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Brooks v. Powers

Supreme Court of Connecticut

February 2, 2018


          Argued September 19, 2017

          Thomas R. Gerarde, with whom were James N. Tallberg and, on the brief, Emily E. Holland and Dennis Durao, for the appellants (named defendant et al.).

          Daniel P. Scholfield, with whom were Steven J. Errante and Marisa A. Bellair, for the appellee (plaintiff).

          David N. Rosen and Alexander Taubes filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

          Aaron S. Bayer and Tadhg Dooley filed a brief for the Connecticut Conference of Municipalities et al. as amici curiae.

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Robinson and Espinosa, Js. [*]


          PALMER, J.

         The plaintiff in this certified appeal, Bernadine Brooks, administratrix of the estate of Elsie White, brought this action against the defendants, Robert Powers and Rhea Milardo, constables in the town of Westbrook, [1] alleging that their negligence in responding to a report that a woman, subsequently identified as White, was standing in a field during a severe thunderstorm was a proximate cause of White's accidental drowning the next morning in Long Island Sound. The defendants filed a motion for summary judgment, claiming, inter alia, that the plaintiff's action was barred by governmental immunity as a matter of law.[2] The trial court granted the motion, and the plaintiff appealed to the Appellate Court, which reversed the judgment of the trial court, concluding that there was a genuine issue of material fact as to whether the defendants' conduct falls within the identifiable person, imminent harm exception to that immunity. Brooks v. Powers, 165 Conn.App. 44, 47-48, 80, 138 A.3d 1012 (2016). On appeal, the defendants contend that the Appellate Court incorrectly determined that a jury reasonably could find that White was an identifiable person subject to imminent harm for purposes of abrogating the defendants' governmental immunity. We agree and, accordingly, reverse the Appellate Court's judgment.[3]

         The opinion of the Appellate Court sets forth the following relevant facts and procedural history. ‘‘The parties submitted numerous deposition transcripts, police reports, and other exhibits in support of and in opposition to the [defendants'] 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 internal 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 . . . until 10 p.m. By the time they arrived for work, however, the weather was already severe. The thunderstorm brought with it both torrential 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 [a donut shop]. After that, they drove to the marina to inspect the boat. Milardo testified at her deposition that ‘the main concern [was] that the bilge pumps were operating properly.' Powers testified at his deposition that they did not need to get out of the [cruiser] 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 [convenience store] on [Boston Post Road in Westbrook]. Powers stayed with the cruiser while Milardo went in to get some snacks. At [approximately 7:30 p.m.], the town tax collector drove up to the [store]. 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, [although it was still light outside] 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 [convenience store].

         ‘‘Powers told the tax collector that he would take care of the situation, and [the tax collector] drove away under the impression that she no longer needed to call 911 because the constable was going to take care of [the matter]. Powers then called the 911 dispatcher and told her that ‘a person stopped by and they said there's a lady up on [Boston Post Road] 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 [Boston Post Road] near Ambleside Apartments. ‘She should be the person standing out in the rain, ' he said, chuckling, before saying goodbye.

         ‘‘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 [cruiser] . . . but looked at the boat from [inside] the [cruiser]. 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 scanner about a baby choking and joined the fire department in responding to that call. A couple of hours later, the defendants drove along [Boston Post Road] 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 spotlight on. The grass in the field was knee-high. They did not see anyone. Neither constable got out of the [cruiser]. Powers testified at the internal affairs investigation . . . that, ‘[n]o. I wouldn't go out and walk through a field in the pouring rain.' When asked if [he and Milardo] 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 [there was] a woman that needed medical attention. . . . If you've got somebody that might need [medical attention] or somebody that does need it, you go. . . . 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 [what he noticed], he discovered that it was a body floating face down in the water. [The] [p]olice identified the body as White by the CVS pharmacy and Stop & Shop [scan] 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.' [The defendants, however, submitted the deposition testimony of Julie Wolf, a special investigator for the state medical examiner's office, who arrived at the scene at approximately 12:30 p.m. on June 19, 2008, and examined White's body. Wolf] testified that she observed rigor mortis of the fingers, elbows, and knees, but not of the hips, and no lividity of the body. . . . The defendants also submitted a single page of [a] transcript from an arbitration hearing at which Ira Kanfer, an associate medical examiner, [estimated the time of death to be between 7 and 10 a.m. on June 19, 2008, which, according to Kanfer, was consistent with the beginning stages of rigor mortis observed by Wolf at 12:30 p.m.].''[4] (Footnote omitted.) Id., 48-52.

         The plaintiff commenced this action, alleging that the defendants' actions on the night of June 18, 2008, were negligent and the cause of White's death. The defendants moved for summary judgment, claiming that they were shielded from liability as a matter of law by the immunity afforded municipal employees for their discretionary acts. In response, the plaintiff maintained that the defendants' conduct fell within the identifiable victim, imminent harm exception to that immunity and that summary judgment was therefore inappropriate because the defendants' entitlement to such immunity presented a factual issue to be decided by the jury.

         The trial court granted the defendants' motion. First, however, the court reviewed the principles pertaining to the doctrine of governmental immunity, which may be summarized as follows: ‘‘[Section] 52-557n[5] abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages. . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. . . . [Section] 52-557n (a) (2) (B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions [that] require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.'' (Footnote added; internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 161, 95 A.3d 480 (2014). ‘‘The hallmark of a discretionary act is that it requires the exercise of judgment.''[6] (Internal quotation marks omitted.) Id. In the present appeal, the plaintiff makes no claim that the defendants' conduct was ministerial in nature; she concedes, rather, that their acts were discretionary.[7]

         This protection for acts requiring the exercise of judgment or discretion, however, is qualified by what has become known as the identifiable person, imminent harm exception to discretionary act immunity. That exception, which we have characterized as ‘‘very limited''; Strycharz v. Cady, 323 Conn. 548, 573, 148 A.3d 1011 (2016); ‘‘applies when the circumstances make it apparent to the [municipal] 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. . . . If the [plaintiff] fail[s] to establish any one of the three prongs, this failure will be fatal to [his] claim that [he] come[s] within the imminent harm exception.'' (Internal quotation marks omitted.) Id., 573-74. Finally, ‘‘the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition 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, 314 Conn. 303, 322-23, 101 A.3d 249 (2014).

         Applying these principles, the trial court concluded in relevant part: ‘‘The evidence submitted establishes 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 [evident] to the defendants . . . . 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. . . . The uncontroverted evidence submitted demonstrates that the decedent drowned the next morning in Long Island Sound, although she was initially reported to be located in a field on [Boston Post Road] . . . the previous night. [In view of] the allegations [contained in] the plaintiff's complaint, and the evidence presented, the identifiable victim, imminent harm exception does not apply in this case.''

         The trial court further determined that, even if White were an identifiable person subject to imminent harm, the plaintiff's claim would nevertheless fail under the apparentness prong of the identifiable person, imminent harm exception. In support of this conclusion, the court explained that, ‘‘[i]n order to meet the apparentness requirement, the plaintiff must show that the circumstances would have made the government agent aware that his or her acts or omissions would likely have subjected the victim to imminent harm. . . . This is an objective test pursuant to which we consider the information available to the government agent at the time of [his or] her discretionary act or omission. . . . We do not consider what the government agent could have discovered after engaging in additional inquiry. . . . Imposing such a requirement on government officials would run counter to the policy goal underlying all discretionary act immunity, that is, keeping public officials unafraid to exercise judgment.'' (Internal quotation marks omitted.) In light of the facts presented by the plaintiff, the court concluded that, once the defendants were told by the dispatcher that another officer would be dispatched to check on White, it could not possibly have been apparent to the defendants that their failure to check on her themselves would subject White to a risk of imminent harm.

         The plaintiff appealed to the Appellate Court, and that court, with one judge dissenting, reversed the judgment of the trial court. Brooks v.Powers, supra, 165 Conn.App. 48, 80. The Appellate Court concluded that there was a genuine issue of material fact as to whether, on the night of the storm, White was an identifiable victim subject to imminent harm. See id., 47-48. In reaching its decision, the Appellate Court reasoned, ‘‘[a]s to the scope of the harm, [that] 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.'' Id., 76-77. The Appellate Court further concluded that the proper test for determining whether harm is imminent is whether, ‘‘on a given day, it is more likely than not to occur.'' Id., 71. Applying this test to the facts of the case, the Appellate Court explained that ‘‘a jury reasonably could conclude from the evidence ...

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