Opinion
No. CV07 5009651
April 30, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendants, City of Stamford, Brett Larrabee, Gary Nevola, Tom Pjatak and Fred Raymond ("Stamford defendants") have filed a motion for summary judgment regarding Counts One through Eight, which are directed against said defendants. The Stamford defendants have filed an Answer and Special Defenses claiming qualified immunity pursuant to General Statutes § 52-557n(a)(2) and General Statutes § 52-557n(b)(6). At all relevant times, the defendant Larrabee was the Stamford Chief of Police and Nevola, Pjatak and Raymond were Stamford police officers.
The remaining counts are directed to the other defendants.
Sec. 52-557n. Liability of political subdivision and its employees, officers and agents . . . Reads in relevant parts:
(a)(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (6) the act or omission of someone other than an employee, officer or agent of the political subdivision . . .
The subject action has been commenced by the plaintiff who alleges that he was seriously injured on July 29, 2006, due to the negligence of one or more of the named defendants, who were employees of the City of Stamford. The plaintiff alleges he was stabbed, as a result thereof. The plaintiff alleges that the incident giving rise to this action began at co-defendant Hula Hank's Bar in Stamford, Connecticut, while the plaintiff and his brother were walking to their vehicle.
The complaint contains ten counts. The motion for summary judgment addresses Counts One through Eight which pertain to the Stamford defendants only. The First Count sounds in negligence against Larrabee for failure to "adopt, promulgate and/or enforce rules, guidelines, policies, practices, procedures and/or customs" regarding having adequate officers to supervise bars at closing; providing plaintiff with a safe means of walking though the parking lot; warning plaintiff of unsafe conditions; providing adequate lighting; supervising the area; and maintaining the safety of individuals during a fight. Counts Three, Fifth and Seventh make similar claims against Officers, Nevola, Pjatak and Raymond. The three officer defendants are also sued for a failure to inspect an individual for a weapon; failure to restrain an individual in an altercation for an appropriate amount of time; and failure to monitor individuals, following their release. Counts Two, Four and Six claim indemnity against the City of Stamford regarding each of the three officers.
The plaintiff argues that summary judgment should not be granted because genuine issues of material fact exist with regard to whether the alleged acts and/or omissions of the various defendants were discretionary or ministerial, and whether the plaintiff was an identifiable victim, affording him the imminent harm exception to claims of governmental immunity. Each party has filed a memorandum of law. The parties have also submitted copies of sworn witness statements, police reports and excerpts of deposition testimony for the court's review.
I Standard of Law
"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 Facts
The incident that gave rise to this action began at the co-defendant Hula Hank's bar and finished in a municipal parking lot which is located in close proximity to Hula Hank's, both of which are located in Stamford, Connecticut. The date of the incident was July 29, 2006. On that date, the plaintiff and his brother were at Hula Hank's when they were engaged in a verbal altercation inside the bar with Alexey Tadiashvili and Matias Gonella. A brief physical altercation between the plaintiff, his brother, Tadiashvili and Gonella, later occurred outside of the bar, as the bar was closing. The police, who were on the scene, separated the parties and detained Tadiashvili and Gonella for a short period of time, while instructing the plaintiff and his brother to leave the scene. After a brief period of time, estimated to be ten minutes, had passed after the plaintiff and his brother had left the scene, the police then released Tadiashvili and Gonella. Tadiashvili and Gonella then proceeded to walk in the same direction that the plaintiff and his brother had taken, as Tadiashvili's mother lived in a complex adjacent to where the subject parking lot was located. When Tadiashvili and Gonella reached the parking lot, they encountered the plaintiff and his brother, and a fight ensued. During the course of this fight Tadiashvili stabbed the plaintiff multiple times with a knife that Tadiashvili had on his person. Co-defendant, Officer Nevola, who was not involved in the initial confrontation outside Hula Hanks, viewed the fight between the plaintiff and his brother and Tadiashvili and Gonella, occurring in the parking lot. He wrestled Tadiashvili to the ground and handcuffed him. Additional police officers, including Mabey and Deleo quickly arrived at the scene. A black camouflaged folding knife in an open position was recovered. Officer Nevola and other officers then handcuffed and arrested the plaintiff's brother, Tadiashvili and Gonella, while medical assistance was provided for the injured plaintiff.
Stamford officers Macari, and co-defendants Raymond and Pjatak were at the scene. Macari detained Tadiashvili and Gonella. Officer Pjatak left the scene to respond to a complaint of another unrelated fight.
CT Page 10222
III Governmental Immunity
"The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct." Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994); Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. "[A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . The word `ministerial' `refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion' . . ." (Citations omitted.) Evon v. Andrews, supra, 211 Conn. 505; Burns v. Board of Education, supra, 228 Conn. 640. "Municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliot v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998)."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." (Internal quotation marks omitted.) Swanson v. Groton, 116 Conn.App. 849, 854, 977 A.2d 738 (2009). Our Supreme Court has approved the practice of deciding the issue of governmental immunity as a matter of law. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "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 [General Statutes] § 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Soderlund v. Merrigan, 110 Conn.App. 389, 394, 955 A.2d 107 (2008); Grignano v. Milford, 106 Conn.App. 648, 654-55, 943 A.2d 507 (2008).
"It is firmly established that the operation of a police department is a governmental function, and that acts and omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . The deployment of officers is particularly a governmental function. Considerable latitude must be allowed to [a police chief] in the deployment of his officers . . . [H]e may not be deprived of his power to exercise his own discretion and judgment as to the number, qualifications, and identity of officers needed for particular situations at any given time." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180. Acts and omissions of police officers in the exercise of their duties are discretionary in nature. Superior Court decisions have determined that the investigation of crimes and the decisions to make arrests for them is clearly a discretionary rather than a ministerial function. Skrobacz v. Sweeney, 49 Conn.Sup. 15, 32, 858 A.2d 899 (2003); Escobales v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 06 4009470 (May 5, 2006, Shapiro, J.) ( 41 Conn. L. Rptr. 351); see also Mikita v. Barre, Superior Court, judicial district of New Haven, Docket No. CV 99 0430564 (May 22, 2001, Munro, J.); Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0147192 (January 2, 2001, D'Andrea, J.) ( 28 Conn. L. Rptr. 671); Elinsky v. Marlene, Superior Court, judicial district of Hartford, Docket No. CV 96 0557659 (October 31, 1997, Hale, J.T.R.); Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 88 253464 (June 4, 1993, Fuller, J.) [ 9 Conn. L. Rptr. 202] (specifically holding that an officer's decision to arrest is discretionary). "How far to investigate a complaint is a matter of police discretion and necessarily so. If the police were to employ exhaustive investigations in every complaint as a bureaucratic technique to avoid all future criticism or liability, the cost in intrusion on civil liberties would be intolerable in a free society." Brown v. Dooling, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 032598 (Jan. 23, 1998, Flynn, J.).
The Stamford defendants, in investigating the initial altercation between the parties outside Hula Hanks bar, and deciding not to make any arrests were performing a discretionary act. There was no formal policy, written or otherwise that required them to make an arrest of any of the parties. "Decisions regarding the scope of an investigation whether probable cause for an arrest exists, whether information is speedy or not, whether to seek an arrest warrant or make a warrantless arrest, when and how best to pursue a wanted person, the number of police officers that are needed to conduct and complete an investigation, whether coordination with other agencies is necessary during an investigation, the search for a suspect or the pursuit of that suspect is appropriate and the proper supervision of subordinates — all require a municipal police officer to employ wide discretion and to exercise judgment. As municipal employees engaged in discretionary functions, these defendants possess qualified governmental immunity from liability unless some recognized exception dissolves that immunity." Swanson v. Groton, Superior Court, judicial district of Middlesex, Complex Litigation Docket at Middletown No. X 04 CV 03 0104164 S (Oct. 26, 2007, Beach, J.); aff'd 116 Conn.App. 849, 977 A.2d 738 (2009). "[T]he great weight of authority [holds] that the operation of a police department is a discretionary governmental function." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988).
IV Identifiable Victim Subject To Imminent harm
Having determined that the acts of the Stamford defendants were discretionary, the plaintiff, to succeed in this claim of liability, must be entitled to recover within one of the exceptions to a municipal employee's qualified immunity for discretionary acts. There are three recognized exceptions. The first exception is where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm. The second is where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and the third, is where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. Burns v. Board of Education, supra, 228 Conn. 645.
The only exception to the qualified immunity of a municipal employee for discretionary acts that is of relevance to the present case is the exception permitting a tort action in circumstances of perceptible imminent harm to an identifiable person. The 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 harm. Doe v. Peterson, 279 Conn. 607, 616 (2006). The failure to establish any one of the three prongs precludes the application of the identifiable victim-imminent harm exception. Violano v. Fernandez, 280 Conn. 310, 329. "We have construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." Id. at 646; see also Sesito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979). "[W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care . . . In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350-51, 984 A.2d 684 (2009).
The plaintiff contends that once the initial altercation occurred outside Hula Hanks, the plaintiff became a foreseeable victim to whom the defendant police officers owed a special duty of care and, thus, the defense of governmental immunity should not apply. The defendant argues that no one, including the plaintiff, his brother and the plaintiff's friends perceived any danger during the initial altercation outside Hula Hanks or at anytime before the plaintiff was stabbed. In addition, no one informed the police of any such danger. The plaintiff and his brother never suspected that Tadiashvili would attack him with a knife, and characterized Tadiashvili as a "drunk mess" who looked "completely harmless." The pushing and shoving incident outside Hula Hanks, which was witnessed by the police, did not raise the plaintiff's level of anxiety or fear.
The existence of a duty of care, an essential element of negligence, is a matter of law for the court to decide. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). "A duty to act with reasonable care to prevent harm to a plaintiff which, if violated, may give rise to tort liability is based on a `special relationship' between the plaintiff and the defendant." See W. Prosser, Torts 56 (4th ed. 1971); Burns v. Board of Education, supra, 228 Conn. 646; Neal v. Shields, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974). "`A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.' Coburn v. Lenox Homes, Inc., [ supra, 375]." Burns v. Board of Education, supra at 646; Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983). "The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised . . ." (Citations omitted; internal quotation marks omitted.) Burns v. Board of Education, supra, at 647, quoting Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981).
"In deciding the issue of when, if ever, an official's public duty precipitates into a special one to prevent harm to an individual, the law requires, to maintain the action, a showing of imminent harm to an identifiable victim . . . The adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society . . . We do not think that the public interest is served by allowing a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman's discretionary professional duty. Such discretion is no discretion at all." Shore v. Stonington, supra, 187 Conn. 151-52.
In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim. E.g., Evon v. Andrews, supra, 211 Conn. 507-08. Burns v. Board of Education, supra, 228 Conn. 647-48. The question becomes, was the plaintiff an identifiable victim in foreseeable imminent danger? Connecticut courts have defined the scope of "identifiable person-imminent harm exception" to include discrete persons or classes of persons involved in situations of danger for a limited period of time, in a limited geographical area where the potential harm is significant and foreseeable. See Purzycki v. Fairfield, 224 Conn. 101, 110 (1998) (finding a school liable where the failure to monitor a hallway allowed a fellow student to trip and injure a plaintiff); Burns v. Board of Education, supra, 228 Conn. 650 (upholding a verdict that found a school superintendent liable for injuries to a student who slipped and fell on an icy walkway, where superintendent neglected to ensure that school grounds were properly salted).
In the context of police cases, such as Sestito v. Groton, 178 Conn. 520 (1978), a police officer, seeing a heated argument, which turned into a brawl, took no action. The plaintiff's decedent was then shot during the brawl. The Supreme Court found the officer might have owed a duty to the plaintiff's decedent and the claims should go to a jury. The injury and the identity of the decedent were foreseeable because the defendant officer had personally observed the fight which led to the shooting, and took no action to stop the fight. Id. 527-28. It was the short chronological duration and the defendant's presence at the scene which made the harm to the decedent imminent.
The American Heritage Dictionary, New College Edition, defines "imminent" as "[a]bout to occur; impending." Webster's Third New International Dictionary defines "imminent" as "ready to take place: near at hand: impending . . . hanging threateningly over one's head: menacingly near . . ." Webster's New World Dictionary, Second College Edition; "immiment" as "likely to happen without delay, impending, threatening . . ." Even if we look to the legal definition of "imminent," Black's Law Dictionary (6th Ed. 1990) defines that term as "[n]ear at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous . . ." There can be no doubt that the common and legal understanding of the term "imminent" includes an element of both immediacy and certainty. Purzycki v. Fairfield, 244 Conn. 101, 117-18, 708 A.2d 937 (1998) (Callahan, J. dissenting).
The defendants argue that in this matter the claimed risk can only be that at some unspecified time in the future after Tadiashvili and Gonella were released by the police outside of Hula Hanks, that Tadiashvili would track the plaintiff down and stab him. This is in addition to the argument that there was no evidence that Tadiashvili was a threat to the plaintiff. There is no evidence that the altercation outside the bar was anything but a typical bar fight, and therefore, the police were not aware that their conduct was likely to subject the plaintiff to imminent harm. The police were never informed that Tadiashvili was armed with a knife. Additionally, the police acted to detain the movement of Tadiashvili, while the plaintiff and his brother were released and allowed to proceed safely to their car at the parking garage. The police did not know and could not have known that the plaintiff and his brother would stop and converse with a friend, delaying their timely departure from the scene. The police did not know and could not have known that confrontation and a fight between the plaintiff and his brother and Tadiashvili and Gonella was imminent and that the plaintiff would be stabbed by Tadiashvili. When Officer Nevola, who was not involved in the initial confrontation outside Hula Hanks, viewed the fight between the plaintiff and his brother and Tadiashvili and Gonella, occurring in the parking lot, he did not fail to act. See Sestito v. Groton, supra, 178 Conn. 520. Instead he reacted quickly by wrestling Tadiashvili to the ground and handcuffing him.
The application of the rule regarding identifiable victims subject to imminent harm has been restrictive outside of the public school context because, "in addition to not recognizing any additional classes of foreseeable victims, the decisions reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity. See Sestito v. Groton, supra, 178 Conn. 522-23, 527-28 (facts presented jury question in case wherein on-duty town police officer watched and witnessed ongoing brawl in bar's parking lot, but did not intervene until after participant had shot and killed plaintiff's decedent). Sestito appears, however, to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because an allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." Grady v. Somers, supra, 294 Conn. 353-54.
As noted earlier herein, the identifiable person subject to imminent harm test 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. Doe v. Petersen, supra, 279 Conn. 616. The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception. See Violano v. Fernandez, supra, 280 Conn. 329.
[T]he criteria of `identifiable person' and `imminent harm' must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person. The plaintiff seems to conceive of the two criteria as wholly unconnected by arguing that she was an `identifiable person' without regard to whether she was subject to imminent harm. For the purposes of the `imminent harm' exception, however, it is impossible to be an identifiable person in the absence of any corresponding imminent harm."
(Internal citation omitted.) Doe v. Peterson, supra, 279 Conn. 620-21.
The actions of the Stamford police defendants on the night in question were discretionary. The plaintiff cannot establish an exception to governmental immunity for discretionary acts, as the plaintiff cannot establish all three prongs of the identifiable victim subject to imminent harm test. Acccordingly, the defendants' motion for summary judgment as to Counts One through Eight is hereby granted.