Opinion
UWYCV095015462S
07-18-2017
John Doe PPA Jane Doe v. Stephen Flanigan et al
UNPUBLISHED OPINION
OPINION
HON. RUPAL SHAH J.
I
INTRODUCTION
The plaintiff brings this action for false arrest, negligence and sexual assault against the defendant, Stephen Flanigan, a retired police officer of the Waterbury Police Department, and an action pursuant to General Statutes § 52-557n against the City of Waterbury. The plaintiff alleges that the codefendant, Stephen Flanigan, engaged in the illegal handcuffing of a minor, taking photographs and other conduct that violated his duties as a police officer.
The defendant, City of Waterbury, moves for summary judgment on the fourth count, the only count against the City, because it claims that the plaintiff has no cause of action against the City for the type of conduct involved. The plaintiff objects and claims that he has raised an issue of material fact regarding the City's liability pursuant to section 52-557n for negligent conduct on the part of the codefendant. The court heard this matter at the short calendar on April 15, 2017. After consideration of the parties' written submissions and oral argument, summary judgment is granted, in part, and denied, in part.
II
BACKGROUND
The plaintiff alleges that, at all relevant times, Flanigan was employed as a police officer by the City, a municipal corporation. The plaintiff, a minor under the age of sixteen and on probation from the juvenile court, would assist Charles Fullenwiley at his place of business, World Technology. Flanigan was a frequent visitor to World Technology while on and off duty as a police officer. Flanigan would occasionally engage in horseplay with minors at World Technology and demonstrate the use of handcuffs to them. The plaintiff describes an incident that occurred in the spring of 2006 where, in an attempt to demonstrate the use of handcuffs, Flanigan pushed the plaintiff to the ground and placed him in handcuffs. While the plaintiff lay on his stomach, and without Flanigan knowing what was about to happen, Fullenwiley proceeded to kneel on the plaintiff's back and place a dildo against his buttocks.
The plaintiff further alleges that when Flanigan observed Fullenwiley engaging in such behavior, Flanigan knew or should have known that the conduct was illegal, and that, as a police officer, Flanigan had a duty to protect the minor from such conduct, but failed to take any action. The plaintiff also alleges that, as a police officer, Flanigan was a mandated reporter of child abuse but failed to report the incident. Thus, the plaintiff claims that Flanigan was negligent in carrying out his duties as an officer and that the City is liable, under General Statutes § 52-557n, as a result of Flanigan's negligent and careless conduct.
III
LEGAL STANDARD
Summary Judgment
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " 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." (Internal quotation marks omitted.) Id., 320. " 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." (Internal quotation marks omitted.) Id. " As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Id. " 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." (Internal quotation marks omitted.) Id. " 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.) Id.
IV
ANALYSIS
Under General Statutes § 52-557n(a), liability cannot be imposed on the City if Flanigan's conduct constitutes wilful misconduct or were actions not within the scope of his employment or official duties. See Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006) (" General Statutes § 52-557 abandons the common law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages"). The plaintiff alleges that the City is liable for (A) Flanigan's affirmative acts of pushing the plaintiff to the ground and handcuffing him; (B) Flanigan's failure to protect the plaintiff from an assault by Fullenwiley; and (C) Flanigan's failure to make a mandatory report of child abuse. Each basis for liability will be addressed in turn.
The plaintiff's complaint is inartfully drafted but, nonetheless, should be construed " broadly and realistically, rather than narrowly and technically." Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).
A
Pushing and Handcuffing the Plaintiff
The City argues that General Statutes § 52-557n(a) bars the plaintiff's claim because (1) Flanigan was not acting within the scope of this employment or his official duties when he pushed the plaintiff to the ground and handcuffed him, and (2) Flanigan's conduct was wilful and not negligent. In support of its motion, the City submits the plaintiff's deposition testimony and affidavits of the Waterbury Police Chief and the Acting Captain.
To determine whether an employee has acted within the scope of employment, " courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; (3) is motivated, at least in part, by a purpose to serve the employer." Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003). " Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment . . ." (Internal quotation marks omitted.) Id., 783. " [B]ut there are occasionally cases [in which] a servant's digression from [or adherence to] duty is so clear-cut that the disposition of the case becomes a matter of law." (Internal quotation marks omitted.) Id. Furthermore, " [w]hile a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry." (Internal quotation marks omitted.) 2 National Place, LLC v. Reiner, 152 Conn.App. 544, 558, 99 A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d 1112 (2014). " Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business." (Internal quotation marks omitted.) Id. " Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable." (Internal quotation marks omitted.) Id.
The plaintiff makes a colorable argument that a genuine issue of material fact exists as to whether Flanigan was acting in the scope of his employment or official duties at the time he pushed the plaintiff to the ground and placed him in handcuffs. The evidence submitted indicates that Flanigan was wearing his City-issued police uniform and duty belt, which included his handcuffs (and presumably his weapon), and that he stopped into World Technology on his way to volunteer for the police explorers' program. See Def. Mem., Ex. F; Pl. Mem., Ex. B, C. Our Appellate Court has recognized that there is " a well defined public policy against inappropriate behavior by a police officer on and off duty, and against implied municipal endorsement of such conduct . . ." Board of Police Commissioners v. Stanley, 92 Conn.App. 723, 740, 887 A.2d 394 (2005). Our Supreme Court has also explained that
[A] police officer acting unlawfully in the name of the state possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own . . . The difference in the nature of the harm arising from [the tortious or unconstitutional conduct of] a police officer . . . on the one hand, and an assault or trespass committed against one private citizen by another, on the other hand, stems from the fundamental difference in the nature of the two sets of relationships . . . A police officer's legal obligation . . . extends far beyond that of his or her fellow citizens: the officer not only is required to respect the rights of other citizens, but is sworn to protect and defend those rights. In order to discharge that considerable responsibility, he or she is vested with extraordinary authority. Consequently, when a law enforcement officer, acting with the apparent imprimatur of the state, not only fails to protect a citizen's rights but affirmatively violates those rights, it is manifest that such an abuse of authority, with its concomitant breach of trust, is likely to have a different, and even more harmful, emotional and psychological effect on the aggrieved citizen than that resulting from the tortious conduct of a private citizen.(Citations omitted; emphasis in original; internal quotation marks omitted.) Binette v. Sabo, 244 Conn. 23, 43-44, 710 A.2d 688 (1998).
Indeed, " [t]he proposition that the scope of employment should be interpreted more broadly when the employee is a police officer . . . has footing in other jurisdictions and may well be the wave of the future." Doe v. City of Chicago, 360 F.3d 667, 671 (7th Cir. 2004) (collecting cases). The Seventh Circuit has explained:
It is not that being a police officer creates access that facilitates the commission of intentional torts. That is true of many employments. A meter reader gains access to homes by virtue of his employment by the electric company, but if he steals something from the home the theft is not deemed to be within the scope of employment . . . The difference between him and other intentional tortfeasors is slight. The situation of a police officer, however, is significantly different from that of a meter reader. The officer is armed, has authority to arrest that is considerably broader than the authority of a private person to make a " citizen's arrest, " had access to all sorts of personal information, is an authority figure trained to develop and project an intimidating aura, and may seem to be above the law . . .(Citations omitted.) Id.
This Court, however, need not determine if Flanigan was acting in the scope of his employment because, even assuming he was, the City still cannot be held liable for Flanigan's misconduct if it is wilful and not negligent. General Statutes § 52-557n(a)(2)(A). " While [courts] have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing." Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). " [W]ilful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Id. " A wilful act is one done intentionally or with reckless disregard of the consequences of one's conduct." Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996). Likewise, " [w]anton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Citation omitted; internal quotation marks omitted.) Dubay v. Irish, supra, 532. Wilful conduct " must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . ." (Internal quotation marks omitted.) Id., 533.
Here, the plaintiff's argument that Flanigan's actions constitute negligent conduct is unpersuasive. The only conclusion that can be reached based on the evidence submitted by both parties is that Flanigan's acts of pushing the plaintiff to the ground and unlawfully restraining him constitute wilful misconduct. Viewing the evidence in the light most favorable to the plaintiff, as this Court must on summary judgment, there is no genuine issue of material fact that Flanigan acted with a deliberate or reckless disregard for the plaintiff's safety and the consequences of his action. Indeed, the plaintiff's allegation that Flanigan was demonstrating the use of handcuffs coupled with the evidence indicating that the plaintiff was not a willing participant in the demonstration buttress this determination. Moreover, the City submitted evidence that Flanigan's use of handcuffs in the manner alleged was in violation of the City's policies. Def. Mem., Ex. G, H. Accordipgly, summary judgment is granted in favor of the City as to liability for Flanigan's acts of pushing the plaintiff to the ground and placing him in handcuffs.
B
Duty to Protect
The complaint also alleges that the City is liable for Flanigan's failure to protect the plaintiff from Fullenwiley's illegal conduct in kneeling on the plaintiff's back and placing a dildo against his buttocks. " Police have a duty to protect both the lives and the property of citizens." United States v. Markland, 635 F.2d 174, 176 (2d Cir. 1980), cert. denied, 451 U.S. 991, 101 S.Ct. 2332, 68 L.Ed.2d 851 (1981). A police officer's actions in carrying out that duty are discretionary and typically afforded governmental immunity. See Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011) (" [p]olice officers are protected by discretionary act immunity when they perform the typical functions of a police officer" (internal quotation marks omitted)); see also Coley v. Hartford, 312 Conn. 150, 165, 95 A.3d 480 (2014) (there is " considerable discretion inherent in law enforcement's response to an infinite array of situations implicating public safety on a daily basis").
However, governmental immunity does not apply when " the circumstances make it apparent to [a] public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." Merritt v. Bethel Police Dept., 120 Conn.App. 806, 812, 993 A.2d 1006 (2010). " 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." (Internal quotation marks. omitted.) Id. " The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception." Id. This exception applies in an action brought directly against municipalities pursuant to General Statutes § 52-557n(a)(1)(A). Grady v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (2009).
In reviewing the allegations in the present case, the court finds that the imminent harm exception does not apply. As an initial matter, the identifiable person-imminent harm exception will only apply if Flanigan was acting in his role as a public official when Fullenwiley's actions occurred. See Merritt v. Bethel Police Dept., supra, 120 Conn.App. at 812. This Court need not reach that issue. Even assuming Flanigan was acting as a public official, the remaining elements of the exception are not satisfied. Based on the evidence submitted, there is no genuine issue of material fact that Flanigan knew that the plaintiff was at risk of imminent harm or that Flanigan's nonresponse to the imminent danger would likely subject the plaintiff to that harm. The plaintiff's complaint alleges that Fullenwiley acted " without the Defendant Flanigan knowing what was about to happen, " Second Am. Compl. 117, and there is no evidence in the record from which a reasonable jury could determine that it was apparent to Flanigan that Fullenwiley would place a dildo against the plaintiff's buttocks. See Brown v. Dooling, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-90-0032598-S (January 23, 1998, Flynn, J.) (defining " apparent" as " (1) readily seen, open to view, visible; (2) readily understood or perceived, plain or obvious" (internal quotation marks omitted)). Thus, summary judgment is granted in favor of the City as to liability for Flanigan's failure to act to protect the plaintiff.
C
Duty to Report
A police officer, who in the ordinary course of his employment or profession, has reasonable cause to suspect or believe that a child has been or is at imminent risk for abuse, neglect or serious harm, has a mandatory duty to make a report to either the Commissioner of Children and Families or a law enforcement agency. General Statutes § § 17a-101(b)(15), 17a-101a(a)(1), 17a-101b(a). If Flanigan is found to have such a mandatory reporting duty, the City will not be protected by governmental immunity because a " municipality is generally liable for the ministerial acts of its agents . . ." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117-18, 19 A.3d 640 (2011). The mandatory reporting statutes " do not admit of any exercise of judgment or discretion on the part of a police officer, " but " involve a mandatory duty, one that is ministerial rather than discretionary." Doe v. Kennedy, Superior Court, judicial district of Waterbury, Docket No. CV-09-5013921-S (November 29, 2012, Jenkins Pittman, J.) [55 Conn.L.Rptr. 193, ]; see Coe v. Board of Education, supra, 118 (" [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)). The City has failed to meet its burden to show that no genuine issue of material fact remains as to whether Flanigan had a mandatory duty to report Fullenwiley's abuse of the plaintiff.
Flanigan was a sworn member of the Waterbury police department. Thus, there is no genuine issue of material fact regarding whether he was a " police officer" at the time the abuse occurred for purposes of the mandatory reporting statutes. See General Statutes 1-1(a) (" technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly"); General Statutes § 7-294a(9) (Police Standards and Training Council, which regulates municipal police, defines " police officer, " in relevant part, as " a sworn member of an organized local police department . . ."); Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982) (courts " may look to the meaning given the same phrase in unrelated statutes" and " consider that where the legislature uses the same phrase it intends the same meaning").
As a police officer for the City, however, Flanigan did not have a duty to report the incident unless he was " acting in the ordinary course of his employment or profession" at the time he witnessed the abuse. The mandatory reporting statutes do not define what is meant by " ordinary course of employment or profession, " but, as a technical phrase, " it has a peculiar and appropriate meaning in the law and should be construed and understood accordingly." General Statutes 1-1(a). Generally, it is appropriate for this Court to " look to the meaning given the same phrase in unrelated statutes" and " consider that where the legislature uses the same phrase it intends the same meaning." Link v. Shelton, supra, 186 Conn. at 627. This exact phrase does not seem to appear elsewhere in statutes, but similar language provides useful interpretive guidance.
For vicarious liability in the employment context, courts look to whether an employee was acting within the " scope of his employment." In those cases, " courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer." Harp v. King, supra, 266 Conn. at 782-83. Similarly, for purposes of indemnification of state police, our Supreme Court has interpreted the phrase, " in the course of his duties, " by referencing the interpretation of " arising out of and in the course of employment" in the workers' compensation statutes. Link v. Shelton, supra, 186 Conn. at 627. Thus, conduct will be found to have occurred in the course of duties, or arising out of and in the course of employment " if it took place (1) within the period of employment, (2) at a place where the employee could reasonably be, and (3) while the employee is reasonably fulfilling the duties of employment or doing something incidental to it." Crotty v. Naugatuck, 25 Conn.App. 599, 603-04, 595 A.2d 928 (1991).
There is no true distinction between the foregoing phrases and tests, and to find one would be to elevate form over substance. The doctrine of respondeat superior is based on public policy considerations that the employer " shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with the orders which he has given them on the subject." Stulginski v. Cizauskas, 125 Conn. 293, 296, 5 A.2d 10 (1939). In the present case, the evidence submitted indicates that Flanigan stopped at World Technology while on his way to volunteer with the police explorers; World Technology was within Flanigan's normal jurisdiction; Flanigan often stopped at World Technology, while both on and off duty; and, at the time of the abuse, Flanigan was dressed in full police uniform with his duty belt, which included his handcuffs (and presumably his weapon)-all of which were issued by the City. See Def. Mem., Ex. F; Pl. Mem., Ex. B, C. Viewing this evidence in the light most favorable to the plaintiff, the City has failed to show that no genuine issue of material fact remains as to whether Flanigan was acting in the scope of his employment at the time he witnessed the plaintiff's abuse. See, e.g., Doe v. Kennedy, supra, Superior Court, Docket No. CV-09-5013921 (summary judgment denied where reasonable jury could find that police officer had a mandatory duty to report sexual abuse that he became aware of while on duty and as a perpetrator of the abuse); Doe v. Yale University, Superior Court, complex litigation docket at Waterbury, Docket No. CV-08-5010994-S (July 6, 2009, Eveleigh, J.) [48 Conn.L.Rptr. 170, ] (allegation that geology professor who, while looking for a slide projector, witnessed potential abuse of a child by a fellow professor was sufficient to allege that professor was acting within the scope of his employment and withstand motion to strike claim for failure to report abuse).
Accordingly, there remains a genuine issue of material fact as to whether Flanigan had a ministerial or discretionary duty to report the abuse, and thus, whether the City can be held liable for his failure to do so. Consequently, summary judgment is denied as to liability for Flanigan's failure to report the child abuse.
V
CONCLUSION
Accordingly, the defendant's motion for summary judgment is granted, in part, and denied, in part.
So ordered.