Opinion
No. 111388
April 7, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO REARGUE
(I)
Supplemental Motion for Summary Judgment
(a)
Gross Negligence
The defendants refer to the language of § 52-557b (b) which grants immunity to fire personnel and others, but then says the immunity does "not apply to acts or omissions constituting gross, willful or wanton negligence. The court has previously dismissed the plaintiff's claims sounding in willful and wanton negligence. The defendants now move to dismiss the gross negligence allegations. It is true that there can be no common law claim for gross negligence in our state. Decker v. Roberts, 125 Conn. 150, 157 (1939), but that does not mean that giving a separate definition to gross negligence and not regarding it as just some degree of recklessness somehow extends the common law given the fact that the claim is made in the context of a statute. The legislature must be taken to be aware of the common law and cases like Decker but still chose to use the term gross negligence. In other words, the legislature was not extending the common law as such but can be viewed as defining a statutory concept explicitly not based on preexisting common law. That is, a gross negligence claim is statutorily authorized only as to the various service providers mentioned in § 52-557b (b). Nor will it be analytically difficult to define a gross negligence claim and common law cases can be referred to for this purpose; thus the court agrees with the analysis in Prosser and Keeton on Torts, 5th Ed., § 34 at page 212: and the holding of the Nebraska Supreme Court in Wicker v. City of Ord, 447 N.W.2d 628, 633-34 (1989), which differentiated between willful, wanton or grossly negligent conduct in determining the scope of immunity under § 71-5111 (Neb.) for ambulance attendants. Prosser states that as to willful, wanton and reckless conduct: "Although efforts have been made to distinguish them, in practice such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least coming out at the same legal exit." The situation is quite different as to "gross negligence." Of this Prosser states:
Several courts, however, dissatisfied with a term so nebulous, and struggling to assign some more or less definite point of reference to it, have construed gross negligence as requiring willful, wanton or reckless misconduct, or such utter lack of all care as will be evidence thereof sometimes on the ground that this must necessarily have been the intent of the legislature. But it is still true that most courts consider that "gross negligence" falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind. There is, in short, no generally accepted meaning; but the probability is, when the phrase is used, that it signifies more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequence.
The court concludes that there is a separate concept, created by statute, of gross negligence which is different in kind than willful, wanton, that is reckless conduct. Given the Epstein affidavit and the position and training of these defendants who actually rendered care the court is not prepared to rule as a matter of law that there can be no viable allegation of gross negligence here under the Prosser and Wicker v. City of Ord, supra, definitions.
(b)
Negligent Supervision
The defendants did not, although they could have, raise the issue presented here and in the next section in their first motion for summary judgment. However, these are legal questions largely and it would be in everyone's interest to resolve them prior to trial.
There are two basic categories of individual defendants here, the defendants who actually rendered assistance to the plaintiff and the defendants who are styled as their supervisors. The latter class of defendants advances this argument and says that they have immunity for such claims under the Good Samaritan statute, § 52-557b (b). The basic position is well stated by the defendants in their brief: ". . . the supervision of others rendering first aid to the plaintiff is itself an act or omission in rendering emergency first aid. Indeed, the definition of the term `supervise' is to `oversee or direct.' Webster's New Dictionary . . . To hold otherwise would render the Good Samaritan statute nugatory and provide a basis for civil liability for those firemen/EMTs who oversee and/or verbally direct the rendition of first aid."
The court cannot accept this position. The statutory language seems clear to the effect that immunity is only being given to the people who actually give first aid and not to their supervisors once removed. That this was the thrust of the statute is indicated by the language in subsection (b) giving immunity for damage to property: "No paid or volunteer fireman, policeman or ambulance personnel who forcibly enters the residence of any person in order to render emergency first aid to a person whom he reasonably believes to be in need thereof shall be liable to such person for civil damages incurred as a result of such entry." Obviously, the class of people rendering first aid are the people who actually give the aid to the patient. There are further difficulties with the defendants' position — carried to its logical extreme supervisors could be given immunity even without having completed "a course in first aid" prescribed in the statute or its equivalent although this is a prerequisite for immunity under the statute. Why would once removed supervisors need such a course?
The defendants also argue that the allegations against another class of defendants should be dismissed — the Mohegan Fire Co., Inc., Mohegan Ambulance Company, Montville Fire Co. No. 1, and the Town of Montville. The argument is that these entities had no "direct duty to the plaintiffs." A trial court's language is quoted in this regard. "To state a cause of action for negligent supervision, a plaintiff must ordinarily plead and prove injury by the defendant's own negligence in failing to properly supervise an employee or agent who the defendant had a duty to supervise and who the defendant knew, or should have known, would cause the injury." It is difficult to disagree with the last quotation if it is qualified by referring to injuries of the same or similar kind and the knowledge of the possibility of injury can also be said to arise from the fact that failure to adequately supervise might cause injury and this failure to adequately supervise was known or should have been realized by the purported supervisor. And that is the problem here — this complaint could have benefitted from a request to revise. What supervision or type of training is being talked about? The court agrees with the plaintiff that global observations of counsel as to what the record shows or does not show in this regard cannot substitute for affidavits or other documentary submissions.
(c)
Training
Again, the court has a problem in addressing this issue given the broad and nebulous implications of the word "training." Training as to what is relative to the causative factors in producing the injuries here? The court will not search through the record to ascertain whether the plaintiffs have a viable argument despite the basic training requirements dictated by the legislature which might make it difficult for their case to survive a directed verdict.
II Plaintiff's Motion to Reargue
The plaintiff invites the court to follow a recent Superior Court case, Bolivar v. Town of Manchester, 32 Conn.L.Rptr. 78 (2003). That case held that even though the defendants were fire persons they were "medical technicians." Therefore, subsection (a) of § 52-557b applies and immunity thereunder is only provided if the defendant acts "voluntarily and gratuitously and other than in the ordinary course of his (her) employment or practice." The court in Bolivar held that it is the level of medical training and expertise attendant to being an emergency medical technician, and not the label fireman, which controls.
The court disagrees with Bolivar for several reasons. From a purely linguistic point of view, the opinion equates the term "medical technician," used in subsection (a) of the statute, with the concept of "emergency medical technician," for no apparent reason. The legislature certainly knew how to use the phrase "emergency medical technician," see § 19a-175 (5) and § 19a-195 (a) and (b). Even if the terms could be equated with each other for some purposes, there is a real question whether medical technicians as referred to in subsection (a) occupies the whole universe of medical technicians even if the latter class can be said to include "emergency medical technicians." In other words, subsection (a) refers to "a person licensed to practice medicine and surgery," or "dentistry," "a person licensed as a registered nurse" or a "practical nurse." It does not refer to "medical technicians" as such the way it referred to these other categories of practitioners. The exact language of the statute is "a medical technician or any person operating a cardiopulmonary resuscitator or a person trained in cardiopulmonary resuscitation or in the use of an automatic external defibrillator in accordance with the standards set forth by the American Red Cross or American Heart Association . . ." The class of medical technicians referred to in subsection (a) appears to be only those operating a resuscitator, or trained in so doing or using a defibrillator. If that is not the case, why is there no comma after "medical technician," and more to the point, why is not the certification statute for "emergency medical technicians," § 19a-195a not specifically referenced as are the licensing statutes for all the other specific practitioners referred to in subsection (a) ?
The defendants who rendered assistance here received training as emergency medical technicians and held certificates as emergency medical technicians.
But leaving aside a linguistic analysis, the court believes sound policy requires that fire persons who happen also to be emergency medical technicians should be able to rely on the broader immunity of subsection (b) of § 52-557b (b). The legislature specifically wished to protect fire personnel giving first aid from suit, if they had received basic first aid training even though, unlike the actors in subsection (a), they were not volunteers but were being paid. The result of Bolivar would be that if such fire persons increased their skills by securing an emergency medical technician certificate going beyond the minimum subsection (b) training requirements then they would lose their immunity. At least to this court, that does not make policy sense, thwarts the legislative purpose and would deprive firemen and women of immunity thereby discouraging the delivery of first aid services by these people or reducing the development of their skills for dealing with emergency medical situations. The court therefore denies the plaintiff's motion to have the court reconsider the applicability of § 52-557b (b) to these defendants.
Corradino, J.