Summary
applying the identifiable victim/imminent harm exception to the town's immunity
Summary of this case from Seri v. Town of NewtownOpinion
No. HHB CV 04 4002902 S
October 31, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#116)
The court heard oral arguments concerning the defendant Town of Plainville's motion for summary judgment at the short calendar for September 25, 2006. After consideration of the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is denied.
I BACKGROUND
In this action, the plaintiff, John Rasmus, III, as administrator for the Estate of John Rasmus, Jr. (the decedent), alleges, in his one count amended complaint (#105), that "[t]he defendant is the Town of Plainville because of the negligence of its agents and/or employees." See amended complaint, ¶ 2. The summons lists the defendants as being the Town of Plainville and the Plainville Police Department. As discussed below, the Plainville Police Department is not an entity which is separate from the Town of Plainville. Also, as discussed below, no individual has been named as a defendant in this matter.
The plaintiff alleges that, on December 15, 2002, at about 5:28 p.m., the decedent was taken into its custody by the Plainville Police Department, a member of which conducted a detained prisoner interview (the interview). The plaintiff further alleges that, during the interview, it was observed that the decedent appeared sad, depressed, and emotionally disturbed; and that he expressed an intent to harm himself bodily. In addition, the plaintiff alleges that, based on the decedent's responses to questions, the "defendants" were on notice that he previously had been treated for post-traumatic stress disorder, that a cousin of his recently had passed away, and that the decedent previously tried to commit suicide.
The plaintiff also alleges that, after the interview, the decedent was left locked in a jail cell and not spoken to again by any agent or employee of the "defendants." At approximately 11:45 p.m., it was discovered that the decedent had committed suicide by hanging himself in the jail cell. See complaint, ¶ 7.
The plaintiff alleges that "the defendant" is responsible for the decedent's death because it was negligent and careless with regard to him while he was in its custody and/or with regard to the management of the police station and department while he was in its custody. See amended complaint, ¶ 8. The plaintiff alleges numerous specifications of negligence, including failing to check on the decedent, failing to monitor him, failing to prevent his suicide, failing to adequately inspect the jail cell, and failing to take into account and follow up on the information obtained during the interview. See amended complaint, ¶ 8. The plaintiff also alleges that negligence occurred in that they knew or should have known that the dispatcher on duty lacked the experience and training to properly monitor the inmates in their custody, and that they knew or should have known that the second shift dispatcher failed to inform the third shift dispatcher that the decedent was in the jail cell, and that he posed a suicide risk. See amended complaint, ¶ 8. In paragraph 8m and 8n, the plaintiff alleges negligence in that they failed to inform Dispatcher Theriault that the decedent was in the lock up and that he posed a suicide risk.
The amended complaint contains two paragraphs which are designated as paragraph "8."
In addition, the plaintiff alleges negligence in that steps were not taken to have the decedent undergo a mental health evaluation; that the shift commander took no specific actions to check on the decedent or to have anyone else do so; and that no emergency aid was provided to him when "they knew or should have known" that he needed immediate attention "because they could have seen on the monitor that [he] was not moving and only his legs and lower torso were visible." See amended complaint, ¶ 8q. The plaintiff further alleges that the Town of Plainville's negligence caused the decedent's death, as a result of which he lost the ability to carry out and enjoy life's activities; that he lost the opportunity to produce income in the future; and that the decedent endured mental anguish and physical suffering prior to his death. In paragraph 11, the plaintiff alleges that notice of intention to commence this action was timely filed in accordance with General Statute § 7-465 and that a copy of the notice is attached as Exhibit A. Exhibit A to the complaint specifically identifies individual Town of Plainville agents or employees, including Officer John Quilter, and Dispatchers Amy Brochu and Ingrid Theriault, among others. In paragraph 12, the plaintiff asserts that this action is brought pursuant to General Statutes §§ 52-555 and 52-557n.
For ease of reference, the court hereafter refers to the Town of Plainville as "Plainville." Plainville's answer (#110) pleaded special defenses, including that the plaintiff's claims are barred by the doctrine of governmental immunity and by the provisions of General Statute § 52-557n.
In its motion, Plainville argues that governmental immunity protects it from liability for its discretionary conduct with regard to the decedent. It contends also that, since no municipal employee is a defendant, the exception to governmental immunity for likely imminent harm to an identifiable person is not applicable.
In response, the plaintiff argues that there are genuine issues of material fact. He contends that Plainville owed the decedent a duty to protect him while he was in the custody of its police officers, who were acting in the scope of their employment, as provided by General Statutes § 52-557n(a)(1)(A). The plaintiff asserts that Plainville breached both its ministerial duty to the decedent, as set forth in the city charter, and its discretionary duties, by failing to prevent imminent harm to an identifiable person, to whom a clear and present duty was owed, an exception to governmental immunity. See plaintiff's brief, pages 1, 2.
In his objection (#117), the plaintiff also states that "[t]he duty owed to the decedent was a private and not a public duty so there is no immunity . . ." No argument is presented in his brief on this topic. Accordingly, the court does not consider this subject. "Where there is an unsupported assertion not briefed beyond the mention of that issue, the issue is itself deemed to have been waived and does not create an issue of fact for the purpose of defeating a summary judgment motion. See Commission on Human Rights and Opportunities v. Truelove MacLean, Inc., 238 Conn. 337, 344 n. 11, 680 A.2d 1261 (1996)." Demchak v. State, 48 Conn.Sup. 460, 462 n. 2, 849 A.2d 1 (2003), affirmed, per curiam, 83 Conn.App. 86, 847 A.2d 1095 (2004).
In support of its motion, Plainville submitted a memorandum of law, with affidavits and exhibits. In response, the plaintiff submitted his objection, a brief, and four exhibits: a copy of the report of the interview; a copy of the Plainville charter; and the affidavits of Peter Costanzo and John Quilter, who were employed by Plainville on the day of the events alleged concerning the decedent as, respectively, a police captain and a police officer. All of these exhibits were previously presented by Plainville in support of the motion. Plainville also submitted a reply to the plaintiff's submission.
Additional references to the facts are set forth below.
II STANDARD OF REVIEW
"Practice Book § 17-49 provides in relevant part that judgment `shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' It is well established that, [i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
III DISCUSSION A Discretionary Or Ministerial Acts CT Page 20217
In his brief, at page 4, the plaintiff argues that the acts and omissions complained of "were both ministerial — periodic inspection and monitoring of [the decedent] in his cell, as well as discretionary — evaluating the information taken in as part of the detained prisoner interview to evaluate him for risk of imminent harm to a clearly identifiable person." (Emphasis in original.) See plaintiff's brief, page 4."The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides that `[e]xcept 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 . . .' Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by `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.'" Violano v. Fernandez, 280 Conn. 310, 320 (2006).
General Statutes § 52-557n provides in relevant part: "(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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (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: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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 . . ."
"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Footnote omitted; internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318-19.
"The issue of governmental immunity is simply a question of the existence of a duty of care, and `this 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)." Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). "[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107-08, 708 A.2d 937 (1998).
Our Supreme Court has stated that, according "to the great weight of authority[,] the operation of a police department is a discretionary governmental function . . . [I]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . [T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city . . . The deployment of officers is particularly a governmental function . . . Indeed, because a police chief's authority to assign his officers to particular duties is deemed a matter that concerns the public safety, he 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 . . . We conclude that the general deployment of police officers is a discretionary governmental action as a matter of law." (Citations omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 179-80. Also, "[t]he act of training and supervising police officers is clearly a discretionary governmental function. Considerations of who to hire, how to train such people, and how to supervise police officers on the job are decisions requiring the use of judgment and discretion." Cook v. City of Hartford, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 89 0362482 (August 21, 1992, Aurigemma, J.) ( 7 Conn. L. Rptr. 270) ( 7 CSCR 1096).
The plaintiff contends that a provision of the Plainville Charter establishes a policy or directive which ministerially required Plainville to manage, supervise, monitor and maintain the safety of individuals in its custody. See plaintiff's brief, page 1. The Charter states, in Section 3, paragraph a, "[t]he division of police shall be responsible for the preservation of the public peace, prevention of crime, apprehension of criminals, regulation of traffic, protection of rights of persons and property and enforcement of the laws of the State and the ordinances of the Town and all rules and regulations made in accordance therewith." See plaintiff's Exhibit B, p. 1-10.
This Charter provision does not require Plainville's police to carry out these responsibilities in a prescribed manner. In particular, the plaintiff has cited no "city charter provision, ordinance, regulation, rule, policy, or any other directive" to the police to provide for the safety of detained individuals "in any prescribed manner." Violano v. Fernandez, supra, 280 Conn. 323.
In support of his argument, the plaintiff also relies on the affidavit of Captain Peter Costanzo, which was submitted by Plainville in support of the motion. In his affidavit, Costanzo states that, on the date of the decedent's suicide, December 15, 2002, Costanzo was second in command of the Police Department and was in charge of the Patrol Division. On that date, the Police Department's detention area had a video monitoring system, through which a dispatcher could monitor the occupants in the jail cells. See Costanzo affidavit, ¶¶ 5-7. He notes that, "[d]ue to limitations associated with the video equipment and the layout of the detention area, small portions of the cells did not appear on the video monitor." See Costanzo affidavit, ¶ 8.
He also avers that he, in conjunction with others, made discretionary decisions regarding staffing needs, physical plant needs, and the training needs of employees associated with the operation of the Police Department. See Costanzo affidavit, ¶ 10.
With regard to precautions taken to prevent potential detainee suicides, Costanzo states that "our Electronic Booking System (' EBS') included a questionnaire with a checklist of questions designed to assess a prisoner's emotional state and to prevent prisoner suicides." See Costanzo affidavit, ¶ 12. Also, the "video monitoring system was intended to allow those serving in the dispatch area to visually monitor prisoners." See Costanzo affidavit, ¶ 13. Further, he states that "[o]ur officers were also trained regarding Connecticut General Statutes § 17a-503 and were aware that they could cause detainees to be taken to a hospital for an emergency evaluation if they had reasonable cause to believe that such person had psychiatric disabilities and was dangerous to himself or others or was gravely disabled and in need of immediate care and treatment." See Costanzo affidavit, ¶ 14.
Section 17a-503(a) provides, "(a) Any police officer who has reasonable cause to believe that a person has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, and in need of immediate care and treatment, may take such person into custody and take or cause such person to be taken to a general hospital for emergency examination under this section. The officer shall execute a written request for emergency examination detailing the circumstances under which the person was taken into custody, and such request shall be left with the facility. The person shall be examined within twenty-four hours and shall not be held for more than seventy-two hours unless committed under section 17a-502."
Our Supreme Court has stated that the type of functions which the plaintiff claims were ministerial, periodic inspection and monitoring, are, as a matter of law, discretionary in nature. In Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), "the plaintiffs brought an action against the city of Waterbury and various city officials, alleging, in part, that the death of their decedents in a multifamily apartment house fire had been caused by the defendants' negligence in either failing to inspect properly the apartment house or to undertake remedial action to correct the apartment house's building code violations." Violano v. Fernandez, supra, 280 Conn. 322. "In Evon v. Andrews, supra, 211 Conn. 505-07, the plaintiffs brought a common-law tort action against the defendant municipality and its employees for their allegedly negligent failure to inspect adequately a rental dwelling. We determined that the defendants' acts were discretionary in nature because `what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment.' Id., 506. Accordingly, we concluded that the trial court properly granted the defendants' motion to strike because qualified governmental immunity precluded the plaintiffs' claim as a matter of law." Martel v. Metropolitan District Commission, 275 Conn. 38, 49, 881 A.2d 194 (2005).
This principle recently was reiterated by the Supreme Court in Violano v. Fernandez, supra. There, in April 2000, by eminent domain, the City of New Haven took property, which had been leased by the plaintiffs and on which they intended to operate a restaurant. In November 2000, a robbery occurred at the property, causing the plaintiffs to incur losses when all of their property was stolen or destroyed. See Violano v. Fernandez, supra, 280 Conn. 313-14. Among the allegations of negligence were claims of causing or allowing the property to remain with defective or inadequate security, failing to install a security system or security devices, failing to install adequate locks, failing to monitor adequately who possessed keys for the property, failing to supervise adequately the security of the property, failing to respond in a timely manner to reports of theft, and failing to make reasonable and proper inspections of the property. See id., 280 Conn. 322. The Supreme Court concluded that the essence of these allegations was that the individual defendant "did not reasonably or adequately secure the property that was under his care, custody and control. These allegations are sufficiently similar to the Evon plaintiffs' allegations, that the defendant failed to make reasonable, proper, or adequate inspections of the subject premises." Violano v. Fernandez, supra, 280 Conn. 323. Accordingly, the court found that the "allegedly negligent acts involved the exercise of judgment." Id. In the absence of any rule, policy, or directive to secure the property in a prescribed manner, the alleged conduct "was solely discretionary in nature . . ." Id., 280 Conn. 324.
As discussed above, the plaintiff here has cited no rule, policy, or directive which mandated how Plainville's employees were to monitor and inspect detainees in jail cells. As a matter of law, the alleged failure to periodically monitor and inspect the decedent while he was in the jail cell involved the exercise of judgment, and involved alleged conduct which was discretionary, and not ministerial, in nature.
The facts here differ from those in Duncan v. Groton, Superior Court, judicial district of New London at New London, Docket No. 565060 (August 3, 2004, Martin, J.), cited by the plaintiff here, an action in which Betty Duncan sued the city of Groton and its director of parks and recreation for injuries she sustained while sledding at a public park maintained by the city. The court denied summary judgment, noting that the complaint did not allege merely a failure to maintain or failure to inspect; rather additional allegations of negligence were raised that could "conceptually be ministerial in nature." (Footnote omitted.) Id. The court also noted that the plaintiff claimed, "if the town did have a specific directive that the sledding hill would be smoothed and that all bumps and ramps be removed on a daily basis, this policy was not followed on the day she was injured. This allegation could involve a ministerial duty because the staff of the . . . defendant could be required to conduct periodic [inspections] of the park in a prescribed manner, without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Id.
The complaint in Duncan v. Groton, supra, n. 13, alleged "the failure to train its employees on the placement of snow, the failure to prevent persons from creating ramps and to post notices prohibiting the building of ramps, the failure to remove bumps and ramps, the failure to post warning signs or cones or to rope off dangerous areas, the failure to supervise its employees or to regularly inspect the hill and allowing the hill to become icy and dangerous."
As discussed above, the factual record here contains no rule, policy, or directive requiring the Plainville police to conduct periodic inspections of detainees in its jail cells in a prescribed manner. In contrast, in reviewing the facts presented concerning the motion there, the court in Duncan v. Groton, supra, noted that sufficient evidence had been presented to raise genuine issues of material fact which precluded a determination as to whether the conduct at issue was discretionary or ministerial. The court cited warnings about the creation of ramps, the presence of which the plaintiff alleged partly caused her injuries. "Rules have been submitted warning against the creation of ramps." Id., n. 15. Also, the court stated that "A copy of the snow making instructions is submitted. The plaintiff alleges that the noncompliance with these instructions caused the hill to be extraordinarily icy." Id.
B Imminent Harm
As noted above, the plaintiff acknowledges, in his brief, page 4, that evaluating the information taken in as part of the detained prisoner interview, to assess the decedent as a person who was a suicide risk, involved the exercise of judgment and discretionary acts. Plaintiff's Exhibit A, the report concerning the interview of the decedent, stated that he previously had been treated for post-traumatic stress disorder and, concerning whether he recently had suffered any losses, that his cousin died. Also, the decedent stated that, previously, he had tried to commit suicide. The interviewer observed that the decedent appeared sad, depressed, and emotionally disturbed. Also, it was noted that he had expressed the intent to harm himself bodily. See affidavit of John Quilter, ¶¶ 16-17.
The plaintiff claims that the exception to governmental immunity, under which a municipal employee may be liable for discretionary acts where the circumstances make it apparent that a failure to act would be likely to subject an identifiable person to imminent harm, applies to this case. He contends that a question of fact remains as to "whether the acts of the police exposed the decedent to a forseeable risk of harm that could have been prevented by improved monitoring, management, and supervision of a confined individual." See plaintiff's brief, page 6.
The court is unpersuaded by the plaintiff's statement that Plainville "has a political subdivision . . ." See plaintiff's brief, page 5.
As noted above, General Statute § 52-557n(a)(2)(B) provides that "[e]xcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . 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." The Plainville Police Department is not a political subdivision. It is not an entity with an existence separate from the Town of Plainville. As stated with regard to the Greenwich Police Department, "[a] `political subdivision of the state' would include entities such as towns, cities, and boroughs. Connecticut Constitution, Article Tenth, Sec. 1. The Greenwich Police Department is not a political subdivision of the state." Weitz v. Greenwich Police Department, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV04 0200464 (January 10, 2005, Jennings, J.) ( 38 Conn. L. Rptr. 512).
"[I]t is the municipality itself that is authorized to be sued pursuant to Conn. Gen. Stat. §§ 7-148; 52-73 and 7-465 . . . Unless departments within municipal government constitute distinct `bodies politic' under state law, the proper defendant is the municipality itself, not an administrative subdivision." (Citations omitted; internal quotation marks omitted.) Levine v. Fairfield Fire Dept., Superior Court, judicial district of Waterbury, Docket No. X01 CV 89 0146670 (April 9, 1999, Hodgson, J.). See, in contrast, Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 173-78 (housing authority was separate entity for liability purposes).
The court is likewise unpersuaded by the plaintiff's reference to Spears v. Garcia, 263 Conn. 22, 818 A.2d 37 (2003), in this context. While, there, the named defendants included the Bridgeport fire department, the opinion does not address that department as a separate political subdivision. The fire department's status does not appear to have been raised as an issue there.
"A municipal employee's immunity for the performance of discretionary governmental acts is . . . 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." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 49 n. 7, quoting Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003). The plaintiff claims that only the first of the three exceptions is applicable here. See plaintiff's brief p. 4.
Citing Pane v. City of Danbury, 267 Conn. 669, 677 n. 9, 841 A.2d 684 (2004), Plainville argues that the exception is not applicable here, since it applies only where a claim is made against an individual municipal employee. Plainville contends that, before the municipality can be held liable for indemnification, the plaintiff must first plead in a separate count and prove negligence against a municipal employee. See General Statute § 7-465; Plainville's reply, p. 8. In Spears v. Garcia, supra, 263 Conn. 32, the Supreme Court stated, concerning §§ 7-465 and 52-557n, that "[t]he causes of action under the statutes are independent and are not mutually exclusive."
Section 7-465 provides, in pertinent part, "(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty."
In Pane, our Supreme Court noted, that, although, as it concluded in Spears v. Garcia, supra, 263 Conn. 29, "General Statutes § 52-557n allows a plaintiff to bring a direct cause of action for negligence against a political subdivision of the state," the identifiable person/imminent harm exception did not apply in Pane because the claims against the individual municipal employee as a named defendant had been withdrawn. See Pane v. City of Danbury, supra, 267 Conn. 678 n. 9. In Pane, the plaintiff sued the City of Danbury and Emanuel Merullo, an individual who was employed by the city as personnel director. See id., 267 Conn. 670. The Supreme Court stated, "We note that there is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself, 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 . . . That exception does not apply in this case because the claims against Merullo have been withdrawn." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 267 Conn. 677-78 n. 9.
However, this court must be guided by our Supreme Court's more recent, and more extensive, discussion of the subject, in Doe v. Petersen, supra, 279 Conn. 607. There, our Supreme Court stated, "Connecticut municipalities are statutorily immune from negligence liability resulting from the discretionary acts of their employees, officers and agents. An exception to this immunity exists — and municipalities are exposed to possible liability — when `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 . . .' Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). This appeal requires us to consider whether that exception applies to the facts of the present case. Specifically, we must decide whether the defendant town of Wethersfield (town) is exposed to liability for the allegedly negligent response of its employee, William Pitkin, to the unsuccessful attempt of the plaintiff, Jane Doe, to inform Pitkin that she had been sexually assaulted by another town employee, James Petersen, the named defendant." (Footnote omitted.) Doe v. Petersen, supra, 279 Conn. 609.
Pitkin was not named as a defendant in the plaintiff's complaint in Doe v. Petersen. See Doe v. Petersen, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 02 0820770 (November 30, 2004, Shapiro, J.), affirmed, Doe v. Petersen, supra, 279 Conn. 607. Rather, the Town of Wethersfield and Petersen were the defendants.
At the time the decision was rendered in the trial court, Pitkin was deceased.
Doe subsequently withdrew her complaint against Petersen, leaving the town as the remaining defendant. See id., 279 Conn. 611 n. 2.
The Supreme Court reiterated that General Statute § 52-557n "establishes the circumstances in which a municipality may be liable for damages." Id., 279 Conn. 614. It also reiterated that it has identified the three exceptions to discretionary act municipal immunity listed above. See id., 279 Conn. 615-16. As the plaintiff does here, the plaintiff in Doe v. Petersen, supra, "concede[d] that the `imminent harm' exception is the only relevant exception to discretionary act immunity. Our inquiry therefore focuses on the scope of this exception and whether it shields the town from liability for Pitkin's allegedly negligent actions. Discretionary act immunity is abrogated when 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 . . . By its own terms, this test 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 that harm." (Citation omitted.) Id., 279 Conn. 616. "To prevail, the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her. Demonstration of less than all of these criteria is insufficient." (Emphasis in original.) Id., 620.
Even though he was not named as a defendant, the Supreme Court proceeded to discuss, based on the facts in the record, whether the exception applied to Pitkin's conduct as a public officer of the town. "Because Pitkin never became aware of the alleged assault, it could not have been apparent to him that his response to the plaintiff's concerns would have been likely to subject her to a risk of harm. Pitkin's conduct therefore does not fall within the ambit of the `imminent harm' exception to discretionary act immunity." Id., 279 Conn. 620. Thus, the exception was found to be inapplicable since "the `apparentness' requirement," id., 619, was not met. The insufficiency was not due to the fact that, Pitkin, a public officer, had not been named as a defendant.
Here, while the amended complaint, paragraph 2, refers to the defendant as "the Town of Plainville because of the negligence of its agents and/or employees," no individual has been sued. However, the conduct of various employees, by name, has been alleged. For example, as noted above, in paragraphs 8m and 8n of the amended complaint, the plaintiff alleges that Dispatcher Theriault was not informed that the decedent was in the lock up and that the decedent posed a suicide risk. The plaintiff also alleges that the negligent conduct included failing to adequately monitor the decedent while he was alone in the cell. Costanzo's affidavit states, in paragraphs 5-7, and 13, that the video monitoring system was intended to allow those serving in the dispatch area to visually monitor prisoners. In the amended complaint, Exhibit A, the dispatchers were identified as Dispatchers Amy Brochu and Ingrid Theriault. Theriault's affidavit confirms that she was on duty, during the 11:00 p.m. to 7:00 a.m. shift, at the time when it was discovered that the decedent had committed suicide. See affidavit of Ingrid L. Theriault, ¶¶ 2-7. Brochu's affidavit confirms that Quilter asked her to keep an eye on the decedent while she was on duty during the preceding shift. See affidavit of Amy Brochu, ¶ 5.
Exhibit A is considered to be part of the amended complaint. "A complaint includes all exhibits attached thereto." Dlugokecki v. Viera, 98 Conn.App. 252, 258 n. 3 (2006). See Practice Book § 10-29(a).
The plaintiff also alleges that negligence occurred by failing to adequately follow up on the information which was obtained in the interview of the decedent. In Exhibit A to the amended complaint, Officer John Quilter is one of those named. Costanzo states, in his affidavit, paragraph 12, that the checklist of questions used in the interview was designed to assess a prisoner's mental state and to prevent prisoner suicides. In his affidavit, paragraphs 16-17, Quilter states that he interviewed the decedent and recorded his responses, and that he intended to elicit information concerning whether the decedent posed a danger to himself or to others. He concluded that the decedent did not present an imminent danger to himself. See affidavit of John Quilter, ¶ 21. Nevertheless, he states that he told Brochu that the decedent had talked about hurting himself and asked her to keep an eye on him. See affidavit of John Quilter, ¶¶ 31-32.
As the movant, it is Plainville's burden to show that there is no issue of material fact and that it is entitled to judgment as a matter of law. Its only contention as to the identifiable person/imminent harm exception is that it does not apply as a matter of law, since no individual municipal employee is a named defendant. In view of Doe v. Petersen, supra, the court is unpersuaded. Accordingly, since Plainville has not met its burden, its motion is denied.
CONCLUSION
For the foregoing reasons, the Town of Plainville's motion for summary judgment is denied. It is so ordered.