Opinion
HHDCV126028774S
08-26-2016
Angela Jones, Administrator of the Estate of Aaron D. Robinson v. City of Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (#127 & #128)
Cesar A. Noble, J.
This case comes before the court on the defendants' motions for summary judgment on the grounds that there are no genuine issues of material fact and the defendants are entitled to judgment as a matter of law because the defendants owed no legal duty to the decedent, even assuming that a duty could be found, the defendants did not breach that duty, any alleged actions and/or omissions were not the legal cause of the decedent's injuries, and the claims are barred by governmental immunity. For the reasons set forth below, the defendants' motions for summary judgment are granted as to counts four and five, and denied as to counts one, two, three, six, and seven.
There are currently two motions for summary judgment before this court: the detectives' motion for summary judgment (Docket Entry #127), and the City of Hartford and Chief Daryl Roberts' motion for summary judgment (Docket Entry #128).
I
FACTS AND PROCEDURAL HISTORY
On January 31, 2012, the plaintiff, Angela Jones, Administrator of the Estate of Aaron D. Robinson, filed a seven-count complaint against the defendants, City of Hartford, Hartford Police Chief Daryl K. Roberts, Detective Gary Hudson, Detective Steven Pepler, Detective Abhilash Pillai, and Detective William Rivera. The detectives filed an answer and special defenses on February 23, 2012, and the City and Chief Roberts filed an answer and special defenses on April 2, 2012. The plaintiff alleges the following facts.
The complaint is dated December 14, 2012.
On December 21, 2009, at around 7:00 p.m., Detectives Pepler, Hudson, and Pillai, along with other members of the Hartford Police Department, went to 195 Sigourney Street in Hartford, to investigate a complaint that certain individuals were engaged in allegedly illegal activity. After entering the building, certain individuals, including the decedent, Aaron Robinson, started to run and the detectives went after them to make arrests. When Detective Hudson went to apprehend Robinson, his jacket was pulled off leaving him shirtless, with Detective Pillai chasing him out of the building. Robinson was subsequently apprehended at 244 Collins Street when he collapsed in a snow bank. After collapsing, Robinson repeatedly stated out loud, " I can't breathe." Robinson was placed in handcuffs and returned to 195 Sigourney Street, where he was made to sit on a staircase landing with other apprehended suspects.
The plaintiff alleges that at the time of the arrest, the air temperature was approximately 25 degrees Fahrenheit, with a wind chill factor of 19 degrees Fahrenheit.
While sitting on the staircase landing, Robinson repeatedly spoke out loud that " he could not breathe." During the course of his arrest, Robinson had been hit on the head by Detective Pillai and was bleeding due to this injury. At some point subsequent, Detective Pepler called for an ambulance. After the ambulance arrived, CPR was administered, however Robinson had already expired, was without a pulse and apneic, in asystole and despite attempts at resuscitation being administered throughout the ambulance transport, there was no return of pulses. Robinson's cause of death was asthma/cardiac arrest.
The detectives' memorandum of law states certain facts differently from the plaintiff's complaint. The detectives allege that Officer Christopher Reeder and Detective Pepler asked Robinson several times if he wanted them to call an ambulance and Robinson responded that he was " okay." While waiting in the stairwell, Detective Pepler saw a slight cut above Robinson's left eye, so he asked if he wanted to go to the hospital, to which Robinson responded that he did not. Moreover, Detective Pillai heard Detective Pepler asking Robinson several times if he wanted to go to the hospital. At approximately 7:25 p.m. Detective Pepler heard Robinson say that he felt a little " woozy" so Detective Pepler asked again if he wanted to go to the hospital and this time Robinson stated that he did. Detective Pepler immediately radioed dispatch for an ambulance and the ambulance arrived at 7:34 p.m.
Officer Reeder is not a party to this action.
The plaintiff alleges that the defendants were under a duty to exercise reasonable care to keep Robinson safe from harm while he was in their custody, to render emergency medical care as necessary to protect him from injury or death, and to assist him when he could not breathe, as he stated out loud " I can't breathe, " several times. The plaintiff claims that Robinson's death was caused by the negligence and carelessness of the defendants. The plaintiff further alleges that Chief Roberts, acting in the performance of his duties and within the scope of his employment under the direction and control of the City of Hartford, was negligent in one or more of the following ways: (a) by failing to provide for the proper supervision of the detectives at the scene; (b) by failing to provide proper and/or sufficient training to said detectives as to the proper response, procedures and methods of apprehension and arrest and provision of medical treatment to injured persons, including the decedent; (c) by failing to enact and/or enforce proper police department guidelines, regulations, rules and procedures for officers to follow with respect to apprehension, arrest, medical treatment of injured persons, including the decedent, and investigation of complaints arising out of the actions of police officers; and (d) by failing to provide medical attention and responding to the decedent with respect thereto.
On June 1, 2016, the detectives filed a motion for summary judgment on the grounds that they owed no legal duty to the decedent, even assuming that a duty could be found they did not breach that duty, any alleged actions and/or omissions were not the legal cause of the decedent's injuries, and the claims are barred by governmental immunity. The motion is accompanied by a memorandum of law and the following exhibits: (A) an affidavit of Steven Pepler; (B) an affidavit of Gary Hudson; (C) an affidavit of Abhilash Pillai; (D) an affidavit of Christopher Reeder; (E) an affidavit of William Rivera; and (F) a copy of the Medical Examiner's Report.
On the same day, the City of Hartford and Chief Roberts filed a motion for summary judgment joining the detectives on the grounds that they are protected from liability under the state common law and statutory protections afforded by the doctrine of governmental immunity. The motion is accompanied by a memorandum of law and the following exhibits: (A) an affidavit of Omayra Martinez-Brady and (A-1) Training Trakkers for William Rivera, Abhilash Pillal, Steven Pepler, and Gary Hudson; and (B) an affidavit of Daryl K. Roberts and (B-1) Training Trakker for Daryl Roberts. On July 19, 2016, the plaintiff filed objections as to each, accompanied by memorandums of law and the following exhibits: (A) an excerpt of deposition testimony of Pauline Nelson; (B) an excerpt of deposition testimony of Jerome Hall; (C) an excerpt of deposition testimony of Jamar Hill; (D) an excerpt of deposition testimony of Jasmine Jones; (E) AMR Ambulance Record; (F) Hartford Police Incident Report; (G) Saint Francis Hospital and Medical Center Records; and (H) a copy of the Medical Examiner's Report. The detectives filed a reply on July 27, 2016. This matter was heard at short calendar on August 8, 2016.
II
STANDARD
" 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
III
DISCUSSION
The detectives argue that there are no genuine issues of material fact and the detectives are entitled to judgment as a matter of law because the detectives owed no legal duty to the decedent, assuming a duty could be found the defendants did not breach that duty, any alleged actions and/or omissions were not the legal cause of the decedent's injuries, and the claims are barred by governmental immunity. The City and Chief Roberts argue that the plaintiff fails to state a claim upon which relief may be granted and there is no genuine issue of material fact that the City and Chief Roberts are entitled to summary judgment as a matter of law because they are protected from liability by the protections afforded by the doctrine of governmental immunity under the state common and statutory law. The plaintiff counters that a genuine issue of material fact exists as to whether the defendants heard the decedent say he could not breathe and subsequently failed to seek medical attention in a timely manner for Aaron Robinson.
A
Count One: Negligence of Detective Gary Hudson
" The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . 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. 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 . . . Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society." (Citation omitted; internal quotation marks omitted.) Odom v. Matteo, 772 F.Supp.2d 377, 393 (D.Conn. 2011).
" Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer." (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). " When a municipal employee's actions are discretionary in nature, governmental immunity attaches unless one of the following three exceptions applies. First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. Third, liability may be imposed 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 . . ." (Internal quotation marks omitted.) Odom v. Matteo, supra, 772 F.Supp.2d 393-94.
In the present case, the plaintiff has conceded that rendering or not rendering medical assistance to Robinson, while he was in custody, would be a discretionary act while performing a governmental function. See Plaintiff's Memorandum in Support of Objection, Docket Entry #132, p. 17. The plaintiff argues, however, that the identifiable victim-imminent harm exception applies and the court agrees. The detectives are not entitled to qualified immunity at this stage because the plaintiff has produced evidence which would bring the detectives' actions within the scope of this exception.
While all the detectives' affidavits state that they did not hear Robinson say he could not breathe and never were in a position to hear him make those statements, the plaintiff has produced affidavits to the contrary. Pauline Nelson stated at her deposition that Robinson said he needed help and he couldn't breathe. When asked what else he said, she stated: " That was it. He was out of breath. It was like he was hyperventilating. He was just rocking back and forth. He was like, I need help. I can't breathe." Plaintiff's Exhibit A, Docket Entry #133, p. 3. Jerome Hall stated at his deposition that when he walked by Robinson, he saw him foaming at the mouth, he had blood coming down his face, and " [h]e kept saying he couldn't breathe." Plaintiff's Exhibit B, Docket Entry #133, p. 7-8. Most notably, Jamar Hill stated at his deposition that Robinson said to the police that he couldn't breathe. When asked what the police said in response, Hill stated: " They--if I'm correct, they didn't really it was like--it didn't seem like they believed him." When asked whether Hill believed Robinson, Hill stated: " You could see that he couldn't breathe . . . Like he was gasping." Hill was next asked whether he said that to the police officers just once or more than once and Hill stated: " No. He said it more than once . . . He said it twice. Q: And what did the police officers do after he said it the second time? A: Nothing that I'm aware of." Plaintiff's Exhibit C, Docket Entry #133, p. 13-14.
This deposition evidence creates a genuine issue of material fact as to whether the harm was apparent because it rebuts the statements made by the detectives in their affidavits. The detectives argue in their reply brief that none of the above deposition testimony indicated that the detectives were present or in close proximity to Robinson when he made those statements. Whether the detectives were in fact present and in close proximity to Robinson and whether they should have heard Robinson make these statements, are issues for the trier of fact to decide.
The detectives' direct dealings with Robinson qualify him as an identifiable victim, and based on the sworn statements provided in the affidavits supplied by the plaintiff, could demonstrate that the failure to act to reasonably seek medical care was negligent and likely to subject Robinson to imminent harm. A genuine issue of material fact exists at this time, specifically, whether the harm was apparent to the detectives. The detectives' entitlement to governmental immunity must await a fully developed factual record and cannot be determined as a matter of law at this stage in the proceedings. The detectives' motion for summary judgment is denied as to count one.
B
Count Two: Negligence of Detective Steven Pepler
For the same reasons provided in section III, subsection A above, the detectives' motion for summary judgment is denied as to count two.
C
Count Three: Negligence of Detective Abhilash Pillai
For the same reasons provided in section III, subsection A above, the detectives' motion for summary judgment is denied as to count three.
D
Count Four: Negligence of Detective William Rivera
Detective Rivera has supplied an affidavit stating that on December 21, 2009, he was on administrative duty and was therefore not permitted to be involved in ongoing operations, such as the Vice and Narcotics operations conducted at 195 Sigourney Street on December 21, 2009. Simply put he was not present at the time of the actions complained of. The plaintiff has not come forward with any evidence to the contrary. Therefore, because Detective Rivera was not involved in this incident, he did not owe a duty to Robinson and, thus, the detectives' motion for summary judgment is granted as to count four.
E
Count Five: Negligence of Chief of Police Daryl K. Roberts
" The operation of a police department has been held to be a government function . . ." Tyson v. Willauen, 290 F.Supp.2d 278, 287 (D.Conn. 2003). " The deployment of officers is particularly a governmental function. Considerable latitude must be allowed to [a police chief] in the deployment of his officers, or in enforcing discipline. Indeed, because a police chiefs authority to assign his officers to particular duties is deemed a matter that concerns the public safety, he may not be deprived of his power to exercise his own discretion and judgment as to the number, qualifications and identity of officers needed for particular situations at any given time . . . We conclude that the general deployment of police officers is a discretionary governmental action as a matter of law." (Citation omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988).
In the present case, the plaintiff's allegations that Chief Roberts failed to train, manage, and supervise involve the exercise of judgment and discretion. " The act of training and supervising police officers is clearly a discretionary governmental function. Considerations of who to hire, how to train such people, and how to supervise police officers on the job are decisions requiring the use of judgment and discretion. A municipality cannot employ a standard list of actions which must be taken in utilizing its police department." Cook v. Hartford, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-89-0362482 (August 31, 1992, Aurigemma, J.) (7 Conn.L.Rptr. 270, 271). Thus, the doctrine of governmental immunity bars the plaintiff's claim against Chief Roberts.
Furthermore, the identifiable victim-imminent harm exception is not applicable to Chief Roberts because he was not personally involved in the arrest and detention of Robinson, had no personal knowledge or information concerning this incident on December 21, 2009, and as with Det. Rivera, he was not present at the time of the actions complained of. Therefore, the City and Chief Roberts' motion for summary judgment is granted as to count five.
F
Count Six: Indemnity of City of Hartford Pursuant to General Statutes § 7-465
General Statutes § 7-465 provides in relevant part: " (a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment . . ." " Section 7-465 is an indemnity statute; it does not create liability. Under § 7-465, the municipality's duty to indemnify attaches only when the employee is found to be liable and the employee's actions do not fall within the exception for wilful and wanton acts." Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).
Because there is a genuine issue of material fact as to the detectives' liability, it would be premature for the court to make a ruling as to this count. Therefore, the City's motion for summary judgment is denied as to count six.
By virtue of granting counts four and five, the City will not liable for the claims of negligence as to Chief Roberts and Detective Rivera, while the remainder of the count is denied.
G
Count Seven: Negligence of City of Hartford Pursuant to General Statutes § 52-557n
General Statutes § 52-557n(a)(2)(B) provides that " a political subdivision of the state shall not be liable for damages to person or property caused by . . . negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." " A municipal employee . . . 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 . . . Even when performing a discretionary act, however, a municipal employee may be liable in certain situations, including 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 . . ." (Citation omitted; internal quotation marks omitted.) Galindez v. Miller, 285 F.Supp.2d 190, 194 (D.Conn. 2003).
There remains a genuine issue of material fact as to whether the harm was apparent to the detectives. For this reason, the City's motion for summary judgment is denied as to count seven.
By virtue of granting count four, the City will not liable for the claims of negligence as to Detective Rivera, while the remainder of the count is denied.
CONCLUSION
For the foregoing reasons, the defendants' motions for summary judgment are granted as to counts four and five, and denied as to counts one, two, three, six, and seven.