Anthony J. Pellecchia v. Connecticut Light & Power Company et al. (2013)

MEMORANDUM OF DECISION ON QVEC's MOTION FOR SUMMARY JUDGMENT (# 398)

This matter is before this court on the defendant Quinebaug Valley Emergency Communications, Inc.'s, (“QVEC”) motion for summary judgment on count five of the original complaint dated May 20, 2008.   QVEC moves for summary judgment on the following grounds:  (1) QVEC did not owe a legal duty to the decedent, (2) the plaintiff cannot recover against QVEC in negligence because QVEC is a public entity and any duty it owed was to the general public, not the individual decedent, and (3) as a public entity, QVEC is entitled to governmental immunity because it was acting at all relevant times in its official capacity and in the exercise of its discretion.   The plaintiff has objected to QVEC's motion, arguing that “the summary judgment should not be granted based upon the relevant law because as a matter of law a genuine issue of fact [exists].”

FACTS

The decedent, Anthony E. Pellecchia, was killed when his motorcycle struck a downed power line on Mashentuck Road in Killingly.   The plaintiff, Anthony J. Pellecchia, is the administrator of the decedent's estate and brings this negligence action against the sole remaining defendant, Quinebaug Valley Emergency Communications, Inc. (QVEC).  In the fifth count of his complaint, the plaintiff alleges that:  (a) QVEC was negligent for failing to notify Connecticut Light & Power (CL & P) of the downed wire in a timely fashion;  (b) QVEC failed to adequately train its employees in proper notification procedures;  (c) QVEC breached its duty to use a priority level emergency response system for responding to downed power lines;  (d) QVEC breached its duty as an agent of CL & P regarding notification;  (e) QVEC failed to communicate the need for an electrical line crew to address the downed power lines;  (f) QVEC failed to treat calls related to the downed line that killed the plaintiff's decedent as a top priority;  (g) QVEC failed to conclude that the subject power line caused an imminent threat to the safety of persons in its proximity;  (h) QVEC failed to communicate the true nature of downed line to CL & P;  and (i) QVEC failed to keep members of the public, including the decedent, informed as to when the downed line would be de-energized.

The evidence relating to the plaintiffs' claims against QVEC, viewed in a light most favorable to the plaintiff, are as follows.   QVEC is a regional emergency telecommunications center formed pursuant to General Statutes § 28–24 et al.   See Defendant's Memorandum of Law in Support of Summary Judgment, p. 4.¹ It receives, on a 24–hour basis, 9–1–1 calls and is responsible for dispatching emergency response services or relaying said emergency calls to the appropriate public safety entities.  Id. QVEC's services are provided to the following towns:  Killingly, Scotland, Woodstock, Plainfield, Canterbury, Brooklyn, Thomson, Sprague, Lisbon, Pomfret, Griswold, Hampton, Chaplin, Putnam, Eastford, Voluntown and Sterling.  Id. In addition to dispatching emergency response services, QVEC has also voluntarily undertaken to provide notification to Connecticut Light & Power (“CL & P”) of certain dangers and problems concerning their equipment.  Id., 6.

CL & P has its own priority system that is used by public safety dispatchers.  Id. Different 800 numbers are assigned to different priority calls.   Priority one calls are defined as calls involving imminent danger/death.  Id. Priority two calls are defined as those involving hindering operations, but not life threatening.  Id. Priority three calls involve electrical hazards but no immediate threat to life or property.  Id. QVEC's adopted practice in 2006 was that it would use the 800 number with respect to priority one calls.  Id. Pursuant to QVEC's guidelines, if it received multiple calls during a bad storm, as happened here, priority two or three calls would be compiled, and then, the locations of said downed power lines would be faxed to CL & P. Id.

On the night of the accident, a powerful storm passed through northeastern Connecticut.  Id. At approximately 6:15 p.m., a member of the public notified QVEC of a downed power line on Mashentuck Road. Id. At approximately 6:23 p.m., Anthony Shippee, Assistant Highway Superintendent for Killingly, also contacted QVEC about downed power lines on Mashentuck Road. Id., 7. At approximately 6:30 p.m., CL & P was notified of the downed power lines on Mashentuck Road. Id. The Town highway department placed orange cones at the intersection of Cook Hill Road and Mashentuck Road and also at the intersection of Coomer Hill Road and Mashentuck Road. Id. At approximately 8:28 p.m., QVEC attempted to fax a list of the reported downed power lines to CL & P, however, the fax did not go through as it had faxed it to the wrong fax number.  Id. At approximately 8:43 p.m., QVEC dispatched the East Killingly Fire Department to Mashentuck Road. Id. Anthony Shippee was also present at the scene.  Id. He again contacted QVEC at approximately 8:58 p.m. to inquire if CL & P had been contacted and was advised that a list of downed power lines had been sent to CL & P. Id. When Shippee left the scene, each end of Mashentuck Road was blocked off with orange cones.  Id. At approximately 9:28 p.m., the East Killingly Fire Department also left the scene.  Id. At that time, each end of Mashentuck Road was still blocked off by the cones.  Id. At 9:21 p.m., QVEC faxed an updated list of the location of downed power lines to CL & P but this fax also did not go through as the wrong fax number was being used.  Id. At 11:06 p.m., QVEC received a 9–1–1 call regarding the decedent, who had apparently driven his motorcycle through the orange cones at the intersection of Cook Hill Road and Mashentuck Road and contacted the downed power lines.  Id.

Standard of Review

“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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Citations and internal quotation marks omitted.)  Liberty Mut. Ins. v. Lone Star Indus., Inc,. 290 Conn. 767, 787, 967 A.2d 1 (2009).  “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  Home Ins. Co v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

Discussion

Initially, QVEC claims that it did not owe a legal duty to the plaintiff's decedent.   Specifically, QVEC argues that, as a matter of public policy, a duty should not extend to the decedent.   QVEC also contends that the harm that befell the decedent was not a foreseeable consequence of its actions.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Contained within the first element, duty, there are two distinct considerations ․ First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty ․ The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant ․

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ Although it has been said that no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.   The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ․ By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable ․ [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.”  (Citations omitted;  internal quotation marks omitted.)  Sic v. Nunan, 307 Conn. 399, 406–08, 54 A.3d 553 (2012).

A. Foreseeability

QVEC argues that the harm that befell Pellecchia was not foreseeable.²  It contends that the conduct of Pellecchia, in ignoring traffic cones placed across Mashentuck Road, among other factors, is too remote and attenuated from QVEC's own conduct to impose a legal duty.   Specifically, QVEC argues that “[i]t was simply not foreseeable to QVEC as a matter of law that if it did not notify CL & P in a timely fashion that the decedent, [Pellecchia], would contact the downed power lines and be electrocuted.”   Def.'s Mot. Sum. J. Brief at 12.

QVEC's foreseeability argument is unavailing.   An ordinary person in QVEC's position, knowing that there was a downed power line on Mashentuck Road and having received calls about the downed line throughout the day and into the evening, when visibility would be impaired, should have anticipated that an individual traveling along that road could come in contact with the downed line, resulting in injury or death.   Furthermore, a reasonable person in QVEC's position should have anticipated that the chance of an accident occurring would increase the longer CL & P remained uninformed of the downed line.   This would be particularly true as the storm moved away and the probability of travelers on the road increased.

Moreover, QVEC's attenuation argument essentially contends that its conduct could not have proximately caused the harm that befell Pellecchia.  “[T]he issue of proximate causation [however] is ordinarily a question of fact for the trier ․ Conclusions of proximate cause are to be drawn by the jury and not by the court ․ It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion;  if there is room for a reasonable disagreement, the question is one to be determined by the trier as a matter of fact.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 558, 51 A.3d 367 (2012).   Viewing the evidence in a light most favorable to the plaintiff, there clearly is room for a reasonable disagreement as to whether Pellecchia's death was caused by the activities of QVEC or his own conduct.

B. Public Policy

QVEC also argues that it did not owe a legal duty to Pellecchia as matter of public policy.   QVEC contends that if it “is not cloaked with immunity while performing general dispatch services to the general public which are not statutorily required, it will be subject to a whole new legal exposure.”   (Emphasis added.)   Def.'s Mot. Sum. J. Brief at 11.   According to QVEC, if it can be liable in negligence for failing to notify CL & P of downed lines, it and other 9–1–1 servicers will stop providing that valuable service, thereby exposing the public to greater harm.

A voluntary or gratuitous undertaking may impose a duty to exercise reasonable care.   See, e.g., Grenier v. Commissioner of Transportation, supra, 306 Conn. 547;  cf.  Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 271–73, 41 A.3d 1147 (2012) (by undertaking to construct sewers and storm drains pursuant to bylaws, defendant tax district had duty to repair same).   Accordingly, absent some immunity, it should not offend public policy to conclude that a 9–1–1 dispatching service that voluntarily or gratuitously undertakes to inform a utility company of a downed power line in a timely fashion after receiving calls about a downed line owes a duty—at least to the public generally, if not to a specific individual caller—to exercise reasonable care in informing the utility company.   This conclusion does not impute an affirmative duty on a 9–1–1 dispatcher to contact a utility company;  nor does it affect the question of whether a public safety answering point should be immunized for its alleged negligence in breaching such a voluntarily assumed duty.³  For these reasons, the court concludes, absent some immunity, that QVEC owed the plaintiff a duty to exercise reasonable care.

Next, QVEC claims that any duty it owed was to the public, and that the public duty doctrine bars the plaintiff's negligence action.   The public duty doctrine was adopted by our Supreme Court in Leger v. Kelley, 142 Conn. 585, 589–90, 116 A.2d 1379 (1955).   The doctrine provides that “if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed if at all in some form of public prosecution.   On the other hand, if the duty is a duty to the individual, then a neglect to perform it or to perform it properly, is an individual wrong, and may support an individual action for damages.”  Shore v. Stonington, 187 Conn. 147, 152, 444 A.2d 1379 (1982).

Our Supreme Court has noted, however, that “[w]hether a public or private duty is established, there is no potential liability if the act complained of is a discretionary act that does not fit into any of the narrow exceptions [to discretionary act immunity]”; ⁴  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 169, 544 A.2d 1185 (1988);  whereas “a breach of a public duty may still result in liability for the official if the act he or she negligently performs is a ministerial act.”  Id., 169–70.  “Thus, although the public duty doctrine provides the starting point of the analysis, distinctions between discretionary acts and ministerial acts are often controlling without regard to whether the duty is ascertained to be public or private.”  Id., 170.   In fact, the public/private duty distinction appears in danger of becoming a vestigial organ of municipal immunity jurisprudence in light of subsequent decisions.   See, e.g., Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 183 (declining to abrogate public duty doctrine, but noting that “whether the principals of governmental immunity from suit and liability can best serve this and succeeding generations has become, by force of the long and firm establishment of these principles as precedent, a matter for legislative, not judicial, determination”);  see also Coley v. Hartford, 140 Conn.App. 315, 322 n.8, 59 A.3d 811 (2013);  Wisniewski v. Darien, 135 Conn.App. 364, 371–72, 42 A.3d 436 (2012) (analyzing duties of tree warden under ministerial/discretionary principles).

Thus, the test for liability under the public duty doctrine and the determination whether the defendant has governmental immunity are for all practical purposes the same.   The court must determine first whether the defendant was performing a public function or entitled to governmental immunity.   If so, the court must then determine whether the act at issue was discretionary or ministerial.

QVEC contends that it is a regional emergency telecommunications center authorized by the department of public safety and created pursuant to the mandate of General Statutes § 28–25a.   Thus, QVEC claims that it is a public or governmental entity.   Pellecchia objects, arguing that QVEC is a private company that “voluntarily assum[ed] to perform certain functions which the town itself might have performed ․” ⁵ Pl.'s Obj. Brief at 23.

The court agrees with QVEC. Public entities entitled to governmental immunity include not only governmental entities but also “quasi public entities.”   See Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.App. 275.  “The terms ‘quasi-municipal,’ as applied to corporations, ‘quasi-corporations,’ ‘public-quasi corporations,’ and other similar terms, are often used as meaning the same thing.   Better designation, it would seem, would be to confine the term ‘quasi-corporation’ to organizations not strictly corporations at all, and to designate as ‘quasi-municipal’ those organizations that are deemed corporations but which are held not municipal corporations, strictly speaking, but which resemble municipal corporations in some respect ․ [T]he term denotes a corporation created or authorized by the legislature that is merely a public agency endowed with such of the attributes of a municipality as may be necessary in the performance of its limited objective.   In other words, a quasi-municipal corporation is a public agency created or authorized by the legislature to aid the state in, or to take charge of, some public or state work, other than community government, for the general welfare.”   1 McQuillin Municipal Corporations, § 2:17 p. 202–04 (3d Ed. Rev.2010).

General Statutes Section 28–25a(b) provides:  “Each municipality shall, not later than December 31, 1989, establish and operate a public safety answering point which utilizes enhanced 9–1–1 network features.”  Section 28–25a(c) allows for the “formation of multiagency, multijurisdictional or regional public safety answering points.”   A public safety answering point receives 9–1–1 calls, provides emergency dispatching services, and transfers or relays 9–1–1 calls to other agencies.  General Statutes 28–25 § (10).

The summary judgment record provides that QVEC was created as a regional public safety answering point to serve its member municipalities, each of which retained voting rights on the board of QVEC. DonFrancisco Summ. J. Aff. at 1;  Otto Summ. J. Aff. at 1–3 & attachments.   Regardless of how the court labels QVEC, it is apparent that it was created by its member municipalities to carry out a limited, statutorily mandated public objective.   See 63 C.J.S., Municipal Corporations § 913 (“[t]he establishment of a 911 emergency system is a governmental activity so that a municipality is ordinarily not liable for the negligence of its officers or employees in operating the system”).   Accordingly, QVEC is entitled to governmental immunity for its statutorily authorized actions.   Cf. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 547, 427 A.2d 822, 826 (1980) (“[b]ecause the fire company under the circumstances of this case serves a public function, it may for our purposes be characterized as a quasi-municipal corporation governed by the law pertaining to municipal corporations” [emphasis added] ).

The plaintiff argues that such immunity does not extend to QVEC's conduct here because its statutory authority does not include notifying a private company, CL & P, of downed power lines.   The plaintiff is correct that there is no statutory provision or regulation that mandates that QVEC contact CL & P and inform it of downed power lines.⁶  This fact though is not dispositive.

Where a governmental agency assumes a duty related to the performance of its mandated public function, governmental immunity, or the public duty doctrine, can still preclude recovery.   See Roman v. Stamford, 16 Conn.App. 213, 222, 547 A.2d 97 (1988) (“Whether the duty is directly imposed upon the city or permissive, that is, one which it voluntarily assumed ․ does not change the character of the act or function.   The duty in either case will be governmental if the nature and character of [the] act or function be such.”  [Internal quotation marks omitted] ), aff'd, 211 Conn. 396, 559 A.2d 710 (1989).   The assumption of a duty, however, should be tempered by the principle that a municipal corporation properly may exercise only those powers expressly granted to it by the state, or closely related thereto.   See 1 McQuillin Municipal Corporations 2:17, p. 206 (3d Ed. Rev.2010) ( [a] quasi-municipal corporation, like a municipal corporation, has only those powers that have been expressly granted to it by the state or that are necessary for it to discharge its duties and carry out its objects and purposes” [emphasis added] ).   For example, a tax district may assume responsibility for maintaining sewers and storm drains where its charter anticipates such activities;  Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.App. 271–73;  and a tree warden may assume a ministerial duty to inspect hazardous conditions pursuant to his statutory mandate to care for trees.  Wisniewski v. Darien, 135 Conn.App. 364, 373–75, 42 A.3d 436 (2012).

Here, QVEC was created for the purpose of providing public safety answering point services to its member municipalities.   Thus, QVEC clearly is assigned the responsibility of its member municipalities to dispatch law enforcement and other emergency service providers and coordinate as necessary with appropriate agencies.  General Statutes 28–25 § (10).   While there appears to be no express statutory or regulatory provision requiring that QVEC also coordinate with CL & P when it is informed of downed power lines, that activity may reasonably be viewed as incidental or necessary to QVEC's provision of emergency dispatching services.   Accordingly, QVEC's assumption of a duty in the present matter to contact CL & P is protected under our longstanding principles of municipal immunity.⁷

Although QVEC was not obligated, by statute or otherwise, to contact CL & P, the summary judgment record provides evidence that it voluntarily undertook this task attendant to its contractual obligation to provide emergency dispatching services to its member towns, essentially acting as its member municipalities' agent in carrying out their public purposes.   See Couture v. Board of Education, 6 Conn.App. 309, 313, 505 A.2d 432 (1986) (town board of education acting as agent of state when sponsoring high school football game).   Just as the board of education, in carrying out its legislative mandate to provide public education, was given discretion to determine education policy, including whether sporting events are a necessary or desirable part of said policy, QVEC, in carrying out its mandate to provide emergency dispatching services, ought to have latitude to decide to whom it should refer certain emergency calls.   Specifically, if it receives a call for a downed power line, in addition to notifying the local police and fire departments, it is reasonable for QVEC to adopt a practice of notifying the entity that has the most expertise in addressing a specific type of emergency, e.g. CL & P for downed power lines.

Because the operation of a 9–1–1 call center is protected by governmental immunity, Pellecchia must establish that his claim falls within one of the exceptions to that doctrine.   In the context of police dispatching, a municipality's express assurances to a 9–1–1 caller promising action may create a special duty to the 9–1–1 caller.   See 18 McQuillin Municipal Corporations § 53:22, p. 295 (3d Ed. Rev.2010).   Such a caller could be an identifiable person subject to immediate harm.   Thus, had Pellecchia been the person who reported the downed power line to QVEC, he might fall under this exception to governmental immunity.   There is no dispute, however, that Pellecchia did not contact QVEC.

Second, governmental immunity will not protect QVEC if it negligently performed a ministerial, as opposed to discretionary, function.⁸  QVEC contends that the allegations of negligence enumerated in the fifth count of the complaint all involve the exercise of discretion.   Specifically, QVEC argues that its operating guidelines do not specify what information must be provided to CL & P or when information regarding down lines is to be transmitted to CL & P. Thus, QVEC argues, “[i]t is up to the individual dispatcher to determine what information to fax and when to fax it.”   Def.'s Mot. Sum. J. Brief at 20.

“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.”  (Citations omitted;  internal quotation marks omitted.)   Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “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.”  (Internal quotation marks omitted.)  Martel v. Metropolitan District Commission, 275 Conn. 38, 49, 881 A.2d 194 (2005).

The question is whether the allegations in the complaint regarding QVEC's negligence outline breaches of ministerial or discretionary duties.   For example, the prioritization of a call to QVEC during a storm and the determination of appropriate dispatching clearly involve the exercise of discretion.⁹  Cf. Beltran v. City of El Paso, 367 F.3d 299, 302–03 (5th Cir.2004) (classification of incoming 9–1–1 calls discretionary act under qualified immunity analysis in § 1983 action).   Nevertheless, although the predicate act of categorizing a particular call regarding a downed power line involves the exercise of discretion, an issue of fact is presented as to whether the subsequent act of transmitting a list of downed power lines to the appropriate contact number at CL & P on a regular basis is ministerial.¹⁰  See Mills v. The Solution, LLC, 138 Conn.App. 40, 53, 50 A.3d 381, 390 (“in some circumstances, a ministerial duty may follow a discretionary determination”), cert. denied, 307 Conn. 928, 55 A.3d 570.   While QVEC argues that its guidelines do not specify when it must convey a downed power line list to CL & P, the evidence, viewed in a light most favorable to Pellechia, could support a finding that QVEC never conveyed the list to CL & P, instead sending the list to an out-of-service fax number.   Failure to properly perform the ministerial act of faxing the list to the correct phone number would not be protected by governmental immunity or the public duty doctrine.   Consequently, the plaintiff is entitled to a trial on his negligence claim, at least as to this allegation.

Conclusion

For all of the above stated reasons, QVEC's motion for summary judgment is denied.

Bright, J.

FOOTNOTES

FN1. Defendant QVEC cites to either the affidavit of John DonFrancisco, the Administrative Manager of QVEC or Jeffery Otto, President of QVEC as the sources for the information used in its brief..  FN1. Defendant QVEC cites to either the affidavit of John DonFrancisco, the Administrative Manager of QVEC or Jeffery Otto, President of QVEC as the sources for the information used in its brief.

FN2. The foreseeable plaintiff requirement has been called into question by some Superior Courts:  “The issue of whether Connecticut law even requires a foreseeable plaintiff has been thoroughly discussed in Torres v. Department of Correction, 50 Conn.Sup. 72, 91 n.14, 912 A.2d 1132 (2006) [41 Conn. L. Rptr. 29].   In Torres, the trial court distinguished the case presently relied upon by the defendants, R.K. Constructors, Inc. v. Fusco Corp., 231 Conn 381, 385–86, 650 A.2d 153 (1994), and concluded that it is difficult to say whether a foreseeable plaintiff is required in every negligence cause of action.”  (Internal quotation marks omitted.)   Gebo v. McDonald, Superior Court, judicial district of Middlesex, Docket No. CV 095006226 (October 8, 2010, Holzberg, J.) [50 Conn. L. Rptr. 773]..  FN2. The foreseeable plaintiff requirement has been called into question by some Superior Courts:  “The issue of whether Connecticut law even requires a foreseeable plaintiff has been thoroughly discussed in Torres v. Department of Correction, 50 Conn.Sup. 72, 91 n.14, 912 A.2d 1132 (2006) [41 Conn. L. Rptr. 29].   In Torres, the trial court distinguished the case presently relied upon by the defendants, R.K. Constructors, Inc. v. Fusco Corp., 231 Conn 381, 385–86, 650 A.2d 153 (1994), and concluded that it is difficult to say whether a foreseeable plaintiff is required in every negligence cause of action.”  (Internal quotation marks omitted.)   Gebo v. McDonald, Superior Court, judicial district of Middlesex, Docket No. CV 095006226 (October 8, 2010, Holzberg, J.) [50 Conn. L. Rptr. 773].

FN3. For example, one who voluntarily and gratuitously renders emergency medical assistance may be liable in negligence for their acts and omissions in rendering such care.   Our legislature has determined, however, that some “good samaritans” should be immunized from liability when they voluntarily render aid.   See General Statutes § 52–557b..  FN3. For example, one who voluntarily and gratuitously renders emergency medical assistance may be liable in negligence for their acts and omissions in rendering such care.   Our legislature has determined, however, that some “good samaritans” should be immunized from liability when they voluntarily render aid.   See General Statutes § 52–557b.

FN4. “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 ․” (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn 310, 319–20, 907 A.2d 1188 (2006)..  FN4. “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 ․” (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn 310, 319–20, 907 A.2d 1188 (2006).

FN5. To the extent Pellecchia is arguing that QVEC is engaged in proprietary functions, it is noted that the provision of 9–1–1 services generally is viewed as governmental in nature, not proprietary.   63 C.J.S., Municipal Corporations § 913..  FN5. To the extent Pellecchia is arguing that QVEC is engaged in proprietary functions, it is noted that the provision of 9–1–1 services generally is viewed as governmental in nature, not proprietary.   63 C.J.S., Municipal Corporations § 913.

FN6. General Statutes § 7–311 provides immunity to dispatching corporations for delays in reporting reports of fires and other emergencies to fire departments or other appropriate municipal agencies or departments Section 7–311 provides.  “No person, corporation, partnership or association which is authorized by any town, city or borough fire department or by any volunteer fire company to receive any report of fire or other emergency, including but not limited to requests for an ambulance or rescue equipment and which agrees to receive and transmit such report to such fire department, volunteer fire company or other appropriate municipal agency or department shall be liable in any civil action for damage to persons or property caused by delay in reporting such fire or other such emergency, unless such delay is the result of the gross negligence of such person, corporation, partnership or association.”.  FN6. General Statutes § 7–311 provides immunity to dispatching corporations for delays in reporting reports of fires and other emergencies to fire departments or other appropriate municipal agencies or departments Section 7–311 provides.  “No person, corporation, partnership or association which is authorized by any town, city or borough fire department or by any volunteer fire company to receive any report of fire or other emergency, including but not limited to requests for an ambulance or rescue equipment and which agrees to receive and transmit such report to such fire department, volunteer fire company or other appropriate municipal agency or department shall be liable in any civil action for damage to persons or property caused by delay in reporting such fire or other such emergency, unless such delay is the result of the gross negligence of such person, corporation, partnership or association.”

FN7. Additionally, insulating QVEC with municipal immunity in this context avoids disincentivizing public safety answering points from contacting utility providers after receiving calls of downed power lines, even if not expressly authorized to do so.   Such timely notification undoubtedly promotes public safety..  FN7. Additionally, insulating QVEC with municipal immunity in this context avoids disincentivizing public safety answering points from contacting utility providers after receiving calls of downed power lines, even if not expressly authorized to do so.   Such timely notification undoubtedly promotes public safety.

FN8. “Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ․ 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.”   (Citations omitted;  internal quotation marks omitted.)  Wisniewski v. Darien, supra, 135 Conn App 371–72..  FN8. “Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ․ 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.”   (Citations omitted;  internal quotation marks omitted.)  Wisniewski v. Darien, supra, 135 Conn App 371–72.

FN9. QVEC's operating guidelines provide:  “During the height [of] the storm, calls should be prioritized by nature and dispatched accordingly (i.e. a call for chest pains takes precedence over a tree down on a back road).”   DonFrancisco Summ. J. Aff., Ex. 1..  FN9. QVEC's operating guidelines provide:  “During the height [of] the storm, calls should be prioritized by nature and dispatched accordingly (i.e. a call for chest pains takes precedence over a tree down on a back road).”   DonFrancisco Summ. J. Aff., Ex. 1.

FN10. QVEC's operating guidelines provide “When the region experiences multiple power lines and trees down, these should be grouped and faxed to the power company's emergency operations center on a regular basis.   This eliminates multiple phone calls.”   DonFrancisco Summ. J. Aff., Ex. 1..  FN10. QVEC's operating guidelines provide “When the region experiences multiple power lines and trees down, these should be grouped and faxed to the power company's emergency operations center on a regular basis.   This eliminates multiple phone calls.”   DonFrancisco Summ. J. Aff., Ex. 1.

Bright, William H., J.