Opinion
No. CV 02-0820770 S
November 30, 2004
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This matter came before the court at short calendar on October 25, 2004 concerning a motion for summary judgment filed by defendant Town of Wethersfield (#157). For the reasons stated below, the motion is granted.
PROCEDURAL BACKGROUND AND FACTS
On May 25, 2004, the plaintiff, Jane Doe, filed a four-count amended complaint against defendants James Petersen and the Town of Wethersfield (#146). Doe alleges that in August 1976, when she was fifteen years old, she participated in a tennis instruction program offered by the Town. She alleges that Petersen was employed by the Town to conduct and supervise various recreational activities, including tennis. Doe alleges that, on a day in August 1976, after a thunderstorm canceled tennis lessons, Petersen offered to drive her home. She then alleges that, after he stopped the car, Petersen forced her to perform oral sex on him. Counts one (intentional assault), two (negligent infliction of emotional distress), and three (intentional infliction of emotional distress) arise from the alleged assault and are directed at Petersen.
Count four is asserted against the Town and is the subject of this motion for summary judgment. Doe alleges that, a few days after the alleged assault, she approached Petersen's supervisor, William Pitkin, then the Town's Director of the Parks and Recreation Department, now deceased, to speak with him about the incident. She stated that she needed to talk with him about something that had happened a couple of nights earlier between herself and Petersen. She told Pitkin that "the night of the big storm, they closed the park and he offered me a ride home, only he didn't take me home." Transcript of Doe Deposition, p. 226. She did not tell him that she had been sexually assaulted. Pitkin told Doe that it was "obviously a misunderstanding" and that she and Petersen should work it out. Transcript of Doe Deposition, p. 227. Doe made no further attempt to speak with Pitkin about the incident.
Doe asserts that her injuries and losses were the result of the Town's (and its employees, servants or agents) negligence and carelessness in the following ways: they knew or should have known of the improper conduct of Petersen, and/or the likelihood of such conduct, but failed to prevent such conduct or otherwise protect the plaintiff; they failed to adequately supervise Petersen; they failed to acknowledge, respond to or investigate Doe's report of Petersen's conduct; they failed to discipline Petersen or take other corrective action; they failed to propose, adopt and/or implement adequate policies and procedures regarding the circumstances under which employees such as Petersen could interact with minors; and they failed to provide a safe environment for the minor plaintiff when, in the exercise of reasonable care, they could and should have done so. See amended complaint, fourth count, ¶ 11.
On September 15, 2004, the Town filed a motion for summary judgment citing three separate grounds: governmental immunity, statute of limitations, and no triable issue of fact as to foreseeability. In support of its motion for summary judgment, the Town submitted excerpts of Doe's deposition testimony, excerpts of Petersen's deposition testimony, an excerpt of the deposition testimony of former Police Chief John Karangekis, Petersen's school records, Petersen's personnel file, and a copy of the amended complaint.
On October 13, 2004, Doe filed a memorandum in opposition to the Town's motion for summary judgment. In support of the memorandum, Doe submitted portions of her deposition testimony and the Town's responses and objections to Doe's supplemental interrogatories. On October 20, 2004, the Town submitted a reply to Doe's memorandum.
II STANDARD OF REVIEW
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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
"The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] 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 omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
III DISCUSSION A Governmental Immunity
The Town argues that all of their acts were discretionary and therefore any claim against them is barred by governmental immunity pursuant to C.G.S. § 52-557n(a)(2). The Town asserts that Doe is claiming that they were negligent in failing to anticipate, prevent, and investigate the alleged assault, all of which are discretionary actions. It also contends that Doe does not fall under any of the exceptions that abrogate governmental immunity involving discretionary acts, in that she does not qualify as an identifiable victim subject to imminent harm (a very narrow exception), that there is no statutory abrogation and that there is no showing of malicious or wanton behavior.
C.G.S. § 52-557n(a)(2) states: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct fraud, actual malice or wilful misconduct; or (B) negligent, acts or omissions which require the exercise of judgment or discretion as an official function of authority expressly or impliedly granted by law."
Doe counters by arguing that the acts of the Town were ministerial and therefore governmental immunity does not apply. She claims that there are material facts in dispute as to whether or not Pitkin's actions implicated a ministerial duty. Doe argues that when municipal employees assume the supervision of children enrolled in a town sponsored program, there exists no discretion with respect to whether or not to supervise the children to ensure their safety.
Doe also argues that the "liability of the Town pursuant to Section 52-557n for the negligence of its employees, including Petersen, to the extent that his conduct constituted a negligent assault as set forth in the Second Count of the Complaint, is set forth." See plaintiff's memorandum of law in opposition to motion for summary judgment, pp. 2-3. There, she states that she is claiming respondeat superior liability and cites General Statute § 52-577n(a)(1)(A).
General Statute § 52-557n(a)(1) provides, "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or properly 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."
Alternatively, Doe asserts that she was an identifiable victim subject to imminent harm and therefore the governmental immunity exception for such victims applies. Doe states that when she signed up for tennis lessons, she became a member of a discrete group of identifiable individuals to whom the town owed a duty of care. Further, Doe states that when she approached Pitkin to speak to him about the incident, she was an identifiable victim subject to harm as a direct result of Pitkin's inaction.
"The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Although historically [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [municipal] employees, faced the same personal tort liability as private individuals . . . Over the years, however, [t]he doctrine of [governmental] immunity has provided some exceptions to the general rule of tort liability for municipal employees . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted, internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 35-36, 818 A.2d 37 (2003).
"The hallmark of a discretionary act is that it requires the exercise of judgment." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . .; there are cases where it is apparent from the complaint." (Citation omitted.) Id. "In those instances where the language of a complaint is dispositive as to whether an act is discretionary or ministerial, it is because of the nature of the act alleged rather than the theory of liability relied upon." Id., 629-30. "Where the parties have clearly set forth the conduct that is claimed to be actionable, the characterization of conduct as proceeding from a ministerial or discretionary duty is a matter of law." Tracey v. Hill Associates Ltd., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 98 0166061 (December 24, 2002, Hodgson, J.), citing Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989).
Our Supreme Court "has approved the practice of deciding the issue of governmental immunity as a matter of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). Gordon, at 208 Conn. 165, cites Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982), upon which the plaintiff relies. See also Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982).
Doe contends that whether or not Pitkin's actions were discretionary or ministerial are questions of fact for the jury. She claims that it is the jury which should decide whether or not Petersen's supervision was adequate and whether or not Pitkin had a ministerial duty to investigate Doe's claims. Doe relies on Silver v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 98 0585357S (October 14, 1999, Fineberg, J.) to support her argument. That case, however, does not stand for the proposition that all acts by municipal employees who work with children in every capacity are ministerial as a matter of law. There, a child drowned when a group of children who were enrolled in a summer recreation program were brought to a pond and left unsupervised by municipal employees, despite the fact that the child was known to be unable to swim. The court noted that "[h]e was allowed to enter the pond although he was not able to take and pass a swim test." Id. The court ruled that a ministerial duty to supervise the children was created, since "it was not discretionary as to whether the decedent, who was a poor swimmer, should have been supervised at the pond." Id.
No such ministerial duty is alleged here. "[E]xtensive and near-unanimous precedent in Connecticut clearly demonstrates that the acts or omissions alleged in plaintiff's complaint — the failure to screen, hire, train, supervise, control and discipline — are discretionary acts as a matter of law." Hughes v. City of Hartford, 96 F.Sup.2d 114, 119 (D.Conn. 2000) (collecting cases). In Doe v. Board of Education, 76 Conn.App. 296, 300, 819 A.2d 289 (2003), where the plaintiff alleged that the defendant failed to provide a safe and secure educational environment for students, resulting in a sexual assault in a schoolroom, it was not disputed "that the duty allegedly breached in the present case, namely, the duty of the defendant to supervise students, is a discretionary, governmental duty." See Stiebitz v. Mahoney, 144 Conn. 443, 449, 134 A.2d 71 (1957) (police chief immune from liability for negligently hiring police officer who sexually assaulted two women; alleged conduct by police chief characterized as involving the "exercise of discretion.").
Doe argues that "Pitkin had a ministerial duty to determine what had occurred between plaintiff and Petersen." See plaintiff's memorandum of law in opposition to motion for summary judgment, p. 12. In the present case, Pitkin's actions were clearly discretionary. After hearing Doe state that Petersen "offered me a ride home, only he didn't take me home," Pitkin made a judgment that the situation sounded like a misunderstanding and told Doe to work it out with Petersen. This denotes the use of discretion in interpreting what Doe was telling him. His decision not to investigate the matter further was made based on his determination of the situation as a misunderstanding.
Connecticut courts have determined that a decision about whether to investigate is a discretionary act. Usually, such issues are addressed in the context of the operation of a police force. Doe reported the incident involving Petersen to Pitkin, who was the director of parks and recreation, and not a police officer. Here, the analogy is apt in view of the incident alleged and Pitkin's alleged failure to investigate her complaint, since the alleged failure to investigate by Pitkin is similar in nature to an alleged failure of a police officer to investigate upon receiving such information.
"[T]he operation of a police department is a discretionary governmental function." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 179. "The inherent governmental functions and duties of a police department are to field and receive complaints and information and then to act with discretion." Peters v. Town of Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95-0147192 S (January 2, 2001, D'Andrea, J.) ( 28 Conn. L. Rptr. 671). "The investigation of crimes and the decisions to make arrests for them is clearly a discretionary rather than a ministerial function." (Internal quotation marks omitted.) Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 00 0436800 (July 23, 2003, Arnold, J.), affirmed, 83 Conn.App. 903, 853 A.2d 650, cert. denied, 270 Conn. 917, 853 A.2d 531 (2004).
In commenting on our Supreme Court's decision in Shore v. Stonington, supra, the court in Brown v. Dooling, Superior Court, judicial district of Ansonia/Milford at Ansonia, Docket No. CV90 0032598S (January 23, 1998, Flynn, J.), observed, "[t]he Shore court recognized that, in matters of discretion or judgment, where society expects a municipal officer to exercise such discretion or judgment, so that the law is enforced with common sense rather than with the absolutism of a police state, `the public interest is [not] served by allowing a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman's discretionary professional duty. Such discretion is no discretion at all.' Shore, supra, 187 Conn. 157. This is particularly so where the second guessing is done on the basis of information or circumstances not known or obvious or readily visible to the police personnel . . . How far to investigate a complaint is a matter of police discretion and necessarily so. If the police were to employ exhaustive investigations in every complaint as a bureaucratic technique to avoid all future criticism or liability, the cost in intrusion on civil liberties would be intolerable in a free society."
The failure to investigate by a municipal employee has been characterized as a discretionary matter in the non-police context as well. In Tracey v. Hill Associates Ltd., supra, the plaintiffs alleged "that they called the police department and were referred to defendant Alvarado, who was director of the Livable City Initiative, in an effort to obtain compensation to repair the property and that Alvarado informed them that he would investigate the damaged property and get back to them. The plaintiffs allege that the City negligently demolished the building after defendant Alvarado's statement." (Citation omitted and internal quotation marks omitted.) Id. The court concluded, in granting summary judgment, "[t]he conduct in which Alvarado engaged that is at issue in the plaintiffs' claims is commenting to a member of the public, after receiving an inquiry about compensation, that he would investigate and report back. The plaintiffs have identified no statute, ordinance or other provision that required Alvarado to respond in a prescribed way, such that his conduct could be characterized as ministerial . . . His response was, rather, a discretionary matter." (Citations omitted.) Id. See also Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 32 18 79 (March 12, 1998, Nadeau, J.). There, police officers were called by family members to take their teenage son to the hospital after he attempted suicide by ingesting medications. Instead of doing so, they dropped him off at a local parking lot. He was later transported by ambulance to a hospital, where he died. The court noted that "no statute or rule of law prescribed how the officers were to act in responding to the call. The officers' acts were discretionary, not ministerial." Id. Here, likewise, the plaintiff has not identified a statute, ordinance, or other provision that required Pitkin, a municipal employee, to respond in a prescribed way.
Pitkin's decision not to investigate, based on his determination that the matter involved a misunderstanding, was a discretionary act. As discussed above, Connecticut decisional authority demonstrates that Petersen's supervision was also a discretionary matter. Therefore, as all of Pitkin's (and the Town's) actions were discretionary in nature, in order to abrogate governmental immunity, one of the three recognized exceptions must apply.
As noted above, Doe also argues that the Town is vicariously liable, on a claim based on respondeat superior, under General Statute § 52-557n(a)(1)(A), for Petersen's "negligent assault," as set forth in the second count. See plaintiff's memorandum of law in opposition to motion for summary judgment, pp. 2-3. While the court does not read the fourth count, which is the sole count alleged against the Town, to include this theory, the court addresses the issue since Doe raised it in opposition to the motion. In reply, the Town contends that any such claim is barred by General Statute § 52-557n(a)(2)(A), which, as noted above, provides "[e]xcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct."
Under the common law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment. See Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003); see also General Statute § 52-577n(a)(1)(A), quoted above. Here, Doe alleges a sexual assault by force by Petersen, a charge of criminal and wilful misconduct. See General Statute §§ 53a-70 (sexual assault) and 53a-65(2) (defining sexual intercourse to include oral sex). See also Pane v. City of Danbury, 267 Conn. 669, 685-86, 841 A.2d 684 (2004) (under Connecticut law, wilfulness is synonymous with intentional).
While the second count is based on a theory of the negligent infliction of emotional distress, it incorporates the allegations of the first count, including paragraph 8, in which Doe alleges that "Petersen forced the plaintiff to perform oral sex on him." The same paragraph is incorporated, as to the Town, in the fourth count. At oral argument, plaintiff's counsel reiterated that Doe "was coerced into this sexual act . . ." See transcript of oral argument on motion for summary judgment, October 25, 2004, p. 24.
Our Supreme Court has stated that the same conduct cannot reasonably be determined to have been both intentionally and negligently tortious. See American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 777, 607 A.2d 418 (1992). In affirming the trial court's decision granting summary judgment based on an intentional acts exclusion in an insurance policy, our Supreme Court in DaCruz v. State Farm and Casualty Co., 268 Conn. 675, 693, 846 A.2d 849 (2004), stated, "[I]ntentional conduct and negligent conduct, although differing only by a matter of degree . . . are separate and mutually exclusive . . . Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear . . . In the present case, the nature of the conduct at issue is not in doubt." (Citations omitted; internal quotation marks omitted.)
Our Appellate Court, in Mullen v. Horton, 46 Conn.App. 759, 767-68, 700 A.2d 1377 (1997), recently discussed its earlier decision in Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988), noting that, since "there were no facts before the court from which it could conclude that [the employee] was furthering the defendant's interests, the defendant's nonliability under a respondeat superior theory was properly determined as a matter . . . In Gutierrez, . . . a trier of fact could not reasonably have determined that the employee's brutal rape of the retarded plaintiff in her shower was merely a negligent or misguided attempt at supervising her shopping, cleaning, budgeting and daily living. A trier of fact could not reasonably have determined that the employee's rape of the retarded plaintiff constituted merely an extreme, unauthorized and disobedient method of supervising her daily living. Rather, the employee's brutal sexual assault of the plaintiff was clearly an abandonment of his supervising duties." (Citation omitted.) Mullen v. Horton, supra, 46 Conn.App. 768.
Here, the evidence is not in dispute as to the nature of the sexual assault which is alleged. Doe's allegation of an intentional sexual assault by Petersen is an allegation of conduct for which § 52-557n(a)(2)(A) provides governmental immunity to the Town.
B Identifiable Victim/Imminent Harm Exception
The only governmental immunity exception relevant to the negligence claims made against the Town in the fourth count is the identifiable victim/imminent harm exception. This exception permits "a tort action in circumstances of likely imminent harm to an identifiable person. We have construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 108, 708 A.2d 937 (1998). "[T]he `discrete person/imminent harm' exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." (Emphasis in original; internal quotation marks omitted.) Id., 122. The Supreme Court has stated that "[t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Internal quotation marks omitted.) Id., 124. "The doctrine of governmental immunity implicitly recognizes that municipalities provide for a virtually limitless array of services, each of which involves discretionary decision making. Governmental immunity allows decisions to be made by public officials without the debilitating concern that an honest mistake, made despite the exercise of good faith, will subject the municipality or the official to liability." Id., 124.
Doe argues that when she signed up for tennis lessons with the Town, she became a member of a discrete and identifiable group of individuals who would be participating in a town-sponsored program for a limited period of time and in a specific geographic area and to whom the Town owed a duty of care. She argues that the Town breached that duty because it did not supervise Petersen sufficiently. Doe relies on Purzycki v. Fairfield, supra, 244 Conn. 101, which found that because the potential for danger in a school setting was limited in time and geographical area, the students were identifiable victims. She also states that when she approached Pitkin, she was an identifiable victim who was in danger of imminent harm.
There have been several Supreme Court cases regarding the identifiable person/imminent harm distinction. In Shore v. Stonington, supra, 187 Conn. 147, the Supreme Court affirmed summary judgment in favor of Stonington, ruling that a police officer who had stopped an intoxicated driver and allowed him to proceed after issuing him a warning, was not liable for the resulting accident and death that driver caused because the officer had no reason to know that his failure to arrest that driver was going to subject an identifiable person to imminent harm. Similarly, in Evon v. Andrews, supra, 211 Conn. 501, where the decedents of the victims of an apartment fire sued the municipality for failure to enforce the building codes and statutes, the court stated that the threat of fire includes a wide range of factors that may happen at some unspecified time in the future.
The Supreme Court also has applied the identifiable person/imminent harm exception to cases involving school children. In Purzycki v. Fairfield, supra, 244 Conn. 101, children who were left unsupervised in one hallway for a half hour each day as they passed from the lunch room to recess were found to be identifiable victims in danger of imminent harm as the undisputed facts stated that unsupervised children tend to engage in dangerous activity. In Burns v. Board of Education, 228 Conn. 640, CT Page 18287 638 A.2d 1 (1994), the court held that students walking on an icy school courtyard were subjected to a temporary danger, limited in duration, and therefore qualified for the exception.
In both Purzycki v. Fairfield and Burns v. Board of Education, the potential danger was strictly limited in both duration and geography. The present case does not present an analogous situation. In Purzycki, the children were unsupervised for one half hour in a single hallway; in Burns, icy conditions on one courtyard were left unattended during school hours, while children were required to attend. Here, Doe was taking lessons over several weeks and was attending those lessons in a public park.
In support of her argument as to the applicability of the exception, Doe again relies on Silver v. West Hartford, supra. There, the court was addressing an outing of limited duration, where the decedent "was allowed to enter water that was too deep for his swimming abilities without proper and adequate supervision," making him "a foreseeable victim subject to the imminent harm of drowning." Id. Here, the facts do not reflect some similar characteristics which made Doe identifiable as such a foreseeable victim.
Rather, the present case is analogous to Doe v. Board of Education, supra, 76 Conn.App. 296, where the Appellate Court found that a student sexually assaulted in an unsupervised classroom by fellow students was not an identifiable victim subject to imminent harm because the danger was not confined to a specific enough time and place. The assault could have happened at "any time that students traveled without permission to any unsupervised areas of the school. Under the facts alleged, therefore, it would not have been apparent to the defendant that its discretionary policy decisions subjected students to imminent harm." (Footnote omitted.) Id., 305. Likewise, Doe's assault could have happened at any time she came to the park, in any area of the park, or elsewhere. No temporary hazardous condition is alleged. In advance of the assault, there was no way to single out Doe as either a particular individual or as a member of a particular class of persons subject to imminent harm.
Doe's reliance on Tryon v. Town of North Branford, 58 Conn.App. 702, 755 A.2d 317 (2000), in support of her argument that she was an identifiable victim when she approached and spoke to Pitkin, is unavailing. There, in a case involving a firefighter who was temporarily present in a parade staging area when she was bitten by a dog, causing her to lose part of her nose, the court reiterated that "[a]n individual may be `identifiable' for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition." Id., 710. "The plaintiff was not a member of the general public attending a parade but a firefighter in uniform in the staging area one block away from the site of the parade when the dog bit her." Id. The plaintiff alleged that she became an identifiable victim because another firefighter "knew that she was petting his dog and she was in close proximity to the dog's teeth." (Internal quotation marks omitted.) Id., 712. Again, here, when Doe spoke to Pitkin, no such imminent harm relating to a "limited temporal and geographical zone, involving a temporary condition" was presented. See id.
When Doe approached Pitkin, she stated that she needed to speak with him about something that happened a few nights earlier between herself and Petersen. Her statement indicated an incident that had already occurred. No information was communicated indicating that she was an identifiable victim in danger of imminent future harm when she referred to a past event and did not fully elaborate on the situation.
At oral argument, Doe characterized a statement by Petersen to her, made after the assault, as a threat. In her deposition testimony, which she cited in her memorandum of law in opposition to motion for summary judgment, p. 12, she twice stated that Petersen did not threaten her. She testified, "He didn't threaten me. He just said, `No one will believe you if you tell them.' "Transcript of Doe Deposition, p. 87. Her counsel argued that "the threat was no one is going to believe you." See transcript of oral argument on motion for summary judgment, October 25, 2004, p. 31. This statement was not communicated to Pitkin. As with Doe's statement about the incident to Pitkin, it was unrelated to any limited temporal and geographical zone, and to any temporary condition.
Thus, assuming, as Doe argues, that Pitkin's conduct subjected her to an exacerbation of the harm which she had suffered as a result of the incident with Petersen, the exception does not apply. There is no evidence on which a jury reasonably could find "a foreseeably dangerous condition that was limited in duration and geographical scope." Purzycki v. Fairfield, supra, 244 Conn. 110.
Under these circumstances, as a matter of law, the identifiable victim/imminent harm exception does not apply. Governmental immunity has not been abrogated. Therefore, the claims against the Town are barred. In view of this determination, the statute of limitations and foreseeability arguments need not be addressed by the court.
CONCLUSION CT Page 18289
There is no genuine issue as to any material fact. The Town is entitled to judgment as a matter of law as there has been no abrogation of governmental immunity for its discretionary acts. The Town's motion for summary judgment is granted. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT