Summary
In Parker, it might have been apparent to the defendant officer that his conduct would cause the plaintiff harm because the officer saw the plaintiff's stationary vehicle; in this case it cannot have been apparent to Blessing that his conduct—or his alternative course of conduct of slowing down—would risk harming Albarran.
Summary of this case from Albarran v. BlessingOpinion
UWYCV136020769S
05-04-2016
Dedra Parker v. John Stadalink et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #132
Barbara Brazzel-Massaro, J.
INTRODUCTION
The plaintiff filed her writ, summons and complaint on August 27, 2013 naming two defendants, the City of Waterbury and John Stadalink. The complaint consists of two counts alleging negligence against John Stadalnik in his position as a police officer and indemnification as to the City of Waterbury pursuant to C.G.S. § 7-465. The defendants have filed a motion for summary judgment alleging they are immune from liability because the acts were discretionary and therefore, governmental and qualified immunity protects them from any liability.
Although the caption in this action refers to the individual defendant as Stadalink, the pleadings refer to the defendant as " Stadalnik." Therefore, the court will refer to the defendant as " Stadalnik."
FACTUAL BACKGROUND
The plaintiff has filed a personal injury action based upon a motor vehicle accident on April 25, 2013. The plaintiff filed a two-count complaint, alleging in the first count that John Stadalnik while performing his duties as a police officer collided with her motor vehicle. The plaintiff alleges in the second count that the City of Waterbury is liable as the employer of the defendant at the time of the accident in accordance with C.G.S. § 7-465. The plaintiff alleges the following facts. The plaintiff was operating a motor vehicle which was stopped at the red traffic light when a motor vehicle, operated by Stadalnik and owned by the City collided with the rear of her motor vehicle, causing injuries. Stadalnik was an agent, servant, and employee at the time of the accident performing his duties as a police officer for the City of Waterbury. The plaintiff alleges that the accident was caused by the negligence of Stadalnik. At the time of the accident Stadalnik was responding to an emergency call in his police vehicle. On September 16, 2013, All Point Care, LLC (the intervening plaintiff), the plaintiff's employer, filed an intervening complaint, alleging that the plaintiff's injuries arose out of and in the course of her employment with All Pointe and that All Pointe has paid, and may in the future become obligated to pay, workers' compensation benefits to the plaintiff pursuant to the Connecticut Workers' Compensation Act. All Pointe claims that any damages recovered in this action shall be so paid and apportioned that it will be reimbursed. On July 9, 2014, the defendants filed an answer to the intervening plaintiff's complaint, in which they deny the allegations that Stadalnik was negligent and that the city has imputed liability as to either the plaintiff or the intervening plaintiff.
On August 21, 2014, the defendants filed an amended answer and special defenses to the plaintiff's complaint, alleging inter alia, that the plaintiff's claims as to the city and/or its agents and/or employees are barred by the doctrine of governmental immunity and the doctrine of qualified immunity as Stadalnik's acts were discretionary in nature. On August 22, 2014, the plaintiff filed a reply to the defendants' amended answer and special defenses, in which she denied all the allegations.
On December 29, 2014, the defendants filed a motion for summary judgment and a supporting memorandum of law, in which they claim governmental immunity. Although their memorandum of law makes references to Stadalnik's deposition and to a plaintiff's deposition, the defendants did not submit any evidence in support of their motion. On December 1, 2014, the plaintiff filed a memorandum in opposition to the motion and submitted the following evidence: 1) excerpts of their deposition transcript, and 2) a certified copy of the police accident report. On December 9, 2015, the intervening plaintiff filed an objection and a memorandum in opposition to the defendants' motion for summary judgment. The matter was heard at the short calendar on January 4, 2016.
DISCUSSION
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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. " . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
" In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). " A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " 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 . . ." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
In the memorandum of law in support of their motion, the defendants claim that they are entitled to summary judgment based on governmental immunity because the defendant was acting as a police officer in response to an emergency at the time of the accident. The defendant argues that Stadalnik was engaged in a discretionary duty. The defendants cite various decisions holding that duties related to police, fire, and public safety are commonly held to be discretionary and relies upon a single decision holding likewise when a police officer was allegedly driving in response to an emergency. McLean v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 85-0236858-S (October 30, 1986, Arena, J.) (12 Conn.L.Trib. 59).
In opposition, the plaintiff and the intervening plaintiff (plaintiffs) counter that even in an emergency situation, emergency vehicle operators have a ministerial duty to drive with due care. The plaintiffs mainly cite cases holding that the duty is ministerial in the context of General Statutes § 14-283. Although, even if the court finds that the duty is discretionary, the plaintiffs claim that there are genuine issues of material fact regarding the applicability of the identifiable person-imminent harm exception in governmental immunity.
The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides that " [e]xcept 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." Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by " 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."
" The [common law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
" There is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions." See Violano v. Fernandez, supra, 280 Conn. at 323. ('the plaintiffs in the present case have failed to allege that the acts or omissions complained of were ministerial in nature because . . . the plaintiffs have not alleged that [the defendant official] was required by any city charter provisions ordinance, regulation, rule policy, or any other directive to secure the property in any prescribed manner'); Soderlund v. Merrigan, 110 Conn.App. 389, 399, 955 A.2d 107 (2008) (relying on cases from other jurisdictions holding that 'when a judge directs or orders a warrant recalled, retired or dismissed, or there is a law that operates to this effect, clerks, magistrates or other personnel are absolutely protected by governmental immunity because the act of retiring or vacating [an arrest] warrant is ministerial"). Bonington v. Westport, 297 Conn. 297, 308-09, 999 A.2d 700 (2010).
In order to create a ministerial duty, 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." Coley v. City of Hartford, 140 Conn.App. 315, 323, 59 A.3d 811 (2013), aff'd., 312 Conn. 150, 95 A.3d 480 (2014). When the duty is embodied in a statute, courts follow the usual rules of statutory interpretation to determine whether it is discretionary or ministerial. See, e.g., Mills v. Solution, LLC, supra, 138 Conn.App. at 49 (" We must determine whether the court properly concluded that § 7-284 does not create a ministerial duty to furnish police protection, a question of statutory interpretation . . ."); Greenfield v. Reynolds, 122 Conn.App. 465, 471-72, 1 A.3d 125 (2010) (interpreting duty in General Statutes § 8-12).
In the present action, the statute that arguably abrogates governmental immunity is § 14-283, which permits emergency vehicles, under certain condition, to disregard traffic laws. Section 14-283(a) defines the term " emergency vehicle" to include a " state or local police vehicle . . . answering an emergency call." Section 14-283(b) permits the operator of an emergency vehicle, in disregard of traffic laws, inter alia, to " proceed past any red light or stop signal or stop sign but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as such operator does not endanger life or property by so doing and (4) disregard statutes, ordinances and regulations governing direction of movement or turning in specific directions." The subsection limits even this authority, however, by providing that the operator, in passing through traffic lights, must slow down " to the extent necessary for the safe operation of such [emergency] vehicle" and in exceeding normal speed limits, must " not endanger life or property by so doing." Furthermore, § 14-283(d) expressly states that: " [t]he provisions of this section shall not relieve the operator of any emergency vehicle from the duty to drive with due regard for the safety of all persons and property."
There is a split of authority among Superior Court decisions as to whether the duties to drive safely to § 14-283 are discretionary or ministerial. The decisions holding them to be ministerial do so mainly because § 14-283(d) expressly states that the statutory provisions " shall not relieve" operators of the duty to drive with due care. See e.g., Dempsey v. Rinehart, Superior Court, judicial district of New London, Docket No. CV-06-5001497-S (December 18, 2009, Cosgrove, J.) (decision to initiate pursuit discretionary but conduct during pursuit ministerial ); Martinez v. Hartford Police Dept., Superior Court, judicial district of Hartford, Docket No. CV-07-5011769, (December 1, 2008, Bentivegna, J.) (ministerial based on the express language in § 14-283(d); Estate of Foster v. Branford, Superior Court, judicial district of Waterbury, Docket No. CV-05-4010120-S (January 30, 2007, Munro, J.) (42 Conn. L. Rptr. 852) (same, but citing Tetro v. Stratford, 189 Conn. 601, 609, 458 A.2d 5 (1983)); Vilton v. Burns, Superior Court, judicial district of Waterbury, Docket No. CV-00-0169481-S (June 22, 2004, Alander, J.) (37 Conn. L. Rptr. 425) (following other Superior Court decisions holding duty ministerial); Pellegrino v. Branford, Superior Court, judicial district of New Haven, Docket No. CV-99-0430717-S (February 10, 2003, Arnold, J.) (following other Superior Court decisions holding duty ministerial); Allen v. Board of Fire Commissioners, Superior Court, judicial district of Waterbury, Docket No. CV-00-0167547-S (August 2, 2002, Sheldon, J.) (ministerial based on the express language in § 14-283(d)); Green v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-342537, (July 14, 1994, Fracasse, J.) (same); but see also Letowt v. Norwalk, 41 Conn.Supp. 402, 579 A.2d 601 (1989) (holding duty as ministerial based on Rhode Island authority); Hurdle v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV-0123428, (December 11, 1995, Sullivan, J.) (following Letowt ).
In contrast, a number of decisions conclude that the duty to drive with due care in § 14-283 is discretionary. Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield, Docket No. CV 14-6042098-S, (September 1, 2015, Kamp, J.); Dudley v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV-09-5033767-S, (July 24, 2013, Scholl, J.) Tucker v. Branford, Superior Court, judicial district of Hartford, Docket No. CV-06-0252918-S, (April 23, 1998, Dorsey, J.); but see also McLean v. Smith, Superior Court, judicial district of New Haven, Docket No. CV-85-0236858-S (October 30, 1986, Arena, J.) (12 Conn.L.Trib. 50) (holding duty to be discretionary because it is performed wholly for public benefit). The two most recent decisions, Paternoster v. Paszkowski, supra, Superior Court, Docket No CV-14-6042098-S and Dudley v. Hartford, supra, Superior Court, Docket No CV-09-5033767-S, stress that construing the duties as ministerial would be inconsistent with two recent Appellate Court decisions holding that the actions of emergency personnel in other, analogous contexts were discretionary: Coley v. Hartford, 140 Conn.App. 315, 59 A.3d 811 (2013), aff'd, 312 Conn. 150, 164-65, 95 A.3d 480 (2014) (There is " considerable discretion inherent in law enforcement's response to an infinite array of situations implicating public safety on a daily basis"), and Faulkner v. Daddona, 142 Conn.App. 113, 122-23, 63 A.3d 993 (2013) (" [A] police officer's decision whether and how to enforce a statue necessarily requires an examination of the surrounding circumstances . . . Such a decision thus invariably involves the exercise of judgment and discretion"). This court holds that the duty to drive safely in § 14-283 is discretionary, not only for the reasons stated in the other Superior Court decisions holding likewise but also based on statutory interpretation guided by longstanding appellate authority on the difference between ministerial and discretionary duties. Our appellate courts stress that a ministerial duty is one that must be performed in a prescribed manner without discretion. Violano v. Fernandez, supra, 280 Conn. 318.
Purely based on the text of the statute, the various duties to drive safely stated throughout § 14-283 are not ministerial because they are not defined to be performed in a prescribed manner. The statute does not state, for example, that emergency vehicle operators must not collide with other vehicles, people or property if they are disregarding traffic laws. The duties referenced in the statute " impose general duties" rather than " mandate a particular response to specific conditions." Bonington v. Westport, supra, 297 Conn. 308. For example, § 14-283(d) states that the statute does not absolve emergency vehicle operators from the duty to drive with " due regard for the safety of all persons and property." The statute does not define or explain how to determine whether someone is driving " in due regard" for safety. Similarly, § 14-283(b) is silent as to how to drive in manner that does not " endanger life or property" or define what it means to slow down at intersections " to the extent necessary" for safety. Instead, " the phrases 'due care, ' 'due regard, ' and 'extent necessary' strongly suggest that [emergency vehicle operators] must make a difficult discretionary determination. [They] must balance the need to proceed [in excess of traffic laws] . . . to apprehend the suspect and thereby protect citizens with the need to proceed [safely] . . . so that [they] or the suspect[s]do] not cause injury to citizens." Paternoster v. Paszkowski, supra, Superior Court, Docket No. CV-14-6042098-S.
The statute does not create a new duty to drive safely but merely " reference[s] a pre-existing common law duty to exercise ordinary care, " which does not " serve as an exception to governmental immunity." Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield, Docket No. CV-14-6042098-S, (September 1, 2015, Kamp, J.) (also concerning Tetro v. Stratford, 189 Conn. 601, 458 A.2d 5 (1983) similarly).
Moreover, the existence of General Statutes § 14-283 is further evidence that the duties to drive safely in § 14-283 are discretionary. General Statutes (Rev. to 1979) § 14-283a(b) directs that, inter alia, " [e]ach police department in a municipality . . . shall adopt a policy for handling pursuits" and that " [s]uch policy shall specify which driving, support and other police tactics may be employed in the case of a pursuit." This statute, since amended, now requires the Commissioner of Emergency Services, the Chief State's Attorney, and other organizations to adopt a state-wide policy for handling police pursuits, which, inter alia, must specify " [t]he conditions under which a police officer may engage in a pursuit and continue a pursuit . . ." § 14-283a(b)(1) (2016). If the duties to drive safely stated in § 14-283 were beyond discretion, it would have been unnecessary for the legislature, in the case of police officers, to have independent authorities define how and when police pursuits should be conducted.
The statewide pursuit policy required by General Statutes § 14-283a has been codified as sections 14-283a-1 through 14-283a-4 of the Regulations of Connecticut State Agencies. The parties do not brief whether the provisions of this policy apply, but even assuming they are applicable, they are also discretionary in the context of the allegations in the plaintiff's complaint and the undisputed facts in this action. The policy states that " [t]he decision to initiate a pursuit shall be based on the pursuing police officer's conclusion that the immediate danger to the police officer and the public created by the pursuit is less than the immediate or potential danger to the public should the occupants of such vehicle remain at large." Regs. Conn. State Agencies § 14-283a-4(a)(2). For conduct during the pursuit, the policy references the duty in General Statutes § 14-283(d). " When engaged in a pursuit, police officers shall drive with due regard for the safety of persons and property." Regs. Conn. State Agencies § 14-283a-4(b)(4). In deciding to terminate the pursuit, the policy states, for example, that " [t]he police officer serving as the primary unit engaged in the pursuit shall continually re-evaluate and assess the pursuit situation, including all of the initiating factors, and terminate the pursuit whenever he or she reasonably believes that the risks associated with continued pursuit are greater than the public safety benefit of making an immediate apprehension." Regs. Conn. State Agencies § 14-283a-4c(1). See also Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield, Docket No. CV-14-6042098-S, (September 1, 2015, Kamp, J.) (holding regulatory duties to be discretionary).
Superior Court decisions holding that the duties to drive safely in § 14-283 are ministerial have misconstrued the test for distinguishing ministerial from discretionary duties. In Allen v. Board of Fire Commissioners, supra, Superior Court, Docket No. CV-00-0167547-S, for example, the court reason: " [T]he operator of an emergency vehicle has no discretion under Section 14-283 to operate his vehicle unsafely, without due regard for the right and safety of others." To the contrary, the statute expressly provides that: " The provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property . . . Accordingly, the duty to operate even an emergency vehicle with due care is a ministerial duty which a fireman has no discretion not to perform ." (Citation omitted; emphasis added.) Id.; see also e.g., Martinez v. Hartford Police Dept., supra, Superior Court, Docket No. CV 07-5011769-S (quoting Allen ). The Allen court essentially states that a ministerial duty is one that must be performed. The difference between ministerial and discretionary duties, though, is not whether they must be performed in the first place. The difference is whether they can be " performed in a prescribed manner without the exercise of judgment or discretion ." (Emphasis added; internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318.
In the present case, it is undisputed that Stadalnik was pursuing a fleeing vehicle in an emergency vehicle at the time of the accident with his lights and sirens activated. According to the police report, he was on his way " to assist the vice squad in stopping a vehicle." Both the police report and the plaintiff's deposition transcript reflect that the plaintiff was stopped at a red traffic light in the left lane of the two-lane, northbound side of the street, when Stadalnik attempted to pass her vehicle on its left. These undisputed facts demonstrate that the defendant disregarded traffic laws in pursuit of a fleeing vehicle, which is a discretionary act that will ordinarily entitle the defendants to governmental immunity.
Nevertheless, the plaintiff also argues that even if Stadalnik was engaged in a discretionary act, the identifiable person-imminent harm exception to governmental immunity applies. There are " three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity--to encourage municipal officers to exercise judgment--has no force . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed 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." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006). " This identifiable person-imminent harm exception has three requirement: (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 the victim to that harm . . . All three must be proven in order for the exception to apply." Haynes v. Middletown, 314 Conn. 303, 312-13, 101 A.3d 249 (2014).
" [T]he criteria of 'identifiable person' and 'imminent harm' must be evaluated with reference to each other. 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." Doe v. Petersen, supra, 279 Conn. 620-21. " [T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." Haynes v. Middletown, supra, 314 Conn. 323.
In the absence of a specific, identifiable person, " Connecticut appellate courts . . . have declined to extend the identifiable person in imminent harm exception to the general public using roads and highways." Chirieleison v. Lucas, 144 Conn.App. 430, 442, 72 A.3d 1218 (2013). In Chirieleison, the Appellate Court held that the exception was inapplicable in the context of an accident allegedly caused by a firetruck that blocked two lanes of a highway at the scene of a prior accident The court held that because the plaintiff did not argue that the victim was identifiable as an individual; Id., 442; but rather argued that she was within a class of foreseeable victims; Id., 442; the alleged threat was to the entire class of the general public travelling on the highway, a group to which the court declined to extend the exception. Similarly, in Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), the Supreme Court held that the exception was inapplicable where a police officer allowed an intoxicated driver to continue driving, and one hour later, the driver struck and killed another driver. The court reasoned that " [t]he adoption of a rule . . . where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." Id., 157.
In contrast in Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979), the Supreme Court recognized a situation where an officer's discretion would subject an identifiable person to imminent harm. Sestito involved a police officer who waited and watched a public disturbance without interfering until the plaintiff's decedent was shot. Under those circumstances, the officer was in close proximity to specific individuals who were subject to imminent harm. Resolving the conflicting testimony on the issue of imminence of harm in favor of the plaintiff, the court held that the case should be submitted to the jury. Id., 528. See also Paternoster v Paszkowski, supra, Superior Court, Docket No. CV-14-6042098-S (" [A]t this early stage of the pleadings the court cannot say that there is no way that under the facts alleged the plaintiff could not have been individually identifiable by [the police officer]").
In the present case it is undisputed that Stadalnik, while assisting with the pursuit of another vehicle with his lights and siren activated, struck the plaintiff's vehicle, which was stopped at a red light, as he attempted to pass it on the left. For the identifiable person-imminent harm exception, this case is analogous to the Sestito v. Groton case where there was an identifiable group of people that were outside of the bar and were within the view of the police officer to decide what actions he needed to take. In the instant action, the plaintiff was stopped at the light and apparently visible to the police officer as he approached the stationery car. The police officer was in a position much like Sestito where he could make choices as to his action. Thus, Stadalnik was in a position that it should have been apparent to him that his driving was subjecting this particular individual to imminent harm. Consequently, the defendants have not met their burden of showing the absence of genuine issue of material fact as to the applicability of the identifiable person-imminent harm exception to governmental immunity.
CONCLUSION
Based upon the foregoing, the motion for summary judgment is denied.