Doe v. Petersen

• Decision Date: 22 August 2006
• Docket Number: No. 17442.,17442.
• Citation: 279 Conn. 607,903 A.2d 191
• Court: Connecticut Supreme Court
• Parties: Jane DOE v. James PETERSEN et al.

903 A.2d 191

279 Conn. 607

Jane DOE v. James PETERSEN et al.

No. 17442.

Supreme Court of Connecticut.

Argued March 10, 2006.

Decided August 22, 2006.

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Gerard S. Sack, West Hartford, for the appellant (plaintiff).

John L. Altieri, Jr., with whom was Duncan J. Forsyth, Hartford, for the appellee (defendant town of Wethersfield).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

Connecticut municipalities are statutorily immune from negligence liability resulting from the discretionary acts of their employees, officers and agents. An exception to this immunity exists—and municipalities are exposed to possible liability—when "the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm. . . ." Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). This appeal requires us to consider whether that exception applies to the facts of the present case. Specifically, we must decide whether the defendant town of Wethersfield (town) is exposed to liability for the allegedly negligent response of its employee, William Pitkin, to the unsuccessful attempt of the plaintiff, Jane Doe,¹ to inform Pitkin that she had been sexually assaulted by another town employee, James Petersen, the named defendant. We conclude that the circumstances do not fall within the exception and that the town is therefore immune from negligence liability for Pitkin's discretionary conduct. Accordingly, we affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff alleged that, in August, 1976, when she was fifteen years old, she was enrolled in a tennis instruction program offered by the town. At that time, Petersen was employed by the town to conduct and supervise various recreational activities, including the tennis program. One day in August, 1976, after a thunderstorm caused the cancellation of tennis, Petersen offered to drive the plaintiff home. According to the plaintiff, Petersen stopped the car and forced her to perform oral sex on him. The plaintiff further alleged that, after the assault was concluded, Petersen told her that the incident was her fault for "teasing" him all summer and "dressing sexy," and that nobody would believe her if she attempted to disclose the incident.

The plaintiff alleged that, a few days after the alleged assault, she approached Pitkin, who then was Petersen's supervisor and director of the town's parks and recreation department, to speak with him about the incident. The plaintiff's deposition testimony chronicled her encounter with Pitkin as follows: "I told [Pitkin] that I needed to talk to him about something that had happened a couple [of] nights earlier between me and . . . Petersen. And [Pitkin] stopped and he said okay. Was this during tennis, something to that effect. And I said actually, no, the night of the big storm, they closed the park and he offered me a ride home, only he didn't take me home. And I don't think I got much past that, just my anxiety level, he immediately started, you know—he immediately made me feel that he was very nervous with what I was trying to say. And he said, `Hold on a second, hold on a second, this is something the two of you [have] got to work out. It's obviously a misunderstanding. I'm not going to get involved. Work it out.' And [he] got in his car and left." The plaintiff did not tell Pitkin that she had been sexually assaulted and made no further attempt to speak with him about the incident. The plaintiff alleges that Pitkin's response to her attempt to inform him of the assault "was confirmation of exactly what Petersen had said to [her] in the car after [the assault] happened, that no one would believe [her]. . . ."

On May 25, 2004, the plaintiff commenced an action in four counts against Petersen and the town. The first three counts, which were directed against Petersen, sounded in intentional assault, negligent infliction of emotional distress, and intentional infliction of emotional distress.² In the fourth count, which was directed against the town, the plaintiff alleged, inter alia, that she "suffered terror and long term psychological injury" as a result of "the carelessness and negligence of the [t]own . . . its employees, servants or agents . . . in that they failed to acknowledge, respond to or investigate [the] plaintiff's report of Petersen's conduct. . . ."³ The town responded by asserting a series of special defenses, including governmental immunity.

On September 15, 2004, the town filed a motion for summary judgment on the fourth count of the complaint on the grounds that (1) the plaintiff's claim was "barred as a matter of law by governmental immunity," (2) the plaintiff's claim was time barred, and (3) the plaintiff had produced "insufficient evidence to create a triable issue of fact with respect to [her] claim that [the town] was negligent in failing to anticipate and prevent the alleged sexual assault." The plaintiff objected to each ground raised by the town.

On November 30, 2004, the trial court granted the town's motion on governmental immunity grounds without addressing the town's other two claims. The trial court concluded that Pitkin's actions were discretionary and, therefore, presumptively immune from liability. The trial court further concluded that the governmental immunity exception permitting the imposition of liability "in circumstances of likely imminent harm to an identifiable person"—which the trial court described as the only exception relevant to the plaintiff's claim—applies only to "temporary hazardous condition[s]," confined to a "limited temporal and geographical zone. . . ." (Internal quotation marks omitted.) The trial court concluded that, because Petersen's alleged sexual assault of the plaintiff "could have happened at any time she came to the park, in any area of the park, or elsewhere," the threat of Petersen's assault was not sufficiently limited in temporal and geographic scope to fall within the "imminent harm" exception. The trial court thereafter rendered judgment in favor of the town, from which the plaintiff appealed to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.

On appeal, the plaintiff claims that, as a matter of law, she was an identifiable victim or within a class of identifiable victims. She analogizes her situation to that of the plaintiff in Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994), in which we determined that a school's failure to remedy an unsafe condition on school grounds exposed an identifiable class of persons to imminent harm.⁴ The plaintiff also argues that genuine issues of material fact exist as to whether Pitkin's response to her attempt to inform him of the assault was likely to subject her to imminent harm of "terror and long term psychological injury. . . ."⁵

The town responds that the trial court correctly determined that the harm alleged was not sufficiently limited in duration and geographic scope. The town also argues that the plaintiff's evidence is insufficient to create a genuine issue of material fact regarding Pitkin's ability to anticipate any imminent harm to the plaintiff.

"As a preliminary matter, we set forth the standard of review. [T]he standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Craig v. Stafford Construction, Inc., 271 Conn. 78, 83, 856 A.2d 372 (2004)." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 619, 872 A.2d 408 (2005). The issue of governmental immunity is simply a question of the existence of a duty of care, and "this court has approved the practice of deciding the issue of governmental immunity as a matter of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).

General Statutes § 52-557n⁶ abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages. Tryon v. North Branford, 58 Conn.App. 702, 721, 755 A.2d 317 (2000). 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. General Statutes § 52-557n(a)(1)(A). General Statutes § 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 which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."

Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability "would cramp the exercise of official discretion beyond the limits desirable in our society."⁷ Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982). Discretionary act immunity "reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury." Haddock v. New York, 75 N.Y.2d 478, 484, 553 N.E.2d 987, 554 N.Y.S.2d 439 (1990). In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts "to be performed in a prescribed manner without the exercise of judgment or...