Summary
holding that whether the circumstances "were such that the defendants' failure to act subject the plaintiff to imminent harm is a factual determination that should be left for the jury"
Summary of this case from Moreno v. West Hartford Board of Educ.Opinion
No. CV 92-0453080S
March 16, 1994
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
I.
Introduction and Factual Background
The plaintiff, William Kimball, commenced this action on September 16, 1992, filing a six count complaint alleging that on June 9, 1990 he was physically assaulted by the defendants Michael Calderoni, Alan Savaria, Todd Grosky, James Gallant and Officer Mark D'Agostino of the Southington Police Department while he was walking in the parking lot of Denny's Restaurant in Southington. The plaintiff further alleges that upon responding to the scene, Southington police officers Eric Brown, Michael Shanley, John Suski, and William Palmieri, all defendants in this action, failed to intervene and failed to adequately investigate the alleged assault. Once the altercation was terminated, the defendant police officers arrested the plaintiff.
In the first count, the plaintiff alleges that he was assaulted by the defendants Calderoni, Savaria, Grosky, Gallant and D'Agostino; and in the second count, the plaintiff alleges negligence on the part of these defendants. The third count concerns a breach of statutory duty on the part of the defendant police officers D'Agostino, Shanley, Brown, Palmieri and Suski for failing to intervene in the ongoing assault and in the fourth count, the plaintiff alleges, inter alia, that these same defendants violated his state constitutional right to be free from illegal arrest.
The fifth and sixth Counts of the plaintiff's complaint are directed against the defendant Town of Southington. The fifth count alleges that the town breached its duty to protect the plaintiff from suffering injury as a result of mob violence. Finally, the sixth count alleges that the town has a statutory duty to indemnify the defendant police officers for any liability incurred while negligently and recklessly acting, or failing to act, in their official capacities.
The defendants D'Agostino, Shanley, Brown, Palmieri, Suski, and the Town of Southington have now moved for partial summary judgment on counts three, four and five of the plaintiff's complaint maintaining that no material facts are in dispute and that they are entitled to judgment as a matter of law.
II.
Discussion
A.
A motion for summary judgment is granted when "the pleadings, affidavits and any other proof submitted show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Connell v. Colwell, 214 Conn. 242, 246 (1990), quoting Zichini v. Middlesex Memorial Hospital, 204 Conn. 399, 402 (1987). A material fact is one that will make a difference in the outcome of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990).
B.
The defendants argue that they are entitled to summary judgment with respect to the third count because the plaintiff's claim that the defendants were negligent in failing to intervene in the alleged assault is barred by governmental immunity. The plaintiff first argues that the failure to intervene and arrest the assailants involved acts that were ministerial in nature and therefore the defendants were not immune from liability. Alternatively, the plaintiff argues that if the acts complained of were discretionary, the general rule that governmental immunity bars liability for discretionary acts does not apply.
In Fraser v. Henninger, 173 Conn. 52, 60 (1977), our Supreme Court stated:
[A] municipal employee has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. The word `ministerial' `refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.' Wright v. Brown, 167 Conn. 464, 471, (1975).
For purposes of this motion, this court will assume, without deciding, that the defendants' duty to intervene in the altercation was discretionary. Notwithstanding this assumption, there exists a material issue of fact which may preclude governmental immunity and which is properly reserved for the trier of fact.
"[I]mmunity 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." Evon v. Andrews, 211 Conn. 501, 505 (1989). The first exception is relevant here: "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." Id; Burns v. Board of Education, 228 Conn. 640, 646 (1994).
In the present case, the plaintiff alleges that the police officers did not intervene when it came to their attention that he was being attacked and assaulted. The plaintiff further alleges that because the officers failed to intervene, he suffered severe physical harm. Whether or not the circumstances were such that the defendants' failure to act subjected the plaintiff to imminent harm is a factual determination that should be left the jury. Burns v. Board of Education, supra, 646.
The allegations of Count Three are factually similar to Sestito v. Groton, 178 Conn. 520 (1979). In Sestito, a police officer observed a group of men drinking, arguing and scuffling in a parking lot outside a bar, but did not intervene until he heard gunshots. The plaintiff's decedent died as a result of being shot. The Connecticut Supreme Court concluded that the trial court had erred in directing a verdict for the defendant town based on governmental immunity: "The plaintiff alleged that [the police officer] was aware of a disturbance of some proportions and did not immediately attempt to stop it; nor did he attempt to intervene when the opportunity to do so existed. These facts, if believed by the jury, could have supported a finding of negligence on the town's part." Id., 526.
"Summary judgment is especially ill-adapted to negligence cases where the ultimate issue in contention involves a mixed question of fact and law and requires the trier determine whether the standard of care was met in a specific situation". (internal quotation omitted.) Spencer v. Good Earth Restaurant, Corp. 164 Conn. 194, 199 (1972). Because the third count herein involves such an issue, the motion for summary judgment as to this count is denied.
C.
The defendants also move for summary judgment as to the fourth count of the complaint in which the plaintiff at paragraph 35 alleges a violation of his state constitutional right to be free from illegal arrest. The defendants argue that because the plaintiff has an adequate common law remedy for false arrest, no cause of action exists for violation of state constitutional rights. Indeed, in his memorandum of law in opposition to summary judgment, the plaintiff notes that he has alleged facts which also establish a cause of action for common law false arrest.
In a recent case, the Connecticut Appellate Court has noted that "[t]he . . . [purpose] of a motion for summary judgment is not to test the legal sufficiency of the complaint, but is to test for the presence of contested factual issues." Burke v. Avitabile, 32 Conn. App. 765, 772 (1993). In a footnote, the appellate court noted that Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-409 (1971) "seems to indicate that a motion for summary judgment can be used to test the legal sufficiency of the complaint prior to judgment. While recognizing Boucher, the fact that it was decided in 1971 and has not been cited for that proposition to this date, leads us to conclude that it is anomalous." Burke v. Avitabile, supra, n. 9. This court notes that Superior Court judges have consistently relied on the Boucher language in allowing the legal sufficiency of a complaint to be challenged via the summary judgment motion. See e.e., Lanier v. Jones, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. 263835 (April 26, 1993); Lanza, Inc. v. Travelers Indemnity Co., 8 CSCR 431 (April 7, 1993, Spear, J.) (summary judgment is the appropriate way to raise the legal sufficiency of the complaint after pleadings are closed.); Maulacci v. Canevari, 8 CSCR 293 (February 26, 1993, Hennessey, J.); Siecienski v. Wilson, Superior Court, Judicial District of New Haven, Docket No. 328874 (January 20, 1993); Kelley Property Development v. Town of Lebanon, 7 CSCR 967 (July 9, 1992, Austin, J.), aff'd., 226 Conn. 314 (1993).
The defendants rely on Kelley Property Development, Inc. v. Town of Lebanon, 226 Conn. 314 (1993) for the proposition that no cause of action exists under the state constitution when adequate alternative common law or statutory remedies are available. The plaintiff concedes that this is an accurate statement of the Supreme Court's holding in Kelley. The defendants attempt to characterize the fourth count as alleging only a claim under the state constitution. While the plaintiff does make reference to an infringement of his constitutional rights, the gravamen of this count is that he was falsely arrested. This court declines the invitation to read the complaint as narrowly as the defendants suggest. While perhaps the complaint could have been drafted more precisely, the function of the court at this juncture is to look at the complaint in the light most favorable to the plaintiff and determine if a cause of action has been sufficiently alleged. When legal insufficiency is raised, "[i]f a count in a complaint purports to set out more than one cause of action, a [challenge] to the entire count fails if it does not reach all of the causes of action pleaded." Wachtel v. Rosol, 159 Conn. 496, 499 (1970).
"False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another." Green v. Donroe, 186 Conn. 265, 267 (1982), quoting Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499 (1953). In the present case the plaintiff was arrested without a warrant. General Statutes 54-1f requires an arresting officer to have probable cause to arrest without a warrant. State v. Wilson, 153 Conn. 39, 41 (1965). "[P]robable cause is the knowledge of facts sufficient to justify a reasonable person's belief that there are grounds to make an arrest, and is determined by the existence or nonexistence of certain facts, as determined by the trier of fact." (Citations omitted.) Beinhorn v. Saraceno, 23 Conn. App. 487, 492 (1990). Because this determination clearly involves a question of fact as to the reasonableness of the defendant officers' actions, the motion for summary judgment is denied.
D.
The defendants finally move for summary judgment as to the fifth count of the plaintiff's complaint, which seeks to recover from the Town of Southington for the alleged breach of its duty to protect the plaintiff from suffering injury as the result of mob violence. The defendants argue that the plaintiff did not comply with the notice requirements of General Statutes 7-108 and thus his claims under this statute are barred. The plaintiff argues that 7-108 merely requires notice of a claim of personal injury, not notice that the claim will be brought under any particular statute. The plaintiff contends that the notice sent was sufficient if 7-108 is read in this manner. Alternatively, the plaintiff argues that whether or not notice was sufficient under 7-108 is a question for the trier of fact.
General Statutes 7-108 concerns municipal liability for damage done by mobs. It provides in pertinent part:
Each city and borough shall be liable for all injuries to person or property, including injuries causing death, when such injuries are caused by an act of any person or persons engaged in disturbing the public peace, if such city or borough, or police or other proper authorities thereof, have not exercised reasonable care or diligence in the prevention or suppression of such mob, riotous assembly or assembly engaged in disturbing the public peace. Any person claiming damages under this section from any city or borough shall give written notice to the clerk of the city or borough of such claim and of the injury upon which such claim is based, containing a general description of such injury and of the time, place and cause of its occurrence, within thirty days after the occurrence of such injury. . . .
The notice provided by the plaintiff in the present case is entitled "Notice of intention to bring action against a municipal employee and municipality for infringement of civil rights and physical damage to person under 7-465 of the General Statutes. The issue for this court to resolve is whether this notice sufficed to satisfy the requirements of 7-108.
This notice is attached to the defendants' memorandum of law in support of summary judgment as Defendants' Exhibit A. It is directed to the Town, the defendant police officers and various town officials, and states in full:
Written Notice is hereby given that William Kimball of 92 West Main Street, Plainville, Connecticut, intends to bring an action against Phillip A. D'Agostino, Chief of Police, Officer Mark D'Agostino, Officer Michael Shanley, Officer William Palmieri, Officer Eric Brown, Officer John Suski, Commissioner Stephen K. Elliot, Jr., Commissioner Frances J. Verderame, Commissioner William Welch II, Commissioner Anthony Pizzitola, Commissioner Philip K. Wooding, and Town of Southington, Juanine S. Depaolo, Town Clerk pursuant to Section 7-465 of the General Statutes for infringement of civil rights and physical damages to persons, the particulars of which are as follows:
Date and Time: June 9, 1990 at 2:28 a.m. and pursuing police investigation into matter
Place: Denny's Restaurant, Queen Street, Southington, Connecticut
In determining whether or not the plaintiff has complied with 7-108, this court must consider the distinct purposes of the two statutes. General Statutes 7-465 provides in relevant part:
Any [municipality] shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any persons civil rights or for physical damages to person or property if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damages was not the result of any wilful or wanton act of such employee in the discharge of such duty.
This statute authorizes indemnification to municipal employees who, acting in the scope of their employment, become liable to pay damages. Under 7-465, therefore, the municipality is only vicariously liable. Under 7-108, however, the municipality is directly liable for its own negligence. This is a critical distinction and one which demonstrates that the plaintiff did not comply with 7-108 by serving notice pursuant to 7-465. A notice to a town that a plaintiff intends to seek indemnification from it pursuant to 7-465 simply does not apprise the town that it is subject to suit for failing to suppress a riot.
The purpose of a provision requiring statutory notice of a claim as a condition precedent to bringing an action for damages against the municipality is to give the officers of the municipality such information as will enable them to make a timely investigation of the claim and to determine the existence and extent of liability.
Fraser v. Henninger, 173 Conn. 52, 55 (1977). The notice provided in the present case patently failed to give the defendant town any warning that would prompt it to make an investigation to aid it in defending a claim under 7-108. Additionally, even if a notice referencing 7-465 was sufficient for a 7-108 action, this notice fails to meet the requirements of 7-108 as there is no general description of the injury. The notice patently fails to comply with the requirements of the statute. See, Lussier v. Dept. of Transportation, 228 Conn. 343, 354 (1994). Because the plaintiff failed to give written notice to the defendant Town of Southington that he was claiming damages under 7-108 within thirty days after the occurrence of his alleged injury, the defendants' motion for summary judgment is granted as to the fifth count of the complaint.
The Supreme Court has noted that "[i]n an action brought under 7-465, there is an obvious potential that the interests of a municipality will be antagonistic to those of its employees. . . ." Fraser v. Henninger, supra, 57. One reason for this is that 7-465 exempts the municipality from the assumption of liability when the injury complained of was the result of a wanton or willful act of its employee. Therefore, it is possible, if not likely, that part of the investigation undertaken by a municipality after receiving notice pursuant to 7-465 would focus on discovering evidence of willful conduct on the part of its employee. Section 7-108 provides no such exemption from municipal liability for wanton or willful acts of employees and, therefore, it is likely that the investigation would take a different course.
MARSHALL K. BERGER, JR. JUDGE, SUPERIOR COURT