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applying Darnell , finding that there was a question of fact as to the plaintiff's medical indifference claim where the plaintiff "began to show signs of discomfort with crack residue coming out of the corner of his mouth. He was fainting, his speech became slurred, and he complained that he felt weak and his stomach hurt. Johnson told the officers that Wilson needed to go to the hospital," and the officers knew that the plaintiff had bags of cocaine in his mouth
Summary of this case from Boston v. Suffolk Cnty.Opinion
NNHCV106010876
04-19-2017
Janice Wilson v. City of New Haven et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Jon M. Alander, Judge of the Superior Court.
The plaintiff as executrix for the estate of Jibril Wilson has brought this action for damages against the city of New Haven, its chief of police, James M. Lewis, and six individual police officers, officer Q. Arthur, officer M. Helland, officer F. Ortiz, officer Hammil, officer Dixon and officer Bicki. The complaint alleges that the six police officers, acting in their individual capacities, negligently and intentionally failed to render medical treatment to Jibril Wilson, the plaintiff's decedent, resulting in his death. The complaint further alleges that the chief of police, acting in his individual capacity, and the city failed to adopt or enforce policies, practices and customs to require police officers to provide necessary life saving medical attention to arrested and seized individuals. The defendants have moved for summary judgment claiming that there is no genuine issue as to any material fact and that they are entitled to judgment on all counts of the complaint as a matter of law.
The individual police officers are not identified by their first names either in the summons or the complaint.
" Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). 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 such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575, 626 A.2d 1306 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158, 698 A.2d 938 (1997).
" It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence. If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks and citations omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06, 639 A.2d 507 (1994).
The plaintiff's second revised complaint consists of fifteen counts. At oral argument on the defendants' motion for summary judgment, the plaintiff stated that she was only proceeding on count one, which asserts against the individual officers a claim of unreasonable and excessive deadly force in violation of rights secured by 42 U.S.C. § 1983 and the fourth and fourteenth amendments; count two, which asserts against the individual officers a claim of failure to render medical assistance in violation of rights secured by 42 U.S.C. § 1983 and the fourth and fourteenth amendments; count nine, which asserts against the chief of police and the city a claim of inadequate policies and customs resulting in a deprivation of various rights secured by 42 U.S.C. § 1983 and the fourth and fourteenth amendments; and count ten, which asserts against the individual officers a claim of wrongful death in violation of General Statutes § 52-555. Accordingly, the remaining counts of the second revised complaint are deemed withdrawn.
The plaintiff's second revised complaint contains the following allegations. At approximately 11:23 p.m. on June 24, 2008, the plaintiff's decedent, Jibril Wilson, was a passenger in a vehicle occupied by two additional individuals. One or more of the defendant police officers stopped the vehicle and, at gunpoint, ordered all three occupants out of the vehicle. Jibril Wilson exited the vehicle and was choked by one of the officers in an attempt to retrieve four chewed, torn plastic bags containing cocaine from inside Wilson's mouth. Wilson was forced to the ground and left there while the police waited for employees of the New Haven Department of Public Works to arrive and search a nearby sewer for suspected contraband. Wilson began having seizures and was visibly distressed from the ingestion of cocaine. He also told the police officers that his stomach hurt and he was ill. At approximately 12:23 a.m., Wilson was transported to the New Haven police department and continued to complain that he was ill and needed medical attention. His pleas were ignored. At no time, did the police facilitate lifesaving medical treatment for Wilson. It was not until 1:30 a.m., after Wilson had suffered an additional seizure, that he was transported by ambulance to the hospital. At 12:09 p.m., Wilson died as a result of a cocaine overdose.
I
COUNT ONE: USE OF UNREASONABLE AND EXCESSIVE DEADLY PHYSICAL FORCE
The plaintiff alleges in count one of her complaint that the defendant individual police officers during their arrest of Wilson " choked Jibril Wilson, handcuffed him, pinned him to the ground, and held his face to the ground while he choked and seized." The plaintiff further alleges that the officers' actions were objectively unreasonable and taken with deliberate indifference resulting in injury and death to Jibril Wilson. The defendants contend that the plaintiff's claim of excessive force fails as a matter of law as the defendants' actions were objectively reasonable under the circumstances Construing the evidence presented in a light most favorable to the plaintiff, I find that the actions of the individual police officers during the arrest of Wilson were objectively reasonable.
The place to start with any excessive force analysis is the seminal case of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In Graham, the court held that a claim that law enforcement officials used excessive force in the course of making any arrest, investigatory stop, or seizure of a person is governed by the fourth amendment's " objective reasonableness" standard. Id., 388. " [T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id., 397. The analysis concerning excessive force requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Id., 396. Fourth amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion to effect it. Id. " The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." Id., 396-97.
In support of their motion for summary judgment, the defendants presented the affidavit of Officer Hammill. Hammill averred that Jibril Wilson exited the vehicle after it was stopped by the police, laid face down on the street and reached his arm down a sewer grate. Hammill grabbed Wilson and pulled him away from the sewer grate. Wilson was mumbling his words and appeared to have something in his mouth. When Hammill asked Wilson what he had in his mouth, Wilson did not answer. Hammill grabbed Wilson by his cheeks and instructed Wilson to spit out what was in his mouth. Wilson spit out four clear zip lock packets onto the ground. It is undisputed that the packets were seized and field tested positive for the presence of cocaine.
The only document submitted by the plaintiff in support of her claim that the defendants used excessive force during Wilson's arrest was a summary of an interview, apparently conducted by a private investigator, of Brittany Morgan, who allegedly witnessed Wilson's arrest. The summary of the interview states that Morgan said she observed a police officer holding Wilson's head up but when the officer let go of Wilson's head it would fall back to the ground. She also said that she " saw this cop pushing Jibril's head into the ground." The plaintiff failed to submit an affidavit from Morgan detailing what she claims to have observed. The interview summary is an uncertified document consisting entirely of hearsay statements. Assertions based on inadmissible hearsay are insufficient for purposes of opposing a motion for summary judgment. Jaiguay v. Vasquez, 287 Conn. 323, 363, 948 A.2d 955 (2008). It also fails to comply with the requirement that " only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Citations omitted.) City of New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005).
At oral argument on the defendants' motion for summary judgment, the plaintiff conceded that her excessive force claim rests solely on the statements of Brittany Morgan.
" The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence. Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof. 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 569, 636 A.2d 1377 (1994). When a party files a motion for summary judgment and there are no contradictory affidavits, the court properly decides the motion by looking only to the sufficiency of the movant's affidavits and other proof. Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995)." (Internal quotation marks omitted.) Barile v. Lenscrafters, Inc., 74 Conn.App. 283, 285, 811 A.2d 743 (2002).
In this case, the decedent's actions made him subject to arrest for possession of narcotics and interfering with an officer. It was objectively reasonable for Officer Hammill to believe that Wilson was concealing something in his mouth, possibly narcotics, and to take steps to ascertain whether it was contraband. He did so by grabbing Wilson's cheeks and instructing him to spit out the items in his mouth, which Wilson did. The defendant submitted no reliable or admissible evidence that any officer pinned Wilson to the ground and held his face to the ground while he choked and seized. Quite simply, the plaintiff has submitted no evidence that the officers engaged in excessive force of any kind. Under the totality of circumstances, the officer's actions were objectively reasonable and did not constitute excessive force.
II
COUNT TWO: FAILURE TO RENDER MEDICAL ASSISTANCE
In count two of her revised complaint, the plaintiff alleges that the defendant individual police officers refused to render medical assistance to Jibril Wilson in violation of the fourth and fourteenth amendments to the United States Constitution.
It is beyond dispute that the police violate the due process rights of an arrested individual by exhibiting deliberate indifference to the serious medical condition of the arrestee. " [T]he official custodian of a pretrial detainee may be found liable for violating the detainee's due process rights if the official denied treatment needed to remedy a serious medical condition and did so because of his deliberate indifference to that need." Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). " Deliberate indifference, in this context, may be shown by evidence that the official acted with reckless disregard for the substantial risk posed by the detainee's serious medical condition. Thus, in order to establish deliberate indifference, a plaintiff must show something more than mere negligence; but proof of intent is not required, for the deliberate-indifference standard is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." (Internal quotation marks and citations omitted.) Id.
Until recently, the standard to find an individual deliberately indifferent to the serious medical condition of a pretrial detainee under the fourteenth amendment was not entirely clear. It was uncertain whether a plaintiff must show subjective awareness of the condition on the part of the official or may rely on an objective standard. Mills v. Fenger, 216 Fed.Appx. 7, 10 (2d Cir. 2006). The United States Supreme Court's decision in Kingsley v. Hendrickson, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), has clarified that an objective standard applies to the determination of whether a government official was deliberately indifferent to an individual's fourteenth amendment rights. In Kingsley, the court faced the issue of whether " to prove an excessive force claim [under the Fourteenth Amendment], a pretrial detainee must show that the officers were subjectively aware that their use of force was unreasonable, or only that the officers' use of that force was objectively unreasonable." Id., 2470. Kingsley involved a pretrial detainee's allegations that prison officers, who had undisputedly deliberately used force against the detainee (by using a Taser to incapacitate him), had, in doing so, acted with excessive force. The court concluded that " a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." Id., 2472-73. The court observed that, " the defendant's state of mind is not a matter that a plaintiff is required to prove." Id., 2472. Lower courts have concluded that the holding of Kingsley extends beyond claims of excessive use of force and that deliberate indifference for due process purposes should be measured by an objective standard. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) and Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016). Accordingly, to show deliberate indifference in violation of the fourteenth amendment the plaintiff must meet an objective standard, that is, that the defendants recklessly failed to act in the face of an unjustifiably high risk of harm that was either known or so obvious that it should have been known to them. See Castro v. County of Los Angeles, supra, 833 F.3d 1071 (defining the objective standard as whether a reasonable officer in the circumstances would have appreciated the high degree of risk involved--making the consequences of the defendant's conduct obvious). The objective standard applies equally to due process claims of failure to provide medical assistance necessary to treat a serious medical condition. Lloyd v. City of New York, No. 1:14-CV-9968-GHW, 2017 WL 1207838, at *9 (S.D.N.Y. Mar. 31, 2017), and Campos v. Cty. of Kern, No. 114CV01099, 2017 WL 915294, at *7 (E.D.Cal. Mar. 7, 2017).
The standard under the eighth amendment to prove deliberate indifference for individual defendants is well established. It is a subjective standard. An official cannot be found liable under the eighth amendment " unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
Applying this standard to this case, there is a factual dispute which prevents the entry of summary judgment in favor of the defendants. The plaintiff has submitted an affidavit from Teejay Johnson, a passenger in the vehicle, which attests to the following. Jibril Wilson swallowed some bagged drugs upon exiting the vehicle. Jibril began to show signs of discomfort with crack residue coming out of the corner of his mouth. He was fainting, his speech became slurred, and he complained that he felt weak and his stomach hurt. Johnson told the officers that Wilson needed to go to the hospital. Given that it is undisputed that the officers knew that Jibril at one point had bags of cocaine in his mouth and that he died of a drug overdose, these facts arguably show that the officers recklessly failed to act in the face of a substantial risk of harm posed by the decedent's serious medical condition when that risk should have been obvious to them. While the defendants vigorously contest these factual claims and have submitted affidavits disputing each of them, it is an issue for the trier of fact at trial, not a court on a motion for summary judgment, to resolve.
The defendants further assert that they are entitled to qualified immunity with respect to the plaintiff's fourteenth amendment claim of deliberate indifference to medical needs. Government actors are entitled to qualified immunity " insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The principle of qualified immunity ensures " that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). " If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id., 202.
Examination of a qualified immunity claim involves a two-part inquiry: (1) whether the facts shown by the plaintiff establish a violation of a constitutional or statutory right and (2) whether that right was clearly established at the time of the defendant's alleged misconduct. Saucier v. Katz, supra, 533 U.S. 201. See also Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006). The defendants do not argue that they are entitled to qualified immunity because a pretrial detainee's right not to be recklessly denied treatment for a serious medical condition was not clearly established at the time these events transpired. It unquestionably was. See, e.g., Liscio v. Warren, 901 F.2d 274, 276-77 (2d.Cir. 1990). The defendants contend that the facts show that they were not deliberately indifferent to Wilson's medical needs because he exhibited no signs of distress. As noted previously, that fact is very much in dispute and precludes the entry of summary judgment.
III
COUNT NINE: INADEQUATE POLICIES AND CUSTOMS
In count nine of her revised complaint, the plaintiff alleges that the city, acting through the chief of police, had in effect " de facto policies, practices and customs exhibiting deliberate indifference to the constitutional rights" of the citizens of New Haven. While the plaintiff asserted a variety of claims in her revised complaint such as that the city failed to adopt and enforce policies and procedures or discipline and supervise police officers regarding adequately investigating a scene prior to employing deadly force, and conducting reasonable search and seizures; failed to discipline officers; and perpetuated " a code of silence" among police officers, the plaintiff failed to brief these claims in her opposition to the defendants' motion for summary judgment or argue these claims at the hearing. The only claim pursued by the plaintiff was the city's failure to adopt and enforce policies, procedures, practices and customs requiring police officers to provide appropriate medical assistance to arrested persons who ingested a dangerous amount of narcotics. Accordingly, all other claims are deemed abandoned.
The existence of an official municipal policy or custom can be demonstrated by establishing a deliberate government policy of failing to train or supervise its officers. City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Liability attaches " only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id., 388. The court noted that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation and further stated that: " It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury." Id., 389-90.
The United States Supreme Court recently revisited a municipality's liability based on a failure to train claim in Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). The court cited the deliberate indifference standard established in City of Canton, Ohio v. Harris, supra, and noted that " 'Deliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action. Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program." (Internal quotation marks and citations omitted.) Id., 61. The Supreme Court has defined deliberate indifference as " lying somewhere between the poles of negligence at one end and purpose or knowledge at the other" and it is " routinely equated . . . with recklessness." Farmer v. Brennan, supra, 511 U.S. 836.
A constitutional violation by a municipality based on a failure to train can be established two ways: (1) a showing of a pattern of similar constitutional violations by untrained employees, id., 62; or (2) the unconstitutional consequences of failing to train were " highly predictable" or " patently obvious, " id., 63. It is " ordinarily necessary" to show a pattern of similar constitutional violations by untrained employees, id., 62, but " in a narrow range of circumstances" a single incident may suffice, id., 63. The plaintiff has not offered evidence of a pattern of similar instances of New Haven police officers being deliberately indifferent to the serious medical needs of arrestees who ingest toxic amounts of narcotics. Rather, she appears to rely on a claim that it was patently obvious that a failure to provide such training would result in constitutional violations. I do not agree.
The plaintiff did submit a report from a law enforcement expert, Charles W. Drago, in which he states that, as of 2008, " it was commonly known practice among police officers for illegal drug dealers and drug abusers to hide drugs in various body cavities" including their mouths and to swallow drug baggies to avoid detection. Such a commonly known practice by drug dealers does not serve as a substitute for the showing of a pattern by untrained New Haven police officers of failing to render necessary medical assistance to detainees experiencing drug toxicity required to impose liability on the city of New Haven for its failure to train police officers.
It is common knowledge that an individual's ingestion of large amounts of cocaine can cause serious physical injury. In fact, the plaintiff offered portions of the deposition testimony of Officer Palmer and Officer Ortiz in which they both stated that, notwithstanding the lack of any training, they knew that the ingestion of significant amounts of cocaine could cause death. Consequently, it was not patently obvious to the city that a failure to train police officers regarding this fact would result in their failure to render or obtain necessary medical care for arrestees who it was known or obvious had ingested dangerous levels of narcotics. Accordingly, the plaintiff cannot establish that the city and the chief of police were deliberately indifferent to a need to provide training to police officers regarding the toxicity of ingesting large amounts of cocaine.
A viable claim of municipal liability would exist and appropriate training required were it shown that a pattern existed of New Haven police officers failing to provide medical assistance to detainees suffering medical distress from ingesting substantial amounts of narcotics.
IV
COUNT TEN: WRONGFUL DEATH IN VIOLATION OF GENERAL STATUTES § 52-555
In count ten, the plaintiff asserts against the individual officers a claim of wrongful death in violation of General Statutes § 52-555. The plaintiff alleges that the negligent conduct of the individual police officers, specifically, failing to render timely and necessary medical assistance, caused the death of Jibril Wilson. The defendants seek the entry of summary judgment on this count on the grounds that the claim is barred by the wrongful conduct doctrine and they are immune from liability.
General Statutes 52-555 provides in pertinent part: " Actions for injuries resulting in death. (a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses . . ."
The defendants first assert that the plaintiff's wrongful death claim is barred by the rule that it would violate public policy to impose a duty on the defendants to protect the decedent from injuries or death arising from the legal consequences of his illegal conduct, in this case, his voluntary ingestion of illegal narcotics. The defendants contend that the court in Greenwald v. Van Handel, 311 Conn. 370, 88 A.3d 467 (2014), recognized the " wrongful conduct" rule as applicable to tort claims. That rule provides that " a plaintiff cannot maintain a tort action for injuries that are sustained as the direct result of his or her knowing and intentional participation in a criminal act." Id., 377. The defendants argue that this rule bars recovery under the wrongful death statute because it is undisputed that the decedent's death was a direct result of his knowing and intentional ingestion of illegal narcotics.
In Greenwald, the sole issue before the court was " whether it would violate the public policy of this state to allow the plaintiff . . . to maintain a professional negligence action against the defendant . . . a licensed clinical social worker, on the basis of allegations that the defendant negligently failed to treat the plaintiff after he disclosed to the defendant that he had viewed child pornography." Id., 371-72. The court decided the precise issue before it and did not recognize a broad rule barring all plaintiffs from maintaining tort actions for injuries that are sustained as the direct result of their knowing and intentional participation in a criminal act. The court in Greenwald expressly stated that in reference to the wrongful conduct rule that " We conclude that it is unnecessary to adopt any broad rule or exceptions thereto because it clearly would violate public policy to impose a duty on the defendant in the present case to protect the plaintiff from injuries arising from his potential criminal prosecution for the illegal downloading, viewing and/or possession of child pornography." Id., 372.
Similar to the issue in Greenwald, the issue presented here is whether, based on public policy, the defendants had no duty to the plaintiff's decedent, when he was in police custody, to provide necessary medical treatment to him after he had ingested dangerous amounts of cocaine. The defendants argue that they had no duty to provide medical assistance to Wilson because he knowingly and intentionally engaged in a criminal act, that is, he ingested large amounts of cocaine to hide the cocaine from the police, and his death was a direct consequence of that criminal act. I do not agree.
The decedent did not possess the ability to obtain medical attention necessitated by his consumption of narcotics because he was in the custody of the police. For the same reason, neither his fellow travelers nor onlookers noticing his physical distress could transport him to the hospital or otherwise obtain medical attention for him. If the police did not have an obligation to procure medical assistance for him, because he was in their custody, no medical assistance would be provided and, given his condition, he would be left to die. That cannot be the public policy of this state. Since the decedent was in their custody and only they were in a position to obtain necessary medical help for him, the defendants had the duty to obtain such help notwithstanding the criminal behavior that led to his condition.
The individual defendants also contend that the wrongful death action is barred by governmental immunity. They argue that, since it is undisputed that their actions in deciding whether to provide medical assistance to the decedent involved discretionary acts, they are immune from liability. The plaintiff responds that immunity does not apply because it was apparent to the individual police officers that their failure to act would be likely to subject an identifiable person, specifically, Jibril Wilson, to imminent harm.
A municipality is liable for its discretionary acts 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). See also Doe v. Petersen, 2798 Conn. 607, 615-16, 903 A.2d 191 (2006). " 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." Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009). Failure to establish any of the three prongs is fatal to the plaintiff's claim that this exception to governmental immunity applies. Id. The ultimate determination of whether immunity applies is ordinarily a question of law for the court unless there are unresolved factual issues material to the applicability of the defense in which case the resolution of those factual issues is properly left to the jury. Mulligan v. Rioux, 229 Conn. 716, 736, 643 A.2d 1226 (1994).
The plaintiff asserts that the defendants negligently caused Jibril Wilson's death by failing to obtain medical assistance for him after arresting him. The decedent was unquestionably an identifiable person as it relates to the allegedly negligent actions of the defendants. Since Wilson was in police custody at the time, it was clear that any negligence in the performance of their duties by the arresting officers would directly impact him.
The critical issue in this case as it relates to the identifiable person/ imminent harm exception is whether the decedent was subject to imminent harm by the actions of the defendants. Our Supreme Court has recently modified its definition of the imminent harm requirement. In Haynes v. Middletown, 314 Conn. 303, 324, 101 A.3d 249 (2014), the court held that " the proper standard for determining whether a harm was imminent was whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." The test is not a subjective one, that is, whether the official possessed actual knowledge. Strycharz v. Cady, 323 Conn. 548, 589, 148 A.3d 1011 (2016). The applicable test is an objective one, whether the circumstances would have made it apparent to a reasonable official that harm was imminent. Id.
The plaintiff has presented evidence through the affidavit of Teejay Johnson that Wilson showed signs that he had ingested cocaine and needed immediate medical attention. These signs included crack residue coming out of the corner of his mouth, impaired speech and fainting. Wilson also allegedly told the officers that he felt ill. Johnson averred that he told the officers that Wilson needed to be taken to the hospital. These facts, together with the fact that officers knew that Wilson had previously hidden bags of cocaine in his mouth, place in issue whether it was apparent to a reasonable police officer that imminent harm would come to Wilson if medical assistance was not provided.
V
CONCLUSION
In light of the above, the defendants have shown that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law as to counts one and nine of the revised complaint. Accordingly, the defendants' motion for summary judgment is hereby granted as to those counts of the plaintiff's complaint. The defendants' motion for summary judgment as to counts two and ten of the plaintiff's revised complaint are hereby denied.