Summary
applying the objective reasonableness test set out in Graham v. Connor, 490 U.S. 386, 396-97, to determine whether an officer's use of force was justified under § 53a-22(b)
Summary of this case from Audley ex rel. A.M. v. Town of W. HartfordOpinion
166035336
07-17-2018
William DODGE v. Officer Scott VERILLO et al.
UNPUBLISHED OPINION
OPINION
Swienton, J.
The defendants, Officer Scott Verillo, Officer Eric Hanson, Officer Thomas Grimaldi, and city of Bristol (the defendants), move for summary judgment as to the plaintiff’s complaint dated February 1, 2018. The defendants argue that they are immune from liability and entitled to judgment as a matter of law because (1) the defendant officers’ use of force on the plaintiff did not constitute an assault and was justified; (2) the plaintiff’s claims are barred by the doctrine of governmental immunity; (3) the plaintiff’s claims for recklessness fail as a matter of law; (4) the plaintiff’s claim for negligent supervision fails as a matter of law; and (5) if the claims brought against the defendant officers fail as a matter of law, the indemnification claims brought against the city of Bristol would also fail.
I
FACTS AND PROCEDURAL HISTORY
This action arises from the plaintiff’s arrest for statutory violations of General Statutes § 14-227a, Operating under the Influence; § 53a-167a, Interfering with an Officer; and § 53a-167c, Attempt to Assault Public Safety Personnel. The arrest occurred on January 6, 2015.
The incident report of Officer Hanson submitted by the defendants indicated a blood alcohol results of .0789 and .072.
On February 2, 2017, the plaintiff, William Dodge, filed a thirteen-count amended complaint against the defendants, Officer Scott Verillo, Officer Eric Hanson, Officer Grimaldi, and the city of Bristol. Counts one through five are against Officer Verillo for intentional assault, negligence, negligent battery, recklessness, and intentional assault and battery. Counts six through ten are against Officer Hanson for claims that mirror those counts against Officer Verillo. Count eleven is against Officer Grimaldi for negligent supervision. Counts twelve and thirteen are against the city of Bristol for negligence under General Statutes § 52-557n and indemnification under General Statutes § 7-465.
The plaintiff alleges the following facts. On January 6, 2015, at approximately 6:14 p.m., the plaintiff was walking towards his residence, located at 17 Harrison Street in Bristol, Connecticut, when he was approached by Officer Verillo. Before entering his residence, the plaintiff was "forcefully pulled away from the front door and violently slammed in to the side of the police cruiser." (Complaint, count one, ¶ 8.) While he was pressed against the police cruiser, Officers Hanson and Verillo struck the plaintiff in the face, head, and in the back of the thigh, which caused him to suffer injuries and to lose his balance. The plaintiff was then thrown to the ground. (Id., ¶¶ 9-10.)
The plaintiff further alleges that while on the ground, Officer Hanson struck the plaintiff with his knees in order to secure the plaintiff’s hands, which were beneath the plaintiff’s stomach. The knee strikes were to the plaintiff’s rib cage and stomach area. (Id., ¶ 11.) The plaintiff alleges that this conduct was wilful, wanton, and malicious on the part of both Officers Verillo and Hanson.
The plaintiff makes a claim against Officer Thomas Grimaldi for negligent supervision. He alleges that Officer Grimaldi breached his duty to use reasonable care in the training and supervision of the officers within the city of Bristol’s police department in that he failed to have appropriate policies and procedures in place and that he knew of should have known of the violent propensities of the defendant officers. (Complaint, count eleven, ¶ 5.) The claims against the city of Bristol are predicated on the defendant officers’ liability.
On March 6, 2018, the defendants filed a motion for summary judgment on the grounds that the defendant officers’ use of force did not constitute assault and was justified under General Statutes § 53a-22, the plaintiff’s claims are barred by the doctrine of governmental immunity, the plaintiff’s claims for recklessness and negligent supervision fail as a matter of law, and the plaintiff’s claims pursuant to General Statutes § 7-465 are predicated on the defendant officers’ liability in counts one through three, five, six through ten, and eleven.
The defendants attached the affidavit of Officer Hanson, Officer Hanson’s Incident Report, the affidavit of Officer Verillo, Officer Verillo’s Incident Report, portions of the deposition of Officer Hanson, portions of the deposition of Officer Verillo, portions of the deposition of a witness, Steven Barkley, Barkley’s Statement, portions of the deposition of the plaintiff, the plaintiff’s Statement, and portions of the deposition of a witness, Megan Suchey.
In response, the plaintiff filed an objection on April 16, 2018, to which the defendants replied on April 25, 2018. The matter was heard at the short calendar on April 30, 2018.
The plaintiff attached four pages of the plaintiff’s deposition, portions of Officer Hanson’s deposition, the Bristol Police Department’s Use of Force policy, Officer Hanson’s Use of Force Report, and an unauthenticated newspaper article, which the court shall not consider. "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ... Practice Book § [17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ... [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Emphasis omitted; internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn . 915, 76 A.3d 628 (2013).
II
DISCUSSION
A. Summary Judgment
"Practice Book § 17-49 provides that summary 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
"In summary judgment, the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
"While [a party’s] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996). Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
"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.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) United States Bank, N.A. v. Foote, 151 Conn.App. 620, 636, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). "It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party, whether raised at oral argument or in written pleadings; such allegations must be supported by counter affidavits or other documentary submissions that controvert the evidence offered in support of summary judgment." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 178, 73 A.3d 742 (2013).
"Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ... A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014).
B. Counts One, Two, Three, Five, Six, Seven, Eight and Ten Officer Verillo and Officer Hanson
1. Use of Force
The defendant officers first argue that they are entitled to summary judgment as to counts one, two, three, five, six, seven, eight and ten on the grounds that there is no genuine issue of material fact that the officers’ use of force was reasonable and necessary under the circumstances to effect the arrest of the plaintiff.
The operative statute regarding the use of force by police is General Statutes § 53a-22, which provides in relevant part that "a peace officer ... is justified in using physical force upon another person when and to the extent that he or she reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense ... or (2) defend himself or herself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape ..." "The term offense means any crime or violation which constitutes a breach of any law of this state ... for which a sentence to a term of imprisonment or to a fine, or both, may be imposed except one that defines a motor vehicle violation or is deemed to be an infraction." (Emphasis in original; internal quotation marks omitted.) Odom v. Matteo, 772 F.Supp.2d 377, 387 n.3 (D.Conn. 2011), citing General Statutes § 53a-22(a). "A reasonable belief that a person has committed an offense is defined as a reasonable belief in facts or circumstances which if true would in law constitute an offense." (Internal quotation marks omitted.) Id., citing General Statutes § 53a-22(a).
"The question of whether the police officer was in fact acting in the performance of his official duties constitutes a factual [question] for the jury to determine on the basis of all the circumstances of the case and under appropriate instructions from the court." (Citation omitted; internal quotation marks omitted.) State v. Nelson, 144 Conn.App. 678, 694, 73 A.3d 811 (2013). "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." (Citations omitted; internal quotation marks omitted.) Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
Officers Hanson and Verillo were on routine patrol on the date of the incident when Officer Hanson observed the plaintiff’s truck pull out of the Gateway Café "at a high rate of speed." (Hanson Dep. 49:20.) Officer Verillo spotted the truck and observed the driver (later identified to be the plaintiff) to be speeding and driving erratically. Officer Hanson observed the plaintiff failing to stop at a stop sign, and drove up a one-way street in the wrong direction. (Hanson Dep. 49:1-53:21.) When the plaintiff pulled into his driveway and was exiting his vehicle, he noticed the police lights reflecting off of his garage door. (Dodge Dep. 46:24-47:1.)
Officer Hanson stopped and exited his cruiser before notifying dispatch. He was speaking to the plaintiff when Office Verillo pulled in behind him. (Hanson Incident Report.) The plaintiff was asked to provide his operator’s license, the plaintiff stated it was inside his home, and asked if he could go inside to retrieve it. (Hanson Dep. 56:12-20.) The plaintiff was told to remain in front of the cruiser, but instead Officer Hanson observed him running away from Officer Verillo towards his home. (Hanson Dep. 56:22-57:5.)
The plaintiff and the officers have different versions of what happened next. The plaintiff stated that when he reached the steps to his house he put both his hands up in the air "like the universal I-mean-no-harm-I-surrender type thing." (Dodge Dep. 48:20-22.) Dodge indicated that at that time the officer stated "you’re under arrest," and Dodge then stated "well, all I did was go down a one-way street and roll through the stop sign; aren’t those ticketable offenses. I said, so why would you arrest me. And he said, don’t worry about why you’re fucking getting arrested, and he punched me as hard as he could in the face." (Dodge Dep. 49:2-8.)
From there the altercation became more intense as well as disputed between the officers and the plaintiff. The defendant officers have the burden on summary judgment to demonstrate an absence of genuine issue of material fact as to the reasonableness of their use of force to effect the arrest of the plaintiff. There is a question as to whether the plaintiff was in fact "under arrest" prior to the strikes and blows delivered to the plaintiff.
The reply memorandum filed by the defendants indicate that the plaintiff was advised he was under arrest before much of the force the plaintiff complains of was used on him. However, the deposition transcripts of both officers indicate that after the initial strikes to the head and when the plaintiff was on all fours, Hanson called "Time out," and told everyone to stop moving. Hanson then "clearly told the plaintiff that he was under arrest, that the officers would not be letting him go, and instructed the plaintiff to stop fighting the officers before somebody got hurt." (Hanson Dep. 70:18-73:3; Verillo Dep. 118:18-119:8.)
The officers argue that they had probable cause to arrest the plaintiff for interfering with an officer and assault of public safety personnel. However, a question of fact exists as to whether he was under arrest prior to the strikes and blows delivered by the officers to the plaintiff; what he was in fact being arrested for prior to the altercation and whether these were offenses covered under General Statutes § 53a-22 or whether they were in fact motor vehicle violations not covered under § 53a-22. Given the discrepancy between the accounts by the plaintiff and the officers, it is unclear from the evidence whether and which officer was executing an arrest for the alleged motor vehicle violation or for the other offenses. The question of whether the officers’ use of force was reasonable is therefore one for the trier of fact and is inappropriate for resolution on summary judgment.
2. Governmental Immunity
The defendants argue that there is no genuine issue of material fact that the officers did not fail to follow any governing policy or procedure in effecting the arrest of the plaintiff, and their conduct at issue concerns discretionary activity as a matter of law.
"[T]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court ... [unless] there are unresolved factual issues ... properly left to the jury." (Internal quotation marks omitted.) Martinez v. New Haven, 328 Conn. 1, 8, 176 A.3d 531 (2018).
"Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ... there are cases [in which] it is apparent from the complaint ... [that the nature of the duty] ... turns on the character of the act or omission complained of in the complaint ... Accordingly, [when] it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Strycharz v. Cady, 323 Conn. 548, 556, 148 A.3d 1011 (2016).
"[W]here a question turns on the interpretation of a municipal ordinance or policy, it is inappropriate for a jury to decide." Ventura v. East Haven, 170 Conn.App. 388, 403, 154 A.3d 1020 (2017). Rather, "[a]s with any issue of statutory construction, the interpretation of a charter or municipal ordinance presents a question of law ..." (Internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 607, 881 A.2d 978 (2005).
In the present case, while there are factual disputes between the parties on the degree of resistance by the plaintiff, the essential allegations of the complaint are agreed upon. The plaintiff was stopped and, while attempting to go inside his residence, was stopped from doing so and brought back to a police cruiser, where a struggle for control of the plaintiff’s arms ensued. The question of law for the court to decide is whether the actions taken by the officers involved the exercise of their judgment in assessing the situation, according to the Bristol Police Department’s Use of Force Policy and § 53a-22. Both the policy and the statute justify the use of physical force when an officer reasonably believes it necessary in certain situations. This case necessarily relies on the court’s interpretation of that policy and statute, thus, an appropriate case for the court’s ruling on a motion for summary judgment.
General Statutes § 52-557n(a) provides in relevant part: "(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 ... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or implicitly granted by law."
"[Although] [a] municipality itself was generally immune from liability for its tortious acts at common law ... its employees faced the same personal tort liability as private individuals ... [A] municipal employee [however,] has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Citations omitted; internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
"The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 118, 19 A.3d 640 (2011).
"Discretionary acts are treated differently from ministerial 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 ... [D]iscretionary act immunity reflects a value judgment that- despite injury to a member of the public- the broader interest in having government officials 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." (Internal quotation marks omitted.) Hull v. Newtown, 327 Conn. 402, 408, 174 A.3d 174 (2017).
The Bristol police department’s Use of Force policy states that the authority of police officers to use force stems from § 53a-22. The policy states that "personnel will comply with applicable statutes, court decisions, and department policies related to the use of force." (Pl.’s Ex. 3.) The Use of Force Policy then cites to § 53a-22 for the allowance of the use of physical force in some circumstances. General Statutes § 53a-22 provides: "[A] peace officer ... is justified in using physical force upon another person when and to the extent that he or she reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense, unless he or she knows that the arrest or custody is unauthorized ..."
A municipal employee, such as a police officer, is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of discretionary acts. Mulligan v. Rioux, 229 Conn. 716, 727, 643 A.2d 1226 (1994). "Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer ... The policy behind discretionary act immunity for police officers is based on the desire to encourage police officers to use their discretion in the performance of their typical duties. 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." (Citation omitted; internal quotation marks omitted.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011).
From the statute, it is clear that there was a large degree of discretion and judgment needed on the part of the officers in order to assess the situation as to the necessary amount of force to be used. An officer must reasonably believe that a person is attempting to escape or that the officer (or a third party) will be subject to imminent use of physical force against them while making an arrest or preventing escape. According to the use of force policy, a reasonable belief must be "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The actions must be judged from the perspective of a reasonable officer, with consideration for the fact that officers must often make very fast decisions on what amount of force is necessary in a situation. This necessarily requires the use of a police officer’s judgment in evaluating the situation. Therefore, the court finds that the conduct of the defendant officers in this case falls within the category of a discretionary act.
Exceptions to Governmental Immunity
There are instances when a municipality is not granted governmental immunity, specifically in instances of a municipality’s discretionary act. "Liability for a municipality’s discretionary act is not precluded when (1) the alleged conduct involves malice, wantonness or intent to injury; (2) a statute provides for a cause of action against the municipality or municipal official for failure to enforce certain laws; or (3) the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject to an identifiable person to imminent harm ..." (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 434 n.13, 165 A.3d 148 (2017). See, e.g., Grady v. Somers, 294 Conn. 324, 356, 984 A.2d 684 (2009); Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006); Evon v. Andrews, supra, 211 Conn. 505. The plaintiff argues that the first and third exceptions apply to the present case.
a. Malice, Wantonness or Intent to Injury Exception
"In order to establish that the defendants’ conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one’s acts ... [Such conduct] is more than negligence, more than gross negligence ... It is such conduct as indicates a reckless disregard of the just rights or safety of others." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).
The plaintiff alleges that the actions of Officers Verillo and Hanson were intended to injure him. The complaint alleges that the officers acted maliciously, recklessly, wilfuly with deliberate indifference and/or with conscious disregard for the life, safety, health and wellbeing of the plaintiff. Complaint, counts four and nine, ¶ 17.
To support his allegation that the officers wished him harm, the plaintiff relies on his testimony found in his deposition testimony. In it, the plaintiff states that, "I looked up at [the officer] and he was trying to do me some serious, serious harm." (Dodge Dep. 51:6-7.) Moreover, the conduct of the officers as alleged in the complaint and supported by the deposition testimony submitted of the plaintiff is sufficient for a trier of fact to reasonably conclude that the officers’ conduct was reckless, wilful and/or malicious.
Accordingly, the plaintiff has sufficiently alleged an exception to governmental immunity.
b. Identifiable Person-Imminent Harm Exception
The court finds that sufficient evidence has been offered by the plaintiff for a jury to reasonably find that he was an identifiable person who was subjected to an imminent harm.
In order for the identifiable person exception to apply, there must be three requirements: (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. Texidor v. Thibideau, 163 Conn.App. 847, 857, 137 A.3d 765 (2016). All three must be proven in order for the exception to apply. Id.
"An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." Thivierge v. Witham, 150 Conn.App. 769, 779, 93 A.3d 608 (2014). "[U]nder our case law ... [courts] have interpreted the identifiable person element narrowly as it pertains to an injured party’s compulsion to be in the place at issue ..." Grady v. Somers, 294 Conn. 324, 356, 984 A.2d 684 (2009). "Our courts have applied the [third] exception 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." (Citation omitted; internal quotation marks omitted.) Merritt v. Bethel Police Dept., 120 Conn.App. 806, 812, 993 A.2d 1006 (2010).
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 objective, dependent on whether the circumstances would have made it apparent to a reasonable official that harm was imminent. Strycharz v. Cady, supra, 323 Conn. 589.
In the present case, the plaintiff argues that this exception is applicable. "Use of excessive force by a police officer in a situation which subjected a plaintiff to harm which was significant, foreseeable, and of limited duration has been found to raise an issue for a jury in connection with the identifiable person/imminent harm exception." (Internal quotation marks omitted.) Cohen v. Mortensen, Superior Court, judicial district of New Britain, Docket No. CV-12-6014762-S (September 4, 2013); see also Crawford v. New London, United States District Court, Docket No. 3:11cv1371 (JBA) (D.Conn. January 16, 2014). In Balogh v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-99-0067521-S (March 18, 2002) , the court found that, where police officers allegedly arrested the plaintiff without probable cause or adequate investigation and negligently injured her while handcuffing her and placing her in the patrol car, she was unquestionably an identifiable person with respect to the purported actions of the officers. In Balogh, the defendants’ actions were specifically directed toward the plaintiff and it was clear that any negligence in the performance of their duties would directly impact her. Likewise, in one District Court decision, the court held that an officer was not entitled to summary judgment as to the plaintiff’s claims of assault and battery and negligent infliction of emotional distress because it was undisputed that the officer "purposefully hit and swung his baton at plaintiff [who] was put at risk of imminent harm from [his] hits and baton swings." Raguz v. Walsh, United States District Court, Docket No. 09-1052 (TLM) (D.Conn. December 5, 2012).
Since the plaintiff was or would soon be in police custody he was an identifiable person; his presence was legally required and not voluntary. The plaintiff was then subject to imminent harm, arguably from his own noncompliance with the officers’ commands. There is sufficient evidence for a jury to reasonably find that the plaintiff was subjected to imminent harm. A jury could reasonably conclude that the plaintiff was not under arrest, that he was not interfering with the actions of the police officers, and excessive force was used when the officers struck the plaintiff. The defendants’ motion for summary judgment on the basis of the common-law doctrine of qualified immunity and the governmental immunity grounds in General Statutes § 52-557n(a)(2)(B) is denied.
Accordingly, the defendants have not met their burden of proof to show that there are no genuine issues of material fact as to the applicability of the identifiable person-imminent harm exception to governmental immunity.
C. Counts Four and Nine: Officer Verillo and Hanson Recklessness Claims
As earlier stated, there exists a genuine issue of material fact as to whether the conduct of Officers Hanson and Verillo rose to the level of recklessness. Sufficient evidence has been offered by the plaintiff for a jury to reasonably find that the officers acted wantonly and with a reckless disregard for the plaintiff’s rights in effecting the arrest. The plaintiff’s deposition testimony indicated that he believed that Officer Hanson meant to do him "serious, serious harm." He also stated that Officer Verillo cursed at him, grabbed him by the throat, shoved him against the police cruiser, and repeatedly punched him in the face. These facts, taken in the light most favorable to the plaintiff, indicate a genuine issue of material fact as to the level of the recklessness and disregard for the plaintiff’s health, safety and well-being. The motion for summary judgment as to counts four and nine is denied.
It is unclear why the defendants included in their memorandum of law in support of their motion for summary judgment the fact that the plaintiff is a former grand dragon for the Klu Klux Klan, and that he went to jail for five years. The court makes no inference as to whether these facts caused the plaintiff to fight with the officers, or whether these facts came into play in the officers’ action.
D. Count Eleven: Officer Grimaldi
Count eleven is against Officer Grimaldi for negligent supervision. The plaintiff alleges that Officer Grimaldi had a duty to use reasonable care in the training and supervision of the actions of Bristol police officers. Additionally, he argues that Officer Grimaldi "knew or should have known of the violent propensities" of the defendant officers and "taken steps to remove them ..." (Complaint, count eleven, ¶ 5.)
The defendants argue in their memorandum in support of their motion for summary judgment that there is no evidence that the defendant officers were negligently supervised, instructed, or trained. Additionally, they argue that there is no competent evidence provided by the plaintiff that either officer had violent propensities or that Officer Grimaldi was aware of those alleged propensities and failed to address them. Thus, they argue that the plaintiff’s claim is barred by the doctrine of governmental immunity.
The Supreme Court has held that "the great weight of authority [is] that the operation of the police department is a discretionary government function ..." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179-80, 544 A.2d 1185 (1988). See also Doe v. Nunes, Superior Court, judicial district of New Britain, Docket No. 463832 (April 15, 1995, Handy, J.) (granting motion to strike complaint that alleged negligent hiring, supervising, and firing of officer because actions are discretionary duties protected by governmental immunity).
"It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party, whether raised at oral argument or in written pleadings; such allegations must be supported by counter affidavits or other documentary submissions that controvert the evidence offered in support of summary judgment." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 178, 73 A.3d 742 (2013).
When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly decide[s] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
The defendant has shown through the affidavits of both Officers Verillo and Hanson that there is no genuine issue of material fact on the issue of training. Both Officers Verillo and Hanson attest in their affidavits that they were, at all relevant times and currently are, trained in accordance with the rules and regulations of the Connecticut Police Officer Standards and Training Council ("POSTC") and had received all training mandated by POSTC. (Hanson Aff. ¶ 5; Verillo Aff. ¶ 5.)
The plaintiff argues in his opposition that the evidence offered shows that Officer Hanson was either taught to perform excessively forceful arrests, not taught when force is appropriate, or that Officer Grimaldi was ignoring such propensities. But, there is no competent counterevidence or other affidavits provided by the plaintiff to show that there is a genuine issue of material fact as to the defendant officers’ training and supervision.
The plaintiff has failed to show that there are genuine issues of material fact as to the claim against Officer Grimaldi for negligent supervision.
E. Counts Twelve and Thirteen: City of Bristol
Counts twelve and thirteen against the city of Bristol are both derivative of the counts against Officers Verillo, Hanson, and Grimaldi.
Section 7-465 provides for indemnification of a municipal employee by the municipality and is applicable when an employee has breached a duty to the injured party. Section 7-465 is only applicable when the municipal employee himself is liable for damages. See Kostyal v. Cass, 163 Conn. 92, 97-98, 302 A.2d 121 (1972) ("[I]n no event may the municipality be held liable under it unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon ... [him] by law for physical damages to person or property. While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first-instance ...").
As the counts against Officers Verillo and Hanson would have to go to the fact-finder, the claims against the municipality are maintained.
Accordingly, counts twelve and thirteen against the city of Bristol survive the motion for summary judgment due to the underlying claims being maintained.
III
CONCLUSION
For the stated reasons, the defendants’ motion for summary judgment is denied as to counts one through ten, twelve and thirteen, and granted as to count eleven.