Catherine Fergus et al. v. Town of New Milford (2011)

MEMORANDUM OF DECISION

Before the court is a motion to strike (# 102) filed by the defendant, Town of New Milford (“the Town”), on the ground that the plaintiff's claim is barred by governmental immunity.   Both parties have submitted briefs and, on June 21, 2011, engaged in oral argument.   For the reasons given, the motion must be denied.

In the complaint, the plaintiff, Catherine Fergus, alleges that on or before November 14, 2009, a protective order had been issued by the Superior Court mandating that Catherine Fergus's estranged spouse, Neil Fergus, refrain from harassment of any kind.   On that day the plaintiff reported to the New Milford Police Department (“Police”) that the protective order was being violated by virtue of several dozen unwanted communications over a short period of time.   After receiving this report from the plaintiff, the Police “warned him [Neil Fergus] of his wife's complaints by phone” rather than detaining him.   Immediately following this phone call, Neil Fergus became enraged and went to the plaintiff's home and committed a “savage series of assaults on the plaintiff, including a knife attack” causing the plaintiff to suffer serious injuries.

The plaintiff claims that her injuries were caused by the negligence of the Police in failing to protect the plaintiff by following domestic violence protocols and training, and by failing to arrest Neil Fergus.   The complaint is in two counts.   Count one is a direct liability negligence claim brought pursuant to C.G.S. § 52–557n.   Count two is a derivative bystander emotional distress claim brought by the plaintiff on behalf of her children.

The Town moves to strike the complaint on the ground that it does not state a claim upon which relief can be granted.  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  Practice Book § 10–39(a) provides in relevant part:  “Whenever any party wishes to contest ․ (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”   “In ․ ruling on the ․ motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).  “[W]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a [pleading] challenged by a ․ motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

First, the Town claims that the actions of the Police were in performance of discretionary governmental functions.  “General Statutes § 52–557n [fn6] abandons the commonlaw principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages.  Tryon v. North Branford, 58 Conn.App. 702, 721, 755 A.2d 317 (2000).   One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.   General Statutes § 52–557n(a)(1)(A).  General Statutes § 52–557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the ‘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.’   Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability ‘would cramp the exercise of official discretion beyond the limits desirable in our society.’  Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982).   Discretionary act immunity ‘reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.’  Haddock v. New York, 75 N.Y.2d 478, 484, 553 N.E.2d 987, 554 N.Y.S.2d 439 (1990).   In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts ‘to be performed in a prescribed manner without the exercise of judgment or discretion.’  (Internal quotation marks omitted.)  Evon v. Andrews, supra, 211 Conn. 505.   This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.   See 18 E. McQuillin, Municipal Corporations (3d Ed.2003) § 53.04.10, pp. 179–81 (‘[a] municipality is liable for negligence of its employees at the operational level where there is no room for policy judgment’).   We have identified three exceptions to discretionary act immunity.   Each of these exceptions represents a situation in which the public official's ‘duty to act is [so] clear and unequivocal’ that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force.  Shore v. Stonington, supra, 187 Conn. 153.   First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.   E.g., Mulligan v. Rioux, 229 Conn. 716, 728, 732, 643 A.2d 1226 (1994).   Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws.   See, e.g., Sestito v. Groton, 178 Conn. 520, 525–28, 423 A.2d 165 (1979).   Third, liability may be imposed 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 ․’ Evon v. Andrews, supra, 211 Conn. 505.”  (Footnotes omitted.)  Doe v. Peterson, 279 Conn. 607, 614–16 (2006).

The first step in deciding this motion is to determine whether the allegations of negligence alleged by the plaintiff involve discretionary functions.   The defendant has cited substantial authority for the proposition that the decisions made by the police about how to conduct a criminal investigation and whether to make an arrest are discretionary functions for which discretionary act immunity applies.  Castle Rock v. Gonzales, 545 U.S. 748, 760–61 (2005);  Florence v. Plainfield, 50 Conn.Sup. 1 (2006);  Swanson v. City of Groton, Superior Court, Judicial District of Middlesex, Complex Litigation Docket at Middletown, Docket No. 030104164 (October 26, 2007, Beach, J.) aff'd 116 Conn.App. 849 (2009).   Judge Beach's decision in Swanson provides an excellent summary of the case law on this topic which he describes as a “vast array” against the idea that an officer has no discretion whether to arrest or take other positive action in a domestic violence setting.  Id.

The plaintiff's only argument against a finding of discretionary immunity is a claim that the issue is one of fact which cannot be decided on a motion to strike.   The plaintiff cites Colon v. New Haven, 60 Conn.App. 168, 178, cert. denied, 255 Conn. 908 (2000) for the proposition that:  “The determination of whether acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder.”   This citation is inaccurate;  the text actually reads:  “Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder;  there are cases where it is apparent from the complaint.”  (Citations omitted.)  Id., 181.   This is a case where the determination is apparent from the complaint.   The allegations of the complaint set forth a situation where the Police were presented with a complaint from Catherine Fergus that Neil Fergus was violating the protective order by making repeated unwanted communications.   The decision of how to investigate this complaint and, whether to make an arrest or take any other action, are clearly discretionary under the current state of the law.

The second step in deciding this motion is to determine whether an exception to governmental immunity exists.   The plaintiff argues that the “identifiable person/imminent harm” exception applies.   This exception applies where it is apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.  Durrant v. Board of Education, 284 Conn. 91, 100 (2007).  “[T]his test requires three things:  (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 factors are intimately ties to the question of foreseeability, and all must be met for a plaintiff to overcome qualified immunity.”  Fleming v. Bridgeport, 284 Conn. 502, 533 (2007).

The plaintiff argues that, as the person to be protected by the protective order, she was an identifiable victim subjected to imminent harm when the Police told Neil Fergus about the plaintiff's complaint without taking any action to protect her.   She argues that her allegations present a question of fact which cannot be decided on a motion to strike.   The defendant counters this argument by contending that the complaint is simply not specific enough to state a cause of action founded on the “identifiable person/imminent harm” exception.

In attempting to determine whether the plaintiff's complaint is sufficient, the court is cognizant of its obligation to take the facts alleged in complaint in the manner most favorable to sustaining their legal sufficiency.   Construing the complaint most favorably to sustaining its legal sufficiency, I believe that the complaint is sufficient to withstand this motion to strike despite the fact that the complaint is rather bare-bones.   There is at least one case in which the Supreme Court has extended the “identifiable victim/ imminent harm” exception to a situation where the police failed to take action.   Although it dates from 1979, that case, Sestito v. Groton, 178 Conn. 520 (1979) recently received the following favorable comment by the Supreme Court:  “A good example of the application of these principles [the “identifiable person/imminent harm” exception] is Sestito v. Groton, 178 Conn. 520, 527–28, 423 A.2d 165 (1979).   In that case, an on duty police officer observed a group of seven men, including the plaintiff's decedent, in a parking lot outside a bar.   Although the officer was aware that one of the men was a known felony suspect, and that the members of the group had been drinking and were engaged in an argument that became physical, he did not intercede until after he heard gunshots fired.   This court concluded that there was enough evidence to suggest that the police officer owed a duty to the plaintiff's decedent and that the doctrine of governmental immunity was not a bar to liability, as a matter of law, because the decedent could have been an identifiable person subject to imminent harm.   The potential harm was sufficiently immediate because it would last only as long as the altercation continued and was sufficiently certain in light of the fact that the police officer was observing a violent interaction involving drunkenness and a known criminal.”  (Internal citations omitted.)  Cotto v. Board of Education, 294 Conn. 265, 276–77 (2009).

Admittedly the facts of this case may turn out to be distinguishable from those in Sestito.   But, viewed most favorably to the plaintiff, the allegations of the complaint are sufficient to set forth a valid cause of action based upon the “identifiable person/imminent harm” exception to governmental immunity.   The motion to strike is denied.

BY THE COURT,

Pickard, J.

Pickard, John W., J.