Bember v. American Medical Response of CT, Inc

Lee Roy Bember v. American Medical Response of CT, Inc

No. CV146049824S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

November 15, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Robin L. Wilson, J.

I STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, Lee Roy Bember commenced this medical negligence action against the defendant, American Medical Response of CT, Inc. by service of writ, summons and complaint on September 9, 2014. The case was returned to court on September 19, 2014. The plaintiff alleges that the defendant through the acts of its employees, Frank David and Greg Thornhill, negligently caused the plaintiff's injuries. The defendant denies that it was negligent and asserts the special defense of immunity pursuant to the Good Samaritan Act, General Statutes § 52-557b(b). More specifically the defendant maintains that because the plaintiff's cause of action is based in negligence and involved the rendering of emergency first aid by the defendant's employees, the employees, and therefore the defendant, are immune from liability pursuant to the Good Samaritan Act General Statutes § 52-557b(b).

The plaintiff argues that the defendant failed to prove its special defense because, as a matter of law, for-profit corporations, such as the defendant, are not covered by the statute, and the defendant cannot escape liability because its agents are immune under the statute. The plaintiff further contends that the statute is inapplicable because the medical treatment rendered by the defendant's employees to the plaintiff in this case was not " first aid" covered by the statute.

The case was tried to the court and the court heard evidence and testimony on April 13, 14, and 15, 2016, from the following fact witnesses: Ashley Gill, Lee Roy Bember, Frank David Greg Thornhill, Carlos Reyes and Lindsey Martus. The court heard testimony from the following expert witnesses: Frank Mineo and Paul Girard. Numerous exhibits were also admitted into evidence. The court ordered post trial briefs to be submitted simultaneously on or before June 29, 2016. The defendant did not submit its brief until July 6, 2016, one week after the plaintiff submitted its brief. On July 8, 2016, the plaintiff filed an objection to the submission of the defendant's brief and requested the court to reject the defendant's brief since it had a distinct advantage over the plaintiff by having plaintiff's brief to review a week prior to filing its brief. On July 25, 2016, the court overruled the plaintiff's objection, however, the court allowed the plaintiff to file a reply brief by no later than August 8, 2016. The plaintiff filed his reply brief on August 8, 2016.

II DIRECTED VERDICT

Pursuant to Practice Book § 15-8, the defendant, at the close of the plaintiff's case moved for a judgment of dismissal on grounds that the plaintiff failed to make out a prima facie case. The defendant argued that it is entitled to a dismissal of the plaintiff's case because the plaintiff failed to make out a prima facie case that its employees, Frank David and Greg Thornhill breached the standard of care. The defendant further argued that the plaintiff's case should be dismissed because the defendant is entitled to immunity under § 52-557b(b) because its employees qualify for immunity under the statute. The defendant maintains that it produced sufficient evidence at trial to establish that its employees were certified by the American Heart Association and that they rendered first aid to the plaintiff at the time that his diabetic crisis occurred. The defendant argued that because its employees meet the statutory criteria for immunity, it is also immune from liability as a matter of law, and therefore the plaintiff's case should be dismissed in accordance with Practice Book § 15-8.

This court ruled from the bench on the defendant's motion for dismissal of the plaintiff's case on the ground that the plaintiff failed to make out a prima facie case that the defendant's employees breached the standard of care. In denying the motion on this ground, the court applied the appropriate legal standard for dismissal pursuant to § 15-8 which provides that: " The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it . . . In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Citations omitted; emphasis in original; internal quotation marks omitted.) Hurlburt v. DeRosa, 137 Conn.App. 463, 468-69, 49 A.3d 249 (2012); See Trial Record, April 15, 2016, pp. 73-74. The court reserved decision on the issue of immunity pursuant to § 52-557b(b) which the defendant pled as a special defense. Trial Record, April 15, 2016, pp. 73-74.

With respect to the defendant's claim that the plaintiff failed to make out a prima facie case because the defendant is immune pursuant to § 52-557b(b), " '[a] motion for dismissal is not generally granted when based on a special defense, such as . . . [immunity] . . .' John H. Kolb & Sons, Inc. v. G& L Excavating, Inc., 76 Conn.App. 599, 606, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003); Resnik v. Morganstern, supra, at 42, 122 A. 910 (plaintiff not bound to meet defendant's affirmative defenses in establishing case); see also Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 843 n.5, 863 A.2d 735 (2005); Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992). That fundamental principle has not been altered or modified since its inception in 1923, and we see no compelling reason to do so now. As originally stated by our Supreme Court in Resnik and later reiterated by this court in John H. Kolb & Sons, Inc., '[i]f this were not so, a plaintiff would be compelled to assume the burden of proving not only his own case but meeting the special defenses of the defendant.' (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G& L Excavating, Inc., supra, at 606, 821 A.2d 774." Sullivan v. Thorndike, 104 Conn.App. 297, 310-11, 934 A.2d 827 (2007). The court therefore denies the defendant's motion for dismissal on the immunity ground and will address that issue when the court addresses the defendant's special defense of immunity.

III STANDARD OF REVIEW

" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).

" It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). " The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).

" The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct." Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " [T]he trier of fact's assessment of the credibility of . . . witnesses . . . is made on the basis of its firsthand observation of their conduct, demeanor and attitude . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what--all, none, or some--of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

IV BURDEN OF PROOF/STANDARD OF PROOF

The burden of proof is on the plaintiff to prove all of the essential allegations of its complaint and on the defendant to prove all of the essential elements of its affirmative defenses. See Lukas v. New Haven, 184 Conn. 205 211, 439 A.2d 949 (1981). " While the plaintiff is entitled to every...