Opinion
UWYCV095013921.
11-29-2012
John DOE, et al. v. Robert KENNEDY, et al.
Rome McGuigan P.C., Hartford, for John Doe, et al. Cheryl E. Johnson, Law Office of Cheryl E. Johnson, Waterbury, CT, Jainchill & Beckert LLC, Plainville, for Robert Kennedy, et al.
UNPUBLISHED OPINION
Rome McGuigan P.C., Hartford, for John Doe, et al.
Cheryl E. Johnson, Law Office of Cheryl E. Johnson, Waterbury, CT, Jainchill & Beckert LLC, Plainville, for Robert Kennedy, et al.
PATTY JENKINS PITTMAN, Judge.
The minor plaintiff, James Doe, in an action brought by his parents, John Doe and Jane Doe, brings this action against the defendant City of Waterbury and others for personal injuries. The defendant City of Waterbury has filed a Motion for Summary Judgment, alleging that the undisputed facts entitle the City to judgment as a matter of law. The plaintiff opposes summary judgment. For reasons stated herein, the court grants the motion.
The minor child and his parents were granted permission to use pseudonyms, to protect the privacy of the minor plaintiff. Although the parents commenced the action on behalf of their son, in this memorandum of decision the court will refer to the minor child as the plaintiff.
THE PLAINTIFF'S COMPLAINT
The original complaint in this case contained counts against Robert Kennedy, Donald Beaulieu, Robert Dubauskas, Martin Kusslow, and the City of Waterbury. The plaintiff alleged that the individual defendants, who are adult males, sexually assaulted him over a number of months. He further alleges that the defendant Robert Kennedy, a police officer employed by the City of Waterbury, knew or should have known that the plaintiff was a minor under the age of sixteen who was being sexually assaulted by adult men whom the plaintiff would meet at public areas in the City of Waterbury, and that in his capacity as a police officer, Kennedy had a duty to protect the plaintiff and prevent the assaults, which Kennedy failed to do. After a settlement with Kennedy, the plaintiff withdrew all counts against Kennedy, and later withdrew all counts against the City of Waterbury except for Count Four of the Substituted Complaint (# 123) dated November 18, 2011. In that Count, the plaintiff maintains the action against the City under Conn. Gen.Stat. § 51-557n(a)(1) which states:
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 defendant City of Waterbury advances a number of theories under which it is entitled to summary judgment, some of which the court has combined in enumerating them below: that Kennedy was not acting within the scope of his employment or official duties in causing harm to the plaintiff; that the City cannot be held liable for the acts of an employee when the acts constitute either (A) " criminal conduct ... or wilful misconduct; or (B) ... require the exercise of judgment or discretion as an official function of the authority ..." Conn. Gen.Stat. § 52-557n(a)(2); that the plaintiff failed to timely file this action; and that a signed release in favor of Kennedy, against whom the case was withdrawn, acts as a release against the City. For reasons stated below, the court rejects the City's arguments and finds that there are sufficient material facts in issue for this matter to proceed to trial rather than to summary judgment.
THE STANDARDS FOR SUMMARY JUDGMENT
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the party is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the 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). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
In supporting or opposing summary judgment, Conn. P.B. § 17-45 requires that a party file affidavits and other documentary evidence sufficient to establish or refute the existence of a disputed issue of fact. Unadmitted allegations in the pleadings are not considered competent evidence and do not constitute proof of a material fact. New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Rather, in moving for or opposing summary judgment, a party must submit documentation that would form the basis for evidence admissible at trial. Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). See also Conn. P.B. § 17-46. A party's conclusory statements may not be sufficient to establish the existence of a material disputed fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
FACTS
In the spring of 2007, the plaintiff, age 15, encountered a man in a public park who recruited the plaintiff to perform sexual acts for money. Thereafter for a period of weeks or months, the plaintiff frequented the park and was introduced to other men with whom he also engaged in sex acts. In March or April 2007, the plaintiff was hanging around the park on a school day, when he met Robert Kennedy, a uniformed Waterbury police officer operating a marked police car. Kennedy asked the plaintiff his name, address, and age; the school he attended; and why he was not in school. The plaintiff gave this information to Kennedy and told Kennedy that he was sixteen, although the plaintiff was then fifteen. The two continued to converse over the next hour or so. Eventually Kennedy put his hands on the plaintiff's buttocks and reached into the front of the plaintiff's pants. Kennedy then wrote his phone number on a piece of paper, gave it to the plaintiff, and told the plaintiff to call him later that night. Kennedy drove the plaintiff home in the police vehicle. Later that night Kennedy picked up the plaintiff, took the plaintiff to Kennedy's home, and engaged in sex acts, after which the plaintiff admitted to Kennedy that he was fifteen years old.
Over the next month, Kennedy and the plaintiff engaged in sex acts on at least one more occasion. On another occasion, the plaintiff called Kennedy who drove the plaintiff to Kennedy's home where the two slept in separate rooms for part of the night before Kennedy drove the plaintiff home. A few weeks later, the plaintiff's father encountered the plaintiff on the street with some older men and the plaintiff finally admitted to his family that he had been having sex with men for money. The plaintiff identified one of the men— " Rob" — as a Waterbury police officer. Kennedy was thereafter arrested and convicted of two felonies involving sexual contact with the plaintiff.
THE SCOPE OF KENNEDY'S DUTIES
The City first argues that the City cannot be held liable under Conn. Gen.Stat. § 52-557n for the conduct of Kennedy because Kennedy did not commit a negligent act within the scope of his employment, but rather committed an intentional act outside the scope of his employment when he molested the plaintiff. This would likely be true if the plaintiff's remaining count in the Substituted Complaint were founded upon Kennedy having caused injury to the plaintiff by molesting the boy. However the remaining count of the complaint— Count Four— is founded upon the failure of Kennedy, in Kennedy's capacity as a police officer, to intervene to protect the plaintiff from molestation by others once Kennedy became aware that the plaintiff was at risk of being preyed upon by adult men. The claim is that Kennedy knew or should have known that Kennedy's failure to take appropriate action in his capacity as a police officer was likely to subject the plaintiff to injury at the hands of sexual predators. That Kennedy himself was one of the predators may or may not say something about Kennedy's knowledge.
The undisputed facts are that Kennedy was not only a police officer but a Supervisor with the Waterbury Police Department during the period when Kennedy found the plaintiff cruising in a public park during a day when the plaintiff should have been in school. In his police uniform next to his police cruiser, Kennedy interviewed the boy, and then conversed informally with him. The parties dispute the timing and degree of Kennedy's knowledge that the plaintiff was at risk of being recruited for sex by adult males in public parks. However there is evidence from which a trier of fact could find that Kennedy initially learned of this while Kennedy was acting in the capacity, and within the scope of his employment, as a Waterbury police officer. During the next two months, while still acting as a police officer and employed in that capacity by the City, Kennedy failed to take action despite his knowledge of the plaintiff's circumstances. Summary judgment cannot be granted on this ground.
THE CITY'S STATUTORY IMMUNITY DEFENSE
The City asserts that the governmental immunity provided by Conn. Gen.Stat. § 52-557n(a)(2)— that Kennedy was either engaged in criminal or willful misconduct, or was engaged in an activity that required the exercise of judgment or discretion— shields the City from liability as a matter of law. As to the first of these arguments— that Kennedy was engaged in criminal conduct or willful misconduct in failing to protect the plaintiff— the analysis is the same as that relating to the scope of Kennedy's employment. While the City could not be held vicariously liable under the statute for the conduct of Kennedy in molesting the plaintiff, that is not the claim being made by the plaintiff here. As discussed above, the claim is that Kennedy, in his capacity as a police officer, knew that the plaintiff was at risk of being molested by adult males, yet failed to intervene to protect the plaintiff. The evidence regarding this issue can yield a finding that Kennedy's conduct was negligent rather than criminal, and did not rise to the level of willful misconduct. This is a matter that the trier of fact will have to decide.
The other alternative under the statute— that the circumstances under which a police officer has a duty to intervene to protect an at-risk wayward youth from harm involves the exercise of judgment or discretion on the part of the officer— presents a different question. Ordinarily a police officer is entitled to use discretion in determining how to, and even whether to, use the police power to intervene, investigate, make an arrest or otherwise carry out police functions. See Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982). Conn. Gen.Stat. § 52-557n(a)(2) codifies this concept of governmental immunity as it applies to the negligent acts of municipal employees whose functions involve the use of discretion and judgment. Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989).
The plaintiff asserts that an exception to this doctrine can be inferred from the evidence presented here: if it is apparent to the municipal official that imminent harm is likely to befall an identifiable individual, the municipality is not entitled to immunity for the official's failure to take action. Id.; see also Doe v. Peterson, 279 Conn. 607, 615-21, 903 A.2d 191 (2006). The plaintiff claims that the evidence shows that Kennedy knew that adult males would continue to have sexual contact with the minor plaintiff if Kennedy failed to use his police authority to intervene. While the evidence suggests that Kennedy knew that the plaintiff was an under-age, at-risk youth, and thus an " identifiable person, " it is far less clear that the " imminent harm" prong of this test is satisfied here. While one can argue, on the basis of what Kennedy learned about the history of the plaintiff and the plaintiff's troubles, that leaving the boy alone in a public park was likely to result in further harmful sexual encounters, it cannot be said that the harm was " imminent, " as that term is defined in our case law.
Just as one could conclude that letting a drunk driver go on his way is likely to result in a collision, Shore v. Stonington, supra, or that the failure to ensure that the fire code was enforced was likely to result in a building fire, Evon v. Andrews, supra, these injuries, even if considered likely, cannot be considered " imminent." Might such an injury occur as soon as the municipal official fails in his duty or turns his back? Yes. But it also might be that such an injury occurs hours or days later, or that such an injury might not occur at all.
Of more import in this case, however, is the plaintiff's second argument about an exception to municipal immunity: that it was not a discretionary duty that was involved here, but rather a mandatory duty. As to this, the plaintiff points out that a police officer is a " mandated reporter" of child abuse or neglect, under Conn. Gen.Stat. § 17a-101(b). Conn. Gen.Stat. § 17a-101a, provides:
Any mandated reporter, as defined in section 17a-101, who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected, as defined in section 46b-120 ... shall report or cause a report to be made [to the Department of Children and Families] in accordance with the provisions of sections 17a-101b to 17a-101d, inclusive. Any person required to report under the provisions of this section who fails to make such report or fails to make such report within the time period prescribed in sections 17a-101b to 17a-101d, inclusive, and section 17a-103 shall be fined not less than five hundred dollars or more than two thousand five hundred dollars and shall be required to participate in an educational and training program pursuant to subsection (d) of section 17a-101.Conn. Gen.Stat. § 46b-120 defines " abused" to include any child or youth, including any unemancipated sixteen or seventeen year old, who is " in a condition that is the result of maltreatment, including but not limited to ... sexual molestation or exploitation ..." These statutes do not admit of any exercise of judgment or discretion on the part of a police officer, and also do not require that the police officer know for sure that the child is being sexually molested or exploited, only that the police officer has " reasonable cause to suspect or believe" that the child has been so abused. Rather these statutes involve a mandatory duty, one that is ministerial rather than discretionary. In such a situation, the municipality is not entitled to the cloak of governmental immunity when the municipal official fails to adhere to this duty. See, e.g., Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975) (where dog warden failed to adhere to statute that required warden to quarantine dog for fourteen days after roaming dog bit a person, held, municipality not immune from negligence action when dog bit plaintiff during the period when dog should have been quarantined). See also, Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979), holding that a statute that required a municipality to suppress a mob or riotous assembly created a mandatory duty that abrogates municipal immunity when plaintiff injured by mob.
The evidence of Kennedy's knowledge of the plaintiff's situation is sufficient to allow a trier of fact to find that Kennedy had a non-discretionary duty to act to protect the plaintiff by, at the least, causing a report to be made to the Department of Children and Families. In such a case, the City would not be entitled to immunity and summary judgment.
THE TIME LIMIT TO BRING SUIT
The plaintiff's interaction with Kennedy occurred between March and May of 2007. The plaintiff's claim is that during that entire time, Kennedy and, vicariously, the City had a duty to intervene to protect the plaintiff from the sexual predations of adult men whom Kennedy knew the plaintiff was encountering in the City of Waterbury. The plaintiff has submitted evidence that the plaintiff remained at risk until the police department first intervened in an argument that the plaintiff and the plaintiff's father were having, at which neutral police authorities were first notified that the plaintiff might be a juvenile who was at-risk. It appears that May 18, 2009, was the date upon which the plaintiff first notified other neutral police authorities that Kennedy knew of the plaintiff's sexual encounters with adult men in public parks in Waterbury. On May 21, 2007, a warrant was issued for Kennedy's arrest.
On October 29, 2007, under the provisions of Conn. Gen.Stat. § 7-465(a), the plaintiff provided written notice to the City of the intent to commence this lawsuit. The plaintiff commenced the lawsuit by service of process on the City on May 18, 2009. The City claims that the plaintiff failed to meet the required deadlines for perfecting and for filing this action. The City argues that the time for bringing this action began to run at the time of the plaintiff's first encounter with Kennedy, in March 2007, and that the deadline for serving written notice under 7-465 and for filing the lawsuit run from that date. The City argues that the plaintiff missed the six-month deadline for delivering the written notice and the two-year deadline for commencing suit contained in Conn. Gen.Stat. § 7-101a and 7-465.
Neither the plaintiff nor the defendant has provided evidence of the written notice. Reference to the written notice is made in Paragraph 14 of the plaintiff's Substituted Complaint. In its Answer, the defendant City has admitted receipt of the written notice on that date.
The City also claims that the plaintiff has missed the general statute of limitations for filing the suit contained in Conn. Gen.Stat. § 52-557n, but there is no reference in that statute to a statute of limitations. Moreover the City has not pleaded any other specific, enumerated statute of limitations in its Special Defenses nor elsewhere in its papers in support of summary judgment. See Conn. P.B. § 10-3, that requires that any claim in a Special Defense grounded upon a statute shall specifically identify the statute by its number. In the interest of resolving all issues, the court will assume that the City intended to refer to the general two-year statute of limitations for negligence actions, Conn. Gen.Stat. § 52-584, and will analyze the issue as though the City had complied with the Practice Book.
The plaintiff argues that he has withdrawn the counts in the complaint that rely on causes of action under §§ 7-101a and 7-465, and rather relies only on a cause of action for negligence against a municipality as authorized by Conn. Gen.Stat. § 52-557n which does not require a written notice and which does not contain its own statute of limitations. The plaintiff argues that the applicable statute of limitations is that contained in Conn. Gen.Stat. § 52-577d, which states:
Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.
The court agrees and finds that the applicable statute of limitations is 52-577d so that the plaintiff's action has been timely filed.
Unlike the general tort statute of limitations that focuses on the date the tortious conduct occurred and measures the time from that date, the focus of this statute of limitations is upon the type of harm for which recovery is sought, provided the conduct causing the harm occurred when the plaintiff was a minor. Because that is the focus of this statute, the court finds it to be immaterial that this cause of action is founded upon a breach of duty to protect the child from abuse, rather than on the direct actions of an adult who sexually abused or exploited the child. See, Altamonte v. New York Medical College, 851 F.Supp. 34, 37 (D.Conn.1994, Nevas, J.), citing the legislative history recited in Roberts v. Caton, 224 Conn. 483, 493, 619 A.2d 844 (1993).
The action was brought within the applicable statute of limitations and the defendant City is not entitled to summary judgment on the grounds that it is untimely.
THE EFFECT OF THE RELEASE
In 2010, after this suit was brought, the plaintiff executed a release in favor of Kennedy entitled Confidential Release Agreement. The relevant language of the release, in which the plaintiff and his parents are the Releasors and Robert Kennedy is the Releasee, is as follows:
... [The Releasors] release and forever discharge said Releasee from all claims, demands, damages, bills, judgments, actions, causes or causes of action, on or account of or arising out of or resulting from a series of incidents which occurred during the period Jan 1, 2007 and May 22, 2007 in Waterbury, Connecticut, (the " Personal Injury Claim") and which is the subject [of] the First, Second, Ninth and Tenth Counts of the Complaint filed in [the instant " Lawsuit" ] and of and for all claims or demands in law or in equity which Releasors ... can, shall or may have against said Releasee concerning the Personal Injury Claim and the Lawsuit.
It is understood and agree that this is a full and final release of all claims of every nature and kind whatsoever arising out of the Personal Injury Claim and the Lawsuit as between Releasors and Releasee only. It is further understood and agreed that the signing of this release constitutes no admission of liability or responsibility on the part of the parties.
It is further understood by the parties hereto that nothing contained herein shall act as a release of any claims Releasors may have against any other person or entity arising out of the Personal Injury Claim and/or the Lawsuit, including, but not limited to, any claims Releasors may have against the City of Waterbury, Connecticut, including those claims set forth in the Eleventh, Twelfth, Thirteenth and Fourteenth Counts of the Complaint filed in the Lawsuit.
At the time the Release was signed, the First, Second, Ninth, and Tenth Counts were directed solely against Kennedy, alleging that Kennedy's sexual assaults on the plaintiff and his failure to protect the plaintiff from imminent harm was a proximate cause of injury to the plaintiff and the plaintiff's parents. The Eleventh, Twelfth, Thirteenth, and Fourteenth Count were all directed against the City of Waterbury, alleging liability on the theory that the City was liable for the negligence of Kennedy who, at the time, was acting within the scope of his duties as an employee of the City of Waterbury, and who, in the course of those duties, failed to protect the plaintiff from harm. The Fourth Count of the operative Substituted Complaint is identical to the Thirteenth Count of the original complaint.
The City's final claim is that the release of Kennedy operates to release the City, citing the two leading cases on this topic: Alvarez v. New Haven Register, Inc., 249 Conn. 709, 735 A.2d 306 (1999), and Cunha v. Colon, 260 Conn. 15, 792 A.2d 832 (2002). In the former case, the plaintiff Alvarez, who had been injured by a driver employed by the defendant New Haven Register, sued the driver and the Register. Alvarez then executed a release in favor of the driver and the driver's personal automobile insurance carrier. The New Haven Register asserted that since the only allegations against it, as the employer of the driver, were based on common-law principles of vicarious liability, the release of the driver also operated as a release as to the New Haven Register. The Supreme Court agreed.
Likewise in the latter case, the plaintiff Cunha released Carlos Colon, the driver of the car that injured him, and released Allstate Insurance Company, the driver's personal insurance carrier, with the release language extending to " Colon and Allstate ... only." Cunha, supra, at 18, 792 A.2d 832. The plaintiff sought to hold in the owner of the car, Elrac, whom he had sued under Conn. Gen.Stat. § 14-154a that imputed vicarious liability from the driver of a leased vehicle to the owner/lessor. The court found that whether the source of the vicarious liability was from the common law or from a specific statute, the result was the same. The Court held that the owner, against whom vicarious liability was asserted, was also released from the case when the driver was released. Whether vicarious liability is based on the common law or based on a statute was held to be immaterial. Cunha, supra, at 20-21, 792 A.2d 832.
In the instant case, while as in Alvarez and Cunha, there is no independent basis for asserting liability against the City aside from vicarious liability, the language of the release compels a different interpretation of the agreement between the Releasor and the Releasee as it relates to the City.
The plaintiff asserts that the language of the Release compels that the Release be treated as a covenant not to sue, rather than as an absolute release, pointing to the importance of the language used in the Release as it expresses the intent of the parties to the Release. Dwy v. Connecticut Co., 89 Conn. 74, 83-84, 92 A. 883 (1915).
More recently, in the case of Robbins v. Physicians for Womens Health, LLC, 133 Conn. 577, 53 A.2d 645 (2012), the Appellate Court analyzed the language in a document containing a " covenant not to sue and forever discharging" claims against the torfeasors, that also contained language as in Dwy, supra, and as in the instant Release, reserving the right to continue to pursue the case against the entity against which a claim of vicarious liability had been made. The court held that, in the face of such language, the proper construction of the document was that the tortfeasors had been effectively released but that the entity against whom vicarious liability was asserted remained subject to suit and to potential liability. Although a petition for certification has been granted in that case, Robbins v. Physicians for Womens Health, LLC, 304 Conn. 926 (2012), this court is bound to follow the rationale of the Appellate Court to the extent it is applicable in the instant case. That rationale includes a review of cases from other jurisdictions that hold that a reservation of the right to continue suit against an entity on a theory of vicarious liability can survive a release of the tortfeasor whose conduct gave rise to the vicarious liability, provided such an intent not to release the other party is evident from the language of the Release document. Id., at 590-95. Such language is evident in the Release at issue here. Accordingly the court cannot say as a matter of fact that there was an intent to release the City of Waterbury in this case, and cannot say as a matter of law that the effect of the Release was to do so.
The focus of the continuing controversy in Robbins, supra, seems to involve the effect on a successor corporation of the covenant not to sue, rather than on whether, as in Dwy, supra, it is still possible to construct a Release or a Covenant that releases only the tortfeasor and not the party who may be vicariously liable.
CONCLUSION
The court has fully considered the evidence and the arguments of the plaintiff and of the City of Waterbury in this matter. The court concludes that the undisputed facts do not entitle the City to summary judgment. Accordingly the Motion for Summary Judgment is denied.