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holding that suspect who was shot by police was an identifiable person subject to imminent harm for purposes of governmental immunity
Summary of this case from Odom v. MatteoOpinion
No. CV 04-0830569S
June 7, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#113)
This matter came before the court at short calendar on May 9, 2005 concerning a motion to strike filed by the defendants Jeff Rohan, Ursula Musgrave, and the City of Hartford (City) (#113). For the reasons stated below, the motion is denied.
The subject of the motion is the amended complaint, dated December 30, 2004 (#107). The plaintiffs allege that, on October 16, 2000, Hartford police officers Rohan and Musgrave were dispatched to 96 Lincoln Street, in response to a telephone call made by the plaintiff Lorraine Santana, concerning a "domestic and mental case," at which they encountered David Lowell, Lorraine Santana's brother. See amended complaint, first count, ¶ 5. The plaintiffs assert that, despite being repeatedly told by Lorraine Santana that Lowell had a mental problem, they confronted him in a manner which violated Hartford police department policies, practices, procedures, regulations, and/or guidelines, so as to confuse and frighten him. They further allege that Rohan repeatedly shot Lowell, causing him to sustain severe injuries.
In the first count, the plaintiffs, Lorraine Santana and Crystal Santana, each as conservatrix for Lowell, allege that Rohan was negligent in the manner in which he responded to the incident and in which he employed the use of force. In the second count, they allege that Musgrave acquiesced in Rohan's conduct and was negligent in failing to prevent Rohan's unreasonable use of a firearm. In the third and fourth counts, Lorraine Santana alleges claims, on her own behalf, for bystander emotional distress, for witnessing the shooting of Lowell. In the fifth count, the plaintiffs allege a statutory claim against the City, pursuant to General Statute § 7-465.
In the motion to strike, the defendants contend that all five counts of the amended complaint are barred by governmental immunity.
I Governmental Immunity
The defendants argue that all of their acts were discretionary and therefore any claim against them is barred by the doctrine of governmental immunity. They also contend that the plaintiffs' allegations do not fall under any of the exceptions that abrogate governmental immunity involving discretionary acts, in that Lowell does not qualify as an identifiable victim subject to imminent harm, that there is no statutory abrogation, and that there is no allegation of willful or wanton behavior.
The plaintiffs counter by arguing that the acts of the defendant officers were ministerial and therefore governmental immunity does not apply. Alternatively, the plaintiffs assert that Lowell was an identifiable victim subject to imminent harm and therefore the governmental immunity exception for such victims applies.
"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 . . . 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. A municipal employee's immunity for the performance of discretionary governmental acts is, however, 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." (Citations omitted and internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 35-36, 818 A.2d 37 (2003).
"The hallmark of a discretionary act is that it requires the exercise of judgment." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . .; there are cases where it is apparent from the complaint." (Citation omitted.) Id. "In those instances where the language of a complaint is dispositive as to whether an act is discretionary or ministerial, it is because of the nature of the act alleged rather than the theory of liability relied upon." Id., 629-30. "Where the parties have clearly set forth the conduct that is claimed to be actionable, the characterization of conduct as proceeding from a ministerial or discretionary duty is a matter of law." Tracey v. Hill Associates Ltd, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 98 0166061 (December 24, 2002, Hodgson, J.), citing Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989).
Our Supreme Court "has approved the practice of deciding the issue of governmental immunity as a matter of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). See also Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982). The plaintiffs contend that whether or not the officers' actions were discretionary or ministerial are questions of fact for the jury.
"[T]he operation of a police department is a discretionary governmental function." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 179. "The inherent governmental functions and duties of a police department are to field and receive complaints and information and then to act with discretion." Peters v. Town of Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95-0147192 S (January 2, 2001, D'Andrea, J.) ( 28 Conn. L. Rptr. 671). "The investigation of crimes and the decisions to make arrests for them is clearly a discretionary rather than a ministerial function." (Internal quotation marks omitted.) Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 000436800 (July 23, 2003, Arnold, J.), affirmed, 83 Conn.App. 903, 853 A.2d 650, cert. denied, 270 Conn. 917, 853 A.2d 531 (2004).
In commenting on our Supreme Court's decision in Shore v. Stonington, supra, the court in Brown v. Dooling, Superior Court, judicial district of Ansonia/Milford at Ansonia, Docket No. CV90 0032598S (January 23, 1998, Flynn, J.), observed, "[t]he Shore court recognized that, in matters of discretion or judgment, where society expects a municipal officer to exercise such discretion or judgment, so that the law is enforced with common sense rather than with the absolutism of a police state, `the public interest is [not] served by allowing a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman's discretionary professional duty. Such discretion is no discretion at all.' Shore, supra, 187 Conn. 157. This is particularly so where the second guessing is done on the basis of information or circumstances not known or obvious or readily visible to the police personnel . . . How far to investigate a complaint is a matter of police discretion and necessarily so. If the police were to employ exhaustive investigations in every complaint as a bureaucratic technique to avoid all future criticism or liability, the cost in intrusion on civil liberties would be intolerable in a free society." Id. Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 32 18 79 (March 12, 1998, Nadeau, J.), provides an illustrative example. There, police officers were called by family members to take their teenage son to the hospital after he attempted suicide by ingesting medications. Instead of doing so, they dropped him off at a local parking lot. He was later transported by ambulance to a hospital, where he died. The court noted that "no statute or rule of law prescribed how the officers were to act in responding to the call. The officers' acts were discretionary, not ministerial." Id.
Here, in contrast, the plaintiffs assert that Hartford police department policies, practices, procedures, regulations, and/or guidelines required the defendant police officers to respond in a prescribed way, making their actions ministerial in nature. However, their complaint only alleges legal conclusions, not facts, on the subject of the procedures which they allege the defendant officers were required to follow. See amended complaint, first count, ¶¶ 7, 8, 11, 14, and 15. The court may not consider such allegations. "[C]onclusions of law . . . absent sufficient alleged facts to support them, are subject to a motion to strike . . . The trial court may not seek beyond the complaint for facts not alleged." (Internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982). Accordingly, the court likewise must disregard Exhibit 1, a copy of a 1994 lesson plan from the Hartford Police Academy, which was submitted with the plaintiffs' memorandum of law in opposition to the motion to strike (#115).
Thus, the facts alleged by the plaintiffs appear to implicate discretionary, not ministerial, duties. If all of the defendant officers' actions were discretionary in nature, in order to abrogate governmental immunity, one of the three recognized exceptions must apply.
II Identifiable Victim/Imminent Harm Exception
The only governmental immunity exception relevant to the negligence claims is the identifiable victim/imminent harm exception. This exception permits "a tort action in circumstances of likely imminent harm to an identifiable person. We have construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 108, 708 A.2d 937 (1998). "[T]he `discrete 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." (Emphasis in original; internal quotation marks omitted.) Id., 122. The Supreme Court has stated that "[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." (Internal quotation marks omitted.) Id., 124. "The doctrine of governmental immunity implicitly recognizes that municipalities provide for a virtually limitless array of services, each of which involves discretionary decision making. Governmental immunity allows decisions to be made by public officials without the debilitating concern that an honest mistake, made despite the exercise of good faith, will subject the municipality or the official to liability." Id., 124.
There have been several Supreme Court cases regarding the identifiable person/imminent harm distinction. In Shore v. Stonington, supra, 187 Conn. 147, the Supreme Court affirmed summary judgment in favor of Stonington, ruling that a police officer who had stopped an intoxicated driver and allowed him to proceed after issuing him a warning was not liable for the resulting accident and death that driver caused because the officer had no reason to know that his failure to arrest that driver was going to subject an identifiable person to imminent harm. Similarly, in Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), where the plaintiffs' decedents were victims of an apartment fire, and the plaintiffs sued the municipality for failure to enforce the building codes and statutes, the court stated that the threat of fire includes a wide range of factors that may happen at some unspecified time in the future.
The Supreme Court also has applied the exception to cases involving school children. In Purzycki v. Fairfield, supra, 244 Conn. 101, children who were left unsupervised in one hallway for a half hour each day as they passed from the lunch room to recess were found to be identifiable victims in danger of imminent harm as the undisputed facts stated that unsupervised children tend to engage in dangerous activity. In Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), the court held that students walking on an icy school courtyard were subjected to a temporary danger, limited in duration, and therefore qualified for the exception. Most recently, in Prescott v. Meriden, 273 Conn. 759, 763-64 (2005), our Supreme Court distinguished the situation of parents attending a school sports event from those involving school children as a class of forseeable victims.
In both Purzycki v. Fairfield, supra, and Burns v. Board of Education, supra, the potential danger was strictly limited in both duration and geography. In Purzycki, the children were unsupervised for one-half hour in a single hallway; in Burns, icy conditions on one courtyard were left unattended during school hours, while children were required to attend.
Similarly, in Tryon v. Town of North Branford, 58 Conn.App. 702, 755 A.2d 317 (2000), a case involving a firefighter who was temporarily present in a parade staging area when she was bitten by a dog, causing her to lose part of her nose, the court reiterated that "[a]n individual may be `identifiable' for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition." Id., 710. "The plaintiff was not a member of the general public attending a parade but a firefighter in uniform in the staging area one block away from the site of the parade when the dog bit her." Id. The plaintiff alleged that she became an identifiable victim because another firefighter "knew that she was petting his dog and she was in close proximity to the dog's teeth." (Internal quotation marks omitted.) Id., 712.
The present case also presents a situation that was so limited. Here, the defendant officers responded to a specific location concerning a call about the behavior of a specific individual, Lowell.
In paragraph 15 of the first count, the plaintiffs allege that Rohan "knew, or in the exercise of reasonable care and proper diligence, should have known that the use of his firearm was unreasonable and/or unnecessary . . ." Use of excessive force by a police officer in a situation which subjected a plaintiff to harm which was significant, forseeable, and of limited duration has been found to raise an issue for a jury in connection with the identifiable person/imminent harm exception. See Balogh v. City of Shelton, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV99 0067521S (March 18, 2002, Alander, J.) ( 31 Conn. L. Rptr. 566). Likewise, in another case involving allegations of assault by a police officer, the court stated, "there is no reason that the person subject to imminent harm cannot be a person whom the officer is dealing with directly." Castorina v. Stewart, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV95 0324487 (June 3, 1998, Skolnick, J.) ( 22 Conn. L. Rptr. 1).
Thus, the facts alleged here differ from those in Shore v. Stonington, supra, 187 Conn. 153-54, since there, during the police officer's encounter with the intoxicated driver, there was no identifiable victim who was threatened with imminent harm. Here, it is alleged that Lowell was clearly identified and imminent harm, through shooting, was allegedly involved. "Whether it is apparent to a defendant that his act or failure to act subjects a plaintiff to imminent harm is a question of fact." Gregory v. City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV97 03414252 (May 5, 1999, Skolnick, J.) ( 24 Conn. L. Rptr. 454), citing Evon v. Andrews, supra, 211 Conn. 507.
Construing the facts alleged most favorably to sustaining the complaint, as the court is obligated to do, see Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004), the court finds that the issue of whether the identifiable person/imminent harm exception applies to the defendant officers' conduct in relation to Lowell must await an evidentiary presentation. Accordingly, the motion to strike the first count is denied.
The same reasoning applies to the allegations in the second count, which the defendants contend is also barred due to governmental immunity. As noted, in count two, the plaintiffs allege that Musgrave acquiesced in Rohan's conduct and was negligent in failing to prevent Rohan's unreasonable use of a firearm. The plaintiffs allege also that Musgrave "knew, or in the exercise of reasonable care and proper diligence, should have known that the use of a firearm was unreasonable and/or unnecessary . . ." See amended complaint, second count, ¶ 15. For the same reasons as stated in relation to the first count, the motion to strike the second count is denied.
As to the third and fourth counts (concerning bystander emotional distress) and the fifth count (for indemnification pursuant to General Statute § 7-465), all of which are premised on similar factual allegations, the defendants also argue that governmental immunity bars each count. The same reasoning applies, as stated above. Accordingly, the motion is denied as to these counts as well.
CONCLUSION
Based on the foregoing reasons, the defendants' motion to strike is denied. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT