Walter Lincoln v. Justin Rinebolt et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 129)

FACTS

This is a personal injury action brought by the plaintiff, Walter Lincoln against the defendants Justin Rinebolt, Tim O'Reilly, the Mohegan Fire Company, Incorporated (Mohegan) and the town of Montville.   The defendants move for summary judgment on the grounds that the plaintiff's claims are barred by General Statutes § 52–557b and the doctrine of discretionary governmental immunity.¹  The plaintiff claims that both § 52–557b and the doctrine of discretionary governmental immunity are not applicable.   The plaintiff further claims, in the alternative, that if the doctrine of discretionary governmental immunity does apply then the plaintiff falls within the exception for an identifiable person placed in imminent harm.

On November 8, 2007, the plaintiff filed a four-count complaint which alleges the following facts.   On November 1, 2006, the plaintiff was being transported from his home to Backus Hospital in an ambulance.   The plaintiff was being transported by Rinebolt and O'Reilly, who were both employed by Mohegan, a volunteer fire department in Montville.   Upon arrival at the hospital, Rinebolt and O'Reilly were removing the plaintiff from the ambulance on a stretcher when the stretcher fell to the ground.   The plaintiff suffered various injuries from the fall.

In the first count of his complaint, the plaintiff claims that his injuries resulted from the negligence and carelessness of O'Reilly, as an employee of Mohegan, for not testing or maintaining the stretcher to ensure that the legs would function properly, that they were open and that they locked, and for dropping the stretcher and letting it fall to the ground.   The second count of the complaint alleges that Rinebolt, as an employee of Mohegan, was negligent for the same actions and omissions.   The third count claims that Montville is liable pursuant to General Statutes § 7–308 for the liability of O'Reilly.²  The fourth count claims that Montville is also liable for the liability of Rinebolt pursuant to § 7–308.   The defendants filed an answer on May 28, 2008.

On June 20, 2012, the defendants filed this motion for summary judgment, along with an accompanying memorandum of law and four exhibits.   The plaintiff filed his objection and memorandum of law in opposition to the motion, which included five exhibits, on April 1, 2013.   On April 10, 2013, the defendants filed a reply memorandum with one attached exhibit.

The court heard argument on the motion on April 15, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts ․ from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In their motion for summary judgment, the defendants argue that the plaintiff's claims are first barred by § 52–557b, the Good Samaritan Act, because transporting an individual from an emergency situation constitutes emergency first aid.   The defendants further argue that the plaintiff's claims are barred by discretionary governmental immunity and that the identifiable person in imminent harm exception does not apply.   The plaintiff counters that the Good Samaritan Act does not apply to transporting a patient The plaintiff also argues that governmental immunity does not apply because the defendants' actions were ministerial in nature, and that even if it did apply there would be an exception because the plaintiff was an identifiable person in imminent harm.

I

GOOD SAMARITAN ACT

The Good Samaritan Act, General Statutes § 52–557b(b), provides in relevant part that “[a] paid or volunteer firefighter or police officer ․ or emergency medical service personnel, who has completed a course in first aid offered by the American Red Cross, the American Heart Association, the National Ski Patrol, the Department of Public Health or any director of health, as certified by the agency or director of health offering the course, and who renders emergency first aid to a person in need thereof, shall not be liable to such person assisted for civil damages for any personal injuries which result from acts or omissions by such person in rendering the emergency first aid, which may constitute ordinary negligence.”

The defendants argue that they are immune from liability for ordinary negligence because O'Reilly and Rinebolt were rendering emergency first aid to the plaintiff when the injury occurred.   The plaintiff counters that there was no emergency first aid or medical care being provided because the defendants were merely transporting him at the time of the incident.   This court was unable to find a citation, nor was one provided, where the Appellate Court has addressed the application of this statute and the meaning of “rendering emergency first aid” within § 52–557b(b).

The defendants' argument relies heavily on the decision in Hansen v. Mohegan Fire Company, Inc., Superior Court, judicial district of New London, Docket No. CV 96 0111388 (October 1, 2001, Corradino, J.) (30 Conn. L. Rptr. 572).   “Other jurisdictions have had no problem with applying their Good Samaritan Laws to cover situations where EMTs are accused of inappropriate methods of securing a patient for transportation to a medical facility ․ In fact, it is difficult to see how it can be said that using or deciding upon an appropriate mode of transporting a patient from an accident scene to an emergency vehicle is not part of the emergency care and treatment actually rendered to an accident victim at the accident site.”  Id., 576.

In Hansen, the court found that the transport of a patient from her house to the ambulance did fall within the definition of rendering emergency first aid.   The court looked to two dictionary definitions of first aid and defined it for the purposes of the statute as “such care or treatment delivered before regular medical treatment can be obtained ․” Id., 577–78.   The court further determined that if it were held that “deciding upon an appropriate mode of transporting a patient from an accident scene to an emergency vehicle is not part of the emergency care and treatment actually rendered to an accident victim at the accident site ․ would mean that a large part of what emergency personnel do at accident sites is not covered by § 52–557b.”  Id., 576.

While the analysis in Hansen can be instructive, the facts between that case and the present matter differ greatly.   In Hansen the plaintiff was injured while being transported in an unconventional manner from the scene of the emergency into the ambulance.   When it was clear that the emergency personnel could not get the plaintiff onto a stretcher, they decided to instead carry her and it was at that point that the injury occurred.  Id., 572–73.   Thus the injury occurred at the scene of the emergency and as a result of a medical assessment made by the emergency personnel.  “[T]he defendants were delivering ‘first aid’ to the plaintiff when transporting her since the propriety of the transportation depended on assessment of her medical condition and can be evaluated by health care standards.”  Id., 577.   Here, the incident occurred when the ambulance had arrived at the hospital and when the plaintiff was on a stretcher.   There was no medical decision involved in removing the plaintiff from the ambulance.

Other Superior Court cases have attempted to define emergency first aid for the purposes of § 52–557b(b) under similar circumstances.  “[T]here is at least a genuine issue of material fact as to the true meaning of [emergency first aid] as applied to the driving of ambulances and emergency vehicles in which patients are currently receiving such emergency treatment.   It seems doubtful to the Court that the driving of emergency vehicles is actually covered in a basic first aid course of the type a fireman or ambulance worker must complete to invoke ‘Good Samaritan immunity.’  “ Osborn v. Elm City Livery, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0167619 (August 2, 2002, Sheldon, J.) [32 Conn. L. Rptr. 620] (When the injury occurred during transport to a hospital but as a result of a collision between vehicles).  “[T]he requisite care that emergency medical service personnel, such as paramedics and EMTs, must provide, according to their professional standards of care or protocols, will vary depending on the nature of the call and the seriousness of the patient's condition and thus may or may not be ‘emergency first aid.’  “ Ljunquist v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5005146 (November 10, 2009, Lager, J.) [48 Conn. L. Rptr. 790] (When the determination of emergency first aid was given to a jury without a provided definition of the phrase).  “Driving an emergency vehicle does not constitute the rendering of emergency first aid so as to invoke the ‘Good Samaritan Act’ ․ It is doubtful whether the operation of an emergency motor vehicle is what the legislature intended when enacting § 52–557b.”   Pellegrino v. Branford, Superior Court, judicial district of New Haven, Docket No. CV 99 0430717 (February 10, 2003, Arnold, J.) [34 Conn. L. Rptr. 43] (Where a collision occurred with an emergency vehicle on the way to an emergency call).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.)  Perun v. Danbury, 143 Conn. 313, 316 (2013).

“The court has also considered the strong public policy the legislature wished to endorse, that is, of encouraging paid or volunteer personnel to render emergency assistance without fear of civil liability.”   Griffin v. Business Systems, Inc., Superior Court, judicial district of Danbury, Docket No. CV 03 0350716 (December 20, 2004, Downey, J.).   The court also looks to the legislative history surrounding the enactment of the statute While the Good Samaritan Act was passed in 1963, the language making it applicable to paid or volunteer firefighters and ambulance personnel was enacted through Public Act No. 878 in 1967.   Prior to passing, the public act was amended to remove language applying the immunity to acts that occurred “while in the line of duty” or “while in the course of his employment ․” 12 H.R. Proc., Pt. 8, 1967 Sess., p. 3583.   This was intended to “limit the ‘good samaritan’ application to the actual performance of first aid to a particular person but it would not involve any other aspect.”   12 H.R. Proc., supra, p. 3583.   The language “to such person assisted” was added to make it clear that the immunity only applied as to any injuries to the person receiving care.   12 H.R. Proc., supra, p. 3583.

It is clear to this court that the legislative intent was that § 52–557b should apply only when an injury results from emergency medical care and not from other aspects of the emergency personnel's interaction with the patient.   Thus transportation of a patient should not, as a matter of law, be included within the definition of emergency first aid.   Here there are no allegations of emergency medical care given during transportation, and if such allegations were present, they should be decided by a fact finder.   Therefore the motion for summary judgment must be denied as to the claim of immunity under § 52–557b.

II.

DISCRETIONARY GOVERNMENTAL IMMUNITY

“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 tort liability of a municipality has been codified in [General Statutes] § 52–557n.”  (Internal quotation marks omitted.)   Faulkner v. Daddona, 142 Conn.App. 113, 119–20, 63 A.3d 993 (2013) “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:  (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or 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).

“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 ․” (Internal quotation marks omitted.)  Faulkner v. Daddona, supra, 124 Conn.App. 119.  “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 ․ [that] [t]he determination of whether an act or omission is discretionary in nature ․ turns on the character of the act or omission complained of in the complaint ․ Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”  (Internal quotation marks omitted.)  Swanson v. Groton, 116 Conn.App. 849, 854, 977 A.2d 738 (2009).  “Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive.   Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive.”  Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012).

The defendants argue that the plaintiff's claims are barred by § 52–557n(a)(2)(B) because the actions of O'Reilly and Rinebolt were discretionary in nature, not ministerial.   The plaintiff argues that there is an established procedure to remove a stretcher from an ambulance and no discretion existed.   Thus the actions were ministerial and the doctrine of discretionary governmental immunity cannot apply.

In the present case, the plaintiff offers no statutory provision, rule, ordinance or any type of written directive to show that the actions taken by O'Reilly and Rinebolt were ministerial.   There was also no testimony of a municipal officer showing that there was a specific duty or directive to remove the stretcher in a way that would require no discretion.   While the depositions of O'Reilly, Rinebolt, and Stephen Socha, the former fire chief at Mohegan, all indicate that there was a procedure for removing a stretcher from an ambulance, O'Reilly stated that there was no rule requiring that procedure and that he had not been trained as to that procedure since working with Montville.   Thus the actions were of a discretionary nature.

The defendants further argue that the identifiable person in imminent harm exception is not applicable because the plaintiff was a member of the general public and members of the general public are not identifiable persons.   The plaintiff's alternative argument was that if discretionary governmental immunity did apply then so would the identifiable person in imminent harm exception because the plaintiff was not a member of the general public but, as a patient, was instead specifically identifiable.

In the present case, the only applicable exception to discretionary governmental immunity is “the exception permitting a tort action in circumstances of likely imminent harm to an identifiable person.”  Purzycki v. Fairfield, 244 Conn 101, 108, 708 A.2d 937 (1998).   This exception “applies 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 ․ By its own terms, this 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 ․ [T]he failure to establish any one of the three prongs precludes the application of the identifiable person-imminent harm exception ․” (Internal quotation marks omitted.)  Swanson v. Groton, 116 Conn.App. 849, 859–60, 977 A.2d 738 (2009).

“An individual may be ‘identifiable’ for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.”  Tryon v. North Branford, 58 Conn.App. 702, 710, 755 A.2d 317 (2000).  “[I]t [is] critical to [the] conclusion that governmental immunity [is] not a defense that the danger was limited to the duration of the temporary ․ condition ․ [and that] the potential for harm ․ was significant and foreseeable.”  (Internal quotation marks omitted.)  Purzycki v. Fairfield, supra, 244 Conn. 110.  “[A]s a matter of law ․ a duty [is owed] to the plaintiff because she was an identifiable person.   Whether that duty was violated because [the defendant] placed her in imminent harm is a question of fact ․ Because the question of imminent harm is a factual one ․ a jury or fact finder would need to assess the credibility and the weight to be given [to the] testimony.”  (Citations omitted.)  Tryon v. North Branford, supra, 58 Conn.App. 716.

Here, the plaintiff was being transported from his home to the hospital.   He was not just a member of the general public, but a patient specifically known to both O'Reilly and Rinebolt, and he was in their control during the ambulance ride.   The transport itself was of a limited duration and any harm could only occur within the ambulance and surrounding geographical area.   The harm that did occur was not “of an unspecified type that could have occurred at any time or at any place in the future or to anyone.”  Id. Therefore the plaintiff was an identifiable person.   It is certainly foreseeable that the acts or omissions of emergency medical personnel during ambulatory transport could result in harm to a patient.   The only question that remains is whether the defendants violated their duty to the plaintiff by placing him in imminent harm.   This is a question of fact.   If there are “unresolved factual issues material to the applicability of [qualified immunity] ․ resolution of those factual issues is properly left to the jury.”  (Internal quotation marks omitted.)  Purzycki v. Fairfield, supra, 244 Conn. 107–08.

Thus, the motion for summary judgment for the claim of discretionary governmental immunity must be denied.   In further support of this decision, there is also a genuine issue of material fact as to whether discretionary governmental immunity would apply under the statutory language.  Section 52–557n states that the political subdivision shall not be liable for discretionary acts or omissions by “any employee, officer or agent ․” (Emphasis added.)   Both O'Reilly and Rinebolt were rendering care as an emergency medical technician on behalf of Mohegan at the time of the incident.   There is no evidence as to the relationship between Mohegan and Montville other than the undisputed fact that Mohegan “was a volunteer fire department within the town of Montville providing both fire and emergency medical/ambulance service within the town of Montville.”   An exhibit attached to the plaintiff's complaint refers to Mohegan as “part of the volunteer fire department for the town of Montville”;  however this allegation was not addressed by the defendants' answer.   A signed affidavit by O'Reilly and an unsigned affidavit by Rinebolt ³ indicate that both were rendering care on behalf of Mohegan at the time of the incident.⁴  This creates a genuine issue of material fact as to whether O'Reilly, Rinebolt or Mohegan were agents of Montville.

CONCLUSION

Based on the foregoing reasons, the defendants' motion for summary judgment is denied.

Cosgrove, J.

FOOTNOTES

FN1. Rinebolt, O'Reilly, Mohegan and Montville will be referred to collectively as “the defendants” and individually by name.   The spelling of Rinebolt's name has varied throughout the pleadings, but for the purposes of this memorandum the court will use the name as it appears in the complaint..  FN1. Rinebolt, O'Reilly, Mohegan and Montville will be referred to collectively as “the defendants” and individually by name.   The spelling of Rinebolt's name has varied throughout the pleadings, but for the purposes of this memorandum the court will use the name as it appears in the complaint.

FN2. General Statutes § 7–308 provides that a municipality “shall protect and save harmless” volunteer firefighters and ambulance members of that municipality from financial loss for claims of negligence..  FN2. General Statutes § 7–308 provides that a municipality “shall protect and save harmless” volunteer firefighters and ambulance members of that municipality from financial loss for claims of negligence.

FN3. The affidavit of Rinebolt dated June 18, 2012, that is attached to the motion for summary judgment, is not signed.   Footnote 3 of the defendants' memorandum in support of such motion states that an executed copy will be provided to the court under a separate cover.   As of the date of this decision, the court does not have record of this being filed.   In Rinebolt's deposition that was attached to the plaintiff's opposition, Rinebolt was asked about an unsigned affidavit dated June 18, 2012 and he responded that he did not write the document but that the statements in it were accurate..  FN3. The affidavit of Rinebolt dated June 18, 2012, that is attached to the motion for summary judgment, is not signed.   Footnote 3 of the defendants' memorandum in support of such motion states that an executed copy will be provided to the court under a separate cover.   As of the date of this decision, the court does not have record of this being filed.   In Rinebolt's deposition that was attached to the plaintiff's opposition, Rinebolt was asked about an unsigned affidavit dated June 18, 2012 and he responded that he did not write the document but that the statements in it were accurate.

FN4. In both his affidavit attached to the defendants' motion for summary judgment, and in his deposition attached to the plaintiff's opposition to such motion, O'Reilly stated that he was a paid employee for Montville at the time that the incident occurred, but it is unclear whether he was present at the scene in that capacity or solely as a volunteer for Mohegan..  FN4. In both his affidavit attached to the defendants' motion for summary judgment, and in his deposition attached to the plaintiff's opposition to such motion, O'Reilly stated that he was a paid employee for Montville at the time that the incident occurred, but it is unclear whether he was present at the scene in that capacity or solely as a volunteer for Mohegan.

Cosgrove, Emmet L., J.