Opinion
No. CV 06-5003842
March 31, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT No. 124
This case arises out of a parade organized by the defendant, Freddy Fixer, Inc., in the city of New Haven. The plaintiffs assert that one of the participants in the parade, the apportionment defendant, Malvin Howard, Jr., lost control of his motorcycle and injured the plaintiffs who were watching the parade. The defendant, Freddy Fixer, Inc., moves for summary judgment on the counts of the plaintiffs' complaint directed to it. Freddy Fixer, Inc., asserts that it did not owe a duty of care to the plaintiffs due to its lack of control over the parade security pursuant to General Statutes § 7-284, or alternatively, in the event it did control the parade route, that its liability is precluded under General Statutes § 52-557f et seq. Finally, Freddy Fixer, Inc., contends that the plaintiffs cannot establish that their injuries were caused by its alleged negligence, without speculation or conjecture because of the superceding actions of the apportionment defendant Howard.
General Statutes § 52-102b provides in relevant part: "Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint." The return date of the original complaint was May 30, 2006. Freddy Fixer, Inc., the defendant/apportionment plaintiff, served its complaint on the apportionment defendant, Malvin Howard, Jr., on September 20, 2006. General Statutes § 52-102b(d) provides: "Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint." The plaintiffs did not assert any claims against Howard within the time period allowed under the statute.
FACTS
On May 16, 2004, during a parade sponsored by the defendant, Freddy Fixer, Inc. (Freddy Fixer), the plaintiffs, Ronald Walker, individually and as ppa for each of his minor children, Amy Walker and Patrick Millinghaus, Lyntina Cook, ppa Angelina Cook, Angelina Cook, Olevia Cook and Randy Wiggins allege they suffered various injuries when defendant Malvin Howard, Jr. (Howard), lost control of his motorcycle, allowing it to crash into them during the parade. In their sixteen-count complaint the plaintiffs allege that their injuries were caused by negligence on the part of both Freddy Fixer and the third defendant, the city of New Haven. As to counts one, three, five, seven and nine against Freddy Fixer, the plaintiffs claim that: (1) Freddy Fixer "failed to erect barriers between the spectators and the vehicles participating in the parade"; (2) did not "adequately supervise the parade participants to ensure that they operated their vehicles safely"; (3) did not "warn spectators about the lack of barriers and the risk that they could be harmed by a vehicle participating in the parade" and; (4) that Freddy Fixer "failed to have an adequate amount of security personnel monitoring the conduct of parade participants." Counts eleven, thirteen and fifteen, along with incorporating the claims from prior counts, also request medical expenses be paid for by Freddy Fixer. The remaining counts are against New Haven and will not be addressed.
On September 18, 2006, Freddy Fixer filed an answer and special defenses, including that the unforeseeable intentional and/or criminal actions taken by Howard were a superceding cause, and that unforeseeable tortious and/or criminal actions supercede any alleged tortious conduct by Freddy Fixer. On the same day, Freddy Fixer filed an apportionment complaint against Howard alleging he "entered the parade route without proper authorization from the parade officials," and was "not authorized" to participate. On November 13, 2006, the plaintiffs filed a reply in which they denied Freddy Fixer's special defenses.
On April 10, 2007, the plaintiffs filed a certificate of closed pleadings. On November 13, 2007, Freddy Fixer subsequently filed a motion for permission to file a motion for summary judgment, along with the motion for summary judgment as to all of the counts brought against it by all of the plaintiffs, the memorandum in support of the motion, and deposition transcripts. The court granted Freddy Fixer's motion for permission on December 10, 2007. Freddy Fixer contends that it is entitled to summary judgment in that, under General Statutes § 7-284, it did not have sufficient control over parade security to create a duty of care to the plaintiffs, or in the alternative, it is immune from liability under General Statutes § 52-557f et seq., and the plaintiffs cannot establish causation. On January 18, 2008, the plaintiffs filed a memorandum of law in opposition to Freddy Fixer's motion for summary judgment along with deposition transcripts and several documents. New Haven also filed an objection to Freddy Fixer's motion along with deposition excerpts in support of its objection. The court permitted Freddy Fixer to respond by filing a reply memorandum of law on February 1, 2008. Argument was had on February 4, 2008.
New Haven filed its own motion for permission to file a motion for summary judgment, along with the motion and memorandum of support of the motion on January 15, 2008.
DISCUSSION
"In 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 him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). "Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).
A.
Freddy Fixer first asserts that "it is entitled to summary judgment on the issue of legal duty because it did not have sufficient control over parade security as a matter of law to create a duty of care to the plaintiffs." It argues that the determination and implementation of necessary parade security was vested exclusively with the New Haven and Hamden police departments as a matter of law under § 7-284. The plaintiffs counter that Freddy Fixer owed them a duty of care because it had control over the event through its choice of parade participants and their activities, and it was "deeply involved in providing security for the parade" through the use of its security consultants and its volunteers. The plaintiffs assert that although § 7-284 imposes a duty on the police, it does not absolve private entities of duties they owe under the common law. In response, Freddy Fixer contends that the issue is not whether it had some control, but rather, "whether there is evidence that it had sufficient control over the particular conditions or security measures that the plaintiffs allege allowed Howard to cause them harm." It asserts that it had no authority over the placement of barriers, the allotment of police officers or where they were placed.
"[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . ."With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another . . . In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Citations omitted; emphasis in original; internal quotation marks omitted.) Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 525-26, 832 A.2d 1180 (2003).
Section 7-284 provides in relevant part: "Police protection at places of amusement. 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 or (2) the commanding officer of the state police troop having jurisdiction over the municipality in any municipality having a resident state trooper." (Emphasis added.)
This statute 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. Freddy Fixer fails to directly address the plaintiffs' allegations with regard to its alleged failure "to adequately supervise the parade participants to ensure that they operated their vehicles safely," or that it failed to "warn spectators about the lack of barriers and the risk that they could be harmed by a vehicle participating in the parade." It essentially claims that language of the statute places security within the sole and exclusive purview of the New Haven and Hamden Police Departments.
Nevertheless, it is evident from the discussion that follows, that Freddy Fixer did coordinate and communicate with the New Haven Police Department regarding parade participants. It is also evident that Freddy Fixer did supervise or control or attempted to control who entered the parade route, and it did instruct parade participants about the performance of motorcycle stunts.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . 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." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 228, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). "On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. Accordingly, [w]hen 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." (Citations omitted; internal quotation marks omitted.) Id., 229-30.
Nothing in § 7-284, or Freddy Fixer's evidence in support of its motion, supports the idea that the police are responsible for "supervising" the parade, in addition to their required security duties to provide "protection" for the parade itself General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Just as the police are not expected to "supervise" a boxing match by registering the boxers or refereeing the bout, there is no evidence offered by Freddy Fixer that the police are expected to "supervise" parade participants by checking who is a participant or by issuing instructions about how the participants are to perform in the parade. There is also nothing in the statute that would require the police to provide warnings to observers of the parade.
In his deposition, Larry Young, Freddy Fixer's president, said that he personally checked the list of riders against those who showed up on the day of the parade, and that he issued a verbal warning to motorcyclists to refrain from doing stunts. When asked about Howard and the group Howard joined up with at the parade called the Rough Riders, Young said they were "illegally trying to enter the parade . . . I, myself, stopped them and said `I have no form for you to fill out. I don't know who you are. You cannot enter the parade.'"
In his deposition, New Haven police department Captain Steven Verrelli, patrol commander for the entire uniform services division, stated that he did not know what process guaranteed that the people in a motorcycle group are actually members of the motorcycle group taking part in the parade. He explained that Freddy Fixer, not the police department, determines whether people lining up with a certain group are indeed members of that group. According to Verrelli, if Freddy Fixer chose to eliminate motorcycles from the parade route and not to allow motorcycles to be involved in the parade, it would be within Freddy Fixer's power to do so. Verrelli confirmed that Freddy Fixer dealt with applications submitted by groups that wanted to participate in the parade. When asked whether the police enforced traffic rules on the streets used for the parade, New Haven police officer Paul Kenney, stated in his deposition, "[f]rom what I've seen, not on the parade route." All of the evidence creates an issue of fact as to whether the police were in sole or exclusive control of "supervising" the parade participants. Freddy Fixer's president admits in his deposition that he acted in a supervisory role on the day of the accident.
Freddy Fixer also contends that Kolodziej v. Durham Agricultural Fair Ass'n., Inc., 96 Conn.App. 791, 797, 901 A.2d 1242, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006), supports its argument that it did not owe a duty to the plaintiffs. Such a contention is misguided because in that case, the Durham Agricultural Fair Association did not obtain the permit at issue. Instead, "[t]he state highway use permit [was] issued by the state traffic commission to the town of Durham to allow the use of certain state highways for the defendant's fair . . . The state highway use permit [was] not issued to the defendant." (Emphasis added.) Id. Thus Kolodziej is distinguishable from the present case because New Haven issued a permit directly to Freddy Fixer, that allowed the parade to take place directly on the streets and sidewalks where the accident occurred.
For the foregoing reasons Freddy Fixer is not entitled to summary judgment on the ground that it did not owe a legal duty to its spectators. A genuine issue of material fact remains as to whether Freddy Fixer had "control" over the parade, despite the provision of security by police.
B.
Freddy Fixer argues that if § 7-284 does not excuse it from owing a legal duty to parade spectators, it still has no liability because its activities fall within the Recreational Land Use Act (Act), General Statutes § 52-557f et seq. It contends that it was "an owner of the land at the time the injury occurred," and that it cannot be liable because it is a non-profit, non-governmental corporation that [used] the premises for recreational purposes." The plaintiffs counter that "there is an issue of fact as to whether the defendant is an entity that would enjoy immunity under the statute," that the legislative history of § 52-557g shows it was not meant to apply to "circumstances such as these," and it is an issue of fact as to whether the parade can be considered a "recreational purpose."
General Statutes § 52-557g provides in relevant part: "Liability of owner of land available to public for recreation; exceptions. (a) Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.
"(b) Except as provided in section 52-557h, an owner of land who, either directly or indirectly, invites or permits without charge, rent, fee or other commercial service any person to use the land, or part thereof, for recreational purposes does not thereby: (1) Make any representation that the premises are safe for any purpose; (2) confer upon the person who enters or uses the land for recreational purposes the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of the owner."
In determining whether Freddy Fixer can claim immunity pursuant to § 52-557g, it is important to look at General Statutes § 52-557f, the definitions section of the Act which provides in relevant part: "As used in sections 52-557f to 52-557i, inclusive: . . . (3) `Owner' means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises . . ."
Despite the fact that the city owned the land that was used for the parade, Freddy Fixer argues it was a private "owner" in "control" of the land at the time of the accident. In Conklin v. Woodcock Nature Center, Inc., Superior Court, judicial district of Danbury, Docket No. 319509 (April 15, 1997, Moraghan, J.), a hiker was injured on land that a nonprofit nature center had leased from the state. The court held that the nature center, as a private entity, was the "owner" of the land under General Statutes § 52-557f(3). Nevertheless, the element of "ownership" in Conklin v. Woodcock Nature Center, Inc., is distinguishable from Freddy Fixer's interest in the land during the parade because Freddy Fixer did not lease the streets and sidewalks from New Haven. Instead, New Haven issued a permit that allowed Freddy Fixer the right to hold a parade on the city's streets and sidewalks, with the inclusion of certain security measures by New Haven police officers. New Haven may have permitted Freddy Fixer to use the streets and sidewalks, but the police had the power to assert control over the streets and sidewalks used for the parade if they saw fit. While police officers said in their depositions that they chose not to intervene in certain situations, such as when someone did a "burnout," neither Verrelli or Kenney said anything about the police not having the ability to stop something if the need arose. In fact, they had to intervene after the accident to protect Howard from angry spectators' reactions to the accident. There is a genuine issue of material fact as to whether Freddy Fixer, despite its status as a permittee, can be considered the "owner" or "in control" of the parade area, and thus has a right to immunity from liability under § 52-557g.
The inquiry would not end even in the event Freddy Fixer can be considered an "owner" with a right to immunity under § 52-557g. Connecticut courts have not dealt with whether a parade can be considered a recreational activity under § 52-557f et seq. Section 52-557f provides in relevant part: "As used in sections 52-557f to 52-557i inclusive . . . (4) `Recreational purpose' includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning and viewing or enjoying historical, archaeological, scenic or scientific sites." Nevertheless, "the list of activities enumerated in § 52-557f(4) is not exclusive and is not limited to those activities listed. Recreational activities naturally arise from the desires and preferences of the person who is enticed away from the troubles and toil of the workaday world and who is drawn to the outdoors to partake of an activity that is pleasant for its own sake. Had the legislature intended to include as recreational purpose[s] only those activities enumerated in the statute and similar activities, and then only if conducted in an informal manner, it would have slighted the recreational preferences of a large portion of the population." (Internal quotation marks omitted.) Scrapchansky v. Plainfield, 226 Conn. 446, 457, 627 A.2d 1329 (1993).
Despite the breadth of activities § 52-557f(4) may apply to, courts look at the specific activity in each case to determine if it can be considered a recreational activity. For example, in Shopey v. Lupoli, Superior Court, judicial district of Litchfield, Docket No. CV 91 0055850 (April 20, 1994, Pickett, J.) (9 C.S.C.R. 516) [11 Conn. L. Rptr. 409], the trial court held that "as a matter of law . . . the viewing of a fireworks display is not a recreational activity according to the Recreational Use Statute. All of the activities listed in the statute, and as extended in Manning [v. Barenz, 221 Conn. 256, 603 A.2d 399 (1992), overruled on other grounds by Conway v. Wilton, 238 Conn. 653, 680 A.2d 242 (1996), cert. denied, 241 Conn. 919, 696 A.2d 986 (1997),] and Scrapchansky [v. Plainfield, supra, 226 Conn. 457,] involve the specific use of the land for the recreational activity itself or as the object of viewing or enjoyment. In this particular instance, however, the public park was being utilized by the plaintiffs only as a spectator point to view a man-made activity. The fireworks display, not the public land, was the object of the plaintiffs' viewing and enjoyment." Shopey v. Lupoli, supra, 9 C.S.C.R. 517.
Conway v. Wilton, 238 Conn. 653, 680 A.2d 242 (1996), cert. denied, 241 Conn. 919, 696 A.2d 986 (1997), removed the possibility that municipalities could argue they were immune from liability, under General Statutes § 52-557g, if they allowed their land to be used for recreational purposes under General Statutes § 52-557g. The change in law does not have an impact on the proposition that Shopey v. Lupoli, Superior Court, judicial district of Litchfield, Docket No. CV 91 0055850 (April 20, 1994, Pickett, J.) (9 C.S.C.R. 516), is being cited for.
Nevertheless, while the court in Shopey v. Lupoli, supra, 9 C.S.C.R. 517, held that watching fireworks was not a recreational activity, other trial courts have held that it is. "Ballentine's Law Dictionary, 3rd Ed., defines `Recreation' as `Amusement, play or other form of relaxation, by way of refreshment of mind or body.' The use of a public park to enjoy the spectacular beauty of a fireworks display would certainly appear to come within that definition." Caiazza v. Sheeley, Superior Court, judicial district of New Haven, Docket No. 301234 (October 14, 1992, Thompson, J.) (7 C.S.C.R. 1220, 1221) [7 Conn. L. Rptr. 819]. In Garcia v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. 010614 (January 30, 1992, Langenbach, J.) [5 Conn. L. Rptr. 553], the court held that flying a kite is within the definition of a recreational purpose.
As stated in the previous footnote, municipalities can no longer argue they are immune under General Statutes § 52-557g. The change in law does not impact the proposition Caiazza v. Sheeley, Superior Court, judicial district of New Haven, Docket No. 301234 (October 14, 1992, Thompson, J.) (7 C.S.C.R. 1220, 1221), is being cited for.
This court finds persuasive the reasoning utilized in Busa v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 25 1466 (June 7, 1994, Maiocco, J.) [11 Conn. L. Rptr. 591], because it involved an activity similar to watching a parade. The court held that "[w]hile watching a marching band festival may, in fact, entice a spectator away from the `troubles and toils of the workaday world,' based on the language of § 52-557f(4), it is questionable whether being a spectator at a band concert constitutes a recreational activity or purpose within the meaning of the statute. It must be noted that the activities specifically enumerated in the statute are activities of a physical, participatory nature, which are usually performed in the outdoors. In those cases where the courts have expanded on the list contained in § 52-557f(4), those activities recognized as being `recreational' likewise constitute physical, participatory, outdoor activities." Busa v. Bridgeport, supra, Superior Court, Docket No. CV 251466. The court in Busa cited a New Jersey case relating to a statute that is similar to § 52-557f(4). The court held that "the activities specifically enumerated by the Legislature are more physical than not; are of a nature for the most part typically requiring the outdoors; and are not on the whole `spectator sports,' but rather activities in which the individual using the land is himself involved." Villanova v. American Federation of Musicians, 123 N.J.Super. 57, 59, 301 A.2d 467, 469 (App.Div.), cert. denied, 63 N.J. 504, 308 A.2d 669 (1973). The court is not persuaded, as a matter of law that Freddy Fixer falls within the protective zone created by § 52-557f(4).
See N.J. Stat. § 2A:42A-3 and the definitions section, N.J. Stat. § 2A:42A-2.
C.
Finally, Freddy Fixer argues that it is entitled to summary judgment because "the plaintiffs cannot establish the requisite causation in fact." Freddy Fixer contends that "there is no evidence . . . from which the jury can infer, without speculation or conjecture, that the plaintiffs' injuries would not have occurred if Freddy Fixer had provided sufficient parade supervision and security . . ." The plaintiffs counter that causation is an issue for the jury and that Freddy Fixer is trying to "substitute its judgment for that of a jury."
"To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct." (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407 (2007). "Philosophically, cause in fact is limitless; `but for' the creation of this world, no crime or injury would ever have occurred . . . The philosophical sense of causation includes the `great number of events without which any happening would not have occurred . . . yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes . . .' Therefore, as a practical matter, limits must be established. Lines must be drawn determining how far down the causal continuum individuals will be held liable for the consequences of their actions." (Citations omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605-06, 662 A.2d 753 (1995). "Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion . . ." (Internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 214, 932 A.2d 401 (2007).
Freddy Fixer argues that "[b]arricades clearly were under the auspices of the New Haven Police Department, not Freddy Fixer." Nevertheless, Maurice Smith, Freddy Fixer's Secretary stated in his deposition that Freddy Fixer "work[s] with the city in [respect to security for the parade]. [T]here are meetings that are held annually to discuss the parade, the parade route, and the activities associated with the annual parade to give the police a better understanding of what would be required for security." When asked whether "the organizer or sponsor of the parade [could] request additional services if they want to beyond what the police department provides, in other words, extra police protection, additional barricades, that kind of thing," Captain Verrelli stated, "[t]hey could." Nevertheless, according to Verrelli there was no barricade at Harding Place and Dixwell, where he said the alleged accident occurred. When asked whether the police department creates the security "plan based on the information provided by Freddy Fixer," Verrelli said, "[t]hat's correct," although Freddy Fixer has no input into the creation of the plan.
The allegations of the complaint relating to the supervision of parade participants, warning parade spectators and the interactions between Freddy Fixer and the municipal defendant regarding the level of security and protection requested or required by the parade create genuine issues of material fact. These issues must be resolved by a jury.
CONCLUSION
For all of the above reasons the Freddy Fixer's motion for summary judgment is denied.
The Court