Aselton v. Town of East Hartford, No. 17383.

Citation890 A.2d 1250,277 Conn. 120
Decision Date07 February 2006
Docket NumberNo. 17383.
CourtConnecticut Supreme Court
PartiesJohn ASELTON, Administrator (Estate of Brian Aselton) v. TOWN OF EAST HARTFORD.

David K. Jaffe, New Britain, with whom were Sally A. Roberts and, on the brief, Jeffrey E. Potter, Hartford, for the appellant (plaintiff).

Thomas R. Gerarde, with whom was Melinda A. Powell, Hartford, for the appellees (defendant James Shay et al.).




East Hartford police officer Brian Aselton (decedent) was fatally shot when he unexpectedly encountered a home robbery in progress after having been dispatched to respond to a 911 "check welfare" call. The issue in this appeal is whether the plaintiff, John Aselton, administrator of the decedent's estate, can state a claim for a violation of substantive due process under the state and federal constitutions against employees of the East Hartford police department who allegedly were responsible for dispatching the decedent to the scene with inadequate and misleading information. The plaintiff appeals from the judgment of the trial court rendering summary judgment in favor of the defendants, East Hartford police chief James Shay and East Hartford police dispatch employees Patricia Learned, William Madore and Deborah Rataic.1 We affirm the trial court's judgment.

The record reflects the following facts, as read in the light most favorable to the plaintiff as the nonmoving party for summary judgment. On January 23, 1999, at approximately 9:13 p.m., Learned, an intake dispatcher with the East Hartford police department, had been engaged in a forty-five minute personal telephone call when a 911 telephone call came in from a complainant, Mark Myers. Learned put her personal call on hold, answered Myers' call and engaged in the following exchange with Myers, who seemed nervous:

"[Learned]: East Hartford Emergency.

"[Myers]: Yes, madam, 454 Main Street.

"[Learned]: Uh hum.

"[Myers]: Apartments — I just heard some loud noise, some groaning and yelling, I don't know what's going on — some loud noise from outside — maybe somebody fell down the stairs — there's somebody yelling and groaning — I don't know what's going on.

"[Learned]: What apartment are you in?

"[Myers]: I'm sorry — above Car Quest Auto Parts Store.

"[Learned]: What apartment are you in?

"[Myers]: I'm in [five] — nothing wrong here — but I heard some noise outside.

"[Learned]: Like where outside?

"[Myers]: It seems like in the apartment across — maybe some loud noise, somebody yelling, someone groaning — I have no idea what's going on here.

"[Learned]: So you're not sure exactly what happened and you haven't gone out to check?

"[Myers]: No I didn't look. I don't know what's going on.

"[Learned]: OK, well, we'll send somebody out.

"[Myers]: OK.

"[Learned]: Bye."

While taking the call, which lasted approximately forty-five seconds, Learned typed the following information into the dispatch screen for transfer to radio dispatch: "Says that he just heard a loud noise, someone yelling, doesn't really have any idea what it was and will not go look. It was outside." Learned thought that someone might have been injured, but did not include any such reference on the dispatch screen, and instead classified the call as a routine "check welfare" complaint, but coded the priority of the call as "H," meaning highest priority. Learned then returned to the personal call that she had put on hold. At approximately 9:14 p.m., Rataic, who was working as a dispatch trainee under the supervision of Madore, received the dispatch entry and issued a communication to the decedent and a second police officer, essentially restating the information that Learned had typed into the dispatch intake screen.2 Moments later, because she had omitted any reference to the location of the noise, Rataic issued a second communication, pursuant to instructions by Madore, stating: "Be advised that was outside of Car Quest Auto Parts."

At approximately 9:16 p.m., the decedent and fellow police officer Mike Weglarz independently arrived on the scene, checked outside 454 Main Street in East Hartford near Car Quest Auto Parts and found no disturbance. The decedent then contacted the dispatcher, asking whether Myers wished to be seen. Rataic asked out loud whether Myers wanted to be seen, but Learned, who still was engaged in a personal call, did not answer. Madore then instructed Rataic that a complainant probably could provide the responding officers with better information if the police officers saw him. Rataic also assumed, absent a contrary indication, that the inclusion of Myers' name and address on the display screen indicated that he wanted to be seen by the police. She therefore provided the decedent with Myers' location and stated, "he said he'll be seen." The decedent then entered the apartment building at 454 Main Street and walked up to the second floor hallway, where he encountered the defendant Alex Sostre, who with three other persons was in the process of committing, inter alia, a robbery and assault in apartment two. See footnote 1 of this opinion. Sostre then fatally shot the decedent in the head.3 At approximately 9:22 p.m., police officers in the immediate area were informed that dispatch had received a telephone call from an individual reporting that a police officer was down in the hallway of the building. The responding officers entered the building and found the decedent lying in the hallway, with his weapon still secured in its holster. In apartment two, in close proximity to the decedent's body, the officers found Gregorio Velez bound, gagged and bleeding.

Thereafter, internal and independent investigations were conducted into the circumstances leading to the decedent's death. Shay attempted to pressure an internal affairs investigator into issuing a report that mirrored a preliminary internal report concluding that the 911 call had not been mishandled; however, a report based on a subsequent independent investigation into the incident concluded that "it is highly likely that the response of the officers that evening would have been different had they had the same pertinent information received by ... Learned," meaning that the decedent would not have entered the building without having another officer present. The report further concluded that "[a] lack of supervision, policies and procedures ... and [a] lack of ongoing training has significantly affected the performance of the communications division." Shay had notice of these problems by virtue of a complaint from a supervisor in the dispatch department, five years before the incident at issue, that conditions in the communications division were so bad that Shay was "going to lose a guy." Moreover, prior to January 23, 1999, another dispatcher had complained to a department supervisor that Learned was being distracted from her work by personal telephone calls.

The plaintiff subsequently commenced this action against the defendants; see footnote 1 of this opinion; seeking compensatory and punitive damages. The complaint alleged: common-law claims of negligent, reckless and wilful misconduct; violations under article first, §§ 4, 7, 8, 9, 10 and 14 of the Connecticut constitution; and violations under the first, fourth, sixth and fourteenth amendments to the United States constitution, pursuant to 42 U.S.C. § 1983. The defendants thereafter moved for summary judgment on all the claims, and the trial court granted the motion. In its memorandum of decision, the trial court first noted that the plaintiff had conceded, apparently at oral argument, that the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284(a), barred the defendants' liability for the common-law negligence and recklessness counts. With respect to the claims for wilful misconduct, the court concluded that there was no evidence from which a reasonable person could conclude that any of the defendants had acted with the intent to expose the decedent to deadly force. The trial court also rejected the plaintiff's claims for common-law damages directly under the Connecticut constitution, concluding that such claims were barred by virtue of the Workers' Compensation Act in that the legislature intended that the act provide the exclusive remedy for a work-related death.

Finally, the court turned to the plaintiff's federal constitutional claims, first noting that the plaintiff had abandoned all such claims except those alleging a violation of substantive due process. It then determined that the standard set forth by the United States Supreme Court for establishing such a violation is whether the defendants' conduct "shock[s] the conscience." In concluding that the plaintiff could not meet this standard, the court reasoned: "[T]here is no genuine factual dispute that the [defendants] never harbored an intent that [the decedent] be injured when he was dispatched to respond to the emergency call. Neither does unwittingly dispatching an officer to a place where he unexpectedly encounters an armed burglar, willing to kill him, shock the conscience. Negligence, recklessness, and even callous indifference by police personnel who dispatched [the decedent] that night are insufficient to create a substantive due process violation...." Accordingly, the trial court rendered summary judgment for the defendants.

The plaintiff moved for reconsideration of the judgment, claiming, inter alia, that the trial court had failed to consider: (1) the theory of "state created danger" as a basis for liability for a substantive due process violation under the federal constitution, because the defendants' conduct had increased the risk of harm to the decedent; and (2) his claim against Shay on the basis of supervisory liability. The trial court denied the motion for reconsideration, and this appeal followed.4


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