Opinion
No. CV 04-0830569
February 1, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#131)
I PROCEDURAL HISTORY
On December 30, 2004, the plaintiffs, Lorraine Santana and Crystal Santana, in their capacities as conservatrix of the person and estate, respectively, of David Lowell, and Lorraine Santana ("Santana"), individually, filed the operative complaint against the defendants, Hartford Police Officers Jeff Rohan and Ursula Musgrave, and the city of Hartford, respectively, alleging negligent investigation and police procedure in the shooting of Lowell.
On October 16, 2000, Santana placed a 911 phone call requesting police presence to help Lowell. "My brother, he he's like going crazy, he just put a window, a board through my window . . . He's he's he's not all there in his head anyway . . . he's getting ready to take off on his bike and he needs to be committed somewhere and I don't know what to do — to go about doing it. If he gets arrested or whatever . . . [He] has a brain injury and he's just the last few days he's really going crazy . . . he just broke two windows." (Defendants' Memorandum, Exhibit A.) Thereafter, the dispatcher requested a 47-44, the police signal for a domestic mental case.
Rohan was the first to arrive on the scene. Santana informed Rohan that Lowell had suffered a traumatic brain injury twenty years ago. Musgrave arrived a few minutes later. The officers, along with Santana, walked through the first floor of the residence, past the broken glass and to the stairway. Rohan ascended the stairway to a step just past the midpoint landing. Here, Rohan observed Lowell standing on the second floor. Lowell, a man of approximately five feet ten inches to six feet tall and weighing about three hundred pounds, stood with a sling that extended from his waist to his shoulder, containing a knife that was strapped somewhere near his chest. On Lowell's right side was a bicycle. Rohan directed Lowell to drop the weapon. Lowell resisted, claiming that the knife was his and that he wanted to be left alone. Removing his firearm from the holster and pointing it downward, Rohan requested that Lowell drop the weapon. Lowell stated that he wanted to leave. Rohan continued to order Lowell to drop his weapon. Fearing her brother's agitation, Santana screamed to the officers not to hurt her brother. Rohan then descended the stairway and instructed Musgrave that they should back down and exit the house. (See generally, Defendants' Memorandum, Exhibits A-R and Plaintiffs' Memorandum, Exhibit A-J.)
The officers maintain that upon exiting the building they stood in a parking lot with Rohan to the left of the door and Musgrave to the right. The doorway remained clear and Lowell exited the premises, remaining in possession of the knife and the bicycle. Lowell walked a short distance from the door, stopped, and turned toward Rohan. Lowell then threw the bicycle to the ground, extracted the knife with his right hand, and charged at Rohan. Ret-eating backwards, Rohan fired two shots that missed Lowell. Rohan fired four more shots, until Lowell fell to the ground. Musgrave did not discharge her weapon. The plaintiff's dispute the accuracy of these events. The evidence indicates, however, that Santana did not see what transpired in the parking lot, and that Lowell is mentally incompetent to testify.
Originally, the plaintiffs and Santana brought an action against Rohan, Musgrave, the city of Hartford, and acting Police Chief Robert Rudewicz, in United States District Court seeking damages arising out of Rohan's shooting of Lowell. In that action the plaintiffs sought to recover under 42 U.S.C. § 1983 alleging excessive force, and common-law causes of actions for negligence and emotional distress. The defendants moved for summary judgment as to all claims. In a ruling dated September 19, 2003, the court, Hall, J., granted the defendants summary judgment on the Section 1983 claims, but abstained from exercising jurisdiction on the pendent state law negligence claims, dismissing them. Santana v. Hartford, 283 F.Sup.2d 720, 729 (D.Conn. 2003).
Thereafter, the plaintiffs brought this civil action in the Superior Court. In count one, the plaintiffs allege that Rohan negligently investigated and negligently proceeded with using a firearm to confront Lowell. In count two, the plaintiffs allege similar negligence of Musgrave, and in particular, that she failed to intervene so as to prevent Rohan from using his firearm. Counts three and four are claims brought by Santana, individually, against Rohan and Musgrave, alleging emotional distress as a result of each one's negligence. Count five is a claim of the plaintiffs against the city of Hartford that seeks assumption of liability for damages, under General Statutes § 7-465, arising out of any liability of Rohan or Musgrave for counts one through four.
Moreover, the plaintiffs contend that the negligence of Rohan caused Lowell to be arrested for attempted murder and for carrying a dangerous weapon. As a result of the officers' negligence, Lowell suffered multiple gun shot wounds that caused physical, neurological and emotional impairment, pain and suffering, expenses for medical care and treatment, the loss of earning capacity, and the inability to carry out life's normal functions.
Specifically, Santana "witnessed and/or heard" the shooting of Lowell, that she "could hear [Lowell] being repeatedly shot and was aware that he had suffered severe injuries," that she "personally experienced a contemporaneous sensory perception of the shooting of her brother" that resulted in "severe emotional distress, some or all of which are or may be permanent in nature."
On October 7, 2005, the defendants filed an answer and seven special defenses: (1) failure to state a claim upon which relief may be granted as to all the defendants; (2) governmental immunity as to Rohan and Musgrave; (3) that any injuries suffered by Lowell were directly and proximately caused by Lowell's own negligence as to all the defendants; (4) that any injuries suffered by Santana were directly and proximately caused by her own negligence as to all the defendants; (5) that as a result of Rohan and Musgrave's entitlement to governmental immunity and lack of liability, there is no basis of liability as to the city of Hartford; (6) collateral estoppel; and (7) that Lowell was not an identifiable victim subject to imminent harm.
On March 29, 2005, the defendants filed a motion to strike all five counts of the plaintiffs' complaint based upon governmental immunity. In the memorandum of decision dated June 7, 2005, the court, Shapiro, J., denied the motion on all counts finding that "the facts alleged by the plaintiffs appear to implicate discretionary, not ministerial, duties." Santana v. Rohan, Superior Court, judicial district of Hartford, Docket No. CV 04-0830569S (June 7, 2005, Shapiro, J.) [ 39 Conn. L. Rptr. 461]. In conclusion, the court, Shapiro, J., determined that the issue of "whether the identifiable person/imminent harm exception applies to the defendant officers' conduct in relation to Lowell must await evidentiary presentation." Id.
The plaintiffs do not dispute this conclusion in their memorandum of law.
The defendants next moved the court for summary judgment on all five counts. The defendants argued that they were entitled to summary judgment on the theories of res judicata, collateral estoppel or issue preclusion. In the alternative, the defendants claim that Rohan and Musgrave are entitled to governmental immunity, and that as a result of this immunity, the city of Hartford may not be indemnified under General Statues § 7-465a. The defendants filed a memorandum of law in support of their motion for summary judgment, and also provided various documents in support of their motion including, affidavits, photographs, depositions and a transcript of the 911 phone call. On August 8, 2006, the plaintiffs filed an objection to the defendants' motion for summary judgment and a memorandum of law in support of the objection. The plaintiffs contest that the state law negligence claims were not decided by the federal court and maintain that there is an issue of material fact as to whether Lowell was an identifiable victim subject to imminent harm. The plaintiffs also filed various documents for the court to consider in deciding the motion for summary judgment, including policies and procedures of the Hartford Police Department, affidavits and depositions.
II DISCUSSION
Under Practice Book § 17-49, "[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." Practice Book § 17-49. "[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata . . ." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 867 n. 8, 675 A.2d 441 (1996). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 757, 905 A.2d 623 (2006). "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 [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
A. RES JUDICATA, COLLATERAL ESTOPPEL ISSUE PRECLUSION
The defendants argue in their memorandum in support of the motion for summary judgment that by virtue of the court's, Hall, J., holding that Rohan's use of his firearm was reasonable, the plaintiffs' claims are barred by res judicata, collateral estoppel or issue preclusion. Specifically, the defendants claim that "the United States District Court did reach the merits of the `reasonableness' of Officer Rohan's conduct . . . [and] [a]lthough it was done in the context of analyzing federal claims, reasonable conduct is also the standard for claims of negligence, which is the premise for the plaintiffs' present claims in this action." (Defendants' Memorandum, p. 15.) In response, the plaintiffs argue, in their memorandum in opposition to the motion, that issues of negligence were not addressed by the federal court. Accordingly, before determining the applicability of res judicata or issue preclusion, the court must determine the threshold question, here, whether a state law cause of action in negligence is precluded by a federal court's determination of reasonableness in a 42 U.S.C. § 1983 claim.
To prove a constitutional deprivation under Section 1983 an initial inquiry must be made as to: "(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). When considering whether an arresting officer is engaged in excessive force under Section 1983 "[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . As in other Fourth Amendment contexts, . . . the reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." (Internal quotation marks omitted.) Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). When appropriate, similar factual circumstances may permit a claimant to recover from the officer under ordinary negligence. "The standard of care in the ordinary negligence case is the care that a reasonably prudent person would exercise under the same circumstances." Roach v. Ivari International Centers, Inc., 77 Conn.App. 93, 102, 822 A.2d 316 (2003).
In Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the United States Supreme Court held that a finding of ordinary negligence does not give rise to a claim that one's constitutional rights have been deprived under Section 1983. Id., 328. The Daniels court reasoned that "[f]ar from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law." Id., 332. Various decisions within the United States Court of Appeals for the Second Circuit and the United States District Court for the District of Connecticut have recognized Daniels and denied mere allegations of negligence from implicating the Due Process Clause. See generally Dodd v. Norwich, 827 F.2d 1, 3 (2d Cir. 1987); Van Eck v. Gallucci, 321 F.Sup.2d 368, 372-73 (D.Conn. 2004); Murphy v. Bradley, United States District Court, Docket No. 3:03cv714 (DJS) (D.Conn. January 16, 2004).
The court concludes that a prior determination that an officer was not in violation of the Fourth Amendment's prohibition on excessive force would not preclude a jury from finding that the officer was negligent under the common law. Accordingly, the defendants have not met their burden of proving that there is no genuine issue of material fact as to whether their conduct constituted negligence. Therefore, res judicata, collateral estoppel and issue preclusion are not applicable under the circumstances presented.
The plaintiffs also argue that "[t]he Federal Court did not address the issue of negligence as it relates to Officer Rohan in not following Hartford Police Department Policy and Procedure in responding to a "mental case" dispatch . . ." The defendants have not sustained their burden by offering sufficient evidence to the contrary. Thus, a genuine issue of material fact exists on this specification of negligence.
B. GOVERNMENTAL IMMUNITY — THE IDENTIFIABLE PERSON/IMMINENT HARM EXCEPTION
The defendants argue in their memorandum in support of the motion for summary judgment that even assuming that res judicata, collateral estoppel or issue preclusion is not a proper basis for granting summary judgment, that the doctrine of governmental immunity protects the defendants from liability for discretionary actions. The defendants also maintain that the three recognized exceptions to discretionary actions do not apply to this case. The plaintiffs, in turn, argue that an issue of material fact does exist as to whether the identifiable person/imminent harm exception to discretionary immunity applies to this case. Thus, the pertinent issue before the court is whether Lowell constitutes an identifiable person who was subject to imminent harm such that the defendants are not entitled to governmental immunity.
When a municipal employee's actions are discretionary in nature, governmental immunity may be abrogated in three situations. "First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006). The identifiable person/imminent harm exception to discretionary act immunity "requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm . . . [T]his exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329.
Under the facts, as previously discussed, when examining the evidence in the light most favorable to the nonmoving party, the court finds that there are genuine issues of material fact as to whether the officers' conduct would be likely to subject Lowell, as an identifiable victim, to imminent harm.
III CONCLUSION
The defendants' motion for summary judgment is denied because there are genuine issues of material fact.