Opinion
No. CV 07 5009361
November 1, 2010
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #220 #223
This is a wrongful death action arising out of the murder of the plaintiff's decedent that happened at the Midway Carnival held at Seaside Park in Bridgeport, Connecticut on June 24, 2005. There are three general groups of defendants. Municipal defendants include Phillip Handy, who was the Director of the Bridgeport Department of Parks and Recreation; the Bridgeport Department of Parks and Recreation; the Bridgeport Board of Parks Commissioners; the City of Bridgeport; Anthony Armeno, the acting Bridgeport Chief of Police at the time of the subject incident; Bridgeport Police Department; Bridgeport Board of Police Commissioners.
In addition to the defendants mentioned above, there is a second group of defendants. The Solution, LLC ("Solution") and 5 Star Amusement Co., Inc. ("5 Star") are corporate entities involved with putting on the Midway Carnival at Seaside Park. Marilyn Goldstone and Tom Kelly are members of Solution, and Linda Coleman and Robert Coleman, Jr., are members of 5 Star. Lastly, there is a third group of defendants who are individuals alleged to have been personally involved with the assault and/or murder of the decedent. Lucilo Cifuentes, is the alleged gunman, who is currently serving a prison sentence as a result of the incident, and Lucilo L. Cifuentes is the alleged gunman's father. The additional defendants who are listed as apportionment defendants are Alexis Ramos; Vince Bravo; Ernest Banks; and Darold Lark.
Goldstone died on April 2, 2007.
Defendants Bridgeport, Armeno and Handy have filed a motion for summary judgment which has been addressed in a separate decision by the court.
The defendants Solution, Marilyn Goldstone and Tom Kelly have filed a motion for summary judgment and will be referred to collectively as "Solution." 5 Star, Linda Coleman and Robert Coleman, Jr., members of 5 Star have filed a motion for summary judgment and will be referred to collectively as "5 Star." Both motions for summary judgment raise similar issues, which will be addressed in this memorandum of decision. Solution has moved for summary judgment on the First Count of the plaintiff's Third Amended Complaint, which alleges negligence. 5 Star has moved for summary judgment on the Second Count alleging negligence.
In summary, the plaintiff has alleged that Solution: (1) failed to provide and maintain adequate security at the Midway carnival on the date in question; (2) failed to provide sufficient police coverage; failed to provide a safe environment in various ways; (3) failed to erect adequate fencing and provide adequate lighting; (4) allowed defendant Lucilo Cifuentes and others dressed in white t-shirts and blue jeans to enter and remain when they knew they constituted a danger to patrons and the defendant; (5) failed to cancel or postpone the carnival when they knew or should have known that police coverage would be inadequate when there was a strong likelihood of violence; (6) failed to exercise reasonable care to protect the decedent when it was reasonably foreseeable that a criminal assault might occur; (7) failed to adequately train and supervise its employees to deal with dangerous situations; and (8) failed to adequately supervise the patrons' behavior. 5 Star has moved for summary judgment on the Second Count, also alleging negligence. In summary, the Second Count alleges the same allegations of negligence against 5 Star that the plaintiff alleged against Solution.
As noted earlier herein, this is a wrongful death action arising out of the murder of the plaintiff's decedent that happened at the Midway Carnival held at Seaside Park in Bridgeport, Connecticut on June 24, 2005. The Solution defendants were the general organizers and operators of a summer carnival called the "Midway," which was held at Seaside Park in Bridgeport. The 5 Star defendants provided the rides and amusement activities for the Midway. Solution and 5 Star received a permit from the City of Bridgeport to hold the Midway from June 20, 2005 through July 5, 2005. The City's permit required Solution and 5 Star to coordinate with the Bridgeport Police Department for police coverage for the Midway event. The Bridgeport Police Department created a deployment plan to assign police officers to cover the event. These police officers were additional to those police officers already scheduled to work their regular duty shifts. Deputy Police Chief James Honis was the chief of the patrol division for the Bridgeport Police Department, and, as such, was responsible for assessing the number of overtime officers that would be required for the event, as well as, the deployment of these officers. The defendant Armeno, the acting Police Chief, was responsible for the general monitoring of this deployment process. In assessing the number of police officers required and how they would be deployed, Honis and Armeno relied upon their experience and judgment. On June 24, 2005, the decedent attended the Midway carnival and was fatally shot by the defendant Lucilo Cifuentes.
See Maria E. Mills, Executrix of the Estate of Clarence Israel Mills v. The Solution, LLC et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV075009361 (Oct.13, 2010, Arnold, J.).
The defendant Lucilo Cifuentes has since been convicted of General Statutes 53a-55, Manslaughter in the first degree and General Statutes § 29-35, Carrying of pistol or revolver without a permit.
The defendants, Solution, LLC, Goldstone and Kelly ("Solution") have moved for summary judgment on the grounds that (1) Solution had no notice or reasonable forseeability that a homicide would occur on the subject date, and, thus owed the plaintiff's decedent no duty of care; (2) the codefendant Bridgeport Police Department, not Solution, furnished police protection and determined the amount of necessary police protection pursuant to General Statutes § 7-284; and (3) the death of Clarence Mills, decedent, was caused by an intervening criminal act, which was not within the scope of the foreseeable risk created by the conduct of Solution.
The defendants 5 Star, Robert Coleman, Jr. and Linda Coleman ("5 Star") have moved for summary judgment on grounds similar to Solution because 5 Star: (1) was not charged with the duty to provide police protection at the Midway carnival within the confines of Seaside Park in Bridgeport, Connecticut on the night of the decedent's death; (2) had no notice there was a likelihood that a homicide would be committed, and that the homicide was unforeseeable; and (3) the plaintiff's claims are barred by the intervening and intentional criminal act of another, Lucilo Cifuentes. 5 Star also argues that neither Coleman defendant submitted any application to municipal authorities to hold the 2005 Midway carnival; never signed any contracts with the City in connection with the 2005 Midway carnival; and never authorized Solution, LLC or its principals, defendants Goldstone and Kelly, to act as their authorized agents to enter into any agreements or contracts that would bind 5 Star Amusement, LLC.
Each defendant has filed a Memorandum of Law in support of their respective motions for summary judgment, as well as, and replies to the plaintiff's Memorandum of Law in opposition to the motions for summary judgment. Defendant 5 Star in its Memorandum of Law has requested that the court "adopt and incorporate by reference all of the facts and law that is contained within and set forth in the Memorandum of Law submitted by the co-defendant, Solution, LLC." The parties have also submitted excerpts from deposition testimony of various individuals, including but not limited to Thomas Kelly, Acting Police Chief Anthony Armeno, Deputy Police Chief James Honis, Detective Sanford Dowling and sworn affidavits of individuals including, but not limited to Thomas Kelly, Linda Coleman, Deputy Police Chief James Honis, and Neil Sullivan, an expert witness for the plaintiff. The defendants moved to strike the affidavit of Sullivan on the grounds that Sullivan had not been disclosed in a timely fashion pursuant to Practice Book § 13-4, and "his opinions are not based upon facts or personal knowledge, are conclusory in nature and go to the ultimate issues." The court on October 19, 2010 denied the motions to strike, ruling that a motion to strike was the improper procedural vehicle to attempt to preclude Sullivan's affidavit. The defendants have also objected to a non-certified copy of the police incident report which was submitted by the plaintiff. Upon review, the court determines that it does not need to rely upon the police report copy to dispose of the issues relating to the motions for summary judgment.
Practice Book Sec. 10-39 regarding a Motion to Strike reads as follows:
(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.
(b) A motion to strike on the ground of the nonjoinder of a necessary party or noncompliance with Section 17-56(b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action.
I
Standard of Law: Summary Judgment
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538, A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion " Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Nonetheless, "[t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).
II
Parties Respective Positions
As noted earlier herein, the defendants 5 Star and Solution have moved for summary judgment because: (1) these defendants had no notice there was a likelihood that a homicide would be committed, and that the homicide was unforeseeable; (2) the Bridgeport Police Department and not the defendants, was charged with the duty to provide police protection at the Midway carnival within the confines of Seaside Park in Bridgeport, Connecticut on the night of the decedent's death; and (3) the plaintiff's claims are barred by the intervening and intentional criminal acts of another, defendant, Lucilo Cifuentes.
First, the defendants argue that between the years 1991 and June 24, 2005, there were no deaths, no serious personal injuries, stabbings or shootings at the annual Midway carnival that injured customers or patrons of the Midway. According to the deposition testimony of Acting Police Chief Armeno and defendant Kelly the only altercations during these years were of a minor variety. On June 24, 2005, Kelly observed nothing unusual that led him to believe that there was a potential for violence that evening of the type which occurred, and there was no indication of gang-related activity that evening. While there is evidence of incidents of serious criminal activity at Seaside Park, the general locale of the Midway carnival in the four to five years before the subject incident, none of these incidents occurred during the dates that the Midway was held in those years. Midway carnival is held in one section of Seaside Park.
There are records of a sexual offense on August 16, 2001, Robbery on September 8, 2002 and Assault Third Degree and Risk of Injury to a Minor on April 17, 2005. There was a incident of Assault Third Degree and Risk of Injury to a Minor on June 25, 2003, which could have occurred when the Midway carnival was being held, but the exact dates of the 2003 Midway carnival are unknown. It is also unclear if this incident occurred at the Midway or during the hours of operation of the Midway.
Second, the defendants argue that the City of Bridgeport was statutorily obligated to provide police protection to the Midway pursuant to General Statutes § 7-284. The permit for this event was approved by the City in 2005, and the permit required security at the event. The security was to be coordinated with the Police Department Outside Overtime Office, and the Bridgeport Police Department acting by Deputy Chief Honis was responsible for assessing the number of overtime officers and the manner in which they would be deployed. The defendants claim they had no role in furnishing the police protection to the Midway on June 24, 2005; no role in determining the amount of police protection; and no role in erecting barriers.
General Statutes § 7-284, provides in relevant part as follows:
"When police protection is necessary or required at any boxing bout or wrestling match, place of public amusement, sport contest or hockey, baseball or basketball game, or any other exhibition or contest, which is being held or is to be held in any municipality, the amount of such protection necessary shall be determined and shall be furnished by (1) the chief or superintendent of the police department in any municipality having an organized or paid police department . . . Any such protection shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest."
The Special Event Permit issued by the police department is dated May 31, 2005 and was issued to "5 Star Amusement, Inc."
Third, the defendants argue they are entitled to summary judgment as a matter of law as to causation because the death of the decedent, Clarence Mills, was caused by an intervening criminal act of Lucilo Cifuentes, who shot the decedent, and this act was not within the scope of the foreseeable risk created by the defendants' conduct.
The defendants also advance the arguments that they were not the owners of the land where the incident occurred, and that Seaside Park is owned by the City of Bridgeport and is under the possession and control of Bridgeport. Therefore, any duty owed to the decedent was by the City. They also argue that the decedent's status on the property where the Midway was held is unknown, in that there is no evidence that he paid an admission to enter the Midway. Thus he is not an invitee, as he "either paid to enter and was a licensee or did not pay to enter and was a trespasser." The defendants conclude, therefore, that any public policy analysis as to an invitee is not relevant.
The plaintiff in opposition to the motions for summary judgment argues that the defendants "knew or should have known" an assault would occur. Therefore the defendants owed a duty to protect the decedent from the assault which occurred. The plaintiff argues that the decedent was an "invitee."
The plaintiff describes the decedent as an "invitee" and a "visitor."
The plaintiff also describes the City of Bridgeport as an urban area with an "extensive" gang problem. The Midway carnival, held at one location within Seaside Park is an area adjacent to a gang crime "hot spot." The event was held on a Friday evening in the summer, when local rival gang members would be in attendance. The plaintiff claims there had been a history of problems during prior Midway events, though police records submitted to the court seem to indicate otherwise. According to the plaintiff, police protection in the past years had prevented the violence from escalating, and on the subject evening, the defendants had been notified, prior to the opening of the Midway, that due to a lack of available police officers, there would be no police protection until later in the evening. Nonetheless, the plaintiff argues, defendants did not delay the opening of the Midway or cancel the Midway. The plaintiff claims that the defendants, therefore, provided no security, no protection and no deterrents in a high crime area, with a history of criminal conduct, with rival gang members in attendance.
Seaside park consists of approximately 210 acres. The Midway carnival was held on a portion of that acreage.
There was a police presence at Seaside Park, but the available officers were assigned to security and traffic duties for the annual fireworks display, until that event concluded. In the past, the police would have six to eight officers walking in tandem at the Midway. However this was an informal policy based upon the discretion of police authorities using their discretion in deploying police officers.
III
A.
Duty
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Citations and internal quotation marks omitted.) Murdock v. Croughwell, 268 Conn. 559, 566 (2004).
As a matter of law, the plaintiff's decedent fell into the category of a business invitee, in that he was invited to enter the land upon which the Midway was being conducted, for a purpose directly or indirectly connected with business dealings with the possessors of land. See 2 Restatement (Second), Torts § 332(3) (1965), Gargano v. Azpiri, 110 Conn.App. 502, 507, 955 A.2d 593 (2008). See also Monk v. Temple George Associates, 273 Conn. 108, 117-18, 869 A.2d 179 (2005).
"Under the common law, a possessor of land owes an invitee two separate duties: the duty to inspect and maintain the premises to render them reasonably safe, and the duty to warn of dangers that the invitee could not reasonably be expected to discover." Gargano v. Azpiri, supra, 110 Conn. 510. Although there is no duty to warn an invitee "who has actual knowledge of a dangerous condition," Fleming v. Garnett, 231 Conn. 77, 84, 646 A.2d 1308 (1994), "a possessor of land has a duty to maintain the premises in a reasonably safe condition, despite the openness and obviousness of a defect of which the invitee has knowledge." Gargano v. Azpiri, supra at 510. Furthermore, under certain limited circumstances a business may owe a duty to its invitees to warn them of dangers they could not reasonably be expected to discover associated with the invitee's anticipated uses of the premises. See Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981). The defendants, therefore owed a duty of care to the decedent to make sure that the premises are reasonably safe; a duty to warn or guard the decedent "visitor" from being injured; and the duty that activities on the premises will be conducted in a way so as not to injure the "visitor." The "standard of care or duty, imposed by law on those in control of the premises, owed to an invitee such as the decedent, includes keeping and maintaining the premises in a reasonably safe condition, reasonably inspecting the premises, and warning the invitee of dangers that the invitee could not reasonably be expected to discover. DiPietro v. Farmington Sports Arena, 123 Conn.App. 583, 601-02, 2 A.3d 963 (2010).
Solution and 5 Star argue that they were not the owners or possessors of the land and site where the Midway carnival was held. They state that Seaside Park was owned, possessed and controlled by the City of Bridgeport. There is no dispute that Bridgeport owns Seaside Park. However, "liability in a premises liability case is based solely on control and possession, not title." Lin v. National Railroad Passenger Corp., 277 Conn. 1, 16 n. 10, 889 A.2d 798 (2006). In determining whether either Solution and 5 Star, or both, had indeed become an occupant of the area of Seaside Park where the Midway was held, the court relies on the Black's Law Dictionary definitions of "occupancy" as the "period or term during which one owns, rents or otherwise occupies property," and of "occupant" as "[o]ne who has possessory rights in, or control over, certain property or premises." Black's Law Dictionary (8th Ed. 2004); Estate of Owens v. CTRE, LLC, 123 Conn.App. 61, 66, 998 A.2d 1285 (2010). "Possession is the holding of land legally by one's self or through another such as a lessee, under title or interest of any kind." See Ballentine's Law Dictionary (3rd Ed. 1969). The existence of possession of real property is largely a question of fact depending on the nature of the property and the surrounding circumstances. See id. Regarding the issue of control, the "[r]etention of control is essentially a matter of intention to be determined in the light of all the significant circumstances . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee . . ." Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue." (Citations omitted.) (Emphasis added; internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 305, 308-09, 991 A.2d 1105 (2010).
The Bridgeport Parks and Recreation Department issued a permit for the Midway carnival naming Solution and 5 Star as the applicants. The applicant was defendant Thomas Kelly of Solution, who listed his title as "Executive Producer." The permit listed the "soccer field" portion of Seaside Park as the area granted in the permit to the "applicants." The Bridgeport Police Department then issued its permit for the event based on an application, which was also signed by Kelly, listing the organization as 5 Star. The deposition testimony of Kelly reveals that he was not an authorized agent, servant or employee of 5 Star and possessed no authority to sign these permit applications in behalf of 5 Star. Kelly also testified that Solution, not 5 Star, was responsible for payment for any police protection for the event. Furthermore, Kelly testified that 5 Star was not responsible for arranging for any police protection for the Midway and that Solution, working in conjunction with the Bridgeport Police Department was responsible for arranging for adequate police protection for the Midway. Kelly testified that Solution was the "permittee" for the event. 5 Star had, over the years, provided the amusement rides and carnival games for the Midway carnival. The plaintiff in opposing 5 Star's motion for summary judgment has not presented any evidence that 5 Star was the permittee, owned, rented, possessed or controlled the premises where the Midway carnival took place on June 24, 2005, other than the permits signed by Kelly, listing 5 Star as an applicant. The deposition testimony of Kelly, which was subject to cross examination by the plaintiff, clearly establishes that Kelly had no authority to represent 5 Star on the application for the Parks and Recreation Department permit and the Bridgeport Police permit. Under the circumstances of this case, as presented to the court, the defendants Star owed no duty to the decedent as a business invitee. Accordingly, summary judgment is granted as to the defendants 5 Star Amusement Co., Inc., Linda Coleman and Robert Coleman, Jr. as to the Second Count of the plaintiff's Third Amended Complaint.
The deposition testimony of Acting Chief Honis describes the site of the Midway as a parking lot near ballfields.
5 Star only applied for safety inspection permit of its amusement rides through the Connecticut Department of Public Safety.
It appears that a predecessor legal entity of 5 Star was the Coleman Brothers Shows, Inc.
Regarding the defendants, Solution, LLC, Goldstone and Tom Kelly, the court finds that there are genuine issues of material fact regarding the extent of their possession and control of the site of the Midway carnival premises, notwithstanding the fact that Seaside Park was owned by the City of Bridgeport on June 24, 2005, the date of the subject incident. Accordingly, as to these defendants the court will discuss the remaining issues regarding the reasonable forseeability that a homicide would occur on the subject date; the furnishing of police protection for the Midway; and whether the death of Clarence Mills, decedent, was caused by an intervening criminal act, which was not within the scope of the foreseeable risk created by the conduct of Solution, LLC.
B.
Forseeability of Harm
Having determined that there are genuine issues of material fact regarding whether Solution had a legal duty to the decedent as an invitee by virtue of the defendants alleged possession and control of the Midway premises the court analyzes the motion for summary further to determine whether there are issues of fact as to whether Solution can be found to have violated a duty to use care regarding the forseeability of the general nature of the harm suffered by the decedent.
[T]he determination of whether a duty exists between individuals is a question of law . . . Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results . . . Our first step in an analysis of whether a duty exists and the extent of the defendant's duty, therefore, is to determine the foreseeability of the plaintiff's injury, i.e., whether a reasonable person in the defendant's position, knowing what he knew or should have known, would have anticipated the harm that resulted from his actions"
(Citations and internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 404-6 (1997).
Thus, "[t]he test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis." Monk v. Temple George Associates, LLC, supra, 273 Conn. 114. In conducting the analysis regarding the foreseeability of the type of harm that led to the decedent's death and whether any negligence of the defendants was the proximate cause of the shooting and death of the decedent, the court is guided by the decisions in Monk v. Temple George Associates, supra, 273 Conn. 108 and Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 609, 662 A.2d 753 (1995).
The plaintiff has submitted a sworn affidavit from Neil Sullivan, a retired Hartford Police Officer, who the plaintiff has retained as an expert witness. Sullivan, in summary, states:
Sullivan was an expert witness in Monk v. Temple George Associates, supra, 273 Conn. 111.
(1) That the incident leading to the decedent's death was forseeable;
(2) The City of Bridgeport, like all major urban cities in Connecticut, had major problems with gang activity and gang violence;
(3) Seaside Park is located next to Marina Village, a "hot spot" and high crime area;
(4) The Midway event was likely to attract individuals who are more inclined to perpetrate crimes, such as assaults and homicides;
(5) The fact that the Midway was held on a Friday evening in the month of June was likely to attract gang members;
(6) Although the method in which police officers were chosen to work the Midway changed over the years, the "blueprint" of six to eight officers to promote safety has remained static;
(7) The assignment of six to eight uniformed Bridgeport Police officers would have decreased the likelihood that an assault or homicide would occur;
8) The Midway could not be held safely on the evening of June 24, 2005 in Seaside Park without police protection;
(9) There were no uniformed police officers within the confines of the Midway at, or near, the time leading up to, the decedent's death, and;
(10) The Midway could not be held safely on the evening of June 24, 2005 in Seaside Park without private security in addition to police protection; and
(11) When it became known that there was a lack of adequate police protection, the Midway should have been cancelled by Solution and 5 Star.
The defendants argue that the opinions of Sullivan are conclusary and not based on the facts of this case or Sullivan's personal knowledge. Additionally, they argue, the deposition testimony affidavits and documents offered in this matter by the defendants establish conclusively that there was no history of violent acts at the Midway between 1991 and June 24, 2005, and the incident that led to the decedent's death was not gang-related.
"It is well settled that, for purposes of summary judgment, the moving party 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; emphasis added; internal quotation marks omitted.) Gupta v. New Britain General Hospital, supra, 239 Conn. 582. Merely alluding to disputed material facts . . . without providing substantiation, does not sufficiently establish those facts to preclude summary judgment." Nolan v. Borkowski, 206 Conn. 495, 503 (1988) 538 A.2d 1031. "To oppose a motion for summary judgment successfully, the non-movant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, 123 Conn.App. 583, 598, 2 A.3d 963 (2010), quoting Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464-65, 976 A.2d 23 (2009). "[T]he existence of [a] genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate then the court is justified in granting the summary judgment, assuming that the movant has met [its] burden of proof . . ." Fiorelli v. Gorsky, 120 Conn.App. 298, 305, 991 A.2d 1105 (2010).
The general standard for admissibility of expert testimony in Connecticut is simply that the expert must demonstrate a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue . . . Once the threshold question of usefulness to the jury has been satisfied, any questions regarding the expert's qualifications properly go to the weight, and not to the admissibility, of his testimony. The underlying principle is that if any reasonable qualifications can be established, the objection goes to the weight rather than the admissibility of the [expert's opinion] evidence. In addition, Practice Book § 17-46 sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit. The requirements that the affidavit be based on personal knowledge and contain facts admissible at trial do not mean, however, that expert opinions in the form of affidavits may not be considered in a summary judgment proceeding. For the purposes of an expert's opinion, the expert's personal knowledge of facts is comprised of those materials on the basis of which he properly may render his opinion. These materials include those on the basis of which the expert forms an opinion, and include . . . hearsay . . . Furthermore, an expert's opinion is, for purposes of § [17-46], a fact that would be admissible at trial, assuming that the expert is qualified to render such an opinion. Thus, an expert's opinion may be based on second hand sources, such as his training and experience, and information obtained from others. Although an expert's opinion must be based on facts, "there is no rule of law declaring the precise facts which must be proved before [his] opinion may be received in evidence."
(Internal citations omitted) (Internal quotations omitted.) DiPietro v. Farmington Sports Arena, supra, 123 Conn.App. 613-14.
Our code of evidence incorporates these standards. Section 7-4(a) provides that an expert may give an opinion "provided sufficient facts are shown as the foundation for the expert's opinion." Conn. Code Evid. § 7-4(a). Section 7-4(b) provides that those facts "may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject . . ." Conn. Code Evid. § 7-4(b).
The defendants do not raise objections to Sullivan's qualifications as an expert. They do, however, argue that the statements contained in his affidavit do not reveal sufficient facts to provide any foundation for his conclusory statements contained therein. He does not disclose where he obtained any knowledge of facts to allow him to reach the conclusions contained in the affidavit other than Honis' deposition testimony, much of which does not support Sullivan's conclusions. The court cannot discern that he has any personal knowledge of any facts concerning this incident, gang activity in Bridgeport, the site of the event, or police statistics regarding the history of criminal activity at the Midway or the surrounding areas. While Sullivan's lack of personal knowledge of any facts, would not on its own invalidate his opinions or statements in his affidavit, the court cannot discern where he may have obtained even hearsay knowledge other than his review of Honis' deposition. Sullivan does not identify anyone with whom he may have conversed. He does not recite any studies that he has conducted; any investigation he has undertaken; any site visits he has made; any documents he has reviewed; or any comparisons he has made. See DiPietro v. Farmington Sports Arena, supra, 123 Conn.App. 614-15. See also, Porter v. Thrane, 98 Conn.App. 336, 340-41 908 A.2d 1137 (2006) (the opinion of a residential real estate appraiser, who presented an updated appraisal report, was improperly admitted into evidence because the appraiser did not have the essential facts necessary to form an opinion about the value of the property.").
The court agrees with the defendants that statements in Sullivan's affidavit do not constitute evidence sufficient to establish the existence of material facts. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996). Unlike the expert Sullivan's report in Monk v. Temple George, supra, 273 Conn. 108, 115-16 (2005), Sullivan's affidavit in the present case presents no detailed basis or foundation to bolster the conclusions he states in his affidavit. Sullivan does not recite that he compiled a report or conducted an investigation other than to review the deposition testimony of Deputy Police Chief Honis. He does not reveal what documents he reviewed in coming to the conclusion that the incident was gang-related, and that the Midway was likely to attract individuals who are more inclined to perpetrate crimes, such as assaults and homicides. Again, this is despite the Bridgeport police statistics which reveal that relatively little crime had occurred at the Midway, historically. He offers no foundation for an opinion that the defendants had, at the very least, a constructive awareness of the potential for violent crime in the vicinity of their property. Id., 125. Lastly, he offers no foundation to support the extent to which the defendants' alleged negligence in failing to supervise the lot properly was a substantial factor in causing the decedent's injuries and death from the attack. Id. Sullivan attempts to justify his conclusions simply by reciting his training and experience in police work and private security and reciting that this has resulted in his having "knowledge of the major urban areas in Connecticut."
While the court does not rely upon Sullivan's affidavit to determine whether issues of fact exist as to forseeability, the analysis does not end there, as the court has in its possession other evidence to consider. In reviewing the deposition testimony of Kelly, it is apparent that he and Goldstone were aware earlier in the week preceding the night in question, that there may be a pending job action by the Bridgeport police officers which would affect the Police Department's ability to properly staff both the Midway and the fireworks event. On the day before and the day of the event Goldstone called the police chiefs office to inquire about the plans for police coverage and did not get a reply. Approximately one hour before opening the admission gates on the night in question, Goldstone and Kelly learned that Solution would not get the police staffing they had requested, and, if act, Kelly only observed one policeman present at the rear admission gate. Goldstone and Kelly made a decision to open the Midway to patrons at 6:00 p.m., despite the fact that in his application to the Bridgeport Parks and Recreation Department, Kelly estimated that approximately five thousand people were expected to attend the event. With this diminished police coverage, the events at the Midway proceeded without a disturbance until approximately 10:00 p.m. when the shooting of the decedent occurred. While it is disputed as to how many, if any, police officers were within the confines of the fenced Midway area when the shooting occurred, it took more than fifteen minutes for additional police assistance to arrive at the scene.
A genuine issue of material does exist regarding forseeability under the circumstances prevailing on the evening in question that an attack on a patron, such as the decedent could occur whether spontaneously or precipitated by an argument among patrons at the Midway event. It is also a genuine issue of fact whether the presence of more police officers would have decreased the likelihood that such an assault as the one suffered by the decedent would occur. See Monk v. Temple George, supra, 273 Conn. 115-16.
"Foreseeability notwithstanding, it is well established that Connecticut courts will not impose a duty of care on the defendants if doing so would be inconsistent with public policy. Id., 116. "[I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation . . ." and (4) the decisions of other jurisdictions." (Citations omitted.) Id., 118.
In applying these four factors and the court concludes that imposing a duty of care on the defendants under the circumstances of the present case is not inconsistent with public policy. It seems likely that a business invitee reasonably would expect, at a minimum, that the Midway have sufficient police protection or security at all times so as to offer some measure of safety to customers. This is particularly so when the promoters of the event, Solution, LLC anticipated approximately 5,000 patrons. It seems logical that Solution, which was engaging in the event for profit would reasonably be expected to provide some measures of extra security, other than police, for their paying customers, in light of the fact that Goldstone and Kelly were aware earlier in the week that adequate police protection might not be available on the evening in question. Id., 119.
"The second factor, encouraging participation in the activity, also militates in favor of imposing a duty." Id. As a matter of public policy, it is desirable to promote business activity and recreational events in Connecticut cities, and to encourage citizens to support local events, such as, the annual Barnum Festival and the Midway. Id. While imposing this duty would increase the costs associated with this type of an event, it is unlikely that it would cause the event to be canceled or not held in ensuing years. The benefits of reasonable security probably would outweigh the burden of a marginal increase in costs for the promoter or the ticket price for the customer, and more citizens would be likely to attend the event if they were assured of a safer environment. Id.
"The third factor, which is the likelihood that imposing such a duty would avoid increased litigation, is an admittedly weaker factor; it does not, however, compel the conclusion that imposing a duty of care on the defendants is inconsistent with public policy. Id., 120. The purpose of doing so in the present case is, however, to protect customers by encouraging promoters of events, such as this, to take reasonable care to decrease the likelihood of crime occurring on their premises. Id. The taking of reasonable care "is not the same as ensuring the safety of customers." Id. The fact, . . . that there is no evidence of a prior similar incident on the defendants' premises, although significant to foreseeability, is not dispositive." Id., 121. The plaintiff has presented enough information for the court to determine that there are genuine issues of material fact as to the question of forseeability.
C.
Causation
The court must next determine whether there is a genuine issue of material fact as to whether the defendants' alleged negligence proximately caused the attack. Viewing the evidence, as we must, in a light most favorable to the plaintiff, we conclude that there is a genuine issue of material fact as to the liability of Solution, LLC, Goldstone and Kelly, defendants' liability in the present case. Accordingly, the relevant question is whether, assuming a breach of duty on the part of the defendants, is there a genuine issue of material fact that the defendants' conduct was a proximate cause of the attack on the plaintiff. The court answers that question in the affirmative.
"[P]roximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm . . . [T]he inquiry fundamental to all proximate cause questions . . . [is] whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Citations omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321, 852 A.2d 703 (2004). "Additionally, we note that a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct." (Citations omitted.) (Internal quotation marks omitted.) Monk v. Temple George, supra, 273 Conn. 124. "Therefore, the liability of the defendants depends on the foreseeability of the plaintiff's attack as well as the extent to which the defendants' alleged negligence was a substantial factor in causing the plaintiff's injuries." Id., 125.
Goldstone and Kelly's concerns regarding a lack of police protection in the days leading up to the Midway on June 24, 2005, suggests that the defendants had, at the very least, a constructive awareness of the potential for violent crime at their event. Similarly, there appears to be a genuine issue of fact regarding the extent to which the defendants' alleged negligence in failing to provide adequate security was a substantial factor in causing the decedent's injuries and resulting death, from the attack by the defendant Lucilo Cifuentes See Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 613, 662 A.2d 753 (1995). "The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue. It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." Id., 611. "[I]t is the general nature of the crime, not the particular crime, that defines the breadth of the scope of the risk." Id. "[W]here the negligent conduct of the defendants creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of a criminal act, that act does not relieve the defendants of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the defendants' conduct." See id., 608. In light of the affidavits, reports and deposition transcripts reviewed by this court, there is a genuine issue of material fact that the harm that befell the decedent was reasonably foreseeable and within the scope of the risk created by the defendant's negligence, and whether the acts of the defendant, Cifuentes, was an intervening cause.
D.
Statutory Duty-General Statutes § 7-284
The defendants argue that the City of Bridgeport was statutorily obligated to provide police protection to the Midway pursuant to General Statutes § 7-284. The defendants state that the permit for this event was approved by the City in 2005, and the permit required security at the event. The security was to be coordinated with the Police Department Outside Overtime Office. The defendants, argue that the Bridgeport Police Department was responsible for assessing the number of overtime officers and the manner in which they would be deployed. Deputy Chief Honis, in deposition testimony, stated that in the past, the police department assigned six to eight officers, sometimes walking in tandem, to patrol the Midway.
General Statutes § 7-284 provides in relevant part as follows:
"When police protection is necessary or required at any boxing bout or wrestling match, place of public amusement, sport contest or hockey, baseball or basketball game, or any other exhibition or contest, which is being held or is to be held in any municipality, the amount of such protection necessary shall be determined and shall be furnished by (1) the chief or superintendent of the police department in any municipality having an organized or paid police department . . . Any such protection shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest."
There are very few court decisions interpreting General Statutes § 7-284 in any context, but the court agrees with the defendants that those decisions that exist agree that the statute does not create a ministerial duty. In Plainfield v. Commissioner of Revenue Services, 213 Conn. 269, 567 A.2d 379 (1989), the principal issue was whether the plaintiff town of Plainfield, when it furnished police protection pursuant to General Statutes 7-284, provided a taxable service under General Statutes 12-407(2)(i)(E) and 12-426-27 (B)(5) of the Regulations of Connecticut State Agencies. Id., 270. In determining that issue, the court undertook an analysis of § 7-284 and stated:
Section 7-284 provides that when police protection is `necessary' at any listed event, `the amount of such protection necessary shall be determined and shall be furnished by' the chief of police . . . 7-284 does not `mandate' public protection at the enumerated events. Section 7-284 represents, rather, a legislative determination that in some circumstances the security arrangements, if any, provided by the promoter of an event may not be adequate and, further, that the ultimate determination of adequacy is to be made by a police official rather than the promoter.
Id., 273. The statement of the court indicates that the implementation of the statute requires a use of discretion and judgment by police officials.
Two Superior Court decisions by Judge Cosgrove in 2008, in the case Walker v. Freddy Fixer, Inc. have addressed § 7-284. In the case of Walker v. Freddy Fixer, Inc., Superior Court, judicial district of New Haven at New Haven No. CV 06-5003842 (Sep. 29, 2008, Cosgrove, J.) 46 Conn. L. Rptr. 421, the plaintiffs attended a parade, known as the Freddy Fixer Parade, which was conducted, in part, in the streets of New Haven. The City of New Haven, through its police department, provided security during the parade and was, as in the present case, a defendant to this action.
In his analysis of Sec. 7-284, the Judge Cosgrove stated:
A reading of the statute makes it evident that it does not state that such events must have police protection. The statute only applies "when" police protection is deemed necessary or required. It does not state that such events automatically trigger a need for the municipal police to provide such services. Also, when such protection is thought to be necessary or required, the statute leaves it up to the discretion of the police in determining the manner in which the security is to be provided. The only requirements created by the statute relate to identifying the municipal employee responsible for making the logistical determinations for the security, as well as stating that the person or organization presenting the event, and not the municipality, is responsible for paying for the police services . . . [Section] 7-284 places the discretion to determine the amount of security, and the determination of types of security required, within the local police department.
Id.
The court has reviewed a sworn affidavit by defendant Armeno, which was submitted in support of summary judgment. Armeno states that there is no formal or informal policy, written or oral that the police department is supposed to follow when deciding the appropriate level of police protection or security for the City of Bridgeport. Armeno in his affidavit confirms that he was aware of Deputy Chief Honis' deployment plan for the fireworks display and the carnival at Seaside Park on the evening in question. Given the prevailing circumstances on that evening, Armeno concluded based on his training and experience that the deployment plans and the number of officers to be deployed were appropriate for the proper level of security for both the Midway carnival and the fireworks display and that officers were, in fact, deployed for the Midway carnival. Armeno states that there were more than enough officers deployed for these events and it was unnecessary in his judgment to cancel or postpone the Midway event or to require Solution, LLC to provide private security.
While the defendants were required by virtue of the conditions of the permit issued by the Bridgeport Police Department to hire police for the event from the over-time office of the police department, there is nothing in the language of § 7-284 that prevents the defendants Goldstone, Kelly and Solution from hiring additional security. This is especially true when viewed in the context of the circumstances, wherein Goldstone and Kelly had been alerted that sufficient police protection might not be available for the Midway on June 24, 2005. While Acting Chief Armeno has given an opinion that this was not required, it remains an issue of fact whether a sufficient number of officers were available and whether the defendants should have canceled the event for that evening or hired additional security.
IV
Orders
The Motion for Summary Judgment filed by 5 Star Amusement Co, Inc., dated March 15, 2010 (#223) is hereby granted as to the Second Count of the plaintiff's Third Amended Complaint. The Motion for Summary Judgment filed by Solution, LLC, dated March 10, 2010 (#220), is hereby denied, as to the First Count.