immunity on the basis of a public
officer’s lack of awareness’’); the court in Shore simply did not explain its
reasoning on this point. See Shore v. Stonington, supra, 154.
11
In their appellate brief, the defendants cite to evidence, obtained after
White died, about her occasionally odd habits but generally good mental
health in an attempt to downplay the significance of her wandering out into
the storm on the night of June 18, 2008. Such evidence is irrelevant to the
question before us because it was not before the defendants on the night
in question.
12
The defendants do not discuss Doe in their scope of harm argument
and rely instead on our decision in Swanson v. Groton, 116 Conn. App. 849,
977 A.2d 738 (2009). The defendants argue that, in Swanson, this court
‘‘determined that the officer would have to know about the specific harm
to befall the plaintiff.’’ (Emphasis added.) On the contrary, the court in
Swanson held that the officer would have to know ‘‘that [the assailant] was
going to attack a specific person, namely, [the plaintiff] . . . .’’ (Emphasis
added.) Swanson v. Groton, supra, 861. The court said this while discussing
the identifiable victim element. Id. The defendants’ reliance on Swanson for
a narrow scope of harm under the imminent harm element is thus misplaced.
13
The court’s analysis in Cotto v. Board of Education, supra, 294 Conn.
279–80, a case about a youth program supervisor who slipped on a wet
bathroom floor, comes closest to relying on the ‘‘specific imminent harm’’
language. The court’s holding in that case, however, turned on the difficulty
of pinpointing the plaintiff as uniquely likely to slip, out of the more than
sixty program participants who used the bathroom. Id. The scope of the
harm—i.e., slipping on a wet bathroom floor—was undisputed. See id.14
The dissent notes that, nevertheless, ‘‘the zone of such harm is not
limitless.’’ We emphatically agree. If the harm that occurs is far enough
removed from the risk posed that the two are not of the same general nature,
then the harm was not imminent.
15
Although the defendants argue that the standard for imminent harm
announced in Haynes is limited to cases about schoolchildren on school
property, neither the language nor the rationale of Haynes indicates that
its holding is so limited. See Haynes v. Middletown, supra, 314 Conn. 303.
On the contrary, the court noted that to the extent there was a special rule
in the school context, ‘‘that rule was limited to the ‘identifiable person’
prong of the exception.’’ Id., 324 n.16. We are thus bound to follow the
precedent of our Supreme Court. See Brusby v. Metropolitan District, 160
Conn. App. 638, 658, 127 A.3d 257 (2015) (applying Haynes outside school
context). ‘‘[I]t is axiomatic that this court, as an intermediate body, is bound
by Supreme Court precedent and [is] unable to modify it . . . .’’ (Internal
quotation marks omitted.) Anderson v. Commissioner of Correction, 148
Conn. App. 641, 645, 85 A.3d 1240, cert. denied, 311 Conn. 945, 90 A.3d 976,
cert. denied sub nom. Anderson v. Dzurenda, U.S. , 135 S. Ct. 201,
190 L. Ed. 2d 155 (2014).
16
Although Sestito created the imminent harm, identifiable victim excep-
tion, it was not until Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379(1982), that the court used such terminology to describe the holding in
Sestito. See Haynes v. Middletown, supra, 314 Conn. 333 (Eveleigh, J.,
concurring). Due to the egregious nature of the facts in Sestito and the
comparatively mild nature of the negligence claims that have since sought
to invoke its holding, our Supreme Court has stated on two occasions that
Sestito is limited to its facts. See Grady v. Somers, supra, 294 Conn. 353(‘‘Sestito appears, however, to be limited to its facts’’); Edgerton v. Clinton,
supra, 311 Conn. 240 (‘‘we decided Sestito before we adopted the three-
pronged imminent harm test and have found that its holding is limited to
its facts’’); but see Cotto v. Board of Education, supra, 294 Conn. 276 (‘‘[a]
good example of the application of these principles [of the imminent harm,
identifiable victim exception] is Sestito v. Groton’’).
17
The Supreme Court later overruled Purzycki in part, insofar as the
standard it applied in assessing imminent harm focused on the limited
temporal and geographical scope of the risk. Haynes v. Middletown, supra,
314 Conn. 323 (‘‘[w]e therefore overrule [Burns v. Board of Education, 228
Conn. 640, 638 A.2d 1 (1994)] and Purzycki to the extent that they adopted
a different standard’’). The court does not, however, appear to have overruled
the ultimate conclusion in Purzycki that a jury reasonably could have found
imminent harm on those facts. See id., 322–23; see also id., 331 n.1 (Eveleigh,
J., concurring) (‘‘[i]t is my understanding . . . that the majority opinion
does not overrule entirely either Burns or Purzycki, but rather overrules
only the treatment given to the definition of imminent harm contained in
those opinions’’ [internal quotation marks omitted]).
18
A fifth case, Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982),
has also been discussed as an imminent harm case although it did not
actually identify which specific element or elements of the imminent harm,
identifiable victim exception were lacking. See footnote 10 of this opinion.
The most logical reading of Shore appears to be that it turned on the
identifiable victim element, since the victim whom the drunk driver ulti-
mately hit was unknown to the police officer and could have been anyone
or no one on the road between the drunk driver’s ultimate destination and
where the police officer pulled him over. See Shore v. Stonington, supra,150–51. Although a class of foreseeable victims might have existed—i.e.,
other motorists on the road—an identifiable victim did not. Cf. Grady v.
Somers, supra, 294 Conn. 352 (‘‘[t]he only identifiable class of foreseeable
victims that we have recognized for . . . purposes [of the identifiable victim
element] is that of schoolchildren attending public schools during school
hours’’ [internal quotation marks omitted]).
19
Cotto is perhaps the most difficult case to reconcile with our Supreme
Court’s recent decision in Haynes v. Middletown, supra, 314 Conn. 325,
which did not discuss or cite Cotto. Although in Cotto, the court’s imminent
harm analysis can plausibly be read to turn on the degree of risk—the proper
consideration under Haynes—a more honest reading is probably that it
turned on the lack of a limited time period during which the plaintiff was
exposed to the slippery floor—an improper consideration under Haynes.
Compare Cotto v. Board of Education, supra, 294 Conn. 279–80 (analyzing
imminent harm), with Haynes v. Middletown, supra, 322–23 (rejecting focus
on duration of dangerous condition). Cotto and Haynes also reach opposite
results on quite similar facts. The main factual difference is that the victim
was an adult in Cotto and a teenager in Haynes. Compare Cotto v. Board
of Education, supra, 267, with Haynes v. Middletown, supra, 306. Although
the age of a potential victim is relevant to whether harm is imminent; Haynes
v. Middletown, supra, 315 n.7; a more satisfying explanation may be that
Cotto really turned on the identifiable victim element and discussed immi-
nent harm only in that regard. Compare Cotto v. Board of Education, supra,
279–80 (analyzing imminent harm), with id., 275 (‘‘[a]lthough the trial court
characterized the plaintiff as an identifiable individual . . . the court’s
determination was . . . improper’’ [citation omitted]), and id., 276 (‘‘the
criteria of identifiable person and imminent harm must be evaluated with
reference to each other’’ [internal quotation marks omitted]).
20
To the extent that Bonington asks whether the harm would ‘‘necessarily’’
occur, it stands in some tension with our Supreme Court’s recent statement
in Haynes that the proper standard is whether a harm is ‘‘so likely’’ to occur
that immediate action is warranted. Compare Bonington v. Westport, supra,297 Conn. 315, with Haynes v. Middletown, supra, 314 Conn. 323.
21
Although the dissent suggests that White ‘‘drown[ed] . . . the next
morning,’’ no evidence compels that finding, and a jury reasonably could
find that White drowned on the night of the storm. The police report attached
as an exhibit to the defendants’ summary judgment motion states that the
last time anyone saw White anywhere in the town was at about 8 p.m. in
the field. Powers’ deposition testimony was that he and Milardo did not see
anyone in the field when they drove past it at about 10 p.m. After 8 p.m.,
White was next seen at about 10 a.m. the following morning when a fisherman
found her body floating face down in the water. Although the fisherman
did not notice White’s body when he went out on the water at 7 a.m., a jury
reasonably could infer that this was either because the body had not yet
washed up or because it was hidden from view by the large rocks. The
deposition testimony of the investigator for the state medical examiner’s
office did not fix a time of death, and the police investigation report stated
that no time of death was determined. As to the statement of Kanfer that
unidentified ‘‘factors’’ suggested a time of death between 7 a.m. and 10 a.m.,
a jury reasonably could infer that those factors were simply a different
reading of the significance of the fisherman not noticing a body at 7 a.m.
and noticing one at 10 a.m., and would not be required to credit Kanfer’s
conclusion in that regard. Rather, a jury reasonably could infer that White
more likely slipped and fell during the severe storm the night before than
during the placid weather the next morning.
Construed in the light most favorable to the plaintiff as the party opposing
summary judgment, the evidence permits an inference that White died the
night of the storm.
22
A jury that found that the defendants did not take the report seriously
could still conclude that the danger was apparent. The test for apparentness
is objective, asking ‘‘whether the circumstances would have made it apparent
to a reasonable government agent that harm was imminent.’’ (Emphasis
added.) Edgerton v. Clinton, supra, 311 Conn. 231 n.14.
23
The 911 dispatcher 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.’’ Although the dispatcher testified that she simply
‘‘forgot,’’ a jury would not be required to credit this explanation. See Palki-
mas v. Fernandez, 159 Conn. App. 129, 133, 122 A.3d 704 (2015) (‘‘it is the
exclusive province of the trier of fact to weigh the conflicting evidence,
determine the credibility of witnesses and determine whether to accept
some, all or none of a witness’ testimony’’ [emphasis omitted; internal quota-
tion marks omitted]).