Melton R. Bost, Administrator of the Estate of Anthony Bost v. Town of Hamden et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 128)

FACTS

The present case comes before the court by way of a four-count revised complaint filed on March 31, 2010, by the plaintiff, Melton R. Bost, administrator of the estate of the plaintiff's decedent, Anthony Bost, against the defendants, the town of Hamden and “F/F Davis.” ¹  In his complaint, the plaintiff alleges the following facts.

On June 27, 2007, the plaintiff contacted 911 after the plaintiff's decedent began experiencing complications with his tracheostomy and difficulty breathing.   Emergency personnel from the Hamden Fire Department responded to the plaintiff's residence and, in the course of rendering care, removed or disabled the permanent tracheostomy located in the throat of the plaintiff's decedent.   As a consequence of his tracheostomy being removed or altered, the plaintiff's decedent was unable to breathe.   Although he was subsequently transported to Yale–New Haven Hospital for emergency treatment, the lack of oxygen to his brain resulted in him being declared “brain dead.”   On June 26, 2007, the plaintiff's decedent was removed from life support and died.

In counts one and two of his complaint, the plaintiff alleges that employees of the town of Hamden, including, but not limited to Davis, wrongfully caused the death of the plaintiff's decedent by, inter alia, improperly removing, altering, or disabling the permanent tracheostomy of the plaintiff's decedent;  failing to render appropriate medical care to the plaintiff's decedent;  and acting outside the respective scopes of practice for medical response technicians and emergency response technicians, thereby deviating from the standard of care applicable to those classifications.   The plaintiff further contends that the town of Hamden failed to properly train, supervise, and educate its personnel in, inter alia, the removal of the tracheostomy of the plaintiff's decedent.

In counts three and four of his complaint, the plaintiff seeks indemnification from the town of Hamden pursuant to General Statutes § 7–465 ² and General Statutes (Rev. to 2003) § 7–308 ³ for the negligence of its firefighter employees.   The allegations of negligence set forth in counts three and four are substantially similar to those set forth in counts one and two.

On January 22, 2013, the defendants moved for summary judgment and submitted a memorandum of law with multiple exhibits.   The defendants' motion rests on the following grounds:  (1) the court lacks subject matter jurisdiction because the plaintiff has failed to file a written opinion letter that complies with General Statutes § 52–190a;  (2) the third and fourth counts, to the extent that they are brought pursuant to § 7–465, must be dismissed because the statute explicitly excludes firefighters;  (3) the plaintiff's claims are all barred by either the statute of limitations set forth in General Statutes (Rev. to 2003) § 7–308 or the statute of limitations set forth in General Statutes § 52–584; 4  (4) to the extent that the plaintiff attempts to recover in his individual capacity, his claims are barred by General Statutes § 52–555;  (5) there is no genuine issue of material fact that the defendants are sheltered from liability by General Statutes § 52–557b,⁵ the “Good Samaritan Law”;  and (6) the defendants named in the first and second counts of the plaintiff's complaint are shielded by governmental immunity pursuant to General Statutes § 52–557n.⁶

The plaintiff objects to the defendants' motion for summary judgment, and makes the following arguments in support of his objection:  (1) the defendants waived their right to challenge the plaintiff's written opinion letter when they failed to timely file a motion to dismiss;  (2) the written opinion letter complies with § 52–190a;  (3) the plaintiff's negligence claims were brought within the statute of limitations set forth in § 52–557n, which is the applicable statute for purposes of calculating the limitations period;  (4) a genuine issue of material fact exists with regard to whether § 52–557b shields the defendants from liability;  (5) the defendants have failed to produce evidence establishing that the town of Hamden and its employees are protected by governmental immunity;  and (6) the identifiable victim, imminent harm exception applies to the plaintiff's claims.

The plaintiff filed a memorandum of law with exhibits in support of his objection on April 9, 2013.   The defendants filed a reply to the plaintiff's objection on April 16, 2013.   The matter was argued at the short calendar on May 28, 2013.

DISCUSSION

“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.)  Stewart v. Watertown, 303 Conn. 699, 709–10, 38 A.3d 72 (2012).

“[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 ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

I

The defendants first argue that the plaintiff's written opinion letter, filed pursuant to § 52–190a, is statutorily deficient because it was not authored by a “similar health care provider” as required by the statute.   They contend that this deficiency deprives the court of subject matter jurisdiction over the plaintiff's entire complaint.

In response, the plaintiff argues that § 52–190a does not implicate the court's subject matter jurisdiction and, thus, the defendants waived their right to challenge the plaintiff's opinion letter when they failed to file a motion to dismiss.   Additionally, the plaintiff contends that the opinion letter is statutorily sufficient.

Section 52–190a provides, in relevant part:  “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.   The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․ The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”

As the plaintiff correctly notes, the absence of a statutorily sufficient written opinion letter implicates personal, not subject matter, jurisdiction.   Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011).   Accordingly, any challenge to the plaintiff's opinion letter must comply with our rules of practice governing challenges to personal jurisdiction, particularly, Practice Book § 10–30.

Practice Book § 10–30 provides that “[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”  (Emphasis added.)   In the present case, the defendants did not file a motion to dismiss within thirty days of filing their appearance and, thus, have waived their right to do so.   See Practice Book § 10–32 (“[a]ny claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed ․ within the time provided by Section 10–30”).   Moreover, by filing a request to revise;  Dkt. No. 105;  motion to strike;  Dkt. No. 120;  and at least two answers;  Dkt. Nos. 123 and 130;  the defendants have further foreclosed themselves from filing a motion to dismiss, since a party is deemed to have waived the right to file any pleading not filed in due course.   See Practice Book §§ 10–6, 10–7 and 10–32.

For the reasons set forth in the preceding paragraph, this court concludes that the defendants have waived their right to contest the sufficiency of the plaintiff's written opinion letter.⁷  Accordingly, this court is disinclined to grant the defendants' motion for summary judgment on the basis that the letter is statutorily insufficient.

II

The defendants next argue that they are entitled to judgment on the third and fourth counts of the plaintiff's revised complaint because the two indemnification statutes invoked by the plaintiff are inapplicable.   Specifically, the defendants argue that (1) § 7–465 expressly excludes firefighters from its scope, and (2) the plaintiff cannot bring an indemnification claim under (Rev. to 2003) § 7–308 ⁸ because he has not complied with the notice or filing requirements of the statute.   The plaintiff has not responded to either of these arguments.

With respect to § 7–465, “[t]here is no dispute that [the statute] clearly and unambiguously provides that municipalities do not assume the liabilities of firemen ‘covered’ under General Statutes (Rev. to 2003) § 7–308.   As indicated, (Rev.2003) § 7–308 applies to municipalities' assumption of liability for damages caused by fireman, both paid and volunteer.   A municipality is required to indemnify certain firefighters under (Rev. to 2003) § 7–308, and to indemnify all other municipal employees under § 7–465.”   Nichol–Buddoo v. Cox, Superior Court, judicial district of Fairfield, Docket No. CV–11–6021631 (October 26, 2012, Tyma, J.) (54 Conn. L. Rptr. 878, 879).

In the present case, the parties' evidentiary submissions reflect—and neither party disputes—that the individuals who provided care to the plaintiff's decedent were firefighters.   Consequently, the plaintiff cannot maintain an action for indemnification against the town of Hamden under § 7–465 since that statute, by its plain text, excludes “firemen covered under the provisions of [§ ]7–308.”   Accordingly, any claim for indemnification against the town of Hamden must arise under (Rev. to 2003) § 7–308.

General Statutes (Rev. to 2003) § 7–308 permits a plaintiff to seek indemnification from a municipality for all sums that a firefighter “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 or volunteer ambulance duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman or volunteer ambulance member in the discharge of such duties.”   To maintain a claim under (Rev. to 2003) § 7–308, a plaintiff must commence his or her action “within one year after the cause of action therefor arose.”   Moreover, the plaintiff must serve “notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained ․ with the clerk or corresponding officer of such municipality and with the fireman within six months after such cause of action has accrued.”  Id.

The defendants argue that the plaintiff has failed to comply with both of these requirements and, thus, cannot seek indemnification against the town of Hamden under (Rev. to 2003) § 7–308.   Their first argument—that the plaintiff did not provide proper notice of his intent to commence the present action to the individual firefighters named in the complaint—rests, in large part, on mere assertion.   They do not cite to any evidence in the record that undisputably establishes that the individual firefighters named in the present case did not receive notice of the plaintiff's claim pursuant to (Rev. to 2003) § 7–308.   Instead, they ask the court to infer that fact from the plaintiff's failure to properly name the firefighters in his complaint.   Such an inference falls short of meeting our strict summary judgment standards.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To 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 ․” (Emphasis added;  internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendants' second argument—that the present case was commenced more than one year after the plaintiff's cause of action arose—is more persuasive.   The plaintiff alleges in his complaint that the defendants' allegedly negligent conduct occurred on June 24, 2007;  the plaintiff's decedent died on June 26, 2007;  and the plaintiff was appointed administrator of his estate on September 19, 2007.   Even assuming that the plaintiff's cause of action did not arise until the most recent of these events, the plaintiff's return of service reflects that the present case was not commenced until September 17, 2009, more than one year later.   The plaintiff has offered no argument why this delay should not foreclose his indemnification claims under (Rev. to 2003) § 7–308.   Accordingly, this court concludes that those claims are untimely and that the defendants are entitled to judgment on them.   See LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136 (“summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period” [internal quotation marks omitted] ), cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).

Because the plaintiff cannot maintain a cause of action under § 7–465 or (Rev. to 2003) § 7–308, summary judgment shall enter on counts three and four of the plaintiff's complaint.

III

The defendants next argue that the plaintiff's entire complaint is barred because his claims were filed after the two-year limitations period set forth in § 52–584.   In response, the plaintiff argues that when the ninety-day extension period authorized under § 52–190a(b) is considered, his complaint is timely.

Section 52–190a(b) provides that “[u]pon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section.   This period shall be in addition to other tolling periods.”   The defendants concede that the plaintiff properly petitioned the court for this extension and that his argument is therefore “viable.” ⁹  But they argue that § 52–190a(b) is inapplicable because the plaintiff's written opinion letter is statutorily insufficient.   And without a sufficient opinion letter, the defendants contend, the plaintiff could not have acted with the good faith required to obtain the extension.

As previously discussed in part I of this opinion, the defendants have waived their right to contest the sufficiency of the plaintiff's opinion letter.   Consequently, their argument that § 52–190a(b) does not apply must fail.   When the ninety-day extension provided by § 52–190a(b) is considered, the plaintiff's complaint is timely.

IV

The defendants next contend that the plaintiff cannot recover individually for a claim of wrongful death.   The plaintiff has not responded to this argument.   For the reasons set forth below, it is submitted that although the defendants are correct, their argument fails on procedural grounds.

“[N]o action for wrongful death existed at common law or exists today in Connecticut except as otherwise provided by the legislature.”  Ecker v. West Hartford, 205 Conn. 219, 231, 530 A.2d 1056 (1987).  “General Statutes § 52–555 ¹⁰ creates a cause of action that may be maintained only by an executor or administrator of an estate ․ Death, at common law, is not a recoverable element of damage ․ It is only by reason of statute that a death action is maintainable in Connecticut ․ This statute provides for the bringing of such an action by either an executor or an administrator;  it does not confer on anyone else, including the parents of a decedent, any right to bring such an action individually.”  (Citations omitted;  emphasis added;  footnote added;  internal quotation marks omitted.)  Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600–01, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985).

It is evident from our Appellate Court's analysis in Isaac that the plaintiff is foreclosed from recovering individually for the death of the plaintiff's decedent.   What is not evident, however, is that the defendants are entitled to summary judgment on any of the plaintiff's claims that seek individual recovery.   Consistent with the majority of Superior Court opinions that have addressed this issue, this court concludes that it would be procedurally improper to enter judgment on only those portions of the plaintiff's counts that seek individual recovery while permitting the remainder of the allegations in those counts to survive.  “There is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint.   At the trial court level there is a split of authority on the issue.   A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment.”   Fuller v. Manchester Obstetrics & Gynecology Associates, Superior Court, judicial district of Hartford, Docket No. CV–07–5012261–S (June 3, 2011, Robaina, J.);   see Teachers Ins. & Annuity Ass'n of America v. Water Pollution Control Authority, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–05–4007101–S (November 15, 2007, Tobin, J.) (“Neither party has cited any authority for their respective attempts to isolate a single issue ․ and resolve it on a motion for summary judgment.   The court concludes that, to the extent the issue has been considered, Connecticut courts have rejected such attempts”).

In the present case, the plaintiff has set forth, within the same count, claims for individual recovery as well as claims seeking recovery as the administrator of the estate of the plaintiff's decedent.   As discussed in the preceding paragraph, this court cannot grant summary judgment on only a portion of a count.   Accordingly, the defendants' motion for summary judgment, to the extent that it seeks judgment on only those claims seeking recovery as an individual, must be denied.

V

The defendants next argue that the plaintiff's claims are barred by § 52–557b, the “Good Samaritan Law.” More specifically, the defendants contend that under § 52–557b, the firefighters who provided emergency care to the plaintiff's decedent are immune from all claims of negligence arising out of their care.

The plaintiff argues in response that although § 52–557b shields emergency care providers from claims arising out of negligent conduct, it does not shield them from claims arising out of grossly negligent conduct.   The plaintiff further contends that the question whether the defendants' conduct was grossly negligent is one of fact for the jury to decide.   Accordingly, the plaintiff contends that summary judgment must be denied.

Section 52–557b(b) provides, in relevant part:  “A paid ․ firefighter ․ 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,¹¹ 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 immunity provided in this subsection does not apply to acts or omissions constituting gross, wilful or wanton negligence.”  (Footnote added.)

As the plaintiff notes, the terms of the statute expressly provide that immunity does not apply to “acts or omissions constituting gross ․ negligence.”  Id. The defendants contend that two reasons preclude the plaintiff from relying on this exception.   First, the plaintiff has pleaded only ordinary negligence.   And second, even if the plaintiff were to plead gross negligence, the defendants' conduct did not rise to that level.   Each of these arguments will be discussed in sequence.

A

With respect to the defendants' first argument, our common law has “never recognized degrees of negligence as slight, ordinary, and gross in the law of torts.”  (Internal quotation marks omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 833 n.10, 836 A.2d 394 (2003);  see Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939) (same);  see also Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 337, 885 A.2d 734 (2005) (“Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability”).   Consequently, were the plaintiff to plead a claim of gross negligence, as the defendants imply he must, he risks having that claim stricken by the court as legally insufficient.   See Wattman v. New Hartford Volunteer Fire Dept., Superior Court, judicial district of Waterbury, Docket No. CV–00–0156795–S (October 10, 2001, Rogers, J.) (30 Conn. L. Rptr. 554, 556) (striking claim of gross negligence brought against defendant ambulance employees);  Croteau v. American Medical Response of Connecticut, Superior Court, judicial district of New Haven, Docket No. CV–97–0256039–S (July 22, 1997, DiPentima, J.) (“[the purpose of § 52–557b] is to confer immunity and not to create a cause of action and ․ under the established case law, no action for ‘gross negligence’ is recognized in Connecticut”);  Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 321879 (January 2, 1997, Moraghan, J.) (18 Conn. L. Rptr. 539, 541) (“the court is most reluctant to interpret [§ ]52–557b(b) as creating or permitting a cause of action in gross negligence in derogation of the common law rule prohibiting such a cause of action”).   For obvious reasons, the defendants cannot reasonably insist that the plaintiff plead a cause of action that is not viable at common law in order to pursue his claims.

The plaintiff's alternative, given that Connecticut does not recognize individual gradations of negligence as separate bases of liability, is to simply allege a claim of negligence without denominating that claim as slight, ordinary, or gross.   At first glance, this conclusion may appear to be at odds with the language of § 52–557b(b), which utilizes the terms “ordinary” and “gross” to delineate the scope of immunity provided by the statute.   But a number of factors indicate that the terms “ordinary” and “gross” do not refer to the cause of action pleaded, but the conduct of the defendants as set forth within a claim of negligence.

“[T]he legislature is presumed to be aware of prior judicial decisions involving common-law rules”;  (internal quotations marks omitted) Considine v. Waterbury, 279 Conn. 830, 844, 905 A.2d 70 (2006);  and “to have created a harmonious and consistent body of law.”  (Internal quotations marks omitted.)   Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003).   In light of these principles, it is difficult to interpret the legislature's use of the terms “ordinary” and “gross” as referring to distinct causes of action since, under our common law, those causes of action do not exist.   Moreover, a court must “construe a statute in a manner that will not thwart its intended purpose or lead to absurd results”;  (internal quotation marks omitted) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 686, 986 A.2d 290 (2010);  and it would be both absurd and unworkable to conclude that the legislature intended to deny immunity for claims that do not exist.   Such a construction would similarly render the terms “ordinary” and “gross” essentially superfluous and, thus, violate the tenant of statute construction that “[a] statute must be interpreted to give effect to all its provisions ․ [and n]o word within a statute is to be rendered mere surplusage.”  (Citations omitted;  internal quotation marks omitted.)  Germain v. Manchester, 135 Conn.App. 202, 209, 41 A.3d 1100 (2012).

It could be argued that the legislature's use of these terms indicates an intent to create new causes of action.   But it is well established that “[n]o statute is to be construed as altering the common law, farther than its words import [and ․ a statute] is not to be construed as making any innovation upon the common law which it does not fairly express.”  (Internal quotations marks omitted.)  Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532, 839 A.2d 1250 (2004).   Thus, § 52–557b(b) “must contain explicit language in order to create a cause of action in gross negligence, not implicit or implied language.”  Wattman v. New Hartford Volunteer Fire Dept., supra, 30 Conn. L. Rptr. 556.   It is evident from the language of § 52–557b(b), however, that it “does not explicitly create a cause of action for gross negligence.”   Wattman v. New Hartford Volunteer Fire Dept., supra, 30 Conn. L. Rptr. 556.

Because § 52–557b(b) does not explicitly create a cause of action in gross negligence, it follows that the term “gross” refers to something else.   The language of § 52–557b(b) is instructive in resolving this issue, and indicates that it is the severity of a defendant's overall conduct that must be analyzed, rather than the label placed on the cause of action brought by the plaintiff.

The statute states that covered individuals are immune from liability for “acts or omissions by such person ․ which may constitute ordinary negligence” but are not immune from “acts or omissions constituting gross ․ negligence.”  (Emphasis added.)  Id. The question whether a defendant's conduct constitutes gross negligence is one our courts have addressed before.   In Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005), our Supreme Court reiterated the principle that in a medical malpractice case, “[e]xpert opinion may ․ be excused in those cases where the professional negligence is so gross as to be clear even to a lay person.”   (Emphasis added;  internal quotations marks omitted.)   The Boone court then concluded that “the conduct of the defendant's personnel in diagnosing and treating the decedent d[id] not meet the high threshold of egregiousness necessary to fall within the gross negligence exception.”  (Emphasis added.)   Id., 568.¹²

There appears no evident basis why the exception applied in Boone cannot be applied under § 52–557b(b).  The plaintiff is constrained by our common law to plead a cause of action in negligence.   The defendants' argument notwithstanding, there is no cause of action in gross negligence for him to plead.   But if he proves that the defendants' conduct ultimately constituted gross negligence, he may avail himself of the exception to the immunity normally granted to firefighters under the statute.   The court next addresses the defendants' argument that the firefighters' conduct fails to meet that standard, as a matter of law.

B

The defendants aver that the conduct alleged in the plaintiff's complaint fails to rise to the level of gross negligence.   The plaintiff responds that this is a question of fact for the jury.   The plaintiff's argument is more persuasive.

Our Supreme Court has defined gross negligence as “very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or slight diligence ․ [T]his court has construed gross negligence to mean no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically [wilful] in its nature ․ Gross negligence means more than momentary thoughtlessness, inadvertence or error of judgment;  hence, it requires proof of something more than the lack of ordinary care.   It implies an extreme departure from the ordinary standard of care, aggravated disregard for the rights and safety of others, or negligence substantially and appreciably greater than ordinary negligence ․” (Citations omitted;  internal quotation marks omitted) 19 Perry Street, LLC v. Unionville Water Co., supra, 294 Conn. 631 n.11.

A review of the record reveals that the following facts remain in dispute:  whether the firefighters who tended to the plaintiff's decedent were advised by the plaintiff not to remove the tracheostomy tube before they did;  whether the scope of practice or protocols applicable to emergency medical technicians permit them to remove tracheostomy tubes; ¹³  whether the firefighters who tended to the plaintiff's decedent were trained to properly remove or reinsert tracheostomy tubes;  and whether the firefighters tending to the plaintiff's decedent promptly communicated to the paramedics who arrived to treat him that his tracheostomy tube had been removed and reinserted.

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner ․ Summary judgment is particularly ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation.”  (Citations omitted;  internal quotation marks omitted.)  Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004).

In light of the unresolved factual issues discussed in the preceding paragraphs, this court cannot say, as a matter of law, that the defendants' conduct was not grossly negligent.   Accordingly, the defendants' arguments in favor of immunity under § 52–557b(b) fail.

VI

The defendants' final argument is that the defendants named in counts one and two are shielded by governmental immunity and, thus, are entitled to judgment on those counts.   The plaintiff contends in response that the defendants have failed to meet their evidentiary burden of establishing their entitlement to governmental immunity.   The plaintiff further argues that even if the defendants would be entitled to governmental immunity, the identifiable victim, imminent harm exception precludes them from invoking that immunity.   For the reasons set forth below, this court finds that a genuine issue of material fact exists with regard to whether the defendants' conduct falls within the identifiable person, imminent harm exception to governmental immunity.   Accordingly, on this basis, summary judgment is denied.

“The [common-law] doctrines that determine the tort liability of municipal employees are well established ․ Generally, a municipal employee is liable for the mis-performance 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 ․

“Municipal officials are immunized 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 ․ 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 ․ 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 ․ This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts ․

“There are 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 ․ First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure ․ 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 ․ 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 ․

“The tort liability of a municipality has been codified in [General Statutes] § 52–557n.  Section 52–557n(a)(1) provides that ‘[e]xcept 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 ․’ Section 52–557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by ‘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.’   “ (Citations omitted;  internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318–20, 907 A.2d 1188 (2006).

In the present case, the plaintiff argues that the defendants have the burden of showing that Davis' and Dolan's treatment of the plaintiff's decedent was discretionary.   More specifically, the plaintiff argues that the defendants bear the burden of showing that there were no policies or directives that limited their treatment.   Our case law reflects, however, that when an act or omission alleged in a complaint necessarily involves the exercise of discretion, a duty will only be found to be ministerial if evidence of a policy or rule limiting that discretion is offered.   See Bonington v. Westport, 297 Conn. 297, 307–08, 999 A.2d 700 (2010) (“[T]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ․ § 52–557n(a)(2)(B), 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] );  Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010) (“for the purposes of § 52–557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists”).

In the present case, the plaintiff has alleged that the defendants were negligent in the provision of emergency medical care.   This court agrees that “[t]he provision of emergency medical services to members of the public is a discretionary act.”  Glorioso v. Burlington Police Dept., 49 Conn.Sup. 200, 205, 867 A.2d 160 (2004) [38 Conn. L. Rptr. 364].   Accordingly, the acts and omissions alleged in the plaintiff's complaint will only be deemed ministerial upon a showing that a policy or other directive limited the firefighters in their performance of those acts or omissions.

The plaintiff attempts to demonstrate that the defendants' duties were ministerial in nature by offering the report of Arthur Romano, a paramedic who reviewed various documents pertaining to the plaintiff's claims, including medical records, incident reports, and deposition transcripts.   Romano concludes in his report that the firefighters who treated the plaintiff's decedent acted outside their scope of practice when they removed and reinserted his tracheostomy tube.   The plaintiff argues that this conclusion establishes that the firefighters did not have discretion to remove the tube.   This argument fails for at least two reasons.

First, Romano provides no support in his report for his conclusion that the firefighters who treated the plaintiff's decedent exceeded their scope of practice.   He does not submit or reference any standards, guidelines, or regulations that define the scope of practice for an emergency medical technician, nor does he attempt to set forth an adequate explanation of the scope himself.   His report is comprised almost entirely of his own unsupported analysis, and that, by itself, is insufficient to create a genuine issue of material fact.

Second, Romano's report is neither certified nor accompanied by an authenticating affidavit.  “[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citations omitted;  internal quotation marks omitted.)  Bruno v. Geller, 136 Conn.App. 707, 714–15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012);  see Boutote v. Deerfield Realty Co., Superior Court, judicial district of New Haven, Docket No. CV–10–6015850–S (November 1, 2012, Wilson, J.) (54 Conn. L. Rptr. 884, 886) (“[T]he plaintiff failed to either attach an affidavit attesting to the truth and accuracy or to provide certified copies of the experts' report.   Consequently, the experts' report is not properly authenticated and is, therefore, inadmissible evidence”).

The plaintiff argues, nonetheless, that the deposition transcripts of Davis and Dolan establish that they each had limitations placed on their care and, thus, their treatment of the plaintiff's decedent was ministerial in nature.   The plaintiff, however, offers no citations to any specific portions of Davis' or Dolan's deposition testimony to support his conclusion, and instead cites to the entire deposition transcripts of both individuals, which combined total over 150 pages.   See Pl.'s Obj. Defs.' Mot. Summ. J 30.

It is plainly unreasonable to place the onus on the court to sift through the entirety of two deposition transcripts, unguided by any citations, to locate where the relevant facts opposing summary judgment might be found.   Indeed, the court in Grant v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV–99–0430454 (March 27, 2007, Licari, J.), declined such an invitation:  “[Submitting a] lengthy transcript of [the plaintiff's] entire deposition testimony, without references to specific facts in the memorandum of law, will require the court to review the entire transcript and ferret out the required evidence of specific facts that would allow [the plaintiff] to oppose summary judgment successfully.   The court declines to undertake this burden ․” Thus, this court finds that by failing to adequately brief his argument that the deposition testimony of the firefighters establishes that their duties were ministerial, the plaintiff has waived that argument.

This court concludes the acts and omissions alleged in the plaintiff's complaint necessarily required the exercise of judgment and, thus, were discretionary.   The plaintiff has offered no evidence of a policy or directive limiting that discretion.   Accordingly, the defendants are entitled to governmental immunity unless the court determines that a genuine issue of material fact exists with respect to the plaintiff's claim that the defendants' negligence subjected an identifiable victim to imminent harm.

A municipality and its employees will not be entitled to governmental immunity when “the circumstances make it apparent to [a] public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Merritt v. Bethel Police Dept., 120 Conn.App. 806, 812, 993 A.2d 1006 (2010).  “To prevail, the plaintiff must demonstrate that [the plaintiff's decedent] was an identifiable person and was subject to imminent harm and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to h[im] ․ The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Chirieleison v. Lucas, 144 Conn.App. 430 441 (2013).   “[T]he identifiable person, imminent harm common-law exception to municipal employees' qualified immunity also applies in an action brought directly against municipalities pursuant to § 52–557n(a)(1)(A), regardless of whether an employee or officer of the municipality also is a named defendant.”   Grady v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (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 ․ For the harm to be deemed imminent, the potential for harm must be sufficiently immediate.   In fact, the criteria of identifiable person and imminent harm must be evaluated with reference to each other.   An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm.   Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person ․ For the purposes of the imminent harm exception ․ it is impossible to be an identifiable person in the absence of any corresponding imminent harm.”  (Citations omitted;  internal quotation marks omitted.)   Cotto v. Board of Education, 294 Conn. 265, 275–76, 984 A.2d 58 (2009).

With respect to the first two elements of the exception, the record in the present case contains evidence from which a reasonable fact-finder could conclude that the plaintiff's decedent was subjected to a harm that was limited both temporally and geographically.   The parties have submitted evidence that the allegedly negligent acts or omissions took place on the plaintiff's property over a brief period of time.   They have also submitted evidence that the victim of this harm was individually known to the firefighters who tended to him.

The final prong of the exception—whether it was apparent to the firefighters that their conduct would subject the plaintiff's decedent to imminent harm—necessarily entails some inquiry into their state of mind.  “[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  (Internal quotation marks omitted.)  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).   Although it is true that “[t]he summary judgment rule would be rendered sterile ․ if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion”;  (internal quotation marks omitted) Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 603, 999 A.2d 741 (2010);  in the present case, the defendants have not established that it is an undisputed fact that it was not apparent to the firefighters who treated the plaintiff's decedent that their acts or omissions would subject him to imminent harm.

The defendants' reliance on Glorioso v. Burlington Police Dept., supra, 49 Conn.Sup. 205–09, is misplaced.   In Glorioso, the court concluded that “[t]he exception [wa]s inapplicable ․ because the decedent was not identifiable and the harm was not imminent.”  Id., 207.   As previously discussed, the evidence in the present case does not constrain a fact-finder to reach the same conclusion.   Moreover, the Glorioso court relied on our Supreme Court's opinion in Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004), in concluding that a plaintiff could not assert the identifiable person, imminent harm exception against a municipality.   But that aspect of Pane was overruled in Grady v. Summers, supra, 294 Conn. 349, when the court “conclude[d] that the identifiable person, imminent harm exception to employees' qualified immunity applies to the immunity afforded to municipalities for the negligent performance of discretionary acts under § 52–557n(a)(2)(B).”

The defendants' final argument in opposition to the exception—that it only applies to failures to act, rather than affirmative acts—is equally without merit.   The defendants read our case law hypertechnically in construing the phrase “failure to act” as only applying to omissions.   As the court in Grady observed, it is the failure to act with reasonable care that triggers the exception.   See Grady v. Somers, supra, 294 Conn. 351 (“[i]n delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim” [emphasis added;  internal quotation marks omitted] ).   Moreover, in Colon v. New Haven, 60 Conn.App. 178, 187–88, 758 A.2d 900 (2000), our Appellate Court concluded that the exception was applicable to a teacher's affirmative act of striking a student with a door while opening it.

Accordingly, the defendants have failed to demonstrate that no genuine issue of material fact exists with respect to their claim of governmental immunity.

CONCLUSION

For the forgoing reasons, the defendants' motion for summary judgment is granted with respect to counts three and four, and denied with respect to counts one and two.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. The plaintiff's initial complaint, which was served on the defendants on September 17, 2009, originally named the following individuals as defendants:  “Captain Evers,” “Lt. Bannon,” “F/F Deline,” “F/F Defronzo,” “Captain DeBurra,” “Lt. Grasso,” “F/F Barletta,” “F/F Mikolinski,” “F/F O'Callaghan,” “Captain Harris,” “F/F Davis,” “F/F Lunn,” “F/F Wood,” “Captain Desrosches,” “Lt. Lopes,” “F/F Matthews,” “F/F Osiecki,” and the town of Hamden.   On April 19, 2012, the plaintiff withdrew his complaint against all defendants except the town of Hamden and “F/F Davis.”   Despite having apparently ascertained the full name of “F/F Davis” during discovery;  see Pl.'s Ex. D;  the plaintiff has not amended his complaint to properly identify him.   For the sake of clarity, “F/F Davis” will hereafter be referred to by his last name..  FN1. The plaintiff's initial complaint, which was served on the defendants on September 17, 2009, originally named the following individuals as defendants:  “Captain Evers,” “Lt. Bannon,” “F/F Deline,” “F/F Defronzo,” “Captain DeBurra,” “Lt. Grasso,” “F/F Barletta,” “F/F Mikolinski,” “F/F O'Callaghan,” “Captain Harris,” “F/F Davis,” “F/F Lunn,” “F/F Wood,” “Captain Desrosches,” “Lt. Lopes,” “F/F Matthews,” “F/F Osiecki,” and the town of Hamden.   On April 19, 2012, the plaintiff withdrew his complaint against all defendants except the town of Hamden and “F/F Davis.”   Despite having apparently ascertained the full name of “F/F Davis” during discovery;  see Pl.'s Ex. D;  the plaintiff has not amended his complaint to properly identify him.   For the sake of clarity, “F/F Davis” will hereafter be referred to by his last name.

FN2. General Statutes § 7–465 states, in relevant part:  “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7–308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a–601, 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.”.  FN2. General Statutes § 7–465 states, in relevant part:  “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7–308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a–601, 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.”

FN3. General Statutes (Rev. to 2003) § 7–308 states, in relevant part:  “Each municipality of this state, notwithstanding any inconsistent provision of law, general, special or local, or any limitation contained in the provisions of any charter, 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 or volunteer ambulance member by law for damages to person or property, if the fireman or volunteer ambulance member, at the time of the occurrence, accident, injury or damages complained of, was performing fire or volunteer ambulance duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman or volunteer ambulance member in the discharge of such duties ․ No action or proceeding instituted pursuant to the provisions of this section shall be prosecuted or maintained against the municipality or fireman unless at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the clerk or corresponding officer of such municipality.   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 therefor 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.”.  FN3. General Statutes (Rev. to 2003) § 7–308 states, in relevant part:  “Each municipality of this state, notwithstanding any inconsistent provision of law, general, special or local, or any limitation contained in the provisions of any charter, 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 or volunteer ambulance member by law for damages to person or property, if the fireman or volunteer ambulance member, at the time of the occurrence, accident, injury or damages complained of, was performing fire or volunteer ambulance duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman or volunteer ambulance member in the discharge of such duties ․ No action or proceeding instituted pursuant to the provisions of this section shall be prosecuted or maintained against the municipality or fireman unless at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the clerk or corresponding officer of such municipality.   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 therefor 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.”

FN4. General Statutes § 52–584 states:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”.  FN4. General Statutes § 52–584 states:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

FN5. General Statutes § 52–557b states, in relevant part:  “A paid or volunteer firefighter ․ 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 immunity provided in this subsection does not apply to acts or omissions constituting gross, wilful or wanton negligence.”.  FN5. General Statutes § 52–557b states, in relevant part:  “A paid or volunteer firefighter ․ 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 immunity provided in this subsection does not apply to acts or omissions constituting gross, wilful or wanton negligence.”

FN6. General Statutes § 52–557n states, 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;  and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance;  provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a–149.  (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:  (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or 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.”.  FN6. General Statutes § 52–557n states, 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;  and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance;  provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a–149.  (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:  (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or 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.”

FN7. Because it is submitted that the defendants have waived their right to challenge the plaintiff's written opinion letter, the court need not address the plaintiff's argument that the letter is statutorily sufficient..  FN7. Because it is submitted that the defendants have waived their right to challenge the plaintiff's written opinion letter, the court need not address the plaintiff's argument that the letter is statutorily sufficient.

FN8. General Statutes § 7–308 was amended by No. 11–243 of the 2011 Public Acts to exclude paid firefighters from its scope.   But this change was intended to be prospective, not retroactive.   See Nichol–Buddoo v. Cox, Superior Court, judicial district of Fairfield, Docket No. CV–11–6021631 (October 26, 2012, Tyma, J.) (54 Conn. L. Rptr. 878, 879–80).   Accordingly, the plaintiff's claims must be “analyzed under the predecessor statute, (Rev. to 2003) § 7–308.”  Id., 880..  FN8. General Statutes § 7–308 was amended by No. 11–243 of the 2011 Public Acts to exclude paid firefighters from its scope.   But this change was intended to be prospective, not retroactive.   See Nichol–Buddoo v. Cox, Superior Court, judicial district of Fairfield, Docket No. CV–11–6021631 (October 26, 2012, Tyma, J.) (54 Conn. L. Rptr. 878, 879–80).   Accordingly, the plaintiff's claims must be “analyzed under the predecessor statute, (Rev. to 2003) § 7–308.”  Id., 880.

FN9. See Defs.' Mem. Law Supp. Mot. Summ. J. 19..  FN9. See Defs.' Mem. Law Supp. Mot. Summ. J. 19.

FN10. General Statutes § 52–555 provides, in relevant part:  “In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.”.  FN10. General Statutes § 52–555 provides, in relevant part:  “In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.”

FN11. It is questionable whether the defendants have demonstrated that they meet the educational qualifications necessary to invoke the immunity offered by § 52–557b(b).  Although they have provided evidence that Davis and Dolan were both emergency medical technicians certified by the Department of Public Health at the time they provided medical care to the plaintiff's decedent, it is not apparent that an individual has necessarily completed a course in first aid offered by any of the agencies listed in the statute simply because he or she is a certified emergency medical technician.   In fact, § 19a–179–16a(b)(1) of the Regulations of Connecticut State Agencies sets forth at least three avenues for obtaining initial certification as an emergency medical technician, and it is not clear that all of them require that an individual obtain first aid training from the agencies listed in the statute.   See Hansen v. Mohegan Fire Co., Inc., Superior Court, judicial district of Norwich, Docket No. CV–96–0111388–S (October 1, 2001, Corradino, J.) (30 Conn. L. Rptr. 572, 576) (“[T]aking a ‘course in first aid’ is not enough under § 52–557b(b).  The course under the statutory language must be 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”).   It may be true—and even likely—that training as an emergency medical technician necessarily involves completing a course in first aid, but on a motion for summary judgment, it is the defendants' burden to establish their entitlement to the immunity offered by § 52–557b(b) beyond dispute.   In any event, it is submitted that the court need not determine whether Davis or Dolan met the educational requirements set forth in § 52–557b(b) in order to decide the defendants' motion..  FN11. It is questionable whether the defendants have demonstrated that they meet the educational qualifications necessary to invoke the immunity offered by § 52–557b(b).  Although they have provided evidence that Davis and Dolan were both emergency medical technicians certified by the Department of Public Health at the time they provided medical care to the plaintiff's decedent, it is not apparent that an individual has necessarily completed a course in first aid offered by any of the agencies listed in the statute simply because he or she is a certified emergency medical technician.   In fact, § 19a–179–16a(b)(1) of the Regulations of Connecticut State Agencies sets forth at least three avenues for obtaining initial certification as an emergency medical technician, and it is not clear that all of them require that an individual obtain first aid training from the agencies listed in the statute.   See Hansen v. Mohegan Fire Co., Inc., Superior Court, judicial district of Norwich, Docket No. CV–96–0111388–S (October 1, 2001, Corradino, J.) (30 Conn. L. Rptr. 572, 576) (“[T]aking a ‘course in first aid’ is not enough under § 52–557b(b).  The course under the statutory language must be 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”).   It may be true—and even likely—that training as an emergency medical technician necessarily involves completing a course in first aid, but on a motion for summary judgment, it is the defendants' burden to establish their entitlement to the immunity offered by § 52–557b(b) beyond dispute.   In any event, it is submitted that the court need not determine whether Davis or Dolan met the educational requirements set forth in § 52–557b(b) in order to decide the defendants' motion.

FN12. There are a number of other instances in our case law where a party must establish the presence or absence of gross negligence in order to obtain some result under the law, even though a cause of action in gross negligence is not asserted.   See Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 46–47, 12 A.3d 885 (2011) (“when a medical malpractice action has been dismissed pursuant to [General Statutes] § 52–192a(c) for failure to supply an opinion letter by a similar health care provider required by § 52–190a(a), a plaintiff may commence an otherwise time barred new action pursuant to the matter of form provision of § 52–592(a) only if that failure was caused by a simple mistake or omission, rather than egregious conduct or gross negligence attributable to the plaintiff or his attorney” [emphasis added] );  19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 630, 987 A.2d 1009 (2010) (“Equitable principles barring forfeitures may apply to summary process actions for nonpayment of rent if:  (1) the tenant's breach was not [wilful] or grossly negligent;  (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord;  and (3) the landlord's injury is reparable.”  [Emphasis added;  internal quotation marks omitted.] ).   The court in 19 Perry Street, LLC went on to define “gross negligence” in a footnote.   See 19 Perry Street, LLC v. Unionville Water Co., supra, 294 Conn. 631 n.11.Moreover, our courts have recognized that an act or omission that constitutes negligent conduct may also constitute reckless conduct.   See Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003) (plaintiff could predicate claims of negligence and recklessness on same allegations provided court and opposing counsel had notice which cause of action was asserted);  Warren v. Connecticut Community for Addiction Recovery, Inc., Superior Court, judicial district of Windham, Docket No. CV–09–5005416–S (September 15, 2010, Riley, J.) (“[a] claim for recklessness cannot survive without a foundation in negligence”).   It follows from this that an act or omission that constitutes negligence could also constitute gross negligence, even if only asserted as part of a negligence claim..  FN12. There are a number of other instances in our case law where a party must establish the presence or absence of gross negligence in order to obtain some result under the law, even though a cause of action in gross negligence is not asserted.   See Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 46–47, 12 A.3d 885 (2011) (“when a medical malpractice action has been dismissed pursuant to [General Statutes] § 52–192a(c) for failure to supply an opinion letter by a similar health care provider required by § 52–190a(a), a plaintiff may commence an otherwise time barred new action pursuant to the matter of form provision of § 52–592(a) only if that failure was caused by a simple mistake or omission, rather than egregious conduct or gross negligence attributable to the plaintiff or his attorney” [emphasis added] );  19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 630, 987 A.2d 1009 (2010) (“Equitable principles barring forfeitures may apply to summary process actions for nonpayment of rent if:  (1) the tenant's breach was not [wilful] or grossly negligent;  (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord;  and (3) the landlord's injury is reparable.”  [Emphasis added;  internal quotation marks omitted.] ).   The court in 19 Perry Street, LLC went on to define “gross negligence” in a footnote.   See 19 Perry Street, LLC v. Unionville Water Co., supra, 294 Conn. 631 n.11.Moreover, our courts have recognized that an act or omission that constitutes negligent conduct may also constitute reckless conduct.   See Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003) (plaintiff could predicate claims of negligence and recklessness on same allegations provided court and opposing counsel had notice which cause of action was asserted);  Warren v. Connecticut Community for Addiction Recovery, Inc., Superior Court, judicial district of Windham, Docket No. CV–09–5005416–S (September 15, 2010, Riley, J.) (“[a] claim for recklessness cannot survive without a foundation in negligence”).   It follows from this that an act or omission that constitutes negligence could also constitute gross negligence, even if only asserted as part of a negligence claim.

FN13. Although the defendants argue that, per Davis' deposition testimony, protocols applicable to emergency medical technicians do not address the removal of tracheostomy tubes, it is not clear whether this apparent silence should be construed as permitting emergency medical technicians to perform such procedures or whether it should be construed as prohibiting them from performing such procedures.   Because the defendants have failed to clarify this ambiguity, the issue remains one of fact for the jury..  FN13. Although the defendants argue that, per Davis' deposition testimony, protocols applicable to emergency medical technicians do not address the removal of tracheostomy tubes, it is not clear whether this apparent silence should be construed as permitting emergency medical technicians to perform such procedures or whether it should be construed as prohibiting them from performing such procedures.   Because the defendants have failed to clarify this ambiguity, the issue remains one of fact for the jury.

Nazzaro, John J., J.