Police Immunity Insufficient in Suit for Decedent's Drowning Death

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Police officers were not entitled to summary judgment in a negligence action by a decedent's estate administratrix that arose from the decedent's drowning death, as genuine issues of material fact existed as to whether the evidence supported the imminent harm, identifiable victim exception to discretionary act immunity.

The plaintiff administratrix of the estate of the decedent appealed to this court following the trial court's rendering of summary judgment in favor of the defendant police officers in connection with the decedent's death by drowning during a severe storm. The officers had been scheduled to work boat patrol duty during the evening at issue. After they arrived for work, they drove a police cruiser to a marina where, without leaving the cruiser due to the severity of the storm, they visually inspected the boat. They then drove to a food mart and were approached by the town tax collector, who told one of the officers that the decedent was in need of medical attention. The tax collector told him that the decedent was wearing a shirt and pants, without a coat or rain gear, and was standing in a nearby field with her hands raised to the sky. The officer told the tax collector that he would take care of the situation, and he then called a 911 dispatcher and reported the incident. During the call, the officer and the dispatcher joked about the reported incident. The officer told the dispatcher that he could not leave the boat and asked the dispatcher to send another officer to the field. The dispatcher thereafter forgot to send someone to the field. The officers then drove back to the marina to check the boat again, and several hours later, they drove by the field. The officers did not see anyone and they did not get out of the cruiser to check the field. The next morning, the decedent's body was discovered washed up near the shore of Long Island Sound. The plaintiff thereafter brought an action against the officers, alleging that they had been negligent and caused the decedent's death. The trial court ruled that discretionary act immunity applied to the conduct of the officers because they had been engaged in typical police functions, and that the imminent harm, identifiable victim exception to that immunity didnot apply because they could not have predicted that the decedent would drown in Long Island Sound. On appeal, the plaintiff claimed, inter alia, that the trial court improperly rendered summary judgment because the evidence she had submitted in opposition to the motion for summary judgment filed by the officers permitted a jury to conclude that the imminent harm, identifiable victim exception to discretionary act immunity applied to the decedent's situation.

A jury reasonably could conclude that the defendants thus cut off all three avenues of help available to White. First, Powers told the tax collector that "he would take care of it," leading her to believe that there was no more that she needed to do. Second, he reported the emergency to the 911 dispatcher in such a way that she would think it was a joke and not send anyone. Third, he and Milardo did not respond themselves, but rather drove away from White and did not return until a couple of hours later, by which time White was no longer standing in the field. Accordingly, a jury reasonably could conclude that it was apparent to the defendants that by cutting off all avenues of help available to a woman out in a severe storm by the ocean who needed medical attention, they made it more likely than not that White would wind up a victim of the storm. Indeed, that is what happened.

Because the defendants failed to carry their burden of proving that there was no genuine issue of fact that at least one element of the imminent harm, identifiable victim exception was not met, the defendants were not entitled to judgment as a matter of law. The court's rendering of summary judgment was thus improper.

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Source: Brooks v. Powers, 165 Conn. App. 44 (Conn. Apr 26, 2016)