Opinion
No. HHB CV 04 4002902 S
April 23, 2007
MEMORANDUM OF DECISION ON MOTION TO REARGUE AND RENEWED MOTION FOR SUMMARY JUDGMENT (#121, 121.25)
The court heard oral arguments concerning the defendant Town of Plainville's (Plainville) motion to reargue and renewed motion for summary judgment (renewed motion) at the short calendar for March 26, 2007. After consideration of the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is denied.
I BACKGROUND
In its memorandum of decision, dated October 31, 2006 (#120), the court denied Plainville's motion for summary judgment. In its decision, the court concluded, in accordance with Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006), that, even though only the municipality is being sued, and no individual municipal employee is a named defendant, the identifiable person/imminent harm exception to governmental immunity is not inapplicable as a matter of law. After the filing of the renewed motion, the court issued a revised scheduling order, dated December 19, 2006 (#125), which, in response to the plaintiff's request, afforded the plaintiff additional time in which to provide affidavits, and other documentary evidence in opposition.
For ease of reference, the court repeats below the summary of the factual background which appears in its previous memorandum of decision. In this action, the plaintiff, John Rasmus, III, as administrator for the Estate of John Rasmus, Jr. (the decedent), alleges, in his one-count amended complaint (#105), that "[t]he defendant is the Town of Plainville because of the negligence of its agents and/or employees." See amended complaint, ¶ 2.
The plaintiff alleges that, on December 15, 2002, at about 5:28 p.m., the decedent was taken into its custody by the Plainville Police Department, a member of which conducted a detained prisoner interview (the interview). The plaintiff further alleges that, during the interview, it was observed that the decedent appeared sad, depressed, and emotionally disturbed; and that he expressed an intent to harm himself bodily. In addition, the plaintiff alleges that, based on the decedent's responses to questions, the "defendants" were on notice that he previously had been treated for post-traumatic stress disorder, that a cousin of his recently had passed away, and that the decedent previously tried to commit suicide.
The plaintiff also alleges that, after the interview, the decedent was left locked in a jail cell and not spoken to again by any agent or employee of the "defendants." See amended complaint, ¶ 6. At approximately 11:45 p.m., it was discovered that the decedent had committed suicide by hanging himself in the jail cell. See amended complaint, ¶ 7.
The plaintiff alleges that the defendant is responsible for the decedent's death because it was negligent and careless with regard to the decedent while he was in its custody and/or with regard to the management of the police station and department while he was in its custody. See amended complaint, ¶ 8. The plaintiff alleges numerous specifications of negligence, including failing to check on the decedent, failing to monitor him, failing to prevent his suicide, failing to adequately inspect the jail cell, and failing to take into account and follow up on the information obtained during the interview. See amended complaint, ¶ 8. The plaintiff also alleges that negligence occurred in that they knew or should have known that the dispatcher on duty lacked the experience and training to properly monitor the inmates in their custody, and that they knew or should have known that the second shift dispatcher failed to inform the third shift dispatcher that the decedent was in the jail cell, and that he posed a suicide risk. See amended complaint, ¶ 8. In paragraph 8m and 8n, the plaintiff alleges negligence in that they failed to inform Dispatcher Theriault that the decedent was in the lock up and that he posed a suicide risk.
The amended complaint contains two paragraphs which are designated as paragraph "8."
In addition, the plaintiff alleges negligence in that steps were not taken to have the decedent undergo a mental health evaluation; that the shift commander took no specific actions to check on the decedent or to have anyone else do so; and that no emergency aid was provided to him when "they knew or should have known" that he needed immediate attention "because they could have seen on the monitor that [he] was not moving and only his legs and lower torso were visible." See amended complaint, ¶ 8q. The plaintiff further alleges that the Town of Plainville's negligence caused the decedent's death, as a result of which he lost the ability to carry out and enjoy life's activities; that he lost the opportunity to produce income in the future; and that the decedent endured mental anguish and physical suffering prior to his death.
In paragraph 11, the plaintiff alleges that notice of intention to commence this action was timely filed in accordance with General Statute § 7-465 and that a copy of the notice is attached as Exhibit A. Exhibit A to the complaint specifically identifies individual Town of Plainville agents or employees, including Officer John Quilter, and Dispatchers Amy Brochu and Ingrid Theriault, among others. In paragraph 12, the plaintiff asserts that this action is brought pursuant to General Statutes §§ 52-555 and 52-557n.
Plainville's answer (#110) pleaded special defenses, including that the plaintiff's claims are barred by the doctrine of governmental immunity and by the provisions of General Statute § 52-557n.
In support of its renewed motion, Plainville submitted two memoranda of law, which rely on the same affidavits and exhibits which it presented with its first motion. In response, the plaintiff submitted his objection, a brief, and exhibits.
Additional references to the facts are set forth below.
II STANDARD OF REVIEW
"Practice Book § 17-49 provides in relevant part that 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.' It is well established that, [i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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 . . . 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.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
III DISCUSSION
"The issue of governmental immunity is simply a question of the existence of a duty of care; and `this court has approved the practice of deciding the issue of governmental immunity as a matter of law.' Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988)." Doe v. Petersen, supra, 279 Conn. 613. "[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107-08, 708 A.2d 937 (1998).
In the previous memorandum of decision, as a matter of law, the court determined that the alleged failure to periodically monitor and inspect the decedent while he was in the jail cell involved the exercise of judgment, and involved alleged conduct which was discretionary, and not ministerial, in nature. See memorandum of decision, p. 12.
"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.'" Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006).
General Statutes § 52-557n provides in relevant part: "(a)(1) Except 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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) 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 . . ."
"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318-19.
The plaintiff claims that the exception to governmental immunity, under which a municipal employee may be liable for discretionary acts where the circumstances make it apparent that a failure to act would be likely to subject an identifiable person to imminent harm, applies to this case. He contends a genuine issue of material fact exists as to whether the municipality, through its police force, protected the decedent as an identifiable victim of imminent harm. See plaintiff's objection, p. 2.
Plainville contends that the undisputed facts here demonstrate that it was not apparent to any municipal employee that the decedent was likely to be subject to imminent harm. See Plainville's memorandum of law in support of its renewed motion, pp. 5-6.
This court is guided by the Supreme Court's recent, extensive discussion of the subject, in Doe v. Petersen, supra, 279 Conn. 607. There, the court stated, "Connecticut municipalities are statutorily immune from negligence liability resulting from the discretionary acts of their employees, officers and agents. An exception to this immunity exists — and municipalities are exposed to possible liability — 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 . . .' Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). This appeal requires us to consider whether that exception applies to the facts of the present case. Specifically, we must decide whether the defendant town of Wethersfield (town) is exposed to liability for the allegedly negligent response of its employee, William Pitkin, to the unsuccessful attempt of the plaintiff, Jane Doe, to inform Pitkin that she had been sexually assaulted by another town employee, James Petersen, the named defendant." (Footnote omitted.) Doe v. Petersen, supra, 279 Conn. 609.
The Supreme Court reiterated that it has identified the three exceptions to discretionary act municipal immunity. See id., 279 Conn. 615-16. As the plaintiff does here, the plaintiff in Doe v. Petersen, supra, "concede[d] that the `imminent harm' exception is the only relevant exception to discretionary act immunity. Our inquiry therefore focuses on the scope of this exception and whether it shields the town from liability for Pitkin's allegedly negligent actions. Discretionary act immunity is abrogated 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 . . . By its own terms, this test requires three things: (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 that victim to that harm." (Citation omitted.) Id., 279 Conn. 616. "To prevail, the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her. Demonstration of less than all of these criteria is insufficient." (Emphasis in original.) Id., 620.
The Supreme Court proceeded to discuss, based on the facts in the record, whether the exception applied to Pitkin's conduct as a public officer of the town. "Because Pitkin never became aware of the alleged assault, it could not have been apparent to him that his response to the plaintiff's concerns would have been likely to subject her to a risk of harm. Pitkin's conduct therefore does not fall within the ambit of the `imminent harm' exception to discretionary act immunity." Id., 279 Conn. 620. Thus, the exception was found to be inapplicable since "the `apparentness' requirement," id., 619, was not met.
The court is also guided by the Supreme Court's analysis in Violano v. Fernandez, supra. There, the court stated that "[i]n two more recent cases, however, this court has concluded that the identifiable person, imminent harm exception applied to the plaintiffs then before the court. First, in Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994), this court concluded that the plaintiff, a schoolchild who `slipped and fell due to icy conditions on a main accessway of the school campus, during school hours,' was an identifiable victim. The court further concluded that the harm in Burns was imminent. Id. In reaching this conclusion, the court distinguished Evon [v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989)] because, unlike the fire in that case, the accident in Burns could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus. Further, the potential for harm from a fall on ice was significant and foreseeable . . .
"Subsequently, in Purzycki v. Fairfield, [ supra], this court concluded that a plaintiff schoolchild, who was tripped when walking down a school's hallway from the lunchroom to recess, also fell within the imminent harm exception. The court reasoned that the facts of the case were more analogous to Burns than Evon; id., [244 Conn.] 109; and determined that, as in Burns, `the danger was limited to the duration of the temporary . . . condition . . . [and that] the potential for harm . . . was significant and foreseeable.' (Internal quotation marks omitted.) Id., 110. Specifically, the court concluded that the danger involved `a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the [school] principal testified that every other aspect of the lunch period involved supervision. Finally, the risk of harm was significant and foreseeable, as shown by the principal's testimony `that if elementary school-children are not supervised, they tend to run and engage in horseplay that often results in injuries.' Id." (Citation omitted; internal quotation marks omitted) Violano v. Fernandez, supra, 280 Conn. 330-31.
In Violano, the court "conclude[d] that the plaintiffs' claim must fail because the imminence of the harm at issue — the theft of the plaintiffs' personal property — is more analogous to the harm at issue in Evon than Burns and Purzycki. The risk of a theft, like the risk of a fire, `implicates a wide range of factors that can occur, if at all, at some unspecified time in the future.' Evon v. Andrews, supra, 211 Conn. 508. Further, the danger of theft, unlike the ice in Burns and the one-half hour period of time when students went from the lunchroom to recess in Purzycki, was not subject to a limited time period. As alleged in the plaintiffs' complaint, the city took the property by eminent domain in April 2000, and the theft occurred on approximately November 3, 2000. Thus, nearly seven months passed from the point that the defendants took title and control of the property and the theft. Accordingly, we cannot conclude that the risk of harm was subject to such a limited time period that the harm was imminent. Because the plaintiffs failed to allege sufficient facts to establish that the harm was imminent, we conclude that the imminent harm exception to discretionary act immunity is inapplicable to the plaintiffs." CT Page 7395 Violano v. Fernandez, supra, 280 Conn. 331-32.
Plainville's reference, in support of its argument concerning imminent harm, to Bonamico v. Middletown, 47 Conn.App. 758, 761, 706 A.2d 1386 (1998), is unpersuasive. That case was remanded to the Appellate Court by the Supreme Court, for reconsideration, after the Supreme Court decided Purzycki. See Bonamnico v. Middletown, 244 Conn. 923, 714 A.2d 8 (1998). The Appellate Court then vacated the decision cited by Plainville. See Bonamico v. Middletown, 49 Conn.App. 605, 606, 713 A.2d 1291 (1998).
This court concludes that the alleged facts, as set forth in the affidavits of the Plainville employees, and in the exhibits which Plainville presented, make the situation here more analogous to Burns and Purzycki than to Doe v. Petersen and Violano.
In the affidavit of Captain Peter Costanzo, which was submitted by Plainville, Costanzo states that, on the date of the decedent's suicide, December 15, 2002, Costanzo was second in command of the Police Department and was in charge of the Patrol Division. On that date, the Police Department's detention area had a video monitoring system, through which a dispatcher could monitor the occupants in the jail cells. See Costanzo affidavit, ¶¶ 5-7, 13. He notes that, "[d]ue to limitations associated with the video equipment and the layout of the detention area, small portions of the cells did not appear on the video monitor." See Costanzo affidavit, ¶ 8.
With regard to precautions taken to prevent potential detainee suicides, Costanzo states that "our Electronic Booking System ('EBS') included a questionnaire with a checklist of questions designed to assess a prisoner's emotional state and to prevent prisoner suicides." See Costanzo affidavit, ¶ 12. Further, he states that "[o]ur officers were also trained regarding Connecticut General Statutes § 17a-503 and were aware that they could cause detainees to be taken to a hospital for an emergency evaluation if they had reasonable cause to believe that such person had psychiatric disabilities and was dangerous to himself or others or was gravely disabled and in need of immediate care and treatment." See Costanzo affidavit, ¶ 14.
Section 17a-503(a) provides, "(a) Any police officer who has reasonable cause to believe that a person has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, and in need of immediate care and treatment, may take such person into custody and take or cause such person to be taken to a general hospital for emergency examination under this section. The officer shall execute a written request for emergency examination detailing the circumstances under which the person was taken into custody, and such request shall be left with the facility. The person shall be examined within twenty-four hours and shall not be held for more than seventy-two hours unless committed under section 17a-502."
Plaintiff's Exhibit B, the report concerning the interview of the decedent, stated that he previously had been treated for post-traumatic stress disorder and, concerning whether he recently had suffered any personal losses, that his cousin died. Also, the decedent stated that, previously, he had tried to commit suicide. The interviewer, Officer John Quilter, observed that the decedent appeared sad, depressed, and emotionally disturbed. Also, it was noted that he had expressed the intent to harm himself bodily. See Quilter affidavit, ¶¶ 16-17.
In his affidavit, paragraphs 16-17, Quilter states that he interviewed the decedent and recorded his responses, and that he intended to elicit information concerning whether the decedent posed a danger to himself or to others. He concluded that the decedent did not present an imminent danger to himself. See Quilter affidavit, ¶ 21. Nevertheless, he states that he told Dispatcher Amy Brochu that the decedent had talked about hurting himself and asked her to keep an eye on him. He also informed Sgt. William Kimball that the decedent had talked about hurting himself. See Quilter affidavit ¶¶ 31-32.
Quilter provided a telephone to the decedent. The decedent made several telephone calls to try to locate a bail bondsman. The decedent told Quilter that he had called his father to try to have his father bring money to the decedent. See Quilter affidavit, ¶¶ 27-28.
In the amended complaint, Exhibit A, the dispatchers were identified as Dispatchers Amy Brochu and Ingrid Theriault. In paragraphs 8m and 8n of the amended complaint, the plaintiff alleges that Dispatcher Theriault was not informed that the decedent was in the lock up and that the decedent posed a suicide risk. The plaintiff also alleges that the negligent conduct included failing to adequately monitor the decedent while he was alone in the cell.
Exhibit A is considered to be part of the amended complaint. "A complaint includes all exhibits attached thereto." Dlugokecki v. Vieira, 98 Conn.App. 252, 258 n. 3, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006). See Practice Book § 10-29(a).
Brochu's affidavit states that Quilter asked her to keep an eye on the decedent. See Brochu affidavit, ¶ 5. She was on duty for the 3:00 p.m. to 11:00 p.m. shift. Theriault's affidavit confirms that she was on duty, during the 11:00 p.m. to 7:00 a.m. shift, at the time when it was discovered that the decedent had committed suicide. See Theriault affidavit, ¶¶ 2-7.
Plainville has not met its burden to show that the undisputed facts demonstrate that the identifiable person/imminent harm exception is not applicable as a matter of law. For example, according to the evidence offered by Plainville, as in Burns and Purzycki, the danger to the decedent was limited to the duration of a temporary condition, the decedent's detention in the jail cell, as an arrestee, for assault in the third degree and disorderly conduct. See Quilter affidavit, ¶ 7. Since he was arrested after 5:21 p.m. on Sunday, December 15, 2002, the time when the police responded to a report of domestic violence, and Officer Quilter's interview of the decedent occurred at 5:53 p.m. (see Quilter affidavit, ¶¶ 3, 23; Plainville's Exhibit B (prisoner interview report), it is evident that it was to be anticipated that, unless released earlier, on bond, the decedent would be taken to be arraigned in Superior Court on Monday morning, December 16, 2002. See General Statutes §§ 54-63c; 54-63d (concerning release by law enforcement officer and release by bail commissioner). The duration of the temporary condition was limited to the time when the decedent was in the jail cell before being brought to court, which is analogous to the temporary icy condition at issue in Burns. The location was limited to a particular area, the jail cell. Further, the potential for harm from attempted suicide was significant and foreseeable, since Quilter put Dispatcher Brochu and Sgt. Kimball on notice of this particular risk before he returned to patrol.
The court takes judicial notice that December 15, 2002 was a Sunday. See Connecticut Code of Evidence, §§ 2-1, 2-2.
This situation differs from that in Doe v. Petersen, supra, 279 Conn. 607. There, the exception was found to be inapplicable since Pitkin, the director of the town's parks and recreation department, was never made aware of the alleged assault and, therefore it could not have been apparent to him that his response to the plaintiff's concerns would have been likely to subject her to a risk of harm. Here, the risk that the decedent would hurt himself was sufficiently apparent to Quilter that he put Brochu and Kimball on notice of it.
Also, the facts here contrast to those in Violano v. Fernandez, supra, 280 Conn. 310, where the court found that the risk of a theft of the plaintiffs' personal property from a site which the defendant city had taken by eminent domain, like the risk of a fire, implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. Here, a specific risk in the immediate future was identified by Quilter, a Plainville police officer, who, as a result, advised Brochu, the dispatcher, to keep an eye on the decedent. No extended period of nearly seven months was involved; the time was limited, as discussed above, to the hours before the plaintiff was to be taken to court.
The facts here involve the subjective assessment of the decedent and opinion concerning imminent harm. Whether there was a breach of duty here presents questions of fact which require resolution by a factfinder. See Tzyon v. Town of North Branford, 58 Conn.App. 702, 712-17, 755 A.2d 317 (2000).
The circumstances at issue here raise issues of fact which are similar to those addressed by the court in Brown v. Dooling, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV90 032598 (August 14, 1995, Skolnick, J.), where summary judgment was denied. There, according to the allegations of the complaint, police officers responded to a residence after receiving a report that a young boy (Gregory) was going to commit suicide by shooting himself. They questioned Gregory at the residence, and conducted a "cursory" search of the home, then left. (Internal quotation marks omitted.) Id. A short time later, Gregory's father arrived home and found him dead, as a result of a self-inflicted gunshot wound. See Id.
The defendant officers moved for summary judgment, contending that the action was barred by governmental immunity. In support thereof, they submitted affidavits, in which the officers averred that, based on their conversations with him, Gregory did not appear to be in danger of harm, imminent or otherwise, when they left the home. See id. They stated that, "[w]hile speaking with us in his home, Gregory appeared calm, cooperative and in complete control of his emotions. Based upon our conversations with [Gregory], observations of his behavior, search of his house and inability to develop any corroborating evidence, we concluded that the suicide call was a hoax or prank." Id. Thus, as Officer Quilter did here concerning the decedent, the officers there made an assessment that Gregory was not an imminent danger to himself.
The court concluded that "[w]hether the facts as outlined should have led the investigating officers to conclude that Gregory was a person at risk of imminent harm is a question of fact. Although defendants answer this question in the negative, the plaintiff has a right to have the trier of fact make this determination." Id.
After a jury had rendered a plaintiff's verdict in Brown v. Dooling, the court, in its subsequent memorandum of decision, in which it denied the defendants' motion for judgment notwithstanding the verdict, stated that "the determination of the imminent harm to identifiable person exception to governmental immunity must be judged on what was apparent and readily seen by the defendant officers, not on what was not so-visible." Brown v. Dooling, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV90 0032598 (January 23, 1998, Flynn, J.). "Police discretion results in a defense of governmental immunity to claims of negligence unless in a case it is apparent to the officer that imminent harm will result to an identifiable person if the officer fails to act. This means the jury was to consider what was apparent to each police officer." Id. The court stated that it "agrees with the defendants that the defendants are chargeable with what was actually known to them but disagrees that that is where the matter ends because it holds they were also chargeable with knowledge of things said to them or which they looked at and did not take reasonable cognizance of." Id.
A similar result was reached in Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 32 18 79 (March 12, 1998, Nadaeau, J.). There, it was alleged that police officers were called by family members to take the teenage decedent to the hospital after he attempted suicide by ingesting medications. Instead of doing so, the officers took him into custody and then dropped him off at a local parking lot. He was later transported by ambulance to a hospital, where he died. The defendants argued that governmental immunity precluded them from being liable. In denying summary judgment, the court stated that an issue of fact for the trier was presented. "Here, the defendants not only had identified the decedent but also had taken him into a form of custody." Id.
As the movant, it is Plainville's burden to show that there is no issue of material fact and that it is entitled to judgment as a matter of law. It is not disputed that the decedent was an identifiable victim. Viewing the evidence presented by Plainville in the light most favorable to the plaintiff, as the court is required to do, material questions of fact remain as to whether it should have been apparent to a public official that that official's conduct was likely to subject the decedent to imminent ham. See Doe v. Petersen, supra, 279 Conn. 616.
Under these circumstances, there is no need to address Plainville's objections to the exhibits which the plaintiff presented in opposition to the renewed motion.
In reaching this conclusion, the court makes no findings of fact. "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
Accordingly, since Plainville has not met its burden, its renewed motion is denied.
CONCLUSION
For the foregoing reasons, the Town of Plainville's renewed motion for summary judgment is denied. It is so ordered.