Susan Schroeder v. Michael D'Aresta et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 145

FACTUAL BACKGROUND

On September 7, 2012, the plaintiff filed her second amended complaint (the “complaint”) in this action, which was commenced on September 9, 2011.   The complaint alleges the following facts and causes of action in its six counts.   The complaint alleges that on April 17, 2011, at approximately 3:38 a.m., the plaintiff was lawfully in the area of Washington and High Streets in Middletown, Connecticut to pick up her son.   The defendant, Officer Michael D'Aresta, who is a Middletown police officer and was duly engaged in the scope of his employment, was in the area of Washington and High Streets, at the same time and place as the plaintiff.   Hunter, a Connecticut State Police certified canine was assigned to the defendant Officer D'Aresta.   The plaintiff, on said date and time, inadvertently stepped between Officer D'Aresta and Hunter, thereby causing Hunter to deploy and attack the plaintiff.   The plaintiff alleges that she suffered injuries, incurred medical expenses, endured painful medical procedures, and remains unable to participate in and enjoy her usual activities, all of which were proximately caused by Officer D'Aresta.

The first count makes a claim of negligent performance of ministerial duties on the part of Officer D'Aresta in that he allegedly breached his ministerial duty to prevent the police canine, Hunter, from deploying and injuring innocent bystanders, such as the plaintiff.   The second count seeks indemnification from the defendant, the city of Middletown, for any liability of its employee, Officer D'Aresta, found in connection with the first count.   The third count alleges liability of the defendant Middletown, pursuant to General Statutes § 52–557n regarding the actions alleged in the first count.   The fourth count alleges that Officer D'Aresta is liable to the plaintiff pursuant to the “identifiable victim/imminent harm” exception to qualified municipal immunity.   The fifth count seeks indemnity from the defendant Middletown for any liability found in the fourth count.   The sixth count alleges liability on behalf of the defendant Middletown, pursuant to General Statutes § 52–557n, with regard to the actions alleged in the fourth count.

On July 16, 2013, the defendants filed their motion for summary judgment.   The defendants maintain that they are entitled to judgment as a matter of law pursuant to the governmental immunity afforded by General Statutes § 52–557n in that the negligent conduct alleged by the plaintiff required the exercise of discretion and did not arise from a ministerial duty.   The defendants also maintain that the plaintiff was not an “identifiable victim subject to imminent harm” for purposes of the common-law exception to governmental immunity.

The plaintiff filed her objection to the motion for summary judgment on December 31, 2013.   The plaintiff argues that material issues of fact exist that should be resolved by a jury because the plaintiff's allegations implicate ministerial acts.   In particular, the plaintiff maintains that the defendants breached a ministerial duty by failing to follow the directive of the Patrol Dog Manual that says to keep innocent bystanders safe.   The plaintiff also argues that the defendants failed to follow the rule that a line of sight must be kept open between a canine and handler.   Moreover, even if governmental immunity applied to this case, the plaintiff argues that she falls within the “identifiable victim imminent harm” exception.

The court heard oral argument at short calendar on January 21, 2014.   The court also has reviewed the memoranda of law and all exhibits submitted by the parties.   The court grants the motion for summary judgment as to the first, second and third counts of the complaint and denies the motion for summary judgment as to the fourth, fifth and sixth counts of the complaint for the reasons set forth below.

I. STANDARD OF REVIEW

“Practice Book [§ 17–49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ 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.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 28 A.3d 1162 (2013).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”   (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

II. DISCUSSION

A. Governmental and Qualified Immunity

“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 ․ One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.  General Statutes § 52–557n(a)(1)(A).   General Statutes § 52–557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the 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.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006).

“Generally, a municipal employee is liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts ․ Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.”  (Internal quotation marks omitted.)  Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).  “Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ․ Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ․ In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ․ That is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.”  (Citations omitted;  internal quotation marks omitted.)  Doe v. Petersen, supra, 279 Conn. 614–15.  “The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contract, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

“Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases where it is apparent from the complaint.”  (Internal quotation marks omitted.)  Martel v. Metropolitan District Commission, 275 Conn. 38, 49, 881 A.2d 194 (2005).  “Our case law reveals that the determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to § 52–557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ․ Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”  (Citations omitted;  emphasis omitted;  internal quotation marks omitted.)   Id., 50 n.8.

Moreover, “[t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions.”  Bonington v. Westport, 297 Conn. 297, 308, 999 A.2d 700 (2010).  “In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner.”   (Internal quotation marks omitted.)  Coley v. Hartford, 140 Conn.App. 315, 323, 59 A.3d 811 (2013).   A court may properly conclude that a duty was discretionary in nature as a matter of law when a plaintiff fails to offer evidence of a policy or directive limiting the discretionary nature of the municipal employee's duties.   See Martel v. Metropolitan District Commission, supra, 275 Conn. 50–51.

“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.”   (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).   Moreover, “[i]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality.”  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988).  “The Superior Court has consistently held that the [a]cts and omissions of police officers in the exercise of their duties are discretionary in nature ․” (Internal quotation marks omitted.)  Susman v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV–02–0468497–S (May 9, 2007, Skolnick, J.T.R.), citing Davis–Trapani v. Scarcella, Superior Court, judicial district of New Haven, Docket No. CV–00–0436800–S (July 23, 2003, Arnold, J.), aff'd, 83 Conn.App. 903, 853 A.2d 650, cert. denied, 270 Conn. 917, 853 A.2d 531 (2004).   See also Peters v. Greenwich, Superior Court, judicial district of Stamford–Norwalk, Docket No. 147192 (January 2, 2001, D'Andrea, J.) (28 Conn. L. Rptr. 671, 674);  Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 321879 (March 12, 1998, Nadeau, J.).

In Gregory v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV–97–341425–S (May 6, 1999, Skolnick, J.) (24 Conn. L. Rptr. 454, 455), the plaintiffs, Miguel Gregory, Jr. and Rafael Ortiz, filed a three-count complaint against the city of Bridgeport and Officer Mercado.   In their complaint, the plaintiff's alleged that they “were an operator and passenger in a vehicle which was stopped by Mercado who ordered the plaintiff to lie facedown on the ground while he conducted a search of the vehicle and the two plaintiffs.”  Id. “During the search, the canine accompanying Mercado bit Gregory, causing injuries.”  Id. The defendants moved for summary judgment on all three counts of the complaint.  Id., 455–56.   In particular, count two alleged negligence against the defendants.  Id., 456.   The defendants argued that “an employee of a municipality is immune from liability for negligence when performing discretionary as opposed to ministerial acts.”   Id. The court held that “[t]he operation of a police department being a discretionary governmental function, the defendant officer's utilization and control of his canine dog is a discretionary governmental function.”  Id.

In the present case, the Patrol Dog Manual imposes a general duty on police officials to keep bystanders safe and does not specify a prescribed manner in which this act is to be performed.   Moreover, the plaintiff has failed to point to a city charter provision, ordinance, regulation, rule, policy, or any other directive compelling a police officer to keep line of sight open between an officer and his canine.   Accordingly, the court finds that the “defendant officer's utilization and control of his canine dog is a discretionary governmental function.”  Gregory v. Bridgeport, supra, 24 Conn. L. Rptr. 456.   Therefore, summary judgment is granted as to the first, second and third count of the complaint because there are no genuine issues of material fact and the defendants are entitled to judgment on those counts as a matter of law.

B. The Identifiable Person—Imminent Harm Exception

There are “three exceptions to discretionary act immunity.   Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force ․ First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure ․ Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․” (Citations omitted;  internal quotation marks omitted.)   Doe v. Petersen, supra, 279 Conn. 615–16.

In the present case, the plaintiff argues that she was an identifiable person subject to imminent harm.  “An individual may be identifiable for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition ․ In fact, the criteria of identifiable person and imminent harm must be evaluated with reference to each other.   An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm.   Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person ․ [I]t is impossible to be an identifiable person in the absence of any corresponding imminent harm ․ Indeed, we have found imminent harm only in the clearest cases.”  (Citations omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 275–76, 984 A.2d 58 (2009).

“[E]ven outside the public school context, whether the plaintiff was compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims.”  Grady v. Somers, 294 Conn. 324, 355, 984 A.2d 684 (2009).  “Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred ․” DeConti v. McGlone, 88 Conn.App. 270, 274, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005).   Moreover, Supreme Court decisions make clear that the existence of more than one identifiable individual does not preclude application of the identifiable person imminent harm exception.   See e.g., Sestito v. Groton, 178 Conn. 520, 526, 528, 423 A.2d 165 (1979) (where the plaintiff's decedent was shot among a mob of men and considered a sufficiently identifiable victim for purposes of the governmental immunity exception);  Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994) (“We have construed the exception to apply not only to identifiable individuals but also to narrowly defined classes of foreseeable victims”).

There are “limited circumstances under which imminent harm may be established.   Imminent 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, supra, 297 Conn. 314.   “Imminent harm excludes perils that could have occurred at any future time or not at all.”  (Internal quotation marks omitted.)  Haynes v. Middletown, 142 Conn.App. 720, 734, 66 A.3d 899, cert. granted, 309 Conn. 919, 70 A.3d 1067 (2013).

There have been two Connecticut appellate cases which have found the identifiable person subject to imminent harm exception to apply outside the context of schoolchildren in public school.   In Tryon v. North Branford, 58 Conn.App. 702, 755 A.2d 317 (2000), “the plaintiff, a firefighter in uniform attending the State Fireman's Convention Parade, was injured by a dog owned by ․ a volunteer firefighter participating in the parade ․ Prior to the commencement of the parade, [the] dog [and his owner] were standing in the staging area for the parade when ․ the plaintiff approached the dog ․ and pulled and jerked the dog's face toward her own ․ The dog bit the plaintiff in the nose, causing significant injury ․ In concluding that the plaintiff was an identifiable person subject to imminent harm, the Appellate Court stated that she was not a member of the general public attending a parade but a firefighter in uniform in the staging area one block away from the site of the parade when the dog bit her ․ The court concluded that the harm caused ․ was not of an unspecified type that could have occurred at any time or place in the future or to anyone ․ Indeed, it was an immediate, defined moment within a confined geographical space.”  (Citations omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, supra, 294 Conn. 277–78.

Moreover, in Sestito v. Groton, supra, 178 Conn. 520, “an on duty police officer observed a group of seven men, including the plaintiff's decedent, in a parking lot outside a bar ․ Although the officer was aware that one of the men was a known felony suspect, and that the members of the group had been drinking and were engaged in an argument that became physical, he did not intercede until after he heard gunshots fired ․ [The] court concluded that ․ the decedent could have been an identifiable person subject to imminent harm ․ The potential for harm was sufficiently immediate because it would last only as long the altercation continued and was sufficiently certain in light of the fact that the police officer was observing a violent interaction involving drunkenness and a known criminal.”  (Citations omitted.)  Cotto v. Board of Education, supra, 294 Conn. 276–77.

In the present case, there are genuine issues of material fact regarding the issue of whether the plaintiff qualifies as an identifiable person subject to imminent harm.   Specifically, the plaintiff relies on a police report and the deposition testimony of Tim Johnson in support of her claim.   In particular, she maintains that she was located in a limited geographical area for a limited period of time.   At the time that the plaintiff was attacked, there were few people at the scene of the incident and the plaintiff was the only person who was in the line of sight between the canine and Officer D'Aresta.   Moreover, the plaintiff relies on her complaint for the following claims:  Officer D'Aresta knew or should have known that Hunter would deploy and attack any individual who stepped between Hunter and himself and/or any individual who interrupted the line of sight between Hunter and himself.   Moreover, the harm was imminent because when Hunter loses the line of sight to his handler, Hunter will deploy.

It is worth noting, however, that Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred.   See DeConti v. McGlone, supra, 88 Conn.App. 274.   In the present case, the court finds that there is a genuine issue of material fact as to whether the plaintiff's presence at the location where the injury occurred was voluntary.   The evidence presented to the court in the plaintiff's deposition on pages 16 and 17 is that a friend of the plaintiff's son called her to pick up her son at 3 a.m. When she arrived, she saw flashing lights.   (Schroeder Dep. 20:19, July 9, 2013).   She parked opposite a police cruiser with flashing lights and she then ran across the street to where her son was sitting on the ground surrounded by Officer D'Aresta, Officer Weserman, and two Wesleyan security officers.  (Schroeder Dep. 20:19–25, 21–22, July 9, 2013).   Further, D'Aresta explained to the plaintiff that she could take her highly intoxicated son home, but if she would not take him home, he would be sent to the hospital for detoxification.  (D'Aresta Dep. 43:4–9, Nov. 19, 2012.)

A jury could find that plaintiff's presence at that location, at that particular time, was not voluntary because she ran across the street only when she saw her son surrounded by police officers and she was there only out of concern for his well-being.   A jury could also find that the plaintiff volunteered to pick up her son, and was not required to be present at the location where the injury occurred.   Thus, a genuine issue of material fact exists as to whether the plaintiff's presence at the location where the injury occurred was voluntary.

CONCLUSION

Accordingly, the defendants' motion for summary judgment is granted as to the first, second, and third counts of the complaint because there exists no genuine issue of material fact as to whether the defendants' actions were discretionary.   Further, summary judgment is denied as to the fourth, fifth, and sixth counts of the complaint since there exists a genuine issue of material fact as to whether the plaintiff qualifies as an identifiable person subject to imminent harm.

Marcus, J.

Marcus, Shelley A., J.