Doe v. Flanigan

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
JOHN DOE v. STEPHEN FLANIGAN ET AL.
(AC 42567)
Elgo, Bright and Moll, Js.*
Syllabus
The plaintiff sought to recover damages from, inter alia, the defendant city
of Waterbury for injuries that he suffered when F, a former police officer
employed by the city, allegedly pushed the plaintiff to the ground and
handcuffed him, and a third party, C, assaulted the plaintiff by placing
a sex toy against his buttocks. The plaintiff’s operative complaint alleged,
inter alia, that the city was liable pursuant to statute (§ 52-557n) for the
damages he sustained as a result of F’s negligence. The court rendered
partial summary judgment in favor of the city, concluding that there
were no genuine issues of material fact as to whether F had engaged
in wilful, rather than negligent misconduct, and that the identifiable
victim subject to imminent harm exception to governmental immunity
did not apply to the plaintiff’s allegation that F failed to protect him
from C’s sexual assault. Subsequently, the plaintiff withdrew his
remaining claims and appealed to this court. Held:
1. The trial court erred in granting the city’s motion for summary judgment
as to the plaintiff’s claim that F negligently pushed him to the ground
and handcuffed him: the plaintiff proffered sufficient evidence to demon-
strate the existence of genuine issues of material fact with respect to
whether F’s conduct was wilful or negligent, as a reasonable jury could
have concluded that the plaintiff was willingly handcuffed by F and was
not, as the court concluded, an unwilling participant, there was an issue
as to whether F was demonstrating the professional use of handcuffs
on the plaintiff, and there was evidence in the record that F had shown
a pattern of poor judgment while acting in his duties as a police officer,
and the fact that F’s use of handcuffs was in violation of the city’s policy
did not make his conduct per se wilful; moreover, the city’s claim that
this court should affirm the trial court’s judgment on the alternative
ground that F was not acting within the scope of his employment when
he pushed the plaintiff to the ground and handcuffed him was unavailing,
as there was evidence in the record that F was acting within his period
of employment, the location of the assault was within F’s normal jurisdic-
tion, F frequently visited this location both while on and off duty and,
at the time of the assault, F was on his way to an activity related to his
role as a police officer in which he often demonstrated the use of
handcuffs and he was dressed in full police uniform issued by the city,
including his duty belt with his handcuffs and weapons.
2. The trial court erred in rendering summary judgment in favor of the city
on the basis that there was no genuine issue of material fact as to
whether it was apparent to F that the plaintiff was an identifiable victim
subject to imminent harm, as the city never raised this defense in its
motion; the city argued only that F’s conduct was wilful and outside
the scope of his employment and, thus, the plaintiff never had the
opportunity or reason to make the argument that this exception to
discretionary act immunity applied.
Argued June 19—officially released November 24, 2020
Procedural History
Action to recover damages for, inter alia, the named
defendant’s alleged negligence, and for other relief,
brought to the Superior Court in the judicial district of
Waterbury, where the plaintiff filed an amended com-
plaint; thereafter, the plaintiff filed a second amended
complaint; subsequently, the court, Shah, J., granted in
part the motion for summary judgment filed by the
defendant city of Waterbury and rendered judgment
thereon; thereafter, the plaintiff withdrew his remaining
claims and appealed to this court. Reversed; further
proceedings.
Christopher DeMarco, for the appellant (plaintiff).
Daniel J. Foster, corporation counsel, for the appel-
lee (defendant city of Waterbury).
Opinion
BRIGHT, J. This appeal arises out of an incident in
which a third party, Charles Fullenwiley, assaulted the
plaintiff, John Doe,1 by placing a sex toy against his
buttocks after the named defendant, Stephen Flanigan,
at the time a police officer employed by the defendant
city of Waterbury, allegedly pushed the plaintiff to the
ground and handcuffed him.2 The plaintiff appeals from
the summary judgment rendered by the trial court in
favor of the defendant on the fourth count of the plain-
tiff’s second amended complaint, which alleged that,
pursuant to General Statutes § 52-557n, the defendant
was liable to the plaintiff for the injuries he sustained
arising out of Flanigan’s negligent conduct.3 The fourth
count of the plaintiff’s complaint incorporated the alle-
gations of the third count, which alleged that Flanigan
acted negligently when he (1) pushed the plaintiff to
the ground and handcuffed him, (2) failed to protect
the plaintiff from Fullenwiley’s assault, and (3) failed
to report Fullenwiley’s assault. On appeal, the plaintiff
claims that the court erred in concluding that there
were no genuine issues of material fact as to whether
(1) Flanigan engaged in wilful, rather than negligent,
misconduct when he pushed the plaintiff to the ground
and handcuffed him, and (2) the identifiable victim sub-
ject to imminent harm exception to governmental
immunity did not apply to the plaintiff’s allegation that
Flanigan failed to protect the plaintiff from being sexu-
ally assaulted by Fullenwiley.4 Additionally, the defen-
dant argues that we can affirm the judgment of the trial
court on the alternative ground that Flanigan was not
acting within the scope of his employment, and, there-
fore, the defendant could not be liable.
As to the first issue raised by the plaintiff, we con-
clude that there are genuine issues of material fact as
to whether Flanigan’s conduct was wilful or negligent.
We also reject the defendant’s claimed alternative
ground for affirmance because there are genuine issues
of material fact as to whether Flanigan, in fact, was
acting within the scope of his employment when he
pushed the plaintiff to the ground and handcuffed him.
As to the second issue raised by the plaintiff, we con-
clude that the court improperly rendered summary judg-
ment on a ground not argued before it. Consequently,
we reverse the judgment of the trial court.
The following facts, viewed in the light most favor-
able to the plaintiff, and procedural history are relevant
to our resolution of the plaintiff’s claims. At all times
relevant to this appeal, the plaintiff was a minor under
sixteen years of age, and Flanigan was employed by
the defendant as a police officer. Flanigan took part in
the Police Explorers, a program run by the Waterbury
Police Department in which young people between the
ages of fourteen and twenty-one would meet at the
Waterbury Police Department on a monthly basis in
order to learn more about becoming police officers. As
part of the program, Flanigan frequently handcuffed
juveniles as a way to demonstrate the use of handcuffs.
Beginning in July, 2005, the plaintiff worked with
Fullenwiley at his place of business, an electronics store
in Waterbury called World Technology. Flanigan, who
had been friends with Fullenwiley since 2003, frequently
visited the store to ‘‘hang out,’’ often doing so while on
duty. While at the store, Flanigan would ‘‘horse around’’
with the young people there, among whom were Fullen-
wiley’s son and the plaintiff. In addition to horseplay,
Flanigan, on more than one occasion, would handcuff
young people at the store ‘‘because they wanted to see
what it was like.’’
In the spring of 2006, Flanigan stopped at World Tech-
nology on his way to the Police Explorers. The plaintiff,
while at World Technology, asked Flanigan to demon-
strate the use of his handcuffs. Flanigan pushed the
plaintiff to the ground and handcuffed him. While the
plaintiff was restrained on the ground, Fullenwiley
kneeled on his back and pushed a sex toy against his
buttocks. Flanigan watched this incident unfold and
took photographs of Fullenwiley and the plaintiff. In
October, 2009, the plaintiff commenced the underlying
action against Flanigan and the defendant for the injur-
ies that he sustained arising out of this incident.
On January 22, 2015, the plaintiff filed the operative
four count complaint (second amended complaint)
against Flanigan and the defendant. In the first and
second counts, the plaintiff alleged that Flanigan falsely
arrested the plaintiff and participated in a sexual assault
against him. In the third count, the plaintiff alleged that
Flanigan was negligent in pushing the plaintiff to the
ground and handcuffing him, failing to protect the plain-
tiff from a sexual assault, and failing to report the sexual
assault. Counts one through three subsequently were
settled as against Flanigan himself, leaving only the
fourth count of the complaint, which was brought
against the defendant. In the fourth count, which incor-
porated by reference paragraphs 1 through 13 of the
third count, the plaintiff alleged that, pursuant to § 52-
557n, the defendant was liable to the plaintiff for the
carelessness and negligence of Flanigan. The specific
allegations of negligence in the third count at issue are
as follows:
‘‘6. . . . Flanigan would occasionally engage in
‘horseplay’ with minors at World Technology and would
demonstrate the use of handcuffs to the minors present
at World Technology.
‘‘7. In the spring of 2006, while the plaintiff was at
World Technology . . . Flanigan, in an attempt to dem-
onstrate the use of handcuffs, pushed the plaintiff to
the ground and put his handcuffs on the plaintiff.
‘‘8. While the plaintiff lay on his stomach, and without
. . . Flanigan knowing what was about to happen . . .
Fullenwiley kneeled on the plaintiff’s back and placed
a [sex toy] against the plaintiff’s buttocks.
‘‘9. . . . Fullenwiley was ultimately arrested and
convicted for various criminal offenses, among them
the above-described incident.
‘‘10. When . . . Flanigan observed Fullenwiley place
a [sex toy] against the plaintiff’s buttocks, he knew or
should have known that . . . Fullenwiley’s conduct
was illegal and that as a police officer, he had a duty
to protect the minor plaintiff from such conduct, yet he
failed to take any law enforcement action whatsoever.
‘‘11. As a police officer . . . Flanigan was mandated
to report incidents of child sexual abuse to the Depart-
ment of Children and Families, thus making such a
report nondiscretionary, yet he failed to make such
a report.
‘‘12. . . . Flanigan was negligent in that he failed to
act in accordance with the scope of his duties as a
police officer so as to protect the minor plaintiff from
such conduct and to prevent such conduct from
occurring.
‘‘13. As a direct and proximate result of . . . Flani-
gan’s negligence the plaintiff sustained physical injury,
extreme emotional distress, fear and apprehension.
From all of the aforesaid injuries the plaintiff has suf-
fered and will suffer psychological pain and mental
anguish, all of which are, or are likely to be, permanent
in nature.’’5
On May 19, 2015, the defendant responded with an
answer and nine special defenses. On November 22,
2016, the defendant filed a motion for summary judg-
ment.6 In addressing the motion for summary judgment,
the court treated the allegation of negligence against
the defendant as setting forth three distinct claims. The
court summarized the allegations as follows: ‘‘The plain-
tiff alleges that the [defendant] is liable for (A) Flani-
gan’s affirmative acts of pushing the plaintiff to the
ground and handcuffing him; (B) Flanigan’s failure to
protect the plaintiff from an assault by Fullenwiley; and
(C) Flanigan’s failure to make a mandatory report of
child abuse.’’
In its memorandum in support of its motion for sum-
mary judgment, the defendant set forth the same argu-
ment as to all three bases for liability, namely, that
Flanigan engaged in misconduct that was both wilful
and outside of the scope of his official duties as a police
officer. In support of its argument, the defendant stated:
‘‘The pleadings together with the sworn statements and
testimony of the plaintiff clearly establish undisputed
facts which can only lead to the conclusion that . . .
Flanigan was not acting within the scope of his employ-
ment or official duties and that he had committed acts
or omissions constituting wilful misconduct.’’ The
defendant argued that ‘‘[u]nder no scenario set forth
by the plaintiff in an attempt to replead his case, can the
plaintiff avoid the undisputed facts which the plaintiff
himself asserts, that Flanigan pushed him to the ground,
handcuffed him, participated in and photographed the
incident where Fullenwiley placed a [sex toy] against
the [plaintiff’s] buttocks. There is no circumstance
under which these activities of . . . Flanigan could be
found to be within the scope of his employment or
official duties. Additionally there can be no dispute that
Flanigan’s actions as testified to by the plaintiff were
acts which constituted wilful misconduct.’’ To the
extent that Flanigan’s actions constituted wilful miscon-
duct beyond the scope of his employment, the defen-
dant maintained that it could not be vicariously liable
for such conduct under § 52-557n.
On February 27, 2017, the plaintiff filed a memoran-
dum in opposition to the defendant’s motion for sum-
mary judgment. In his memorandum, the plaintiff
argued that the defendant failed to establish the absence
of any genuine issue of material fact as to whether
Flanigan had acted negligently, stressing that a reason-
able fact finder could find that Flanigan had acted negli-
gently, not wilfully. Specifically, the plaintiff stated: ‘‘It
appears, based on statements he made, that Flanigan
was not aware of the [defendant’s] prohibition on the
use of handcuffs for such purposes. Thus, a genuine
issue exists as to whether Flanigan was negligent when
he demonstrated the use of handcuffs on juveniles at
World Technolog[y]. . . . The jury may determine that
Flanigan had no idea what Fullenwiley was about to
do after the plaintiff was placed on the ground and
handcuffed. Flanigan may have negligently believed
that he was simply demonstrating a restraint procedure,
as he stated in his deposition and in police reports.
After Fullenwiley held the [sex toy] to the plaintiff’s
buttocks, Flanigan had an absolute duty to arrest Ful-
lenwiley, report the incident to his superiors, and alert
[the Department of Children and Families]. It is for the
trier of fact to determine whether his failure to do so
was negligent or not.’’ The plaintiff argued further that
there exists a genuine issue of material fact as to
whether Flanigan’s actions—in demonstrating the use
of handcuffs on the plaintiff—could be considered
within the scope of his official duties as a police officer.
The plaintiff argued that ‘‘[t]he plaintiff does not allege
in the fourth count that Flanigan restrained the plaintiff
so that Fullenwiley could sexually assault him; the alle-
gation is that Flanigan negligently engaged in conduct
without knowing what Fullenwiley was about to do.
Thus, Flanigan’s actions may still be considered within
the scope of his employment if he thought, even mistak-
enly, that he was demonstrating the use of handcuffs.’’
On July 18, 2017, the court issued its memorandum
of decision granting in part and denying in part the
defendant’s motion for summary judgment. The court
addressed each of the three allegations of negligence
in turn. As to the first allegation of negligence, that
Flanigan was negligent in pushing the plaintiff to the
ground and handcuffing him, the court found that the
plaintiff had made a ‘‘colorable argument that a genuine
issue of material fact exists as to whether Flanigan was
acting in the scope of his employment or official duties
at the time he pushed the plaintiff to the ground and
placed him in handcuffs’’;7 however, the court ultimately
declined to reach that issue, finding instead that ‘‘[t]he
only conclusion that can be reached . . . is that Flani-
gan’s acts of pushing the plaintiff to the ground and
unlawfully restraining him constitute[d] wilful miscon-
duct. . . . Indeed, the plaintiff’s allegation that Flani-
gan was demonstrating the use of handcuffs coupled
with the evidence indicating that the plaintiff was not
a willing participant in the demonstration buttress this
determination. Moreover, the [defendant] submitted
evidence that Flanigan’s use of handcuffs in the manner
alleged was in violation of the [defendant’s] policies.
. . . Accordingly, summary judgment is granted in
favor of the [defendant] as to liability for Flanigan’s
acts of pushing the plaintiff to the ground and placing
him in handcuffs.’’
With respect to the second allegation of negligence,
that Flanigan had a duty as a police officer to protect
the plaintiff from Fullenwiley’s actions, the court did
not consider whether Flanigan was acting in the scope
of his employment or whether his actions were wilful,
instead disposing of the claim on governmental immu-
nity grounds, an argument that was not advanced by
the defendant. The court noted: ‘‘A police officer’s
actions in carrying out [his or her typical duties] are
discretionary and typically afforded governmental
immunity. See Smart v. Corbitt, 126 Conn. App. 788,
800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d
177 (2011). . . . However, governmental immunity
does not apply when ‘the circumstances make it appar-
ent to [a] public officer that his or her failure to act
would be likely to subject an identifiable person to
imminent harm. . . . ’ Merritt v. Bethel Police Dept.,
120 Conn. App. 806, 812, 993 A.2d 1006 (2010).’’ (Citation
omitted.) Applying these principles, the court deter-
mined that this exception to governmental immunity
did not apply. In reaching that determination, the court
stated that, ‘‘[b]ased on the evidence submitted, there
is no genuine issue of material fact that Flanigan knew
that the plaintiff was at risk of imminent harm or that
Flanigan’s nonresponse to the imminent danger would
likely subject the plaintiff to that harm. The plaintiff’s
complaint alleges that Fullenwiley acted ‘without . . .
Flanigan knowing what was about to happen’ . . . and
there is no evidence in the record from which a reason-
able jury could determine that it was apparent to Flani-
gan that Fullenwiley would place a [sex toy] against
the plaintiff’s buttocks. . . . Thus, summary judgment
is granted in favor of the [defendant] as to liability
for Flanigan’s failure to act to protect the plaintiff.’’
(Citations omitted.)
As to the third allegation of negligence, whether Flan-
igan had a mandatory duty to report Fullenwiley’s sex-
ual assault of the plaintiff to the Department of Children
and Families, the court determined that the defendant
failed to satisfy its burden of proving that no genuine
issue of material fact existed. Consequently, the court
denied the defendant’s motion for summary judgment
as to its liability for Flanigan’s failure to report. As we
stated in footnote 4 of this opinion, however, the plain-
tiff subsequently withdrew his claim against the defen-
dant as to its liability arising out of Flanigan’s failure
to report.8 Accordingly, we do not consider this claim,
but we do note for the purposes of this appeal that in
addressing this issue the court found that ‘‘the [defen-
dant] has failed to show that no genuine issue of mate-
rial fact remains as to whether Flanigan was acting in
the scope of his employment at the time he witnessed
the plaintiff’s abuse.’’ The court specifically noted that
‘‘the evidence submitted indicates that Flanigan
stopped at World Technology while on his way to volun-
teer with the Police Explorers; World Technology was
within Flanigan’s normal jurisdiction; Flanigan often
stopped at World Technology, while both on and off
duty; and, at the time of the abuse, Flanigan was dressed
in full police uniform with his duty belt, which included
his handcuffs (and presumably his weapon)—all of
which were issued by the [defendant].’’ This appeal
followed. Additional facts will be set forth as necessary.
Initially, we set forth our standard of review. ‘‘The
standard of review of a trial court’s decision granting
summary judgment is well established. Practice Book
§ 17-49 provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The courts are in entire agreement that the
moving party . . . has the burden of showing the
absence of any genuine issue as to all the material facts
. . . . When documents submitted 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 establish-
ing the existence of such an issue. . . . Once the mov-
ing party has met its burden, however, the [nonmoving]
party must present evidence that demonstrates the exis-
tence of some disputed factual issue. . . . Our review
of the trial court’s decision to grant the defendant’s
motion for summary judgment is plenary. . . . On
appeal, we must determine whether the legal conclu-
sions reached by the trial court are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision of the trial court.’’
(Citations omitted; internal quotation marks omitted.)
Lucenti v. Laviero, 327 Conn. 764, 772–73, 176 A.3d
1 (2018).
I
A
On appeal, the plaintiff first claims that the court
erred in rendering summary judgment in favor of the
defendant as to his claim that Flanigan negligently
pushed the plaintiff to the ground and handcuffed him
because there is a genuine issue of material fact as to
whether Flanigan engaged in negligent or wilful miscon-
duct. We agree with the plaintiff.
The following additional facts are relevant to our
resolution of the plaintiff’s claim. In support of his mem-
orandum in opposition to the defendant’s motion for
summary judgment, the plaintiff submitted the tran-
script of Flanigan’s March 5, 2013 deposition. At his
deposition, Flanigan testified about his participation
in the Police Explorers. Flanigan testified that he had
handcuffed juveniles who were not under arrest
‘‘numerous times with the Police Explorers’’ as a way
to demonstrate the use of handcuffs. When asked if he
had ever handcuffed a juvenile who was not under
arrest outside of the Police Explorers program, Flani-
gan testified that he could recall two instances: one
time with Fullenwiley’s son and another time with the
plaintiff. With respect to the plaintiff, Flanigan testified
that he handcuffed him for a period of ‘‘about ten sec-
onds’’ because ‘‘he asked me to.’’
Flanigan, in a statement given to the police on July
13, 2009, signed under penalty of perjury, stated that
the incident with the plaintiff occurred when he was
on his way to a Police Explorers meeting.9 Flanigan
averred further that, while at the store, ‘‘[t]he kids began
to look at my duty belt and wanted to play with my
handcuffs. I remember that . . . [the plaintiff was]
among the kids that were there. I asked [Fullenwiley]
if I could handcuff the boys as part of a demonstration.
I handcuffed . . . [the plaintiff] and then uncuffed
[him] right away after putting the cuffs on. I did not
think it was a big deal because that was what I was
going to teach the Explorers that night.’’
In addition to Flanigan’s deposition testimony and
police statement, the plaintiff also relied on Fullenwi-
ley’s written statement to the Waterbury Police Depart-
ment, dated March 31, 2010. In his statement, Fullenwi-
ley averred that Flanigan would horse around with the
young people at his store, ‘‘but it was always in fun.
No one was trying to hurt anyone.’’ Fullenwiley averred
further that the plaintiff ‘‘was always misbehaving. One
day I was playing around with [the plaintiff] wrestling
with him. [The plaintiff] is a big kid, like 230–240 pounds
so when he was down on the floor, I kneeled down on
him. . . . There was a bunch of other people there too
that day that saw what was going on. . . . While [the
plaintiff] was on the ground, [he] got handcuffed. I think
it was [Flanigan] that handcuffed [the plaintiff] with his
handcuffs because he was on duty. He didn’t do it to
be malicious, we were all just playing around. Someone,
I think it was [V] took my digital camera out and started
taking pictures of us horsing around. I remember that
three pictures were taken. I put them on my computer
. . . for us all to look at. Two of the pictures had [Flani-
gan] in the background, standing by the doorway. [Flani-
gan] saw those pictures and told me to delete them
because it looked bad and he could get in trouble. The
third picture was of [the plaintiff] on the ground and
you could see the handcuffs. I saved that picture and
joked with [the plaintiff] that we were going to show
all the girls at [school] how we got him on the floor.
I’ve only seen [Flanigan] use his metal handcuffs that
one time on [the plaintiff]. . . . The only other thing
that I could remember [Flanigan] doing in my store
while he was working was that sometimes he took out
his Taser. . . . A few times when . . . [the plaintiff]
misbehaved, [Flanigan] took his Taser out and took the
cartridge off the end of it. Then he turned it on so you
could see the electricity flash. [Flanigan] went near the
boys with it to scare them, but he never touched anyone
with it or used it on the boys. It probably wasn’t appro-
priate for [Flanigan] to do that, but he was only doing
it in fun.’’
Additionally, the plaintiff attached to his memoran-
dum a copy of Flanigan’s performance appraisal from
the Waterbury department of human resources, dated
November 29, 2004, and a copy of an interdepartmental
memorandum, dated November 6, 2005, critiquing cer-
tain aspects of Flanigan’s performance. In his perfor-
mance appraisal, Flanigan’s supervisor indicated that
Flanigan has ‘‘on occasion exercise[d] poor judgment.’’
Similarly, in Captain A. Gallo’s interdepartmental mem-
orandum regarding Flanigan’s performance, Gallo
averred that Flanigan ‘‘has shown a pattern of being
insensitive to citizens that he interacts with and at times
has used poor judgment when his discretion is needed.’’
The following legal principles are relevant to our
resolution of the plaintiff’s claim. ‘‘The general rule is
that governments and their agents are immune from
liability for acts conducted in performance of their offi-
cial duties. The common-law doctrine of governmental
immunity has been statutorily enacted and is now
largely codified in . . . § 52-557n. . . . Section 52-
557n provides in relevant part: (a) (1) Except as other-
wise 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 . . . (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 wil-
ful misconduct . . . .’’ (Citation omitted; internal quo-
tation marks omitted.) Martin v. Westport, 108 Conn.
App. 710, 729, 950 A.2d 19 (2008).
‘‘Whether a party’s conduct is wilful is a question of
fact. See Bauer v. Waste Management of Connecticut,
Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996) ([w]hat
constitutes wilfulness is a question of fact). The term
has many and varied definitions, with the applicable
definition often turn[ing] on the specific facts of the
case and the context in which it is used. Doe v. Marselle,
236 Conn. 845, 851, 675 A.2d 835 (1996); Screws v.
United States, 325 U.S. 91, 101, 65 S. Ct. 1031, 89 L. Ed.
1495 (1945). As we previously have observed, Black’s
Law Dictionary (6th Ed. 1990) demonstrates the varied
ways that wilful has been defined ranging from volun-
tary; knowingly; deliberate . . . [i]ntending the result
which actually comes to pass; designed; intentional;
purposeful; not accidental or involuntary to [p]remedi-
tated; malicious; done with evil intent, or with a bad
motive or purpose, or with indifference to the natu-
ral consequences.
‘‘Additionally, we have defined the term differently
depending on the context. See, e.g., Dubay v. Irish, 207
Conn. 518, 533, 542 A.2d 711 (1988) (wilful misconduct
requires design to injure); DeMilo v. West Haven, 189
Conn. 671, 678–79, 458 A.2d 362 (1983) (wilful destruc-
tion of bridge means intentional destruction of bridge
and intent to cause injury); State v. Gotsch, 23 Conn.
Supp. 395, 398–99, 184 A.2d 56 (1962) (wilful commonly
means intentional, as opposed to accidental, but in
penal statute it means with evil intent); Guest v. Admin-
istrator, 22 Conn. Supp. 458, 459, 174 A.2d 545 (1961)
(wilful breach of rule means deliberate violation done
purposely with knowledge as opposed to result of
thoughtlessness or inadvertence). Doe v. Marselle,
supra, 236 Conn. 851–52 n.8. The term wilful also has
been described as including not only the mere exercise
of the will in failing to comply with the statute [in
question], but also an intention to do an act that he
knows, or ought to know, is wrongful or forbidden by
law . . . . Ballentine’s Law Dictionary (3d Ed. 1969).
‘‘Correspondingly, the term wilful has been used to
describe conduct deemed highly unreasonable or indic-
ative of bad faith. See CFM of Connecticut, Inc. v.
Chowdhury, 239 Conn. 375, 395, 685 A.2d 1108 (1996)
([t]o determine whether the bad faith exception applies,
the court must assess whether there has been substan-
tive bad faith as exhibited by, for example, a party’s
. . . wilful violations of court orders . . . ), overruled
in part on other grounds by State v. Salmon, 250 Conn.
147, 154–55, 735 A.2d 333 (1999); ACMAT Corp. v.
Greater New York Mutual Ins. Co., 282 Conn. 576,
591–92 n.13, 923 A.2d 697 (2007) (same); Matthiessen
v. Vanech, 266 Conn. 822, 833, 836 A.2d 394 (2003)
(While we have attempted to draw definitional distinc-
tions between the terms wilful, wanton or reckless, in
practice the three terms have been treated as meaning
the same thing. The result is that [wilful], wanton, or
reckless conduct tends to take on the aspect of highly
unreasonable conduct, involving an extreme departure
from ordinary care, in a situation where a high degree
of danger is apparent.’’ (Internal quotation marks omit-
ted.) Saunders v. Firtel, 293 Conn. 515, 530–32, 978
A.2d 487 (2009); see Dubay v. Irish, supra, 207 Conn.
533 n.8 (‘‘[w]ilful misconduct is intentional misconduct,
and wanton misconduct is reckless misconduct, which
is the equivalent of wilful misconduct’’ (internal quota-
tion marks omitted)).
In reaching its conclusion that Flanigan’s conduct of
pushing the plaintiff to the ground and handcuffing him
was wilful, the court stated that ‘‘Flanigan acted with a
deliberate or reckless disregard for the plaintiff’s safety
and the consequences of his action.’’ With respect to
the parties’ evidence, submitted in support of, or in
opposition to the defendant’s motion for summary judg-
ment, the court reasoned that the plaintiff’s unwilling-
ness to participate in Flanigan’s handcuffing demonstra-
tion buttressed its determination that Flanigan engaged
in wilful misconduct.
Similarly, the defendant relies on the fact that Flani-
gan pushed the plaintiff to the ground just prior to
handcuffing him as conclusive evidence that Flanigan’s
conduct exceeded mere negligence. The defendant
states that ‘‘[a]ny such argument [that Flanigan’s act of
pushing the plaintiff to the ground constituted mere
negligence] would defy common sense, because any
reasonable person in Flanigan’s position would have
known that the plaintiff was not a willing participant
in what the plaintiff now calls a mere demonstration.’’10
The court and the defendant both ignored the import
of the evidence proffered by the plaintiff in his opposi-
tion to the defendant’s motion for summary judgment.
Flanigan testified at his deposition that the plaintiff
asked to be handcuffed. Similarly, Flanigan averred in
his sworn police statement that, on the date in question,
the plaintiff looked at his duty belt and ‘‘wanted to play
with my handcuffs.’’ On the basis of this evidence, a
jury reasonably could conclude that the plaintiff was a
willing participant in Flanigan’s handcuffing demon-
stration.
Moreover, the plaintiff produced additional evidence
that raises a genuine issue of material fact as to whether
Flanigan’s conduct was negligent or wilful. Specifically,
in his statement to the police, Flanigan averred that he
‘‘did not think it was a big deal’’ to demonstrate the use
of handcuffs on the plaintiff ‘‘because that was what I
was going to teach the Explorers that night.’’ To the
extent that Flanigan, in fact, was demonstrating the
professional use of handcuffs on the plaintiff, a jury
reasonably could infer from Flanigan’s conduct that he
was not acting wilfully, as that term has been used
throughout our case law. See Saunders v. Firtel, supra,293 Conn. 530–32; see also Daley v. Kashmanian, 193
Conn. App. 171, 179, 219 A.3d 499 (2019) (‘‘The state
of mind amounting to recklessness may be inferred
from conduct. But, in order to infer it, there must be
something more than a failure to exercise a reasonable
degree of watchfulness to avoid danger to others or to
take reasonable precautions to avoid injury to them.’’
(Internal quotation marks omitted.)), cert. granted, 335
Conn. 939, 237 A.3d 1 (2020), and cert. denied, 335 Conn.
940, 237 A.3d 1 (2020). Indeed, such an inference is
supported by Fullenwiley’s statement that, when Flani-
gan handcuffed the plaintiff, ‘‘[h]e didn’t do it to be
malicious, we were all just playing around.’’
Furthermore, Flanigan’s supervisor indicated that
Flanigan ‘‘has shown a pattern of being insensitive to
citizens that he interacts with and at times has used
poor judgment when his discretion is needed.’’ Indeed,
Flanigan’s poor judgment had been on display in other
instances, namely, his use of his Taser to scare the
plaintiff and others. On the basis of this evidence,
viewed in the light most favorable to the plaintiff, a
jury reasonably could conclude that Flanigan’s conduct,
although inappropriate, was merely a lapse in judgment
that was more akin to negligent horseplay than wilful
misconduct, particularly in light of the evidence that
comparable physical contact at World Technology ‘‘was
always in fun.’’
Finally, the court’s reliance on Flanigan’s violation
of the defendant’s departmental policy as evidence that
he engaged in wilful misconduct is misplaced. The mere
fact that Flanigan’s use of handcuffs ‘‘was in violation
of the [defendant’s] policies’’ does not make his conduct
per se wilful. Whether a party engaged in wilful, wanton
or reckless conduct cannot be determined simply by
ascertaining whether an actor violated a policy, but,
rather, it requires a determination of the actor’s state
of mind when violating the policy. See Begley v. Kohl &
Madden Printing Ink Co., 157 Conn. 445, 450–51, 254
A.2d 907 (1969) (‘‘Recklessness is a state of conscious-
ness with reference to the consequences of one’s acts.
. . . It requires a conscious choice of a course of action
either with knowledge of the serious danger to others
involved in it or with knowledge of facts which would
disclose this danger to any reasonable man, and the
actor must recognize that his conduct involves a risk
substantially greater . . . than that which is necessary
to make his conduct negligent.’’ (Citation omitted; inter-
nal quotation marks omitted.)). As noted, Flanigan ‘‘has
shown a pattern of being insensitive to citizens that he
interacts with and at times has used poor judgment
when his discretion is needed.’’ This evidence raises a
genuine issue as to whether Flanigan’s conduct was
negligent or wilful.
B
The defendant argues in the alternative that we
should affirm the judgment of the trial court on the
ground that Flanigan was not acting within the scope
of his employment when he pushed the plaintiff to the
ground and handcuffed him. We are not persuaded.
Section 52-557n (a) provides that a local government
will not be liable for the negligent acts or omissions of
an employee unless the employee was ‘‘acting within
the scope of his employment or official duties.’’ In
determining whether an employee has acted within the
scope of employment, ‘‘courts look to whether the
employee’s conduct: (1) occurs primarily within the
employer’s authorized time and space limits; (2) is of
the type that the employee is employed to perform; and
(3) is motivated, at least in part, by a purpose to serve
the employer. . . . Ordinarily, it is a question of fact
as to whether a wilful tort of the servant has occurred
within the scope of the servant’s employment . . .
[b]ut there are occasional cases [in which] a servant’s
digression from [or adherence to] duty is so clear-cut
that the disposition of the case becomes a matter of
law.’’ (Citation omitted; internal quotation marks omit-
ted.) Harp v. King, 266 Conn. 747, 782–83, 835 A.2d
953 (2003). More specifically, we have held that a police
officer’s actions ‘‘occurred in the course of duties if
[the actions] took place (1) within the period of employ-
ment, (2) at a place where the employee could reason-
ably be, and (3) while the employee is reasonably fulfill-
ing the duties of employment or doing something
incidental to it.’’ Crotty v. Naugatuck, 25 Conn. App.
599, 603–604, 595 A.2d 928 (1991).
The trial court, in determining that there was a genu-
ine issue of material fact as to whether Flanigan was
acting within the scope of his employment at the time
he witnessed the plaintiff being sexually assaulted,
relied on the following facts: ‘‘In the present case, the
evidence submitted indicates that Flanigan stopped at
World Technology while on his way to volunteer with
the Police Explorers; World Technology was within
Flanigan’s normal jurisdiction; Flanigan often stopped
at World Technology, while both on and off duty; and,
at the time of the abuse Flanigan was dressed in full
police uniform with his duty belt, which included his
handcuffs (and presumably his weapon)—all of which
were issued by the city.’’ These factors similarly lead
us to conclude that there is a genuine issue of material
fact as to whether Flanigan was acting within the scope
of his employment when he pushed the plaintiff to the
ground and handcuffed him. Flanigan was acting
‘‘within [his] period of employment,’’ ‘‘at a place where
[he] could reasonably be,’’ and a jury reasonably could
find that he was ‘‘fulfilling the duties of employment or
doing something incidental to it’’ when he demonstrated
the use of handcuffs on his way to a program where
he often demonstrated the use of handcuffs. See Crotty
v. Naugatuck, supra, 25 Conn. App. 603–604.
Accordingly, we conclude that the court erred in
granting the defendant’s motion for summary judgment
as to the first allegation of negligence because the plain-
tiff proffered sufficient evidence to demonstrate the
existence of a genuine issue of material fact with
respect to whether Flanigan engaged in wilful miscon-
duct or negligent misconduct when he pushed the plain-
tiff to the ground and handcuffed him, as well as
whether Flanigan was acting within the scope of his
employment at that time.
II
We turn next to the plaintiff’s duty to protect claim
and the court’s conclusion that there was no genuine
issue of material fact as to whether it was apparent to
Flanigan that the plaintiff was an identifiable victim
subject to imminent harm. Notably, in reaching its con-
clusion that the identifiable victim subject to imminent
harm exception to governmental immunity did not
apply, the court considered, and answered, a dispositive
question of law that the defendant did not raise in its
motion for summary judgment. Consequently, we con-
clude that the court erred in rendering summary judg-
ment in favor of the defendant on the basis of a defense
that was never raised in the defendant’s motion.
‘‘[T]he court’s function is generally limited to adjudi-
cating the issues raised by the parties on the proof they
have presented and applying appropriate procedural
sanctions on motion of a party. . . . The parties may,
under our rules of practice, challenge the legal suffi-
ciency of a claim at two points prior to the commence-
ment of trial. First, a party may challenge the legal
sufficiency of an adverse party’s claim by filing a motion
to strike. . . . Second, a party may move for summary
judgment and request the trial court to render judgment
in its favor if there is no genuine issue of fact and the
moving party is entitled to judgment as a matter of law.
. . . In both instances, the rules of practice require a
party to file a written motion to trigger the trial court’s
determination of a dispositive question of law. The rules
of practice do not provide the trial court with authority
to determine dispositive questions of law in the
absence of such a motion.’’ (Citations omitted; empha-
sis altered; internal quotation marks omitted.) Greene
v. Keating, 156 Conn. App. 854, 860–61, 115 A.3d 512(2015). ‘‘[A] trial court lacks authority to render sum-
mary judgment on grounds not raised or briefed by the
parties that do not involve the court’s subject matter
jurisdiction.’’ Bombero v. Bombero, 160 Conn. App. 118,
131, 125 A.3d 229 (2015).
In response to the plaintiff’s allegation that the defen-
dant was liable for Flanigan’s failure to protect him
from Fullenwiley’s unlawful conduct, the defendant,
in its motion for summary judgment, argued only that
Flanigan’s conduct was wilful and outside of the scope
of his employment.11 Specifically, the defendant stated:
‘‘The pleadings together with the sworn statements and
testimony of the plaintiff clearly establish undisputed
facts which can only lead to the conclusion that . . .
Flanigan was not acting within the scope of his employ-
ment or official duties and that he had committed acts
or omissions constituting wilful misconduct. As a result,
no liability exists on the part of the defendant . . .
pursuant to § 52-557n for Flanigan’s actions.’’
The trial court did not address these arguments, or
the plaintiff’s responses to them, as they related to
the plaintiff’s claim that Flanigan negligently failed to
protect the plaintiff from Fullenwiley’s assault. Instead,
the court considered only whether the plaintiff had
established an exception to discretionary act immunity
under § 52-557n, noting that ‘‘[a] police officer’s actions
in carrying out [his duty to protect] are discretionary
and typically afforded governmental immunity.’’ The
court then correctly stated that ‘‘governmental immu-
nity does not apply when the circumstances make it
apparent to [a] public officer that his or her failure to
act would be likely to subject an identifiable person to
imminent harm,’’ before concluding that ‘‘there is no
evidence in the record from which a reasonable jury
could determine that it was apparent to Flanigan that
Fullenwiley would place a [sex toy] against the plain-
tiff’s buttocks.’’ (Internal quotation marks omitted.) The
plaintiff hardly can be faulted for failing to present
evidence to address an argument that the defendant
never made. Again, in its motion for summary judgment,
the defendant argued only that it was insulated from
liability for Flanigan’s conduct under § 52-557n because
the conduct at issue was wilful and outside of the scope
of his official duties. The defendant never argued that it
was shielded from liability because Flanigan’s conduct
was discretionary. Consequently, the plaintiff never had
the opportunity or reason to make the counterargument
that the exception to discretionary act immunity applies
to the circumstances here. The court, thus, improperly
rendered summary judgment in favor of the defendant
on a ground that neither party raised.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion for sum-
mary judgment and for further proceedings.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
We note that the present action was commenced on behalf of John Doe,
a minor child, by and through his parent, Jane Doe, as next friend. Thereafter,
when John Doe reached the age of majority, he amended the complaint
to delete the allegation that the claims were brought by his parent in a
representative capacity. All references herein to the plaintiff are to John Doe.
2
Flanigan is not a party to this appeal. Therefore, we refer to the city of
Waterbury as the defendant throughout this opinion.
3
In his four count second amended complaint, the plaintiff brought three
counts against Flanigan, alleging that Flanigan (1) falsely arrested the plain-
tiff, (2) participated in the sexual assault of the plaintiff, and (3) was negligent
in his interaction with the plaintiff. The plaintiff subsequently settled all of
his claims against Flanigan.
4
The trial court denied the defendant’s motion for summary judgment
as to the plaintiff’s failure to report allegation. Subsequently, the plaintiff
withdrew that part of his negligence claim against the defendant.
5
In the third count, the plaintiff also incorporated paragraphs 1 through
5 of the first count, which stated as follows:
‘‘1. At all times relevant hereto the plaintiff was a child under the age of
[sixteen] years of age.
‘‘2. At all relevant times . . . Flanigan was employed by the defendant
. . . as a police officer.
‘‘3. At all relevant times the plaintiff was on probation from Juvenile Court.
‘‘4. Beginning in the winter of 2006 the plaintiff would assist . . . Fullenwi-
ley at his place of business known as World Technology located at 81 Bank
Street, in the city of Waterbury, Connecticut.
‘‘5. . . . Flanigan was a frequent visitor at . . . Fullenwiley’s place of
business, both while on and off duty as a Waterbury police officer.’’
6
The motion filed on November 22, 2016 was subsequently sealed by the
court, and the defendant filed a redacted motion for summary judgment
with an accompanying memorandum on July 6, 2017.
7
The court noted that ‘‘[t]he evidence submitted indicates that Flanigan
was wearing his city issued police uniform and duty belt, which included
his handcuffs (and presumably his weapon), and that he stopped into World
Technology on his way to volunteer for the Police Explorers program.’’
8
At oral argument before this court, both parties acknowledged that they
had previously agreed that, after settling with Flanigan, the plaintiff also
would withdraw his remaining claim against the city alleging a failure to
report, and, instead, proceed solely on the two claims alleging negligence
in handcuffing the plaintiff and a failure to protect the plaintiff from the
assault. Accordingly, the parties agree that the subject of this appeal was
not rendered moot by the plaintiff’s withdrawal of part of the fourth count.
9
This statement is at odds with Flanigan’s testimony at his deposition
that he resigned from the Police Explorers in 2005 due to scheduling con-
flicts. This would have been before the incident with the plaintiff. Such
conflicts in recollection are for the finder of fact to resolve.
10
We note that, on appeal, the defendant has not argued, as it did before
the trial court, that the plaintiff’s allegation that Flanigan photographed him
operates as an admission to support its special defense that Flanigan engaged
in wilful misconduct. Moreover, although the plaintiff in his principal appel-
late brief alludes to evidence that Flanigan ‘‘may’’ have taken a picture of
a handcuffed juvenile, and similarly alleged, in his opposition to summary
judgment before the trial court, that Flanigan photographed him, the plaintiff
also relied on statements made by both Fullenwiley and Flanigan to demon-
strate that the question of whether Flanigan photographed him remained a
disputed issue of fact. Thus, even if we agreed that purported evidence of
Flanigan photographing the plaintiff would support the defendant’s claim
of wilful misconduct, the issue is not properly before us, and, as a disputed
fact, remains one for the trier of fact to resolve.
11
Although the defendant raised in its seventh special defense its alterna-
tive claim that it was entitled to immunity for the discretionary acts of
Flanigan, it failed to raise and argue this claim in its motion for summary
judgment.