Catherine Fergus et al. v. Town of New Milford (2013)

MEMORANDUM OF DECISION

Before the court is the defendant's motion for summary judgment (# 137) on the ground that there is no genuine issue of material fact that the plaintiff's claims are barred by the doctrine of governmental immunity, or, alternatively, on the ground that there is no genuine issue of material fact that the plaintiff cannot establish causation.   For the reasons that follow, the motion for summary judgment will be denied.

I

FACTS

On October 18, 2012, Catherine Fergus, Conor Fergus, Cara Fergus and Patrick Fergus,¹ filed a two-count amended complaint against the defendant, Town of New Milford.   The complaint alleges the following relevant facts.   On or before November 14, 2009, a protective order was issued by the Superior Court, mandating that Neil Fergus, the estranged husband of Catherine Fergus (“the plaintiff”), refrain from harassment of any kind.   On November 14, 2009, the plaintiff reported to the New Milford Police Department, agent of the defendant, that the protective order was being violated by virtue of several dozen unwanted communications over a short period of time.   The police were aware from this conversation and others with the plaintiff that the safety and welfare of the plaintiff, and that of her family, were at risk from Neil Fergus.   After hearing of the violation of the protective order, the police failed to detain Neil Fergus, but instead warned him, by telephone, of the plaintiff's complaints.   Upon learning of the plaintiff's complaints, Neil Fergus became enraged, went to the plaintiff's home and “committed a savage series of assaults on the plaintiff, including a knife attack” causing serious injuries to the plaintiff.

Count one alleges that the defendant was negligent and the attack on the plaintiff was proximately caused by, inter alia, the defendant's acts of tipping off Neil Fergus to his pending arrest while failing to provide protection to the plaintiff, failing to immediately detain or arrest Neil Fergus, failing to protect the plaintiff, failing to follow its written policies and protocols, and exposing the plaintiff, an identified person, to a foreseeable risk of imminent harm.   Count two alleges that the plaintiff's children suffered emotional distress by witnessing the attack on the plaintiff and the assault by Neil Fergus.

On November 19, 2012, the defendant filed an answer and five special defenses, including governmental immunity.   On May 14, 2013, the plaintiff filed a motion for leave to amend along with a proposed second amended complaint, seeking to conform the allegations of negligence to the proof that has emerged during the discovery process.²  The relevant allegations remain the same.   On May 15, 2013, the defendant filed the present motion for summary judgment as to the plaintiff's October 18, 2012 amended complaint, along with a supporting memorandum of law and evidentiary support.   On June 27, 2013, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment, along with evidentiary support.   The defendant filed a reply memorandum on July 3, 2013.   A hearing on this matter was conducted on August 14, 2013.

II

DISCUSSIONASummary Judgment Standard

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

“In 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).

B

Operative Complaint

The defendant moved for summary judgment as to the amended complaint, which was the operative complaint at the time the motion for summary judgment was filed.   However, one day prior to the defendant's filing of its motion, the plaintiff had filed a request for leave to amend along with a proposed second amended complaint.   The factual basis of the second amended complaint is unchanged.   Rather, the new allegations contained therein merely expand upon the plaintiff's earlier, more generic, reference to the defendant's written policies and protocols.   This court's review of the motion for summary judgment will not be altered by the more specific allegations contained in the second amended complaint.   Therefore, as the defendant did not object to the second amended complaint ³ and has since filed an answer and special defenses thereto, this court will review the defendant's summary judgment motion as it pertains to the plaintiff's second amended complaint.

C

Additional Facts

The following undisputed facts are relevant to the discussion and are culled from the briefs and evidence submitted by both parties.   On December 25, 2008, the plaintiff and Neil Fergus got into a verbal argument over their holiday plans.   Neil Fergus declared, in front of the children, that he wanted the plaintiff dead.   The argument escalated and Neil Fergus grabbed a kitchen knife.   He followed the plaintiff around yelling at her and then proceeded to slash one tire on the plaintiff's vehicle so that she was unable to drive the children to visit his family in New York. The argument continued for some time until the plaintiff suggested divorce, at which point Neil Fergus stated that if the plaintiff ever took the kids away he would kill her.   The plaintiff then called 911 and waited for the police outside.   Three New Milford police officers were dispatched to the plaintiff's residence.   The officers interviewed the plaintiff and obtained her sworn statement, in which she reported the verbal threat and the slashing of her tire.   The plaintiff did not report any physical abuse.   The police also interviewed Neil Fergus, who pointed to an empty wine bottle and told them that he slashed the plaintiff's tire because she had been drinking and he did not want her to drive.   As a result of the investigation, Neil Fergus was arrested for disorderly conduct and transported from the scene to the police department for processing.   Neil Fergus was released after signing a written promise to appear the next day for arraignment and a conditions of release family violence form stating his agreement not to return to the residence or have any contact with the plaintiff until his arraignment.

Neil Fergus was arraigned the next day, December 26, 2008.   Prior to the arraignment, the plaintiff met with a family violence victim advocate and asked for a limited protective order that would not require Neil Fergus, who was working from home at the time, to move out.   However, during the arraignment, a representative of the division of family services addressed the court and explained that there were “allegations going back and forth” between the plaintiff and Neil Fergus and “the reason for the residential stay away protective order was, at this point, to keep the children safe until DCF could go in and do an investigation.”   For this reason, and at the urging of the State's Attorney, the court ordered that a guardian ad litem be appointed to protect the children's interests in the proceeding.   The plaintiff also addressed the court, stating that Neil Fergus was good with the children and that she wanted to avoid his separation from them.   The plaintiff also requested that Neil Fergus be allowed to reside in New Milford as opposed to New York. The court then issued a protective order which prohibited Neil Fergus from (1) imposing any restraint upon the person or liberty of the plaintiff or their children;  (2) threatening, harassing, stalking, assaulting, molesting, sexually assaulting or attacking the plaintiff or their children;  and (3) entering the plaintiff's residence.   The protective order did not prohibit Neil Fergus from contacting or coming within 100 yards of the plaintiff, or entering her place of employment.   The protective order was to remain in effect until the disposition of the underlying criminal case.

Neil Fergus's next court date was January 8, 2009, at which time he applied for the family violence program.   Neither the plaintiff nor the GAL objected.   Rather, the GAL noted that Neil Fergus's inclusion in the program would be in the best interests of the children.   The application was granted and Neil Fergus's criminal case was continued until January 7, 2010, at which time the disorderly conduct charge would be dismissed if he successfully completed the family violence program.   The protective order was not modified and remained in effect.   Neil Fergus was permitted to return to the residence only once, accompanied by the police and while the plaintiff was not there, to retrieve his belongings.

The plaintiff filed for divorce on February 25, 2009.   As part of the divorce proceedings, on March 9, 2009, the plaintiff and Neil Fergus entered into a stipulation/agreement under which (1) the plaintiff would have primary residential custody of the children;  (2) Neil Fergus would have visitation rights every Tuesday afternoon and custody every other weekend;  (3) the exchange of custody would occur in the parking lot of Nordica Toy Store in New Milford;  and (4) Neil Fergus would pay the plaintiff weekly child support.

In the ensuing months, on two occasions, New Milford police officers responded to the Nordica Toy Store parking lot to intervene in disputes between the plaintiff and Neil Fergus.   The first incident was on July 26, 2009, when Neil Fergus called 911 to request police assistance.   The plaintiff documented her perspective of this incident in a journal she kept to document her communications with Neil Fergus since filing for divorce.   The plaintiff stated in this journal that, when Neil Fergus spoke with the police, he falsely accused her of hitting him.   The police did not make any arrests.   The second incident occurred on November 1, 2009, when the plaintiff called for police assistance to report that Neil Fergus was refusing to release custody of their children.   The police responded and, according to the plaintiff, Neil Fergus would not release the children to her because he thought that she would let them spend more time with her next door neighbors, whom he disliked and thought were pedophiles.   The issue was resolved without an arrest.

The next day, November 10, 2009, the plaintiff and Neil Fergus, along with their attorneys, attended a meeting with Julie Fabro, the court assigned family services counselor.   Ms. Fabro informed the parties that, if the divorce went to trial, she would recommend joint custody and that the plaintiff have final decision making power in the event of a disagreement over childcare decisions.   According to the plaintiff, Neil Fergus was angered by this recommendation and stormed out of the courthouse once the meeting was concluded.   The plaintiff was told that Neil Fergus was screaming in the parking lot, however she did not witness or hear this behavior.   Later that afternoon and evening, Neil Fergus called the plaintiff's cell phone twenty times and her home phone twenty-nine times between 3:00 p.m. and 10:40 p.m. The plaintiff answered several of the calls, but was not threatened by Neil Fergus.   However, during one call, he did state his plans to put the plaintiff's mother in a mental institution.   The plaintiff told her divorce attorney about the calls and was instructed to file a harassment complaint with the New Milford police.

On November 14, 2009, the plaintiff went to the New Milford Police Department to file a harassment complaint.   The plaintiff spoke first with a dispatcher, who confirmed that a protective order was in place and radioed for an officer to field the plaintiff's complaint.   Officer Wilczek responded to the department to investigate what dispatch had advised to be a potential violation of a protective order.   Officer Wilczek obtained a copy of the protective order from the dispatcher before meeting with the plaintiff.   Officer Wilczek had not responded to any of the prior calls for assistance from the plaintiff or Neil Fergus, nor had he met or spoken to either one prior to that date.

Officer Wilczek met the plaintiff in the lobby and took her to an interview room.   The plaintiff told Officer Wilczek that she was making a complaint at her attorney's insistence and did not want Neil Fergus arrested.   Officer Wilczek explained to the plaintiff that the decision to arrest Neil Fergus was not hers to make.   The plaintiff brought with her a micro-cassette recorder, containing voice messages left by Neil Fergus, as well as her journal of communications.   Officer Wilczek and the plaintiff listened to the fourteen messages, which spanned from September 10, 2009, to November 11, 2009.   In most of the messages, Neil Fergus inquired about the children, his visitation rights, the pending divorce and the plaintiff's next door neighbors.   None of the messages contained threats of violence and the plaintiff did not report any such threats.

Officer Wilczek reviewed the provisions of the protective order with the plaintiff but did not inquire of the plaintiff as to the nature of the incident resulting in the protective order.   Officer Wilczek also did not obtain a copy of the December 25, 2008 police report prior to speaking with the plaintiff, nor did he obtain a copy immediately after the interview concluded.   Officer Wilczek did not see the December 25, 2008 police report until after the plaintiff was assaulted later that day.

The plaintiff informed Officer Wilczek that Neil Fergus was living in New Milford on Kent Road.⁴ The plaintiff also advised Officer Wilczek that Neil Fergus was scheduled for visitation with the children that day and that she had received a voice mail from him about the visit while she was waiting in the police department lobby.   The plaintiff also received a call from Neil Fergus while she was reviewing the voice messages with Officer Wilczek.   The plaintiff answered the call in Officer Wilczek's presence and no threats were made during that conversation.

Officer Wilczek had the plaintiff document her allegations in a sworn statement.   The plaintiff stated that she had been advised by her attorney to file a criminal harassment complaint;  recounted the November 10, 2009 meeting with Ms. Fabro and the forty-nine calls she received later that day;  stated that Neil Fergus had not exercised his child visitation rights on multiple occasions;  and noted that Neil Fergus had called her cell phone multiple times while she was at the police department and left voice mails asking to see the children that weekend so he could tell them he was moving to New York. The plaintiff completed her sworn statement at approximately 2:41 p.m.

After the interview with the plaintiff, Officer Wilczek recorded and logged all of the voice messages provided by the plaintiff.   This took approximately one hour.   Officer Wilczek then informed the plaintiff that he would need to contact Neil Fergus to follow up on her complaint.   The plaintiff gave Neil Fergus's cell phone number to Officer Wilczek.   Before the plaintiff left the police department, Officer Wilczek specifically asked the plaintiff if she felt that Neil Fergus posed a danger to her.   The plaintiff responded that she did not and, according to Officer Wilczek, appeared calm and unconcerned for her safety.

Based on the information provided by the plaintiff, Officer Wilczek had not yet made a probable cause determination and hoped to obtain more information from Neil Fergus.   At approximately 4:45 p.m., Officer Wilczek called Neil Fergus, identified himself and asked Neil Fergus why he had called the plaintiff repeatedly on November 10, 2009.   Neil Fergus stated that the plaintiff would not let him see the children or respond to his calls about an eye injury suffered by one of the children.   He also stated that the plaintiff had called the police several times in the past to try to get him arrested, without success.   Officer Wilczek told Neil Fergus that he wanted to meet in person to document his side of the story, to which Neil Fergus replied that Officer Wilczek should do something about the plaintiff's neighbors, whom he described as pedophiles.   Neil Fergus then asked if he was going to be arrested.   Officer Wilczek advised him that the investigation was ongoing and again asked to meet in person to get Neil Fergus's side of the story.   Neil Fergus proceeded to ask Officer Wilczek several more times whether he would be arrested, to which Officer Wilczek responded that the investigation was not complete and that Neil Fergus should contact the police department if he wanted to provide a statement or had any questions.   Neil Fergus did not state his location at any point during his conversation with Officer Wilczek and did not say anything that caused Officer Wilczek concern.   Although it was apparent to Officer Wilczek that Neil Fergus was “pretty upset” that the plaintiff had contacted the police, and Officer Wilczek knew that there was a protective order in place, that Neil Fergus and the plaintiff were in the midst of a divorce, and that Neil Fergus was upset about custody issues, Officer Wilczek was unaware of any acts of violence in Neil Fergus's past, including the December 25, 2008 incident.

After leaving the police department earlier that day, the plaintiff went out to lunch by herself and then returned home, where her mother was watching the children.   The plaintiff was preparing to take two of the children out to dinner when she answered a call from Neil Fergus.   During the short conversation, Neil Fergus told the plaintiff that the police had contacted him and he was probably going to be arrested.   He then told her, “this is what's going to happen when I get out of prison,” and hung up.   The plaintiff “shrugged off” the call.   Ten to fifteen minutes later, the plaintiff and two of the children were in the car, about to pull out of the driveway, when Neil Fergus parked his car in front of the house.   Neil Fergus exited his car and walked towards the driver's side door of the plaintiff's car.   The plaintiff rolled down the window because “she thought Neil wanted to talk,” and that, perhaps, something had happened to one of his relatives.   Neil Fergus then opened the driver's side door and tried to pull the plaintiff out of the car, stabbing her multiple times with a knife in the process.   The plaintiff escaped the vehicle and fled to the front door of the house, where her mother let her in, locked the door behind her and called 911.   The New Milford police received the 911 call at approximately 4:57 p.m., about twelve minutes after Officer Wilczek had contacted Neil Fergus.   While the police were en route, Neil Fergus forced his way into the house, further assaulted the plaintiff and her mother, and then exited the house upon hearing the responding police sirens.   Neil Fergus was arrested at the scene and charged with, inter alia, attempted murder.⁵

Approximately one week later, on November 22, 2009, Officer Wilczek completed a warrant affidavit for Neil Fergus's arrest on charges of harassment in the second degree and violation of a protective order in connection with the voice messages reported by the plaintiff on November 14, 2009.

D

Analysis

The defendant moves for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff's complaint is barred by the doctrine of governmental immunity under the common law and General Statutes § 52–557n(a)(2)(b).  According to the defendant, the investigatory conduct for which the plaintiff seeks to recover was discretionary, not ministerial, and the imminent harm/identifiable victim exception does not apply to abrogate governmental immunity.   Alternatively, the defendant moves for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff cannot establish the element of causation, in that the plaintiff cannot establish that the assault would not have occurred but for the investigative conduct of Officer Wilczek.

The plaintiff does not dispute that the defendant's conduct was a discretionary function but argues that she was an identifiable victim subject to imminent harm and, therefore, the defendant is not shielded from liability.   The plaintiff also argues that the evidence is sufficient to permit a jury to find that Officer Wilczek's actions and inactions were a proximate cause of her injuries.

1

Imminent Harm/Identifiable Victim Exception

“The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law ․ General Statutes § 52–557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages ․ The first part of the statute provides for the possibility that a municipality may be liable for negligently performed ministerial acts by stating that ‘a political subdivision of the state shall be liable for damages to person or property caused by ․ A) [t]he 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.’  ․ The second part of the statute then distinguishes discretionary acts from those that are ministerial by stating that ‘a political subdivision of the state shall not be liable for damages to person or property caused by ․ (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.’  ․ Generally, liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Coley v. Hartford, 140 Conn.App. 315,321–22, 59 A.3d 811 (2013).

“It is well settled in Connecticut that under most circumstances, law enforcement activity is inherently discretionary.”  Notice v. Plainville, Superior Court, complex litigation docket at Hartford, Docket No. X03–CV–11–6017990–S (August 12, 2013, Miller, J.) [56 Conn. L. Rptr. 640], citing Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988);  see Coley v. Hartford, supra, 140 Conn.App. 323 (“[t]he great weight of authority [states] that the operation of a police department is a discretionary governmental function” (internal quotation marks omitted)).   “Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer ․ The policy behind discretionary act immunity for police officers is based on the desire to encourage police officers to use their discretion in the performance of their typical duties.   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.”  (Citation omitted;  internal quotation marks omitted.)  Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011).   In the present case, the parties do not dispute, and this court finds as a matter of law, that the defendant's actions were discretionary.

“The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary:  first, where 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 ․ second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.”  (Internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 95 n.4, 931 A.2d 859 (2007).

The present case concerns only the first exception, i.e., imminent harm/identifiable victim.  “This exception was first recognized in Sestito v. City of Groton, 178 Conn. 520, 423 A.2d 165 (1979).   A policeman saw a fight which involved at least seven men and allegedly failed to stop it.   As he was driving away from the scene of the fight, one of the combatants shot and killed plaintiff's decedent.   Our Supreme Court recognized a cause of action against the police officer because the facts supported the conclusion that the victim was identifiable and that it was apparent to the officer that if he failed to take action, the victim was in danger of imminent harm.   Since Sestito was decided in 1979, many plaintiffs have tried to use it as a basis for their claims against police officers and other municipal employees.”  Notice v. Plainville, supra, Superior Court, Docket No. X03–CV–11–6017990–S.  “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 ․ If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.”   (Internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 350, 984 A.2d 684 (2009).

In the present case, the defendant does not contest that the plaintiff was an identifiable victim, but argues, instead, that the undisputed facts “establish with crystal clarity” that the plaintiff was not subject to imminent harm because any potential harm arising from Officer Wilczek's conduct was not specific to any place or limited in duration.   The defendant asserts that any danger Neil Fergus posed to the plaintiff was not specific to her property and the only way to protect the plaintiff from harm would have been to provide her with a police escort and constant surveillance until Neil Fergus was located.   The defendant also contends that Neil Fergus happened to commit the assault shortly after speaking to Officer Wilczek but he could have waited days, months or years before doing so.   According to the defendant, even if Neil Fergus was arrested, as the plaintiff contends should have happened, such a course of action was guaranteed only to prolong, but not eliminate, the threat he posed to the plaintiff.   The defendant further contends that the plaintiff's theory of liability is undone by the fact that neither the plaintiff, Officer Wilczek nor any other agent of the defendant had the information necessary to locate and arrest Neil Fergus prior to the assault.   The defendant argues that the claimed risk posed by Neil Fergus to the plaintiff might have been realized, if at all, at some unknown future time and place, and, therefore, was not imminent as a matter of law.

The defendant also argues that there is no evidence from which a reasonable juror could find that it should have been apparent to Officer Wilczek that his contested acts and purported omissions would place the plaintiff in imminent danger of being assaulted with a knife, at her residence, minutes after he spoke to Neil Fergus.   According to the defendant, the messages reported by the plaintiff did not “in and of themselves violate the protective order, [and] did not contain a single threat of violence, let alone indicate an intent to kill.”   Rather, the defendant contends, Neil Fergus made no threats of violence towards the plaintiff in the eleven months between the issuance of the protective order and the time he committed the assault.   In fact, the defendant asserts, “[t]wo additional facts absolutely require the conclusion that the assault could not have been foreseeable to Officer Wilczek after he fielded [the] plaintiff's complaint.   First, it is undisputed that Mr. Fergus called [the] plaintiff after his conversation with Officer Wilczek ․ Second, even after this call, [the] plaintiff did not perceive that Mr. Fergus would try to harm her ․ [The][p]laintiff's undisputed reaction to his arrival at her house, minutes later, makes this crystal clear.”  (Emphasis in original.)   According to the defendant, the plaintiff had the opportunity to “drive off and seek help” but decided, instead, to roll down the window.   Thus “[i]f [the] plaintiff could not have anticipated the harm in question, even as it materialized, certainly the [defendant] cannot be liable for Officer Wilczek's inability to do so.”

In contrast, the plaintiff argues that the defendant's liability rests on the facts actually known to Officer Wilczek prior to the assault together with the facts which should have been known to him had he performed his duties with reasonable care and competence.   The plaintiff contends that Officer Wilczek knew that a protective order had been issued but failed to become informed of the circumstances underlying its issuance, which reflects a departure from the investigative standards applicable to the New Milford Police Department.   The plaintiff asserts that, had Officer Wilczek become so informed, he would have known that the conduct underlying the issuance of the protective order involved threatening behavior, by Neil Fergus towards the plaintiff, specifically connected to any action the plaintiff might take which would imperil Neil Fergus's relationship with his children.   The plaintiff further argues that Officer Wilczek knew that Neil Fergus had become extremely upset, several days earlier, upon learning of the custody and visitation recommendation of the family relations counselor, “unleashing his tsunami” of telephone calls to the plaintiff, that Neil Fergus was extremely upset that the plaintiff had gone to the police as a result of these telephone calls and believed he was subject to imminent arrest and incarceration;  and, based on his training and experience, knew that the level of violence escalates significantly when a victim seeks assistance.

Additionally, according to the plaintiff, in claiming a lack of temporal and geographic boundaries, the defendant ignores the fact that the events and conduct actually occurred within a period of less than three hours “in one small part of one small town.”   The plaintiff asserts that this was not a threat of indeterminate and indefinite duration, but a threat arising directly from two events:  the custody meeting and Officer Wilczek's telephone call which “led Mr. Fergus to believe that his opportunity to inflict harm on Ms. Fergus was soon to be curtailed by his arrest.”

The plaintiff further contends that Officer Wilczek's ignorance as to Neil Fergus's location on the afternoon in question is irrelevant to the issue before this court, which is whether Officer Wilczek knew or should have known that his actions, or failure to take action, subjected the plaintiff to an imminent risk of harm at the hands of Neil Fergus.   The plaintiff also notes that, regardless, there is no evidence that Officer Wilczek would have encountered any difficulty in ascertaining Neil Fergus's whereabouts had he made “even rudimentary attempts” to do so, and Officer Wilczek could have provided protection to the plaintiff until Neil Fergus's whereabouts could be ascertained and a custodial arrest effected.

Finally, the plaintiff argues that the defendant's assertion, that the lack of imminence is demonstrated by the fact that the plaintiff, herself, did not feel she was at imminent risk of injury from Neil Fergus, fails because the question is what should have been apparent to Officer Wilczek, a trained police officer, not the plaintiff.   Moreover, Officer Wilczek was in possession of a critical piece of knowledge which the plaintiff was not, i.e., that Neil Fergus was extremely upset upon learning that the plaintiff had involved the police and apparently believed that he was very shortly to be arrested and incarcerated.

In reply, the defendant argues that the imminence prong does not hinge on when and where the harm in question “actually occurs,” but rather whether it could only have occurred at the time and place it did, or, in other words, it could not have occurred at any time in the future.   The plaintiff cannot establish that the harm posed by Neil Fergus was confined to her property on the afternoon of November 14, 2009.   According to the defendant, the only ways to eliminate the risk in question would have been to provide the plaintiff with constant police protection, indefinitely, and conduct constant police surveillance of Neil Fergus, indefinitely—”[n]either option is feasible which is why the law does not obligate municipalities to protect their citizens from being harmed at some unknown point in time by third parties.”   The defendant also argues that the plaintiff's argument on geographical boundaries proposes what settled law rejects, to wit, that the identifiable victim/imminent harm exception can apply to risks of harm which encompass entire municipalities, from town line to town line.   According to the defendant, our Supreme Court precedent demonstrates that the risk must be confined to a specific location at which the plaintiff was compelled to be when the harm occurred, and there was no requirement that the plaintiff be present at her home when the assault occurred.

As to the apparentness prong, the defendant argues that the plaintiff cannot establish that Officer Wilczek knew or should have known that Neil Fergus was en route to the plaintiff's residence to attack her with a knife and that the plaintiff would be home when Neil Fergus arrived.   The defendant also asserts that Officer Wilczek's general understanding that family violence escalates when a victim seeks assistance is irrelevant to his conduct in response to the plaintiff's telephone harassment complaint—a complaint which was made four days after the fact.   The plaintiff explicitly told Officer Wilczek that she did not fear that Neil Fergus would harm her or the children, and “the undisputed facts show that, up until the very moment that Mr. Fergus committed the heinous assault in question, the threat that he might do so was not apparent to anyone, including Mr. Fergus himself.”

It is useful to begin by reviewing the basic propositions, developed by our appellate courts, on the imminent harm prong.  “[T]he question of the existence of imminent harm is a factual issue ․” Purzycki v. Fairfield, 244 Conn. 101, 105, 708 A.2d 937 (1998).   In Evon v. Andrews, 211 Conn. 501, 502–03, 559 A.2d 1131 (1989), the plaintiffs argued that a municipality and its officials were negligent in failing to properly enforce statutes, regulations and codes concerning the maintenance of rental dwellings after a fire destroyed a multi-family rental unit, resulting in multiple deaths.   Our Supreme Court held that the municipality and its officials were immune from liability, noting that “[t]he gravamen of the plaintiffs' allegations is that the defendants had not done enough to prevent the occurrence of a fire.   The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future.   The class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of ‘identifiable persons' ․ Furthermore, the plaintiffs' decedents were not subject to ‘imminent harm.’  ․ [T]he fire could have occurred at any future time or not at all.”  (Citations omitted.)  Id., 507–08.   The court explained that “[t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society.”  (Internal quotation marks omitted.)  Id., 508.

In contrast, in Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), our Supreme Court held that governmental immunity was not a defense where a schoolchild slipped and fell, during school hours, due to icy conditions on a main accessway of the school campus.   In reaching its conclusion, the court distinguished Evons, noting that “the danger was limited to the duration of the temporary icy condition in this particularly ‘treacherous' area of the campus ․ [and] the potential harm from a fall on ice was significant and foreseeable.”  Id., 650.   Similarly, in Purzycki v. Fairfield, supra, 244 Conn. 106–11, our Supreme Court, relying on Burns, held that governmental immunity was not a defense where a schoolchild was tripped by a fellow student while running down a hallway to recess.   Like in Burns, it was critical to the court's decision that the case involved “a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess.   Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision.   Finally, the risk of harm was significant and foreseeable, as shown by the principal's testimony ‘that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries.’  “ Id., 110.   Interestingly, the court noted that “although the absence of prior similar incidents may induce a jury to find an absence of liability, it does not foreclose a finding of liability, as a matter of law, for the first incident that occurs.”  Id., 111.   The court also noted that there was evidence “that the principal knew, based upon his knowledge of the relatively minor degree of judgment and experience of young schoolchildren, that they repeatedly violated the rules and that they will engage in horseplay when left unsupervised.”  Id., 113.

In Tryon v. North Branford, 58 Conn.App. 702, 755 A.2d 317 (2000), the Appellate Court found a genuine issue of material fact as to whether imminent harm existed, where the plaintiff was bitten by a dog during a firefighters parade.   The court noted that “[b]ecause the question of imminent harm is a factual one ․ a jury or factfinder would need to assess the credibility and the weight to be given [to] [the dog owner's] testimony.”  (Citation omitted.)  Id., 716.   The court explained that “[t]he question is not whether a dog at a parade creates a condition of imminent harm per se, but whether the act or failure to act of [the dog owner] in preventing his dog from being in close proximity to the plaintiff created a situation of imminent harm to the plaintiff.   Here, the harm caused was not of an unspecified type that could have occurred at any time or at any place in the future or to anyone.”   Id., 717.

Most useful to this court's analysis is the manner in which these established principals have been applied to cases similar to the present case.   In Finkle v. Carroll, Superior Court, judicial district of Waterbury, Docket No. CV–08–5011369–S (September 17, 2010, Ozalis, J.) (50 Conn. L. Rptr. 681), aff'd, 134 Conn.App. 278, 37 A.3d 851, cert. denied, 305 Conn. 907, 44 A.3d 184 (2012),⁶ the court found that genuine issues of material fact existed as to whether a murder victim was subject to imminent harm and whether it was apparent to the police officer that his conduct was likely to subject the victim to harm.   Unfortunately, the court did not engage in a substantive analysis, but a review of the facts is enlightening.

The action arose from the murder of Barbara Eckert by her former boyfriend, Mark Tannenbaum.  Id. The complaint alleged that the police officer negligently exercised his duty to Eckert by failing to properly charge Tannenbaum and by releasing him without proper conditions and restrictions, and this negligence resulted in Eckert's murder a short time after his release from police custody.  Id. The evidence before the court indicated that the couple's domestic issues first came to the attention of the police in 2001, and, in January 2002, the police responded to the couple's residence concerning a complaint by Tannenbaum that Eckert had struck him in the chest.  Id., 682.   Later that same day, the police once again responded to the residence concerning Eckert's claim that Tannenbaum had threatened, over the phone, to kill her.  Id. The police arrested Tannenbaum at his place of employment.   Id. A mutual protective order was then issued.  Id. Two months later, on March 30, 2002, the police responded to a disturbance call at a church, where bystanders reported that Tannenbaum was beating on Eckert's truck in the parking lot.  Id. Eckert reported to the police that, at the church, Tannenbaum had threatened to kill her and himself.  Id. Tannenbaum was arrested for breach of peace.  Id. The next day, March 31, Eckert filed a complaint with the police, alleging that Tannenbaum had made threatening phone calls to her home and that he continued to harass her in violation of the protective order.  Id. “Eckert informed the police that Tannenbaum told her that he had a gun, and was coming to kill her and take her ‘to hell with him,’ and he was going to kill himself as well.”  Id. Eckert reported to the police that she was “deathly afraid” of Tannenbaum and that she believed he was “capable of carrying out this threat on my life.”  (Internal quotation marks omitted.)  Id. Tannenbaum was arrested and held until his court date the next day.  Id. On April 1, 2002, Eckert obtained another protective order.  Id. “[O]n June 7, 2002, at or about the time of Tannenbaum's guilty pleas on violation of protective order and threatening charges, Eckert wrote to the criminal court ․ that she had been monitoring Tamnenbaum's behavior through friends and/or associates and he has been going to counseling sessions and has been taking better care of himself.   I feel if he continues with his counseling and continues to have a stable attitude that he should be allowed to come home and see his son.”  (Internal quotation marks omitted.)  Id., 682–83.  “The court records note the two guilty pleas and the message ‘no violence to Barbara Eckert.’  “ Id., 683.

On September 28, 2002, Tannenbaum received a call from Eckert's teenage son late in the evening who told Tannenbaum that Eckert was not home and he needed relief from taking care of Eckert and Tannenbaum's one-year-old child.  Id. When Tannenbaum arrived at the home, Eckert was not present.  Id. When Eckert arrived home in the early morning hours with a male friend, Tannenbaum approached the vehicle and began punching the driver's side window.  Id. When Eckert refused to exit the vehicle, Tannenbaum began punching the passenger's side window.  Id. Eckert and her male friend then drove to the police station to file a complaint against Tannenbaum.  Id. While filing her complaint, Eckert's phone rang several times and the officer could hear a male voice yelling through the phone.  Id. The third time the phone rang, the officer answered it and Tannenbaum stated “I'll kill you.”  (Internal quotation marks omitted.)  Id. The officer identified himself as a police officer and asked Tannenbaum for his location, and Tamnenbaum told him that he was at Eckert's house.  Id. The police responded to Eckert's residence and found Tannenbaum angry, smelling of alcohol, and insisting that Eckert be arrested for leaving the children alone.  Id. Tannenbaum was arrested, processed at the police station and then released on a promise to appear.  Id. The police then took Tannenbaum back to Eckert's residence to retrieve his motorcycle and waited until Tarmenbaum drove away.  Id. Thereafter, Tannenbaum was picked up by a cab and, after requesting that the cab slowly drive past Eckert's house, he was dropped off near the back of Eckert's house.  Id. Tannenbaum then murdered Eckert and killed himself.  Id.

Similarly, in Notice v. Plainville, supra, Superior Court, Docket No. X03–CV–11–6017990–S, the court denied a motion for summary judgment, finding that a jury could conclude that the police officers “did not do everything they could have done to protect Ms. Notice from the ex-boyfriend who eventually murdered her” and could reasonably find that they “were negligent and that this negligence subjected Tiana Notice, who was an identifiable victim, to a risk of imminent harm which should have been apparent to one or more of these defendants.”   This was a tragic case in which Tiana Notice was stabbed to death by her former boyfriend, James Carter, Jr., who repeatedly, and in an escalating fashion, violated the restraining order Tiana Notice had against him.   A review of the facts that led the Notice court to determine that a jury could reasonably find “imminent harm” is warranted, especially in light of the Notice court's observation that “[a]lmost all Sestito actions involving alleged negligent law enforcement fail because of an inability to demonstrate ‘imminent harm.’ “

The Notice court began its analysis by noting that “[b]etween January 16, 2009, when she obtained the restraining order, and her death on February 14, 2009, Ms. Notice had more than 30 contacts with eight different Plainville police officers, all regarding conduct by Carter.”  Id. “On January 13, 2009, after the ex parte order was issued, Ms. Notice complained to the Plainville police about ․ continuing e-mails from ‘Jessica Banderas,’ “ whom the police believed to be Carter.  Id. The court explained that “[w]hether ‘Jessica Banderas' or James Carter, Jr. sent these emails, each email was a violation of Carter's restraining order, which prohibited him from contacting Ms. Notice, either directly or through a third party.   A jury could find that the e-mails were both harassing and threatening.”  Id. The defendants did not apply for a search warrant to obtain Carter's IP address, nor, after Carter admitted that “Banderas” had sent emails from his computer, did the defendants apply for an arrest warrant for Carter's violations of the restraining order.   Id. On the night of February 6–7, 2009, all four of Ms. Notice's tires were slashed, but Carter was never interviewed and the vandalism complaint was closed without action taken against Carter.  Id. On February 13, 2009, the day before the murder, Carter called Ms. Notice repeatedly at her place of employment, even though the restraining order prohibited such calls.  Id. Ms. Notice called the Plainville police after the last call to report them, but the police took no action, “even though they had—or could easily obtain—probable cause to apply for an arrest warrant.”  Id. On that same day, Carter left a note on Ms. Notice's apartment door, asking for forgiveness, denying that he cheated on her and calling upon God to take his life if he was lying.  Id. The note was unsigned and the defendants closed the file after being unable to verify the handwriting as Carter's.  Id. The defendants did not consider the contents of the note to be threatening.  Id.

Also on that same day, Carter sent two emails to Ms. Notice, which she did not receive until the next morning, at which time she brought copies to the police.  Id. A police officer described one email as “an apocalyptic-type of letter.   It was a life or death situation and he's telling her not to go to the police.”  Id. Another officer was disturbed by the content of the emails, noting that the longer one sounded “desperate” and that Carter seemed to be “at his wits end.”  Id. The officer was also concerned that Carter was making no effort to conceal his identity in those emails.  Id. The officer assigned to investigate “spent a few minutes speaking to Ms. Notice and told her that Carter might even be arrested that same night.”  Id. The officer then decided to call Carter, even though the e-mail asked Ms. Notice not to go to the police.  Id. Carter returned the officer's call at 7:58 p.m. and admitted that he sent the emails to Ms. Notice.  Id. The officer told Carter that “he would not be arrested that night ․ but that he would be arrested as soon as [the officer] assembled enough evidence for a warrant.”  Id. The officer also told Carter that “as of right now you are not in any trouble.”   (Internal quotation marks omitted.)  Id. Less than two hours after the officer spoke with Carter, the police received a 911 call from Ms. Notice, reporting that she had been stabbed repeatedly and that she was bleeding to death.  Id.

In reaching its conclusion that a jury could reasonably find that the defendants were negligent in their handling of Carter's harassment of Ms. Notice and the criminal acts which he committed against her prior to the murder, the court noted that the defendants never obtained a criminal record history on Carter, which would have shown that Carter had a prior domestic violence assault conviction involving a prior girlfriend.  Id.

As observed by the Notice court, “[a]lmost all Sestito actions involving alleged negligent law enforcement fail because of an inability to demonstrate ‘imminent harm,’ “ because “[u]sually, there is a significant lapse of time between the allegedly negligent conduct and the harm complained of.”  Id. In Beaubien v. Middletown, Superior Court, judicial district of Middlesex, Docket No. CV–10–6002059–S (August 1, 2012, Morgan, J.) (54 Conn. L. Rptr. 476, 478, 480), the court observed that “numerous Superior Courts have found that the imminent harm prong of the exception has not been satisfied where the dangerous condition is not limited in duration or geographical scope,” and granted summary judgment where over five months lapsed between the alleged negligence and the murder.⁷  Specifically, the court found that “[n]one of the negligent conduct alleged against the defendant subjected Woolley [the victim] to ‘imminent harm’ within the meaning of that phrase as defined and applied by our courts.   The defendant was never asked to intervene in an ongoing altercation between Woolley and Coulombe [the victim's ex-boyfriend].   The defendant did not receive any information that Coulombe was en route to confront Woolley at a particular location or that he had current access to or possession of a gun.   The information received by the defendant ․ related to an incident that occurred over ․ five months prior to Woolley's death.   Similarly, [other] information received ․ did not relate to any direct threats against Woolley.   Even if the defendant's police officers had caused the arrest of Coulombe after ․ [receiving the information], it is entirely possible that Coulombe would have been released from custody following his arrest and thus able to reach Woolley at any time.   None of the alleged negligence against the defendant occurred on the day of the murder or at the location of the murder.   The risk of harm to Woolley created by the alleged deficiencies of not arresting Coulombe or warning Woolley that she might be in danger could occur, if at all, at any time and place in the future.”  Id., 479–80.

Similarly, in Anglin v. East Hartford, Superior Court, judicial district of Hartford, Docket No. CV–06–5001800–S (September 27, 2007, Bentivegna, J.), the court granted a motion to strike where the victim's husband previously threatened to kill her;  police responded to a domestic violence complaint by the wife where she alleged that her husband had threatened to kill her with a gun he kept hidden in a neighbor's barbeque grill;  no arrest was made after this report;  and the husband killed his wife and two daughters fifteen days later.   The court held that the imminent harm prong was not satisfied because the police had no information regarding when or where in the future the victims would be murdered, if at all.  Id.

Likewise, in Florence v. Plainfield, 50 Conn.Sup. 1, 909 A.2d 587 (2006), the court granted summary judgment where the police received reports of domestic violence against the victim by her boyfriend over a period of seven months, the most recent report being received two days before the boyfriend shot and killed the victim and her unborn child.   The court found that none of the alleged negligent conduct had occurred on the day of the shooting or at the location of the murder.  Id., 9–10.   The court reviewed a number of earlier “imminent harm” decisions, and observed that “[i]t is evident that our case law imposes a ‘then and there’ characteristic with respect to ‘imminent harm.’   There is a distinction between negligent acts or omissions that create a foreseeable and even continual exposure to harm at some unknown, future time and place, and imminent harm.'  ․'[I]mminent harm' is a risk of injury confined to a particular place and of short duration.”  Id., 9. In finding that the defendants retained qualified governmental immunity, the court explained that the risk of harm created by the alleged negligence of allowing the boyfriend to remain at large “could occur, if at all, at some unspecified time and place in the future.”  Id., 10.

In Alexander v. Vernon, Superior Court, complex litigation docket at Tolland, Docket No. X07–CV–02–0078935–S (May 3, 2004, Sferrazza, J.), aff'd, 101 Conn.App. 477, 923 A.2d 748 (2007), the trial court granted summary judgment, finding that the dangerous condition was not sufficiently limited in time or location.   The police first became involved with the couple on February 12, 2000, when the victim, Sheila Caldwell, called, requesting assistance at her residence as she was in the process of leaving her husband, Arman Caldwell, and needed police protection while she retrieved her belongings.  Id. Upon arrival, the officers interviewed both the husband and the wife.  Id. Sheila informed the police that the couple had argued the previous day, that Arman had physically assaulted her and restrained her from calling the police, and that, in the past, he had threatened her with a knife.  Id. Arman told a different story.  Id. Both spouses refused to give a written statement and, upon a records check, the police learned that neither spouse had any outstanding arrest warrants, or protective or restraining orders issued against them.  Id. The officers remained while Sheila retrieved her belongings and then left in the company of her mother.   Id. Later that evening, Sheila again called the police to report that Arman had called her and informed her that he had destroyed the contents of their home.  Id. Sheila met the police at the residence, and the officers observed extensive damage.  Id. Sheila told the police that she was afraid of Arman and that he had threatened to kill her if she left him.  Id. Sheila gave a written statement confirming that she wanted Arman arrested for the damage done to the home.  Id. Sheila then left the residence in the company of friends and family.  Id. The next day, she received a harassing phone call from Arman at her mother's home where she was staying with her minor children.   Id. Sheila notified the police and advised them that she was unaware of Arman's location.  Id. Early in the afternoon the next day, Arman broke into the house where Sheila was staying and fatally shot her and then himself.   Id.

The trial court framed the issue as “whether, at the time of the officers' decision not to make a warrantless arrest of Arman Caldwell [on February 12, 2000], it was apparent that such inaction would place Sheila Caldwell at risk of imminent harm.”  Id. The court answered that question in the negative, noting that “[n]o evidence was submitted ․ from which a reasonable trier of fact could logically infer that, two days later, Arman would travel to his mother-in-law's home in another town and murder his wife unless he were immediately arrested on February 12, 2000.”  Id. The court explained that “in order to invoke the imminent harm to an identifiable person exception, the apparent danger must be temporally and spatially limited.   Here, the claimed risk can only be that, at some unspecified date after Sheila Caldwell departed her residence, her husband would track her down and kill her.   This is a risk which might be realized, if at all, at some future unknown time and place and therefore cannot give rise to the imminent harm to an identifiable person exemption to qualified, governmental immunity.”Id.

Similarly, in Czap v. Newtown, Superior Court, judicial district of Danbury, Docket No. CV–95–0322425–S (December 18, 1998, Moraghan, J.) (23 Conn. L. Rptr. 554), the court granted summary judgment where the police responded to a domestic violence incident between Christine Czap and Michael Swift, and arrested Swift but failed to confiscate the gun he was carrying.   Seven days later, Swift returned to Czap's residence and killed her and then himself.   Id. The court held that the imminent harm exception did not apply because, although there was evidence that Swift had threatened to use the gun one month earlier, there was no indication that he intended to carry out that threat at any particular time.  Id., 554–55;  see Kalina v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV–89–265812–S (April 21, 1994, Pittman, J.) [11 Conn. L. Rptr. 366] (motion to strike granted on the ground that the murder could have occurred at any time in the future or not at all, where decedent reported an assault and threats on her life by her estranged husband two days before he fatally shot her).

These cases demonstrate the difficulty of showing, specifically in the domestic violence context, the “imminency of harm” because of the “significant lapse of time between the allegedly negligent conduct and the harm complained of.”  Notice v. Plainville, supra, Superior Court, Docket No. X03–CV–11–6017990–S.   As our Appellate Court has noted, “[f]or harm to be deemed imminent, the potential for harm must be sufficiently immediate ․ The risk of harm must be temporary and of short duration ․ Immediate harm excludes risks that might occur, if at all, at some unspecified time in the future.”   (Internal quotation marks omitted.)  Haynes v. Middletown, 142 Conn.App. 720, 736, 66 A.3d 899, cert. granted, 309 Conn. 919, 70 A.3d 1067 (2013).   “Imminent [harm] does not simply mean a foreseeable event at some unspecified point in the not too distant future.   Rather, [our Supreme Court] [has] required plaintiffs to identify a discrete place and time period at which the harm will occur.”  Bonington v. Westport, 297 Conn. 297, 314, 999 A.2d 700 (2010).

In the present case, the plaintiff has presented a compelling case for allowing the matter to proceed to trial.   The plaintiff submitted select pages from “Police Response to Crimes of Family Violence:  Model Policies, Procedures and Guidelines,” which Deputy Chief Mark Buckley testified ⁸ were the standing policies and procedures for the New Milford Police Department on the date in question.   This document states that “[a]n officer may arrest anywhere within Connecticut if s/he has probable cause to believe the suspect has committed a felony.”   This document also states that “ ‘[s]peedy information’ is not required for a felony arrest, however, absent speedy information:  it is recommended that the officer obtain an arrest warrant unless there is a concern for safety and/or flight.”   According to Deputy Chief Buckley, this standing policy also required an officer to make a custodial arrest and transport the arrestee to headquarters for all misdemeanor or felony offenses involving domestic problems,⁹ and effectively divested a police officer of the discretion to make such an arrest.   Deputy Chief Buckley also testified that the written policies and procedures of the New Milford Police Department require officers to review the specifics of a protective order with a complainant and that it would be “prudent” for an officer to determine, with the complainant, the reason for the issuance of the protective order.   According to Deputy Chief Buckley, determining the reason for the issuance of a protective order would be part of a thorough investigation and that, if the protective order was issued in connection with an arrest, part of doing a thorough investigation would be to determine what charges led to or resulted from the arrest.¹⁰

In viewing the facts in a light most favorable to the plaintiff, this court concludes that a fair and reasonable juror could find the following.   Officer Wilczek's failure to obtain a copy of the December 25, 2008 police report prior to or after speaking with the plaintiff, or asking the plaintiff about the nature of the circumstances that resulted in the protective order, was a deviation from the policies and procedures of the New Milford Police Department.   If Officer Wilczek had obtained this information, he would have perceived Neil Fergus's reaction to the family services counselor's recommendation concerning the children and the resulting forty-nine phone calls to the plaintiff in a span of less than eight hours to be indicative of Neil Fergus's state of mind when it came to access to his children.   If Officer Wilczek had known the circumstances resulting in the protective order, he would have understood that informing Neil Fergus of the plaintiff's harassment complaint, but failing to arrest Neil Fergus for a violation of the protective order, would result in Neil Fergus being the serious threat to the plaintiff that he turned out to be.   The trier of fact could conclude that any possibility that Neil Fergus would not have access to his children was likely to result in immediate, exaggerated and violent behavior based on his December 25, 2008 threats and his November 10, 2009 reaction to the family service counselor's recommendation.   A reasonable trier of fact could also find that Neil Fergus would actively seek out the plaintiff at the location where she was most likely to be, i.e., her home, his former residence and the home of his children, and assault the plaintiff upon learning of the plaintiff's harassment complaint to the police.

A jury could also find that the forty-nine phone calls to the plaintiff constituted harassment, in violation of the protective order, and that Officer Wilczek should have, in accordance with the policies and procedures of the New Milford Police Department, made a custodial arrest of Neil Fergus and transported him to the police station.   A reasonable juror could conclude that the combination of Officer Wilczek's failure to obtain a copy of the December 25, 2008 police report and his failure to follow the policies and procedures of the New Milford Police Department resulted in the assault on the plaintiff at her home within minutes of Officer Wilczek's phone call to Neil Fergus.

It is worth noting that, unlike many of the cases cited in this opinion, the alleged negligence in the present case occurred on the same day as the assault on the plaintiff.   The present case actually has striking similarities to Notice v. Plainville, supra, Superior Court, Docket No. X03–CV–11–6017990–S, where some of the alleged negligence did occur on the day of the murder and the court denied a motion for summary judgment.   In fact, in Notice, like in the present case, rather than locating and arresting the victim's ex-boyfriend, the police called him, informed him of the complaint and advised him that “he would not be arrested that night ․ but that he would be arrested as soon as [the officer] assembled enough evidence for a warrant.”  Id. And, like in the present case, less than two hours after this call, the victim was stabbed at her residence.  Id. In reaching its conclusion that a jury could reasonably find that the defendants were negligent, the Notice court noted that the defendants never obtained a criminal record history on the ex-boyfriend, which would have shown that he had a prior domestic violence assault conviction involving a prior girlfriend.  Id. Similarly, in the present case, Officer Wilczek failed to become aware of the circumstances underlying the issuance of the protective order.

Despite these similarities, the defendant argues that it could not have been apparent to Officer Wilczek that Neil Fergus would attack the plaintiff because, during her interview with Officer Wilczek, the plaintiff did not report that Neil Fergus had made any threats of violence towards her.   This argument is unpersuasive because, as our Supreme Court has explained, “although the absence of prior similar incidents may induce a jury to find an absence of liability, it does not foreclose a finding of liability, as a matter of law, for the first incident that occurs.”  Purzycki v. Fairfield, supra, 244 Conn. 111;  but cf.  Doe v. Petersen, 279 Conn. 607, 609–10, 616–20, 903 A.2d 191 (2006) (public officer was entitled to discretionary act immunity because he never became aware of the alleged assault and it could not have been apparent to him that his response to the plaintiff's concerns would have been likely to subject her to a risk of harm).   Moreover, as previously noted, a fair and reasonable juror could conclude that had Officer Wilczek been aware of the events resulting in the protective order, he would have perceived Neil Fergus's reaction to the family services counselor's recommendation and the resulting forty-nine phone calls to the plaintiff to be indicative of Neil Fergus's state of mind when it came to access to his children.   A jury could also find that it would have been apparent to Officer Wilczek that Neil Fergus was likely to have an immediate, exaggerated and violent response upon learning of the plaintiff's harassment complaint.

Equally unpersuasive is the defendant's argument that Officer Wilczek's knowledge of escalating domestic violence is irrelevant to the imminency of harm.   In Purzycki v. Fairfield, supra, 113, our Supreme Court found that the risk of harm was foreseeable because the principal knew, “based upon his knowledge of the relatively minor degree of judgment and experience of young schoolchildren, that they repeatedly violated the rules and that they will engage in horseplay when left unsupervised.”   Moreover,”[t]he issue of whether it should be apparent to [an] officer that failure to act will subject an identifiable person to imminent harm is an issue of fact for the trier.”   Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 321879 (March 12, 1998, Nadeau, J.).

The defendant also argues that any imminent harm to the plaintiff could not have been apparent to Officer Wilczek because he was ignorant as to the whereabouts of both Neil Fergus and the plaintiff.   The apparentness of the imminent harm focuses not on whether Officer Wilczek knew Neil Fergus's location, or even that of the plaintiff, but rather whether it should have been apparent to Officer Wilczek that Neil Fergus was likely to have an immediate, exaggerated and violent response to the information conveyed, and whether it should have been apparent to Officer Wilczek that Neil Fergus was likely to immediately seek out the plaintiff at the location where she was mostly like to be, i.e., her home.   See Alexander v. Vernon, supra, Superior Court, Docket No. X07–CV–02–0078935–S (“[t]he dispositive issue is whether, at the time of the officer's decision not to make a warrantless arrest ․ it was apparent that such inaction would place [the victim] at risk of imminent harm”).   Evidence was submitted from which a jury could find that such imminent harm should have been apparent to Officer Wilczek.

In sum, in viewing the facts in a light most favorable to the plaintiff, a jury could reasonably find that the defendant, through Officer Wilczek, was negligent in its handling of the plaintiff's complaint and that this negligence subjected the plaintiff, an identifiable victim, to a risk of imminent harm which should have been apparent to Officer Wilczek.

2

Causation

The defendant also argues that the plaintiff is unable to establish proximate causation, in that the plaintiff cannot establish that the assault would not have occurred but for the negligent investigative conduct of Officer Wilczek.   The defendant argues that it was not Officer Wilczek's phone call that enraged Neil Fergus, it was the knowledge that the plaintiff had filed a complaint that might lead to his arrest.   Thus, according to the defendant, even if Neil Fergus had obtained that knowledge as a result of his immediate arrest, only conjecture would support the conclusion that he would not have been released from custody after his ensuing arraignment.   The defendant argues that there is no way to know whether an immediate arrest would have prevented Neil Fergus from assaulting the plaintiff.   Therefore, the defendant contends, even assuming Officer Wilczek's conduct breached a duty owed to the plaintiff, it was not a substantial factor in Neil Fergus's decision to respond to the plaintiff's complaint by assaulting her.

In contrast, the plaintiff argues that the central question is whether the assault was within the scope of the risk created by Officer Wilczek's conduct.   The plaintiff asserts that such a determination is a question of fact for a jury.   Moreover, the plaintiff contends that the defendant's argument rests on the wholly unsupported assertion that it was not Officer Wilczek's phone call that enraged Neil Fergus, but rather the knowledge that the plaintiff had filed a complaint that might lead to his arrest.   Finally, the plaintiff argues that “[h]aving lit the fuse but done nothing to avert the danger he had contributed to creating, Officer Wilczek's actions clearly could be found to have been a proximate cause of [the plaintiff's] injuries.”

“[L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.   The first component of legal cause is causation in fact.   Causation in fact is the purest legal application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct ․ Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions ․ The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct ․ In negligence cases ․ in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the [victim] ․ The determination of the nature of the legal duty owed, if any, must be rooted in the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong ․

“[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the [victim's] injuries ․ To that end, [t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] 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.”  (Citations omitted;  internal quotation marks omitted.)  Alexander v. Vernon, supra, 101 Conn.App. 484–85.

“[I]t is the plaintiff who bears the burden to prove an unbroken sequence of events that tied [the victim's] injuries to the [defendants' conduct] ․ The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ․ This causal connection must be based upon more than conjecture and surmise ․ In accordance with section 442B of the Restatement (Second) of Torts, our Supreme Court has stated that ‘foreseeable risks' can include the criminals acts of third parties.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 485.  “[M]ore than abstract foresee-ability is necessary to justify imposing liability on ․ defendants for their acts and omissions.   Satisfaction of the proximate cause element requires proof that the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.”  (Internal quotation marks omitted.)  Id., 486.

In the present case, the issue is whether it should have been foreseeable to Officer Wilczek that calling Neil Fergus, as opposed to locating and arresting him on a violation of the protective order, would give rise to a risk that Neil Fergus would commit a life threatening act of violence against the plaintiff minutes after learning of the harassment complaint.   Viewing the facts in a light most favorable to the plaintiff, a fair and reasonable person could not reach only one conclusion with regard to the legal cause, actual or proximate, of the plaintiff's assault and, therefore, this issue should be determined by a trier of fact.

As previously noted in this opinion, a fair and reasonable juror could conclude that the combination of Officer Wilczek's failure to obtain a copy of the December 25, 2008 police report, leading to his failure to fully appreciate the immediate risk Neil Fergus posed to the plaintiff, combined with his failure to follow the policies and procedures of the New Milford Police Department resulted in the assault on the plaintiff at her home within minutes of Officer Wilczek's phone call to Neil Fergus.   This court is mindful that our Appellate Court has cautioned against converting “the imperfect vision of reasonable foreseeability into the perfect vision of hindsight.”  (Internal quotation marks omitted.)  Alexander v. Vernon, supra, 101 Conn.App. 487.   However, in the present case, based on the facts viewed in a light most favorable to the plaintiff, this court cannot conclude that the assault on the plaintiff was not within the scope of foreseeable risk created by Officer Wilczek's actions and inactions.

Furthermore, although the defendant couches his argument in terms of proximate causation, the argument actually attacks “causation in fact.”   See Alexander v. Vernon, supra, 101 Conn.App. 488.  “Causation in fact, also referred to as actual causation or ‘but for’ causation, explores whether the injury would have occurred in the absence of the defendants' negligent act or omission ․ As our Supreme Court has acknowledged, [t]he concept of causation in fact extends not only to positive acts and active physical forces, but also to pre-existing passive conditions which have played a ․ part in bringing about the event.”   (Citation omitted;  internal quotation marks omitted.)  Id.

“In Coste v. Riverside Motors, Inc., [24 Conn.App. 109, 585 A.2d 1263 (1991) ], [our Appellate Court] examined whether an employer's denial of a request to leave work early during a snowstorm ‘caused’ the employee's subsequent automobile accident.   The plaintiff in Coste asked his manager if he could leave work early on account of the onset of a snowstorm ․ The request was denied, and the plaintiff left work approximately five hours later, after the weather had worsened considerably ․ During his drive home, ice and snow on the road caused the plaintiff to lose control of his car and crash head on into another vehicle ․ In concluding that the plaintiff could not establish causation, [the Appellate Court] observed [that] ‘[c]onjecture exists as to whether the harm to the plaintiff would have ensued had the plaintiff ․ left earlier when driving conditions may have been better.   Conjecture also exists as to whether the accident would have occurred had the road been better sanded or plowed, or had the plaintiff taken another route home, or had he driven a different make and model car, or had he been a better driver.’  ․ Because the nonoccurrence of the defendant's negligence would not have necessarily changed the outcome, causation was found to be absent in that case.”  (Citations omitted;  internal quotation marks omitted.)  Alexander v. Vernon, supra, 101 Conn.App. 489;  see Harris v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV–09–6004180–S (March 12, 2013, Fischer, J.) (“[t]he [Coste ] court's analysis tumed on the necessity of employing conjecture to resolve the numerous variables that could have influenced the occurrence of the accident”).   The Appellate Court ultimately concluded that “[t]he defendant's conduct [was] too inconsequential to the ultimate harm to the plaintiff, considering the many other variables, to rise to the level of proximate cause.”  Coste v. Riverside Motors, Inc., supra, 115.

Similarly, in “Medcalf v. Washington Heights Condominium Ass'n, Inc., 57 Conn.App. 12, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000), [the Appellate Court] considered whether the failure of an electronic intercom system was the legal cause of an attack that occurred outside the door to an apartment building.   The plaintiff in Medcalf had used the apartment's intercom system to call her friend upstairs and to announce her arrival ․ After the intercom system failed to unlock the door remotely, the friend was forced to come downstairs and physically open the door ․ While the plaintiff was waiting for her friend to come to the door, she was attacked by a third party, resulting in injuries ․ In concluding that the requisite causal link was absent, [the Appellate Court] stated that ‘[t]he injury may likely have occurred without any negligence with respect to the intercom system.’  ․ In other words, there was no way of knowing whether the assault would have occurred if the defendants, the condominium association and the property manager, had not negligently failed to take the appropriate action to maintain the intercom system.”  (Citations omitted.)  Alexander v. Vernon, supra, 101 Conn.App. 489–90.

Our Appellate Court has noted that “[b]oth of those cases involved a complex set of circumstances that, in combination, led undeniably to tragic outcomes.   Yet, in Coste there was no way of knowing whether leaving work earlier would have prevented the automobile accident, just as in Medcalf it was impossible to determine whether a functioning electronic intercom system would have thwarted the attack.   These are the kind of situations that trigger the application of the basic principle of tort law that [n]o matter how negligent a party may be, if his act bears no causal relation to the injury, it is not actionable.”  (Internal quotation marks omitted.)  Alexander v. Vernon, supra, 101 Conn.App. 490.

In Alexander v. Vernon, supra, 101 Conn.App. 491, the court relied on Coste and Medcalf in concluding that the plaintiff did not establish the requisite causal relationship between the defendants' failure to arrest the husband and the victim's murder two days later.   The court explained that “[h]ere, as in Coste and Medcalf there are too many variables involved to state with any degree of certainty that the victim's murder would not have occurred in the absence of the officers' alleged negligence or recklessness.   To reach the opposite conclusion, a jury would first have to suppose that the officers could have found [the husband] in the time preceding the murder.   The jury would then have to further assume that, once arrested, [he] would not have been released from custody before Monday afternoon.   Because there is no evidence in the record on which to make either of those critical inferences, the jury would be forced to resort to sheer speculation.   Yet, a determination of causation on the basis of conjecture or speculation is precisely what we cannot permit.”  Id., 490–91.

In the present case, to establish actual causation, the plaintiff must demonstrate, without resort to conjecture, that the assault would not have occurred but for Officer Wilczek's negligence.   Based on the facts, viewed in a light most favorable to the plaintiff, the court is persuaded that a fair and reasonable fact finder could conclude that the element of actual causation is present because the nonoccurrence of Officer Wilczek's negligence could have changed the outcome.   Cf. Coste v. Riverside Motors, Inc., supra, 24 Conn.App. 115 (causation absent where the nonoccurrence of the defendant's negligence would not have necessarily changed the outcome).   A reasonable fact finder could determine, without speculation, that, if Officer Wilczek had arrested Neil Fergus, he would have been in police custody upon learning of the plaintiff's harassment complaint and, therefore, he would have been unable to assault the plaintiff minutes after learning of the complaint.

The defendant relies on its own conjecture that it is more likely than not that, if Neil Fergus has been arrested, he would have been released at his arraignment and therefore, his arrest would not have prevented the assault.   However, the focus of the causation analysis in the present case is not on the indefinite future.   A determination of the actions that Neil Fergus could have or would have taken upon his release, hours or days after learning that information, is not relevant.   Rather, because Neil Fergus assaulted the plaintiff minutes after he learned of her complaint, it is that specific time frame that is the focus of the actual causation analysis.   No resort to conjecture is necessary to know that if Neil Fergus was in police custody upon learning of the plaintiff's complaint, then he could not have assaulted her within minutes of gaining that knowledge.   To find that the plaintiff's assault would not have occurred in the absence of Officer Wilczek's negligence does not require a jury to rely on conjecture or speculation.

Viewing the evidence in a light most favorable to the plaintiff, a fair and reasonable person could not reach only one conclusion with regard to the legal, actual or proximate, cause of the assault on the plaintiff.   Therefore, this issue should be determined by the trier as a matter of fact.

III

CONCLUSION

In sum, in viewing the facts in a light most favorable to the plaintiff, a jury could reasonably find that the defendant was negligent in its handling of the plaintiff's complaint and this negligence subjected the plaintiff, an identifiable victim, to a risk of imminent harm which should have been apparent to Officer Wilczek.   Moreover, in viewing the evidence in a light most favorable to the plaintiff, a fair and reasonable person could not reach only one conclusion with regard to the legal, actual or proximate, cause of the assault on the plaintiff.   Accordingly, there are genuine issues of material fact as to whether the plaintiff was subject to imminent harm and whether the defendant's actions were the legal cause of the plaintiff's injuries.   Therefore, the motion for summary judgment is denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. Conor Fergus, Cara Fergus and Patrick Fergus are the children of Catherine Fergus, and the complaint is properly brought as Conor Fergus ppa Catherine Fergus, Cara Fergus ppa Catherine Fergus and Patrick Fergus ppa Catherine Fergus.   The children's claims are derivative of that of Catherine Fergus.   For simplicity, this court will refer to Catherine Fergus as “the plaintiff.”.  FN1. Conor Fergus, Cara Fergus and Patrick Fergus are the children of Catherine Fergus, and the complaint is properly brought as Conor Fergus ppa Catherine Fergus, Cara Fergus ppa Catherine Fergus and Patrick Fergus ppa Catherine Fergus.   The children's claims are derivative of that of Catherine Fergus.   For simplicity, this court will refer to Catherine Fergus as “the plaintiff.”

FN2. The defendant did not object to the plaintiff's request to amend, but instead filed an answer and special defenses on August 14, 2013.   The special defenses include the defense of governmental immunity..  FN2. The defendant did not object to the plaintiff's request to amend, but instead filed an answer and special defenses on August 14, 2013.   The special defenses include the defense of governmental immunity.

FN3. See Practice Book § 10–60(a)(3) (amendment is deemed filed by consent where opposing party fails to object within fifteen days)..  FN3. See Practice Book § 10–60(a)(3) (amendment is deemed filed by consent where opposing party fails to object within fifteen days).

FN4. The protective order listed a New York address for Neil Fergus.   The plaintiff confirmed to Officer Wilczek that Neil Fergus was no longer living in New York..  FN4. The protective order listed a New York address for Neil Fergus.   The plaintiff confirmed to Officer Wilczek that Neil Fergus was no longer living in New York.

FN5. On October 16, 2012, Neil Fergus pleaded guilty to reduced assault and burglary charges under a plea agreement which disposed of all of his pending criminal cases and charges.   At his sentencing, Neil Fergus stated that he was “not in [his] right mind” and “had no control over” his actions during the assault due to “medications [he] was taking at the time.”   Neil Fergus received a total effective sentence of thirty years, execution suspended after thirteen years, and five years probation..  FN5. On October 16, 2012, Neil Fergus pleaded guilty to reduced assault and burglary charges under a plea agreement which disposed of all of his pending criminal cases and charges.   At his sentencing, Neil Fergus stated that he was “not in [his] right mind” and “had no control over” his actions during the assault due to “medications [he] was taking at the time.”   Neil Fergus received a total effective sentence of thirty years, execution suspended after thirteen years, and five years probation.

FN6. The Appellate Court affirmed the trial court's grant of summary judgment in favor of the defendants on the ground that the plaintiff's claims were not saved by General Statutes § 52–593.  Finkle v. Carroll, 134 Conn.App. 278, 282, 37 A.3d 851, cert. denied, 305 Conn. 907, 44 A.3d 184 (2012)..  FN6. The Appellate Court affirmed the trial court's grant of summary judgment in favor of the defendants on the ground that the plaintiff's claims were not saved by General Statutes § 52–593.  Finkle v. Carroll, 134 Conn.App. 278, 282, 37 A.3d 851, cert. denied, 305 Conn. 907, 44 A.3d 184 (2012).

FN7. In Beaubien, Michelle Woolley was murdered by her ex-boyfriend, David Coulombe, against whom a protective order was issued.  Id., 476.   On December 3, 2007, the police responded to the apartment of Rudy Sorrentino, where he told the police that his former roommate, Coulombe, told him that he had previously planned to kill his girlfriend, Woolley, during a court appearance back in September 2007.  Id. Sorrentino told the police that Coulombe had taken Sorrentino's gun to that court appearance because he wanted to kill Woolley but that he “chickened out.”  Id., 476–77.   After interviewing Sorrentino, the police interviewed Ervin Villa, the then current roommate of Sorrentino, who reported that he was fearful of Coulombe, although Coulombe had never made any direct threats towards him or his family, and that during the previous week Coulombe had been talking about killing people he did not know.  Id., 477.   On February 11, 2008, Coulombe killed Woolley.  Id., 476..  FN7. In Beaubien, Michelle Woolley was murdered by her ex-boyfriend, David Coulombe, against whom a protective order was issued.  Id., 476.   On December 3, 2007, the police responded to the apartment of Rudy Sorrentino, where he told the police that his former roommate, Coulombe, told him that he had previously planned to kill his girlfriend, Woolley, during a court appearance back in September 2007.  Id. Sorrentino told the police that Coulombe had taken Sorrentino's gun to that court appearance because he wanted to kill Woolley but that he “chickened out.”  Id., 476–77.   After interviewing Sorrentino, the police interviewed Ervin Villa, the then current roommate of Sorrentino, who reported that he was fearful of Coulombe, although Coulombe had never made any direct threats towards him or his family, and that during the previous week Coulombe had been talking about killing people he did not know.  Id., 477.   On February 11, 2008, Coulombe killed Woolley.  Id., 476.

FN8. The parties submitted excerpts from the deposition testimony of Deputy Chief Mark Buckley..  FN8. The parties submitted excerpts from the deposition testimony of Deputy Chief Mark Buckley.

FN9. Deputy Chief Buckley testified that there is an exception to the custodial arrest requirement where both parents are subject to arrest and the children are present.   There is no dispute that this exception does not apply to the present case..  FN9. Deputy Chief Buckley testified that there is an exception to the custodial arrest requirement where both parents are subject to arrest and the children are present.   There is no dispute that this exception does not apply to the present case.

FN10. At his deposition, Deputy Chief Buckley was asked whether there was a written policy or procedure that requires an officer to determine the circumstances underlying a protective order.   However, neither party submitted a copy of the deposition transcript page which included his response to this question..  FN10. At his deposition, Deputy Chief Buckley was asked whether there was a written policy or procedure that requires an officer to determine the circumstances underlying a protective order.   However, neither party submitted a copy of the deposition transcript page which included his response to this question.

Pickard, John W., J.