Brooks v. Powers

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BROOKS v. POWERS—DISSENT

MULLINS, J., dissenting. I respectfully disagree with

the majority’s conclusion that the trial court improperly

rendered summary judgment on the ground of govern-

mental immunity. I generally agree with the facts set

forth by the majority and need not recite them again.

I disagree, however, with the majority’s analysis and

conclusion on what constitutes the dangerous condition

and imminent harm in this case. Accordingly, I dissent.

In this case, the plaintiff, Bernadine Brooks, admin-

istratrix of the estate of Elsie White, filed a six count

amended complaint, in which she alleged negligence

against the defendants Robert Powers and Rhea

Milardo, two constables who were employed by the

defendant town of Westbrook (town),1 and counts of

vicarious liability and indemnification against the

town.2 In her amended complaint, the plaintiff alleged,

in relevant part:

‘‘8. Sometime between the evening of June 18, 2008,

and the morning of June 19, 2008, the decedent, Elsie

White, a resident of Westbrook, Connecticut, tragically

died in the water along the shore of Westbrook.

‘‘9. Upon information and belief, on the evening of

June 18, 2008, Officers Powers and Milardo were sched-

uled to work marine patrol. When they arrived for duty,

however, there was a severe storm, including heavy

rain, thunder and lightning. As such, they determined

the weather was too severe for marine patrol along the

shore and accordingly resumed patrol inland in the

town of Westbrook.

‘‘10. Upon information and belief, on June 18,

2008, at approximately 7:50 p.m., Officers Powers and

Milardo stopped at a gas station/convenience store in

. . . Westbrook in order to put on their rain gear.

‘‘11. While at the gas station/convenience store, Offi-

cer Powers was approached by Ms. Kimberly Bratz

. . . . Ms. Bratz alerted Officer Powers that an individ-

ual (later determined to be the decedent) . . . was

standing in a field along the shore with her arms out-

stretched and looking into the sky in the middle of

severe weather. Further, Ms. Bratz reported the individ-

ual’s location and expressed concern because of the

individual’s unusual behavior.3

‘‘12. Thereafter, Officer Powers contacted Dispatcher

[Theresa] Smith with this information and requested

that she send an officer to the individual’s location.

Officer Powers explained that because he and Officer

Milardo were working on the marine patrol boat . . .

they could not respond to the location. In actuality,

however, Officers Powers and Milardo were not patrol-

ling on the boat and were available to respond.

‘‘13. Once obtaining the information from Officer

Powers, Dispatcher Smith failed to enter the call for

services in the computer automated dispatch . . . sys-

tem as requested, failed to dispatch one of several con-

stables working in Westbrook and a patrol trooper, who

were available at that time and could have responded

if dispatched, and failed to take any further action.

‘‘14. Having received no care or intervention as a

result of Dispatcher Smith’s failure to log the call or

dispatch a police officer, and Officers Powers’ and

Milardo’s failure to be truthful and satisfy their roles as

constables, Ms. White lingered in her unstable condition

and later died (due to drowning) in the water off the

shore of Westbrook.’’ (Footnote added.)

As a result of these alleged acts, the plaintiff claimed

that the defendants, acting in their official capacities,

were negligent and liable for the death of White (dece-

dent). The defendants filed an answer and several spe-

cial defenses, including governmental immunity

pursuant to the common law and General Statutes § 52-

557n. The plaintiff filed a general reply to the special

defenses.4

On April 3, 2014, the defendants filed a motion for

summary judgment on grounds including lack of proxi-

mate cause and governmental immunity. Along with the

memorandum of law in support of their motion, they

filed many exhibits, including portions of depositions

and a supplemental police report concerning the dece-

dent’s untimely death.5 The plaintiff timely filed an

objection, claiming that the defendants had failed to

prove that there existed no genuine issues of material

fact, that the defendants’ duty was ministerial, and that

the decedent was an identifiable person, subject to

imminent harm.6 The plaintiff also filed a memorandum

of law in support of her objection, along with several

exhibits.

The trial court rendered summary judgment in favor

of the defendants in a July 23, 2014 memorandum of

decision, concluding that the defendants’ acts were dis-

cretionary and that the plaintiff’s claims did not fall

within an exception to the doctrine of governmental

immunity. Specifically, the court found, in relevant part:

‘‘The evidence submitted establishe[d] the absence of

a genuine issue of material fact that the harm to which

the decedent was ultimately exposed, drowning in Long

Island Sound, was not apparent to the defendants in

this case. The defendants were made aware only that

the decedent was standing in a field during a severe

storm on the night before her death, and that she may

have been in need of medical attention. Moreover, the

subject harm to which the decedent was exposed,

drowning, was not limited in duration and geographic

scope, as it could have occurred at any time in the future

or not at all. The uncontroverted evidence submitted

demonstrates that the decedent drowned the next

morning in Long Island Sound, although she was ini-

tially reported to be located in a field on Route 1 on the

previous night. Under the allegations of the plaintiff’s

complaint, and the evidence presented, the identifiable

victim, imminent harm exception does not apply in

this case.’’

The court also determined that ‘‘the evidence pre-

sented demonstrates the absence of a genuine issue of

material fact that [the defendants] were not aware that

their discretionary acts of failing to investigate and

respond to the complaint made by Bratz exposed the

decedent to imminent harm by drowning [in Long Island

Sound].’’ Accordingly, the court rendered summary

judgment in favor of the defendants. The plaintiff there-

after filed a motion to reconsider and reargue, which

the court denied. This appeal followed.

The plaintiff contends that the court improperly ren-

dered summary judgment in this case because it

weighed facts, it overlooked the fact that the defendants

lied to avoid their duty, it improperly looked to facts

that arose after the defendants refused to act, and it

‘‘either applied the incorrect standard as to imminent

harm or construed the scope of the harm to which

the plaintiff was exposed too narrowly.’’ Unlike the

majority, I would conclude that the trial court properly

rendered summary judgment on the ground of govern-

mental immunity.

I begin with the standard of review applicable to this

case. ‘‘Practice Book [§ 17-49] provides that summary

judgment shall be rendered forthwith if the pleadings,

affidavits and any other proof submitted show that there

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

. . . Our review of the trial court’s decision to grant

[a] motion for summary judgment is plenary. . . .

‘‘[T]he ultimate determination of whether qualified

immunity applies is ordinarily a question of law for the

court . . . [unless] there are unresolved factual issues

material to the applicability of the defense . . . [where

the] resolution of those factual issues is properly left

to the jury. . . . [Where] the material facts . . . are

undisputed . . . we exercise plenary review over the

trial court’s determination that the defendant is entitled

to qualified immunity as a matter of law.’’ (Citations

omitted; internal quotation marks omitted.) Coley v.

Hartford, 312 Conn. 150, 160, 95 A.3d 480 (2014).

The following principles of governmental immunity

are pertinent to the resolution of the plaintiff’s claims.

‘‘The [common-law] doctrines that determine the tort

liability of municipal employees are well established.

. . . Generally, a municipal employee is liable for the

misperformance of ministerial acts, but has a qualified

immunity in the performance of governmental acts.

. . . Governmental acts are performed wholly for the

direct benefit of the public and are supervisory or dis-

cretionary in nature. . . . The hallmark of a discretion-

ary act is that it requires the exercise of judgment. . . .

In contrast, [m]inisterial refers to a duty which is to be

performed in a prescribed manner without the exercise

of judgment or discretion. . . .

‘‘Municipal officials are immunized from liability for

negligence arising out of their discretionary acts in part

because of the danger that a more expansive exposure

to liability would cramp the exercise of official discre-

tion beyond the limits desirable in our society. . . .

Discretionary act immunity reflects a value judgment

that—despite injury to a member of the public—the

broader interest in having government officers and

employees free to exercise judgment and discretion in

their official functions, unhampered by fear of second-

guessing and retaliatory lawsuits, outweighs the bene-

fits to be had from imposing liability for that injury.

. . . In contrast, municipal officers are not immune

from liability for negligence arising out of their ministe-

rial acts . . . because society has no analogous inter-

est in permitting municipal officers to exercise

judgment in the performance of ministerial acts. . . .

‘‘There are three exceptions to discretionary act

immunity. Each of these exceptions represents a situa-

tion in which the public official’s duty to act is [so] clear

and unequivocal that the policy rationale underlying

discretionary act immunity—to encourage municipal

officers to exercise judgment—has no force. . . .

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 . . . .’’ (Citations omitted; internal

quotation marks omitted.) Violano v. Fernandez, 280

Conn. 310, 318–20, 907 A.2d 1188 (2006). The only

exception at issue in this case is the imminent harm

exception.

‘‘The imminent harm exception to discretionary act

immunity applies 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 . . . . By its own terms, this 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.’’ (Emphasis added; footnote

omitted; internal quotation marks omitted.) Id., 329.

Our Supreme Court previously has explained that

‘‘this exception to the general rule of governmental

immunity for employees engaged in discretionary activi-

ties 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.’’

(Citation omitted; internal quotation marks omitted.) Id.

Here, although the plaintiff frames her claims around

the fact that the defendants lied to Smith, the question

facing this court is whether the trial court properly

rendered summary judgment in favor of the defendants

on the ground of governmental immunity, not whether

the actions of the defendants were egregious.7 The par-

ties do not dispute that the decedent was an identifiable

victim, and the court also found as such. I, therefore,

will look to the remaining prongs, namely, whether the

decedent was subject to imminent harm and whether

it was apparent to the defendants that their conduct

likely would subject the decedent to that harm. See id.

To start, I examine whether the decedent was subject

to imminent harm, which necessarily must be caused

by a dangerous condition, and whether it was apparent

to the defendants that their conduct likely would sub-

ject the decedent to that imminent harm. See Williams

v. Housing Authority, 159 Conn. App. 679, 705, 124

A.3d 537 (plaintiff must first establish that dangerous

condition alleged to have harmed identifiable person

was apparent to municipal defendant), cert. granted on

other grounds, 319 Conn. 947, 125 A.3d 528 (2015); see

also Haynes v. Middletown, 314 Conn. 303, 323, 101

A.3d 249 (2014).8

In Williams, we opined that our Supreme Court, in

Haynes, had modified the identifiable person subject

to imminent harm test, and that the test could now be

interpreted to have four prongs rather than three. ‘‘First,

the dangerous condition alleged by the plaintiff must

be apparent to the municipal defendant. . . . We inter-

pret this to mean that the dangerous condition must not

be latent or otherwise undiscoverable by a reasonably

objective person in the position and with the knowledge

of the defendant. Second, the alleged dangerous condi-

tion must be likely to have caused the harm suffered

by the plaintiff. A dangerous condition that is unre-

lated to the cause of the harm is insufficient to satisfy

the Haynes test. Third, the likelihood of the harm must

be sufficient to place upon the municipal defendant a

clear and unequivocal duty . . . to alleviate the danger-

ous condition. The court in Haynes tied the duty to

prevent the harm to the likelihood that the dangerous

condition would cause harm. . . . Thus, we consider

a clear and unequivocal duty . . . to be one that arises

when the probability that harm will occur from the

dangerous condition is high enough to necessitate that

the defendant act to alleviate the defect. Finally, the

probability that harm will occur must be so high as to

require the defendant to act immediately to prevent

the harm.

‘‘All four of these prongs must be met to satisfy the

Haynes test, and our Supreme Court concluded that

the test presents a question of law.’’ (Citations omitted;

emphasis altered; footnote omitted; internal quotation

marks omitted.) Williams v. Housing Authority, supra,

159 Conn. App. 705–706.

In this case, the plaintiff and the majority seem to

imply that the dangerous condition was the severe

storm on the night of June 18, 2008, and that the dece-

dent suffered an imminent harm as a result thereof.

The fact remains, however, that the decedent died on

the night of the storm or in the early morning of June

19, 2008, from drowning in Long Island Sound, which

was approximately one-half mile from the field in which

she was seen during the severe storm. There also are

no facts alleged in the pleadings or presented in the

record that tie her drowning to the storm and her pres-

ence in the field. She did not drown in the field, nor

was she struck by lightning or injured in the field as

result of the storm, i.e., struck by a downed tree limb,

flying debris, etc.

Additionally, nothing in the record or in the pleadings

indicates that the defendants knew that the decedent

would accidentally drown after she ventured from the

field to the Long Island Sound. Although the storm

may have been a dangerous condition that could have

subjected the decedent to harm, the zone of such harm

is not limitless. The harm suffered must be related to

the dangerous condition. See id., 706. In my view, the

general risk of harm presented by standing in the middle

of a field during a severe storm is too attenuated from

the harm that the decedent suffered, which was drown-

ing later that night or the next morning in the Long

Island Sound, approximately one-half mile away from

that field. Thus, the nexus between the alleged danger-

ous condition here and the imminent harm actually

suffered by the decedent simply is not there.

As to imminent harm, our Supreme Court recently

explained that ‘‘the proper standard for determining

whether a harm was imminent is whether it was appar-

ent to the municipal defendant that the dangerous con-

dition was so likely to cause harm that the defendant

had a clear and unequivocal duty to act immediately to

prevent the harm.’’ Haynes v. Middletown, supra, 314

Conn. 322–23. Obviously, the harm that was suffered

by the decedent in this case was her tragic death by

drowning in Long Island Sound. I cannot ascertain, how-

ever, how that harm was imminent when the decedent

was in the field and the defendants were notified that

she needed medical help, or how that imminent harm

was or should have been apparent to the defendants.

It appears to me that the plaintiff and the majority

are viewing imminent harm far too broadly. In their

view, the plaintiff can demonstrate a dangerous condi-

tion and imminent harm simply by showing that the

defendants knew that the decedent was standing in the

middle of an open field during a severe storm, in need

of medical attention, and that the defendants failed to

go to the field. Once they failed to act by going to the

field,9 any harm, no matter how far removed, becomes

the defendants’ responsibility, and the plaintiff does not

have to establish that the specific harm suffered by the

decedent was the specific harm of which the defendants

were aware. My view of the law is otherwise. See Doe

v. Petersen, 279 Conn. 607, 620–21, 903 A.2d 191 (2006)

(‘‘[a]n allegedly identifiable person must be identifiable

as a potential victim of a specific imminent harm’’

[emphasis added]).

Stated simply, the majority has identified a danger-

ous condition and the potential for harm from that

dangerous condition, but has not identified the danger-

ous condition that actually caused the harm to the

decedent or how the defendants knew of it. In my view,

to survive summary judgment the plaintiff must allege

specifically the dangerous condition that actually

caused the injury to the decedent, not simply that a

dangerous condition existed, which potentially could

have harmed the decedent, and that an injury then

resulted. See id. My disagreement with the majority

centers on the fact that there is no nexus between the

alleged dangerous condition (the storm), the potential

imminent harm to which the decedent would be sub-

jected from that dangerous condition (being struck by

lightning, debris, etc., while in the field), and the actual

harm suffered (drowning sometime later that night or

the next morning approximately one-half mile away

from where she was last seen).

Thus, even accepting all the facts as set forth by the

plaintiff in this case, she has failed to provide any nexus

between the decedent’s death by drowning in Long

Island Sound, the storm, and the conduct of the defen-

dants in not checking on her when she was in the field

and they had been told that she was in need of medical

attention. Aside from the generalized danger the storm

may have posed to the decedent while she was in the

field, I do not see the specific dangerous condition that

the plaintiff is alleging to be the cause of decedent’s

death. See Williams v. Housing Authority, supra, 159

Conn. App. 705–706 (alleged dangerous condition must

be likely to have caused harm suffered by identifiable

person); see also Haynes v. Middletown, supra, 314

Conn. 322–23.

The plaintiff’s contention that once the defendants

failed to respond to the decedent’s need for medical

help, any harm that befell the decedent after their failure

to act, no matter how attenuated from the dangerous

condition, was imminent harm of which the defendants

were aware is inconsistent with our precedent.10 Under

our law, the general nature of the harm must have some

connection to the harm actually suffered. See Doe v.

Petersen, supra, 279 Conn. 620–21.

In other words, just establishing a dangerous condi-

tion, in this case, the storm, does not mean that any

harm that befell the decedent was a result of that dan-

gerous condition and that the defendants were aware

that their failure to respond would put the decedent at

risk of any and all possible harm she could have suffered

thereafter. Thus, the decedent standing in the storm

was not so likely to cause the harm that she suffered

that the defendants had a clear and unequivocal duty

to act. Indeed, there is not even an allegation, let alone

any factual basis submitted in opposition to the defen-

dants’ motion for summary judgment, that would indi-

cate that the specific harm suffered by the decedent

was even remotely connected to her standing in the

open field during the storm.

On the basis of the foregoing analysis, I would affirm

the judgment of the trial court and conclude that it

properly rendered summary judgment on the ground

of governmental immunity.

Accordingly, I respectfully dissent.

1

Because the matter at issue in this appeal is whether liability can be

imposed against Powers and Milardo, the derivative liability of their

employer, the town, which would be coextensive with that of Powers and

Milardo, is not at issue here. I therefore refer in this opinion to Powers and

Milardo as the defendants.

2

In her original complaint, the plaintiff also had named as a defendant

Theresa Smith, a dispatcher for the state police, alleging that she was negli-

gent. Smith filed a motion to dismiss the complaint as to her on the ground

of sovereign immunity. The plaintiff then withdrew her claim as to Smith

and filed an amended complaint.

3

In her deposition, which was submitted as exhibit C to the defendants’

memorandum of law in support of their motion for summary judgment,

Bratz stated that she knew the decedent, although she had never met her,

because the decedent lived at the Ambleside apartment complex as did

Bratz’ mother. She also explained that, on the night of June 18, 2008, between

approximately 7:30 and 8 p.m., during a thunder and lightning storm, she

and her husband drove by the apartment complex as they returned from

Old Saybrook, when she saw the decedent on the other side of Route 1, in

a field, where there were no homes. She stated that it was still light out at

the time, so she could see and identify the decedent, who was not wearing

rain gear or carrying an umbrella, but was dressed in pants and a shirt. The

grass in the field was approximately knee high, and the decedent was stand-

ing in the middle of the field with her hands raised to the sky.

4

Practice Book § 10-57 provides: ‘‘Matter in avoidance of affirmative alle-

gations in an answer or counterclaim shall be specially pleaded in the reply.

Such a reply may contain two or more distinct avoidances of the same

defense or counterclaim, but they must be separately stated.’’

Although Practice Book § 10-57 requires that matters in avoidance be

specially pleaded in the plaintiff’s reply, the defendants did not object to

the plaintiff raising this matter in her objection to the motion for summary

judgment. We note that our Supreme Court previously has afforded the trial

court ‘‘discretion to overlook violations of the rules of practice and to review

claims brought in violation of those rules as long as the opposing party

has not raised a timely objection to the procedural deficiency.’’ Schilberg

Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273,

819 A.2d 773 (2003).

5

In the supplemental police report, the investigating state police trooper,

Eric Kelly, averred that he had attended the autopsy of the decedent and

that the medical examiner had ruled the decedent’s cause of death as an

accidental drowning. Trooper Kelly also averred that he had clocked the

relevant distances related to this incident: ‘‘From the entrance to Ambleside

Apartments straight down Old Salt Works Road to the water is four-tenths

(4/10) of a mile. From the entrance of Ambleside Apartments, traveling East

on Route 1, and turning South on Old Kelsey Point Road to the water is

six-tenths (6/10) of a mile. From the entrance to Ambleside Apartments,

traveling West on Route 1 to the field next to Old Forge Road is one-tenth

(1/10) of a mile. From the field next to Old Forge Road, traveling West on

Route 1 to the Valero Gas Station at the intersection of Route 1 and Salt

Island Road is seven-tenths (7/10) of a mile.’’ I see nothing in the record

that contradicts these distances. Thus, it is uncontested that the distance

between the field on Route 1, near the Ambleside Apartments, where Bratz

saw the decedent, and the water, was somewhere between four-tenths of

one mile and six-tenths of one mile.

6

On appeal, the plaintiff has waived her claim that the defendants’ actions

or inactions were ministerial in nature.

7

I, in no way, seek to diminish the egregiousness of the defendants’ actions

in this case and, like the majority, am appalled by the conversation Powers

had with Smith. This case, however, concerns whether the decedent was

subject to imminent harm and whether it was apparent to the defendants

that their conduct likely would subject the decedent to that harm. This

case was brought against the defendants in their official capacities and does

not allege any personal liability.

8

The trial court rendered judgment in the present case before the publica-

tion of the appellate decisions in either Williams or Haynes.

9

I emphasize at this point that the plaintiff has conceded that the defen-

dants had no ministerial duty here.

10

The majority cites to Ruiz v. Victory Properties, LLC, 315 Conn. 335,

107 A.3d 381 (2015), for the proposition that all that is required is the general

nature of the harm and that it does not matter if the harm occurs in a bizarre

way. Although I agree with this proposition, I conclude that the harm that

befell the decedent in this case was not harm that occurred in a bizarre

way, but, rather, was harm that was unrelated to the dangerous condition

or the potential for imminent harm to which she was subjected in the field.