Jacqueline Bardales Chirieleison by Graciela Chirielsison, Adm. v. Robert C. Lucas et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 193

INTRODUCTION

The defendants Robert Lucas (hereinafter “Lucas”) and the town of Greenwich (hereinafter “Greenwich”) have filed this motion for summary judgment dated September 8, 2011 as to all three counts of the Second Amended Complaint dated April 1, 2011.

The court granted a motion to strike the amended complaint dated March 16, 2011 as to the fourth and fifth counts regarding the Cos Cob Fire Police Patrol and the indemnification claim pursuant to C.G.S. § 7–465.

The Second Amended Complaint consists of three Counts in relation to the defendants Robert Lucas and the town of Greenwich.   The first count is a claim of negligence against the defendant Lucas;  the second is a claim of negligence against the town of Greenwich and the third is a claim of nuisance against Greenwich.

The plaintiff submitted an objection to the motion dated September 23, 2011.   The defendants filed a reply dated October 7, 2011 to which the plaintiffs submitted a supplemental objection dated October 21, 2011.   The court heard argument on October 24, 2011.

FACTUAL BACKGROUND

This action was commenced on September 17, 2009.   The plaintiff is the Estate of Jacqueline Bardales Chirieleison (hereinafter “Plaintiff”) who died as a result of motor vehicle accident on September 30, 2007.   The plaintiff was a passenger in a motor vehicle driven by Reynaldo Sanchez (hereinafter “Sanchez”).   The defendants are the town of Greenwich and a volunteer firefighter, Robert Lucas who was the operator of 2004 Pierce fire truck that was hit by the car being operated by Sanchez.   Both Sanchez and Jacqueline Chirieleison died as a result of the accident.   The other passenger Gerson DeLeon survived the accident and has filed a separate legal action.¹  In the early morning hours of September 30, 2007, the plaintiff's deceased had travelled to New York with the other parties in the car to a dance club in New York City.

Earlier in the morning of September 30, a car had been abandoned on the shoulder of the highway between exits 4 and 5 of I–95 because of a flat tire.   At approximately 5:30 a.m., a vehicle being operated by Rafael DeLaCruz struck the rear of the abandoned car causing the DeLaCruz car to become engulfed in flames.  (Defendant's Exh. A.) The state police and thereafter the fire department immediately responded to the accident and the car on fire.   The fire department in responding had positioned the 2004 Pierce fire truck on the highway to block two lanes, the center and right lanes, to establish a safe area for the responders to the DeLaCruz accident.   Robert Lucas who was the operator of the fire truck had positioned the truck with operating emergency lights on to block the two lanes as directed by the scene commander.   At about this same time, the plaintiff was returning to the Stamford area by way of I–95 between exits 4 and 5 where the defendants were positioned with the fire apparatus.   Lucas and another firefighter, Deck, had placed flares about two and a half feet across the truck and then in a pattern of about 100 feet back from truck beginning at the guardrail.   The two firefighters, including Lucas, had decided they would also set up a series of cones and were returning to get the cones when the car driven by Sanchez came out of the left lane at a high rate of speed, crossed between the flares positioned in the roadway and collided with the stationary 2004 Pierce fire truck.  (Defendants' Exh. B Police Investigation.)

The plaintiff filed this wrongful death action contending that the actions of Lucas and the town of Greenwich were negligent, that the town of Greenwich is responsible for the negligence of the officers, employees and officials including Lucas and is liable for nuisance as a result of the positioning of the fire truck.

DISCUSSION

The defendants first argue that count one is insufficient for failure to provide notice pursuant to C.G.S. § 7–308 and in the alternative that immunity applies to the defendant Lucas because he was engaged in a discretionary act and no exceptions apply.   This same argument is set forth as to the second count in relation to the town of Greenwich.   The defendants also contends that the plaintiff cannot prove a prima facie cause of action in negligence against Greenwich.   As to the third count, the defendants argue that the plaintiff cannot prove a prima facie cause of action in nuisance.

GENERAL STANDARD

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).   Absent a showing by a party opposing a motion for summary judgment, the trial court is entitled to rely upon the proof supplied by the moving party and grant summary judgment.  Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 12, 459 A.2d 115 (1983).   The mere existence of some factual dispute will not defeat an otherwise properly supported motion.  Schwartz v. Stevenson, 37 Conn.App. 581, 584, 659 A.2d 244 (1995).

The issue of governmental immunity is simply a question of the existence of a duty of care, and “this court has approved the practice of deciding the issue of governmental immunity as a matter of law.”  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988)

NOTICE PROVISIONS

One of the first arguments of the defendants is that the plaintiff has failed to provide notice required by Conn. Gen Stat. § 7–308 which states in part:  “Each municipality of this state, shall pay on behalf of any paid or volunteer fireman or volunteer ambulance member of such municipality all sums which such fireman or volunteer ambulance member becomes obligated to pay by reason of liability imposed upon such fireman ․ by law for damages to person or property, if the fireman ․ at the time of the occurrence, accident, injury or damages complained of, was performing fire ․ duties ․” and “No action for personal injuries or damages to real or personal property shall be maintained against such municipality and fireman unless such action is commenced within one year after the cause of action arose and notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk or corresponding officer of such municipality and with the fireman within six months after such cause of action has accrued ․” The defendants contend that judgment should enter as to the First Count because the claim against Robert Lucas alleges he was negligent while engaged in his fire duties as a volunteer fireman in the Cos Cob Fire Police Patrol but the plaintiff has failed to provide notice as required by C.G.S. § 7–308.   The defendants raised a similar argument in the Motion to Strike which was decided by the court on March 16, 2011.   In the prior decision by this Court on the motion to strike, the court denied the motion as to the first count because the complaint did not clearly indicate that the defendant, Robert Lucas, was engaged in fire duties that would require specific notice provisions.   The defendants have provided exhibits in support of this summary judgment that address this issue.   Because the prior decision was based solely upon the complaint, the court did not consider additional exhibits that would support the defendant's position.   The defendants' motion for summary judgment differs from the prior motion because the defendants have submitted unopposed affidavits and exhibits that clearly demonstrate the defendant, Robert Lucas, is a certified fire fighter for the Greenwich Fire Department and the Cos Cob Fire Police Patrol.   Brian Kelly states that he is the Volunteer Firefighter Recruitment and Retention Officer for the Fire Department of the town of Greenwich since October 2005.   He further states that he performs the “day to day coordination of the volunteer firefighter retention and recruitment program for the Fire Department of the town of Greenwich and all of its affiliated volunteer fire companies including the Cos Cob Fire Police Patrol.”   Lastly, Mr. Kelly states that Robert Lucas is certified as a Firefighter and on September 30, 2007 he “was classified as an active member of the Greenwich Fire Department and the Fire Police Patrol.”   (Defendants' Exh D, Affidavit of Kelly.)   The defendants also includes the affidavit of Chief Siecienski who states that Robert Lucas, a certified firefighter, was dispatched to the scene of an active car fire on I–95 (Delacruz accident) to provide assistance to the Greenwich Fire Department (Defendant's Exh. E, Siecienski Affidavit.)   These affidavits respond to the lack of a specific pleading that prevented the court from determining that he was acting in the scope of fire duties on September 30, 2007.   Additionally, the defendant Lucas provided an affidavit as to his position which is consistent with the other affidavits as well as the police investigation reports that list him as a firefighter.  (Defendant's Exh. B affidavit and police reports.)   These affidavits establish that the defendant Lucas was engaged in fire duties which may impact the argument concerning the governmental immunity.   However, the first count of the Second Amended Complaint alleges a claim of negligence against the defendant Lucas.   A claim pursuant to C.G.S. § 7–308 is an indemnification statute that requires the municipality to pay damages assessed against firemen for liability incurred while in the performance of fire duties if statutory duties are met.   In order to hold the municipality liable pursuant to this statute the plaintiff must meet the requirements.  Fraser v. Henninger, 173 Conn. 52, 376 A.2d 406 (1977).   In this regard it is uncontroverted that the plaintiff has not met the requirements of notice or filing an action to seek indemnification.   The plaintiff does not provide any opposition to this argument.   Therefore, it is clear that the plaintiff does not satisfy the requirements.   However, the first count does not allege indemnification but seeks a finding of negligence against the individual.   There is no obstacle to bringing a common-law action against a municipal employee pursuant to negligence and avoiding the requirements of the indemnification statute.   From the pleadings in the first count, it appears there is no claim pursuant to C.G.S. § 7–308 but instead the claim is one of negligence.   Therefore, on this basis the motion is denied.

CLAIM OF IMMUNITY

The second argument of defendants in regard to the first count is that the defendant Lucas is immune from liability because he was performing discretionary duties and no exceptions apply to preclude his actions from the immunity granted by law.²  The plaintiff contends that the placement of the fire truck was in accordance with a standard and thus the actions are ministerial.   The plaintiff argues that, in the alternative, if the court determines that the acts are discretionary, immunity would be precluded by the exception for an identifiable victim in imminent harm.

“The [common-law] doctrines that determine the tort liability of municipal employees are well established ․ Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ․ Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ․ The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  Martel v. Metropolitan District Commission, 275 Conn. 38, 48–49, 881 A.3d 194 (2005)

The plaintiff argues that because Robert Lucas was ordered to park the truck to block two lanes of traffic that this order makes the actions ministerial and not discretionary.   Additionally, the plaintiff points to the deposition testimony of Lucas regarding the application of a standard that she contends creates a ministerial duty that precludes immunity.   The plaintiff's argument is a very narrow view of the incident, the actions and the decision making aspects of the fire fighters in response to the incident on September 30, 2007.   The plaintiff has cherry picked portions of the deposition testimony of Lucas in support of her argument that the defendant had standards which would make the acts ministerial.   The deposition testimony and the exhibits do not support the plaintiff's position because a thorough review of all of the deposition testimony makes it clear that there may be a process to protect the accident scene on a highway and as part of the process the firefighter may block portions of the highway but the decision to block is part of the overall discretionary acts as to how to handle each individual incident.   The decision making includes the manner of response, the number of lanes to be blocked, if at all, the placement of the emergency vehicles including vehicles to keep the site safe, the duties assigned to each responder and other safety factors including keeping flashing lights on and/or placing cones or flares in the roadway among many actions.   These variables provide a different dimension to the question of discretionary or ministerial duties that the plaintiff has ignored.

If the court accepts the plaintiff's argument it would establish an unworkable precedent of potential liability for any responding emergency vehicles parked at an accident scene.   Thus if the commanding officer makes a decision to position a fire truck in a blocking position to protect the scene while the emergency vehicles and personnel attend to the accident scene, that order based upon the evaluation of the particular scene would create a ministerial act.   This argument ignores the fact that the chief or officer in charge made a decision that the scene needed to be protected and that the method to do this was to block the accident scene by utilizing the fire truck and not simply set up of flares or other devices to warn oncoming traffic that there was an obstruction in the roadway.   Obviously, someone made a decision that the sheer presence of the emergency vehicles at the scene was not sufficient visibility, warning or protection.   The deposition testimony of Lucas supports a finding that the initial decision of whether and to what extent a truck should provide a warning required some discretion.

The plaintiff provided deposition testimony of Lucas from the Kumah case as well as the deposition testimony in the instant action which they contend supports a finding that the acts were ministerial.   The deposition testimony does not provide any specific standard and in questioning from counsel about written documents, policies and standards Lucas states that “There are standards for positioning any apparatus on roads where there is incident.”   (Defendant's Exhibit C at page 43.) ³  Lucas further clarified that as to standard he was referring to “Most specifically is that we position them to protect any operator of the truck, and not just getting off it, but where an engine, for example, would have to protect the front panel.   You don't just sit there and put yourself out in traffic lane ․ I think that's what I'm saying when I tell you we position it to protect ourselves on the scene.”  Id. It is more telling that there are no specific standards in the response to the question as to what they base the positioning on and Lucas' statement that is “suggestions by—that I have had classes in fire service ․” This testimony as to suggestions for the choices of proper positioning of the fire truck and the further testimony that there are no standard operating procedures but there are guidelines because “every incident is very different” does not demonstrate a standard that would clearly support a finding of a ministerial act.   (Plaintiff's Exh. B Kumah deposition at p. 88.)   Lucas discussed each scene as different and that they actually evaluate what to do when they arrive at a scene.  (Defendants' Exh. C at p. 134.)   He stated, “We get there, we have to evaluate what's going on, hope we know and hope the demands we are getting are well-informed.”  (Defendants' Exh. C at p. 135.)   Lastly Lucas indicated very clearly that he would establish scene safety according to the specifics of the incident and that “There are no written requirements that I must do a specific thing because I'm on I–95.” (Defendant's Exh. C at p. 136.)   The plaintiff has not provided in opposition any specific standard but only makes reference to nebulous statements about parking the trucks.   It is no great surprise that the emergency trucks will be in a stationary position on the highway when responding to an emergency.   The fact that they block the highway to enable emergency crews to do their job does not rise to the level of a standard because the response to every incident would require a decision as to what to block and how to block along with the other choices for protection.   The plaintiff has not provided any expert opinions that would support their position that the actions were ministerial.

“Decisions made by a firefighter in the midst of fighting a fire, although made in the framework of standards or regulations, cannot be held to be ministerial such as to divest the firefighter of discretion in the application of those standards and regulations.   Such would be contrary to the public policy on which governmental immunity is based, that is, the broader public interest in having government employees be free to exercise judgment and discretion unhampered by fear of second guessing and retaliatory lawsuits ․” Doe v. Petersen, 279 Conn. 607, 614–15, 903 A.2d 191 (2006);  Bruce Park Ave. Greenwich, LLC v. Plant Integration Associates & Home Care Solutions, Inc., 2007 WL 4171604 (Conn.Super.).   The plaintiff infers that because the defendant Lucas used the word “standards” within his deposition testimony that the actions become ministerial.   This is certainly not the law nor the intent of the law to find that the existence of some operating procedure or undefined standard takes the actions out of the realm of discretionary.   The facts of this action leave ample room to determine that the actions of the defendant Lucas and the firefighters who responded to this accident and car fire overwhelming exemplify discretionary duties in responding to an emergency situation.   The plaintiff had ample time and opportunity to determine what, if any, rules, standards or policies create a ministerial duty for the defendant Lucas or the other municipal employees.   The plaintiff has failed to do more than speculate that there is any such standard that would create a ministerial duty.   The overwhelming testimony of Lucas supports the defendants' position that the overall standard is to protect the fire fighters and the scene of an accident but the method used to accomplish this protective barrier is never the same.   The defendants submitted the entire deposition testimony of the defendant Lucas that contained only the above references to the actions of the firefighters in determining scene safety and response.   It is clear from the exhibits before the court that there are no specific standards and the plaintiff is unable to point to any.   The court in Heigl v. Board of Education, 218 Conn. 1, 6 n.5, 587 A.2d 423 (1991) recognized as a rationale to immunity that “a civil trial may be an inappropriate forum for testing the wisdom of legislative actions.   This is particularly true if there is no readily ascertainable standard by which the action of the government servant may be measured ․ Thus, [t]he policy behind the exception is to avoid allowing tort actions to be used as a monkey wrench in the machinery of government decision making.”  (Citation omitted;  internal quotation marks omitted.)   The plaintiff with all of her efforts has not been able to provide the court with a specific standard, regulation or rule that would establish that the defendants had no discretion in not only the positioning of the fire truck, but the initial decision for placement of the truck and thereafter, the set up of warning flares to give notice to the travelling public of the accident scene and to protect those who were working to address the emergency.   There is no genuine issue of fact that the actions of Lucas were discretionary acts.⁴

In the second count against the town of Greenwich, the plaintiff alleges that the town is liable pursuant to C.G.S. § 52–557n.⁵  This statute abandons the common law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages.  Tyron v. North Branford, 58 Conn.App. 702, 721, 755 A.2d 317 (2000).   One such act is the negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.

The defendant argues that summary judgment should be granted as to count two on the claim against the town of Greenwich because it has immunity for the alleged damages caused by Lucas or employees, officials or agents of the town.   The defendant contends that it is immune pursuant to C.G.S. § 52–557n(a)(2)(B) which states that a municipality is not liable for damages caused by its employee's negligent act or omission that requires the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.   As in the claim of the first count there is immunity for the actions of the municipality if they were discretionary.   This court has already determined that the actions of the employees, officials and agents were discretionary.   There is no genuine issue of fact that the actions at the scene of the accident were not guided by a standard or policy.   The officials, including the defendant Lucas, evaluated the need to block two lanes and were in the process of further action based upon their assessment of the needs at the scene.   This is clearly discretionary.   The town of Greenwich has enunciated the same arguments as noted above regarding the discretion and below in regard to the exceptions.   The decisions of this court are applied equally to the town of Greenwich.

Identifiable Victim Subject to Imminent Harm

Because the court has determined that the actions of Robert Lucas and the town of Greenwich fall within the category of discretionary actions, there remains the application of the three exceptions to discretionary act immunity.  “First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.”  (Citation omitted.)  Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006).  “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.”  Doe v. Petersen, supra, 279 Conn. 615–16.   Neither of these exceptions apply to the instant action and the parties have agreed and focused their arguments on the third exception which is, 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.  Id. There are three elements to consider, that is:  1) there is an identifiable person 2) and there is imminent harm, and 3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.  Doe v. Petersen, supra, 279 Conn. 616.   If the plaintiff fails to establish any one of the three prongs, their failure will be fatal to their claim that they come within the imminent harm exception.  Doe v. Petersen, Id., 620.

The plaintiff refers to a number of actions that have determined that there is an identifiable victim for purposes of the exception.   However, a vast number of the actions that the plaintiff relies upon are cases involving school children.   These cases are not applicable to a motor vehicle accident.   The plaintiff's attempt to utilize these cases, which discuss limited duration and temporal geographic location, as a foothold to have this court find an identifiable person are unavailing.   The rationale of the actions that have, for the most part, permitted the exception to apply for school children is based upon the fact that the school children are required by law to attend the school and thus are a narrowly defined identifiable class of victims.  Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994).   In contrast, the same types of actions in which individuals other than the children have alleged injuries on the school grounds are treated differently than school children because they, like the plaintiff in this action, who is not required to use the roadway, are not required but chose to be on the school property.  Prescott v. Meriden, 80 Conn.App. 697, 836 A.2d 1248 (2003).   In Prescott, the parent chose to go to the school to watch his child in an extracurricular activity and while there was injured.   The court found even though there was only a small group of parents at the game he was not required to be there and had made the choice to attend.   Thus, he was not an identifiable person subject to imminent harm.   See also, Durant v. Board of Education, 284 Conn. 91 (2002);  Johnson v. New Haven, Superior Court, J.D. of New Haven at Meriden, Docket Number 282191 (February 23, 2004) (parent visiting school voluntarily, no exception).

In DeConti v. McGlone, 88 Conn.App. 270, 869 A.2d 271, cert. denied 273 Conn. 940, 875 A.2d 42 (2005), the plaintiff's car was damaged by a rotted tree that fell on it.   The plaintiff argued that she drove down the street where the tree was located to get to her home on the same street and thus she was identifiable.   The court rejected this argument stating “it is clear that the plaintiffs would not be identifiable persons, or an identifiable class of foreseeable victims, if they were either unfortunate persons driving in a vehicle or pedestrians walking along a sidewalk who happened to be struck by a falling tree limb.”  DeConti, supra, 88 Conn.App. 274.   This approach mirrors the multitude of cases that have followed Shore v. Stonington, 187 Conn. 197, 444 A.2d 379 (1982) in which the court specifically found that a member of the general travelling public is not an identifiable person for purposes of this exception.   The facts surrounding the instant action are clearly akin to the facts in Prescott, supra, where the parent chose to attend that game just as the plaintiff in this action chose to go with her friends to New York and travel by way of this highway.   The facts in DeConti provide a more closely aligned fact pattern to extend the identifiable person because the plaintiff had no choice but to travel that roadway to get to her home.   But even in DeConti, the court rejected an extension of the identifiable victim in a situation which was closer to an identifiable group that lived and travelled on the route where the tree was located.   Here there is no such claim nor could there be.   The plaintiff in the instant action is no different than the untold throngs of travelling public who utilize I–95 or any other highway each day, each hour, or each minute.   On the morning in question, the Sanchez car with its passengers was one of a number of cars travelling in the left hand lane.   There are no facts that would support this court finding any differently.

What is surprising in the instant action is that the plaintiff equates herself as an identifiable person when her presence in the area on this day was the same as every other member of the travelling public.   In Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989), the plaintiffs were residents of a home and were killed in an apartment fire.   The court determined that the plaintiffs were not identifiable persons and stated:  “[t]he class of possible victims of an unspecified fire that may or may not occur at some unspecified time in the future is no means a group of identifiable persons.”  Id. The defendant Lucas testified that he has responded to hundreds of incidents on the highway and thus there are an inordinate number of travelling public who would be travelling while he performed his duties as a volunteer firefighter.   This class of travelers is unspecified in the same manner as the plaintiffs in Evon. Given the fact that Lucas and the employees of the town of Greenwich respond to hundreds of accidents, the realm of some person at some unspecified time coming into contact with a parked fire truck follows the same lack of a defined connection as was noted in Evon. The plaintiff has not provided any basis to remove her from this large unidentified class.   There is no basis to consider her presence on I–95 in the same vein as the school students that the plaintiff has attempted to utilize in support of her position.   The situations are night and day and the distinctions support the law that the travelling public are not identifiable as the student who is compelled to attend school.   Here, the car which the plaintiff travelled in could just as easily been coming back from New York by way of the Merritt Parkway (Route 15) or Route 1. There is nothing that forced her to be on this road in the early morning hours other than her choice to travel to New York and back with friends for entertainment.⁶  In this respect, her actions are more akin to the finding in Prescott where the parent chose to attend the football game.   The plaintiff does not satisfy the exception for an identifiable person.

Lastly, the plaintiff attempts to argue that there is imminent harm to an identifiable person because the situation of I–95 was limited in time and geographic location such as to create an identifiable group in imminent harm.   This argument as to the limited time and geographic scope or the actions applies not to the identifiable person but as to the second criteria of whether there was imminent harm.   Based upon the above, the plaintiff cannot prove she was identifiable to preclude Lucas and the town of Greenwich from discretionary act immunity and the court will next address the argument of plaintiff as to the imminent harm because the two criteria are evaluated with reference to each other.  Doe v. Petersen, supra, 279 Conn. 620.   This argument has been utilized in actions that involve school children.  Burns v. Board of Education, supra, 228 Conn. 645–46, Purzycki v. Fairfield, 244 Conn. 101, 104, 708 A.2d 937 (1998).   The imminency requirement is connected to the “apparentness” requirement.  Burns, Id., Purzycki, Id., 108.   In the present action there are no facts that make it apparent to Lucas or any official that Sanchez was to steer his car out of the left hand lane at a high rate of speed, traverse through the flares that had been placed on the roadway, and strike the fire truck that was on the highway with emergency lights operating.   Lucas testified that he had responded to hundreds of accidents on I–95. There is nothing in his testimony that would make it apparent to him that such an accident would occur.⁷  There is no support for the claim of imminent harm.   The facts of this action are similar to the findings in Evon, id. and Violano v. Fernandez, 280 Conn. 310, 907 A.2d 1188 (2006) where the court ruled that the risk of theft during a period of time while eminent domain proceedings were ongoing did not create an imminent harm because the risk of theft like the risk of fire in Evon, “implicates a wide range of factors that can occur, if at all at some unspecified time in the future.”  Evon, supra, 211 Conn. 508, Violano, Id. at 331.   The court in Violano discussed the time frame and noted the number of months.   Here, the plaintiff has noted the short duration that the fire truck was on the highway on this date but it is not just the time but the situation here involved the use of many devices to make the site secure.   There is no testimony or evidence that the defendants believed the site created imminent harm to anyone.

The plaintiff has failed to provide any support for her claim that there is an exception to the discretionary immunity.   There is no genuine issue of fact with respect to the discretionary acts or the exception and therefore the defendants are entitled to summary judgment as to counts one and two for the discretionary acts.

NEGLIGENCE CLAIM

The defendants contend that there is no genuine issue of material fact as to the negligence claim against the town in the second count.   The defendants argue that the second count alleges a breach of duty by the defendant's employees for the failure to act in accordance with standards, regulation and rules in response to the accident scene.   The plaintiff does not address this argument in its opposition to the motion for summary judgment.

In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail.   These elements are:  “duty;  breach of that duty;  causation;  and actual injury.”  (Internal quotation marks omitted.)   Stein v. Tong, 117 Conn.App. 17, 27, 979 A.2d 494 (2009).   Furthermore, “the plaintiff must prove both causation in fact and proximate cause.”  (Internal quotation marks omitted.)  Burton v. Stamford, 115 Conn.App. 47, 76, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).

“In an automobile case, [a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part.   Nor is it sufficient for a plaintiff to prove that a defendant operator might have been negligent in a manner which would, or might have been, a proximate cause of the collision.   A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation.”   (Internal quotation marks omitted.)  Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 741, 955 A.2d 1241, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008), citing O'Brien v. Cordova, 171 Conn. 303, 306, 370 A.2d 933 (1976).

The court has already ruled that the defendants are entitled to judgment on the second count based upon the immunity defense because the acts of the employees, officials and agents were discretionary and there is no exception.   This ruling of the court is dispositive of the second count.   However, the defendants have argued in the alternative that the second count cannot proceed because the plaintiff cannot satisfy the elements of a cause of action for negligence.   In arguing that the plaintiff cannot satisfy the elements of negligence, the defendants contend that the arguments related to the immunity defense apply in part.   In particular, the defendant contends that there is no duty to the plaintiff because she was not an identifiable person in imminent harm and therefore, there is no breach of duty because the defendants have exercised discretion.   The defendants are correct as to this argument.   However, the argument is further strengthened by the total lack of evidence or testimony as to the proximate cause of the injury.   The only survivor of the accident has no memory of what occurred in the early morning hours of September 30, 2007.   Additionally, the testimony of the witnesses to the accident reflects that the motor vehicle left the lane of travel where all other motor vehicles were proceeding in an orderly and safe fashion and travelled at a speed that was not only well in excess of the speed limit but was dangerous under normal circumstances.  (Defendant's Exh.B Police Investigation, Statement of Lucas and Investigation Report Conclusions at p. 15.)   Lastly, the plaintiff has not been able to point to any particular standard or regulation that would support the plaintiff's claim of negligence.   There is no expert testimony or opinion that would support a duty or breach of duty.   There is insufficient evidence to conclude that the defendant, Lucas, or any employee of the defendant, town of Greenwich, was negligent in the placement or warnings to prevent the accident that is the subject of this action or that their actions were the proximate cause of the accident.

The lack of any memory by the sole survivor weighs heavily, although not conclusively, in this decision.   In Winn v. Posades, 281 Conn. 50, 913 A.2d 407 (2007), the court addressed a very similar argument.   The plaintiff was the administratrix for an estate of her son who was killed in an automobile accident.   Like the present situation, there was an accident during which the driver survived but had no memory of the accident.   The police vehicle which was driven by Posades was found to have been operating at a speed above the speed limit and the court found that he had a duty which he breached but determined that the plaintiff failed to demonstrate that the defendant was the proximate cause of the accident.   The Winn court provided a detailed analysis of the requirements for a finding of proximate cause in a motor vehicle accident such as what is present in this action.   The court stated, “․ in a case involving an automobile accident, ‘[a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part.   Nor is it sufficient for a plaintiff to prove that a defendant operator might have been negligent in a manner which would, or might have been, a proximate cause of the collision.   A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation.”  (Internal quotation marks omitted.)  O'Brien v. Cordova, 171 Conn. 303, 370 A.2d 933 (1976).   The Winn court pointed to the decision in Palmieri v. Macero, 146 Conn. 705, 155 A.2d 750 (1959) where there were no witnesses to an accident in which the motor vehicle went over an embankment and the deceased driver was sued.   The court discussed the existence of many possibilities as to the proximate cause of the accident as a basis to find that the question of negligence was too conjectural and uncertain to warrant a verdict against the defendant.  Id., 708.   The court recited a number of situations which could have caused the accident very much like the instant accident.   In this case, the witnesses, Lucas and Deck, viewed the car being driven by Sanchez leave the lane of travel and actually cross through the flares in the road which were set to steer traffic away and to warn oncoming traffic of the emergency situation.  (Defendant's Exh. B Lucas Statement, Exh.C p. 58.)   The driver ignored these flares and it is not known if it was the result of him failing asleep, being stricken by some illness, being distracted by someone in the car or a device in the car, simply becoming impatient with the slowing down of traffic, or some other unknown cause.  (See Exh. B Investigative Report Conclusions p. 15 with suggestions.)   What is different from the other motor vehicle accidents cited in Winn is the fact that the motor vehicle being driven by Sanchez was not the only motor vehicle that was affected by the defendants' response to a highway emergency but it was the only motor vehicle which exited the travelling lane that was open to the public and crossed into the area of the emergency response vehicles and the car on fire.   There are many questions as to what caused this action none of which are related to the positioning of the fire truck or the placement of flares.   Even if the court was to question the placement of the vehicle and find a duty, there is no evidence to satisfy the burden that such placement was the actual cause or the placement constituted negligence.   The plaintiff has failed to present a genuine issue of fact that the defendants were negligent.   Conjecture and speculation are not enough.   Therefore, summary judgment is granted as to the defendant's argument that the plaintiff has failed to provide any facts to support the claim of negligence.

NUISANCE

The plaintiff contends that the placement of the fire truck in two lanes on the highway as a method of protecting the emergency vehicles working at the scene was a nuisance.   The plaintiff contends that the sheer placement for a limited geographical area and time was a nuisance.

Municipal liability for a claim of nuisance is governed by C.G.S. § 52–557n(a)(1)(C) which imposes liability in nuisance on a municipality only when the municipality positively acts to create the alleged nuisance.  Pico v. Voluntown, 295 Conn. 141, 989 A.2d 593 (2010).   In order to prevail on a claim of public nuisance, a plaintiff must prove that “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property;  (2) the danger created was a continuing one;  (3) the use of the land was unreasonable or unlawful;  [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff's] injuries and damages.”  Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).   The exhibits and testimony do not provide support for any of the elements but in particular based upon the arguments above, there is no evidence that the defendants created a nuisance that was the proximate cause of the injuries and death.

Additionally, there is strong support that the use of the highway to provide emergency aid and protect the responder by blocking a portion of the highway is reasonable and lawful based upon the statutory authority provided by C.G.S. § 7–313e.   The defendants argued that in accordance with the law a fire official is permitted or authorized by law to block any public highway temporarily while at the scene of a fire, service call or other emergency which is exactly what Lucas did at the request of the scene commander.  (Defendants' Exh. E Aff. of Siecienski.)  Gen.Stat. § 7–313e provides in part:  “Notwithstanding any provision in the general statutes or a municipal ordinance to the contrary, the fire chief of the municipality, or any member serving in the capacity of fire officer-in-charge, shall, when any fire department or company is responding to or operating at a fire, service call, or other emergency, within such municipality, have the authority to:  ․ (c) blockade any public highway, street or private right of way temporarily while at such scene ․” This statute provides the authority to the defendants to establish the blocking of the accident scene in the exact manner that they did.   If the court finds that the placement of a fire truck on the highway was not reasonable then the purpose of the statute is lost and the towns would be subjected to liability every time they respond to an emergency that would require any blocking of the street or highway.   Thus, a finding of unreasonable action would be inconsistent with the statutory provisions and based upon this rationale alone the plaintiff has not provided a basis in law or any genuine issue of fact that would preclude granting summary judgment on this count.

The plaintiff next argues that the defendant Lucas can be found to have intentionally created a nuisance based upon the Kumah case in which there was a motor vehicle accident when the fire truck Lucas was operating was placed across lanes of traffic.⁸  The plaintiff contends that the defendant should have known that parking the truck diagonally across two lanes of I–95 would result in continuing danger and harm.   The plaintiff contends that the defendant created the nuisance when he parked the truck knowing of the Kumah incident.   As noted above, the accident in Kumah has no relevance to the instant claims.   First of all, that action is pending with no resolution as to negligence claims or nuisance claims that would give rise to any precedent for the instant action.   Additionally, the plaintiff has not demonstrated that there is such a similarity between the accidents such that the allegations in Kumah should be of concern in the instant action.   Therefore, Kumah does not create any basis for a finding of nuisance in this action.   The plaintiff's attempt to curtail the duration of the alleged nuisance is also unavailing.   The deposition testimony of Lucas indicates that only fourteen minutes elapsed from the time he arrived until the motor vehicle in which the plaintiff's decedent was a passenger collided with the fire truck.   The case of Warren v. Bridgeport, 129 Conn. 355, 28 A.2d 1 (1942), found that the defendant created and maintained a nuisance even though only a short passage of time because the actions resulted in an accident in which the defendant was the proximate cause by his action of driving a street sweeper in the opposite direction of traffic with insufficient lighting and visibility.   This fact pattern has stark distinctions.   First of all, there is no violation of the law in the instant action and in fact the law permits the blocking of traffic by emergency equipment.   There were no exhibits, testimony, or expert opinions or affidavits produced by the plaintiff that support the allegation that the parking of the truck has a natural tendency to cause damage or injury.   The law allows such a positioning to protect the emergency responders and the individuals involved in the emergency and thus there is no genuine issue of fact the defendant violated any statutory or other requirement to create or maintain a nuisance.   Thus, summary judgment is granted as to the third count alleging nuisance.

CONCLUSION

For the reasons stated above, the defendant's motion for summary judgment is denied as to the claim that the plaintiff failed to provide notice pursuant to C.G.S. § 7–308 and granted as to the first and second counts on the ground of governmental immunity and failure to provide a factual basis to support the claim of negligence.   The motion is granted as to the third count alleging a cause of action for nuisance.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. This action, Gerson DeLeon v. DeLaCruz et al., Docket No. CV 095012019, was consolidated with the present case..  FN1. This action, Gerson DeLeon v. DeLaCruz et al., Docket No. CV 095012019, was consolidated with the present case.

FN2. The defendants also raise the issue of immunity as to the second count against the town of Greenwich which the court will address below..  FN2. The defendants also raise the issue of immunity as to the second count against the town of Greenwich which the court will address below.

FN3. This type of testimony clearly applies to how the truck could be utilized to protect and as such is discretionary as well as the final decision to block the lanes..  FN3. This type of testimony clearly applies to how the truck could be utilized to protect and as such is discretionary as well as the final decision to block the lanes.

FN4. Part of the argument by the plaintiff in regard to the actions is to compare this case to the Kumah v. Brown action which has not been resolved in the trial court and is pending on appeal as to the issue of nuisance and C.G.S. § 13a–149.  Kumah v. Brown, 127 Conn.App. 254, 14 A.3d 1012 (2011).   The plaintiff attempts to develop a link to the ruling on appeal that the complaint provides sufficient information and allegations to deny the claim of discretionary act and continue the action.   However, the Kumah case is not applicable at this stage of the proceedings because the ruling in Kumah like the earlier ruling of this court was based upon a very different standard for a motion to strike..  FN4. Part of the argument by the plaintiff in regard to the actions is to compare this case to the Kumah v. Brown action which has not been resolved in the trial court and is pending on appeal as to the issue of nuisance and C.G.S. § 13a–149.  Kumah v. Brown, 127 Conn.App. 254, 14 A.3d 1012 (2011).   The plaintiff attempts to develop a link to the ruling on appeal that the complaint provides sufficient information and allegations to deny the claim of discretionary act and continue the action.   However, the Kumah case is not applicable at this stage of the proceedings because the ruling in Kumah like the earlier ruling of this court was based upon a very different standard for a motion to strike.

FN5. 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 ․”.  FN5. 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 ․”

FN6. It appears that the plaintiff does not recognize that the identifiable person in imminent harm probably attaches to the person injured in the accident on September 30, 2007 because that person (Rafael Delacruz) was an individual who within the protective ring of the emergency vehicles could very well be the subject of an accident by anyone travelling past the scene of the accident.   If anyone was an identifiable victim in imminent harm it was him and this car..  FN6. It appears that the plaintiff does not recognize that the identifiable person in imminent harm probably attaches to the person injured in the accident on September 30, 2007 because that person (Rafael Delacruz) was an individual who within the protective ring of the emergency vehicles could very well be the subject of an accident by anyone travelling past the scene of the accident.   If anyone was an identifiable victim in imminent harm it was him and this car.

FN7. The plaintiff has attempted to utilize the Kumah v. Brown case which involved a motor vehicle accident while Lucas was responding to a scene in 2006.   However, the facts in Kumah are different and at the present time the action involving Kumah is still pending in the trial court.   The plaintiff's reliance on Kumah for the imminent harm exception is misplaced and premature..  FN7. The plaintiff has attempted to utilize the Kumah v. Brown case which involved a motor vehicle accident while Lucas was responding to a scene in 2006.   However, the facts in Kumah are different and at the present time the action involving Kumah is still pending in the trial court.   The plaintiff's reliance on Kumah for the imminent harm exception is misplaced and premature.

FN8. The plaintiff also relies upon the case of Warren v. Bridgeport, 129 Conn. 355 (1942), for support of her claim that nuisance can be found based upon an act of a limited duration but again Warren does not involve the use of emergency equipment which provides the statutory protection of C.G.S. § 7–313e and is therefore not supportive of the facts in this action..  FN8. The plaintiff also relies upon the case of Warren v. Bridgeport, 129 Conn. 355 (1942), for support of her claim that nuisance can be found based upon an act of a limited duration but again Warren does not involve the use of emergency equipment which provides the statutory protection of C.G.S. § 7–313e and is therefore not supportive of the facts in this action.

Brazzel–Massaro, Barbara, J.