Lydia Cabrera et al. v. Robert Lawlor et al. (2011)

RULING ON MOTIONS FOR SUMMARY JUDGMENT # 101, # 104

The plaintiffs ¹ filed a lawsuit alleging negligence, reckless and wanton conduct against the defendant, Robert Lawlor, a Hartford city police officer, and statutory liability and statutory indemnification against the defendant, the city of Hartford.   The plaintiffs allege that Lawlor discharged his firearm and shot Brandon Henry and a passenger in a Hartford parking lot, that Henry drove away, drove through a stop sign without stopping and collided with the plaintiffs' vehicle at the intersection of Westland Street and Clark Street.²  They also allege that, following the incident, state's attorney John Connelly prepared a report, pursuant to General Statutes § 51–277a, in which he determined that Lawlor's use of deadly force was inappropriate under § 53a–22.   They further allege that on June 22, 2006, Lawlor was arrested for first degree manslaughter and first degree assault due to the shooting of Henry and the passenger.

The defendants argue that they are entitled to judgment as a matter of law based on:  (1) collateral estoppel, as the same issues were previously decided in a previous federal court action;  (2) qualified immunity, as this was an alleged negligent act committed by a municipal employee;  and (3) the lack of proximate causation between the alleged negligent act and the plaintiffs' injuries.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

I

COLLATERAL ESTOPPEL AND CLAIMS RELATING TO THE FEDERAL CASE

Lawlor argues that he is entitled to judgment as a matter of law and that the plaintiffs are collaterally estopped from bringing their claims because the plaintiffs previously brought suit in federal court, wherein the plaintiffs' 42 U.S.C. § 1983 claims were dismissed with prejudice upon the defendants' motions for summary judgment.   Lawlor maintains that, as the interests protected in § 1983 claims are similar to common-law tort claims, collateral estoppel bars the plaintiffs' negligence claims because they encompass basically the same issues and arise out of the same facts.³  The plaintiffs argue that collateral estoppel does not apply to the present case because the decision in the federal case was based upon 42 U.S.C. § 1983, and the federal court specifically noted that “it need not and does not reach the proximate cause issue raised by the defendants.”   Cabrera v. Lawlor, Federal District Court of Connecticut, Docket No. 3:06CV 1840 (April 7, 2009, Kravitz, J.).

“Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.”  Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).   For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action, it also must have been actually decided, and the decision must have been necessary to the judgment.  Daoust v. McWilliams, 49 Conn.App. 715, 723, 716 A.2d 922 (1998).  “An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ․ An issue is necessarily determined if, in the absence of determination of the issue, the judgment could not have been validly rendered.   If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action.”  (Internal quotation marks omitted.)  Birnie v. Electric Boat Corp., 288 Conn. 392, 406, 953 A.2d 28 (2008).

In granting the defendants' motions for summary judgment, the federal court held that, based on the undisputed facts, which are the same facts pleaded in the present case, no reasonable juror could find that Lawlor's acts amounted to a state-created danger or constituted extreme, outrageous and conscience-shocking behavior.   The federal court further held that:  (1) the harm inflicted on the plaintiffs was by a private citizen and not by Lawlor;  (2) there was no evidence showing that Lawlor intended harm to the plaintiffs and (3) the plaintiffs failed to allege facts to substantiate claims that the city is liable other than simply stating Lawlor's actions, which it deemed insufficient.   See Cabrera v. Lawlor, Federal District Court of Connecticut, Docket No. 3:06CV1840 (April 7, 2009, Kravitz, J.) (hereinafter “Oral Ruling, April 7, 2009, pp. _.”)

A review of the present operative complaint and the federal complaint show that the allegations in both are nearly identical.⁴  In the federal case, the parties included the same plaintiffs and the defendants consisted of Lawlor, the city of Hartford, Patrick Harnett, the Hartford police chief, Henry, and AIG Personal Lines Insurance Company.

To determine whether collateral estoppel applies, the court must first determine if the issues alleged were:  (1) submitted for determination and fully litigated in the federal case, (2) determined by the federal court;  and (3) necessary to the federal court's decision.   See Daoust v. McWilliams, supra, 49 Conn.App. 723.

A

Count One:  Negligence Claim against Lawlor

A negligence claim requires a showing of duty, breach of that duty, causation and actual injury.  Roach v. Ivari International Centers, Inc., 77 Conn.App. 93, 99, 822 A.2d 316 (2003).   A duty only exists to reasonably foreseeable plaintiffs.  Hollister v. Thomas, 110 Conn.App. 692, 699–700, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008).

The federal court noted that it was not reasonably foreseeable that Henry would flee the scene in his vehicle after being shot by Lawlor and that the plaintiffs would be harmed.   The federal court stated that to find foreseeability would demonstrate “the nearly limitless nature of plaintiffs' theory of liability, under which any officer could be liable under [s]ection 1983, so long as he acts as the ‘but-for’ cause of a private actor's harm against any other member of the public.”  (Oral Ruling, April 7, 2009, pp. 8–9.)   This finding was not necessary to the court's holding that the state-created danger exception did not apply to overcome the rule precluding liability for harm to private actors, for the plaintiffs' 42 U.S.C. § 1983 claim, because the ultimate finding the court relied upon was the plaintiffs' failure to demonstrate that Lawlor acted with intent to harm or deliberate indifference.   Thus, the federal court did not rely upon a finding of lack of foreseeability, rendering that finding unnecessary.⁵  As the federal court's finding that Lawlor could not have foreseen the plaintiffs' injury was not necessary to the holding with regard to the state-created danger exception, the plaintiffs' negligence claim is not collaterally estopped.

B

Count Two:  Wanton, Reckless and Malicious Conduct Claim against Lawlor

A common-law claim for wanton, reckless, wilful, intentional and malicious conduct requires that a party demonstrate “the existence of a state of consciousness with reference to the consequences of one's acts ․ [Such conduct] is more than negligence, more than gross negligence ․ [I]n 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 ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”  Murray v. Taylor, 65 Conn.App. 300, 339, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

The federal court's finding that there was no evidence that Lawlor intended to harm the plaintiffs or was deliberately indifferent was necessary to the federal court's holding because either a finding of deliberate indifference or intent to harm is a required element that must be established to state a claim under the state-created danger exception of 42 U.S.C. § 1983 for private claims against the government.   This finding negates the essential element of reckless disregard, which is necessary for a wanton, reckless or malicious conduct claim.   The plaintiffs are precluded from relitigating this issue in the present case.   The effect of that preclusion will be discussed below.

II

CLAIMS IN THE PRESENT STATE ACTION

The defendants argue that they are entitled to summary judgment on all counts of the plaintiffs' complaint.   Lawlor argues that he is entitled to summary judgment because:  (1) he is entitled to qualified immunity, as his acts were discretionary;  and (2) there is a lack of proximate causation between his acts and the plaintiffs' injuries.   The city of Hartford argues that it is entitled to summary judgment because:  (1) if Lawlor is entitled to qualified immunity, it cannot be liable for Lawlor's immune acts and (2) if there is a lack of proximate causation, it cannot be liable for Lawlor's acts.

A

Count One:  Negligence Against Lawlor

Lawlor argues that summary judgment is warranted because the plaintiffs' injuries were not proximately caused by his actions in using his firearm against Henry and the passenger.   Lawlor claims that Henry, after being injured by Lawlor, drove over the grass and the curb, out of the parking lot onto Main Street, and then drove more than 3600 feet before colliding with the plaintiffs' vehicle.   Before the collision, Henry executed at least three turns and drove approximately three city blocks, all the while being pursued by other police officers.   Lawlor argues that there is no cause in fact attributable to him for the plaintiffs' injuries because the harm that resulted to the plaintiffs was not a foreseeable risk created by his discharge of his firearm.   Lawlor cites several cases from other jurisdictions wherein police chases resulted in injuries to innocent motorists and where the police were not found to be the proximate cause of those injuries.⁶

The plaintiffs argue that the issue of proximate cause is a question of fact for the jury.   They also argue that their injuries were foreseeable as their car was close to Henry's when Lawlor discharged his firearm, that their injuries are of the same general nature as the foreseeable risk created by Lawlor's negligence and that an intervening intentional or criminal act does not relieve a defendant of liability when the intervening act is within the scope of risk created by the defendant or when the intervening act is reasonably foreseeable.

“An essential element of any negligence action is the establishment of the defendant's conduct as a proximate cause of the plaintiff's injury.”  Wu v. Fairfield, supra, 204 Conn. 438.  “[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries ․ Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant's conduct] ․ The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.”  (Internal quotation marks omitted.)  Winn v. Posades, 91 Conn.App. 610, 614–15, 881 A.2d 524 (2005), aff'd, 281 Conn. 50, 913 A.2d 407 (2007).  “[A] negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct.”  Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983).

“Proximate cause is ordinarily a question of fact.”  Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982).   Proximate cause becomes an issue of law “when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation.”  Abrahams v. Young & Rubican, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).   The test of proximate cause is whether the defendant's conduct is a substantial factor in producing the plaintiff's injury.  Purzycki v. Fairfield, 244 Conn 101, 113, 708 A.2d 937 (1998).   “The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions;  that is, whether the harm which occurred was of the same general nature of the foreseeable risk created by the defendant's negligence.”  (Internal quotation marks omitted.)  Id.

The evidence submitted in the present case establishes that, after Lawlor approached Henry's vehicle and discharged his firearm, Henry took extreme measures to evade police, including driving over the grass, a curb, driving through several streets, executing several turns, failing to stop at a stop sign and ultimately colliding with the plaintiffs' vehicle.   If Henry had collided with the plaintiffs' vehicle in the parking lot immediately after Lawlor opened fire, a finding of proximate cause may be justified.   If the plaintiffs had been injured by a stray bullet discharged from Lawlor's firearm, a finding of proximate cause may be justified, as that was be a harm of the same general nature of a foreseeable risk created by Lawlor's alleged negligence.   The substantial factor test is not satisfied based upon the facts presented in the present case, however, because the harm (Henry colliding with the plaintiffs' vehicle) was not of the same general nature as the foreseeable risk created by Lawlor's alleged negligence (opening fire on Henry and his passenger in a parking lot at least 3600 feet away from the plaintiffs).   Further, the plaintiffs have failed to present any evidence to establish causation, aside from conclusory statements.  “[W]hen the mind of a fair and reasonable person could reach only one conclusion ․ summary judgment may be granted based on a failure to establish causation.”  Abrahams v. Young & Rubican, Inc., supra, 240 Conn. 307.   This conclusion is supported by Judge Kravitz's observation that the plaintiffs' ‘but-for’ causation theory was nearly limitless, and rejected the plaintiffs' contention that it was foreseeable that, after Lawlor discharged his firearm, Henry would flee the parking lot and harm the plaintiffs.  (Oral Ruling, April 7, 2009, pp. 8–9.)   There is no genuine issue of material fact that Lawlor's use of his firearm was not the proximate cause of the plaintiffs' injuries, and Lawlor is entitled to summary judgment as a matter of law on count one.

Even if there was proximate causation, Lawlor is entitled to qualified immunity for the discretionary use of his firearm.  “Generally, [municipal] liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act.”  Kolaniak v. Board of Education, 28 Conn.App. 277, 281, 610 A.2d 193 (1992).   The Supreme Court has illustrated three exceptions to the qualified immunity of a municipal employee:  (1) a foreseeable class of victims, (2) acts of malice, wantonness or intent to injure, or (3) acts by municipal employees that the legislature has specifically allowed liability through statute.   See Purzycki v. Fairfield, supra, 244 Conn 108.

“The [identifiable person-imminent harm, or foreseeable victim] exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very little recognition in this state.”   (Internal quotation marks omitted.)  Prescott v. Meriden, 80 Conn.App. 697, 702, 836 A.2d 1248 (2003), aff'd, 273 Conn. 759, 873 A.2d 175 (2005).   Connecticut courts have narrowly applied this exception to a potential danger that is strictly limited in both duration and geography.   Santana v. Rohan, Superior Court, judicial district of Hartford, Docket No. CV 04 0830569 (June 7, 2005, Shapiro, J.) (39 Conn. L. Rptr. 461).   Further, “[i]mminent harm excludes perils that might occur, if at all, at some unspecified time in the future.”  Florence v. Plainfield, 50 Conn.Sup. 1, 8, 909 A.2d 587 (2006).

“Foreseeability is the touchstone of our analysis in determining whether a public officer can be liable for his discretionary acts under this exception.”  Fleming v. Bridgeport, 284 Conn. 502, 532, 935 A.2d 126 (2007).   In Shore v. Stonington, the Supreme Court held that a police officer that stopped a driver that was visibly under the influence of alcohol or drugs and failed to arrest him did not owe a duty to the plaintiff when the driver subsequently drove away and collided with the plaintiff's vehicle, killing the plaintiff.  187 Conn. 147, 150–51, 156–57, 444 A.2d 1379 (1982).   The court held that the police officer could not have been aware that the drunk driver's conduct threatened an identifiable victim, such as the plaintiff, with imminent harm.  Id., 153–54.

The plaintiffs do not dispute the conclusion that Lawlor's use of his firearm was discretionary.   Similar to the defendant police officer in Shore v. Stonington, when Lawlor discharged his firearm there was no indication that Henry would flee the scene, drive over the curb and grass, drive several blocks, fail to stop at a stop sign and collide with the plaintiffs' vehicle.   As “imminent harm excludes dangers which, if they occur at all, might occur at some unspecified time in the future;” Evon v. Andrews, supra, 211 Conn. 508;  the collision in the present case may have occurred at some unspecified time in the future.   No evidence has been presented or pleaded by the plaintiffs to demonstrate that the collision was imminent or likely to happen at a time limited in duration and geographical scope, as is required by Connecticut case law.   The police report, attached to Lawlor's memorandum as Exhibit F, states that Henry's vehicle was followed for a minimum of three blocks before it reached the intersection where Henry collided with the plaintiffs' vehicle, which demonstrates that there was neither a limited geographic scope nor a limited duration for the accident to occur in.   Therefore, even if there was proximate causation, Lawlor is protected by qualified immunity for the use of his firearm, and Lawlor is entitled to summary judgment on count one.

B

Count Two:  Wanton, Reckless and Malicious Conduct against Lawlor

Lawlor also argues that he is entitled to summary judgment on count two based upon qualified immunity, because his decision to use his firearm was discretionary.   The plaintiffs do not seriously dispute that Lawlor's acts were discretionary, and they concede that the acts may be seen as discretionary, however, allege in their complaint that Lawlor's acts were malicious, wanton and reckless, and thus argue that an exception to qualified immunity applies.

This court has already found that this claim is collaterally estopped, however, even if this claim was not collaterally estopped, Lawlor is entitled to qualified immunity.   The only exception to qualified immunity that is applicable to count two is the exception for “acts of malice, wantonness or [the] intent to injure.”   See Purzycki v. Fairfield, supra, 244 Conn 108.

“A showing that officers acted with malice such that they are not entitled to qualified immunity is a heavy burden.   Mere negligence is not enough.”   (Internal quotation marks omitted.)  Fleming v. Bridgeport, supra, 284 Conn. 535.   For conduct to rise to the level of wantonness, recklessness or maliciousness, the Supreme Court has required that it be “more than negligence, more than gross negligence.”  Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002).   Rather, it is behavior that indicates “the existence of a state of consciousness with reference to the consequences of one's acts ․ and reckless disregard of the rights of safety of others or of the consequences of the action.”  (Internal quotation marks omitted.)  Id., 379–80.  “[E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.”  Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992).

The plaintiffs have failed to present evidence to substantiate their claim that Lawlor acted with malice, wantonness or recklessness.   The allegations in the complaint and in their memorandum in opposition are conclusory and do not equate to a factual showing that Lawlor's actions were conducted with malice, wantonness or recklessness.   While the plaintiffs made allegations concerning the state's attorney's report, it was not submitted in support of their motion for summary judgment.  “Mere statements of legal conclusions ․ and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment.”  Chadha v. Shimelman, 75 Conn.App. 819, 828, 818 A.2d 789, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003).   This conclusion is supported by the police report submitted by Lawlor, which states that Lawlor and another officer observed suspicious activity in Henry's vehicle and engaged Henry and the passenger in conversation while awaiting backup.   Lawlor believed that one of the occupants in the vehicle brandished a pistol and Lawlor commanded the occupant to drop the pistol, which was unheeded, and “the party continued to bring his weapon to bear on [o]fficer Lawlor.”   According to the police report, Lawlor, who was unable to find protective cover and continued to demand the party abandon the weapon, feared imminent serious injury and ultimately discharged his firearm at the attacker.   There is no basis for concluding that Lawlor's acts were conducted with a reckless disregard of the rights and safety of others or of the consequences of his actions.

This conclusion is further supported by the federal court's finding that the plaintiffs failed to demonstrate that Lawlor intended to harm them or acted with deliberate indifference as to harming them, a similar standard, used by that court in determining whether the state-created danger exception applied to preclude immunity to the defendants in the 42 U.S.C. § 1983 claims.  (Oral Transcript, April 7, 2009, pp. 11–12.)   This exception does not apply and Lawlor is entitled to qualified immunity and summary judgment on count two.

C

Count Three:  Statutory Liability Claim against the City

General Statutes § 7–465(a) provides, in relevant part, that a town, city or municipality “shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.”   A necessary element of this claim is a finding of liability against the employee, defendant Lawlor in the present case.   See Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).

In order for the city to be liable under General Statutes § 7–465(a), there must be a finding of liability against Lawlor.   As discussed above, Lawlor is not liable to the plaintiffs for the use of his firearm.   Therefore, the city cannot be found liable under this statute, and, accordingly, it is entitled to summary judgment on count three.

D

Count Four:  Statutory Indemnification Claims Against the City

General Statutes § 52–557n(a)(1) provides, in relevant part:  “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties;  (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit ․” Subsection (2) provides that “a political subdivision of the state shall not be liable for damages to person or property caused by:  (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct;  or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”  General Statutes § 52–557n(a)(2).

Because Lawlor's acts were discretionary, a conclusion supported by the federal court's recognition that police officers must use discretion and judgment in certain contexts;  (Oral Ruling, April 7, 2009, pp. 11–12);  and such acts are excused from liability under the statute, the city is entitled to summary judgment on count four.

CONCLUSION

For the foregoing reasons, the defendants' motions for summary are granted.

Domnarski, J.

FOOTNOTES

FN1. The plaintiffs consist of Lydia Cabrera, Ruben Perez, and Dejavahn Watkins, the minor son of Lydia Cabrera, who brings suit per proxima amici on behalf of her son.   They will be referred to collectively as “the plaintiffs.”.  FN1. The plaintiffs consist of Lydia Cabrera, Ruben Perez, and Dejavahn Watkins, the minor son of Lydia Cabrera, who brings suit per proxima amici on behalf of her son.   They will be referred to collectively as “the plaintiffs.”

FN2. Henry was shot in the chest.   The passenger, shot in the head, died from the gunshot wound..  FN2. Henry was shot in the chest.   The passenger, shot in the head, died from the gunshot wound.

FN3. Lawlor attached the plaintiffs' federal amended complaint to his memorandum in support, which alleges claims under the U.S. Constitution, 42 U.S.C. §§ 1983 and 1988, General Statutes §§ 52–557n, 7–465, 7–108 and Connecticut common law (negligence, reckless, malicious and wanton acts as to Lawlor)..  FN3. Lawlor attached the plaintiffs' federal amended complaint to his memorandum in support, which alleges claims under the U.S. Constitution, 42 U.S.C. §§ 1983 and 1988, General Statutes §§ 52–557n, 7–465, 7–108 and Connecticut common law (negligence, reckless, malicious and wanton acts as to Lawlor).

FN4. The state complaint alleges two facts that the federal complaint did not.   The state complaint additionally alleges that:  (1) a report was drafted by the state's attorney's office, which determined that Lawlor's use of deadly force was unreasonable and inappropriate pursuant to General Statutes § 53a–22;  and (2) Lawlor was arrested for the shooting incident and charged with first degree manslaughter and first degree assault..  FN4. The state complaint alleges two facts that the federal complaint did not.   The state complaint additionally alleges that:  (1) a report was drafted by the state's attorney's office, which determined that Lawlor's use of deadly force was unreasonable and inappropriate pursuant to General Statutes § 53a–22;  and (2) Lawlor was arrested for the shooting incident and charged with first degree manslaughter and first degree assault.

FN5. “To establish a claim under § 1983, a plaintiff must allege two essential elements:  (1) that the conduct complained of was committed by a person acting under the color of state law;  and (2) that this conduct deprived the plaintiffs of his rights privileges or immunities secured by the Constitution or laws of the United States.  Parrat v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1909, 68 L.Ed.2d 420 (1981).   Assuming that the plaintiff establishes the requisite elements for a § 1983 claim, the plaintiff may be precluded from recovery based on the absolute or qualified immunity of the defendant.  Briscoe v. Lattue, 460 U.S. 325, 334, 103 S.Ct. 1404, 75 L.Ed.2d 96 (1983).”   Parise v. Murray, Superior Court, judicial district of New Haven, Docket No. 29 72 84 (July 28, 1993, Thompson, J.).   Federal courts preclude liability for the government's failure to protect against harm from a private actor;  however, there are two exceptions to this rule:  (1) when a special relationship exists wherein the victim typically is in the care or custody of the government;  and (2) when a “state-created danger” exists wherein the state affirmatively creates or increases the victim's risk of danger at the hands of a private actor.  Aselton v. East Hartford, 277 Conn. 120, 134, 890 A.2d 1250 (2006).   To demonstrate a state-created danger, the plaintiff must show that the defendant's behavior shocked the conscience.  Id., 138.  “When the facts demonstrate that there is no opportunity for reflection and deliberation ․ a standard of deliberate indifference cannot be applied sensibly ․ the [Supreme] court concluded that in such circumstances, liability should turn on whether the police acted with the intent to cause harm.”  (Citation omitted;  internal quotation marks omitted.)  Id., 139..  FN5. “To establish a claim under § 1983, a plaintiff must allege two essential elements:  (1) that the conduct complained of was committed by a person acting under the color of state law;  and (2) that this conduct deprived the plaintiffs of his rights privileges or immunities secured by the Constitution or laws of the United States.  Parrat v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1909, 68 L.Ed.2d 420 (1981).   Assuming that the plaintiff establishes the requisite elements for a § 1983 claim, the plaintiff may be precluded from recovery based on the absolute or qualified immunity of the defendant.  Briscoe v. Lattue, 460 U.S. 325, 334, 103 S.Ct. 1404, 75 L.Ed.2d 96 (1983).”   Parise v. Murray, Superior Court, judicial district of New Haven, Docket No. 29 72 84 (July 28, 1993, Thompson, J.).   Federal courts preclude liability for the government's failure to protect against harm from a private actor;  however, there are two exceptions to this rule:  (1) when a special relationship exists wherein the victim typically is in the care or custody of the government;  and (2) when a “state-created danger” exists wherein the state affirmatively creates or increases the victim's risk of danger at the hands of a private actor.  Aselton v. East Hartford, 277 Conn. 120, 134, 890 A.2d 1250 (2006).   To demonstrate a state-created danger, the plaintiff must show that the defendant's behavior shocked the conscience.  Id., 138.  “When the facts demonstrate that there is no opportunity for reflection and deliberation ․ a standard of deliberate indifference cannot be applied sensibly ․ the [Supreme] court concluded that in such circumstances, liability should turn on whether the police acted with the intent to cause harm.”  (Citation omitted;  internal quotation marks omitted.)  Id., 139.

FN6. In support of his argument that he is not the proximate cause of the plaintiffs' injuries, Lawlor cites United States v. Hutchins, 268 F.2d 69 (6th Cir.1959);  Anagnos v. Hultgren, 445 F.Sup.2d 184 (D.Mass.2006);  Wilson v. Tucson, 8 Ariz.App. 398, 446 P.2d 504 (1968);  and Stanton v. State, 29 App.Div.2d 612, 285 N.Y.S.2d 964 (1967)..  FN6. In support of his argument that he is not the proximate cause of the plaintiffs' injuries, Lawlor cites United States v. Hutchins, 268 F.2d 69 (6th Cir.1959);  Anagnos v. Hultgren, 445 F.Sup.2d 184 (D.Mass.2006);  Wilson v. Tucson, 8 Ariz.App. 398, 446 P.2d 504 (1968);  and Stanton v. State, 29 App.Div.2d 612, 285 N.Y.S.2d 964 (1967).

Domnarski, Edward S., J.