Opinion
No. CV 00-0800283
November 2, 2004
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT (#139 AND #157) AND MOTIONS TO STRIKE
At issue is whether the defendants' motion to strike should be granted as to the plaintiffs' expert affidavits because the affidavits are not based on personal knowledge and contain legal conclusions. Also at issue is whether the defendants' motions for summary judgment should be granted on the ground that there is no genuine issue of material fact and under the applicable principles of law, the defendants are entitled to judgment.
This litigation arose from the shooting and physical attack of Carlos Gonzalez (Carlos), Myrna Gonzalez (Myrna) and Michael Ericson by William Gonzalez (William) that occurred on February 8, 2000, in Manchester, Connecticut. The plaintiffs in Gonzalez v. Young are Myrna Gonzalez and her husband, Carlos Gonzalez, and the plaintiffs in Ericson v. Young are Michael Ericson and his wife, Toni Ericson. The defendants in both cases are the town of Manchester (town), Manchester police officers William Young and Daniel Parlipiano (officers), and Manchester police dispatchers Brian Garrison and Ellen Haley (dispatchers). On June 5, 2001, the trial court, Beach, J., consolidated these two cases.
The pleadings and documents submitted by the parties reveal the following facts. Myrna and Carlos lived in the first floor apartment at 73 Chestnut Street in Manchester; William, Carlos' uncle, lived in the attic apartment at the same location. Michael Ericson was the property manager. During the early evening of February 8, 2000, William arrived at the dwelling driving his dump truck, which he parked in the driveway behind Myrna's car. After a verbal altercation with Myrna, William forced his dump truck past Myrna's vehicle, striking and causing damage to it. Myrna called 911 at about the same time to report the conflict, and the officers responded.
The officers investigated by conducting a cursory search of William's apartment and interviewing Myrna and William. After determining that no further police action was necessary, they left the scene. Shortly thereafter, William fired gunshots through Myrna's apartment door, striking her in the leg. Michael Ericson, the property manager, was also struck. William then forcibly entered the apartment. His weapon misfired when he attempted to shoot Carlos. The two struggled and Carlos was injured.
On March 13, 2002, the Gonzalez' filed a fourteen-count substitute complaint asserting the following causes of action: negligence against the officers (counts one, three, five and seven); negligence against the dispatchers by Myrna only (counts nine and eleven); indemnity pursuant to General Statutes § 7-465 against the town (counts two, four, six, eight, ten and twelve); and a direct liability action pursuant to General Statutes § 52-557n against the town (counts thirteen and fourteen). The Ericsons also filed a ten-count substitute complaint on March 13, 2002, in which the following causes of action were asserted: negligence against the officers (counts one and five); loss of consortium against the officers by Toni Ericson (counts three and seven); indemnity pursuant to § 7-465 against the town (counts two, four, six and eight); and a direct liability action pursuant to § 52-557n against the town (counts nine and ten).
On January 27 and 31, 2004, the town, officers and dispatchers filed identical motions for summary judgment as to all claims alleged in the Ericson and Gonzalez complaints. They attached a memorandum of law in support of their motion, which includes excerpts of the uncertified deposition testimony of Myrna, Carlos, William, Ellen Haley, Brian Garrison, Young, Parlipiano, Ericson and the plaintiffs' expert, James Blanchette. The town, officers, and dispatchers also attached an uncertified copy of the transcripts taken from Myrna's two 911 telephone calls.
The plaintiffs filed a memorandum of law in opposition to the motion for summary judgment on April 14, 2004. In support of their motion the plaintiffs attached excerpts of the uncertified deposition testimony of Myrna, certified deposition testimony of Carlos, Ellen Haley, Ericson and Young and an affidavit of James Blanchette. The plaintiffs also attached a copy of the 911 telephone call transcripts, a copy of Young's police report and signed statements by Myrna, Carlos and Ericson. In addition, the plaintiffs included unauthenticated excerpts from a dispatcher training manual, as well as excerpts from "Police Response to Crimes of Family Violence" model policies, procedures and guidelines produced by the Office of the Chief State's Attorney and a copy of the Manchester Police Department general orders on family violence response and prevention. On May 24, 2004, the town, officers and dispatchers filed a reply memorandum, to which the plaintiffs filed a response on June 11, 2004, attaching the affidavit of Anne O'Dell, an expert disclosed by the plaintiff. On June 21, 2004, the town, officers and dispatchers filed a motion to strike the affidavits of Blanchette and O'Dell, as well as a memorandum of law in support on the grounds that the affidavits are not in compliance with Practice Book §§ 17-45 and 17-46. On June 24, 2004, the plaintiffs filed a memorandum of law in opposition to the motion to strike, and filed a supplemental affidavit and surreply on July 1, 2004. The defendants filed a reply to the plaintiffs' opposition to the motion to strike, as well as a supplemental reply memorandum of law on July 1, 2004. Thereafter, the plaintiffs filed a supplemental memorandum of law in opposition to the motion for summary judgment on July 12, 2004. The identical motions for summary judgment are presently before the court as well as the motion to strike the affidavits.
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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive laws entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
Motion to Strike Affidavits
The defendants have moved to strike two affidavits offered by the plaintiffs on the grounds that they are not based on personal knowledge and are irrelevant. The affiants are Anne O'Dell and James Blanchette, two of the plaintiffs' experts. The defendants argue that the affidavits are inadmissible because they are not founded on personal knowledge but rather contain legal conclusions and self-serving statements, and, therefore do not comport with Practice Book § 17-46.
"A motion to strike is the proper method to attack a counter affidavit that does not comply with the rules [of practice.]" 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 569 n. 3, 636 A.2d 1377 (1994). "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Practice Book § 17-46. "The requirements that the affidavit be based on personal knowledge and contain facts admissible at trial do not mean . . . that expert opinions in the form of affidavits may not be considered in a summary judgment proceeding. For the purposes of an expert's opinion, the expert's personal knowledge of facts is comprised of those materials on the basis of which he properly may render his opinion." (Citations omitted; internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).
The affiants assert that they are familiar with the present case, because they read the police reports and other associated materials. O'Dell's affidavit is comprised mainly of conclusory statements as to the defendants' duties and negligence. For example, she testifies that "[i]t was necessary to . . . request any and all information obtained from a caller." She also states that "the municipal defendants were manipulated by William Gonzalez" and that the plaintiffs were identifiable victims subject to imminent harm.
Blanchette's affidavit consists of broad, generic statements of police practice that have no basis other than his personal experience. For example, he testifies that "[d]ispatchers should provide responding officers with a history of calls." Blanchette also makes inferential predictions about generic situations which do not serve as facts sufficient to support any argument. He testifies that "[i]t is foreseeable that if the dispatchers fail to perform their duties adequately after receiving a call involving an active incident that may be a family violence crime, the victims will be in danger of being harmed." Such statements do not bolster any argument, because they are statements of general truth and common sense, and are meaningless without proper legal analysis. Both O'Dell and Blanchette, however, interpret the law by defining the purpose of General Statutes § 46b-38b and its place in Connecticut jurisprudence. Blanchette's affidavit closes with the legal conclusion that the plaintiffs were identifiable victims subject to imminent harm.
A party's conclusory statements "in the affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481, 697 A.2d 680 (1997).
In the present case, the affiants testify as to the legal effect of a specific Connecticut statute, and base their conclusions that the facts herein must be within the purview of an exception to the doctrine of governmental immunity. The balance of the content is forward-looking general statements. In sum, their testimony is a collection of aphorisms onto which statutory interpretation and legal conclusions are tacked. Because the affiadavits contain only general statements and legal conclusions that would not be admissible at trial, the motion to strike is granted as to the affidavits of O'Dell and Blanchette.
Claims of Negligence Against Officers Young and Parlipiano
The officers move for summary judgment as to all claims of negligence against them on the ground that their actions consisted of discretionary, governmental acts and decisions, which are protected under the doctrine of governmental immunity. "The [common law] doctrines that determine the tort liability of municipal employees are well established . . . Although historically [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [municipal] employees faced the same personal tort liability as private individuals . . . Over the years, however, [t]he doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts." (Citations omitted; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 727, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn.App. 546, 662 A.2d 15 (1995). Specifically, the officers argue that they are entitled to immunity, because the facts demonstrate that their response to the altercation, and subsequent decision not to arrest William Gonzalez, involved their discretionary judgment in light of the surrounding circumstances.
In their memorandum of law in opposition, the plaintiffs counter that the officers' actions were ministerial in nature, and, therefore, the officers are not entitled to governmental immunity. "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citation omitted; internal quotation marks omitted.) Mulligan v. Rioux, supra, 229 Conn. 727. In support of their negligence argument, the plaintiffs rely on § 46b-38b(a) which requires that "[w]henever a peace officer determines upon speedy information that a family violence crime, as defined in subdivision (3) of section 46b-38a . . . has been committed within such officer's jurisdiction, such officer shall arrest the person or persons suspected of its commission and charge such person or persons with the appropriate crime." The plaintiffs argue that this statutory scheme denied the officers any discretion in their decision as to whether to arrest William Gonzalez.
The plaintiffs further rely on the model policy regarding "Police Response to Crimes of Family Violence" to support their argument that the officers had a ministerial duty to arrest William. The unauthenticated manual, however, specifically mandates that officers are to "fully comply with the Family Violence and Prevention Act to . . . [m]ake arrest decisions in such cases in accordance with traditional probable cause standards and existing state statutes." (Emphasis added.)
In Alexander v. Vernon, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0078935 (May 3, 2004, Sferrazza, J.), the court rejected an argument identical to that of the plaintiff. The victim's family alleged that the defendant police officers were negligent in not arresting the victim's husband when they responded to a domestic violence incident at the couple's home two days before the husband ultimately killed the victim. In finding that the family violence statute did not divest the police officers of the discretion to make an arrest, the court held that "the investigating officers had to determine whether probable cause existed to believe that [the victim's husband] committed a family violence crime." Id. In light of the conflicting versions of events given by the victim and the husband when the officers arrived at the scene of the dispute, the court held that "[a]ny determination of probable cause necessarily demands an exercise of judgment and discretion." Id. Furthermore, the Alexander court found that "as to discretion, § 46b-38b(b) states, in part, that [w]here complaints are received from two or more opposing parties, the officer shall evaluate each complaint separately to determine whether he should seek a warrant for an arrest . . . This subsection invests police officers with the discretion to secure an arrest warrant rather than effect an on-site, warrantless arrest where, as in the present matter, each [party] accuses the other of culpability." (Internal quotation marks omitted.) Id.
In the present case, the officers interviewed both Myrna Gonzalez and William Gonzalez separately after arriving at the scene, and received conflicting versions of the events that had transpired before the officers' arrival. They also interviewed Carlos Gonzalez, the Gonzalez's children, the Gonzalez's neighbors, Michael Ericson, re-interviewed William Gonzalez and conducted a cursory search of his apartment. Based on their findings, the officers concluded that they did not have probable cause to arrest either William Gonzalez or Myrna Gonzalez for the dispute regarding the use and access to the driveway. In light of the court's decision in Alexander, in accordance with § 46b-38b(a), the officers' decision not to arrest William Gonzalez required the exercise of judgment and discretion, and, ordinarily, they would be entitled to immunity.
The plaintiffs, however, argue that even if the officers' actions were discretionary, governmental immunity does not shield them from liability, because an exception to the doctrine applies. "A municipal employee's immunity for the performance of discretionary governmental acts is . . . qualified by three recognized exceptions: 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 . . . Thus, [t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." (Citation omitted; internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003).
It is the plaintiffs' position that Carlos was an identifiable person subject to imminent harm, because Gonzalez had "been causing problems with [Carlos'] family for the past two months" and because police officers are trained to regard family violence complaints as high risk. The plaintiffs support this argument with a police report and police manuals. The plaintiffs also assert that Michael Ericson was an identifiable person subject to imminent harm, because he had previously attempted to mediate disputes between his tenants and because he attempted to calm Myrna at the officers' request. None of this evidence addresses the issues of identifiability or imminence.
"The [identifiable] person/imminent harm exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." (Internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989). "In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." Burns v. Board of Education, 228 Conn. 640, 647, 638 A.2d 1 (1994).
The plaintiffs in the present case provide no substantive argument as to why the imminent harm exception should apply. "The special duty required to maintain the action cannot be established by the mere fact that someone with whom the official had prior contact subsequently injured the plaintiff or the plaintiff's decedent." Shore v. Stonington, 187 Conn. 147, 156, 444 A.2d 1379 (1982). In Shore, the plaintiff sued the defendant police officer for failing to arrest an intoxicated driver who later struck and killed the plaintiff's decedent. The court held that "resolving the issue of [the driver's] sobriety in favor of the plaintiff does not overcome the threshold requirement for submission of the case to the jury, namely, that during his encounter with [the driver], [the officer] could have been aware that [the driver's] conduct threatened an identifiable victim with imminent harm." Id., 153-54. Similarly, determining William's mental state when the police responded to the first 911 call does not lend support as to whether the officers knew that anyone at the scene was an identifiable victim threatened with imminent harm.
In Evon, the plaintiffs sued the defendant city of Waterbury and various officials, alleging a failure to enforce statutes following a dwelling fire that resulted in the deaths of the plaintiffs' decedents. In ruling on the identifiable victim/imminent harm exception, the Supreme Court held that "[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future . . . [T]he fire could have occurred at any future time or not at all . . . [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." (Citations omitted; internal quotation marks omitted.) Evon v. Andrews, supra, 211 Conn. 508. Similarly, the risk of William attacking and injuring anyone was a scenario subject to a wide range of variables; there was no indication to the officers that injury was likely to occur, if at all, during an ascertainable time frame. Like Evons, the present case "is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot." Id.
The officers argue that the exception does not apply to the present case, because there is no evidence to support a conclusion that William Gonzalez's threatening actions and conduct were ever directed at Carlos Gonzalez and Michael Ericson. The officers maintain that there is no dispute that when they arrived at the house, the scene was "relatively calm," and that there was no active or open conflict. Further, the officers argue that Myrna and William were calm and cooperated with the officers. In addition, neither Carlos nor Michael Ericson ever presented any facts to the officers suggesting that William was a threat to himself or to anyone else, or requested that the officers arrest William. After conducting interviews and investigating the area for relevant evidence, the officers argue that they had no reason to suspect that William would assault or harm either Carlos or Michael in the immediate future.
The officers, however, support their arguments solely with several uncertified excerpts of deposition transcripts. "This court has previously ruled that uncertified deposition testimony is insufficient to support a motion for summary judgment." Bowers v. Simsbury Medical Associates, Superior Court, Judicial District of Hartford, Docket No. CV 00 0595142 (August 20, 2001, Hennessey, J.). For this reason, the uncertified transcripts cannot be used to bolster the argument in opposition to the exception. Their motion for summary judgment is granted nevertheless because none of the plaintiffs' evidence addresses identifiability or imminence and does not demonstrate the existence of a genuine issue of material fact so that under the applicable principles of substantive law the officers may be within an exception to the governmental immunity doctrine. Accordingly, the motions for summary judgment as to counts one, three, five and seven of the Gonzalez complaint and counts one and five of the Ericson complaint are granted.
Claims of Negligence Against Dispatchers Garrison and Haley
In the motion for summary judgment filed in Gonzalez v. Young, the dispatchers argue that they did not breach any duty to the plaintiffs, and, therefore, summary judgment should be granted as to the claim of negligence against them. The dispatchers support their arguments with an excerpt of a transcript of the first 911 telephone call as well as two uncertified excerpts of deposition transcripts.
As noted above, "[t]his court has previously ruled that uncertified deposition testimony is insufficient to support a motion for summary judgment." Bowers v. Simsbury Medical Associates, supra, Superior Court, Docket No. CV 000595142. See also Practice Book § 17-45. For this reason, the motion for summary judgment as to the dispatchers in counts nine and eleven of the Gonzalez complaint is denied.
Claims Pursuant to §§ 7-465 and 52-557n
Section 52-557n, liability of political subdivision and its employees, provides in relevant part": "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The 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 town argues that §§ 7-465 and 52-557n do not permit direct causes of action without a prior determination of an employee's underlying liability. "Section 7-465 is a municipal employee indemnification statute . . . [T]he legislature has provided for indemnification by municipalities of municipal officers, agents or employees who incur liability for certain of their official conduct. See General Statutes §§ 7-465 and 7-308 . . . To invoke § 7-465, the plaintiffs first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification . . . While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance." (Citations omitted; internal quotation marks omitted.) Altfeter v. Naugatuck, 53 Conn.App. 791, 799, 732 A.2d 207 (1999). Because, it has been concluded that judgment should be granted as a matter of law on the plaintiffs' claims of negligence against the officers, the town, without a determination of direct liability of the officers, cannot assume liability in the first instance. Accordingly, the motions for summary judgment against the town pursuant to § 7-465 on counts two, four, six, eight, ten and twelve of the Gonzalez complaint and counts two, four, six and eight of the Ericson complaint are granted.
The defendants' claim, however, is incorrect as to § 52-557n. "[The Supreme Court] agree[s] with the Appellate Court that § 52-557n allows the plaintiffs to bring a direct cause of action for negligence against the defendants . . ." Spears v. Garcia, supra, 263 Conn. 25. The court also noted that General Statutes "§§ 52-557n and 7-465 are coextensive. [The Supreme Court] recognize[s] that there may be circumstances under which a municipality is held liable under § 52-557n where it would have been able to avoid liability had suit been brought jointly against the employee and the municipality under § 7-465. This outcome, however, results from a clear legislative expression of an intent to abrogate municipal immunity independent of the availability of a claim under § 7-465. As long as this result is rational, we may not judge the wisdom, desirability or logic of the legislative determination . . ." (Internal quotation marks omitted.) Id., 37-38. Accordingly, the town's motion for summary judgment is denied as to the claim under § 52-557n on counts thirteen and fourteen of the Gonzalez complaint and counts nine and ten of the Ericson complaint.
Loss of Consortium
The officers also move for summary judgment on counts three and seven of the Ericson complaint as to Toni Ericson's claim for loss of consortium with her husband, Michael Ericson. They argue that loss of consortium claims are derivative of the injured spouse's cause of action, and that since they are entitled to governmental immunity for their alleged negligent conduct, there is no underlying claim from which Toni Ericson can derive her loss of consortium.
"[A]n action for loss of consortium, although independent in form, is derivative of the injured spouse's cause of action . . ." (Internal quotation marks omitted.) Jacoby v. Brinckerhoff, 250 Conn. 86, 91-92, 735 A.2d 347 (1999). Because it has been concluded that the officer's motion for summary judgment should be granted as to Michael Ericson's claims against them in negligence, there is no underlying claim from which to derive his wife's claim. Accordingly, summary judgment is granted on counts three and seven of the Ericson complaint as to Toni Ericson's claim for loss of consortium.
CONCLUSION
The plaintiffs' expert affidavits are not based on personal knowledge and that they contain legal conclusions, therefore the court grants the defendants' motion to strike these affidavits.
As to the defendants' motion for summary judgment with respect to the Gonzalez' complaint, counts one, two, three, four, five, six, seven, eight, ten and twelve are granted and with respect to the Ericson's complaint, counts one, two, three, four, five, six, seven and eight of the complaint are granted. The plaintiffs have failed to show a genuine issue of material fact as to whether the officers are entitled to governmental immunity. The plaintiffs have also improperly pleaded General Statutes § 7-465. Lastly, consortium is a derivative claim and must fail if the underlying cause of action has been dismissed. In addition, it is also concluded that as to the defendants' motion for summary judgment with respect to the Gonzalez complaint, counts nine, eleven, thirteen and fourteen are denied, and with respect to the Ericson complaint, counts nine and eleven are denied. The plaintiffs have properly pleaded a direct cause of action against the town under § 52-557n and the defendants have failed to meet their burden of proof showing the absence of a genuine issue of material fact and their entitlement to summary judgment as a matter of law as to the dispatcher's alleged negligence.
Hennessey, J.