Dodge v. Verillo

William DODGE v. Officer Scott VERILLO et al.

No. 166035336

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

July 17, 2018

UNPUBLISHED OPINION

OPINION

Swienton, J.

The defendants, Officer Scott Verillo, Officer Eric Hanson Officer Thomas Grimaldi, and city of Bristol (the defendants), move for summary judgment as to the plaintiff’s complaint dated February 1, 2018. The defendants argue that they are immune from liability and entitled to judgment as a matter of law because (1) the defendant officers’ use of force on the plaintiff did not constitute an assault and was justified; (2) the plaintiff’s claims are barred by the doctrine of governmental immunity; (3) the plaintiff’s claims for recklessness fail as a matter of law; (4) the plaintiff’s claim for negligent supervision fails as a matter of law; and (5) if the claims brought against the defendant officers fail as a matter of law, the indemnification claims brought against the city of Bristol would also fail.

I FACTS AND PROCEDURAL HISTORY

This action arises from the plaintiff’s arrest for statutory violations of General Statutes § 14-227a, Operating under the Influence; § 53a-167a,^[1] Interfering with an Officer; and § 53a-167c, Attempt to Assault Public Safety Personnel. The arrest occurred on January 6, 2015.

On February 2, 2017, the plaintiff, William Dodge, filed a thirteen-count amended complaint against the defendants Officer Scott Verillo, Officer Eric Hanson, Officer Grimaldi and the city of Bristol. Counts one through five are against Officer Verillo for intentional assault, negligence, negligent battery, recklessness, and intentional assault and battery. Counts six through ten are against Officer Hanson for claims that mirror those counts against Officer Verillo. Count eleven is against Officer Grimaldi for negligent supervision. Counts twelve and thirteen are against the city of Bristol for negligence under General Statutes § 52-557n and indemnification under General Statutes § 7-465.

The plaintiff alleges the following facts. On January 6, 2015, at approximately 6:14 p.m., the plaintiff was walking towards his residence, located at 17 Harrison Street in Bristol, Connecticut, when he was approached by Officer Verillo. Before entering his residence, the plaintiff was "forcefully pulled away from the front door and violently slammed in to the side of the police cruiser." (Complaint, count one, ¶ 8.) While he was pressed against the police cruiser, Officers Hanson and Verillo struck the plaintiff in the face, head, and in the back of the thigh, which caused him to suffer injuries and to lose his balance. The plaintiff was then thrown to the ground. (Id., ¶¶ 9-10.)

The plaintiff further alleges that while on the ground, Officer Hanson struck the plaintiff with his knees in order to secure the plaintiff’s hands, which were beneath the plaintiff’s stomach. The knee strikes were to the plaintiff’s rib cage and stomach area. (Id., ¶ 11.) The plaintiff alleges that this conduct was wilful, wanton, and malicious on the part of both Officers Verillo and Hanson.

The plaintiff makes a claim against Officer Thomas Grimaldi for negligent supervision. He alleges that Officer Grimaldi breached his duty to use reasonable care in the training and supervision of the officers within the city of Bristol’s police department in that he failed to have appropriate policies and procedures in place and that he knew of should have known of the violent propensities of the defendant officers. (Complaint, count eleven, ¶ 5.) The claims against the city of Bristol are predicated on the defendant officers’ liability.

On March 6, 2018, the defendants filed a motion for summary judgment on the grounds that the defendant officers’ use of force did not constitute assault and was justified under General Statutes § 53a-22, the plaintiff’s claims are barred by the doctrine of governmental immunity, the plaintiff’s claims for recklessness and negligent supervision fail as a matter of law, and the plaintiff’s claims pursuant to General Statutes § 7-465 are predicated on the defendant officers’ liability in counts one through three, five, six through ten, and eleven.^[2]

In response, the plaintiff filed an objection on April 16, 2018,^[3] to which the defendants replied on April 25, 2018. The matter was heard at the short calendar on April 30, 2018.

II DISCUSSION

A. Summary Judgment

"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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. 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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).

"In summary judgment, the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).

"While [a party’s] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996). Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

"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.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) United States Bank, N.A. v. Foote, 151 Conn.App. 620, 636, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). "It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party, whether raised at oral argument or in written pleadings; such allegations must be supported by counter affidavits or other documentary submissions that controvert the evidence offered in support of summary judgment." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 178, 73 A.3d 742 (2013).

"Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ... A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014).

B. Counts One, Two, Three, Five, Six, Seven, Eight and Ten Officer Verillo and Officer Hanson

1. Use of Force

The defendant officers first argue that they are entitled to summary judgment as to counts one, two, three, five, six seven, eight and ten on the grounds that there is no genuine issue of material fact that the officers’ use of force was reasonable and necessary under the circumstances to effect the arrest of the plaintiff.

The operative statute regarding the use of force by police is General Statutes § 53a-22, which provides in relevant part that "a peace officer ... is justified in using physical force upon another person when and to the extent that he or she reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense ... or (2) defend himself or herself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape ..." "The term offense means any crime or violation which constitutes a breach of any law of this state ... for which a sentence to a term of imprisonment or to a fine, or both, may be imposed except one that defines a motor vehicle violation or is deemed to be an infraction." (Emphasis in original; internal quotation marks omitted.) Odom v. Matteo, 772 F.Supp.2d 377, 387 n.3 (D.Conn. 2011), citing General Statutes § 53a-22(a). "A reasonable belief that a person has committed an offense is defined as a reasonable belief in facts or circumstances which if true would in law constitute an offense." (Internal quotation marks omitted.) Id., citing General Statutes § 53a-22(a).

"The question of whether the police officer was in fact acting in the performance of his official duties constitutes a factual [question] for the jury to determine on the basis of all the circumstances of the case and under appropriate instructions from the court." (Citation omitted;...