165 Conn. App. 44
Conn. App. Ct.2016Background
- On June 18, 2008 during a severe coastal storm a town tax collector reported to Constable Powers that she had seen a woman (Elsie White) standing in a field near the ocean, without rain gear, hands raised, and who "might need medical help."
- Powers told the tax collector he would handle it, then phoned 911 in a joking tone describing the woman; the dispatcher did not record or dispatch the call and later said she "forgot."
- Powers and fellow constable Milardo did not leave their cruiser to search the field, drove away to check the boat bilge pumps, responded to a separate call, and later drove past the field without exiting the vehicle.
- White’s body was found floating near shore the next morning; cause of death was accidental drowning. Time of death was not definitively established.
- Plaintiff (administrator of White’s estate) sued the constables and the town for negligence; trial court granted summary judgment based on discretionary act immunity, concluding the imminent-harm identifiable-victim exception did not apply.
- The appellate panel majority reversed, holding a reasonable jury could find the identifiable-victim/imminent-harm exception applied because defendants’ conduct (the joking 911 call, telling the tax collector they would handle it, and not responding) foreseeably isolated White from aid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discretionary-act immunity bars negligence claim | Brooks: exception for identifiable victim facing imminent harm applies because defendants were told a specific woman near the ocean needed medical help and their reporting/inaction made her unreachable | Powers/Milardo: their acts were discretionary police functions and no reasonable jury could find the imminent-harm exception met (drowning was not an apparent, imminent harm) | Reversed trial court: genuine dispute of material fact exists; a jury could find all three exception elements satisfied |
| Scope of the “imminent harm” required | Brooks: harm can be defined at the general level (harm from the storm/exposure) | Defendants: harm must be the specific injury (drowning off coastline); fireflood-style/attenuated risks are not "imminent" | Court: harm is the general nature (here, storm-related harm); imminent means more likely than not to occur on that day |
| Requirement of apparentness (third prong) | Brooks: it was apparent that the defendants’ particular response (joking to dispatch and not responding) would likely subject White to harm | Defendants: no information asymmetry; nothing made it apparent their conduct would likely cause the specific harm | Court: apparentness requires that it be apparent the officer’s chosen response/nonresponse would likely subject the identifiable victim to imminent harm; facts could support that inference |
| Whether White was an identifiable victim | Brooks: tax collector identified a specific woman in a specific field; Powers’ 911 call confirmed identifiability | Defendants: dispute only as tied to imminence/proximity; argue victim wasn’t tied to the specific harm | Court: White was an identifiable victim (Powers’ remark "she should be the person standing out in the rain" supports identifiability) |
Key Cases Cited
- Haynes v. Middletown, 314 Conn. 303 (2014) (articulates three‑prong imminent‑harm/identifiable‑victim exception and sets standard for "imminent" harm)
- Sestito v. Groton, 178 Conn. 520 (1979) (early and egregious factual basis for imposing liability despite discretionary immunity)
- Doe v. Petersen, 279 Conn. 607 (2006) (discusses identifiable‑victim requirement and information asymmetry in apparentness analysis)
- Purzycki v. Fairfield, 244 Conn. 101 (1998) (school supervision context; foreseeable harm and imminence discussion)
- Evon v. Andrews, 211 Conn. 501 (1989) (risk‑of‑fire examples illustrating non‑imminent harms)
- Ruiz v. Victory Properties, LLC, 315 Conn. 320 (2015) (harm of the general nature suffices even if the specific mechanism is unusual)
- Grady v. Somers, 294 Conn. 324 (2009) (limitations on extending Sestito and analysis of discretionary immunity exceptions)