201 Conn.App. 411
Conn. App. Ct.2020Background
- Plaintiff (a minor) was handcuffed by Waterbury officer Stephen Flanigan during a visit to a private store; while restrained, a third party (Fullenwiley) sexually assaulted the plaintiff by pressing a sex toy to his buttocks.
- Flanigan allegedly watched and photographed the incident; Fullenwiley was later criminally convicted for related offenses.
- Plaintiff sued Flanigan and the city under a negligence theory (Govt. § 52-557n liability for employee negligence). Claims against Flanigan were later settled; the suit against the city remained.
- The city moved for summary judgment arguing Flanigan’s acts were wilful misconduct and outside the scope of employment (immunity under § 52-557n). The trial court granted summary judgment on two discrete bases: (1) Flanigan’s handcuffing was wilful misconduct, and (2) the identifiable-victim/imminent-harm exception to governmental immunity did not apply to the failure-to-protect claim.
- The court denied summary judgment on the mandatory-reporting failure claim (later withdrawn by plaintiff). Plaintiff appealed the grant of summary judgment as to handcuffing and the failure-to-protect claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Flanigan’s pushing/handcuffing wilful misconduct (displacing negligence)? | Evidence supports negligence/horseplay: plaintiff asked to be handcuffed; Flanigan said he was demonstrating handcuffs for Police Explorers; prior supervisory notes showed poor judgment (supports negligence triable issue). | Act of pushing and restraining on private store floor showed deliberate/reckless conduct — therefore wilful misconduct, insulating city from vicarious liability. | Reversed: genuine factual disputes exist whether conduct was wilful vs. negligent and whether Flanigan acted within scope of employment; summary judgment improperly granted on wilfulness. |
| Was Flanigan acting within the scope of employment when he handcuffed plaintiff? | Acts occurred while Flanigan was on his way to a Police Explorers activity, in uniform, at a location he frequently visited; jury could find action incidental to employment. | City argued conduct was outside scope, so no municipal liability. | Reversed: material facts dispute scope elements (time/place/type/incidental purpose); cannot decide as matter of law. |
| Did the identifiable-victim/imminent-harm exception to governmental immunity apply to the failure-to-protect claim? | Plaintiff had no opportunity to brief or oppose a governmental-immunity argument the city never raised at summary judgment; trial court should not decide a dispositive defense not argued by parties. | Trial court held exception did not apply and granted summary judgment on that basis. | Reversed: trial court erred by granting summary judgment on a ground (discretionary-act immunity / identifiable-victim exception) that the city did not raise in its motion. |
Key Cases Cited
- Lucenti v. Laviero, 327 Conn. 764 (plenary review and summary judgment standard)
- Saunders v. Firtel, 293 Conn. 515 (definition and treatment of wilful/wanton/reckless conduct)
- Harp v. King, 266 Conn. 747 (scope-of-employment factors and legal standards)
- Crotty v. Naugatuck, 25 Conn. App. 599 (police-officer scope-of-duty test: time, place, incidental duties)
- Greene v. Keating, 156 Conn. App. 854 (trial court may not adjudicate dispositive legal issues not raised by parties)
- Bombero v. Bombero, 160 Conn. App. 118 (same: limits on court deciding unraised summary-judgment grounds)