Brooks v. Powers

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BERNADINE BROOKS, ADMINISTRATRIX

(ESTATE OF ELSIE WHITE) v. ROBERT

POWERS ET AL.

(AC 37301)

Gruendel, Mullins and Mihalakos, Js.*

Argued December 2, 2015—officially released April 26, 2016

(Appeal from Superior Court, judicial district of

Middlesex, Domnarski, J.)

Daniel P. Scholfield, with whom, on the brief, were

Steven J. Errante and Marisa A. Bellair, for the appel-

lant (plaintiff).

Thomas R. Gerarde, with whom was Emily Holland,

for the appellees (named defendant et al.).

James N. Tallberg and Dennis M. Durao filed a brief

for the appellee (defendant town of Westbrook).

Opinion

GRUENDEL, J. The plaintiff, Bernadine Brooks,

administratrix of the estate of Elsie White, appeals from

the rendering of summary judgment against her on her

claims that the defendants, Constables Robert Powers

and Rhea Milardo,1 were negligent in responding to a

report that there was a woman, in a field near the ocean

during a severe storm, who needed medical attention.

No one attended to White, and the next morning her

body washed up on the shore. The court held, as a

matter of law, that the plaintiff’s claims were barred

by discretionary act immunity and that the imminent

harm, identifiable victim exception to that immunity

did not apply.

On appeal, the plaintiff argues that the court erred

in granting the defendants’ summary judgment motion

and thus barring her claims as a matter of law because

the evidence she submitted in response to the defen-

dants’ motion permitted a jury reasonably to conclude

that the imminent harm, identifiable victim exception

did apply, making summary judgment improper.2 We

agree with the plaintiff. The imminent harm, identifiable

victim exception has three elements: ‘‘(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.’’ (Internal quotation

marks omitted.) Haynes v. Middletown, 314 Conn. 303,

313, 101 A.3d 249 (2014). Here, the evidence submitted

in response to the defendants’ summary judgment

motion would permit a jury reasonably to find that the

defendants were told that White was in a field near the

ocean during a severe storm, that they were told she

needed medical attention, and that it was apparent that

if the defendants isolated her from any chance of aid—

by reporting the situation to dispatch in such a way

that it would be thought a joke and then driving off

without helping her—they would likely subject her to

imminent harm from the coastal storm. Because those

facts would permit a jury reasonably to conclude that

all three elements of the imminent harm, identifiable

victim exception were met, summary judgment was

improper. Accordingly, we reverse the judgment of the

trial court and remand the case for further proceedings.

I

The parties submitted numerous deposition tran-

scripts, police reports, and other exhibits in support of

and in opposition to the motion for summary judgment.

Viewed in the light most favorable to the plaintiff as

the party opposing summary judgment, that evidence

would permit the following findings of fact. At roughly

6 p.m. on June 18, 2008, a storm rolled into the coastal

town of Westbrook (town). Powers testified at the inter-

nal affairs investigation into his conduct, the transcript

of which the plaintiff included in her opposition to the

defendants’ motion for summary judgment, that ‘‘[i]t

was . . . a dark and stormy night. . . . Very, very dark

and very stormy.’’

The defendants were scheduled for boat patrol that

evening from 6 p.m. until 10 p.m. By the time they

arrived for work, however, the weather was already

severe. The thunderstorm brought with it both torren-

tial downpours and lightning. Due to the storm, the

defendants were unable to take the boat out onto the

water for the regular boat patrol and were not required

to work that night. If they did work, they were to patrol

the marinas and other parts of town, ensure that the

boat was ready to go out if necessary, and respond to

any emergencies that arose.

When the defendants arrived for work, they punched

in, got into a cruiser, and drove to Dunkin’ Donuts.

After that, they drove to the marina to inspect the boat.

Milardo testified at her deposition that ‘‘the main con-

cern [was] that the bilge pumps were operating prop-

erly.’’ Powers testified at his deposition that they did

not need to get out of the car to inspect the boat: ‘‘[w]e

would just look to make sure that the boat was still

there and check the pumps. I don’t know.’’ Milardo

testified at her deposition that she and Powers ‘‘just

sat in the parking lot and could see that the water was

being discharged from the back of the boat through the

bilge pumps.’’ The bilge pumps were brand new.

Once they completed their inspection, the defendants

drove to a JoJo’s Food Mart on Route 1. Powers stayed

with the cruiser while Milardo went in to get some

snacks. At this time, the town tax collector drove up

to the food mart. She appeared concerned and told

Powers that there was a woman who needed medical

attention in a field just up the road. She said that the

woman was wearing a shirt and pants, without a coat

or any other rain gear, and was standing with her hands

raised to the sky. At that time, it was raining heavily

and there was thunder and lightning. The field was

about one-half mile from the ocean and less than one-

half mile from the food mart.

Powers told the tax collector that he would take

care of the situation, and she drove away under the

impression that she no longer needed to call 911

because the constable was going to take care of it.

Powers then called the 911 dispatcher and told her that

‘‘a person stopped by and they said there’s a lady up on

Route 1 up by Ambleside [Apartments] . . . standing in

a field with a raincoat on, looking up at the sky.’’ While

Powers and the dispatcher chuckled over this, he told

the dispatcher that ‘‘[t]hey think she might need medical

help,’’ to which the dispatcher replied, ‘‘[g]eez, do you

think?’’ Powers asked the dispatcher to send ‘‘Rizzo or

one of [the other constables],’’ explaining that ‘‘I can’t

leave the boat.’’ The dispatcher asked where the person

was, and Powers said that she was in a field on the side

of Route 1 near Ambleside Apartments. ‘‘She should be

the person standing out in the rain,’’ he said, chuckling,

before saying goodbye.3

The dispatcher never sent anyone to the field. She

testified at her deposition: ‘‘I didn’t put [Powers’ 911

call] in the computer like I normally do. I didn’t write

it down to remind me to send someone.’’ She testified

that she simply ‘‘forgot.’’

After speaking with the dispatcher, the defendants

drove back to the marina to check the boat again. They

did not get out of the car, but looked at the boat from

the car. The bilge pumps were still pumping. Powers

testified at his deposition that he knew the pumps

were new.

The defendants then heard a call on the police scan-

ner about a baby choking and joined the fire department

in responding to that call. A couple of hours later, the

defendants drove along Route 1 past the field by

Ambleside Apartments out to the town line and then

looped back toward the center of town. As they passed

the field where the tax collector had seen the woman,

they drove more slowly and turned the cruiser’s spot-

light on. The grass in the field was knee-high. They did

not see anyone. Neither constable got out of the car.

Powers testified at the internal affairs investigation into

his conduct, the transcript of which the plaintiff

included in her opposition to the defendants’ motion

for summary judgment, that, ‘‘[n]o. I wouldn’t go out

and walk through a field in the pouring rain.’’ When

asked if the defendants could have gotten out to do a

more thorough sweep of the area, since the woman

‘‘could have fallen down or something,’’ Powers replied:

‘‘[c]ould have gone home. Could have gone for a walk.

Could have.’’

A former police officer, whom the plaintiff deposed

as to the adequacy of the defendants’ response,

remarked that ‘‘the single most important thing that I

saw [was] that [the tax collector] clearly told [Powers]

that we had a woman that needed medical attention.

. . . If you’ve got somebody that might need [medical

attention] or somebody that does need it, you go.

Whether it’s might or wasn’t might, it does not make a

difference. The fact that you have somebody that’s a

human needing something that someone else interprets

as medical attention, whether it’s might or does, you

respond.’’ Powers testified at his deposition that ‘‘[i]f a

person was in physical danger . . . [he] would

respond,’’ but that he did not think the woman in the

field presented a ‘‘true emergency.’’

The morning after the storm, on June 19, 2008, a

fisherman went out on the water in his boat at about

7 a.m. When he returned from fishing at about 10 a.m.,

he noticed something washed up among the large rock

boulders near the shore just west of his house, less

than one mile from where White was last seen. When

the fisherman went to inspect it, he discovered that it

was a body floating face down in the water. Police

identified the body as White by the CVS pharmacy and

Stop & Shop grocery cards attached to a keychain

clenched in her fist. The tax collector, who knew White

personally, later confirmed that this was the same

woman she had seen in the field the night before. White

was pronounced dead at 11:01 a.m. The cause of death

was accidental drowning.

As to time of death, the police incident report stated

that the ‘‘investigation did not conclusively pinpoint a

time when White entered the water.’’ In the excerpts

from the deposition testimony of an investigator for

the state medical examiner’s office that the defendants

submitted, she testified that she observed rigor mortis

of the fingers, elbows, and knees, but not of the hips,

and no lividity of the body. She did not testify whether

that meant White died minutes after the tax collector

saw her on the night of June 18, 2008, minutes before

the fisherman found her body the next morning, or

somewhere in between. The defendants also submitted

a single page of transcript from an arbitration hearing

at which Ira Kanfer, an associate medical examiner,

stated the following:

‘‘Q. So, based on those factors you would estimate

the time of death between 7 a.m. and 10 a.m. on the

morning of June 19?

‘‘A. Right.

‘‘Q. And you believe that that’s consistent with the

beginning stages of rigor mortis found by the medical

examiner at 12:30?

‘‘A. Yeah.’’

It is unclear what Kanfer meant by ‘‘those factors,’’

and it is unclear, as to the medical evidence, whether

it made a time of death between 7 a.m. and 10 a.m.

especially likely, or was merely ‘‘consistent with’’ such

a time of death.

On January 16, 2010, the plaintiff brought this action

against the defendants, alleging that their actions on

the night of June 18, 2008, were negligent and caused

the death of White. The defendants moved for summary

judgment in April, 2014, arguing that, as a matter of

law, discretionary act immunity shielded them from any

liability. The plaintiff objected, arguing that her claims

fell within the imminent harm, identifiable victim excep-

tion to that immunity. Both parties submitted exhibits

and transcripts in support of their positions. On July

23, 2014, the court held, on the basis of the evidence

before it, as a matter of law, that (1) discretionary act

immunity applied because the defendants were engaged

in the typical functions of police officers; and (2) the

imminent harm, identifiable victim exception did not

apply because the defendants could not have predicted,

given what they knew, that White would have

‘‘drown[ed] in Long Island Sound . . . .’’ The court thus

rendered summary judgment in favor of the defendants.

The plaintiff filed a motion for reconsideration, which

the court denied. On October 14, 2014, the plaintiff

appealed to this court.

II

The question before us is whether the court properly

granted the defendants’ motion for summary judgment

on the ground that, as a matter of law, discretionary

act immunity shielded them from liability, and that the

imminent harm, identifiable victim exception to that

immunity did not apply.4 To meet their burden to estab-

lish that they were entitled to summary judgment, the

defendants needed to prove two things: (1) there was

no genuine issue as to the facts establishing that, as a

matter of law, their actions were discretionary rather

than ministerial, thus triggering discretionary act immu-

nity; and (2) there was no genuine issue as to the facts

establishing that, as a matter of law, the plaintiff had

failed to meet at least one of the three elements of

the exception to that immunity for identifiable victims

subject to imminent harm. See Practice Book § 17-49.

The plaintiff concedes that the defendants’ actions

were not ministerial. She argues, however, that a jury

reasonably could conclude from the evidence that all

three elements of the exception—(1) imminent harm;

(2) identifiable victim; and (3) apparentness—were met

because, when the tax collector told Powers that a

specific woman out in a field near the ocean during a

severe storm needed medical attention, it was apparent

that, if the defendants said they would take care of it,

but relayed the report to the 911 dispatcher in such a

way that she thought it a joke and did not themselves

respond, then they isolated the woman from any chance

of aid and put her at risk of imminent harm from the

coastal storm.

We begin by parsing the requirements of the imminent

harm, identifiable victim exception. We conclude, as a

general matter, that the exception requires not only that

it be apparent that a victim was at risk of imminent

harm, but also that it was apparent that the defendants’

chosen response or nonresponse to the imminent dan-

ger likely would subject the victim to that harm. With

that general requirement in mind, we then turn more

specifically to the three elements of the exception.

We first conclude that the defendants failed to carry

their burden on their motion for summary judgment as

to at least two of the three elements—i.e., (2) identifi-

able victim; and (3) apparentness—because there was

evidence from which a jury reasonably could find both

that the tax collector identified White with sufficient

specificity and that Powers had all the relevant facts

before him. We then turn to the final element—(1) immi-

nent harm—and conclude that the defendants failed to

carry their burden as to it as well. We begin by laying

out the test for whether a harm is imminent. We con-

clude both that it is the general nature of that harm—

not its specific manifestation—that must be imminent;

and that a harm is imminent if, on a given day, it is

more likely than not to occur. Applying that test to

the facts here, we thus ask if a jury reasonably could

conclude from the evidence submitted in support of

and in opposition to the defendants’ summary judgment

motion that it was apparent that the joking manner

in which Powers called in the emergency to dispatch,

together with the defendants’ failure to respond them-

selves, made it more likely than not that White would

become a victim of the storm. We hold that a jury

reasonably could so conclude. Accordingly, we reverse

the summary judgment in favor of the defendants and

remand the case for further proceedings.

A

We begin with the standard of review. Because the

appropriateness of summary judgment is a question of

law, ‘‘[o]ur review of the trial court’s decision to grant

[a] motion for summary judgment is plenary.’’ (Internal

quotation marks omitted.) Martel v. Metropolitan Dis-

trict Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005).

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

ment shall be rendered forthwith if the pleadings, affida-

vits 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.’’

(Internal quotation marks omitted.) Segreto v. Bristol,

71 Conn. App. 844, 848, 804 A.2d 928, cert. denied, 261

Conn. 941, 808 A.2d 1132 (2002). ‘‘A material fact . . .

[is] a fact which will make a difference in the result of

the case.’’ (Internal quotation marks omitted.) Stuart

v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).

Accordingly, ‘‘[a] defendant’s motion for summary judg-

ment is properly granted if it raises at least one legally

sufficient defense that would bar the plaintiff’s claim

and involves no triable issue of fact.’’ Perille v.

Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543,

494 A.2d 555 (1985).

‘‘In seeking summary judgment, it is the movant who

has the burden of showing the nonexistence of any

issue of fact. The courts are in entire agreement that

the moving party for summary judgment has the burden

of showing the absence of any genuine issue as to all

the material facts, which, under applicable principles

of substantive law, entitle him to a judgment as a matter

of law. The courts hold the movant to a strict standard.

To satisfy his burden the movant must make a showing

that it is quite clear what the truth is, and that excludes

any real doubt as to the existence of any genuine issue

of material fact. . . . As the burden of proof is on the

movant, the evidence must be viewed in the light most

favorable to the opponent. . . . When documents sub-

mitted in support of a motion for summary judgment

fail to establish that there is no genuine issue of material

fact, the nonmoving party has no obligation to submit

documents establishing the existence of such an

issue. . . .

‘‘Once the moving party has met its burden, however,

the opposing party must present evidence that demon-

strates the existence of some disputed . . . issue [of

material fact]. . . . It is not enough, however, for the

opposing party merely to assert the existence of such

a disputed issue. Mere assertions of fact . . . are insuf-

ficient to establish the existence of a material fact and,

therefore, cannot refute evidence properly presented

to the court under Practice Book § [17-45].’’ (Internal

quotation marks omitted.) Martel v. Metropolitan Dis-

trict Commission, supra, 275 Conn. 46–47. Likewise,

‘‘testimony [that] is too speculative, too conjectural

. . . [to support] a judgment for the plaintiff’’ at trial

‘‘cannot serve as a basis for opposition to a motion

for summary judgment.’’5 (Citations omitted; internal

quotation marks omitted.) Nolan v. Borkowski, 206

Conn. 495, 507, 538 A.2d 1031 (1988).

In sum, the test is ‘‘whether [the movant] would be

entitled to a directed verdict on the same facts’’; (inter-

nal quotation marks omitted) Connell v. Colwell, 214

Conn. 242, 247, 571 A.2d 116 (1990); i.e., whether ‘‘a

jury could not reasonably and legally have reached any

other conclusion.’’ (Internal quotation marks omitted.)

Curran v. Kroll, 303 Conn. 845, 856, 37 A.3d 700 (2012).

‘‘[A] summary disposition . . . should be on evidence

which a jury would not be at liberty to disbelieve . . . .’’

(Internal quotation marks omitted.) 2830 Whitney Ave-

nue Corp. v. Heritage Canal Development Associates,

Inc., 33 Conn. App. 563, 566, 636 A.2d 1377 (1994).

This demanding burden is due to ‘‘the well established

standards compelling great deference to the historical

function of the jury [which] find their roots in the consti-

tutional right to a trial by jury.’’ (Internal quotation

marks omitted.) Curran v. Kroll, supra, 856. Our courts

have ‘‘give[n] great weight . . . to the plaintiff’s consti-

tutional right to have his or her case presented to a

jury.’’ Id., 856 n.7.

Here, the defendants moved for summary judgment

arguing that they were immune from liability because

there was no genuine issue as to the facts establishing

that, as a matter of law: (1) their allegedly negligent

conduct was discretionary—not ministerial—thus trig-

gering discretionary act immunity; and (2) no exception

applied to defeat that immunity.6 The plaintiff concedes

that the defendants’ conduct was not ministerial, but

argues that the imminent harm, identifiable victim

exception to discretionary act immunity applied. We

thus briefly review the law of discretionary act immu-

nity and the imminent harm, identifiable victim

exception.

At common law, ‘‘a municipal employee is liable for

the misperformance of ministerial acts, but has a quali-

fied immunity in the performance of [discretionary]

acts.’’ (Internal quotation marks omitted.) Spears v.

Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003); see also

Grady v. Somers, 294 Conn. 324, 337–38, 984 A.2d 684

(2009) (reviewing scope of discretionary act immunity).

Even if an act is discretionary, our Supreme Court ‘‘has

recognized an exception to discretionary act immunity

that allows for liability 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 . . . . This identifiable person-

imminent harm exception has three requirements: (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.

. . . All three must be proven in order for the exception

to apply.’’ (Internal quotation marks omitted.) Haynes

v. Middletown, supra, 314 Conn. 312–13 (discussing

exception in context of derivative claim against munici-

pality). Nevertheless, the exception ‘‘has received very

limited recognition in this state.’’7 (Internal quotation

marks omitted.) Id., 319.

‘‘[T]he ultimate determination of whether [discretion-

ary act] 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] resolution of those factual issues is prop-

erly left to the jury.’’8 (Internal quotation marks omit-

ted.) Id., 313. ‘‘We therefore exercise plenary review

over the issue of whether the identifiable person-immi-

nent harm exception to governmental immunity

applies.’’ Edgerton v. Clinton, 311 Conn. 217, 227–28,

86 A.3d 437 (2014).

Thus, fitting the substantive law at issue here into

the general summary judgment standard, we ask: (1)

did the defendant initially put forth evidence that a jury

would not be at liberty to disbelieve and from which

the only reasonable conclusion was that the plaintiff

had failed to establish at least one element of the immi-

nent harm, identifiable victim exception to immunity;

and (2) if so, did the plaintiff nonetheless put forth

such additional evidence that a jury reasonably could

conclude from all the evidence that the plaintiff had

established all three elements of the exception? In this

case, our analysis begins and ends with the second

question.

B

As a threshold matter, we must determine the general

contours of the imminent harm, identifiable victim

exception. Our Supreme Court has stated that excep-

tion in two different ways.

First, the court has said that the exception applies if

‘‘the circumstances make it apparent to the public offi-

cer that his or her failure to act would be likely to

subject an identifiable person to imminent harm . . . .’’

(Emphasis added; internal quotation marks omitted.)

Haynes v. Middletown, supra, 314 Conn. 312. Read liter-

ally, this would mean that if it is clear before the officer

acts that doing nothing likely would result in harm

to the victim, then the exception applies, immunity is

turned off, and whatever response or nonresponse the

officer makes must be reasonable; a negligent response

would subject the officer to liability. On this reading,

the exception would operate as an off switch for immu-

nity in a subset of high stakes situations, requiring offi-

cers to act reasonably when someone’s life was on

the line.

Second, the court has said that the exception applies

if the plaintiff can show ‘‘(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; internal

quotation marks omitted.) Id., 313. Read literally, this

would mean that an officer who has identified a victim

as threatened by imminent harm is still free to respond

unreasonably, so long as it is not apparent that the

officer’s particular response will likely result in harm

to the victim. On this reading, the exception would

generally permit officers to act unreasonably, even in

high stakes situations, but would peel back that immu-

nity if an officer showed a particularly egregious disre-

gard for life.

We conclude that our Supreme Court’s immunity

jurisprudence supports the second reading of the excep-

tion. A plaintiff must therefore prove not only that it

was apparent that a victim was at risk of imminent

harm, but also that it was apparent that the defendants’

chosen response or nonresponse to the imminent dan-

ger would likely subject the victim to that harm.

We reach this conclusion due to the policy concerns

that underlie both discretionary act immunity and the

imminent harm, identifiable victim exception.

As to discretionary act immunity, it ‘‘reflects a value

judgment that—despite injury to a member of the pub-

lic—the broader interest in having government officers

and employees free to exercise judgment and discretion

in their official functions, unhampered by fear of sec-

ond-guessing and retaliatory lawsuits, outweighs the

benefits 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, defined as acts to be performed in a prescribed

manner without the exercise of judgment or discretion.

. . . This is because society has no analogous interest

in permitting municipal officers to exercise judgment

in the performance of ministerial acts.’’ (Internal quota-

tion marks omitted.) Edgerton v. Clinton, supra, 311

Conn. 229–30.

The rationale behind the imminent harm, identifiable

victim exception is similar. It ‘‘represents a situation in

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

unequivocal that the policy rationale underlying discre-

tionary act immunity—to encourage municipal officers

to exercise judgment—has no force.’’ (Internal quota-

tion marks omitted.) Bonington v. Westport, 297 Conn.

297, 307, 999 A.2d 700 (2010). Our Supreme Court has

thus held that, where police may have unreasonably

failed to ask a woman if she lived in an apartment before

forcibly removing her, the imminent harm, identifiable

victim exception did not apply because ‘‘[t]hese are,

indeed, the situations in which we want to encourage

police to use their discretion in order to parse as care-

fully as possible between the extremes of an unwanted

guest that is causing a criminal disturbance and a peace-

able actual possessor whom the landlords are endeav-

oring to use the police to evict.’’ Fleming v. Bridgeport,

284 Conn. 502, 535, 935 A.2d 126 (2007).

Thus, the imminent harm, identifiable victim excep-

tion and the broader rule that an officer is liable for

breaching a ministerial duty appear to be two sides of

the same coin. Both reflect a value judgment that, when

a municipal officer must choose between various

responses to a situation, making that officer liable for

choosing unreasonably would distract the officer with

fears of second-guessing and retaliatory lawsuits, and

so would discourage the officer from choosing reason-

ably. On the flip side, if—for one reason or another—

a particular course of action is mandated, then the

threat of liability operates normally and encourages the

officer to choose the mandated course of action.

The ministerial duty rule and the imminent harm,

identifiable victim exception simply embody two differ-

ent reasons why a particular course of action would be

mandated, such that liability is appropriate if the officer

makes the wrong choice. On the one hand, a ministerial

duty entails a duty to act in a certain way that is man-

dated by rules, policies or directives. See Violano v.

Fernandez, 280 Conn. 310, 325, 907 A.2d 1188 (2006). On

the other hand, the imminent harm, identifiable victim

exception entails a duty to avoid acting in a certain

way and is mandated because, if one did act in that

way, it would expose a victim to imminent harm. See

Sestito v. Groton, 178 Conn. 520, 522–23, 423 A.2d 165

(1979) (police officer sat in car and watched drunken

brawl unfold until victim was shot).

This understanding of the policies behind discretion-

ary act immunity and the imminent harm, identifiable

victim exception makes it highly unlikely that the first

formulation—that the exception operates as an off

switch for immunity in high stakes situations—is cor-

rect. If making officers liable for choosing unreasonably

is understood to distract them with secondary concerns

about liability and so discourage reasonable choices,

then it would be especially dangerous for tort law to

require officers to choose reasonably in high stakes

situations.9 Rather, the second formulation seems to be

correct, namely, that the exception applies only if an

officer chooses a course of action that was clearly

beyond the pale because it was apparent that it would

likely subject someone to imminent harm.

Accordingly, the exception requires not only that it

be apparent that a victim was at risk of imminent harm,

but also that it be apparent that the defendants’ chosen

response or nonresponse to the imminent danger was

likely to subject the victim to that harm.

C

Keeping this general framework in mind, we next

turn to the specific elements of the imminent harm,

identifiable victim exception. The defendants, as the

parties moving for summary judgment, had the burden

of showing that as to at least one of the three elements

of the imminent harm, identifiable victim exception—

(1) imminent harm; (2) identifiable victim; (3) appar-

entness—no reasonable jury could conclude from the

evidence submitted that it was met. See Haynes v. Mid-

dletown, supra, 314 Conn. 313.

We hold that a jury reasonably could conclude that

each of the three elements was met. The evidence and

reasonable inferences from it permitted a jury to find

both that the defendants relayed the report of an emer-

gency to the 911 dispatcher in such a way that she

thought it a joke and that it was apparent that this

would likely prevent her from sending anyone, leaving

White’s emergency unaddressed and so subjecting her

to imminent harm from the storm. See footnote 3 of

this opinion.

1

We begin with the third element, apparentness,

because the defendants focus the bulk of their argu-

ments on it. We conclude, however, that this focus is

misguided. Each of the three cases from our Supreme

Court discussing apparentness has done so in the con-

text of an information asymmetry, i.e., where some

other person knew more than the municipal defendant

and those extra facts were crucial to understanding the

danger at hand.10 See Doe v. Petersen, 279 Conn. 607,

610, 620, 903 A.2d 191 (2006) (because town employee

nervously interrupted rape victim, telling her to ‘‘ ‘hold

on a second’ ’’ when she tried to tell him that her tennis

coach had raped her, and then got in his car and drove

off, it was not apparent to employee that she had been

raped or that treating her this way would compound

trauma); Fleming v. Bridgeport, supra, 284 Conn. 508

n.8, 534–35 (because police never asked woman if she

lived in apartment, it was not apparent to them that

she was a resident and that forcibly removing her was

thus unwarranted); Edgerton v. Clinton, supra, 311

Conn. 234 (because car chase sounded quiet over

phone, it was not apparent to 911 operator that car

might be driving at dangerously high speed and so

should be told to stop chase).

By contrast, here there was no information asymme-

try. A jury could reasonably infer that the tax collector

told Powers all the relevant facts: there was a woman

without rain gear, with her hands raised to the sky,

who was standing out in a field near the ocean during

a severe storm, and she needed medical attention. There

is no additional fact that the defendants lacked at the

time but that later came to light, which would have

revealed the true nature of the emergency. Accordingly,

the real question is not the apparentness of any immi-

nent harm under the third element of the exception,

but whether, on the basis of the facts the defendants

had, any harm was imminent under the first element

of the exception.11 Because no information asymmetry

existed, if the evidence established that harm was immi-

nent, then the same evidence would have made that

harm apparent to the defendants.

2

The second element of the exception—whether

White was an identifiable victim—similarly presents no

obstacle. The defendants do not dispute this element,

except insofar as it is intertwined with the imminent

harm element because an ‘‘allegedly identifiable person

must be identifiable as a potential victim of a specific

imminent harm.’’ (Emphasis added.) Doe v. Petersen,

supra, 279 Conn. 620–21. Here, a jury could reasonably

infer that the tax collector pinpointed White as a poten-

tial victim of the storm. Powers acknowledged as much

in his call to the 911 dispatcher, joking that White should

be easy to identify because ‘‘[s]he should be the person

standing out in the rain’’ in the field. A jury reasonably

could conclude that White was an identifiable victim.

3

Finally, we turn to the first element of the exception,

whether harm was imminent. We begin by discussing

the scope of the harm and conclude that it is the general

nature of the harm—not its specific manifestation—

that must be imminent. We then set forth the test for

whether a harm is imminent. We conclude from our

Supreme Court’s decisions that the test is whether, on

a given day, the harm is more likely than not to occur.

Applying that test to the facts here, we hold that a jury

reasonably could conclude from the evidence that it

was apparent that the manner in which Powers called

the emergency in to dispatch, together with the defen-

dants’ failure to respond themselves, ensured that

White’s emergency would go unaddressed, leaving her

to fend for herself close to the ocean during a severe

storm, and thus likely subjecting her to imminent harm

from the storm. As such, there was a genuine issue of

fact as to whether the imminent harm element was met.

a

We begin by determining the scope of the harm that

must be imminent. The plaintiff argues that it is the

general nature of the harm that must be imminent—

here, harm from the storm. By contrast, the defendants

argue that it is the specific manner of harm that befell

the victim that must have been imminent—here, White’s

‘‘drowning off of the coastline.’’ We agree with the plain-

tiff. The ‘‘general nature’’ test is supported by two lines

of cases, one about the scope of harm in the duty of

care context, and the other cautioning against hyper-

technical application of the law. As to the court’s pass-

ing remark in Doe v. Petersen, supra, 279 Conn. 620–21,

about a ‘‘specific imminent harm,’’ we conclude that it

did not change the standard to require that harm be

more narrowly defined.

In the context of the duty of care, our Supreme Court

has held that so long as ‘‘harm of the general nature

as that which occurred is foreseeable there is a basis for

liability even though the manner in which the accident

happens is unusual, bizarre or unforeseeable.’’ (Empha-

sis added; internal quotation marks omitted.) Ruiz v.

Victory Properties, LLC, 315 Conn. 320, 335, 107 A.3d

381 (2015). The Supreme Court has directly likened

immunity to the duty of care. Doe v. Petersen, supra,

279 Conn. 613 (‘‘[t]he issue of governmental immunity

is simply a question of the existence of a duty of care’’);

Durrant v. Board of Education, 284 Conn. 91, 100–101,

931 A.2d 859 (2007) (‘‘immunity . . . is in effect a ques-

tion of whether to impose a duty of care’’). It would

thus seem that—although a much higher level of risk

is needed to establish an imminent harm than to estab-

lish a foreseeable harm—the harm should be defined

at the same level of generality in each case. See Haynes

v. Middletown, supra, 314 Conn. 320–23 (contrasting

level of risk required for imminent harm test versus

foreseeable harm test).

Adopting the defendant’s narrow framing of the scope

of harm also ‘‘would be inconsistent with our long-

standing body of case law that repeatedly has eschewed

applying the law in such a hypertechnical manner so

as to elevate form over substance.’’ (Internal quotation

marks omitted.) Grady v. Somers, supra, 294 Conn. 348.

Especially in the context of imminent harm, a cry for

help need not cite chapter and verse to warrant a

response. These are precisely the cases in which a

lengthy exposition of the specific manner in which one

is about to be injured is both unnecessary and

impractical.

We note, however, that our Supreme Court did state

in passing, in Doe v. Petersen, supra, 279 Conn. 620–21,

that a plaintiff ‘‘must be identifiable as a potential victim

of a specific imminent harm.’’12 (Emphasis added.) We

conclude, for two reasons, that this language does not

narrow the framing of imminent harm.

First, in Doe itself, the specificity of the harm played

no role in the court’s analysis and the court gave no

indication that by including the word ‘‘specific’’ in one

sentence it intended to overrule the prior consensus—

at least in duty of care cases, to which the court has

likened immunity cases—that the general nature of the

harm is what matters. Id.; see also Gazo v. Stamford,

255 Conn. 245, 250, 765 A.2d 505 (2001) (‘‘the test for

the existence of a legal duty of care entails . . . a deter-

mination of whether an ordinary person . . . would

anticipate that harm of the general nature of that suf-

fered was likely to result’’ [emphasis added; internal

quotation marks omitted]); Pisel v. Stamford Hospital,

180 Conn. 314, 333, 430 A.2d 1 (1980) (‘‘so long as

harm of the general nature as that which occurred is

foreseeable there is a basis for liability even though

the manner in which the accident happens is unusual,

bizarre or unforeseeable’’ [emphasis added]); Figlar v.

Gordon, 133 Conn. 577, 582, 53 A.2d 645 (1947) (‘‘the test

is, would the ordinary man in the defendant’s position,

knowing what he knew or should have known, antici-

pate that harm of the general nature of that suffered

was likely to result . . . .’’ [emphasis added]).

Second, although the ‘‘specific imminent harm’’ lan-

guage from Doe has been quoted in a handful of subse-

quent appellate cases, the court has never relied on that

language in its analysis. See Cotto v. Board of Educa-

tion, 294 Conn. 265, 276, 984 A.2d 58 (2009) (‘‘[a]n alleg-

edly identifiable person must be identifiable as a

potential victim of a specific imminent harm’’ [emphasis

added; internal quotation marks omitted]);13 Grady v.

Somers, supra, 294 Conn. 354 (same); Merritt v. Bethel

Police Dept., 120 Conn. App. 806, 816, 993 A.2d 1006

(2010) (same); Thivierge v. Witham, 150 Conn. App.

769, 779, 93 A.3d 608 (2014) (same); Jahn v. Board of

Education, 152 Conn. App. 652, 662, 99 A.3d 1230 (2014)

(same); Texidor v. Thibedeau, 163 Conn. App. 847, 861,

A.3d (2016) (same). Moreover, our Supreme

Court’s most recent cases omit the ‘‘specific imminent

harm’’ language entirely. See Bonington v. Westport,

supra, 297 Conn. 314–15 (omitting ‘‘specific imminent

harm’’ language), Edgerton v. Clinton, supra, 311 Conn.

227–31 (same); Haynes v. Middletown, supra, 314 Conn.

312–13 (same). We thus conclude that it is the general

nature of the harm—not its specific manifestation—

that must be imminent.14

b

We next set forth the test for whether a harm is

imminent. ‘‘[T]he 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.’’15 (Emphasis added.) Haynes v.

Middletown, supra, 314 Conn. 322–23. This test focuses

on the ‘‘magnitude of the risk,’’ not on the temporal or

geographical scope of that risk. (Emphasis omitted.)

Id., 322. In short, the question is whether a situation is

so dangerous that it merits an immediate response. See

id., 325.

Such a test for the imminent harm element is highly

fact specific. See Williams v. Housing Authority, 159

Conn. App. 679, 705–707, 124 A.3d 537 (breaking out

imminent harm test into four prongs), cert. granted

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

Reasonable people often disagree over how dangerous

something is, and over how urgent a response is

required. Nevertheless, seven cases from our Supreme

Court provide guideposts within which to navigate that

test. The rough rule of thumb gleaned from these cases

is that a harm merits an immediate response—and thus

is ‘‘imminent’’—if, on a given day, it is more likely than

not to occur.

In three cases, the court held that a jury reasonably

could conclude that harm was imminent. In the first

case, a jury reasonably could have found that a police

officer remained in his car and watched as a drunken

brawl involving the victim as well as a suspected armed

robber and several bar patrons unfolded in a bar’s park-

ing lot. Sestito v. Groton, supra, 178 Conn. 522–23. One

of the assailants ultimately shot and killed the victim.

Id., 523. The court held that these facts were egregious

enough that the case should have been submitted to

the jury.16 Id., 528.

In the second case, a jury reasonably could have

found that school administrators knew that elementary

school children needed to be supervised lest they ‘‘run

and engage in horseplay that often results in injuries.’’

(Internal quotation marks omitted.) Purzycki v. Fair-

field, 244 Conn. 101, 110, 708 A.2d 937 (1998), overruled

in part on other grounds by Haynes v. Middletown, 314

Conn. 303, 323, 101 A.3d 249 (2014). Nevertheless, the

students were dismissed from lunch to traverse an unsu-

pervised hallway on their way to recess. Id. On one

such occasion, the eight year old victim was tripped by

another student as he ran down the hallway, causing

him to plunge headfirst through the window of the exit

door and sustain injuries. Id., 104. The court held that

a jury reasonably could have concluded that the unsu-

pervised hallway presented an imminent harm.17 Id.,

110.

In the third case, a jury reasonably could have found

that school administrators knew students were prone

to horseplay while changing clothes in the locker room.

Haynes v. Middletown, supra, 314 Conn. 325. Neverthe-

less, the students were left to change unsupervised in

a locker room where one locker was broken with a

jagged edge. See id., 308, 325. On one such occasion,

the minor victim was shoved into the jagged locker and

he sustained injuries. Id., 306, 308. The court held that

a jury reasonably could have concluded that the unsu-

pervised locker room with the jagged locker presented

an imminent harm. Id., 325–26.

In the other four imminent harm cases, the court held

that no reasonable jury could conclude that harm was

imminent.18 In the first case, the complaint alleged that

municipal officers failed to adequately inspect apart-

ment buildings for fire code violations. Evon v.

Andrews, 211 Conn. 501, 502 n.4, 559 A.2d 1131 (1989).

Eventually, the victims’ apartment burned down, killing

them. Id., 502. The court held that, although a fire did

eventually occur, ‘‘[t]he risk of fire implicates a wide

range of factors that can occur, if at all, at some unspeci-

fied time in the future.’’ Id., 508. Without more, the

general risk of fire was so attenuated that, as a matter

of law, it was not an imminent harm. See id.

In the second case, the complaint alleged that a city

failed to adequately supervise, secure, and lock up a

building after taking it by eminent domain, from which

the previous owners-victims had yet to remove their

personal possessions. Violano v. Fernandez, supra, 280

Conn. 313–14, 322. Seven months after the taking, some-

one stole the victims’ possessions from the building.

Id., 313–14. The court held that, although a theft did

eventually occur, ‘‘[t]he risk of a theft, like the risk of

a fire, implicates a wide range of factors that can occur,

if at all, at some unspecified time in the future.’’ (Internal

quotation marks omitted.) Id., 331. Without more, the

general risk of theft was so attenuated that, as a matter

of law, it was not an imminent harm. See id., 332.

In the third case, the trier of fact found that custodi-

ans failed to adequately clean and inspect a school

bathroom, often leaving its floor covered in urine during

the summer months when various youth programs met

at the school. Cotto v. Board of Education, supra, 294

Conn. 270. One day, the victim—a director of one of

the youth programs—slipped on the wet floor as he

walked into the bathroom, sustaining injuries. Id., 268–

69. The court held that, although the victim did eventu-

ally slip on the floor, the risk of harm ‘‘was neither

sufficiently immediate nor sufficiently certain. . . .

[B]ecause any person using the bathroom could have

slipped at any time . . . during the summer months

. . . the risk of harm was not imminent . . . .’’

(Emphasis in original.) Id., 279. Without more, the gen-

eral risk of slipping was so attenuated that, as a matter

of law, it was not an imminent harm.19 See id., 279–80.

In the fourth case, the complaint alleged that the

victims’ neighbors raised the grade of their property in

such a way that significant rainfall caused ‘‘excessive

amounts of surface water [to be] discharged onto the

[victims’] property causing flooding, erosion and threat-

ening the integrity of the septic system . . . .’’ (Internal

quotation marks omitted.) Bonington v. Westport,

supra, 297 Conn. 313; see id., 315. Because town zoning

officials would not act, the victims eventually were

forced to incur legal costs to correct the problem them-

selves. Id., 313–14. The court held that, although rain

may have been inevitable and the victims did ultimately

bring legal action, ‘‘a significant rainfall causing exces-

sive surface runoff necessarily would occur at an indefi-

nite point in time’’ and so ‘‘there was no definite point

in time when the [victims] necessarily would have

undertaken [legal] action.’’20 (Emphasis added.) Id., 315.

The general risk of rain heavy enough to force the

victims to bring legal action was so attenuated that, as

a matter of law, it was not an imminent harm. See id.

The primary difference between the three cases send-

ing the question of imminent harm to the jury and the

four cases holding that as a matter of law harm was

not imminent appears to be that, whereas in the former,

a jury reasonably could conclude that, on a given day,

the harm was more likely than not to occur; in the

latter, the complaint alleged only a low level general

risk that, after a long enough time, eventually came

to fruition. Such a distinction is certainly somewhat

subjective on the margins. It is, however, the most logi-

cal reading of the standard announced by our Supreme

Court in Haynes v. Middletown, supra, 314 Conn. 323,

and it holds true to the ordinary meaning of the term

‘‘imminent harm.’’ See id., 318 n.10 (American Heritage

Dictionary of the English Language defines ‘‘imminent’’

as ‘‘[a]bout to occur; impending’’ and Merriam-Web-

ster’s Collegiate Dictionary defines ‘‘imminent’’ as

‘‘ready to take place; esp[ecially]: hanging threateningly

over one’s head’’ [internal quotation marks omitted]).

c

We thus turn to the facts of this case. To be entitled

to summary judgment, the defendants ultimately bore

the burden of proving that the exhibits presented in

support of and in opposition to their motion for sum-

mary judgment, considered as a whole, would not per-

mit any reasonable jury to conclude that it was apparent

that the manner in which the defendants reported the

situation to dispatch, combined with their failure to

respond themselves, subjected White to imminent

harm—i.e., made it more likely than not that she would

become a victim of the storm. We hold that a jury

reasonably could so conclude and thus the court erred

in granting the defendants’ motion for summary

judgment.

As to the scope of the harm, at least on the facts

of this case, ‘‘harm from the storm’’ is an appropriate

framing. The defendants were told of a woman out

in a severe storm by the ocean who needed medical

attention. Ultimately, she drowned. Although there

were many ways that the storm could have taken

White’s life, the general nature of the harm was the

same—exposure to the elements while she was in a

vulnerable state. For purposes of the imminent harm

analysis, that is what matters. The dissent argues that

this is too general a framing, and that it amounts to

saying that ‘‘any harm that befell [White] . . . no mat-

ter how attenuated from the dangerous condition, was

imminent harm . . . .’’ We do not mean to suggest that

any harm would suffice. For example, if White had been

mugged, or had injured her hand on a defective, jagged

railing, or had otherwise been injured by something

apart from the storm, then we would agree with the

dissent that such a harm, as a matter of law, was too

attenuated from the risk posed. Nevertheless, wander-

ing out near the ocean, at night, during a severe storm,

poses certain risks, including being hit by debris that

is caught up in the wind, being electrocuted by downed

power lines or by lightning, slipping on a wet surface

and hitting one’s head, as well as drowning in a pool

of water or in the ocean. Those risks are heightened if

the person out in the storm needs medical attention or

otherwise is in a vulnerable state.

The dissent seems to agree that had White fallen in

the field and drowned in a pool of water there—a risk

that came up at the internal police investigation into

the adequacy of the defendants’ response that night—

then that harm would have been within the general

nature of the risk posed. The dissent concludes, how-

ever, that the extra one-half mile between where White

was last seen and where a jury could find that she

drowned removes her drowning from the general nature

of harm posed by the storm, as a matter of law. We do

not attribute the same importance to that one-half mile,

and so we conclude that a jury reasonably could find

that White’s drowning in the storm was harm of the

same general nature as the risk posed by the storm.21

Cf. Haynes v. Middletown, supra, 314 Conn. 325 (‘‘we

are unable to conclude that no reasonable juror could

find that [the imminent harm, identifiable victim excep-

tion was met]’’).

As to whether that harm was imminent, the evidence

presented on the defendants’ motion for summary judg-

ment, construed in the light most favorable to the plain-

tiff, permitted an inference that the storm was so severe

that the defendants were unable to perform their regular

boat patrol. The storm prevented the defendants even

from leaving their cruiser to check the field for White,

in case she had fallen and was injured.

There was evidence before the court that Powers

nevertheless did not take the report that White was in

danger seriously.22 He testified at his deposition that

‘‘[i]f a person was in physical danger . . . [he] would

respond’’ but that he did not think White presented a

‘‘true emergency.’’ His actions, in driving away from

White to go inspect the brand new bilge pumps from

the car for a second time, and in refusing to leave his

cruiser to look for White lest he have to ‘‘walk through

a field in the pouring rain,’’ both suggest that he did

not think White presented a true emergency.

There was evidence before the court that Powers

conveyed his opinion that White did not present a true

emergency to the 911 dispatcher. The transcript of the

911 call shows that, rather than tell the dispatcher that

a woman out in the storm needed medical attention,

Powers chuckled with the dispatcher over the ‘‘lady

. . . standing in a field with a raincoat on, looking up

at the sky.’’ When Powers followed that comment with

‘‘[t]hey think she might need medical help,’’ both the

context and the dispatcher’s response of, ‘‘[g]eez, do

you think?’’ suggest that this remark was meant and

understood not in its literal sense, as a statement that

White was in danger and needed assistance, but as a

joke about White’s mental health. Powers’ chuckling

throughout the 911 call similarly suggested to the dis-

patcher that this was not a serious report of an emer-

gency. Given the overall tone of the call, a jury

reasonably could conclude that Powers’ request that

the dispatcher ‘‘send, uh, Rizzo or one of them’’ to the

‘‘person standing out in the rain’’ was made in much

the same joking manner.23

A jury reasonably could conclude that the defendants

thus cut off all three avenues of help available to White.

First, Powers told the tax collector that ‘‘he would take

care of it,’’ leading her to believe that there was no

more that she needed to do. Second, he reported the

emergency to the 911 dispatcher in such a way that she

would think it was a joke and not send anyone. Third,

he and Milardo did not respond themselves, but rather

drove away from White and did not return until a couple

of hours later, by which time White was no longer stand-

ing in the field. Accordingly, a jury reasonably could

conclude that it was apparent to the defendants that

by cutting off all avenues of help available to a woman

out in a severe storm by the ocean who needed medical

attention, they made it more likely than not that White

would wind up a victim of the storm. Indeed, that is

what happened.

Because the defendants failed to carry their burden

of proving that there was no genuine issue of fact that

at least one element of the imminent harm, identifiable

victim exception was not met, the defendants were not

entitled to judgment as a matter of law. The court’s

rendering of summary judgment was thus improper.

The judgment is reversed and the case is remanded

for further proceedings consistent with this opinion.

In this opinion MIHALAKOS, J., concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1

We refer to Powers and Milardo as the defendants. Although their

employer, the town of Westbrook, is an additional defendant, for purposes

of this appeal all parties agree that the town’s liability derives from and is

the same as the constables’ liability, if any.

2

The plaintiff raised a second claim on appeal as ‘‘an issue of first impres-

sion,’’ namely, that we should adopt a new exception to discretionary act

immunity, to be applied when an officer ‘‘make[s] misrepresentations of

fact . . . to avoid having to do any work.’’ We do not review that claim

because the plaintiff never raised it before the trial court. See White v.

Mazda Motor of America, Inc., 313 Conn. 610, 619, 99 A.3d 1079 (2014)

(‘‘[a]n appellate court is under no obligation to consider a claim that is not

distinctly raised at the trial level’’ [internal quotation marks omitted]). The

plaintiff argues that she did raise the claim before the trial court in four

ways: (1) in her complaint, when she alleged that White died ‘‘as a result

of,’’ ‘‘Officers Powers’ and Milardo’s failure to be truthful and satisfy their

roles as Constables’’; (2) in her opposition to the defendants’ motion for

summary judgment, when she argued that the defendants had ‘‘breached

the duty they owed the plaintiff’’ because ‘‘[a] reasonable officer would not

have misrepresented his or her whereabouts to dispatch in order to avoid

responding to a call for medical aid’’; (3) at oral argument on the summary

judgment motion, when she argued that Powers ‘‘misrepresented where he

was’’ because he ‘‘wanted to fly under the radar that night’’; and (4) in her

motion for reconsideration, when she argued that ‘‘the Officers’ misrepresen-

tation about their assignment and whereabouts’’ in response to ‘‘a report

of a citizen in need of aid’’ raised a ‘‘genuine issue of material fact [as to

whether] the decedent, Elsie White, was an identifiable victim subject to

imminent harm.’’ (Emphasis added.)

We disagree that any of these four statements to the trial court raised

the legal issue of whether the court should carve out a new exception to

discretionary act immunity for lying. The first two statements did not concern

immunity. The third statement, even in context, was vague and failed to

raise anything distinctly. The fourth statement expressly concerned an

exception to discretionary act immunity that already exists, namely, the

imminent harm, identifiable victim exception. As a result, the trial court’s

memorandum of decision did not address the issue of whether to adopt a

new exception to discretionary act immunity for lying. We will not decide

that issue for the first time on appeal.

3

The full transcript of Powers’ call to the 911 dispatcher was as follows:

‘‘Dispatcher [Theresa] Smith: State police dispatcher Smith, can I help you?

‘‘Officer Powers: You always say that same thing. Is this a recording or

what? (chuckles)

‘‘Dispatcher Smith: I’m gonna try like hell.

‘‘Officer Powers: Try like hell. Listen, uh, a person stopped by and they

said there’s a lady up on Route 1 up by Ambleside,

‘‘Dispatcher Smith: Ok.

‘‘Officer Powers: standing in a field with a raincoat on, looking up at the sky

‘‘Dispatcher Smith: (chuckles)

‘‘Officer Powers: (chuckles) They think she might need medical help. Can

‘‘Dispatcher Smith: Geez, do you think?

‘‘Officer Powers: you send, uh, send, uh, Rizzo or one of them

‘‘Dispatcher Smith: Ok.

‘‘Officer Powers: I can’t leave the boat.

‘‘Dispatcher Smith: Ok. Where, she’s at Route 1 near Ambleside?

‘‘Officer Powers: Yeah, someplace in a field up there.

‘‘Dispatcher Smith: Ok.

‘‘Officer Powers: She should be the person standing out in the rain.

(chuckling)

‘‘Dispatcher Smith: Ok.

‘‘Officer Powers: Bye.

‘‘Dispatcher Smith: Bye.’’

4

The plaintiff did not properly raise any other exceptions to the doctrine

of discretionary act immunity.

5

See also Curran v. Kroll, 303 Conn. 845, 857, 37 A.3d 700 (2012) (‘‘[T]he

line between permissible inference and impermissible speculation is not

always easy to discern. . . . At some point, the link between the facts and

the conclusion becomes so tenuous that we call it speculation. When that

point is reached is, frankly, a matter of judgment. . . . [P]roof of a material

fact by inference from circumstantial evidence need not be so conclusive

as to exclude every other hypothesis. It is sufficient if the evidence produces

in the mind of the trier a reasonable belief in the probability of the existence

of the material fact. . . . Thus, in determining whether the evidence sup-

ports a particular inference, we ask whether that inference is so unreason-

able as to be unjustifiable. . . . In other words, an inference need not be

compelled by the evidence; rather, the evidence need only be reasonably

susceptible of such an inference.’’ [Internal quotation marks omitted.]).

6

The defendants also moved for summary judgment on two other grounds,

namely, duty and proximate cause. Because the court granted summary

judgment in favor of the defendants on the basis of immunity, the court did

not rule on these two other issues.

7

As to the town, its liability derives from two statutes. First, General

Statutes § 52-557n makes ‘‘a municipality . . . liable for . . . [the] negli-

gent act or omission of a municipal officer acting within the scope of his

or her employment or official duties . . . [but] shields a municipality from

liability for . . . [an officer’s] negligent acts or omissions which require the

exercise of judgment or discretion . . . .’’ (Internal quotation marks omit-

ted.) Haynes v. Middletown, supra, 314 Conn. 312. The imminent harm,

identifiable victim exception qualifies the town’s discretionary act immunity

under § 52-557n just as it qualifies the officer’s common-law discretionary

act immunity. Grady v. Somers, supra, 294 Conn. 348. Second, General

Statutes § 7-465 permits a plaintiff to seek indemnification from a municipal-

ity for its officers’ negligent conduct. Id., 337–38.

8

Discretionary act immunity may be decided by a jury because it shields

a defendant only from liability, not from being sued. See Edgerton v. Clinton,

311 Conn. 217, 227 n.9, 86 A.3d 437 (2014). By contrast, sovereign immunity,

which is not at issue here, implicates subject matter jurisdiction and includes

both immunity from liability and immunity from suit. Id.

9

But see Purzycki v. Fairfield, 244 Conn. 101, 108 n.5, 708 A.2d 937 (1998)

(‘‘[t]he 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’’ [emphasis added;

internal quotation marks omitted]), overruled in part on other grounds by

Haynes v. Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014).

10

A fourth case, although superficially relevant, is not instructive. To wit,

in one of the earliest cases to address the imminent harm, identifiable victim

exception, our Supreme Court summarily held that the exception did not

apply because the police officer in that case ‘‘could [not] have been aware

that [the] conduct [of the drunk driver whom he pulled over and who later

crashed into another motorist after being let off with a warning] threatened

an identifiable victim with imminent harm.’’ Shore v. Stonington, 187 Conn.

147, 154, 444 A.2d 1379 (1982). Although that holding has been variously

characterized as turning on the imminent harm element; see Evon v.

Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989) (‘‘[t]he present allegations

do not even rise to the level of the imminence we rejected in Shore v.

Stonington’’); and the apparentness element; see Doe v. Petersen, 279 Conn.

607, 617, 903 A.2d 191 (2006) (‘‘Shore remains our only decision in which

we declined to abrogate discretionary act immunity on the basis of a public

officer’s lack of awareness’’); the court in Shore simply did not explain its

reasoning on this point. See Shore v. Stonington, supra, 154.

11

In their appellate brief, the defendants cite to evidence, obtained after

White died, about her occasionally odd habits but generally good mental

health in an attempt to downplay the significance of her wandering out into

the storm on the night of June 18, 2008. Such evidence is irrelevant to the

question before us because it was not before the defendants on the night

in question.

12

The defendants do not discuss Doe in their scope of harm argument

and rely instead on our decision in Swanson v. Groton, 116 Conn. App. 849,

977 A.2d 738 (2009). The defendants argue that, in Swanson, this court

‘‘determined that the officer would have to know about the specific harm

to befall the plaintiff.’’ (Emphasis added.) On the contrary, the court in

Swanson held that the officer would have to know ‘‘that [the assailant] was

going to attack a specific person, namely, [the plaintiff] . . . .’’ (Emphasis

added.) Swanson v. Groton, supra, 861. The court said this while discussing

the identifiable victim element. Id. The defendants’ reliance on Swanson for

a narrow scope of harm under the imminent harm element is thus misplaced.

13

The court’s analysis in Cotto v. Board of Education, supra, 294 Conn.

279–80, a case about a youth program supervisor who slipped on a wet

bathroom floor, comes closest to relying on the ‘‘specific imminent harm’’

language. The court’s holding in that case, however, turned on the difficulty

of pinpointing the plaintiff as uniquely likely to slip, out of the more than

sixty program participants who used the bathroom. Id. The scope of the

harm—i.e., slipping on a wet bathroom floor—was undisputed. See id.

14

The dissent notes that, nevertheless, ‘‘the zone of such harm is not

limitless.’’ We emphatically agree. If the harm that occurs is far enough

removed from the risk posed that the two are not of the same general nature,

then the harm was not imminent.

15

Although the defendants argue that the standard for imminent harm

announced in Haynes is limited to cases about schoolchildren on school

property, neither the language nor the rationale of Haynes indicates that

its holding is so limited. See Haynes v. Middletown, supra, 314 Conn. 303.

On the contrary, the court noted that to the extent there was a special rule

in the school context, ‘‘that rule was limited to the ‘identifiable person’

prong of the exception.’’ Id., 324 n.16. We are thus bound to follow the

precedent of our Supreme Court. See Brusby v. Metropolitan District, 160

Conn. App. 638, 658, 127 A.3d 257 (2015) (applying Haynes outside school

context). ‘‘[I]t is axiomatic that this court, as an intermediate body, is bound

by Supreme Court precedent and [is] unable to modify it . . . .’’ (Internal

quotation marks omitted.) Anderson v. Commissioner of Correction, 148

Conn. App. 641, 645, 85 A.3d 1240, cert. denied, 311 Conn. 945, 90 A.3d 976,

cert. denied sub nom. Anderson v. Dzurenda, U.S. , 135 S. Ct. 201,

190 L. Ed. 2d 155 (2014).

16

Although Sestito created the imminent harm, identifiable victim excep-

tion, it was not until Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379

(1982), that the court used such terminology to describe the holding in

Sestito. See Haynes v. Middletown, supra, 314 Conn. 333 (Eveleigh, J.,

concurring). Due to the egregious nature of the facts in Sestito and the

comparatively mild nature of the negligence claims that have since sought

to invoke its holding, our Supreme Court has stated on two occasions that

Sestito is limited to its facts. See Grady v. Somers, supra, 294 Conn. 353

(‘‘Sestito appears, however, to be limited to its facts’’); Edgerton v. Clinton,

supra, 311 Conn. 240 (‘‘we decided Sestito before we adopted the three-

pronged imminent harm test and have found that its holding is limited to

its facts’’); but see Cotto v. Board of Education, supra, 294 Conn. 276 (‘‘[a]

good example of the application of these principles [of the imminent harm,

identifiable victim exception] is Sestito v. Groton’’).

17

The Supreme Court later overruled Purzycki in part, insofar as the

standard it applied in assessing imminent harm focused on the limited

temporal and geographical scope of the risk. Haynes v. Middletown, supra,

314 Conn. 323 (‘‘[w]e therefore overrule [Burns v. Board of Education, 228

Conn. 640, 638 A.2d 1 (1994)] and Purzycki to the extent that they adopted

a different standard’’). The court does not, however, appear to have overruled

the ultimate conclusion in Purzycki that a jury reasonably could have found

imminent harm on those facts. See id., 322–23; see also id., 331 n.1 (Eveleigh,

J., concurring) (‘‘[i]t is my understanding . . . that the majority opinion

does not overrule entirely either Burns or Purzycki, but rather overrules

only the treatment given to the definition of imminent harm contained in

those opinions’’ [internal quotation marks omitted]).

18

A fifth case, Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982),

has also been discussed as an imminent harm case although it did not

actually identify which specific element or elements of the imminent harm,

identifiable victim exception were lacking. See footnote 10 of this opinion.

The most logical reading of Shore appears to be that it turned on the

identifiable victim element, since the victim whom the drunk driver ulti-

mately hit was unknown to the police officer and could have been anyone

or no one on the road between the drunk driver’s ultimate destination and

where the police officer pulled him over. See Shore v. Stonington, supra,

150–51. Although a class of foreseeable victims might have existed—i.e.,

other motorists on the road—an identifiable victim did not. Cf. Grady v.

Somers, supra, 294 Conn. 352 (‘‘[t]he only identifiable class of foreseeable

victims that we have recognized for . . . purposes [of the identifiable victim

element] is that of schoolchildren attending public schools during school

hours’’ [internal quotation marks omitted]).

19

Cotto is perhaps the most difficult case to reconcile with our Supreme

Court’s recent decision in Haynes v. Middletown, supra, 314 Conn. 325,

which did not discuss or cite Cotto. Although in Cotto, the court’s imminent

harm analysis can plausibly be read to turn on the degree of risk—the proper

consideration under Haynes—a more honest reading is probably that it

turned on the lack of a limited time period during which the plaintiff was

exposed to the slippery floor—an improper consideration under Haynes.

Compare Cotto v. Board of Education, supra, 294 Conn. 279–80 (analyzing

imminent harm), with Haynes v. Middletown, supra, 322–23 (rejecting focus

on duration of dangerous condition). Cotto and Haynes also reach opposite

results on quite similar facts. The main factual difference is that the victim

was an adult in Cotto and a teenager in Haynes. Compare Cotto v. Board

of Education, supra, 267, with Haynes v. Middletown, supra, 306. Although

the age of a potential victim is relevant to whether harm is imminent; Haynes

v. Middletown, supra, 315 n.7; a more satisfying explanation may be that

Cotto really turned on the identifiable victim element and discussed immi-

nent harm only in that regard. Compare Cotto v. Board of Education, supra,

279–80 (analyzing imminent harm), with id., 275 (‘‘[a]lthough the trial court

characterized the plaintiff as an identifiable individual . . . the court’s

determination was . . . improper’’ [citation omitted]), and id., 276 (‘‘the

criteria of identifiable person and imminent harm must be evaluated with

reference to each other’’ [internal quotation marks omitted]).

20

To the extent that Bonington asks whether the harm would ‘‘necessarily’’

occur, it stands in some tension with our Supreme Court’s recent statement

in Haynes that the proper standard is whether a harm is ‘‘so likely’’ to occur

that immediate action is warranted. Compare Bonington v. Westport, supra,

297 Conn. 315, with Haynes v. Middletown, supra, 314 Conn. 323.

21

Although the dissent suggests that White ‘‘drown[ed] . . . the next

morning,’’ no evidence compels that finding, and a jury reasonably could

find that White drowned on the night of the storm. The police report attached

as an exhibit to the defendants’ summary judgment motion states that the

last time anyone saw White anywhere in the town was at about 8 p.m. in

the field. Powers’ deposition testimony was that he and Milardo did not see

anyone in the field when they drove past it at about 10 p.m. After 8 p.m.,

White was next seen at about 10 a.m. the following morning when a fisherman

found her body floating face down in the water. Although the fisherman

did not notice White’s body when he went out on the water at 7 a.m., a jury

reasonably could infer that this was either because the body had not yet

washed up or because it was hidden from view by the large rocks. The

deposition testimony of the investigator for the state medical examiner’s

office did not fix a time of death, and the police investigation report stated

that no time of death was determined. As to the statement of Kanfer that

unidentified ‘‘factors’’ suggested a time of death between 7 a.m. and 10 a.m.,

a jury reasonably could infer that those factors were simply a different

reading of the significance of the fisherman not noticing a body at 7 a.m.

and noticing one at 10 a.m., and would not be required to credit Kanfer’s

conclusion in that regard. Rather, a jury reasonably could infer that White

more likely slipped and fell during the severe storm the night before than

during the placid weather the next morning.

Construed in the light most favorable to the plaintiff as the party opposing

summary judgment, the evidence permits an inference that White died the

night of the storm.

22

A jury that found that the defendants did not take the report seriously

could still conclude that the danger was apparent. The test for apparentness

is objective, asking ‘‘whether the circumstances would have made it apparent

to a reasonable government agent that harm was imminent.’’ (Emphasis

added.) Edgerton v. Clinton, supra, 311 Conn. 231 n.14.

23

The 911 dispatcher testified at her deposition: ‘‘I didn’t put [Powers’

911 call] in the computer like I normally do. I didn’t write it down to remind

me to send someone.’’ Although the dispatcher testified that she simply

‘‘forgot,’’ a jury would not be required to credit this explanation. See Palki-

mas v. Fernandez, 159 Conn. App. 129, 133, 122 A.3d 704 (2015) (‘‘it is the

exclusive province of the trier of fact to weigh the conflicting evidence,

determine the credibility of witnesses and determine whether to accept

some, all or none of a witness’ testimony’’ [emphasis omitted; internal quota-

tion marks omitted]).