Doe v. Flanigan, 112420 CTCA, AC 42567

Docket Nº:AC 42567
Opinion Judge:BRIGHT, J.
Party Name:JOHN DOE v. STEPHEN FLANIGAN ET AL.
Attorney:Christopher DeMarco, for the appellant (plaintiff). Daniel J. Foster, corporation counsel, for the appellee (defendant city of Waterbury).
Judge Panel:Elgo, Bright and Moll, Js.
Case Date:November 24, 2020
Court:Appellate Court of Connecticut

JOHN DOE

v.

STEPHEN FLANIGAN ET AL.

No. AC 42567

Court of Appeals of Connecticut

November 24, 2020

Argued June 19, 2020

Procedural History

Action to recover damages for, inter alia, the named defendant's alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Waterbury, where the plaintiff filed an amended complaint; thereafter, the plaintiff filed a second amended complaint; subsequently, the court, Shah, J., granted in part the motion for summary judgment filed by the defendant city of Waterbury and rendered judgment thereon; thereafter, the plaintiff withdrew his remaining claims and appealed to this court. Reversed; further proceedings.

Christopher DeMarco, for the appellant (plaintiff).

Daniel J. Foster, corporation counsel, for the appellee (defendant city of Waterbury).

Elgo, Bright and Moll, Js. [*]

OPINION

BRIGHT, J.

This appeal arises out of an incident in which a third party, Charles Fullenwiley, assaulted the plaintiff, John Doe, 1 by placing a sex toy against his buttocks after the named defendant, Stephen Flanigan, at the time a police officer employed by the defendant city of Waterbury, allegedly pushed the plaintiff to the ground and handcuffed him.[2] The plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendant on the fourth count of the plaintiff's second amended complaint, which alleged that, pursuant to General Statutes § 52-557n, the defendant was liable to the plaintiff for the injuries he sustained arising out of Flanigan's negligent conduct.3 The fourth count of the plaintiff's complaint incorporated the allegations of the third count, which alleged that Flanigan acted negligently when he (1) pushed the plaintiff to the ground and handcuffed him, (2) failed to protect the plaintiff from Fullenwiley's assault, and (3) failed to report Fullenwiley's assault. On appeal, the plaintiff claims that the court erred in concluding that there were no genuine issues of material fact as to whether (1) Flanigan engaged in wilful, rather than negligent, misconduct when he pushed the plaintiff to the ground and handcuffed him, and (2) the identifiable victim subject to imminent harm exception to governmental immunity did not apply to the plaintiff's allegation that Flanigan failed to protect the plaintiff from being sexually assaulted by Fullenwiley.4 Additionally, the defendant argues that we can affirm the judgment of the trial court on the alternative ground that Flanigan was not acting within the scope of his employment, and, therefore, the defendant could not be liable.

As to the first issue raised by the plaintiff, we conclude that there are genuine issues of material fact as to whether Flanigan's conduct was wilful or negligent. We also reject the defendant's claimed alternative ground for affirmance because there are genuine issues of material fact as to whether Flanigan, in fact, was acting within the scope of his employment when he pushed the plaintiff to the ground and handcuffed him. As to the second issue raised by the plaintiff, we conclude that the court improperly rendered summary judgment on a ground not argued before it. Consequently, we reverse the judgment of the trial court.

The following facts, viewed in the light most favorable to the plaintiff, and procedural history are relevant to our resolution of the plaintiff's claims. At all times relevant to this appeal, the plaintiff was a minor under sixteen years of age, and Flanigan was employed by the defendant as a police officer. Flanigan took part in the Police Explorers, a program run by the Waterbury Police Department in which young people between the ages of fourteen and twenty-one would meet at the Waterbury Police Department on a monthly basis in order to learn more about becoming police officers. As part of the program, Flanigan frequently handcuffed juveniles as a way to demonstrate the use of handcuffs.

Beginning in July, 2005, the plaintiff worked with Fullenwiley at his place of business, an electronics store in Waterbury called World Technology. Flanigan, who had been friends with Fullenwiley since 2003, frequently visited the store to ‘‘hang out, '' often doing so while on duty. While at the store, Flanigan would ‘‘horse around'' with the young people there, among whom were Fullenwiley's son and the plaintiff. In addition to horseplay, Flanigan, on more than one occasion, would handcuff young people at the store ‘‘because they wanted to see what it was like.''

In the spring of 2006, Flanigan stopped at World Technology on his way to the Police Explorers. The plaintiff, while at World Technology, asked Flanigan to demonstrate the use of his handcuffs. Flanigan pushed the plaintiff to the ground and handcuffed him. While the plaintiff was restrained on the ground, Fullenwiley kneeled on his back and pushed a sex toy against his buttocks. Flanigan watched this incident unfold and took photographs of Fullenwiley and the plaintiff. In October, 2009, the plaintiff commenced the underlying action against Flanigan and the defendant for the injuries that he sustained arising out of this incident.

On January 22, 2015, the plaintiff filed the operative four count complaint (second amended complaint) against Flanigan and the defendant. In the first and second counts, the plaintiff alleged that Flanigan falsely arrested the plaintiff and participated in a sexual assault against him. In the third count, the plaintiff alleged that Flanigan was negligent in pushing the plaintiff to the ground and handcuffing him, failing to protect the plaintiff from a sexual assault, and failing to report the sexual assault. Counts one through three subsequently were settled as against Flanigan himself, leaving only the fourth count of the complaint, which was brought against the defendant. In the fourth count, which incorporated by reference paragraphs 1 through 13 of the third count, the plaintiff alleged that, pursuant to § 52-557n, the defendant was liable to the plaintiff for the carelessness and negligence of Flanigan. The specific allegations of negligence in the third count at issue are as follows: ‘‘6. . . . Flanigan would occasionally engage in ‘horseplay' with minors at World Technology and would demonstrate the use of handcuffs to the minors present at World Technology.

‘‘7. In the spring of 2006, while the plaintiff was at World Technology . . . Flanigan, in an attempt to demonstrate the use of handcuffs, pushed the plaintiff to the ground and put his handcuffs on the plaintiff.

‘‘8. While the plaintiff lay on his stomach, and without

. . . Flanigan knowing what was about to happen . . . Fullenwiley kneeled on the plaintiff's back and placed a [sex toy] against the plaintiff's buttocks.

‘‘9. . . . Fullenwiley was ultimately arrested and convicted for various criminal offenses, among them the above-described incident.

‘‘10. When . . . Flanigan observed Fullenwiley place a [sex toy] against the plaintiff's buttocks, he knew or should have known that . . . Fullenwiley's conduct was illegal and that as a police officer, he had a duty to protect the minor plaintiff from such conduct, yet he failed to take any law enforcement action whatsoever.

‘‘11. As a police officer . . . Flanigan was mandated to report incidents of child sexual abuse to the Department of Children and Families, thus making such a report nondiscretionary, yet he failed to make such a report.

‘‘12. . . . Flanigan was negligent in that he failed to act in accordance with the scope of his duties as a police officer so as to protect the minor plaintiff from such conduct and to prevent such conduct from occurring.

‘‘13. As a direct and proximate result of . . . Flanigan's negligence the plaintiff sustained physical injury, extreme emotional distress, fear and apprehension. From all of the aforesaid injuries the plaintiff has suffered and will suffer psychological pain and mental anguish, all of which are, or are likely to be, permanent in nature.''5

On May 19, 2015, the defendant responded with an answer and nine special defenses. On November 22, 2016, the defendant filed a motion for summary judg-ment.6 In addressing the motion for summary judgment, the court treated the allegation of negligence against the defendant as setting forth three distinct claims. The court summarized the allegations as follows: ‘‘The plaintiff alleges that the [defendant] is liable for (A) Flanigan's affirmative acts of pushing the plaintiff to the ground and handcuffing him; (B) Flanigan's failure to protect the plaintiff from an assault by Fullenwiley; and (C) Flanigan's failure to make a mandatory report of child abuse.''

In its memorandum in support of its motion for summary judgment, the defendant set forth the same argument as to all three bases for liability, namely, that Flanigan engaged in misconduct that was both wilful and outside of the scope of his official duties as a police officer. In support of its argument, the defendant stated: ‘‘The pleadings together with the sworn statements and testimony of the plaintiff clearly establish undisputed facts which can only lead to the conclusion that . . . Flanigan was not acting within the scope of his employment or official duties and that he had committed acts or omissions constituting wilful misconduct.'' The defendant argued that ‘‘[u]nder no scenario set forth by the plaintiff in an attempt to replead his case, can the plaintiff avoid the undisputed facts which the plaintiff himself asserts, that Flanigan pushed him to the ground, handcuffed him, participated in and photographed the incident where Fullenwiley placed a [sex toy] against the [plaintiff's] buttocks. There is no circumstance under...

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