Brenda Mazariegos et al. v. City of Stamford et al. (2013)

Memorandum of Decision on Defendant Gregory Zach's Motion for Summary Judgment on the Fifth Count and the Twentieth Count (No. 134)

Factual/Procedural Background

The court adopts the following summary of the factual background alleged in the complaint from Judge Tobin's Memorandum of Decision (No. 113.86) on the Motion to Strike certain counts of the complaint filed by defendant City of Stamford.

On November 2, 2011, the plaintiffs, Brenda Mazariegos, Feliciano Mazariegos, Sandra Solis, and Nelson Solis, filed a fifty-eight-count, second revised complaint against the defendants, Stamford police officer Gregory Zach and the City of Stamford.   In that complaint, the plaintiffs make the following allegations.   On June 25, 2009, Brenda Mazariegos and Sandra Solis were driving to work at The Palms Nightclub, owned by their husbands, Feliciano Mazariegos and Nelson Solis.   At that time, Officer Zach was on duty at the rear parking lot of The Palms, and would not permit Brenda and Sandra to park there.

Notified of the situation by Sandra, Nelson Solis approached Officer Zach and told him that he would call Zach's supervisor.   In response, Officer Zach motioned for Brenda, who was still in the car but had not been driving, to pull the car into the parking lot.   However, Officer Zach then demanded to see Brenda's driver's license, which she did not have with her.   Officer Zach next ordered Brenda to get out of the car.   When she complied, he grabbed her arms, turned her around, pulled her wrists behind her back, pushed her into the car, and told her she was under arrest.   Zach then pushed Nelson Solis backwards, off of the ground, and onto the cement in front of passing truck.   The truck stopped before it hit Nelson, but Nelson was injured when he hit the cement.   Zach subsequently pushed Sandra Solis to the cement in a similar manner and with similar force, injuring her.

Officer Zach then punched Brenda in the head, face, shoulders, and neck, continuing to do so even after Brenda had fallen on the ground.   Brenda's husband, Feliciano, was standing approximately twenty feet away, and was unable to help his wife.   Brenda was then handcuffed, locked in the police car, and taken to the hospital and the police department before being released on bail.   In addition to physical injuries, Brenda was afraid to stay in her house alone for several months after the assault, and she still fears that Officer Zach will try to hurt her and her family.1

The motion for summary judgment now before the court as filed by defendant Officer Gregory Zach, asks for judgment as a matter of law as to the Fifth Count (false arrest of plaintiff Brenda Mazariegos) and the Twentieth Count (plaintiff Feliciano Mazariegos' claim of bystander emotional distress).   Defendant Officer Gregory Zach has filed an Answer and Special Defenses dated January 13, 2012.   With respect to the counts here at issue, he denies or claims insufficient knowledge as to most of the allegations of the complaint except he does admit that he hit plaintiff Brenda Mazariegos with a closed fist punch to the center of the forehead, and that he instigated a criminal prosecution against Brenda Mazariegos.   He also pleads five special defenses, including that his actions were objectively reasonable under the circumstances and he enjoys qualified immunity;  that the plaintiff's claims are barred by the doctrine of governmental immunity, and that his actions and conduct were undertaken in the good faith performance of his official duties, without malice, and were therefore privileged under applicable state law.   The plaintiffs, in reply, plead in avoidance, that Officer Zach's acts were ministerial, or, to the extent they were discretionary, discretionary act immunity does not apply because Zach's conduct involved malice, wantonness, and intent to injure the plaintiffs and it was apparent to Zach that his actions and conduct would be likely to subject the plaintiffs to imminent harm.

Discussion

I. Standard for Summary Judgment

“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.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

II. Fifth Count:  False Arrest

Plaintiff Brenda Mazariegos was arrested by Officer Zach for interfering with an officer (Conn. Gen.Stat. § 53a–167a;  use of physical force to resist arrest not justified (Conn.Gen.Stat. § 53a–23);  breach of peace in the second degree (Conn. Gen Stat. § 53a–181), creating a public disturbance (Conn.Gen.Stat. § 53–181a) and disorderly conduct (Conn.Gen.Stat. § 53a–182) (“the prosecuted offenses”).   The prosecution of those charges terminated in favor of Brenda Mazariego when the charges were all nolled by the State.

The defendant, Officer Zach, moves for summary judgment against the plaintiff's, Brenda Mazariegos' claim for false arrest alleged in the Fifth Count of the plaintiffs' Second Revised Complaint.   The plaintiff alleges that Officer Zach instigated a criminal prosecution against Brenda Mazariegos, that such criminal prosecution was without probable cause, that the prosecution was commenced in malice and that the matter was subsequently terminated in Brenda Mazariegos' favor.   Officer Zach argues that he is entitled to qualified immunity because probable cause, or arguable probable cause, existed to effectuate the arrest and, in the alternative, probable cause existed related to other offenses that entitle him to qualified immunity.   In support of the motion, Zach submits Deposition Transcript of Gregory Zach (Defendant Zach's Exhibit A), Deposition Transcript of Brenda Mazariegos (Defendant Zach's Exhibit B), Deposition Transcript of Feliciano Mazariegos (Defendant Zach's Exhibit C), Deposition Transcript of Lt. Nick Montagnese (Defendant Zach's Exhibit D), photographs of Zach's injuries (Defendant Zach's Exhibit D1), Deposition Transcript of Sandra Solis (Defendant Zach's Exhibit E) and Deposition Transcript of Nelson Solis (Defendant Zach's Exhibit F).  The plaintiff counters that there exists a genuine issue of material fact regarding the existence of probable cause and Zach's motivation for effectuating the arrest.   In opposition to the motion, the plaintiff submits Lt. Nick Montaguese's August 10, 2009 Officer's Report (Plaintiffs' Exhibit K) and Transcript of March 16, 2010 Pro–Forma Hearing (Plaintiffs' Exhibit L).

A.

FALSE ARREST, IN GENERAL

In Connecticut, “[f]alse imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another.”  Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982).  “False imprisonment[, or false arrest,] is categorized as an intentional tort for which the remedy at common law was an action for trespass.”  Lo Sacco v. Young, 20 Conn.App. 6, 19, 564 A.2d 610 (1989), cert. denied, 213 Conn. 808, 568 A.2d 793 (1989).   “Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability ․ To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly.”   (Citations omitted;  internal quotation marks omitted.)  Berry v. Loiseau, 223 Conn. 786, 820, 614 A.2d 414 (1992).

“[I]n the case of a false imprisonment the detention must be wholly unlawful.”  Lo Sacco v. Young, supra, 20 Conn.App. 19.   Similarly “[a]n action for false arrest is predicated upon a detention without legal process or under a process that is void on its face, e.g., a warrantless arrest that is not made on probable cause.   See Outlaw v. Meriden, 43 Conn.App. 387, 393, 682 A.2 1112 (1996)[, cert. denied, 239 Conn. 946, 686 A.2d 122 (1996) ].”   Acker v. Wall, Superior Court, judicial district of Fairfield, Docket No. CV 12 6025830 (February 13, 2013, Sommer, J.).  “The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under [42 U.S.C.] § 1983.  Weyant v. Okst, 101 F.3d [845, 852] (2dCir.1996);  Jocks v. Tavernier, 316 F.3d 128, 134–35 (2d Cir.2003) (internal citations omitted) (citations omitted);  Caldarola v. Calabrese, 298 F.3d 156, 161 (2d Cir.2002).”  Acker v. Wall, supra, Superior Court, Docket No. CV 12 6025830;  Hunter v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 97 0344157 (June 4, 2004, Dewey, J.).

B.

PROBABLE CAUSE STANDARD AND FALSE ARREST

“A police officer has probable cause for an arrest when he has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.”  Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir.2013).  “Probable cause requires only a probability or a substantial chance of criminal activity, not an actual showing of such activity.”  (Internal quotation marks omitted.)  Illinois v. Gates, 462 U.S. 213, 244, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).  “When determining whether probable cause exists courts must consider those facts available to the officer at the time of the arrest and immediately before it, as probable cause does not require absolute certainty.   Courts should look to the totality of the circumstances and must be aware that probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”  Fabrikant v. French, 691 F.3d 193, 214 (2d Cir.2012).

“An arresting officer is entitled to qualified immunity even when, as in this case, probable cause to arrest does not exist, if he can establish that there was arguable probable cause to arrest.”  (Internal quotation marks omitted.)   Ackerson v. White Plains, 702 F.3d 15, 21 (2d Cir.2012).  “Arguable probable cause exists if either (a) if was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.”  (Internal quotation marks omitted).  Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004).  “In this respect, the qualified immunity test is more favorable to the officers than the one for probable cause ․ The test is not toothless, however:  If officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close does not immunize the officer.   Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.2007).”  (Citation omitted;  internal quotation marks omitted.)  Ackerson v. White Plains, supra, 21.  “[P]robable cause does not require an officer to be certain that subsequent prosecution of the arrestee will be successful.   It is therefore of no consequence that a more thorough or more probing investigation might have cast doubt upon the situation.”  Fabrikant v. French, supra, 691 F.3d 214.

“The probable cause standard is the same under Connecticut law.  Beinhorn v. Saraceno, 23 Conn.App. 487, 492, 582 A.2d 208, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1990).”   Svitek v. Martin, Superior Court, judicial district of New Haven, Docket No. CV 10 6010196 (May 25, 2012, Wilson, J.).   “It is a flexible common sense standard that does not require the police officer's belief to be correct or more likely true than false ․ Probable cause is based on the objective facts available to the officer at the time of arrest, not on the officer's subjective state of mind ․ As our Supreme Court has noted, [w]hile probable cause requires more than mere suspicion ․ the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.”  (Citations omitted;  internal quotation marks omitted.)  Washington v. Blackmore, 119 Conn.App. 218, 221–22, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010).

“The plaintiff bears the burden of demonstrating a lack of probable cause for the arrest.  Baker v. McCollan, 443 U.S. 137, 143–46 (1979) ․ Probable cause is a question that may be resolved on a motion for summary judgment if there is no dispute of material fact regarding the pertinent events and knowledge of the officers.  Singer v. Fulton County Sheriff, 63 F.3d 110, 118–19 (2d Cir.1995).”  Svitek v. Martin, supra, Superior Court, Docket No. CV 10 6010196.  “Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law.”   DeLaurentis v. New Haven, 220 Conn. 225, 252–53, 597 A.2d 807 (1991).   The Superior Court has had occasion to deny summary judgment in cases of false arrest where the facts are in dispute as to whether probable cause actually existed and have left the determination of probable cause to the fact finder.   In Svitek v. Martin, supra, Superior Court, Docket No. CV 10 6010196, the court denied the municipal police officer's motion for summary judgment on the false arrest account due to conflicting versions of the events leading up to the arrest.   Svitek involved a plaintiff who was arrested for reckless driving in violation of General Statutes §§ 14–236 and driving while under the influence in violation of General Statutes § 14–227a.   The court found that the plaintiff had submitted sufficient evidence to dispute the officer's claim that he was driving erratically prior to being stopped and arrested.  Id. In Balogh v. Shelton, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 99 0067521 (March 18, 2002, Alander, J.) (31 Conn. L. Rptr. 566, 569), the court denied summary judgment brought by the municipal police officers on the same basis.   Balogh involved a mother who was arrested for providing alcohol to minors who were having a “keg party” on her property in violation of General Statutes § 30–86.   The officers made the arrest based on the mother's comments and behavior, however, the mother submitted evidence which disputed the substance of her conversation with the officers and that the “keg party” had actually occurred on the neighboring golf course.  Id.

C.

CONCLUSIONS

In this case plaintiff Brenda Mazariegos was arrested by Officer Zach for the prosecuted offenses, listed above, all of which were nolled by the prosecutor.   In Officer Zach's motion for summary judgment now before the court he argues that he is entitled to qualified immunity because probable cause, or arguable probable cause, existed to effectuate the arrest.   And, in the alternative, probable cause existed related to other offenses that entitled him to qualified immunity.

Focusing for the moment just on the five prosecuted offenses, Officer Zach relies on his own deposition testimony that after he stopped Mrs. Mazariegos she got out of the car and started to walk away.   When he grabbed her wrist she began flailing at him resulting in scratches to his arm and lip, ripping his shirt.  (Deposition Transcript of Gregory Zach, Ex. A. pp. 87–88, 122.)   But even counsel for Officer Zach admits that “During the stop an altercation occurred.   The facts related to this altercation are in dispute and therefore, Officer Zach does not seek summary judgment related to the excessive use of force.”  (Emphasis added.)   Memorandum of Law in support of Motion for Summary Judgment, April 15, 2013 (No. 135), p. 4.² “When the underlying facts concerning the existence of probable cause are in dispute, there is a constitutional right to have those facts determined by a jury.”  Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980).

But, in assessing whether or not there is probable cause for an arrest, the court is not limited to the criminal charges for which the person is actually arrested and prosecuted.   Before the altercation, Mrs. Mazariegos was stopped by Officer Zach because he observed her operating an automobile on a public street while speaking on her cell phone.   Then, when asked to show her operator's license, several times, she responded that she did not have it with her.   These facts are undisputed.

Q. Had you said anything to him [Officer Zach] at the time that you stopped the car?

A. Only that I don't have the license with me.   When I stopped I was speaking on the cell phone so he told me you are speaking on the cell phone, give me the license.

Q. Were you speaking on the cell phone?

A. Yes, I have it in my hand, I had it in my hand speaking through the walkie-talkie.

Debra Mazariegos Deposition Transcript, Ex. B., p. 52.

Both the use of a cell phone while operating a car, and the operation of a motor vehicle without carrying the operator's license are criminal motor vehicle offenses in Connecticut.  Conn. Gen Stat. § 14–213 provides, in pertinent part, that each operator of a motor vehicle shall carry his operator's license while operating such vehicle.  Conn. Gen Stat. § 14–296aa provides in pertinent part that no person shall operate a motor vehicle upon a highway while using a hand-held telephone to engage in a call while such vehicle is in motion.

The fact that plaintiff was not formally charged with violation of §§ 14–213 or 14–296aa does not prevent Officer Zach from using the facts amounting to a violation of those statutes in arguing for qualified immunity.  “Arguable probable cause (which establishes qualified immunity with respect to a false arrest claim,) exists when a reasonable police officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed in the light of well established law.”  Droz v. McCadden, 580 F.3d 106 (2d Cir.2009), citing Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.2007).   The Supreme Court held in Devenpeck v. Alford, supra, 125 S.Ct. 588 (2004), that an officer may be entitled to qualified immunity if probable cause exists for an uncharged offense.  “Our cases make clear that an arresting officer's state of mind (except for facts that he knows) is irrelevant to the existence of probable cause.   That is to say, his subjective reason for making the arrest need not be the criminal offense to which the known facts provided probable cause.”   Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).   Plaintiff argues that the observed (but uncharged) violation of two motor vehicle statutes cannot constitute “objectively reasonable” probable cause because Officer Zach has admitted in deposition testimony that “There was no one gets arrested for a parking violation or for driving without a license, she got arrested cuz she assaulted me.”   Transcript of March 16, 2010 ProForma Hearing, Ponvert Aff. Ex L, at 4. From this plaintiff argues, without citation of authority, “․ therefore, such an arrest would be objectively unreasonable.”   Plaintiff's Memorandum of Law, (No. 137), p. 14.   That argument fails because it is grossly oversimplified and ignores the established precept that an officer's state of mind (such as the intention to overlook and not to charge minor traffic violations when more serious charges are contemplated) is irrelevant if the objective facts constituting probable cause are there.

Although Connecticut officers would not normally take person into custody for these offenses, the fact that an officer unreasonably takes someone into custody for a violation of such statute, even if such custodial arrest is contrary to state statute, does not render the arrest unconstitutional.   Atwater v. Lago Vista, 532 U.S. 318 (2001), held that a custodial arrest of a woman for failing to wear or have her children wear seatbelts was constitutional even though it was a fine-only offense.   The Supreme Court in Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598 (2008), found that a custodial arrest in violation of a state statute which allowed for only a summons was still constitutional as the officer had probable cause to believe the motorist had committed the offense.   As said by Justice Scalia writing for the Court:

In a long line of cases we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt.   The arrest is constitutionally reasonable.  (Citations omitted.)  553 U.S. at 171.

We are convinced that the approach of our prior cases is correct because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure ․ Arrest assures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables an officer to conduct an in-custody investigation.(Citations omitted.)  553 U.S. at 173.

Because it is undisputed that Brenda Mazariegos was driving while speaking on her cell phone, while not in possession of her driver's license and was therefore undisputedly committing two violations of the Connecticut General statutes, Officer Zach is entitled to qualified immunity for placing her under custodial arrest and is therefore entitled to summary judgment on the Fifth Count.

III. Twentieth Count (Plaintiff Feliciano Mazariegos' Claim of Bystander Emotional Distress).

The defendant, Officer Zach move for summary judgment against the plaintiff, Feliciano Mazariegos's, claims for bystander emotional distress represented in the Twentieth Count of the Plaintiffs' second revised complaint.   The plaintiff Feleciano Mazariegos alleges that he suffered extreme mental and emotional anguish, embarrassment and humiliation, injury to his reputation and the inability to carry on and enjoy life's activities as a result of witnessing his wife, Brenda Mazariegos, being assaulted, arrested and confined to a police vehicle.   The defendant argues that the plaintiff has failed to present a genuine issue of fact as to whether Brenda Mazariegos's injuries were substantial, resulting in serious physical injury, and that Feliciano Mazariegos's emotional injuries were serious.   In opposition, the plaintiffs have submitted photographs of Officer Zach and Brenda Mazariegos (plaintiffs' Exhibit A) and Feliciano Mazariegos's Deposition (plaintiffs' Exhibit N).

A.

BYSTANDER EMOTIONAL DISTRESS, IN GENERAL

“[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions:  (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim;  (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location;  (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury;  and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.”  Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996).   The defendant does not contest that plaintiff Feliciano Mazariegos has shown beyond a genuine issue of fact the first two elements of bystander emotional distress.   The court's discussion will therefore be limited to elements (3) and (4).

B.

(3) SUBSTANTIAL INJURY TO VICTIM

“[T]he injury to the victim must be substantial, resulting in either death or serious physical injury.”  Clohessy v. Bachelor, supra, 237 Conn. 53.   Additionally, “the court must look to the evidence submitted by the parties to determine how substantial the injuries suffered by [the victim] were at the time of the accident.”  (Internal quotation marks omitted.)   Hibner v. Bruening, Superior Court, judicial district of New Haven, Docket No. CV 01 0456730 (July 30, 2009, Zoarski, J.);   Conger v. Old Navy, LLC, Superior Court, judicial district of New London, Docket No. CV 09 6000986 (November 23, 2010, Cosgrove, J.).

The Connecticut Penal Code, General Statutes § 53a–3(4) defines “serious physical injury” as a “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”   Similarly, Black's Law Dictionary (8th Ed.2004) defines “serious bodily injury” as serious physical impairment of the human body;  especially, bodily injury that creates a substantial risk of death or that causes serious, permanent disfigurement or protracted loss or impairment of the function of any body part organ.”

Decisions of the Superior Court have had occasion to find that certain injuries do not meet this threshold.   For example, the court in Conger v. Old Navy, LLC, supra, Superior Court, Docket No. CV 09 6000986, granted summary judgment dismissing the plaintiff's bystander emotional distress claim on the ground that the victim's injury did not rise to the level of a substantial or serious physical injury.   Conger involved a young child who had received a laceration on her finger from a display table at one of the defendant's stores.   The court found that because the child only received stitches, was released from the hospital the same evening and had only a minor scar after a medical examination a couple of months later, that her injury could not as a matter of law satisfy the third prong of Clohessy.  Id. Similarly, in Nelson v. Winkel, Superior Court, judicial district of Litchfield, Docket No. CV 03 0090872 (October 4, 2004, Brunetti, J.) (38 Conn. L. Rptr. 62, 63), the court granted summary judgment dismissing the plaintiff's bystander emotional distress claim on the ground that the injuries sustained by the victim were neither serious nor life threatening.   In Nelson, the victim suffered injuries as a result of a car accident which required medical treatment and physical therapy.   The court in Nelson found that the victim had only suffered some bruising and contusions and that such injuries could not satisfy the third prong of Clohessy.

C.

(4) SERIOUS EMOTIONAL INJURY

“[A] plaintiff bystander must have sustained a serious emotional injury—that is, a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstance.”  (Internal quotation marks omitted.)  Clohessy v. Bachelor, supra, 237 Conn. 54.   “Serious emotional distress, of course, goes well beyond simple mental pain and anguish.   Compensation for mental pain and anguish over injury to a third person should only be allowed where the emotional injury is both severe and debilitating.”  Id., 56.

Decisions of the Superior Court lend guidance to determining the type and extent of the emotional injury required to survive a motion for summary judgment.   In Ortiz v. Ford, Superior Court, judicial district of Fairfield, Docket No. CV 96 334511 (April 3, 1998, Melville, J.), the court granted summary judgment dismissing the plaintiffs' bystander emotional distress claims on the ground that the parents of the young woman injured in an automobile accident did not suffer from serious emotional injuries.   The only evidence used by the parents were interrogatories and depositions which made clear they were able to continue with their daily lives despite claiming that they had been suffering extreme mental pain and anguish.   The court concluded that “[b]ased on the plaintiff's responses to interrogatories, the plaintiffs have failed to introduce evidence putting this issue in dispute ․ the plaintiffs have offered no expert medical diagnoses or reports supporting the allegations that they are suffering extreme mental pain and anguish.   Despite the unarguably traumatic effect their daughter's injury has had on their lives, the plaintiffs have not raised a genuine issue of material fact demonstrating that they are suffering from a severe and debilitating injury as a result of seeing their daughter shortly after the accident.”  Id. Other decisions of the Superior Court have found similarly.   Squeo v. The Norwalk Hospital Assn., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 5012548S (April 30, 2013, Tierney, J.) [56 Conn. L. Rptr. 20] (finding plaintiffs did not show serious emotional injury that was severe and debilitating since they were able to continue the normal course of their daily lives and only sought limited medical and psychiatric attention.);   Fitch v. Milford Power Co., Superior Court, judicial district of Tolland, Docket No. CV 01 0077449 (March 8, 2004, Sferrazza, J.) (36 Conn. L. Rtpr. 601, 602) (finding plaintiffs' claims of experiencing nightmares, difficulty sleeping, weight gain, anger and frustration as a result of seeing their father trapped in a crane for several hours did not rise to the level of serious emotional injury that was severe and debilitating.);   Carendi v. Silver Horseshoe Stables, Inc., Superior Court, judicial district of New Haven, Docket No. CV 94 366855 (August 14, 1998, Hartmere, J.) (22 Conn. L. Rptr. 697, 698) (finding plaintiff's emotional injuries resulting from watching her father get kicked in the face by a horse were not serious since she has not required any professional assistance, has not suffered any eating or sleeping disorders and has not experienced scholastic problems since the incident and even remained active and excelled with honors in regards to her scholastic achieveDP1⌑In contrast, in Thomas v. Trudeau, Superior Court, judicial district of Windham, Docket No. CV 07 5001330 (May 15, 2009, Riley, J.) (47 Conn. L. Rptr. 797, 801), the court denied summary judgment upholding the plaintiff's bystander emotional distress claims on the ground that the mother of the young victim of a burn accident had put forth enough facts to put into issue the allegation that she suffered serious emotional distress.   The court found that the plaintiff's exhibits showing that she was engaged in counseling, was prescribed medication to deal with her depression, and clinical progress notes detailing her emotional state were sufficient to place the issue of whether she suffered serious emotional injuries before a jury.  Id.

D.

CONCLUSIONS

After reviewing the evidence submitted by both parties the court concludes that there is a genuine issue of fact as to the seriousness of Brenda Mazariegos' physical injuries, but defendant Zach has shown beyond any genuine issue of material fact that her husband Feliciano Mazariegos has not sustained the level of severe and debilitating emotional injury so as to entitle him to damages under the doctrine of bystander emotional distress.   Plaintiffs have not come forth with a evidence which would overcome that showing.

Brenda Mazariegos admittedly was punched by Officer Zach, using his closed fist, square in the face at least once, with enough force to knock her to her knees.   The photograph, Ponvert Affidavit, Exhibit A, taken of the day of the incident shows clearly a large hematoma on her forehead.   She was treated at the Stamford Hospital Emergency Room on that day.   The Emergency Department Report (Defendant Zach Ex, G.) gives her a diagnosis of “closed head injury.   Contusion to forehead.”   The narrative states, in part:

No other complaints noted except for headache and lump to forehead ․ Patient complains of mild headache but no LOC [loss of consciousness].   CT of the head negative for any acute pathology.   The patient discharged.

A photograph taken the following day (Ex B) shows a swollen face and two very pronounced “black eyes” with the skin under and around her eyes turned purple and yellow.   She testified that she was fearful of leaving her home for some time after.   This, without more, would not be a “substantial injury.”   But three years later, on May 22, and June 19, 2012 she was evaluated by Dr. Cynthia Mozlin, a forensic neuropsychologist at Brooklyn, N.Y. Dr. Mozlin's thirteen-page report (Ponvert Affidavit, Ex. M) indicates that Brenda was then suffering from “posttraumatic stress and chronic pain syndrome” with the “potential for severe injury to the prefrontal cortex and neural shearing.”   “The overall severity of Brenda's posttraumatic stress symptoms is in the severe range.”   After extensive testing Dr. Mozlin gave her impression that:  “Test results as outlined support a diagnosis of mild traumatic brain injury in addition to severe complex posttraumatic stress disorder and chronic pain syndrome including:  head, neck, right shoulder, lower back, right hip, and right leg pain with the pain onset reportedly associated with the traumatic assault on 6/25/2009.”   Dr. Mozlin—also found “impaired working memory which affects verbal recall and her ability to complete multi-step tasks.” and “[d]elay in visual processing speed.”   It is true that this examination occurred three years after discharge from the Stamford Hospital Emergency Room without any evidence of treatment during that three-year interval, but that would go to the weight of the evaluation.   There is no other professional opinion in the evidence as to the long-term effects of Brenda Mazariegos' injuries.   This is sufficient to prevent the “serious injury” issue from being decided by the court on summary judgment.   There is enough evidence for that issue to go to the jury.

Mr. Feliciano Mazariegos' claim of severe and debilitating emotional injury, on the other hand, is not sufficient to go to the jury.   He relies entirely on his own deposition testimony that his witnessing of his wife being punched and knocked to the ground, and then locked in a police cruiser calling for his help, coupled with his inability to go to her defense because of fear of being arrested or even shot for doing so, caused him to lose his pride.  “I lost my pride, I've been proud of myself all my life to that point.   I lost my pride that day seeing my wife getting hit and I didn't do anything ․ She said many times, please help me.   Poppy, please help me.   And I couldn't do anything ․ [T]hat is the worst thing that can ever happen to a man ․ I feel like garbage.   There's no other word ․”

Those are very sincere and entirely understandable reactions, but there is no evidence that Mr. Mazariegos was unable to carry on with the activities of his daily life, including his employment at the Palms Nightclub which he co-owned with Mr. Solis.   There is no evidence of any sleeping or eating disorders or the need for any professional assistance or counseling or medications.   He testified at his deposition that he “has not seen any medical personnel whatsoever, psychologist, psychiatrist, or physician as a result of this incident.”   Transcript.  Def. Ex C., p. 89.   There is no genuine issue of fact to indicate that his reaction to witnessing this incident caused him to suffer a serious and debilitating emotional injury.

ORDER

For the foregoing reasons Defendant Gregory Zach's Motion for Summary Judgment directed to the Fifth Count and the Twentieth Count of plaintiff's Second Revised Complaint is granted.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. Brenda Mazariegos et al. v. City of Stamford et al., Superior Court, Judicial District of Stamford!   Norwalk at Stamford, Docket No. FST CV11–6013059S (March 7, 2013, Tobin, J.) 2013 Ct.Sup. 756, 756A [55 Conn. L. Rptr. 775]..  FN1. Brenda Mazariegos et al. v. City of Stamford et al., Superior Court, Judicial District of Stamford!   Norwalk at Stamford, Docket No. FST CV11–6013059S (March 7, 2013, Tobin, J.) 2013 Ct.Sup. 756, 756A [55 Conn. L. Rptr. 775].

FN2. The attorney for Officer Zach further states, “while Mrs. Mazariegos disputes this account of the incident, she does admit to holding on to Officer Zach's shirt ․ Deposition Transcript of Brenda Mazariegos, Ex B, pp. 61–62.”   Unfortunately pages 61–62 of that transcript are not included as part of defendant Zach's Ex B. (Part of No. 136) so the court was unable to review that sworn testimony.   Nonetheless, construing the evidence most favorably to Brenda Mazariegos as the non-moving party, counsel's admissions that the facts of the altercation are not undisputed is sufficient to withhold summary judgment as to probable cause for the five prosecuted offenses..  FN2. The attorney for Officer Zach further states, “while Mrs. Mazariegos disputes this account of the incident, she does admit to holding on to Officer Zach's shirt ․ Deposition Transcript of Brenda Mazariegos, Ex B, pp. 61–62.”   Unfortunately pages 61–62 of that transcript are not included as part of defendant Zach's Ex B. (Part of No. 136) so the court was unable to review that sworn testimony.   Nonetheless, construing the evidence most favorably to Brenda Mazariegos as the non-moving party, counsel's admissions that the facts of the altercation are not undisputed is sufficient to withhold summary judgment as to probable cause for the five prosecuted offenses.

Jennings, Alfred J., J.T.R.