Opinion
No. KNL CV 054004203
December 20, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #187
FACTS
On November 2, 2009, the defendants, the city of New London, Elizabeth A. Sabilia, Richard Brown, Bruce Rinehart, Michael Lacey, William Dittman, Kenneth Edwards, Jr., Joseph Weymouth, Steven Crowley, Marshal Segar and Michael Mariano, filed a motion for summary judgment and a memorandum of law in support. On January 27, 2010, the plaintiffs, Ayfer Kaya, Aykurt Kalican (Aykurt) and Marta Paguada, the administratrix of the estate of David Romero, filed an objection to the motion and a memorandum in support of their objection. On June 17, 2010, the defendants filed a reply to the plaintiffs' objection.
Michael Lacey is also referred to as Michael Lacy in various pleadings and memoranda.
In their reply memorandum, the defendants "object to consideration of the plaintiffs' objection because it is 70 pages, doubling the permitted page length." Practice Book § 4-6 provides, in relevant part: "The text of any trial brief or any other brief concerning a motion in any case shall not exceed thirty-five pages without permission of the judicial authority." The official commentary for Practice Book § 4-6 provides the reasoning for the page limitation: "The widespread use of word processing is leading to briefs that are unnecessarily lengthy. The result is unnecessary burdens on the court and opposing counsel." In the present case, the plaintiffs' memorandum in support of their objection far exceeds the page limitation. The court notes, however, that the defendants' memorandum in support of their motion also exceeds the limit at thirty-six pages. Additionally, the defendants supplemented their original memorandum with a nineteen-page reply memorandum. While the court believes that the briefs from both parties are unnecessarily lengthy, the court also recognizes that this is a complex case with numerous factual and legal issues. The court will consider all of the briefs in this case due to the nature of the proceedings and the numerous parties and allegations involved. The court reminds counsel for both sides, however, that a party must typically obtain permission from the judicial authority prior to filing a brief that exceeds the limit set forth in Practice Book § 4-6.
In their amended complaint, the plaintiffs allege that at approximately 4:15 a.m. on September 22, 2003, Kaya and Romero were sleeping in bed together at Kaya's residence at 86 Blackhall Street, New London, Connecticut. Kaya's ex-husband, Kurtulus Kalican (Kalikan) entered the residence, retrieved a gun he had in the basement and repeatedly shot Kaya and Romero. Kaya was seriously wounded and Romero died from the incident. Aykurt, Kaya's son, witnessed Kalican fire the gun at Romero and witnessed his mother sitting in the bed, bleeding from her mouth. Paguada was the sister of Romero and was appointed administratrix of Romero's estate.
The defendants in this action are the city of New London and various city officials and employees. Sabilia was the mayor of New London at the time of the incident and Brown was the city manager. The other defendants were members of the New London Police Department on September 22, 2003. Rinehart was the chief of police. Edwards, Dittman and Lacey were captains and Weymouth was a sergeant. Crowley and Segar were officers and Mariano was a dispatcher.
The plaintiffs allege various claims against the defendants. The estate of Romero has filed claims for wrongful death (counts one and two) and reckless wrongful death (count twelve). Kaya asserts negligence claims (counts four and five) a reckless injury claim (count thirteen) and a reckless infliction of emotional distress claim (count fourteen). Aykurt has filed claims for negligent infliction of emotional distress (counts nine and ten) and reckless infliction of emotional distress (count fifteen). Further, the plaintiffs have filed counts seeking indemnification from the city of New London (counts three, six and eleven).
The majority of the plaintiffs' claims stem from their allegations that the defendants knew, prior to September 22, 2003, that Kalican, in violation of a protective order, had a gun hidden at the Blackhall Street house and that Kalican had repeatedly threatened harm to Kaya. Additionally, the plaintiffs allege that Kalican called the New London police at approximately 2:00 a.m. on September 22, 2003. The plaintiffs allege that Kalican told the police that there was a man in his house on Blackhall Street and that he wanted the police to take action but the police disregarded Kalican's call, advising him that it was a civil matter. Thereafter, Kalican drove to the house and shot Kaya and Romero.
Several other facts are critical to the resolution of the pending motion for summary judgment. On August 21, 2003, Kalican was arrested for breach of peace in violation of General Statutes § 53a-181 and was required to appear in court the next day as the breach of peace was deemed to be a domestic violence crime. On August 22, 2003, when Kalican appeared in court, a family violence protective order was issued against him. The victim, Kaya, advised the family relations officer that Kalican was in possession of a firearm. The protective order reflects Kaya's allegation, noting that "[i]t has been alleged that the above-named defendant possesses one or more firearms." The conditions of the protective order detail, in relevant part.
Section 53a-181(a) provides, in relevant part: "A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person's property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do."
Firearms Restrictions for Persons Subject to Restraining or Protective Orders
If you are subject to a restraining or protective order involving the use, attempted use or threatened use of physical force against another person.
1. You are not eligible to receive a permit or eligibility certificate allowing you to carry a pistol or revolver . . .
2. Any permit or eligibility certificate which you now hold shall be revoked and you must surrender such permit or eligibility certificate to the authority that issued it within five (5) days of being notified that it has been revoked . . .
3. You must transfer all pistols, revolvers and other firearms which you possess to a person who is eligible to possess them or surrender them to the Commissioner of Public Safety within two (2) business days of becoming subject to such order . . .
The protective order was forwarded to the New London Police Department and the Police Department queried the Department of Public Safety and Special Licensing and Firearms Unit as to whether Kalican had a pistol permit or a registered firearm. The query revealed that Kalican did not have a registered firearm and the Police Department took no further action with regard to Kaya's allegation or to determine whether Kalican had access to an unregistered firearm.
The defendants move for summary judgment on numerous grounds. The arguments and additional facts will be set forth as necessary.
LAW OF MOTION FOR 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 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]." (Citation omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).
DISCUSSION I
The court begins with the issue of governmental immunity. The defendants argue that they are entitled to summary judgment on the first, second, fourth, fifth, ninth and tenth counts, the negligence and negligent infliction of emotional distress claims, because their acts were discretionary and, as such, they are entitled to governmental immunity pursuant to General Statutes § 52-557n. The plaintiffs respond that the defendants are not entitled to governmental immunity because they had various ministerial duties pursuant, among other things, to the 29-36n protocol. Further, the plaintiffs argue that even if the defendants were engaged in discretionary acts, they are not entitled to governmental immunity because the plaintiffs were identifiable victims and the defendants' conduct was reckless and wanton.
General Statutes § 52-557n(a)(2) provides that "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 impliedly granted by law."
"Under the common law, [g]enerally, 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 [that] is to be performed in a prescribed manner without the exercise of judgment or discretion . . . There are [however] three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force . . . [One such exception] is the one under which 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 . . .
"Therefore, the first question [the court] must address is whether the alleged acts of negligence were discretionary or ministerial. 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 . . . [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to . . . § 52-557n (a)(2)(B), turns on the character of the act or omission complained of in the complaint . . . Accordingly, where 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 . . .
"If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance . . . There is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions . . .
"Nevertheless, even when the duty to respond to a violation of law is ministerial because that specific response is mandated, the predicate act — determining whether a violation of law exists — generally is deemed to be a discretionary act. A ministerial duty on the part of an official often follows a quasi-judicial determination by that official as to the existence of a state of facts. Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act, the duty of giving effect, by taking appropriate action, to the determination is often ministerial . . . [S]ee, e.g., Wright v. Brown, 167 Conn. 464, 472, 356 A.2d 176 (1975) (concluding in case of dog warden charged under General Statutes § 22-358 with duty of quarantining dog for fourteen days once she found that dog had bitten person who was not on premises of owner or keeper of dog: `[w]hile the determination of that state of facts involved the exercise of judgment, the subsequent duty to quarantine for fourteen days was mandatory and, therefore, ministerial'); Leger v. Kelley, 142 Conn. 585, 589, 116 A.2d 429 (1955) (concluding that determination by commissioner of motor vehicles as to whether car was manufactured after July 1, 1937, and, if so, whether it was equipped with type of safety glass approved by him, was quasijudicial and not ministerial; but, after that determination had been made, commissioner's duty of registering or refusing to register car, according to which determination he had reached, was ministerial, since commissioner had no discretion in that matter); CT Page 1374 Grignano v. Milford [ 106 Conn.App. 648, 656-60, 943 A.2d 507 (2008] (concluding that defendant's duty to perform reasonable and proper inspection and maintenance activities on premises was discretionary because ordinance did not prescribe manner in which defendant was to do so, but [the] duty to warn upon making discretionary determination of hazardous condition was ministerial because ordinance prescribed both duty and manner in which warning should be issued). In order to overcome qualified immunity in such cases, the plaintiff must plead and prove that the official made the discretionary determination that triggered the ministerial duty." (Citations omitted; internal quotation marks omitted.) Bonington v. Westport, supra, 297 Conn. 306-10.
In the present case, the first issue is whether General Statutes § 29-36n or the 29-36n protocol creates a ministerial duty. Section 29-36n provides, in relevant part: "The Commissioner of Public Safety, in conjunction with the Chief State's Attorney and the Connecticut Police Chiefs Association, shall develop a protocol to ensure that persons who become ineligible to possess a pistol or revolver have, in accordance with [General Statutes § ]29-36k, transferred such pistol or revolver to a person eligible to possess such pistol or revolver or have delivered or surrendered such pistol or revolver to said commissioner." Section 29-36k provides, in relevant part: "Not later than two business days after the occurrence of any event that makes a person ineligible to possess a pistol or revolver or other firearm, such person shall (1) transfer . . . all pistols and revolvers which such person then possesses to any person eligible to possess a pistol or revolver and transfer in accordance with any applicable state and federal laws all other firearms to any person eligible to possess such other firearms . . . or (2) deliver or surrender such pistols and revolvers and other firearms to the Commissioner of Public Safety."
Pursuant to § 29-36n, the Commissioner of Public Safety, in conjunction with the Chief State's Attorney and the Connecticut Police Chiefs Association, adopted the "Connecticut General Statutes Section 29-36n Protocol." The relevant portion of the protocol reads as follows.
"The following protocol is hereby adopted by the Commissioner of Public Safety, in conjunction with the Chief State's Attorney and the Connecticut Police Chiefs Association, pursuant to Section 29-36n of the Connecticut General Statutes to ensure that persons who become ineligible to possess a pistol or revolver have, in accordance with Section 29-36k of the general statutes, transferred such pistol or revolver to a person eligible to possess such pistol or revolver or have delivered or surrendered such pistol or revolver to said commissioner . . .
"Upon notification of the occurrence of any event that makes a person ineligible to possess a pistol or revolver . . . the following shall occur . . . The law enforcement agency having jurisdiction shall:
A. In the case of a restraining or protective order, immediately electronically transmit a copy of same referencing the date of service and any supporting documentation on file, including any incident reports, to the Department of Public Safety Special Licensing and Firearms Unit . . .
B. Query the Department of Public Safety Special Licensing and Firearms Unit for any information available on the subject's permit status and firearms registration data.
C. At the expiration of two (2) business days after the occurrence of the disqualifying event, query the Department of Public Safety Special Licensing and Firearms Unit to determine if the subject has transferred any pistol or revolver to an eligible person or delivered or surrendered any pistol or revolver to the Department of Public Safety.
D. In the event there is non-compliance with the requirement to transfer, deliver or surrender any pistol or revolver, conduct a follow-up investigation."
The parties do not dispute that the defendants were operating pursuant to the protocol at all relevant times. The protocol was addressed in a New London Police Department Interdepartmental Directive, issued by Lacey and dated May 21, 2001. The directive provides:
When the Department receives a restraining or protective order it shall immediately be forwarded to the records section. No order will be left in dispatch until they have been processed by the records section and a firearms protocol number placed on its upper right hand corner. The number will begin with the letters "FP."
The records section will process the restraining and protective orders in compliance with C.G.S. 29-36n Protocol (sections A-C). The original order will then be forwarded to dispatch to be placed in the appropriate binder.
In the event there is a non-compliance with the requirement to transfer, deliver or surrender any pistol or revolver, the case will be forwarded to the Investigative Division to conduct a follow-up investigation.
The plain language of the statute requires the Commissioner of Public Safety, in conjunction with the Chief State's Attorney and the Connecticut Police Chiefs Association, to develop a protocol with respect to the surrender of pistols and revolvers by persons who are ineligible to possess such weapons. Accordingly, the statute itself does not create a ministerial duty that requires the defendants to perform an action in a prescribed manner. However, once the protocol was adopted, the articulated policy requires that certain steps to be taken by the New London Police Department in the event that a protective order is issued. The issue, therefore, is whether the related protocol, which was in effect at all relevant times, created a ministerial duty that required the defendants to act in a prescribed manner without the exercise of judgment or discretion.
There are several undisputed facts that are relevant to this issue. On August 22, 2003, a family violence protective order was entered against Kalican that made him ineligible to possess a pistol or revolver. The New London police conducted an inquiry, pursuant to subsection B of the protocol, as to whether Kalican had a pistol permit or a registered firearm. The query revealed that Kalican did not have a registered firearm. The firearm used in the September 22, 2003 shooting was registered to Kalican's ex-father-in-law. The parties disagree as to whether, pursuant to subsections C and D of the protocol, the defendants had a ministerial duty to seize Kalican's firearm and conduct a follow-up investigation.
In assessing the potential duties created by operation of the protocol, the court looks first to the plain language of the protocol and the complimentary directive published by the New London Police Department. It also reads the protocol in conjunction with § 29-36n and § 29-36k, as referenced in the preamble of the protocol. Section B of the protocol requires the department to query the Department of Public Safety Special Licensing and Firearms Unit regarding whether the person ineligible to possess a pistol or revolver has any permits or registered firearms. Sections C and D of the protocol, however, utilize the phrase "any pistol or revolver," as opposed to "registered pistol or revolver." Additionally, § 29-36k requires persons ineligible to possess pistols or revolvers to transfer "all pistols and revolvers which such person then possesses . . ." Section 29-36n requires the Commissioner of Public Safety to develop a protocol with respect to the transfer of pistols and revolvers referenced in § 29-36k. Neither statute section refers exclusively to "registered pistols or revolvers."
The court recognizes that "the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . [T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988). This case, however, lies at the difficult intersection between ministerial and discretionary duties and requires the court to consider the boundary between a mandated predicate act and an exercise of judgment. The court must consider the language of the applicable domestic violence statutes as well as the language of the protocol that was adopted by the New London Police Department. Although the majority of police functions are discretionary in nature, the court must conclude that the New London Police Department had some ministerial duties in the present case pursuant to the protocol, its own directive and the corresponding statute sections.
The protocol requires the New London Police Department to inquire of the Department of Public Safety Special Licensing and Firearms Unit two business days after its initial inquiry, as to whether any pistols or revolvers had been turned in by Kalican. It does not appear this step was taken. If the inquiry resulted in a negative response the City's directive required the case "be forwarded to the Investigative Division to conduct a follow-up investigation." It does not appear that this step was taken. The court recognizes that discretionary action may be involved with respect to a follow-up investigation. The query after the expiration of two business days, however, is a duty that is to be performed in a proscribed manner. The language of the protocol and the New London Police Department directive require that cases be forwarded to the Investigative Division to conduct a follow-up investigation. The defendants do not present any evidence that they queried the Department of Public Safety Special Licensing and Firearms Unit two days after the disqualifying event to determine whether Kalican transferred "any pistol or revolver." Without such evidence, the defendants are not entitled to judgment on the plaintiffs' negligence and negligent infliction of emotional distress claims.
The court need not reach the defendants' other arguments with respect to governmental immunity. The court cannot conclude, as a matter of law, that the defendants are entitled to judgment because the defendants have not met their burden of showing that they complied with the ministerial duty created by the 29-36n protocol and their own directive. The issue of whether the defendants were negligent in their actions is one for a fact finder.
II
The court next turns to the issue of whether the defendants owed the plaintiffs a duty as a matter of law. The defendants argue that they are entitled to judgment on the first, second, fourth, fifth, ninth, tenth, twelfth, thirteenth, fourteenth and fifteenth counts because the defendants have only a general duty to the public did not owe a special duty of care to the plaintiffs. In response, the plaintiffs argue that the protective order issued against Kalican created a special relationship for the purposes of finding a duty.
The court need not reach the parties' arguments with respect to a special duty because the court has already determined that the defendants had a ministerial duty pursuant to the 29-36n protocol. "The distinction between public and private duty is an expression of the many policy considerations which lead the law to determine whether interests of a particular type are entitled to protection against conduct by officials . . . Policy considerations have also resulted in the establishment of certain exceptions which provide that an individual cause of action may be brought against an official for breach of duty without regard to whether the duty is technically a public or private one. If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance. For example, an official may be sued in a civil action for refusing to recognize a validly cast vote . . . or for releasing from quarantine a dangerous dog before the expiration of the time period required of the official." (Citations omitted.) Shore v. Stonington, 187 Conn. 147, 152-53, 444 A.2d 1379 (1982).
In the present case, the court has already concluded that the defendants had a ministerial duty, pursuant to the 29-36n protocol, to query the Department of Public Safety Special Licensing and Firearms Unit two days after the occurrence of the disqualifying event to determine "if the subject has transferred any pistol or revolver to an eligible person or delivered or surrendered any pistol or revolver to the Department of Public Safety." Further, had the inquiry disclosed no action on the part of Kalican, the New London Police Department directive requires that the case "be forwarded to the Investigative Division to conduct a follow-up investigation." The plaintiffs allege that they have suffered injuries from the negligent performance of this ministerial duty. Accordingly, the plaintiffs may pursue their causes of action based on a breach of the ministerial duty.
III
The defendants argue that summary judgment should be granted on the third, sixth and eleventh counts because General Statutes § 7-101a simply governs the allocation of legal expenses for civil suits between municipalities and their employees. The defendants assert that § 7-101a does not provide for a direct cause of action and, therefore, they are entitled to judgment on the third, sixth and eleventh counts. The plaintiff responds that the language of § 7-101a indicates that a cause of action may be pursued under that statute. Specifically, the plaintiffs reference subsection d of the statute, which provides: "No action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued."
Section 7-101a(a) provides, in relevant part: "Each municipality shall protect and save harmless . . . any municipal employee, of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person's civil rights, on the part of such . . . employee while acting in the discharge of his duties." "While the appellate courts of Connecticut have not explicitly stated that § 7-101a does not allow a direct cause of action, the language of § 7-101a gives no indication that the legislature intended the statute to provide an injured person an independent cause of action against a municipality . . ." (Internal quotation marks omitted.) Rodriguez v. Anker, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 6000465 (January 12, 2009, Downey, J.).
In the present case, the plaintiff is not bringing direct causes of action against the city of New London in the third, sixth and eleventh counts. Instead, the plaintiffs allege causes of action pursuant to § 7-101a against the city based upon its obligation to indemnify the city employees. The court finds that the language of § 7-101 allows the maintenance of these counts for statutory indemnification of the defendant employees of the municipality. Accordingly, the motion for summary judgment is denied with respect to the third, sixth and eleventh counts.
IV
With respect to the fourteenth and fifteenth counts, the defendants argue that they are entitled to judgment because Connecticut does not recognize a cause of action for reckless infliction of emotional distress. The plaintiffs respond that the Connecticut Supreme Court recognized a cause of action for reckless infliction of emotional distress on a bystander in Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003).
"Connecticut courts have not conclusively determined if a separate cause of action exists for reckless infliction of emotional distress. The leading case in Connecticut regarding reckless infliction of emotional distress is Craig v. Driscoll [ supra, 262 Conn. 312]. In Craig, the Supreme Court implicitly recognized a cause of action for reckless infliction of emotional distress on a bystander when it determined that a plaintiff could use the same language in two counts of a complaint to allege both negligent and reckless conduct in a cause of action for infliction of emotional distress on a bystander. Id., 341-43 . . . The Craig court did not directly address, however, whether reckless infliction of emotional distress was a distinct cause of action from intentional infliction of emotional distress in a non-bystander context.
"Prior to Craig, courts were split as to whether Connecticut recognized a cause of action for reckless infliction of emotional distress. See Drennan v. Geist, Superior Court, judicial district of Middlesex, Docket No. CV 99 0089114 (January 29, 2002, Shapiro, J.) (citing Superior Court cases alternately striking and permitting causes of action for reckless infliction of emotional distress); and Del Core v. Mohican Historic Housing Associates, Superior Court, judicial district of New London, Docket No. CV 02 0560919 (July 9, 2002, Hurley, J.T.R.) [ 32 Conn. L. Rptr. 481] (citing cases to support the statement that `[a]n allegation of reckless conduct which inflicts emotional distress is regarded as an allegation of intentional infliction of emotional distress'), aff'd, 81 Conn.App. 120, 837 A.2d 902 (2004).
"After Craig, although the appellate courts have not directly addressed whether there is a distinct cause of action for reckless infliction of emotional distress, they have often implied that there is not. See Carrol v. Allstate Ins. Co., 262 Conn. 433, 451-52, 815 A.2d 119 (2003) (Borden, J., concurring) (writing separately to highlight an anomaly in the burden of proof in `the "conduct" element of the twin torts of intentional infliction of emotional distress and negligent infliction of emotional distress'); Petitte v. DSL.net, Inc., 102 Conn.App. 363, 374 n. 2, 925 A.2d 457 (2007) (`Connecticut recognizes two types of emotional distress claims, intentional infliction of emotional distress . . . and negligent infliction of emotional distress.' (Citations omitted.)); Olson v. Bristol, 87 Conn.App. 1, 6-8, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (stating `we believe that the court incorrectly applied a behavioral standard for wilful infliction of emotional distress to a complaint founded solely on negligence' before comparing intentional and negligent infliction of emotional distress claims); Benton v. Simpson, 78 Conn.App. 746, 756-57, 829 A.2d 68 (2003) (stating that `[t]he difference between the two torts of inflicting emotional distress is significant' in reference to intentional and negligent infliction of emotional distress)." (Citation omitted.) Montanaro v. Baron, Superior Court, judicial district of New Haven, Docket No. CV 06 5006991 (March 28, 2008, Robinson, J.).
The court concludes that reckless infliction of emotional distress is not recognized as a tort in the state of Connecticut. Accordingly, the defendants may be entitled to judgment on counts purporting to state causes of action for reckless infliction of emotional distress. In the present case, however, the parties have briefed an additional issue with respect to the fourteenth and fifteenth counts. The defendants argue that, even if the reckless infliction of emotional distress claims are taken as intentional infliction of emotional distress claims, the plaintiffs have failed to allege extreme and outrageous conduct to support such a claim. In response, the plaintiffs argue that the actions of the defendants in this case rise to the level of extreme and outrageous conduct.
Some case law in Connecticut indicates that a claim for reckless infliction of emotional distress may be construed as a claim for intentional infliction of emotional distress. See, e.g., Matthiessen v. Vanech, 266 Conn. 822, 833, 836 A.2d. 394 (2003) ("While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing." (Internal quotation marks omitted.)); Myslow v. New Milford School District, United States District Court, Docket No. 3:03 CV 496 (MRK) (D.Conn. February 28, 2006) ("To the extent that Plaintiffs allege recklessness, reckless conduct has been equated to wanton conduct . . . hence Plaintiffs' claim sounds in intentional infliction of emotional distress . . ."); Montanaro v. Baron, supra, Superior Court, Docket No. CV 06 5006991 ("This court grants the defendant's motion to strike the plaintiffs' . . . counts for reckless infliction of emotional distress because Connecticut, even after Craig, does not recognize a distinct cause of action for reckless infliction of emotional distress and because the plaintiffs have adequately pleaded claims for intentional infliction of emotional distress that encompass the recklessness claims"). Although the plaintiffs have titled the fourteenth and fifteenth counts "reckless infliction of emotional distress" and argue that those counts are sufficient as such, the court will still consider whether the counts are sufficient as intentional infliction of emotional distress claims.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
"Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Davis v. Davis, 112 Conn.App. 56, 66, 962 A.2d 140 (2009). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" (Internal quotation marks omitted.) Id., 210-11.
In the present case, all of the conduct alleged to be extreme and outrageous are failures by the defendants to take affirmative action. Even when viewing the evidence in the light most favorable to the plaintiffs, the court must reach the conclusion that the defendants' actions did not rise to the level of extreme and outrageous. The Connecticut Supreme Court considered whether a defendant's failure to conduct a thorough investigation constituted extreme and outrageous behavior in Carrol v. Allstate Ins. Co., 262 Conn. 433, 815 A.2d 119 (2003). The court concluded that "[a]s distressing as this insurance investigation may have been to the plaintiff . . . it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress." (Emphasis in original.) Id., 444. Other judges of the Superior Court have also held that a lack of affirmative conduct cannot be extreme and outrageous for the purposes of an intentional infliction of emotional distress claim. See, e.g., Estate of Smith v. West Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0080891 (July 28, 2003, Sferrazza, J.); Giard v. Putnam, Superior Court, judicial district of Windham, Docket No. CV 08 5002754 (December 3, 2008, Booth, J.) ( 46 Conn. L. Rptr. 782). The defendants' alleged conduct in the present case cannot be construed as extreme and outrageous; accordingly, the defendants are entitled to judgment on the fourteenth and fifteenth counts of the complaint.
V
The court turns again to the plaintiffs' claims for negligent infliction of emotional distress in the ninth and tenth counts. In addition to the defendants' arguments with respect to governmental immunity and the lack of duty, the defendants also assert that they are entitled to judgment on these counts because the counts are actually claims for bystander emotional distress. The defendants argue that distress was caused by Kalican, not the defendants, that Aykurt was not closely related to Romero and that there was no contemporaneous sensory perception of the harm to Kaya. The plaintiffs respond that the ninth and tenth counts are, in fact, negligent infliction of emotional distress counts and that the defendants should have realized that their conduct involved an unreasonable risk of causing emotional distress. Further, the plaintiffs argue that, even if the court assesses the claims as ones for bystander emotional distress, the defendants are not entitled to judgment on those counts. In their reply, the defendants assert that any claim for negligent infliction of emotional distress with respect to Aykurt must fail because Aykurt did not fear harm to himself, but rather to Kaya and Romero.
The court begins with the allegations set forth in the ninth and tenth counts. The ninth count, titled "negligent infliction of emotional distress upon . . . Aykurt J. Kalican" incorporates the allegations set forth in the first and fourth counts, which are directed against the city of New London. The tenth count also purports to be a claim for negligent infliction of emotional distress and is brought against Sabilia, Brown, Rinehart, Lacey, Dittman, Edwards, Weymouth, Crowley, Segar and Mariano in their individual capacities. The ninth and tenth counts include the allegations that Aykurt witnessed Kalican shoot Romero and that Kalican ran past Aykurt with the gun still in his hand. Aykurt further witnessed his mother, Kaya, sitting on the bed, bleeding from her mouth. The plaintiffs claim that as a result of the defendants' negligence, Aykurt was caused severe emotional distress and he has been left with permanent psychological injuries and damages.
"To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Davis v. Davis, supra, 112 Conn.App. 68.
The defendants' only challenge to the counts as negligent infliction of emotional distress claims is that Aykurt did not fear harm to himself, but rather to Kaya and Romero. The defendants argue that in order to pursue a claim for negligent infliction of emotional distress the plaintiff must establish that he feared harm to himself, not harm to another. The defendants assert that there is no evidence on the record to suggest that Aykurt suffered emotional distress as a result of a fear of harm to himself.
The case law in Connecticut supports the defendants' contention that a negligent infliction of emotional distress claim must be based on a fear of personal harm. See, e.g., Silber v. Walgreen Co., Superior Court, judicial district of New Haven, Docket No. CV 04 4009662 (May 4, 2005, Thompson, J.) ( 39 Conn. L. Rptr. 271, 272), citing Barrett v. Danbury Hospital, 232 Conn. 242, 261, 654 A.2d 748 (1995). In the present case, however, the evidence presented creates an issue of fact as to whether Aykurt suffered emotional distress based on a fear of harm to himself. The defendants submit Aykurt's voluntary police statement as evidence to support their motion for summary judgment. Defendants' Exhibit GG. In that statement, Aykurt states that he was awakened on the night in question by "a POP that was ear splitting." Defendants' Exhibit GG. Aykurt further states that he went to the second floor landing and looked up to see his father, Kalican, on the third floor landing. Defendants' Exhibit GG. Aykurt heard a second gunshot and saw that his father was pointing a gun at Romero, who was on his stomach. Defendants' Exhibit GG. Aykurt then witnessed his father shoot Romero and saw blood on the stairs. Defendants' Exhibit GG. His father then ran past him with the gun still in his hands. Defendants' Exhibit GG. Aykurt heard his mother screaming and saw her sitting on the bed with blood coming from her mouth. Defendants' Exhibit GG. The police narrative report from the incident lends further support to this evidence. Plaintiff's Exhibit 43. When viewed in the light most favorable to the plaintiffs, the evidence presented shows that Aykurt heard multiple gunshots, witnessed his father shoot a man who was already on the ground, saw blood on the stairs and watched as his father ran past him with a gun in his hands. At a minimum, the evidence creates an issue of fact as to whether Aykurt feared for his own safety. The defendants are not entitled to judgment based on their argument that Aykurt's alleged emotional distress was the result only of his fear for Kaya and Romero.
The court will not reach the defendants' arguments with respect to whether the ninth and tenth counts are claims for bystander emotional distress. The plaintiff has asserted that those counts are negligent infliction of emotional distress counts and the court has already concluded that the defendants are not entitled to judgment based on the grounds stated in their motion. The court will not engage in analysis regarding a cause of action that the plaintiffs do not contend that they have claimed. Further, "[t]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise . . ." Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988). Any uncertainty regarding the causes of action stated in the ninth and tenth counts should have been addressed in that manner.
VI
The defendants' final argument is that the plaintiffs cannot establish claims for recklessness as a matter of law and, as such, the defendants are entitled to judgment on the twelfth and thirteenth counts of the complaint. The defendants argue that the plaintiffs' claims are based on alleged failures to act and that none of the conduct exhibits a reckless disregard for the safety of others, an extreme departure from reasonable care or highly unreasonable conduct. The plaintiffs argue that the defendants had notice of the likelihood that Kalican would engage in the shooting and disregarded their safety when they failed to act.
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent . . . [W]e have described recklessness as a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
"While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citations omitted; internal quotation marks omitted.) Matthiessen v. Vanech, supra, 266 Conn. 832-33.
In the present case, the court has already determined that the defendants had a ministerial duty pursuant to the 29-36n protocol. The court has also determined that there is no evidence that the defendants complied with that ministerial duty. The issue with respect to the recklessness counts, therefore, is whether the defendants made a conscious choice to disregard that duty with knowledge that their failure to comply involved a serious risk of danger to the plaintiffs or knowledge of facts that a reasonable person would have concluded involved a risk of danger to the plaintiffs.
The court has reviewed the voluminous evidence presented by both parties. In the present case, when viewed in the light most favorable to the plaintiff, the evidence suggests the following facts. The defendants knew that Kalican retained title to the residence on Blackhall Street and continued to keep possessions at the house pursuant to the divorce decree. Defendants' Exhibit M. On July 4, 2003, Kaya told members of the New London Police Department that Kalican had threatened to kill her and her boyfriend and that he had a gun that she believed was in the basement of the house. Defendants' Exhibit L, p. 77. Further, on August 21, 2003, she reiterated to members of the New London police that Kalican had a gun in the basement of the house. Defendants' Exhibit L, p. 159; Defendants' Exhibit K, pp. 78-81. Kaya also told police on August 21 that the gun was not registered in Kalican's name, but in the name of Kalican's ex-father-in-law. Defendants' Exhibit L, p. 79.
There is no dispute that on August 22, 2003, a family violence protective order was issued against Kalican. Defendants' Exhibit Z. The protective order details that "[i]t has been alleged that the above-named defendant [Kalican] possesses one or more firearms." Defendants' Exhibit Z. The New London Police Department subsequently received a copy of the protective order. Defendants' Exhibit D, pp. 14-15, 30-31, 39-42, 84-85. After determining that Kalican had no firearms registered to his name, the New London police took no further action to determine whether Kalican possessed an unregistered firearm or a firearm registered to another person. Defendants' Exhibit D, p. 58.
Based on the evidence presented, an issue of fact exists as to whether the defendants failed to perform their ministerial duty with the knowledge that doing so involved a substantial risk of serious danger to the plaintiffs. "[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539, 906 A.2d 14 (2006). In the present case, it will be a fact finder's task to determine whether the defendants had the state of mind required to find liability for recklessness. The defendants are not entitled to judgment on the twelfth and thirteenth counts.
CONCLUSION
The defendants' motion for summary judgment is denied with respect to the first, second, third, fourth, fifth, sixth, ninth, tenth, eleventh, twelfth and thirteenth counts. The defendants' motion for summary judgment is granted with respect to the fourteenth and fifteenth counts.
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