WRONGFUL DEATH LAW: Appellate Court reverses summary judgment for constables, finding issue of fact as to exception to governmental immunity:

6/1/2016 | Peter K. O'Keefe
pkokeefe@jacksonokeefe.com

Category: Personal Injury & Wrongful Death

Peter K. O'Keefe

The estate of a drowning victim brought a negligence action against two constables from the Town of Westbrook.  The Tax Collector informed two constables 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 raingear, and was standing with her hands raised to the sky.  At that time, it was raining heavily and there was thunder and lightning.  One of the constables told the Tax Collector that he would take care of the situation.  The constable called the 911 dispatcher, reporting the situation.  The dispatcher reportedly forgot about this and never sent anyone.  The constable later drove by the area, but did not see anything in the high grass in the area.  On the following morning, the decedent’s body was found by a fisherman.  In reversing summary judgment for the municipal officials, the court concludes that the plaintiff had established the second and third elements of the identifiable victim/imminent harm exception, which requires imminent harm, to an identifiable victim, and apparentness, that is a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.  “The evidence and reasonable inferences from it permitted a jury to find both that the defendants relayed the report of an emergency to the 911 dispatcher in such way that she thought it a joke and that it was apparent that this would likely prevent her from sending anyone, leaving White’s emergency unaddressed and so subjecting her to imminent harm from the storm.”  “A jury could reasonably infer that the Tax Collector told Powers all the relevant facts: there was a woman without raingear, with her hands raised to the sky, who was standing out in a field near the ocean during a severe storm, and she needed medical attention. …The second element of the exception – whether White was an identifiable victim – similarly presents no obstacle. …Here, a jury could reasonably infer that the Tax Collector pinpointed White as a potential victim of the storm….  Finally, we turn to the first element of the exception, whether harm was imminent.  We begin by discussing the scope of the harm and conclude that it is the general nature of the harm – not its specific manifestation – that must be imminent….We conclude from our Supreme Court’s decision that the test is whether, on a given day, the harm is more likely than not to occur.  Applying that test to the facts here, we hold that a jury reasonably could conclude from the evidence that it was apparent that the manner in which Powers called the emergency in to dispatch, together with the defendants’ failure to respond themselves, ensured that White’s emergency would go unaddressed, leaving her to fend for herself close to the ocean during a severe storm, and thus likely subjecting her to imminent harm from the storm.  As such, there was a genuine issue of fact as to whether the imminent harm element was met.”  Brooks v. Powers, 165 Conn.App. 44 (April 26, 2016)

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