Brooks v. Powers

328 Conn. 256

178 A.3d 366

Bernadine BROOKS, Administratrix (Estate of Elsie White)

v.Robert POWERS et al.

SC 19727

Supreme Court of Connecticut.

Argued September 19, 2017

Officially released February 2, 2018^*

Thomas R. Gerarde, with whom were James N. Tallberg and, on the brief, Emily E. Holland and Dennis Durao, for the appellants (named defendant et al.).

Daniel P. Scholfield, with whom were Steven J. Errante and Marisa A. Bellair, for the appellee (plaintiff).

David N. Rosen and Alexander Taubes filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Aaron S. Bayer and Tadhg Dooley filed a brief for the Connecticut Conference of Municipalities et al. as amici curiae.

Rogers, C.J., and Palmer, Eveleigh, McDonald, Robinson and Espinosa, Js.^**

PALMER, J.

The plaintiff in this certified appeal, Bernadine Brooks, administratrix of the estate of Elsie White, brought this action against the defendants, Robert Powers and Rhea Milardo, constables in the town of Westbrook,¹ alleging that their negligence in responding to a report that a woman, subsequently identified as White, was standing in a field during a severe thunderstorm was a proximate cause of White's accidental drowning the next morning in Long Island Sound. The defendants filed a motion for summary judgment, claiming, inter alia, that the plaintiff's action was barred by governmental immunity as a matter of law.² The trial court granted the motion, and the plaintiff appealed to the Appellate Court, which reversed the judgment of the trial court, concluding that there was a genuine issue of material fact as to whether the defendants' conduct falls within the identifiable person, imminent harm exception to that immunity. Brooks v. Powers , 165 Conn.App. 44, 47–48, 80, 138 A.3d 1012 (2016). On appeal, the defendants contend that the Appellate Court incorrectly determined that a jury reasonably could find that White was an identifiable person subject to imminent harm for purposes of abrogating the defendants' governmental immunity. We agree and, accordingly, reverse the Appellate Court's judgment.³

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "The parties submitted numerous deposition transcripts, police reports, and other exhibits in support of and in opposition to the [defendants'] motion for summary judgment. Viewed in the light most favorable to the plaintiff as the party opposing summary judgment, that evidence would permit the following findings of fact. At roughly 6 p.m. on June 18, 2008, a storm rolled into the coastal town of Westbrook (town). Powers testified at the internal affairs investigation into his conduct, the transcript of which the plaintiff included in her opposition to the defendants' motion for summary judgment, that ‘[i]t was ... a dark and stormy night.... Very, very dark and very stormy.’

"The defendants were scheduled for boat patrol that evening from 6 ... until 10 p.m. By the time they arrived for work, however, the weather was already severe. The thunderstorm brought with it both torrential downpours and lightning. Due to the storm, the defendants were unable to take the boat out onto the water for the regular boat patrol and were not required to work that night. If they did work, they were to patrol the marinas and other parts of town, ensure that the boat was ready to go out if necessary, and respond to any emergencies that arose.

"When the defendants arrived for work, they punched in, got into a cruiser, and drove to [a donut shop]. After that, they drove to the marina to inspect the boat. Milardo testified at her deposition that ‘the main concern [was] that the bilge pumps were operating properly.’ Powers testified at his deposition that they did not need to get out of the [cruiser] to inspect the boat: ‘[W]e would just look to make sure that the boat was still there and check the pumps. I don't know.’ Milardo testified at her deposition that she and Powers ‘just sat in the parking lot and could see that the water was being discharged from the back of the boat through the bilge pumps.’ The bilge pumps were brand new.

"Once they completed their inspection, the defendants drove to a [convenience store] on [Boston Post Road in Westbrook]. Powers stayed with the cruiser while Milardo went in to get some snacks. At [approximately 7:30 p.m.], the town tax collector drove up to the [store]. She appeared concerned and told Powers that there was a woman who needed medical attention in a field just up the road. She said that the woman was wearing a shirt and pants, without a coat or any other rain gear, and was standing with her hands raised to the sky. At that time, [although it was still light outside] it was raining heavily and there was thunder and lightning. The field was about one-half mile from the ocean and less than one-half mile from the [convenience store].

"Powers told the tax collector that he would take care of the situation, and [the tax collector] drove away under the impression that she no longer needed to call 911 because the constable was going to take care of [the matter]. Powers then called the 911 dispatcher and told her that ‘a person stopped by and they said there's a lady up on [Boston Post Road] up by Ambleside [Apartments] ... standing in a field with a raincoat on, looking up at the sky.’ While Powers and the dispatcher chuckled over this, he told the dispatcher that ‘[t]hey think she might need medical help,’ to which the dispatcher replied, ‘[g]eez, do you think?’ Powers asked the dispatcher to send ‘Rizzo or one of [the other constables],’ explaining that ‘I can't leave the boat.’ The dispatcher asked where the person was, and Powers said that she was in a field on the side of [Boston Post Road] near Ambleside Apartments. ‘She should be the person standing out in the rain,’ he said, chuckling, before saying goodbye.

"The dispatcher never sent anyone to the field. She testified at her deposition: ‘I didn't put [Powers' 911 call] in the computer like I normally do. I didn't write it down to remind me to send someone.’ She testified that she simply ‘forgot.’

"After speaking with the dispatcher, the defendants drove back to the marina to check the boat again. They did not get out of the [cruiser] ... but looked at the boat from [inside] the [cruiser]. The bilge pumps were still pumping. Powers testified at his deposition that he knew the pumps were new.

"The defendants then heard a call on the police scanner about a baby choking and joined the fire department in responding to that call. A couple of hours later, the defendants drove along [Boston Post Road] past the field by Ambleside Apartments out to the town line and then looped back toward the center of town. As they passed the field where the tax collector had seen the woman, they drove more slowly and turned the cruiser's spotlight on. The grass in the field was knee-high. They did not see anyone. Neither constable got out of the [cruiser]. Powers testified at the internal affairs investigation ... that, ‘[n]o. I wouldn't go out and walk through a field in the pouring rain.’ When asked if [he and Milardo] could have gotten out to do a more thorough sweep of the area, since the woman ‘could have fallen down or something,’ Powers replied: ‘[C]ould have gone home. Could have gone for a walk. Could have.’

"A former police officer, whom the plaintiff deposed as to the adequacy of the defendants' response, remarked that ‘the single most important thing that I saw [was] that [the tax collector] clearly told [Powers] that [there was] a woman that needed medical attention.... If you've got somebody that might need [medical attention] or somebody that does need it, you go.... The fact that you have somebody that's a human needing something that someone else interprets as medical attention, whether it's might or does, you respond.’ Powers testified at his deposition that, ‘[i]f a person was in physical danger ... [he] would respond,’ but that he did not think the woman in the field presented a ‘true emergency.’"The morning after the storm, on June 19, 2008, a fisherman went out on the water in his boat at about 7 a.m. When he returned from fishing at about 10 a.m., he noticed something washed up among the large rock boulders near the shore just west of his house, less than one mile from where White was last seen. When the fisherman went to inspect [what he noticed], he discovered that it was a body floating face down in the water. [The] [p]olice identified the body as White by the CVS pharmacy and Stop & Shop [scan] cards attached to a keychain clenched in her fist. The tax collector, who knew White personally, later confirmed that this was the same woman she had seen in the field the night before. White was pronounced dead at 11:01 a.m. The cause of death was accidental drowning.

"As to time of death, the police incident report stated that the ‘investigation did not conclusively pinpoint a time when White entered the water.’ [The defendants, however, submitted the deposition testimony of Julie Wolf, a special investigator for the state medical examiner's office, who arrived at the scene at approximately 12:30 p.m. on June 19, 2008, and examined White's body. Wolf] testified that she observed rigor mortis of the fingers, elbows, and knees, but not of the hips, and no lividity of the body.... The defendants also submitted a single page of [a] transcript from an arbitration hearing at which Ira Kanfer, an associate medical examiner, [estimated the time of death to be between 7 and 10 a.m. on June 19, 2008, which, according to Kanfer, was consistent with the beginning stages of rigor mortis observed by Wolf at 12:30 p.m.]."⁴ (Footnote omitted.) Id., at 48–52, 138 A.3d 1012.

The plaintiff commenced this action, alleging that the defendants' actions on the night of June 18, 2008, were negligent and the cause of White's death. The defendants moved for summary judgment, claiming that they were shielded from...