Brooks v. Powers

• Citation: 165 Conn.App. 44,138 A.3d 1012
• Decision Date: 26 April 2016
• Docket Number: No. 37301.,37301.
• Parties: Bernadine BROOKS, Administratrix (Estate of Elsie White) v. Robert POWERS et al.
• Court: Appellate Court of Connecticut

165 Conn.App. 44

138 A.3d 1012

Bernadine BROOKS, Administratrix (Estate of Elsie White)

v.Robert POWERS et al.

No. 37301.

Appellate Court of Connecticut.

Argued Dec. 2, 2015.

Decided April 26, 2016.

Daniel P. Scholfield, with whom, on the brief, were Steven J. Errante and Marisa A. Bellair, New Haven, for the appellant (plaintiff).

Thomas R. Gerarde, with whom was Emily Holland, Hartford, for the appellees (named defendant et al.).

James N. Tallberg and Dennis M. Durao, Rocky Hill, filed a brief for the appellee (defendant town of Westbrook).

GRUENDEL, MULLINS and MIHALAKOS, Js.^*

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 defendants' 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 transcripts, 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 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 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 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 Dunkin' Donuts. 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 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 scanner 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 spotlight 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...