Opinion
No. CV07 5009361
October 13, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #222
This is a wrongful death action arising out of the murder of the plaintiff's decedent that happened at the Midway Carnival held at Seaside Park in Bridgeport, Connecticut on June 24, 2005. There are three general groups of defendants. Municipal defendants include Phillip Handy, who was the Director of the Bridgeport Department of Parks and Recreation; the Bridgeport Department of Parks and Recreation; the Bridgeport Board of Parks Commissioners; the City of Bridgeport; Anthony Armeno, the acting Bridgeport Chief of Police at the time of the subject incident; Bridgeport Police Department; Bridgeport Board of Police Commissioners.
In addition to the defendants mentioned above, there is a second group of defendants. The Solution, LLC ("Solution") and 5 Star Amusement Co., Inc. ("5 Star") are corporate entities involved with putting on the Midway Carnival at Seaside Park. Marilyn Goldstone and Tom Kelly are members of Solution, and Linda Coleman and Robert Coleman, Jr., are members of 5 Star.
Lastly, there is a third group of defendants who are individuals alleged to have been personally involved with the assault and/or murder of the decedent. Lucilo Cifuents is the alleged gunman, who is currently serving a prison sentence for the murder, and Lucilo L. Cifuentes is the alleged gunman's father. The additional defendants who are listed as apportionment defendants are Alexis Ramos; Vince Bravo; Ernest Banks; and Darold Lark.
Defendants Solution, LLC, Goldstone, Kelly, 5 Star Amusement, LLC, Linda Coleman and Robert Coleman, Jr. have also motions for summary judgment which will be addressed in separate decisions by the court.
The defendants Bridgeport municipal defendants, including Anthony Anneno and Phillip Handy have moved for summary judgment on Counts Three, Four, Seven and Eight of the plaintiffs Third Amended Complaint dated September 26, 2008. These defendants argue that the allegations of negligence contained in the aforesaid counts are all discretionary acts, and, therefore, the defendants are immune from liability pursuant to General Statutes § 52-557n. Count Three alleging negligence is directed to defendant Handy, who was the Director of the Bridgeport Department of Parks and Recreation, at all relevant times. In Count Four, directed to the City of Bridgeport, the plaintiff claims indemnity from the City, for the negligence of Handy, pursuant to General Statutes §§ 7-465 and 7-101a. Count Seven is directed to defendant Armeno, the acting Bridgeport Chief of Police at the time of the subject incident. The plaintiff alleges negligence against Armeno pursuant to General Statutes § 52-557n. Count Eight, against the City is the plaintiff's claim for indemnity for the alleged negligence of Armeno.
The Third Amended Complaint contains thirteen counts. The present motion is addressed to the Third, Fourth, Seventh and Eighth Counts only. There are nine counts which are not subject the present motion for summary judgment. Count One is directed to Solution, LLC. Acting through Goldstone and Kelly. Count Two is directed to 5 Star Amusement, LLC. Acting through the Coleman defendants. Count Five is directed to the Bridgeport Board of Parks Commissioners. Count Six is directed to the Bridgeport Department of Parks and Recreation. Count Nine is directed to the Bridgeport Police Department. Count Ten is directed to the Bridgeport Board of Police Commissioners. Count Eleven is directed to Lucilo Cifuents. Count Twelve is directed to Lucilo Cifuentes. Count Thirteen is directed to Lucilo L. Cifuentes.
As noted earlier herein, this is a wrongful death action arising out of the murder of the plaintiff's decedent that happened at the Midway Carnival held at Seaside Park in Bridgeport, Connecticut on June 24, 2005. The Solution defendants were the general organizers and operators of a summer carnival called the "Midway," which held at Seaside Park in Bridgeport. The 5 Star defendants provided the rides and amusement activities for the Midway. Solution and 5 Star received a permit from the City of Bridgeport to hold the Midway from June 20, 2005 through July 5, 2005. The City's permit required Solution and 5 Star to coordinate with the Bridgeport Police Department for police coverage for the Midway event. The Bridgeport Police Department created a deployment plan to assign police officers to cover the event. These police officers were additional to those police officers already scheduled to work their regular duty shifts. Deputy Police Chief James Honis was the chief of the patrol division for the Bridgeport Police Department, and, as such, was responsible for assessing the number of overtime officers that would be required for the event, as well as, the deployment of these officers. The defendant Armeno, the acting Police Chief, was responsible for the general monitoring of this deployment process. In assessing the number of police officers required and how they would be deployed, Honis and Armeno relied upon their experience and judgment. On June 24, 2005, the decedent attended the Midway carnival and was fatally shot by the defendant Lucilo Cifuentes.
In summary, the plaintiff claims that the defendant Handy, the Director of Parks and Recreation was negligent in: (1) that he allowed the Midway to be held without adequate security and police coverage, knowing from past years, that there was a high likelihood of fights and criminal assaults; (2) allowed Solution and 5 Star to operate the Midway without requiring them to provide private security; (3) allowed Solution and 5 Star to operate without metal detectors; (4) failed to provide patrons with a reasonably safe environment; failed to take reasonable and necessary safeguards to render the premises reasonably safe for its patrons and invitees; (5) failed to exercise reasonable care to protect the decedent when it was reasonably foreseeable that a criminal assault of the general nature of the one perpetrated against the decedent might occur.
The plaintiff has alleged 11 various ways in which Handy was negligent, some of which are repetitious and overlap with others. The court will not list them all here.
In summary, the plaintiff claims the defendant Armeno was negligent in that he: (1) failed to provide sufficient police coverage; (2) failed to provide a safe environment; (3) failed to provide or require metal detectors; (4) failed to erect or provide adequate fencing around the site: (5) failed to provide or require adequate lighting; (6) failed to cancel or postpone the event when he knew or should have known there would be inadequate police coverage as a result of the ongoing Barnum Festival and police protests; (7) failed to adequately train, supervise and instruct his employees in dealing with large groups of young individuals dressed in similar attire; (8) allowed 5 Star and Solution to operate without private security.
The plaintiff has alleged 21 various ways in which Armeno was negligent, some of which are repetitious and overlap with others. The court will not list them all here.
I. Standard of Law: Summary Judgment
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion." Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Nonetheless, "[t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997). "The issue of governmental immunity is a question of the existence of a duty of care, and our Supreme Court has approved the practice of deciding the issue of governmental immunity as a matter of law utilizing summary judgment." Doe v. Peterson, 279 Conn. 607, 613, 903 A.2d 191 (2006); see also, Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
II Discussion A. Discretionary Acts-Ministerial Acts
The plaintiff has sued the defendants City of Bridgeport, Handy and Armeno pursuant to General Statutes § 52-557n regarding the tort liability of municipalities. The plaintiff's claim against these defendants is negligence in the performance of their official duties.
Both municipalities and their employees are immune from suit under certain circumstances including liability for negligence arising out of their discretionary acts. Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982). Our Supreme Court has approved the practice of deciding the issue of governmental immunity as a matter of law. Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 170. Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper. (Citation omitted; emphasis in original; internal quotation marks omitted.) Soderlund v. Merrigan, 110 Conn.App. 389, 394, 955 A.2d 107 (2008); Grignano v. Milford, 106 Conn.App. 648, 654-55, 943 A.2d 507 (2008).
"The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct." Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994); Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989); Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 165. The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. "[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' . . ." (Citations omitted.) Evon v. Andrews, supra, 211 Conn 505; Burns v. Board of Education, supra, 228 Conn. 640. "Municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliot v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998).
General Statutes § 52-557n(a)(1) provides:
(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:
(A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties.
General Statutes § 52-557n(a)(2)(B) provides that municipalities are not liable for damages caused by "negligent acts or omissions which require the exercise or judgment or discretion as an official function of the authority expressly or impliedly granted by law."
Sec. 52-557n.(a)(2)(B) reads as follows:
(a)(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:(B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
"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 . . . [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to . . . § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint." (Internal quotation marks omitted.) Swanson v. Groton, 116 Conn.App. 849, 854, 977 A.2d 738 (2009). "The immunity 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: 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.) Evon v. Andrews, supra, 211 Conn. 505.
These municipal defendants argue that they are immune from liability for alleged negligent acts arising out of their discretionary acts, Shore v. Stonington, supra, 187 Conn. 157, even where the discretion has been exercised erroneously, but nonetheless in good faith. Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 00 0436800 (July 23, 2003, Arnold, J.) (citing Purzycki v. Fairfield, 244 Conn. 101, 110, 708 A.2d 937 (1998). Determining whether an act or omission is discretionary is based on the nature of the complaint's allegations. Martel v. Metropolitan District Commission, 275 Conn. 38, 51, 881 A.2d 194 (2005). "The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion . . . 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." (Citations omitted; internal quotation marks omitted.) Id., 48-49, 881 A.2d 194 (2005); Kastancuk v. Town of East Haven, 120 Conn.App. 282, 287 (2010). "[W]here it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." Id., 50 n. 8.
To escape a finding of discretionary act immunity, a plaintiff must prove the existence of a ministerial duty setting forth a mandatory course of action that a defendant must follow without exception. Evon v. Andrews, supra, 211 Conn. 507. The plaintiff in opposing summary judgment must produce evidence demonstrating that a policy or directive existed requiring the defendants to perform these duties. Martel v. Metropolitan District Commission, supra, 275 Conn. 50. Absent evidence of such a policy or directive, the court can conclude that the defendants were engaged in duties that inherently required the exercise of judgment. Id., 50. See also Segreto v. Bristol, 71 Conn.App. 844, 857-58, 804 A.2d 928 (2002) (negligent maintenance of municipal property found to be discretionary because the complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply). In addition, a policy, directive or guideline mandating a particular course of action must be set forth in writing. Giard v. Putnam, Superior Court, judicial district of Windham at Putnam, No. CV 08 5002754 S (Dec. 3, 2008, Booth, J.), 46 Conn. L. Rptr. 782; Cobuzzi v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 05 4007167 (May 23, 2007, Prestley, J.). It is also noted that the mere existence of an arguably applicable written policy or statute does not automatically make a duty ministerial, as long as the ultimate act involved the discretionary exercise of judgment. Evon v. Andrews, supra, 211 Conn. 507.
Regarding the claims against Armeno, the acting police chief, "the great weight of authority [holds] that the operation of a police department is a discretionary governmental function." Gordon v Bridgeport Housing Authority, supra, 208 Conn. 179. Acts and omissions of police officers in the exercise of their duties are discretionary in nature. Uzar v. Stamford, Superior Court judicial district of Fairfield at Bridgeport No. CV 07 5009651 (Apr. 30, 2010, Arnold, J.) "It is firmly established that the operation of a police department is a governmental function, and that acts and omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . The deployment of officers is particularly a governmental function. Considerable latitude must be allowed to [a police chief] in the deployment of his officers . . . [H]e may not be deprived of his power to exercise his own discretion and judgment as to the number, qualifications, and identity of officers needed for particular situations at any given time." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180.
The plaintiff argues that the Midway carnival had taken place for years before this incident, and the police department had developed a "blueprint" for how many officers were to be assigned and deployed to the event and how the event was to be patrolled by these officers. This "method" may change through the years, but the number of officers deployed, six to eight, remained constant. On the night in question, June 24, 2005, due to other special events being held in Bridgeport (a fireworks display), no police officers were present at the Midway. This was because an insufficient number of officers were available for "extra duty" to cover both the fireworks display and the Midway carnival at the same time. Deputy Chief James Honis, who was chief of the Patrol Division for the Police Department and was responsible for the deployment of officers that evening, determined that officers would be provided to the Midway upon the conclusion of the fireworks show.
A review of the plaintiff's complaint reveals no allegations that the police department had some written policy, directive or guideline in place regarding those duties with which it or its employees had failed to comply. The complaint is facially insufficient. Additionally, the plaintiff has failed to provide the court with a copy of any written "blueprint" or document describing the method by which it would be determined how many officers were required and how such officers were to be deployed. The complaint alleges claims that are all identified as arising out of the negligence and carelessness of Armeno. The court agrees with the defendants that the allegations reveal nothing that might identify a non-discretionary ministerial duty. The court finds that the actions of Armeno and the police department on June 24, 2005 in determining how and when to deploy police officers to the Midway were discretionary in nature and not ministerial, the acts of training and supervising officers are also discretionary functions, as are "failure to warn" allegations. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 179-80; Eberle v. Town of Coventry, Superior Court, judicial district of Tolland, complex litigation docket at Tolland, Docket No. X07 CV 02 0078407 (July 21, 2003, Sferrazza, J.). The plaintiff also does not identify how the failure to train or supervise is causally connected with the criminal act of a third party.
Regarding the defendant Handy and the claims that he failed to take steps to secure the property or that the property was unsafe, the plaintiff has not cited any written policy, rule, directive or statute requiring the erection of fencing, installation of metal detectors, etc. The determination of what is "adequate" fencing, lighting, etc., or whether they were required at all requires the discretion of municipal officials. Even the act of promulgating a policy is discretionary activity. Heigl v. Board of Education, 218 Conn. 1, 5-6, 587 A.2d 423 (1991). Again, the complaint makes no reference to a written policy, practice or procedures that would give rise to a ministerial duty with respect to these claims. It is also undisputed that Handy had no duties with respect to police deployment, training, or security measures. The plaintiff makes allegations that 5 Star and Solution were, in fact, responsible for providing security and police protection and there is no ministerial policy that would establish that Handy was responsible for these security decisions. Even if Handy did have such authority, without a written policy requiring him to take specific actions, his authority would be discretionary.
B. Identifiable Person Subject to Imminent Harm
Having determined that the acts of Armeno and the police were discretionary, the plaintiff, to succeed in this claim of liability, must be entitled to recover within one of the exceptions to a municipal employee's qualified immunity for discretionary acts. There are three recognized exceptions. The first exception is 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. The second is where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and the third, is where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. Burns v. Board of Education, supra, 228 Conn. 645. There is no claim that the acts of any of these municipal defendants were malicious, wanton or with an intent to injure, so the court will address claims regarding the first and second exceptions to qualified immunity for discretionary acts.
The first exception is 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. The plaintiff argues that harm at the Midway carnival was imminent, as a locale adjacent to the carnival was a known "hot spot" for gang problems. Additionally, the permit issued for the event recognized the necessity of security at the event and the likelihood of an incident was high on a weekend summer evening. The plaintiff also argues that the decedent Clarence Mills a young African American high school age male, was an identifiable victim and a member of a limited number of people attending the carnival.
The imminent harm exception to discretionary act immunity requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to harm. Doe v. Peterson, supra, 279 Conn. 616. The failure to establish any one of the three prongs precludes the application of the identifiable victim-imminent harm exception. Violano v. Fernandez, 280 Conn. 310, 329, 907 A.2d 1188 (2006) "We have construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." Id. at 646; see also Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979). "[W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care . . . In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350-51, 984 A.2d 684 (2009).
The existence of a duty of care, an essential element of negligence, is a matter of law for the court to decide. Shore v. Stonington, supra, 187 Conn. 151; Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). "A duty to act with reasonable care to prevent harm to a plaintiff which, if violated, may give rise to tort liability is based on a `special relationship' between the plaintiff and the defendant." See W. Prosser, Torts 56 (4th ed. 1971); Burns v. Board of Education, supra, 228 Conn. 646; Neal v. Shields, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974). "`A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.' Coburn v. Lenox Homes, Inc., [ supra, 375]." Burns v. Board of Education, supra at 646; Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983). "The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised . . ." (Citations omitted; internal quotation marks omitted.) Burns v. Board of Education, supra, at 647, quoting Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981).
"In deciding the issue of when, if ever, an official's public duty precipitates into a special one to prevent harm to an individual, the law requires, to maintain the action, a showing of imminent harm to an identifiable victim . . . The 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 . . . We do not think that the public interest is 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 v. Stonington, supra, 187 Conn. 151-52.
In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim. E.g., Evon v. Andrews, supra, 211 Conn. 507-08; Burns v. Board of Education, supra, 228 Conn. 647-48. The question becomes, was the plaintiff an identifiable victim in foreseeable imminent danger? Connecticut courts have defined the scope of "identifiable person-imminent harm exception" to include discrete persons or classes of persons involved in situations of danger for a limited period of time, in a limited geographical area where the potential harm is significant and foreseeable. See Purzycki v. Fairfield, supra, 224 Conn. 101 (finding a school liable where the failure to monitor a hallway allowed a fellow student to trip and injure a plaintiff); CT Page 19707 Burns v. Board of Education, supra, 228 Conn. 650 (upholding a verdict that found a school superintendent liable for injuries to a student who slipped and fell on an icy walkway, where superintendent neglected to ensure that school grounds were properly salted).
In the context of police cases, such as Sestito v. Groton, supra, 178 Conn. 520, a police officer, seeing a heated argument, which turned into a brawl, took no action. The plaintiff's decedent was then shot during the brawl. The Supreme Court found the officer might have owed a duty to the plaintiff's decedent and the claims should go to a jury. The injury and the identity of the decedent were foreseeable because the defendant officer had personally observed the fight which led to the shooting, and took no action to stop the fight. Id. 527-28. It was the short chronological duration and the defendant's presence at the scene which made the harm to the decedent imminent.
The American Heritage Dictionary, New College Edition, defines "imminent" as "[a]bout to occur; impending." Webster's Third New International Dictionary defines "imminent" as "ready to take place: near at hand: impending . . . hanging threateningly over one's head: menacingly near . . ." Webster's New World Dictionary, Second College Edition; "imminent" as "likely to happen without delay, impending, threatening . . ." There can be no doubt that the common and legal understanding of the term "imminent" includes an element of both immediacy and certainty. Purzycki v. Fairfield, supra, 244 Conn. 117-18 (Callahan, J. dissenting).
The application of the rule regarding identifiable victims subject to imminent harm has been restrictive outside of the public school context because, "in addition to not recognizing any additional classes of foreseeable victims, the decisions reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity. See Sestito v. Groton, supra, 178 Conn. 522-23, 527-28. Sestito appears, however, to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because an allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." Grady v. Somers, supra, 294 Conn. 353-54.
The plaintiff's argument that the decedent was an identifiable person subject to a specific imminent harm is unavailing. The decedent was one of several hundred or perhaps several thousand patrons attending the Midway carnival on the night in question. The fact that he was a young African American male attending the event where his presence and attendance was voluntary does not make him an identifiable victim. Regarding the imminent harm question, the plaintiff has stated in her memorandum of that in past years there have been "minor altercations" at this event. While there have been minor scuffles, arguments and the like in the past years, there are no allegations or history of serious past injuries or deaths at this annual event. There is nothing in the record that would lead one to conclude that a shooting leading to death was imminent and likely to happen. The plaintiff was not an identifiable victim who was subject to imminent harm of the type suffered by the decedent. In the case before the court, there is a difference between members of the general population voluntarily attending a carnival and school children who are required to attend school. Declaring all young African American patrons at a carnival to be identifiable victims would expand the immunity exception to a point far beyond a level that has been accepted by courts in this state. Even if the plaintiff was an identifiable victim, it is not evident that the alleged facts reflect an imminent harm.
C. Statutory Duty-General Statutes § 7-284
The second exception to a municipal employee's qualified immunity for discretionary acts, is where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. The plaintiff argues that the City of Bridgeport was statutorily obligated to provide police protection to the Midway pursuant to General Statutes § 7-284. The plaintiff states that the permit for this event was approved by the City in 2005, and the permit required security at the event. The security was to be coordinated with the Police Department Outside Overtime Office. The plaintiff, in her memorandum of law, states that Deputy Chief Honis was responsible for assessing the number of overtime officers and the manner in which they would be deployed. Honis, in deposition testimony stated that in the past, the police department assigned six to eight officers, sometimes walking in tandem, to patrol the Midway. The plaintiff argues that this creates a genuine issue of material fact as to whether the City owed a ministerial duty to provide police protection.
The Special Event Permit issued by the police department is dated May 31, 2005 and was issued to "5 Star Amusement, Inc . . ."
General Statutes § 7-284 provides in relevant part as follows:
When police protection is necessary or required at any boxing bout or wrestling match, place of public amusement, sport contest or hockey, baseball or basketball game, or any other exhibition or contest, which is being held or is to be held in any municipality, the amount of such protection necessary shall be determined and shall be furnished by (1) the chief or superintendent of the police department in any municipality having an organized or paid police department . . . Any such protection shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest.
These municipal defendants argue that the plain language of General Statutes § 7-284 makes it clear that the municipality has discretion in deciding whether to provide security for an event, and if so, how much security is necessary and how will it be deployed. The defendants state that the purpose of the language in § 7-284 is to confer on the police chief the power to determine the amount of security required, which necessarily involves the exercise of judgment and discretion based on the chief's experience.
There are very few court decisions interpreting General Statutes § 7-284 in any context, but the court agrees with the defendants that those decisions that exist agree that the statute does not create a ministerial duty. In Plainfield v. Commissioner of Revenue Services, 213 Conn. 269, 567 A.2d 379 (1989), the principal issue was whether the plaintiff town of Plainfield, when it furnished police protection pursuant to General Statutes 7-284, provided a taxable service under General Statutes 12-407(2)(i)(E) and 12-426-27(B)(5) of the Regulations of Connecticut State Agencies. Id., 270. In determining that issue, the court undertook an analysis of § 7-284 and stated:
Section 7-284 provides that when police protection is `necessary' at any listed event, `the amount of such protection necessary shall be determined and shall be furnished by' the chief of police. The flaw in the plaintiff's argument is that 7-284 does not `mandate' public protection at the enumerated events. Section 7-284 represents, rather, a legislative determination that in some circumstances the security arrangements, if any, provided by the promoter of an event may not be adequate and, further, that the ultimate determination of adequacy is to be made by a police official rather than the promoter.
Id., 273. While the court was not discussing § 7-284 in the context of governmental immunity, the statement of the court indicates that the implementation of the statute requires a use of discretion and judgment by police officials.
Two Superior Court decisions by Judge Cosgrove in 2008, in the case Walker v. Freddy Fixer, Inc., have addressed § 7-284 in the context of governmental immunity. In the case of Walker v. Freddy Fixer, Inc., Superior Court, judicial district of New Haven at New Haven No. CV 06-5003842 (Sep. 29, 2008, Cosgrove, J.) 46 Conn. L. Rptr. 421, the plaintiffs attended a parade, known as the Freddy Fixer Parade, which was conducted, in part, in the streets of New Haven. The City of New Haven, through its police department, provided security during the parade and is a defendant to this action. The plaintiffs alleged that, while attending the parade, they suffered injuries as a result of a motorcyclist crashing into the crowd after losing control of his motorcycle. Id. The plaintiffs claim that the city was negligent in providing the security necessary to have prevented the motorcycle accident and, therefore, is liable for the plaintiffs' alleged injuries. Specifically the plaintiffs allege the city was negligent in that:
a. they failed to erect barriers between the spectators and the vehicles participating in the parade;
b. they failed to adequately supervise the parade participants to ensure that they operated their vehicles safely;
c. they failed to warn spectators about the lack of barriers and the risk that they could be harmed by a vehicle participating in the parade; and
CT Page 19711
d. they failed to have an adequate amount of police personnel monitoring the conduct of the parade participants.
Id.
The City of New Haven filed several special defenses, specifically that they were entitled to common-law and statutory governmental immunity; that the plaintiffs were contributorily negligent; and that the conduct of the motorcyclist was an intervening and superceding cause of the harms claimed by the plaintiffs. Id. The defendant, New Haven, moved for summary judgment on the grounds that the municipality is immune from suit in this matter; that there is no exception to immunity; and that the plaintiffs did not plead facts sufficient to establish causation. Id. The plaintiffs opposed the motion asserting that General Statutes § 7-284 created a ministerial duty on New Haven or at the very least an issue of fact as to whether the police department's acts and/or omissions were ministerial or discretionary. Further the plaintiffs claimed that causation is necessarily fact based and therefore inappropriate for resolution by a motion for summary judgment.
In its analysis of Sec. 7-284, the court ( Cosgrove, J.) stated:
A reading of the statute makes it evident that it does not state that such events must have police protection. The statute only applies "when" police protection is deemed necessary or required. It does not state that such events automatically trigger a need for the municipal police to provide such services. Also, when such protection is thought to be necessary or required, the statute leaves it up to the discretion of the police in determining the manner in which the security is to be provided. The only requirements created by the statute relate to identifying the municipal employee responsible for making the logistical determinations for the security, as well as stating that the person or organization presenting the event, and not the municipality, is responsible for paying for the police services.
Id.
"This court, in addressing an earlier issue pertaining to the present suit, stated that § 7-284 places the discretion to determine the amount of security, and the determination of types of security required, within the local police department. The plaintiffs' complaints regarding the erection of barriers or the failure to have an adequate amount of security personnel to monitor the conduct of parade participants, would appear to fall within the purview of the statute. See Walker v. Freddy Fixer, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5003842 (March 31, 2008, Cosgrove, J.); 45 Conn. L. Rptr. 311. While this statute does apply to the City in the circumstances of this case, it does not create a ministerial duty. In complying with the statute the municipal employees were acting in a discretionary, governmental manner. Further, under a common-law analysis, the conduct complained is governmental and discretionary in nature and therefore the City is entitled to qualified immunity."
Id.
The court has also reviewed a sworn affidavit by defendant Armeno, which was submitted in support of summary judgment. Armeno states that there is no formal or informal policy, written or oral that the police department is supposed to follow when deciding the appropriate level of police protection or security for the City of Bridgeport. Armeno in his affidavit confirms that he was aware of Deputy Chief Honis' deployment plan for the fireworks display and the carnival at Seaside Park on the evening in question. Given the prevailing circumstances on that evening, Armeno concluded based on his training and experience that the deployment plans and the number of officers to be deployed were appropriate for the proper level of security for both the Midway carnival and the fireworks display and that officers were, in fact, deployed for the Midway carnival. Armeno states that there were more than enough officers deployed for these events and it was unnecessary in his judgment to cancel or postpone the Midway event or to require the Solution, LLC. and 5 Star Amusement, LLC. defendants to provide private security. General Statutes § 7-284 does not constitute an exception to the application of qualified governmental immunity for discretionary acts.
D. Corporate Profit or Pecuniary Benefit
The plaintiff next argues that if these defendants' actions are discretionary and the plaintiff is not an identifiable victim subject to imminent harm, immunity still does not apply because the defendant received a corporate profit or pecuniary benefit. Pursuant to General Statutes § 52-557n(a)(1), "a political subdivision of the state shall be liable for damages to person or property caused by . . . (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." Section 52-557n(a)(1)(B) codifies the common-law rule that municipalities are liable for their negligent acts committed in their proprietary capacity, and the leasing of a portion of a municipal building for a rent to a private party to operate a business is an act that resembles private enterprise and can be determined to be a proprietary, rather than a governmental, function. Considine v. Waterbury, 279 Conn. 830, 831, 905 A.2d 70 (2006). "When the municipality is engaged in proprietary conduct, it is not clothed with [the state's] immunities and is liable to be sued for injuries inflicted through its negligence in the performance of such an act." (Internal quotation marks omitted.) Id. at 842; see also, Mazurek v. East Haven, 99 Conn.App. 795, 916 A.2d 90 (2007). "In the specific context of leasing municipal property, this court and courts of other jurisdictions generally have concluded that a municipality acts in its proprietary capacity when it leases municipal property to private individuals." Id. at 849.
Sec. 52-557n(a)(1)(B) reads as follows:
(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: . . . (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; . . .
In order for the proprietary function exception to governmental immunity to apply, the City of Bridgeport must have supplied police officers to the Midway carnival operated for its own corporate profit or pecuniary benefit. Hannon v. Waterbury, 106 Conn. 13, 136 A. 876 (1927). However, the plaintiff in asserting this claim as an exception to governmental immunity provides no documentation or evidence that the City derived a profit from providing police protection or even received any payment at all from the Solution, LLC., defendants or the 5 Star Amusements, LLC., defendants. Until this issue was raised by the plaintiff, it appeared to have been the plaintiff's position that the City provided no police protection to the Midway carnival on the night in question. Nonetheless, as stated, herein, even if the defendants had paid the City for overtime charges for police officers assigned to the Midway, the plaintiff produces no evidence that the City made a profit so as to remove the protection of governmental immunity. The language of § 52-557n(a)(1)(B) requires that the town must derive a special corporate profit or pecuniary benefit in order for a plaintiff to take advantage of this exception to governmental immunity. The facts of this matter are not the same as cases where the municipality rented its facilities and properties to private entities and groups. See. Considine v. Waterbury, supra, 279 Conn. 849.
In the opposition to summary judgment motions filed by these defendants and the Solution and 5 Star Amusements defendants, the plaintiff has submitted a copy of the deposition testimony of defendant Thomas Kelly. The testimony reveals that 5 Star Amusements, LLC, never paid the City of Bridgeport for any of the outside over-time incurred by the City's police officers at the Midway carnival. The same deposition testimony acknowledged that Solution, LLC, would be responsible for payment for any over-time charges incurred by the City. However, the deposition testimony does not reveal that Solution, in fact, ever was billed by the City or paid the City for outside over-time expenses for the Midway carnival on the date in question. See. Deposition Transcript, Thomas Kelly, September 18, 2009.
III Conclusion
The court agrees with the defendants, Bridgeport, Armeno and Handy that the public policy behind General Statutes § 52-557n and the common law requires that immunity attach to these defendants in this case. The plaintiff's allegations against these defendants all involve discretionary acts and are not subject to the recognized exceptions, as discussed herein. The public's interest is not served by allowing a jury of lay persons with "the benefit of 20/20 hindsight" to "second-guess" the exercise of these defendants' professional duty. Shore v. Stonington, supra, 187 Conn. 157. "Such discretion is no discretion at all." Id. Accordingly the motion for summary judgment is granted as to Count Three alleging negligence against Handy, Count Four seeking indemnity against the City of Bridgeport for the alleged negligence of Handy, Count Seven alleging negligence against Armeno, and Count Eight against the City, which is the plaintiff's claim for indemnity for the alleged negligence of Armeno.