Opinion
NNHCV156055339S
05-13-2016
Todd Cookingham, as Administrator v. Officer Kevin Ieraci et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Steven D. Ecker, J.
Plaintiff, administrator of the Estate of Meghan Cookingham, has filed this lawsuit against a number of defendants with whom the decedent (" Cookingham") came into contact during the events leading up to her suicide on June 15, 2013. Count One of plaintiff's complaint, as amended, alleges that a Meriden police officer named Kevin Ieraci was among those responsible for Cookingham's death. The claim against Ieraci is based on allegations of negligence in connection with his failure to take steps that plaintiff contends were necessary to ensure Cookingham's safety at the time that Ieraci responded to an emergency call on June 14, 2013. Ieraci has moved to strike Count One of the amended complaint on the ground that the allegations fail as a matter of law under the doctrine of municipal immunity. The motion to strike is denied for the reasons that follow.
The doctrine is often called " governmental immunity, " but the court will use the term " municipal immunity" here to avoid any possible confusion with the doctrine of sovereign immunity, another type of governmental immunity with attributes very different from municipal immunity. See Vejseli v. Pasha, 282 Conn. 561, 572-73, 923 A.2d 688 (2007) (describing difference).
Under certain circumstances, a motion to strike can be used to challenge the legal sufficiency of a complaint on the ground that the complaint fails to overcome a would-be defense of municipal immunity. See Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). The Supreme Court explained how the procedure operates:
" We have previously determined that governmental immunity must be raised as a special defense in the defendant's pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50]." . . . Westport Taxi Service v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995); see also Gauvin v. New Haven, 187 Conn. 180, 184-85, 445 A.2d 1 (1982). Nevertheless, " [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." DeConti v. McGlone, 88 Conn.App. 270, 272, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005) [additional citations omitted].Id. Numerous cases since Violano demonstrate that this procedure, not infrequently, is used by municipal defendants to raise the immunity defense by dispositive motion at the beginning of a case. See, e.g., Coe v. Board of Education, 301 Conn. 112, 116-19, 19 A.3d 640 (2011) (per curiam); Avoletta v. Torrington, 133 Conn.App. 215, 221, 34 A.3d 445 (2012); Bailey v. Town of West Hartford, 100 Conn.App. 805, 812-13, 921 A.2d 611 (2007).
Violano makes it clear that a motion to strike may be granted in this context only where it is " apparent from the face of the complaint" that the claim cannot overcome the would-be immunity defense. There are three good reasons to enforce this limitation strictly. First, as the above-quoted passage indicates, municipal immunity is formally a statutory defense available to municipalities and their employees under a variety of circumstances in lawsuits seeking damages based on claims of negligence or nuisance. See General Statutes § 52-557n (providing various bases of liability and numerous exceptions to liability); Westport Taxi Service, Inc., supra, 235 Conn. at 24 (1995) (citing Gauvin v. New Haven, supra, 187 Conn. at 184-85)). This defense, like other non-jurisdictional defenses, can be waived, and, as a formal matter, is not part of a case unless and until it has been raised by a defendant in its pleading.
Technically speaking, Westport Taxi did not involve a statutory defense of municipal immunity under § 52-557n, because the statute is limited to claims for " damages to person or property, " id. at (a)(1); the plaintiff in Westport Taxi was pursuing a claim, not for personal injury or property damage, but for economic losses based on antitrust violations. However, it is evident from the reliance in Westport Taxi on Gauvin v. New Haven, a personal injury case, that the Court intended to speak broadly when observing that municipal immunity operates as a special defense. (Although Gauvin itself also is not a statutory case--it was decided before enactment of § 52-557n--the holding of Westport Taxi and Gauvin on this point is understood, without doubt, to reflect current Connecticut law under § 52-557n, as the cases cited in the preceding paragraph show.)
See, e.g., Westport Taxi, supra, 235 Conn. at 24-25 (discussing waiver of immunity defense); Gauvin, 187 Conn. at 184-85 (same); cf. Nuterangelo v. Scott, No. NNH-CV126030853, Ruling on Plaintiff's Objection to Request to Amend (Lager, J., May 12, 2015) (refusing to allow municipality belatedly to amend pleadings to raise municipal immunity defense on eve of trial). See also Blonski v. Metropolitan District Comm'n, 309 Conn. 282, 297 n.11, 71 A.3d 465 (2013) (noting trial court's finding, unchallenged on appeal, that defendant had waived statutory immunity defense under General Statutes § 25-43c, because it had failed to raise that statutory immunity as a special defense).
The unusual procedure--allowing a special defense, in some instances, to be adjudicated on the face of the complaint--is not unique to the doctrine of municipal immunity. See, e.g., Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006) (noting that the statute of limitations, although a special defense, may be raised by motion to strike in specified circumstances).
A second, more substantive reason explains why care must be exercised before striking a complaint for failure to contain sufficient allegations in anticipation of a municipal immunity defense. The viability of the municipal immunity defense, in any particular case, ordinarily is resolved by intensely fact-bound considerations, and, indeed, typically consists of a series of factual inquiries regarding the specific circumstances surrounding the official act or omission at issue. Even the threshold question--whether the act or omission is ministerial or discretionary--" is normally a question of fact for the fact-finder." Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010) (inner quotation marks and citation omitted); see Gauvin, 187 Conn. at 186; Fraser v. Henninger, 173 Conn. 52, 60-61, 376 A.2d 406 (1977) (" In the absence of a proper basis for determining whether the municipal employee was in the performance of a governmental duty [in connection with the supervision of a basketball program], the complaint is not demurrable on the ground that any violation of the duties involved discretionary or supervisory functions"). Moreover, while the general nature of the official function may often properly be characterized as " discretionary" generically, the discharge of that function may become " ministerial" in light of any number of factors implicated under the particular facts of the case. See, e.g., Wisniewski v. Darien, 135 Conn.App. 364, 373-75, 42 A.3d 436 (2012) (although duties of town tree warden are largely discretionary in nature, trial testimony established existence of unwritten policy establishing mandatory duty to inspect trees under certain circumstances).
Likewise, if the act or omission ultimately is found to be discretionary, further factual analysis is usually necessary to determine the applicability of one or more of the three elements of the most commonly invoked exception to municipal immunity, the identifiable victim/imminent harm exception. See, e.g., Haynes v. Middletown, 314 Conn. 303, 325-26, 101 A.3d 249 (2014); Edgerton v. Clinton, 311 Conn. at 234-38 (after careful analysis of extensive factual record, finding insufficient evidence under " apparentness" prong to support jury verdict for plaintiff); Brooks v. Powers, 165 Conn.App. 44, 71 (2016) (" Such a test for the imminent harm element is highly fact specific"); Tryon v. North Branford, 58 Conn.App. 702, 714-17, 755 A.2d 317 (2000) (same); Notice v. Town of Plainville, No. HHD-CV-116017990, 2013 WL 4734832, at *3 (Miller, J., August 12, 2013) (after extensive review of factual particulars relating to " apparentness" prong, " denying one town's summary judgment in wrongful death case based on alleged failure of police officers to prevent decedent's murder due to officers' failure to enforce protective order). Other statutory exceptions to municipal liability require determination of such fact-bound issues as foreseeability, notice, intention, knowledge, and the like. See § 52-557n(b) (enumerating ten exceptions, most of which turn on such issues).
" This . . . exception has three requirements: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it [would be] apparent that his or her conduct [or failure to act] is likely to subject that victim to that harm." Edgerton v. Clinton, 311 Conn. 217, 231, 86 A.3d 437 (2014). The bracketed language is added here for accuracy under Edgerton . See n.11 below.
Haynes is the most recent Supreme Court decision illustrating the fact-bound nature of the " imminent harm" prong of the immunity inquiry. At the beginning of its analysis, the Haynes Court observes that the " ultimate" immunity determination is one of law, id. at 313, but immediately adds that the jury must resolve any factual dispute(s) material to the immunity defense, id. Haynes concludes, ultimately, by holding that it was error for the trial court to enter summary judgment in defendant's favor, because a reasonable juror could find, on the record developed in that case, that it was apparent to school officials that the ongoing problem of horseplay in the locker room, in combination with the presence of a broken locker, were so likely to cause injury to a student that the school officials had a duty to take immediate preventative action. Id. at 325.
The Notice case is noteworthy because it was tried to verdict and resulted in a multi-million jury award against two police officers. See Notice v. Plainville, No. HHD-CV116017990, Docket Entry #269.00 (Verdict Form With Interrogatories). (An appeal from the judgment was taken and subsequently withdrawn. Id., Docket Entries #290.00, #294.00.)
In light of the fact-specific, contextualized and often nuanced nature of the multiple factors that ultimately determine the viability of the municipal immunity defense, in many cases it would be neither fair nor realistic to expect a plaintiff to allege, in his or her complaint, the specific underlying evidentiary grounds that may establish the inapplicability of the immunity. A review of reported decisions demonstrates that critical facts regarding applicability of the defense often are not known (and may be unknowable) until after discovery is taken. See, e.g., Haynes v. Middletown, supra, 314 Conn. at 325 (reviewing trial evidence regarding school's knowledge of frequent " horseplay" in locker room and length of time that locker's dangerous condition existed prior to injury); Wisniewski, supra, 135 Conn.App. at 374-75; Tryon v. North Branford, supra, 58 Conn.App. at 712-17 (reversing summary judgment where deposition testimony revealed factual dispute over facts and credibility material to immunity determination); Notice v. Town of Plainville, supra, 2013 WL 4734832, at *3 (denying summary judgment, in part, based on evidence regarding detailed day-by-day, and even minute-by-minute, chronology of events); see also Blonski v. Metropolitan District Comm'n., supra, 309 Conn. at 287, 293 n.7 (2013) (jury finding that proprietary function ground for municipal liability was applicable under § 52-557n(a)(1)(B) rested, in part, on email evidence of internal decisions made by defendant in 2001 relating to underlying motivation for installing gate at issue); Gauvin, supra, 187 Conn. at 186-87 (trial testimony of town employee used to establish nature of duty). In addition, expert testimony developed during litigation may be used to establish the nature or parameters of a government employee's discretion, or some other issue material to the immunity defense. See, e.g., Metropolitan Property and Casualty Ins. Co. v. Town of Fairfield, No. CV970339264, 2002 WL 1293342, at *3 (Sheedy, J., May 8, 2002) (denying summary judgment based in part of expert opinion regarding condition of tree that caused plaintiff's injuries when it fell). Each case of course must be assessed individually, and in some cases it will be apparent from the face of the complaint that a plaintiff cannot prevail against a defense of municipal immunity. But there is a real risk of premature decision making in light of the intensely factual nature of the doctrinal analysis and the corresponding need to develop the factual record in the course of litigation as the dispositive facts and issues emerge and become better understood.
The immunity at issue here is immunity from liability, not suit; see Vejseli v. Pasha, supra, 282 Conn. at 573, and, for better or worse, the municipal defendant is not entitled to cut short the usual litigation process once plaintiff has stated a facially sufficient claim under applicable law.
Third, and finally, the unsettled state of some aspects of the applicable doctrinal analysis at this particular time may counsel extra caution before striking a complaint in this legal landscape, at least when the identifiable victim/imminent harm exception is at issue. The doctrinal modification wrought by Haynes, and the doctrinal elaboration provided by Edgerton, though certainly instructive, evidently soon may be subject to further refinement by the Supreme Court in one or more pending cases. Certification has been granted in Williams v. Housing Authority, 159 Conn.App. 679, 124 A.3d 537, cert. granted, 319 Conn. 947, 125 A.3d 528 (2015). Another decision involving the same exception was issued by a divided Appellate Court panel less than three weeks ago, see Brooks v. Powers, supra, 165 Conn.App. 44. It is not known if certification will be sought (or granted) in Brooks, but it seems fair to say that the split decision reflects ongoing uncertainty about the proper application of the identifiable victim/imminent harm exception. In addition, Superior Court decisions continue to demonstrate substantial decisional instability concerning the operation of the immunity doctrine in certain types of negligence claims against municipal defendants. Compare, e.g., Vilton v. Burns, No. X06CV-000169481, 2004 WL 1615850, at *9-*11 (Alander, J., June 22, 2004) (holding that officer's decision to engage in high-speed was discretionary, but manner in which pursuit was conducted may be ministerial) with Dudley v. Hartford, No. HHD-CV-095033767, 2013 WL 4056715, at *5-*8 (Scholl, J., July 24, 2013) (holding, contra Vilton, that manner in which pursuit was conducted may be discretionary in light of recent Appellate Court precedent). An uncertain legal landscape obviously does not excuse a trial judge from making decisions, and there is extensive guidance and stability with respect to many of the legal issues relating to municipal immunity doctrine. The observations contained in this paragraph simply express an attitude of particular caution in light of a doctrine in a period of flux.
The Williams decision, authored by Justice David Borden, provides a lengthy analysis of Haynes, from which it derives a " four-pronged" imminent-harm analysis. 159 Conn.App. at 702-07.
The point is well illustrated by defendant's heavy reliance in its moving papers on the trial court decision in Brooks v. Powers, No. MMX-CV-106001592, (Domnarski, J., July 23, 2014 (granting summary judgment for defendant on municipal immunity grounds). See Defendant's Memorandum of Law in Support of Motion to Strike, dated November 30, 2015, at pp. 9-12 (concluding that " Brooks is a persuasive, well-reasoned decision and this Court should follow it . . .") As noted above, the trial court's decision in Brooks was recently reversed by the Appellate Court, see 165 Conn.App. 44.
The question before this court is whether the amended complaint, on its face, survives a challenge based on governmental immunity. The moving defendant faces a significant burden in this context, because the factual allegations contained in the operative complaint must be accepted as true and construed in a light most favorable to sustaining its legal sufficiency. Violano, supra, 280 Conn. at 317-18. All reasonably necessary inferences, moreover, will be drawn in plaintiff's favor, and the allegations will be construed broadly and realistically rather than narrowly and technically. Id.
This legal standard, applied to the allegations in plaintiff's complaint, requires the court to deny Ieraci's motion to strike. The following facts are taken as true for present purposes. Officer Ieraci responded to a 9-1-1 call concerning Cookingham, and was advised at the scene that Cookingham, under the influence of drugs and alcohol, was drifting in and out of consciousness; she had self-inflicted cuts on her body; she was emotionally distraught, in part because her boyfriend had just ended their relationship; and, perhaps most importantly, she was manifestly suicidal--moments before the 9-1-1 call, Cookingham had acted on her threats to kill herself by attempting to jump out of a moving motor vehicle. See Amended Complaint, ¶ ¶ 8-11. Officer Ieraci ignored the grave risks presented by these circumstances, and, among other things, he " failed to follow proper protocol, standards, and department policies and procedures with respect to a person who has threatened and/or attempted harm to oneself, or who otherwise is at a risk of suicide." Id. at ¶ 15(f) and (d). Ieraci's failure to comply with the protocol, standards, department policies and procedures put Cookingham at risk of imminent harm, id. at ¶ 16, and materially contributed to the events leading to her death, id. at ¶ ¶ 18-21.
The motion to strike does not contest the legal sufficiency of plaintiff's allegations relating to causation or negligence as distinct elements of tort liability.
These allegations are legally sufficient under Connecticut law to overcome a municipal immunity defense. It is not enough, in response, to observe that police officers are conferred wide discretion about how best to do their job. See, e.g., Coley v. Hartford, 312 Conn. 150, 164, 95 A.3d 480 (2014); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988); Smart v. Corbitt, 126 Conn.App. 788, 800-02, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011); Swanson v. Groton, 116 Conn.App. 849, 862, 977 A.2d 738 (2009). Of course this is true. In Connecticut, the fundamental rationale underlying municipal immunity is the perceived need to keep public officials " unafraid to exercise judgment and discretion in their official functions, " Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006) (quoting Haddock v. New York, 75 N.Y.2d 478, 553 N.E.2d 987, 554 N.Y.S.2d 439 (1990)). This reasoning would seem to carry particular force in contexts where the officials are required, as part of their job, to make " split-second . . . decisions based on limited information." Edgerton, supra, 311 Conn. at 228 n.10. Police officers, in other words, ordinarily must be accorded substantial latitude to perform their jobs as they see fit, without fear of liability, because they typically are dealing with fast-moving situations involving unpredictable and quintessentially human factors under conditions of uncertainty; police officers very often must operate without a " playbook" or other clear guidance, and act based on nothing more than background training, on-the-job experience, instinct and intuition. Municipal immunity doctrine embodies a public policy determination by the legislature that tort liability normally should not be imposed on government agents under these conditions.
But there are limits to discretion, and corresponding limits to the scope of municipal immunity. As discussed, one such limitation arises " when the circumstances [would] make it apparent to [a reasonable] public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm." Haynes, supra, 314 Conn. at 312 (quoting Edgerton, supra, 311 Conn. at 230). Discretion disappears when the circumstances would require a reasonably prudent officer to take action to prevent imminent harm likely to befall an identifiable person. The circumstances described in the plaintiff's complaint, if true, establish that Cookingham was a severely impaired individual facing a life-and-death situation--she wanted to kill herself and had demonstrated a willingness to act on that desire. These circumstances were actually known to Ieraci. The complaint thus alleges the three elements triggering the identifiable victim/imminent harm exception: because of what Ieraci was told and what he could see for himself, the circumstances at the scene would have made it apparent to a reasonable officer in Ieraci's position that an identifiable victim (Cookingham) was at risk of imminent harm (suicide). Ieraci was required to exercise reasonable care to prevent that harm or face civil tort liability for failure to do so.
The bracketed words are added because Edgerton also makes it clear, in other, related passages, that the apparentness inquiry is " an objective test" which asks if the circumstances " would have made" the officer aware of the danger. Id. at 231; see id. at 231 n.14. (" We recognize that we have described the apparentness requirement as 'would have made it apparent.' We take this opportunity to clarify that the test is an objective one. We do not ask whether the government agent actually knew that harm was imminent but, rather, whether the circumstances would have made it apparent to a reasonable government agent that harm was imminent.")
The motion to strike is denied.