Opinion
No. MMX-CV09-5006226-S
October 8, 2010
MOTION FOR SUMMARY JUDGMENT # 125
This dispute arises out of the deaths of Ronald Gebo and Eugene Amoroso, who, at the time of their deaths, were housemates in the Town of Old Saybrook. This action was initiated by the executors of their estate who allege that the decedents' deaths were caused by the failure of the defendants David McDonald and the Town of Old Saybrook to respond properly to an Emergency 911 (E-911) call initiated by Mr. Gebo. Neither Mr. Amoroso nor his condition were specifically mentioned by Mr. Gebo in his conversations with the dispatcher. Mr. Gebo did indicate, however, that there was another person present in his house at the time of the E-9 11 call, and that he, Mr. Gebo, did not "think he was going to make it."
The plaintiffs contend that dispatcher David McDonald, in violation of relevant policies, practices and procedures, failed to dispatch a police officer or emergency medical personnel to investigate the E-911 call. The decedents' bodies were discovered by Mr Gebo's daughter two days following the E-911 call. A subsequent investigation by the Old Saybrook Police Department revealed that Mr. McDonald violated seven policies and procedures governing E-911 calls.
Plaintiffs' expert will testify that had proper dispatch procedures been followed, Gebo and Amoroso could have been treated successfully and their lives saved.
The plaintiffs have filed a six-count complaint. The first, second and third counts are based on the negligence of Mr. McDonald and the Town of Old Saybrook with respect to Mr. Gebo. Counts four, five and six are predicated on the negligence of the defendants with respect to Mr. Amoroso. The defendants now move for summary judgment as to counts two, four, five and six. Counts two and five are brought on behalf of the estates of Mr. Gebo and Mr. Amoroso, respectively, against the Town of Old Saybrook pursuant to General Statutes § 52-552n alleging the failure of Old Saybrook and its agents, employees and/or servants to properly train and supervise its dispatchers, including McDonald. Count four is brought on behalf of the estate of Mr. Amoroso for McDonald's negligence in failing to follow rules and procedures including his failure to dispatch an officer to investigate Mr. Gebo's E-911 call. Count six is also brought on behalf of Mr. Amoroso against the Town of Old Saybrook alleging that pursuant to General Statutes § 7-465 and 7-101 the Town is obligated to indemnify McDonald for any damages assessed against him arising out of his negligence.
The defendants first argue that they are entitled to summary judgment as to counts four, five, and six of the revised amended complaint because the defendants owed no duty to Eugene Amoroso. Specifically, they argue that there is no evidence to indicate that McDonald, an Emergency Communications Center dispatcher, was ever aware of Amoroso's presence or that he was in need of medical attention. The essence of their argument is that Amoroso was not a foreseeable plaintiff to whom a duty existed. The defendants make this argument as a principal of general negligence law; not as part of the imminent harm/identifiable person exception to governmental immunity which they offer as an alternative basis for obtaining summary judgment.
The issue of whether Connecticut law even requires a foreseeable plaintiff has been thoroughly discussed in Torres v. Department of Correction, 50 Conn.Sup. 72, 91 n. 14, 912 A.2d 1132 (2006). In Torres, the trial court distinguished the case presently relied upon by the defendants, RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A.2d 153 (1994), and concluded that "it is difficult to say whether a foreseeable plaintiff is required in every negligence cause of action." Nevertheless, even if the court concludes that a foreseeable plaintiff is required, there is still no authority for the stricter requirement that a duty would be created only if McDonald had known that Amoroso was in need of medical assistance. Indeed, as is stated in RK Constructors, Inc. v. Fusco Corp, supra, 231 Conn. 385, "[d]uty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Emphasis added.) In analyzing the circumstances surrounding the conduct of McDonald, it is appropriate to consider the affidavit of McDonald and transcripts of McDonald's conversation with Gebo (indicating that Gebo told McDonald that there was someone else with him, but not that the person needed medical assistance). The plaintiff has submitted copies of the deposition testimony of former Chief of Police Mosca attesting to the duty of emergency dispatchers, including McDonald, to dispatch police officers to investigate 911 calls and indicating that such decision is not discretionary. The plaintiff also provided deposition testimony of Chief of Police Michael Spera attesting to the duty of dispatcher McDonald to verbally report the call to his superiors that evening, as well as to generate a department incident report documenting his call with Gebo. In light of the evidence submitted by the plaintiffs demonstrating McDonald's responsibilities pursuant to department guidelines and policies defendants cannot prevail on their motion for summary judgment. Under the facts of this case, given dispatcher McDonald's undisputed failure to properly dispatch an officer to the location of the E-911 call, it would be anomalous to relieve him and the Town of liability based on the fortuitous circumstance that only one, but not both of the potential victims was identified in the emergency call. Given the evidence submitted by the plaintiff describing the dispatcher's obligations with respect to E-911 calls, it is ultimately for the jury to decide whether a duty was owed by the defendants to Amoroso under the facts and circumstances of this case.
Alternatively, the defendants move for summary judgment as to counts four, five, and six of the revised amended complaint on the grounds of discretionary governmental immunity. Specifically, the defendants argue that because Amoroso was not identified to McDonald, any decisions made by McDonald were discretionary in nature and therefore shielded by governmental immunity. In Segreto v. Bristol, 71 Conn.App. 844, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002), the trial court determined that it was apparent "that the negligent acts of the city alleged in the complaint were discretionary in nature, rather than ministerial, because the complaint contained no allegation that the city or its employees were required to design or maintain the stairway where the plaintiff fell in a prescribed manner and failed to do so." Id., 855. The Appellate Court then went on to affirm the trial court's granting of summary judgment in favor of the defendants because the "complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply. Additionally . . . the affidavit of the city's claims and loss coordinator stated that the city had no such policy in place for the general maintenance and design of the stairway, and the plaintiff failed to offer an affidavit that would have tended to put that fact in dispute." (Emphasis added.) Id., 857.
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). Unlike the defendants in Segreto, supra, the defendants in the case at bar have failed to provide any evidence establishing that no policies or regulations were in effect regarding the appropriate protocol for dispatchers in receipt of a 911 phone call. In fact, based on the plaintiffs' submissions, including Chief Mosca's testimony and the Rules and Regulations Manual, it appears that the opposite may be true, and that there are, in fact, detailed policies and procedures governing the responsibilities of a 911 dispatcher when in receipt of a 911 call. Because the defendants have failed to meet their initial burden of proving that no questions of fact exist with respect to the question of whether the duty to dispatch is ministerial or discretionary, summary judgment is denied as to counts four, five and six. Further, even if the defendants' claim was bolstered by such evidence, the plaintiffs have demonstrated, via their counter-affidavits and deposition testimony, that a genuine issue of material fact exists with respect to whether the dispatcher was under a discretionary or ministerial obligation to dispatch an officer to the location of the E-911 call.
Defendants also argue the applicability of the identifiable victim-imminent harm exception to governmental immunity, relying, again, on the fact that Amoroso was not identified to the dispatcher in the E-911 call and that his impaired condition was not specifically referenced by Gebo. The fact that an officer does not know the precise identity of a potential victim does not relieve a municipality of liability. Sestito v. City of Groton, 178 Conn. 520 (1979). Similarly, it appears that the municipal actor's lack of knowledge as to the specific harm that might occur is not an impediment to imposition of governmental liability. Rather, it is the foreseeability of the potential for harm that is the critical factor. Colon v. City of New Haven, 60 Conn.App. 178 (2000). Further, the issue of whether a public official's actions might subject an identifiable person to imminent harm is typically a question of material fact. Sestito, v. City of Groton, supra.
The defendants also argue that summary judgment as to counts four, five and six should be granted because "there is no evidence that . . . Amoroso would have requested and/or consented to assistance had emergency responders been dispatched." The defendants' brief as to this argument is devoid of any citations to, or analysis of, any law. Generally, "[where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). In the absence of any supporting evidence defendants' claim is inherently speculative.
Finally, the defendants argue that they are entitled to summary judgment as to counts two and five because training of municipal employees is a matter protected by discretionary governmental immunity. Both counts two and five allege that the town of Old Saybrook failed to train and/or properly supervise members of the Emergency Communications Center, including dispatchers such as McDonald. Our Supreme Court has noted "the great weight of authority that the operation of a police department is a discretionary governmental function . . . [I]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . [T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city." (Emphasis added.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179-80 (1988). In Gordon, the dispositive pleading was a motion to strike, and importantly the court, after deciding that the general deployment of police officers is a discretionary governmental action as a matter of law, went on to state that "the city of Bridgeport and its employees had no duty, whether characterized as public or private, to provide police protection . . . under the facts alleged in the complaint. Had such a duty existed, then the plaintiff would have an opportunity to demonstrate that the defendants' actions in carrying out that duty were either ministerial or fell under an exception for discretionary acts." Id., 180-81. The defendants cite to two cases in which courts held that the defendant was entitled to summary judgment because the supervision of police officers is a discretionary act as a matter of law. Washington v. Blackmore, Superior Court, judicial district of New Britain, Docket No. CV 06 5000704 (November 10, 2008, Domnarski, J.); Glorioso v. Police Department of Burlington, 49 Conn.Sup. 200, 209, n. 8 (2004). Both cases are distinguishable in that in this case the plaintiffs claim that the wholesale failure to provide any training to its dispatchers is not a discretionary matter, as opposed to the question of how much training ought to be provided or the content of the such training. Under these circumstances a disputed issue of material fact exists rendering summary judgment inappropriate. Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623 (2000).
Accordingly, for the foregoing reasons, the defendants' motion for summary judgment is denied.
SO ORDERED.