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Texidor v. Thibedeau

Appellate Court of Connecticut

March 22, 2016

WILFREDO TEXIDOR, JR.
v.
CAROL THIBEDEAU ET AL

         Argued January 14, 2016.

          Action to recover damages for, inter alia, the defendants' alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Hartford where the court, Peck, J., granted the defendants' motion for summary judgment and rendered judgment thereon; thereafter, the court denied the plaintiff's motion to reargue, and the plaintiff appealed to this court.

          SYLLABUS

         The plaintiff sought to recover damages from the defendants, the town of West Hartford and three of its employees, T, H and G, for personal injuries he sustained in connection with an incident during which he was shot by a teenage boy. In his complaint, the plaintiff alleged that his relative, Q, had called the town's police department to report that a group of teenage boys were harassing and bullying her daughter. Q requested that a police officer be dispatched to her residence. T, the public safety dispatcher who answered the call, told Q that an officer would respond shortly. T entered Q's complaint into the police department's computer dispatch system and coded it as a nonemergency juvenile call, believing that it was related to an issue that Q's daughter was having in school and not an active situation at Q's residence. On the basis of T's description of Q's call, H, a police officer and dispatcher who was responsible for assigning police units to respond to calls made to the public safety dispatcher, classified Q's call as a nonemergency call. H then contacted the resource officer at Q's daughter's school and a patrol officer for the area where Q's residence was located, but they were both unavailable to respond. When the shifts of T and H ended, G, another police officer and dispatcher, took over for H. Upon viewing the information on the computer dispatch system, G noticed that Q's call had been in the system for more than thirty minutes, and that an officer had not yet been dispatched. G decided to wait before dispatching an officer, however, because the nearest police cruisers were busy on other calls, and she did not believe that it was prudent to dispatch a cruiser from across the town or a traffic patrol cruiser to respond to a nonemergency call. Approximately one hour after Q had initially called the police, she called again, stating that an officer had not responded and that the teenage boys' threats were escalating. The public safety dispatcher who had taken over for T entered that information into the computer dispatch system and changed the coding of the call first to a disturbance call and then to an emergency call after receiving a report of a shooting in the area of Q's residence. G immediately dispatched officers to Q's residence, but the plaintiff, who did not reside at the residence, was shot by the teenage boy before the officers arrived on the scene. Thereafter, the plaintiff brought this action against the individual defendants for negligence and against the town pursuant to the municipal indemnification statute (§ 7-465), claiming, inter alia, that the individual defendants had breached a ministerial duty by the way they had classified and responded to Q's initial call. The defendants moved for summary judgment on the ground of discretionary act immunity pursuant to statute (§ 52-557n [a] [B]). The trial court rendered summary judgment in favor of the defendants, concluding that they were entitled to governmental immunity because the plaintiff's allegations related to the discretionary performance of governmental duties that the individual defendants had carried out in good faith and without malice, and that the identifiable person-imminent harm exception was not applicable. On the plaintiff's appeal to this court, held :

         1. The plaintiff could not prevail on his claim that there was a genuine issue of material fact as to whether the individual defendants were engaged in a discretionary act when responding to Q's initial call to the police: the plaintiff, in objecting to the defendants' motion for summary judgment failed to present any evidence of a city charter, provision, ordinance, regulation, rule, policy, or any other directive that created a ministerial duty regarding the time in which the police were required to respond to Q's call for assistance; furthermore, police officers are protected by discretionary act immunity when they perform the typical functions of a police officer, and an essential duty of a police department is to receive calls for assistance from the public and to determine the appropriate level of response, which includes the overall priority of calls for assistance, and, accordingly, T's classification of Q's initial call as a nonemergency juvenile call was an inherently discretionary act; moreover, the plaintiff's contention that T's statement to Q that a police officer would arrive shortly at Q's residence had created a ministerial duty was unavailing, as the plaintiff had failed to provide an evidentiary basis that would have allowed a trier of fact to conclude that T's statement created a mandatory duty that the police had to respond immediately to Q's call.

         2. The trial court properly determined that the defendants were not subject to the identifiable person-imminent harm exception to governmental immunity for discretionary acts, the plaintiff having failed to allege facts demonstrating that he was a member of an identifiable class of foreseeable victims whom a police officer would know were likely to be subject to imminent harm given the nature of Q's call: the individual defendants had no way of knowing that the plaintiff would be present at Q's residence, as the plaintiff did not reside there and Q had not mentioned the plaintiff in either of her calls to the police prior to the shooting; furthermore, the plaintiff's mere presence as an invitee on Q's property was not sufficient to make him a member of an identifiable class of foreseeable victims for purposes of the exception, and, therefore, the trial court did not err in its determination that the plaintiff was not an identifiable person under the circumstances of this case.

         3. The plaintiff's claim that the trial court erred in concluding that the town was not liable to the plaintiff for indemnification under § 7-465 was without merit, that court having properly rendered summary judgment in favor of the individual defendants, who were the town's employees: for a plaintiff to prevail on an indemnification claim against a municipality, he must first allege and prove in a separate count that an employee of the municipality had been negligent, and, therefore, the plaintiff's indemnification claim against the town was entirely dependent on his establishing liability against at least one of the individual defendants, which he failed to do.

         Juri E. Taalman, with whom, on the brief, was John C. Lewis III, for the appellant (plaintiff).

         Scott M. Karsten, with whom, on the brief, was Kateryna Lagun, for the appellees (defendants).

         Gruendel, Lavine and Mullins, Js.[*] LAVINE, J. In this opinion the other judges concurred.

          OPINION

          [163 Conn.App. 850] LAVINE, J.

          In this personal injury action, the plaintiff, Wilfredo Texidor, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendants, Carol Thibedeau, a public safety dispatcher, Brian Hill, a police officer and dispatcher, Courtney Grant, a police officer and dispatcher,[1] and the town of West Hartford (town). The plaintiff alleged in his complaint that the individual defendants were negligent in responding to a telephone call his relative, Quintina Texidor,[2] made to the West Hartford Police Department complaining that a group of teenage boys had been harassing her daughter. One of those teenage boys shot the plaintiff, who was visiting the residence before the police arrived, resulting in his having sustained serious personal injuries.

          [163 Conn.App. 851] The court rendered summary judgment on the ground that the defendants were entitled to immunity pursuant to General Statutes § 52-557n, and were not subject to the identifiable person-imminent harm exception. See Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009). On appeal, the plaintiff claims that the court erred in determining that (1) there was no genuine issue of material fact that the defendants were engaged in a discretionary act, (2) the defendants were not subject to the identifiable person-imminent harm exception to governmental immunity for discretionary acts, and (3) the town was not liable to the plaintiff for indemnification pursuant to General Statutes § 7-465. We disagree and, accordingly, affirm the judgment of the trial court.[3]

         Viewed in the light most favorable to the plaintiff, the record reveals the following facts. The plaintiff alleged in his complaint that on March 29, 2011, at 2:57 [163 Conn.App. 852] p.m., Quintina Texidor called the West Hartford Police Department to report that eight teenage boys were bullying her daughter and requested that a police officer come to her residence at 113 Abbotsford Avenue. The transcript of the call reveals that Quintina Texidor stated that her daughter had been having issues during the prior two weeks with a " clique of guys" and that she had complained to the principal of her daughter's school and to the school's police officer that morning. Quintina Texidor said that the problem was escalating. She further stated: " [S]o now, the same kids that are messing with my daughter in school are coming around my house threatening me and my children. . . . So now, this same clique of kids has been doing this bullying for the past four years at Conard High [School]." She told Thibedeau that the boys referred to themselves as the " NBA" and that " they're looking to jump on my daughter. So now, they're bringing boys walking by my house . . . and threatening us. . . . They said they're going to swing by and air up my house.[4] I said really, so, I'm gonna call and make a report because this is really gonna escalate." ...


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