Opinion
CV166010803S
03-08-2018
Brian LECLAIR v. Allen BACCHIOCHI et al.
UNPUBLISHED OPINION
OPINION
Farley, J.
The plaintiff, Brian Leclair, filed this action alleging that the defendants, Allen Bacchiochi (Allen), Melanie Bacchiochi (Melanie), and Justin Mathieson, are liable for personal injuries he sustained in his official capacity as a Connecticut State Trooper while responding to a " domestic disturbance" at the defendants’ home. The plaintiff alleges that he was injured while attempting to restrain the teenaged Mathieson and take him to the hospital. The defendant Melanie had called the police because of concerns about her son and Allen, Mathieson’s grandfather, owned and lived in the house. All three defendants have moved for summary judgment. For the reasons explained below, the court denies the motion as to all three defendants.
FACTS AND PROCEDURAL HISTORY
The three-count complaint alleges the following facts common to all counts. Allen owns the home where the defendants reside at 12 Hopyard Road, Stafford Springs, Connecticut. During all relevant times, the plaintiff was employed and acting as a Connecticut State Trooper, and Melanie was acting as Allen’s agent, servant, or employee. On May 29, 2014, Melanie called the Stafford Springs Police Department to complain that her son " was aggressive and being abusive and requested the police and [the] plaintiff to remove [him] from the premises." The plaintiff was " called out to" the premises for a " domestic disturbance." When the plaintiff arrived at the premises, Melanie was present and " had lost control of her son ... Mathieson." The plaintiff attempted to restrain Mathieson and suffered personal injures as a result.
The plaintiff asserts a claim of common-law negligence against Melanie (count two), a parallel claim of vicarious liability against Allen (count one), and a claim of intentional assault and battery against Mathieson (count three). In count one, the plaintiff alleges that Allen, as owner of the premises, is vicariously liable for the conduct of Melanie, " his agent[ ], servant[ ], or employee[ ]," who was negligent in one or more of the following ways:
a) [she] failed to warn the plaintiff of the mental state and hostile condition of ... Mathieson, so that the plaintiff would have sufficient backup and assistance in dealing with Mathieson;
b) [she] failed to assist the plaintiff in the restraint of ... Mathieson;
c) [she] failed to maintain the premises in such [a] condition that the plaintiff would not be injured when he ventured upon the property of the defendant;
d) [she] failed to maintain or restrain ... Mathieson prior to [Mathieson] causing injury to the plaintiff;
e) she assisted in the release of Mathieson to attack the plaintiff;
f) she failed to warn the plaintiff of the dangerous condition of ... Mathieson, who later caused [the] plaintiff’s injuries.
Count two incorporates these allegations of negligence and again alleges that Allen " left [Melanie] in charge of the premises and she was acting as the agent, servant, and employee of [Allen]." Count three incorporates the same negligence allegations and further alleges that Mathieson intentionally caused injury to the plaintiff when he fought the plaintiff and resisted arrest. The defendants’ amended answer denies the essential allegations of the complaint and asserts two special defenses not presently at issue.
On August 1, 2017, the defendants filed a motion for summary judgment and supporting memorandum of law claiming that there is no genuine issue of material fact as to the defendants’ liability on all three counts. They argue that: (1) Allen is not vicariously liable because Melanie was not his agent, servant, or employee; (2) Melanie is not liable because she was not acting as the agent, servant, or employee of Allen, and because the plaintiff’s cause of action against Melanie is barred by the public policy expounded in Kaminski v. Fairfield, 216 Conn. 29, 38-39, 578 A.2d 1048 (1990) subsequently associated the firefighter’s rule; and (3) Mathieson is not liable under the circumstances of this case based upon his age and mental state.
" [T]he common-law firefighter’s rule provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his or her duties generally cannot bring a civil action against the property owner for injuries sustained as the result of a defect in the premises." Sepega v. DeLaura, 326 Conn. 788, 789, 167 A.3d 916 (2017).
Although these grounds are not explicitly stated in the defendants’ motion, they have been cumulatively asserted in the motion, the memorandum of law in support, and during oral argument at short calendar.
In support of their motion, the defendants attach excerpts of Melanie’s certified deposition transcript, in which she testified to the following facts. At the time of the incident, Melanie lived at the premises with her fifteen-year-old son, Mathieson, and her father, Allen, who had been diagnosed with vascular dementia. Melanie had moved into the premises to act as the " sole caregiver" for Allen. On the date of the alleged incident, Melanie observed that Mathieson was " distressed," " talking in sentences that [she] couldn’t understand," and was " moaning and hollering things that didn’t make sense." This behavior led Melanie to believe that Mathieson was " on something" because his " body was there" but " his mind was not." Melanie called 911 " for medical help" for Mathieson because she was fearful that he was going to walk out the basement door into a pond behind the premises. When the police arrived and attempted to remove Mathieson from the premises, he refused to leave and the police restrained him. Melanie states that, at some point in time, she informed the police that Mathieson had taken " three hits of LSD."
It remains unclear from the excerpts of Melanie’s testimony whether she claims she made this disclosure to the police during the 911 call, while they were on the premises, or afterwards.
The plaintiff filed three memoranda of law in opposition to the motion for summary judgment dated August 18, 2017, September 15, 2017, and October 2, 2017. The plaintiff argues that there are genuine issues of material fact as to whether: (1) Allen is liable, because the defendant has not submitted evidence to establish that Melanie was not his agent, servant, or employee; (2) Melanie is liable for the same reason, and because the public policy rule pronounced in Kaminski v. Fairfield, supra, 216 Conn. 38-39, has been expressly foreclosed by Sepega v. DeLaura, 326 Conn. 788, 167 A.3d 916 (2017); and (3) Mathieson is liable because his intent under all of the circumstances is a question of fact that the jury must determine.
In his August 18, 2017 opposition and his September 15, 2017 motion to strike, the plaintiff argues that the defendants’ motion for summary judgment should be denied as untimely pursuant to the timeframe outlined by the parties’ September 21, 2016 scheduling order. Nevertheless, the court need not consider this issue because on September 29, 2017, the court granted the plaintiff’s consented motion to extend the deadlines of the scheduling order by ninety days and the plaintiff’s counsel conceded this issue at short calendar.
In his September 15, 2017 supplemental opposition, the plaintiff argues, in relevant part, that the court should treat the defendants’ motion for summary judgment as a motion to strike because the defendants’ motion challenges the legal sufficiency of the complaint and that he should be able to replead if the motion is granted. See American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009). The court disagrees with the plaintiff’s interpretation of the motion. The defendants do not argue that the complaint is legally insufficient because the complaint is devoid of some necessary allegation; rather, they simply endeavor to classify the plaintiff’s cause of action against Melanie as one for ordinary negligence, not premises liability. Indeed, the plaintiff in his October 2, 2017 opposition agrees with this classification and concedes that this case includes claims of ordinary negligence not having to do with premises liability. Further, the plaintiff’s ability to replead remains unhindered because the court denies the motion as to all three defendants.
In support of these arguments, the plaintiff attached his signed and sworn affidavit, dated September 13, 2017, and additional excerpts of Melanie’s certified deposition transcript. In his affidavit, the plaintiff furnishes his recollection of the incident. He states, in relevant part, that he was one of the officers dispatched to the premises in response to a report that a person with violent tendencies had possibly taken LSD. He also states that when he arrived on the premises, Mathieson informed him that he had taken three tabs of LSD. When Mathieson was then advised that he would have to be taken to the hospital, he began to flail his arms and resist fiercely, which ultimately led to the plaintiff’s injuries.
The court heard oral argument at short calendar on November 13, 2017.
DISCUSSION
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " 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 law, 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 ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821. " 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 ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
I
COUNT ONE: ALLEN BACCHIOCHI
Count one alleges that Allen is liable for the plaintiff’s injuries through the negligent acts or omissions of Melanie, who was allegedly acting as his agent, servant, or employee. The defendants argue that Allen is not vicariously liable because there is no evidence that an agency or employment relationship existed between Melanie and Allen. Specifically, the defendants argue that Melanie was not acting as Allen’s employee when she sought emergency services. In response, the plaintiff argues that there is a genuine issue of material fact as to whether Allen is vicariously liable because the defendants have not submitted evidence clearly establishing that Melanie was not Allen’s agent, servant, or employee.
The distinction between a theory of agency and the narrower doctrine of respondeat superior is slight. " Pursuant to the theory of vicarious liability, a principal can be held liable for the negligent acts of its agent. Before vicarious liability can be imposed, however, there must be sufficient evidence produced to warrant a finding of agency between the parties. If there is a finding that the allegedly negligent actor is not an employee or agent, then the claim of vicarious liability must fail ... Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act ..." (Citation omitted; internal quotation marks omitted.) Cefaratti v. Aranow, 154 Conn.App. 1, 29, 105 A.3d 265 (2014), rev’d on other grounds, 321 Conn. 593, 141 A.3d 752 (2016); Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999) (basis of vicarious liability is public and social policy that party should be held to respond for acts of another irrespective of fault).
Likewise, under the doctrine of respondeat superior, an employer is liable for the negligence of an employee committed within the scope of employment. " In determining 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; and (3) is motivated, at least in part, by a purpose to serve the employer ... and in furtherance of his master’s business ..." (Internal quotation marks omitted.) 2 National Place, LLC v. Reiner, 152 Conn.App. 544, 58, 99 A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d 1112 (2014).
The plaintiff’s claim against Allen is premised upon theories of agency as well as respondeat superior. Because the court concludes that there is a genuine issue of material fact as to whether an agency relationship existed between Allen and Melanie, the court need not determine whether an employment relationship also existed or whether Melanie was acting within in the scope of that employment relationship.
Our Supreme Court in " Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983) ... set forth the elements required to show the existence of an agency relationship: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking ... Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent. See 1 Restatement (Second) Agency, § § 14, 220 [1958] ... In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal ... Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." (Internal quotation marks omitted.) National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 677-78, 949 A.2d 1203 (2008). " The burden of proving agency is on the party asserting its existence." Lee v. Duncan, 88 Conn.App. 319, 324, 870 A.2d I, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005). " The existence of an agency relationship is a question of fact." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006).
In support of their motion, the defendants rely upon certain excerpts of Melanie’s certified deposition transcript submitted by both parties. Melanie testified that Allen is her father and that several years prior to the alleged incident, she moved to the premises to live with him because he had been diagnosed with vascular dementia. She testified that Allen could not complete basic tasks, like " taking pills, more a.m./p.m., things like that," but that he could engage in short conversation. Melanie also testified that while she had another job outside of the home, she acted as Allen’s " sole caregiver" prior to, at the time, and after the alleged incident. She testified that at the time of the alleged incident, Allen was home but was not entirely aware of the date, time, and place. She testified Allen would not have been capable of communicating effectively with the police on his own.
Viewing Melanie’s testimony in the light most favorable to the plaintiff, the court concludes that the defendants have failed to meet their burden to submit evidence to establish that no genuine issue of material fact exists as to whether an agency relationship existed between Allen and Melanie. The evidence suggests the existence of such a relationship. Although Melanie did not affirmatively testify to the exact parameters of her arrangement with Allen, her authority to act on Allen’s behalf and her responsibilities within the household, her testimony does establish that her presence at the home was, in part, for the purpose of assisting Allen with household tasks. It may be inferred from the evidence submitted that her responsibilities including maintaining a safe environment in the home. Therefore, the court concludes that a genuine issue of material fact exists as to whether an agency relationship existed between Allen and Melanie, and denies summary judgment as to this count.
As previously outlined, although the plaintiff has the ultimate burden of proof as to the existence of this relationship; Lee v. Duncan, 88 Conn.App. 319, 324, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005); the defendants have the burden on summary judgment to establish that such a relationship does not exist; Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
II
COUNT TWO: MELANIE BACCHIOCHI
In count two, the plaintiff alleges that his personal injuries were caused by the negligent acts and omissions of Melanie, who was in charge of the premises and acting as the agent, servant, and employee of Allen. The defendants argue that that there is no genuine issue of material fact and Melanie is not liable because she was not acting as the agent, servant, or employee of Allen, and because the plaintiff’s cause of action against Melanie is barred by Kaminski v. Fairfield, supra, 216 Conn. 38-39. In response, the plaintiff argues that there is a genuine issue of material fact as to whether Melanie was Allen’s agent, and that the public policy rule pronounced in Kaminski has been expressly foreclosed by Sepega v. DeLaura, supra, 326 Conn. 788.
It remains uncertain from the parties’ submissions to what extent, if at all, the relationship between Allen and Melanie implicates any legal duty owed by Melanie to the plaintiff. Nevertheless, the court need not reach this issue because, as previously outlined, it concludes that a genuine issue of material fact exists as to whether an agency relationship existed between Allen and Melanie.
The defendants also rely upon Sepega v. DeLaura, Superior Court, judicial district of Middlesex, Docket No. CV-15-6013298-S (October 29, 2015, Vitale, J.) (61 Conn.L.Rptr. 197), and Lund v. Milford Hospital, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-14-6015442-S (March 13, 2015, Stevens, J.) (60 Conn.L.Rptr. 120), both of which were overruled by our Supreme Court after the defendants filed their motion, but prior to oral argument at short calendar. See Sepega v. DeLaura, supra, 326 Conn. 788;
Even if there is no agency relationship between Allen and Melanie, the court construes the second count as a direct claim of negligence against Melanie that does not depend upon the existence of an agency relationship between her and Allen. The court addresses the agency issue in this context only because the parties have briefed it. The court has already concluded that there is a genuine issue of material fact as to whether an agency relationship existed between Allen and Melanie with respect to the subject incident. Therefore, the court denies the defendants’ motion as to Melanie on the same ground. Thus, the sole remaining issue as to count two is whether the plaintiff’s cause of action against Melanie is barred by Kaminski .
In Kaminski, the parents of an adult son who resided with them brought a wrongful death action against the police officer who shot their son after he attacked the officer with an axe. The police officer was present as an escort to a mental health team that was responding to the parents’ call for help with their mentally ill son. The police officer filed a counterclaim against the parents alleging they were negligent in failing to properly care for and supervise their son, in failing to warn the officer of their son’s violent propensities and in failing to take steps to restrain and control their son prior to the arrival of the officer and the mental health team. Kaminski v. Fairfield, supra, 216 Conn. 32. The court affirmed the trial court’s judgment against the officer on his counterclaim after granting the parents’ motion to strike holding, in relevant part, that the parents " cannot be held liable to the [police officer] for risks that inhered in his presence, as a police officer acting as a trained escort for a mental health team on a visit to a disturbed patient known to be agitated and to have access to axes ... [F]undamental concepts of justice prohibit a police officer from complaining of negligence in the creation of the very occasion for his engagement ... This fundamental concept rests on the assumption that governmental entities employ firefighters and police officers, at least in part, to deal with the hazards that may result from their taxpayers’ own future acts of negligence. Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection." (Footnote omitted; internal quotation marks omitted.) Id., 38-39.
The defendants argue that Kaminski’s public policy rule establishes a bar to police officer claims of ordinary negligence against homeowners who summon the police. The defendants specifically argue that the plaintiff cannot recover against Melanie pursuant to Kaminski because the injuries he suffered occurred while he was responding to Melanie’s 911 call. Our Supreme Court, however, has recently clarified that Connecticut law does not bar a police officer’s cause of action against a homeowner for injuries suffered while responding to an emergency call.
The public policy rule announced in Kaminski stands in contrast with our Supreme Court’s refusal to extend the firefighter rule to protect homeowners from police officers’ claims of ordinary negligence. " [T]he common-law firefighter’s rule provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his or her duties generally cannot bring a civil action against the property owner for injuries sustained as the result of a defect in the premises." Sepega v. DeLaura, supra, 326 Conn. 789. The court has limited the rule to premises liability cases and has declined to extend the rule to protect homeowners from claims of ordinary negligence asserted by police officers. See e.g., Levandoski v. Cone, 267 Conn. 651, 653-54, 661-64, 841 A.2d 208 (2004) (holding that firefighter’s rule is restricted to premises liability cases and does not extend to bar a police officer’s claim of ordinary negligence against a suspect for injuries sustained during pursuit of the suspect upon private property owned by a third-party); Sepega v. DeLaura, supra, 326 Conn. 790, 814-15 (relying upon Levandoski to hold that the firefighter’s rule is restricted to premises liability claims against " an owner or occupier of land" and should not be extended to bar a police officer’s claim of ordinary negligence against a homeowner for injuries allegedly sustained while attempting to prevent the homeowner from injuring himself); Lund v. Milford Hospital, Inc., 326 Conn. 846, 848, 168 A.3d 479 (2017) (relying upon Levandoski and Sepega to hold that firefighter’s rule is restricted to premises liability claims and did not apply to bar police officer’s claim of ordinary negligence for injuries against hospital for injuries he allegedly sustained attempting to subdue emotionally unstable person).
In Sepega, the court considered the continued viability of Kaminski in light of its present reaffirmation of the restricted applicability of the firefighter’s rule. The court did not expressly overrule Kaminski, rather, it purported to distinguish Kaminski " because it was a claim of vicarious liability, in that the parents in that case did not cause the damage to the police officer, and they could not be held liable for the actions of their adult son," because Kaminski was decided before the firefighter’s rule was extended to police officers, and because Kaminski " did not involve the application of the firefighter’s rule at all, but instead involved the duty to warn a third party about a mentally ill person’s propensity for violence." Sepega v. DeLaura, supra, 326 Conn. 793 n.3, 799-800. The court went on to clearly state, however, that " [t]o the extent that the defendant asserts that Kaminski supports barring negligence claims against third parties by public safety officers, we conclude that assertion is foreclosed by Levandoski . As we stated in Levandoski ‘[w]e disagree with the defendant’s suggestion that we ought to extend the firefighter’s rule beyond situations in which the plaintiff is injured while on the defendant’s land; instead, we agree with those jurisdictions that have framed the rule as one that relates specifically to premises liability and defines the duty owed by an owner or occupier of land.’ " (Emphasis omitted.) Id., 814-15; see Lund v. Milford Hospital, Inc., supra, 326 Conn. 859-60.
The defendants have not argued that
Based upon the foregoing, this court concludes based on the holding in Sepega that a plaintiff police officer’s claim is not barred by the public policy rule of Kaminski when the claim sounds in ordinary negligence, as distinguished from premises liability. In the present case, both parties concede that the gravamen of the allegations in the present case sound in ordinary negligence and that this is not a premises liability action. Therefore, the court denies summary judgment as to count two because the public policy rule expressed in Kaminski does not bar the plaintiff’s cause of action against Melanie.
See footnote 5 of this opinion.
III
COUNT THREE: JUSTIN MATHIESON
In count three, the plaintiff alleges that Mathieson is liable for assault and battery because he intentionally caused injury to the plaintiff when he fought the plaintiff and resisted arrest. The defendants argue that Mathieson is not liable under the circumstances of this case based upon his age and mental state. The defendants further argue there is no evidence that Mathieson intended to cause harmful or offensive contact. In response, the plaintiff argues that summary judgment is inappropriate because Mathieson’s intent under all of the circumstances is a question of fact that the jury must determine. Specifically, the plaintiff argues that whether Mathieson’s " conduct was feigned and intentionally occasioned by his unwillingness to go to the hospital or was drug induced is question of fact that must be resolved by the trier of fact."
In support of their argument, the defendants cite both
" A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another." DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.App. 590, 594, 501 A.2d 768, 770 (1985), citing 1 Restatement (Second), Torts § 21 (1965). " [L]iability for battery arises if ... [a person] acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and ... a harmful contact with the person of the other directly or indirectly results." (Internal quotation marks omitted.) Simms v. Chaisson, 277 Conn. 319, 331, 890 A.2d 548 (2006), quoting I Restatement (Second), Torts § 13 (1965).
" [I]ntent involves (1) ... a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act ... Also, the intentional state of mind must exist when the act occurs ... Thus, intentional conduct extends not only to those consequences which are desired, but also to whose which the actor believes are substantially certain to follow from what the actor does ... Furthermore, it is not essential that the precise injury which was done be the one intended ... Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids." (Citations omitted; emphasis omitted; internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 776, 607 A.2d 418 (1992).
" [S]ummary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated ... The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion ... [E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." (Internal quotation marks omitted.) Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn.App. 778, 793, 57 A.3d 794 (2012); see also Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 603, 999 A.2d 741 (2010) (same).
In support of their motion, the defendants rely upon Melanie’s testimony that Mathieson was unwilling or unable to move and speak comprehensibly. In particular, Melanie testified that Mathieson was fifteen years old and a freshman in high school at the time of the incident. Mathieson had previously been diagnosed with ADHD in seventh grade and participated in an online special education program. At the time of the incident, Mathieson was not on any medication, but was under the influence of " three hits of LSD." Melanie observed that Mathieson was " distressed," " talking in sentences that [she] could not understand," and was " moaning and hollering things that didn’t make sense." Melanie further testified that Mathieson’s " body was there" but " his mind was not." Conversely, the plaintiff relies upon the statements in his affidavit that Mathieson only began to resist the plaintiff when he learned that he would have to be taken to the hospital. The defendants have not submitted any testimony of Mathieson, thus, the court must rely entirely upon the plaintiff’s and Melanie’s divergent perspectives of Mathieson’s mental state.
Viewing the evidence in the light most favorable to the plaintiff, there is a genuine issue of material fact as to whether Mathieson possessed the necessary intent to commit intentional assault or battery. Notwithstanding the fact that Mathieson was young and under the influence of LSD, the evidence demonstrates that Mathieson may have been aware of his surroundings because he was initially able to have a conversation with the police officers and inform them that he had previously taken LSD. The defendants have not submitted sufficient evidence to establish that Mathieson was mentally incapable of understanding the consequences of his actions when he was informed by the police officers that they intended to bring him to the hospital. Indeed, Mathieson’s apparent change in temperament suggests that he understood the implications of the police officer’s presence and, thus, was also able to understand the consequences of his actions. The court therefore denies summary judgment as to count three because the issue of Mathieson’s intent under the circumstances presents a question of fact for the jury.
CONCLUSION
For the foregoing reasons, the court denies summary judgment as all three defendants.
Lund v. Milford Hospital, Inc., 326 Conn. 846, 168 A.3d 479 (2017). The defendants’ continued reliance, if any, upon these Superior Court cases does not warrant any consideration.
Kaminski was decided before Connecticut extended the firefighter’s rule to police officers in Furstein v. Hill, 218 Conn. 610, 590 A.2d 939 (1991).
Kaminsky bars the plaintiff’s claims against Allen.
Colman v. Notre Dame Convalescent Home, Inc., 968 F.Supp. 809 (1997), and Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn.App. 383, 505 A.2d 741 (1986), for the proposition that the " singular question in Connecticut is whether a person is capable of exercising reasonable care." These cases are inapposite. The Colman court denied summary judgment as to a claim of battery because Polmatier v. Russ, 206 Conn. 229, 234, 537 A.2d 468 (1988), held that " insane persons may be held liable for their intentional torts." In Badrigan, the court held it was a question for the jury whether a mentally disabled plaintiff possessed sufficient mental capability to be charged with comparative negligence.