WILFREDO TEXIDOR, JR. v. CAROL THIBEDEAU ET AL.
(AC 37349)
Gruendel, Lavine and Mullins, Js.*
Argued January 14—officially released March 22, 2016
(
LAVINE, J.
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Juri E. Taalman, with whom, on the brief, was John C. Lewis III, for the appellant (plaintiff).
Scott M. Karsten, with whom, on the brief, was Kateryna Lagun, for the appellees (defendants).
Opinion
LAVINE, J. In this personal injury action, the plaintiff, Wilfredo Texidor, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendants, Carol Thibedeau, a public safety dispatcher, Brian Hill, a police officer and dispatcher, Courtney Grant, a police officer and disрatcher,1 and the town of West Hartford (town). The plaintiff alleged in his complaint that the individual defendants were negligent in responding to a telephone call his relative, Quintina Texidor,2 made to the West Hartford Police Department complaining that a group of teenage boys had been harassing her daughter. One of those teenage boys shot the plaintiff, who was visiting the residence before the police arrived, resulting in his having sustained serious personal injuries.
The court rendered summary judgment on the ground that the defendants were entitled to immunity pursuant to
Viewed in the light most favorable to the plaintiff, the record reveals the following facts. The plaintiff alleged in his complaint that on March 29, 2011, at 2:57 p.m., Quintina Texidor called the West Hartford Police Department to report that eight teenage boys were bullying her daughter and requested that a police officer come to her residence at 113 Abbotsford Avenue. The transcript of the call reveals that Quintina Texidor stated that her daughter had been having issues during the prior two weeks with a ‘‘clique of guys’’ and that she had complained to the principal of her daughter’s school and to the school’s police officer that morning. Quintina Texidor said that the problem was escalating. She further stated: ‘‘[S]o now, the same kids that are messing with my daughter in school аre coming around my house threatening me and my children. . . . So now, this same clique of kids has been doing this bullying for the past four years at Conard High [School].’’ She told Thibedeau that the boys referred to themselves as the ‘‘NBA’’ and that ‘‘they’re looking to jump on my daughter. So now, they’re bringing boys walking by my house . . . and threatening us. . . . They said they’re going to swing by and air up my house.4 I said really, so, I’m gonna call and make a report because this is really gonna escalate.’’ (Footnote added.) Thibedeau asked how the boys made the threat, and Quintina Texidor responded, ‘‘[w]alking in front of the house. . . . They just walked up the street.’’ Thibedeau аsked for Quintina Texidor’s name, and the call concluded with Thibedeau stating, ‘‘somebody will see you there shortly.’’
The plaintiff alleged that after the call concluded, Thibedeau entered the complaint into the police department’s computer dispatch system and coded it as a nonemergency juvenile call. Thibedeau believed that based upon the information provided, Quintina Texidor’s call was related to an issue her daughter was having in school and was not an active situation at the residence. Hill was responsible for assigning police units to respond
The record reveals that at 3:55 p.m., Quintina Texidor called the police again and stated that an officer had not responded and that the boys’ threats were escalating. Public Safety Dispatcher Elizabeth Beyus, who took over for Thibedeau on the shift change, entered this information into the computer dispatch system and changed the coding frоm a nonemergency juvenile call to a disturbance call at 3:56 p.m. Officers were dispatched to Quintina Texidor’s residence at 3:57 p.m. At 4:03 p.m., prior to the officers’ arrival, Beyus received the first report of a shooting on Abbotsford Avenue. Grant advised the officers to upgrade their response and treat the call as an emergency situation. The plaintiff had been shot by Devante Robinson, one of the teenage boys. The plaintiff was not a resident of 113 Abbotsford Avenue and was there because he previously had agreed to help Quintina Texidor move furniture.5 Officers arrived on the scene between 4:06 and 4:07 p.m.
On March 28, 2013, the plaintiff servеd a six count complaint on the defendants,6 alleging that the individual defendants had breached a ministerial duty in how they classified and responded to Quintina Texidor’s initial call. The complaint contained numerous allegations, but the crux of it was that when Thibedeau told Quintina Texidor after her first call that an officer would respond shortly, she created a ministerial duty on the part of the police department to respond immediately, and the individual defendants breached this duty in their subsequent actions by not responding until Quintina Texidor made the second call almost an hour later. The plaintiff alleged that the breach of this duty resulted in his being shot by Robinson. The defendants moved for summary judgment, asserting as one of their special defenses that they were entitled to governmental
Prior to analyzing the plaintiff’s claims on appeal, we set forth the standard of review and relevant legal principles of law. ‘‘Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.’’ (Internal quotation marks omitted.) Mills v. Solution, LLC, 138 Conn. App. 40, 45–46, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012).
The law of this state regarding the liability of municipalities and their agents is well established. ‘‘[Our Supreme Court] has previously stated that [a] municipality itself was generally immune from liability for its tortious acts at common law . . . . [The court has] also recognized, howеver, that governmental immunity may be abrogated by statute. . . . [Section] 52-557n (a) (1) provides in relevant part: Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer, or agent thereof acting within the scope of his employment or official duties . . . . [The court] previously [has] concluded that [t]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities arе immune from torts committed by their employees and agents. . . .
‘‘Subdivision (2) of § 52-557n (a), lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal provides: Except as otherwise provided by law, a political subdivision shall not be liable for damages to person or property caused by . . . (B) 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.’’ (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47–48, 881 A.2d 194 (2005). ‘‘The statute thus distinguishes between discretionary acts and
‘‘[Our Supreme Court] has recognized an exception to the discretionary act immunity that allows for 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 . . . . This identifiable person-imminent harm exception has three requirements: (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. . . . All three must be proven in order for the exception to apply. . . . The ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury.’’ (Citation omitted; internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 312–13, 101 A.3d 249 (2014).
I
The plaintiff claims that a genuine issue of material fact exists with respect to whether the individual defendants were engaged in a discretionary act when resрonding to Quintina Texidor’s initial request for police assistance at her residence. The plaintiff argues that when Thibedeau told Quintina Texidor at the end of the call that a police officer would ‘‘see [her] there shortly,’’ Thibedeau created a ministerial duty that the defendants breached by not responding to the call until almost an hour later. We disagree. ‘‘Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint . . . [that] [t]he determinаtion of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to . . . § 52–557n (a) (2) (B), turns on the character of the act or omission complained of in the complaint. . . . Accordingly, where it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.’’ (Footnote omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307–308, 999 A.2d 700 (2010).
‘‘The hallmark of a discretionary act is that it requires the exercise of judgment. . . . If by statute or оther rule of law the official’s duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance. . . . [M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.’’ (Emphasis added; internal quotation marks omitted.) Mills v. Solution, LLC, supra, 138 Conn. App. 48. ‘‘In order to create a ministerial act, there must be a city charter, provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner.’’ (Internal quotation marks omittеd.) Coley v. Hartford, 140 Conn. App. 315, 323, 59 A.3d 811 (2013), aff’d, 312 Conn. 150, 95 A.3d 480 (2014).
‘‘[I]t is firmly established that the operation of a police department is a
The plaintiff’s argument fails because in objеcting to the defendants’ motion for summary judgment, he did not present any evidence of a city charter, provision, ordinance, regulation, rule, policy, or any other directive that created a ministerial duty regarding the time in which the officers were to respond to a call for assistance. Furthermore, one of the essential duties of a police department is to receive calls for assistance from the public and to determine the appropriate level of response, which includes the overall priority of calls for assistance. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180. Thibedeau clаssified the initial call from Quintina Texidor as a nonemergency juvenile call, which was an inherently discretionary act. See Smart v. Corbitt, supra, 126 Conn. App. 800–801. The plaintiff, however, claims that the court erred in ‘‘concluding that the police dispatcher’s promise [to send an officer] was a discretionary act and not a ministerial duty resulting from the discretionary act of determining that help should be sent.’’ (Emphasis omitted.) This claim overlooks the fact that even though Thibedeau stated that the police would respond shortly, the police had to use discretion to assess the emergent nature of the call, to rank it amоng other requests for assistance then pending, and to consider the availability of police personnel to respond. Hill and Grant exercised their discretion in considering which unit to send, which the trial court recognized by noting that ‘‘the interview transcripts of Hill and Grant show that neither officer believed that it was necessary to summon a cruiser from the other part of town or a traffic patrol cruiser to respond to a nonemergency call.’’
The plaintiff asserts that Wisniewski v. Darien, 135 Conn. App. 364, 42 A.3d 436 (2012), supports his contention that Thibedeau’s statement that police would arrive shortly at Quintina Texidor’s residence created a ministerial duty. We disagree. In Wisniewski, the plaintiffs brought a negligence action against the town for injuries sustained when a tree fell on the plaintiffs’ motor vehicle. Id., 366–67. This court determined that the record supported the jury’s determination that the defendants failed to establish that their duty to inspect, maintain, and remove the tree that fell on the plaintiffs’ motor vehicle was discretionary. Id., 380–81. Wisniewski is distinguishable from the present case because in the year leading up to the accident, the town had received several complaints
II
The plaintiff claims that the court erred in determining that the defendants were not subject to the identifiable person-imminent harm exception to governmental immunity fоr discretionary acts. The plaintiff asserts that as an invitee and family member of Quintina Texidor, he was a member of an identifiable class of foreseeable victims. This argument is unavailing, as the plaintiff’s proposition that invitees are an identifiable class of foreseeable victims, even if confined to family members, would extend the identifiable person-imminent harm exception to an unduly large class of plaintiffs.
As previously stated, the identifiable person-imminent harm exception has three requirements: (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. Haynes v. Middletown, supra, 314 Conn. 312–13. ‘‘An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person. . . . The exception is applicable only in the clearest cases. . . . Although the identifiable person contemplated by the exception need not be a specific individual, the plaintiff must fall within a narrowly defined identified [class] of foreseeable victims.’’ (Citations omitted; internal quotation marks omitted.) Thivierge v. Witham, 150 Conn. App. 769, 779, 93 A.3d 608 (2014). ‘‘[U]nder our case law . . . we have intеrpreted the identifiable person element narrowly as it pertains to an injured party’s compulsion to be in the place at issue . . . .’’ Grady v. Somers, 294 Conn. 324, 356, 984 A.2d 684 (2009). Our Supreme Court has emphasized that ‘‘[t]he only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public school during school hours because: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus stаtutorily required to relinquish their custody to those officials during those hours and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions.’’ (Internal quotation marks omitted.) Id., 352.
The rule has been narrowly applied outside of the public school context; id., 353; and the few cases in which a specific plaintiff has been held to be an identifiable victim are largely limited to their facts. For example, in Sestito v. Groton, 178 Conn. 520, 522–23, 527–28, 423 A.2d 165 (1979), our Supreme Court held that the facts presented a jury question where an on-duty town police officer watched an ongoing physical altercation in a bar’s parking lot involving the plaintiff’s decedent and did not intervene until after the plaintiff’s decedent was shot and killed. ‘‘Our Supreme Court . . . has explained that Sestito was decided before the current three-pronged identifiable person-imminent harm exception was adopted and its holding is limited to its facts.’’ Thivierge v. Witham, supra, 150 Conn. App. 780 n.8.
We agree with the trial court that the plaintiff did not allege facts demonstrating that he was a member of an identifiable class of foreseeable victims whom a police officer would know were likely to be subjected to imminent harm given the nature of Quintina Texidor’s call. Our Supremе Court has recognized schoolchildren attending public school during school hours as the only identifiable class of foreseeable victims, which is based on public policy reasons and the fact that students are statutorily required to be present on school property. See Grady v. Somers, supra, 294 Conn. 352. A plaintiff’s mere presence as an invitee on the property where he or she sustains an injury is not sufficient to make him or her a member of an identifiable class of foreseeable victims for purposes of the exception to governmental immunity. See Cotto v. Board of Education, supra, 294 Conn. 279, (determining that director of youth program was not identifiable victim when he slipped in wet bathroom because ‘‘any person using the bathroom could have slipped at any time’’ [emphasis omitted]); see also Thivierge v. Witham, supra, 150 Conn. App. 780 (concluding that visitor to dog owner’s property who was bitten by dog after municipal officer’s alleged failure to enforce restraint order was not identifiable victim because ‘‘any number of potential victims could have come into contact with the dog following [the municipal officer’s] issuance of the restraint order’’).
Furthermore, unlike in the distinct factual scenario at issue in Sestito v. Groton, supra, 178 Conn. 522–23, the individual defendants here had no way of knowing that the plaintiff would be present at Quintina Texidor’s home. The analysis in Swanson v. Groton, 116 Conn. App. 849, 977 A.2d 738 (2009), is instructive as applied to the facts of the present case. In Swanson, an individual, Lasalle, who later attacked the plaintiff’s decedent, was stopped by a town police officer. Id., 852. The police officer found that Lasalle was intoxicated, but not incapacitated. Id. Lasalle told the officer that he was returning to the rooming
On the basis of our review of the record, we conclude, as a matter of law, that the trial court did not err in determining that the plaintiff was not an identifiable victim, and thus we need not address the other two prongs of the identifiable person-imminent harm exception to governmental immunity. See Haynes v. Middletown, supra, 314 Conn. 313.
III
Because the court did not err in rendering summary judgment in favor of the individual defendants, who were the town’s employees, the plaintiff’s claim that the court erred in concluding that the town was not liable to the plaintiff for indemnification undеr
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of the date of oral argument.