Popow v. Stratford et al

Filing 34

ORDER granting 21 Defendants' Motion for Summary Judgment. See the attached Memorandum of Decision. The Clerk is directed to enter judgment for the Defendants, and to close this case. Signed by Judge Vanessa L. Bryant on 2/12/10. (Engel, J.)

UNITED STATES DISTRICT COURT D IS T R IC T OF CONNECTICUT

V E N E T A POPOW, P la in tiff, v. T O W N OF STRATFORD ET AL., D e fe n d a n ts .

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C IV IL NO. 3 : 0 7 -c v -1 6 2 0 (VLB) F e b r u a r y 12, 2010

M E M O R AN D U M OF DECISION GRANTING DEFENDANTS' M O T IO N FOR SUMMARY JUDGMENT [Doc. #21] T h e Plaintiff, Veneta Popow, individually and as Administratrix of the Estate o f Stoil Popow (hereinafter the "decedent"), brought this action for damages a g a in s t the Defendants, the Town of Stratford; Patricia Patusky, Director of the P a r k s and Recreation Department for the Town of Stratford; Stratford Fire D e p a r tm e n t Deputy Chief Michael Hostetter; and Stratford Firefighters Craig T ib b a ls , Dennis Cassia, Michael Campelingo, Thomas McCabe, and Matthew M o r s e .1 This action arises from the death of the Plaintiff's decedent in a "kites u r fin g " accident off of Long Beach in Stratford, Connecticut on January 21, 2006. The Plaintiff asserts sixteen counts against the individual Defendants and the T o w n of Stratford sounding in negligence and nuisance, as well as indemnification c la im s against the Town of Stratford for the negligence of the individual D e fe n d a n ts pursuant to Conn. Gen. Stat. § 7-465. Presently pending before the

Defendants Hostetter, Tibbals, Cassia, Campelingo, McCabe, and Morse are hereinafter collectively referred to as the "Firefighter Defendants."
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Court is the Defendants' motion for summary judgment. See Doc. #21. For the r e a s o n s that follow, the Defendants' motion is GRANTED. I. FACTUAL AND PROCEDURAL BACKGROUND T h e following facts relevant to the Defendants' motion for summary ju d g m e n t are undisputed unless otherwise noted. During the early afternoon hours of January 21, 2006, there were as few as s ix , but possibly as many as twenty-five, people kite-surfing in Long Island Sound o ff of Long Beach in Stratford, Connecticut. The temperature was unseasonably w a r m that day and the wind was blowing inland. Despite the warm air te m p e r a tu r e , witnesses estimated that the water temperature was between 38 d e g r e e s and 40 degrees Fahrenheit. In January, there were no lifeguards or other r e s c u e personnel on duty at Long Beach. There were no warning signs in place o n the beach warning of the hazards of entering the water during the winter, nor w e r e there any barricades or other fencing limiting the public's access to the b e a c h . According to the Plaintiff, the Defendants took no action to warn kites u r fe r s to come out of the water or to supervise the area during the winter, despite th e ir knowledge that the beach area was being used by kite-surfers year round. At approximately 3:30 p.m., the weather took a turn for the worse. Substantial storm clouds form, and it began to get dark. In addition, the wind c h a n g e d directions and began blowing strongly away from shore, creating " s q u a ll" like conditions. As a result of the change in wind and light conditions, a lm o s t all of the people kite-surfing returned to shore.

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The decedent, Stoil Popow, arrived at Long Beach at approximately 3:30 p .m ., when the weather turned for the worse. Robbie Guimond, a certified K ite s u r fin g Safety Systems instructor, was present at Long Beach when the d e c e d e n t arrived. Guimond had kite-surfed with the decedent at least 50 times s in c e 2001. He described the decedent as a beginner-level kite-surfer who was " v e r y reckless," "very stubborn," and "unwilling to take advice from others." Guimond Tr. at 17. He further stated that the decedent was "a liability from day o n e , and it continued right on through his career." Id. Ac c o r d in g to Guimond, upon his arrival the decedent told him that he in te n d e d to kite-surf for a short time before the end of the day. The decedent then b e g a n to prepare his equipment, including a recently purchased, but previously u s e d , kite and dry suit over a wetsuit. Guimond express to the decedent his c o n c e r n s about the equipment, but the decedent failed to heed his warning. Guimond testified at his deposition that kite-surfing at the time of day that the d e c e d e n t arrived with the wind blowing away from shore would be "very unusual" fo r someone concerned for their safety. Id. at 41. However, the decedent was k n o w n in the kite-surfing community for taking these types of risks. After preparing his equipment, the decedent entered the water and began k ite -s u r fin g . By approximately 4:00 p.m., every kite-surfer present at the beach e x c e p t for the decedent and perhaps one other person had returned to shore. Due to the dangerous conditions created by the wind change, darkness, and incoming s to r m , Guimond observed from shore as the decedent kite-surfed. Guimond

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testified that the decedent had difficulty controlling his kite in the strong winds s o o n after he entered the water. The decedent reacted by "ditching" or "flagging" h is kite, a maneuver designed to "depower" the kite. Id. at 43-44. Guimond d e s c r ib e d "ditching" or "flagging" a kite as a "last course of action" that causes th e kite to fall into the water. Id. at 44-45. After the decedent "ditched" his kite, he fe ll into the water along with it. Guimond testified that the decedent was in danger as soon as he fell into th e water with his kite, a situation he referred to as a "kitemare." Id. at 45. According to Guimond, the decedent was partially submerged in the water but c o n s c io u s after he fell. He began to float approximately 300 to 400 feet away from s h o r e while holding his kite. In Guimond's opinion, the decedent could have s w a m to shore from that distance, and he signaled to the decedent to swim to s h o r e . However, the decedent made no attempts to swim to shore, and instead d r ifte d parallel to the shore while Guimond visually followed him. When the decedent made no attempt to swim to shore, Guimond called 911 fr o m his mobile phone. A second witness present at the beach also notified a p o lic e officer in the Long Beach parking lot of the decedent's situation. Guimond's initial 911 call was routed to Long Island. Guimond then made two or th r e e additional 911 calls that were routed to Trumbull, Connecticut. There was no e m e r g e n c y hard wired telephone in this area of Long Beach. In addition, there w a s no cellular tower in the area, and the Plaintiff claims that telephone reception w a s poor as a result. The Plaintiff asserts that the poor cell phone service

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resulted in the calls for help being dropped, delaying the response of rescue p e r s o n n e l. The Defendants dispute this fact, asserting that none of Guimond's c a lls were dropped as a result of poor reception. After making three unsuccessful 911 calls, Guimond directly called the B r id g e p o r t Police Department. Guimond informed the dispatcher at the Bridgeport P o lic e Department that there was a person in the water in the Long Beach area w h o needed assistance. The dispatcher advised Guimond that a boat was being d is p a tc h e d to the scene. After speaking to the Bridgeport Police Department, G u im o n d called the direct telephone number for the Bridgeport Harbor Patrol c a p ta in or first mate on board the dispatched vessel. Guimond made direct c o n ta c t with the dispatched Bridgeport Police Department vessel, but cell phone r e c e p tio n in the area where the vessel was traveling was poor and his calls were d r o p p e d several times. Guimond maintained direct visual contact with the decedent during his p h o n e calls to the Bridgeport Harbor patrol and relayed his approximate location. Guimond also contacted the United States Coast Guard. However, Guimond did n o t directly contact the Town of Stratford Fire or Police Department. At approximately 5:00 p.m., the Stratford Fire Department received a report o f a "windsurfer" in distress from Centralized Medical Emergency Dispatch (" C M E D " ). At approximately 5:02 p.m., the Stratford Fire Department dispatched tw o fire engines and a rescue vehicle towing a fourteen foot long inflatable hard b o tto m "zodiac" boat in inflatable pontoons. The Stratford Police Department has

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a larger boat, but it is not in service in January. The Coast Guard received n o tific a tio n of the incident at approximately 5:01 p.m., and dispatched two rescue b o a ts . At approximately 5:05 p.m., the City of Milford received notification of the s itu a tio n but did not respond because it did not have a boat in service. At a p p r o x im a te ly 5:08 p.m., the two fire engines from the Stratford Fire Department a n d the rescue vehicle towing the zodiac boat arrived at the Birdseye Street boat la u n c h ramp. Pursuant to Stratford Fire Department policy, the incident commander p o s s e s s e s the sole discretion to engage in a rescue attempt, including whether to la u n c h the zodiac boat. On January 21, 2006, Deputy Chief Hostetter was the in c id e n t commander for the subject incident. Despite safety concerns, Hostetter d e c id e d to launch the zodiac boat after he received a report from fellow firemen th a t they had made visual contact with the decedent's kite. The most senior fir e fig h te r aboard the zodiac boat is considered the captain of the vessel upon its la u n c h and has the discretion to discontinue a rescue operation if he determines th a t conditions are unsafe. The Birdseye Street boat launch ramp, from which the zodiac boat was la u n c h e d , was located approximately four miles from the decedent's last reported lo c a tio n in the Housatonic River, which meets with Long Island Sound. At the tim e of its launch, in accordance with department policy, the boat had three fir e fig h te r s on board ­ firefighters Tibbals, Campelingo, and Morse. The Fire D e p a r tm e n t also deployed four "spotters" on the shore of Long Beach in an effort

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to identify the decedent's location. The zodiac boat experienced engine and motor d iffic u ltie s when it reached the mouth of the Housatanic River. As a result of th e s e difficulties, the zodiac boat was unable to continue toward the decedent's r e p o r te d location or back to the site where it was launched. The firefighters r e m a in e d on board the boat, which they tied to a buoy, for approximately ninety m in u te s until the boat was towed by the United States Coast Guard back to the B ir d s e ye Street launch ramp. The Plaintiff claims that, because the zodiac boat b e c a m e disabled, Coast Guard equipment and personnel had to be diverted from a tte m p tin g to rescue the decedent in order to rescue the firefighters. The Bridgeport Harbor Patrol and United States Coast Guard vessels arrived in the area where the decedent entered the water approximately twenty to fortyfiv e minutes after he had "ditched" or "flagged" his kite. It was "full dusk" or " n e a r dark" when they arrived. Id. at 57. Guimond had observed the decedent's k ite "tumble" into the air shortly before their arrival, and he advised the Bridgeport H a r b o r Patrol that the decedent was no longer with the kite. The Harbor Patrol in fo r m e d Guimond that its protocol required them to retrieve the kite. As of 7:00 p.m., approximately two hours after CMED had notified the S tr a tfo r d Fire Department of the incident, the decedent had not been located d e s p ite a search by the Bridgeport Harbor Patrol and the United States Coast G u a r d . At this time, Assistant Chief Cassia relieved Deputy Chief Hostetter and to o k control of the scene. The United States Coast Guard located the decedent's b o d y in Long Island Sound the following day, January 22, 2006.

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On September 17, 2008, the Plaintiff filed suit against the Defendants in this C o u r t on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332, as the P la in tiff is a New York resident. The Defendants filed the instant motion on July 7, 2 0 0 9 , and the Plaintiff filed her opposition thereto on September 29, 2009. II. DISCUSSION A. Standard of Review S u m m a r y judgment is appropriate only when "the pleadings, the discovery a n d disclosure materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to a judgment as a m a tte r of law." Fed. R. Civ. P. 56(c). "The substantive law governing the case will id e n tify those facts that are material, and `[o]nly disputes over facts that might a ffe c t the outcome of the suit under the governing law will properly preclude the e n tr y of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F .3 d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 8 (1986)). The moving party bears the burden of showing that no genuine issues exist a s to any material facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). If the moving party meets its burden, "an opposing party may not rely merely on a lle g a tio n s or denials in its own pleading; rather, its response must - by affidavits o r as otherwise provided in this rule - set out specific facts showing a genuine is s u e for trial." Fed. R. Civ. P. 56(e). "If the party moving for summary judgment d e m o n s tr a te s the absence of any genuine issue as to all material facts, the

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nonmoving party must, to defeat summary judgment, come forward with evidence th a t would be sufficient to support a jury verdict in its favor." Burt Rigid Box, Inc. v . Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002). "The non-movant c a n n o t escape summary judgment merely by vaguely asserting the existence of s o m e unspecified disputed material facts, or defeat the motion through mere s p e c u la tio n or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 1 2 1 (2d Cir.1990) (internal quotations and citations omitted). A party also may not r e ly on conclusory statements or unsupported allegations that the evidence in s u p p o r t of the motion for summary judgment is not credible. Ying Jing Gan v. City o f New York, 996 F.2d 522, 532 (2d Cir. 1993). T h e Court "construe[s] the evidence in the light most favorable to the n o n -m o v in g party and . . . draw[s] all reasonable inferences in its favor." Huminski v. Corsones, 396 F.3d 53, 69-70 (2d Cir. 2004). "[I]f there is any evidence in the record that could reasonably support a jury's verdict for the non-moving p a r ty, summary judgment must be denied." Am. Home Assurance Co. v. Hapag L lo yd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir. 2006). B . Negligence Claims Against the Firefighter Defendants T h e Plaintiff alleges that the Firefighter Defendants were negligent by 1) "Failing to adequately warn the decedent and others similarly situated of the h a z a r d o u s and unsafe conditions present at Long Beach and the surrounding w a te r s of the Long Island Sound by, among other things, failing to post warning s ig n s [; ]" 2) "Attempting to rescue the decedent with inadequate and/or defective

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equipment incapable of completing a rescue in the conditions confronting the d e c e d e n t[; ]" and 3) "Failing to institute adequate and reasonable procedures for u s e in the event defendant, Town of Stratford, was notified of a missing person a n d /o r if said procedures existed, in not following said procedures when plaintiff d e c e d e n t became missing." Compl. ¶¶ 36, 49, 63, 76, 89, 102. T h e Court first addresses the Plaintiff's contention that the Firefighter D e fe n d a n ts were negligent by failing to post warning signs or otherwise warn the d e c e d e n t and others of the hazardous and unsafe conditions at Long Beach and th e surrounding waters of Long Island Sound. "The essential elements of a cause o f action in negligence are well established: duty; breach of that duty; causation; a n d actual injury." Mafucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 566 (1 9 9 8 ). "The existence of a duty is a question of law and only if such a duty is fo u n d to exist does the trier of fact then determine whether the defendant violated th a t duty in the particular situation at hand." Id. "If a court determines, as a m a tte r of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot r e c o v e r in negligence from the defendant." Id. Here, the Firefighter Defendants have submitted an affidavit from Stratford F ir e Chief James Cavanaugh which attaches their job descriptions and d e m o n s tr a te s that it is not within the scope of their job duties to warn the public o f the condition of the waters in Long Island Sound. See Def. Ex. G. The Plaintiff a d d u c e s no evidence to rebut Cavanaugh's affidavit. Instead, she agues that there is a question of material fact as to whether the Firefighter Defendants had a duty

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to contact the local police if they knew that dangerous activity was taking place on a municipal beach. However, there is no evidence in the record that any of the F ir e fig h te r Defendants were aware that the decedent and others were kite-surfing a t Long Beach prior to the day in question when they responded to the CMED r e p o r t of a "windsurfer" in distress. The Plaintiff's suggestion otherwise is mere s p e c u la tio n or conjecture, which is insufficient to withstand a motion for summary ju d g m e n t . N e x t, the Firefighter Defendants assert qualified immunity with respect to th e Plaintiff's allegations of negligence in connection with their attempt to rescue th e decedent. "The [common-law] doctrines that determine the tort liability of m u n ic ip a l employees are well established . . . Generally, a municipal employee is lia b le for the misperformance of ministerial acts, but has a qualified immunity in th e performance of governmental acts . . . Governmental acts are performed w h o lly for the direct benefit of the public and are supervisory or discretionary in n a tu r e . . . The hallmark of a discretionary act is that it requires the exercise of ju d g m e n t . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Martel v. M e tr o p o lita n District Comm'n, 275 Conn. 38, 48-49 (2005) (internal citations and q u o ta tio n marks omitted). "Municipal officials are immune from liability for negligence arising out of th e ir discretionary acts in part because of the danger that a more expansive e x p o s u r e to liability would cramp the exercise of official discretion beyond the

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limits desirable in our society. Discretionary act immunity reflects a value ju d g m e n t that - despite injury to a member of the public - the broader interest in h a v in g government officers and employees free to exercise judgment and d is c r e tio n in their official functions, unhampered by fear of second-guessing and r e ta lia to r y lawsuits, outweighs the benefits to be had from imposing liability for th a t injury. In contrast, municipal officers are not immune from liability for n e g lig e n c e arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. This is b e c a u s e society has no analogous interest in permitting municipal officers to e x e r c is e judgment in the performance of ministerial acts." Doe v. Peterson, 279 C o n n . 607, 614-15 (2006) (internal citations and quotation marks omitted). As a general rule, Connecticut courts consider acts performed by fir e fig h te r s when they are in the line of duty to be discretionary acts. See Kumah v . Brown, No. CV085015502S, 2009 WL 242378, at *5 (Conn. Super. Ct. Jan. 7, 2 0 0 9 ); see also Glorioso v. Police Dep't of Town of Burlington, 49 Conn. Supp. 200, 2 0 5 (2004) ("While it is so that statutes, regulations, and policies can create m in is te r ia l duties, when they relate to fire, police, or other public safety services, th e y are most often held to create discretionary duties."). In addition, "[t]he p r o v is io n of emergency medical services to members of the public is a d is c r e tio n a r y act." Glorioso, 49 Conn. Supp. at 205. In this case, Stratford Fire D e p a r tm e n t policy provides that the incident commander possesses the sole d is c r e tio n to engage in a rescue attempt, including whether to launch the zodiac

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boat. Upon the zodiac boat's launch, the most senior firefighter aboard the vessel is considered captain and has the discretion to discontinue a rescue if he d e te r m in e s that conditions are unsafe. In making the determination whether to in itia te , continue, or terminate rescue efforts, the firefighter in charge weighs the c o n d itio n s at the scene, the likelihood of success of the rescue, and the risk of h a r m to the participating firefighters. See Def. Ex. C at 17-18. It is clear that the d e c is io n made by the Firefighter Defendants to launch the zodiac boat, the p r o c e d u r e s utilized in attempting to rescue the decedent, and ultimately the d e c is io n to call off their search for the decedent required the exercise of judgment b a s e d on an analysis of numerous factors. Therefore, the actions taken by the F ir e fig h te r Defendants on the date in question were discretionary. See Kumah, 2 0 0 9 WL 242378, at *5 ("By their very nature, decisions regarding where to place a fir e truck on the roadway, how many road cones to put out and where to put them, a n d how to light an accident scene are discretionary."); Glorioso, 49 Conn. Supp. a t 203-05 (manner in which fire department responded to 911 call, timeliness of r e s p o n s e , and number of firefighters and emergency personnel available to r e s p o n d involved the exercise of discretion); Evon v. Andrews, 211 Conn. 501, 5 0 6 -0 7 (1989) (failure of fire department officials to properly enforce applicable s ta tu te s , regulations, and codes, to make reasonable and proper inspection of a m u ltifa m ily rental unit for fire safety hazards, and to prescribe remedial action to b e taken by owners, were "acts [that] required the exercise of judgment").

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The Plaintiff contends that there is a genuine issue of material fact by c o n c lu s o r ily asserting that the zodiac boat was not properly maintained or r e p a ir e d , which caused it to experience mechanical difficulties and diverted Coast G u a r d equipment and personnel from attempting to rescue the decedent. However, the Plaintiff has no evidence to support this claim. Instead, the only e v id e n c e in the record regarding the reason for the zodiac boat's mechanical d iffic u ltie s is the deposition testimony of Hostetter, who opined that the engine fa ilu r e was possibly the result of rough seas that occurred due to the rapidly c h a n g in g weather. Def. Ex. C at 14-16. Moreover, the evidence does not indicate th a t the disability of the zodiac boat diverted Coast Guard resources from a tte m p tin g to rescue the decedent. After the zodiac boat became disabled, the fir e fig h te r s occupying it remained in the water tied to a buoy for approximately n in e ty minutes, during which time a Coast Guard boat and a Bridgeport Harbor P a tr o l boat continued the search. A Coast Guard boat picked up the individual fir e fig h te r s at approximately 6:24 p.m., and that boat than continued the search w ith the firefighters on board. See Def. Ex. E. Accordingly, the Court finds that th e acts of the Firefighter Defendants were discretionary as a matter of law. Since the Firefighter Defendants engaged in discretionary acts, they are e n title d to immunity unless an exception applies. There are three exceptions to d is c r e tio n a r y act immunity. "Each of these exceptions represents a situation in w h ic h the public official's duty to act is [so] clear and unequivocal that the policy r a tio n a le underlying discretionary act immunity - to encourage municipal officers

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to exercise judgment - has no force. First, liability may be imposed for a d is c r e tio n a r y act when the alleged conduct involves malice, wantonness or intent to injure. Second, liability may be imposed for a discretionary act when a statute p r o v id e s for a cause of action against a municipality or municipal official for fa ilu r e to enforce certain laws. Third, liability may be imposed when the c ir c u m s ta n c e s make it apparent to the public officer that his or her failure to act w o u ld be likely to subject an identifiable person to imminent harm . . ." Peterson, 2 7 9 Conn. at 615-16 (internal citations and quotation marks omitted). As the Plaintiff concedes, the first two exceptions are clearly inapplicable to th is case. Therefore, only the third exception, the identifiable person / imminent h a r m exception, warrants further analysis. The Connecticut Supreme Court has " c o n s tr u e d this exception to apply not only to identifiable victims but also to n a r r o w ly defined identified classes of foreseeable victims." Durrant v. Board of E d u c ., 284 Conn. 91, 100 (2007). "In delineating the scope of a foreseeable class o f victims exception to governmental immunity, our courts have considered n u m e r o u s criteria, including the imminency of any potential harm, the likelihood th a t harm will result from a failure to act with reasonable care, and the id e n tifia b ility of the particular victim." Id. at 101. In order to invoke this exception, a plaintiff must demonstrate "(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 s u b je c t that victim to that harm." Peterson, 279 Conn. at 606. An "imminent h a r m " has been described as a harm that is "significant and foreseeable" and

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involves a "limited time period and limited geographical area." Purzycki v. F a ir fie ld , 244 Conn. 101, 110 (1998). F u n d a m e n ta lly, the identifiable person / imminent harm exception does not a p p ly here because the facts of this case do not demonstrate a failure to act on the p a r t of the Firefighter Defendants. Instead, the undisputed facts show that upon r e c e iv in g a CMED report of a "windsurfer" in distress, the Firefighter Defendants im m e d ia te ly dispatched two fire engines and a rescue vehicle towing the zodiac b o a t. Minutes later, they launched the zodiac boat and proceeded to the location w h e r e the decedent was last seen in an attempt to rescue him. They also c o o r d in a te d with the Coast Guard and Bridgeport Harbor Patrol, which each la u n c h e d rescue vessels as well. Tragically, the rescue efforts were unsuccessful, in large part due to weather conditions beyond the control of the Defendants or a n yo n e else. Holding firefighters liable for a courageous but unsuccessful rescue a tte m p t would defeat the purpose of qualified immunity, which is to ensure that g o ve r n m e n t officers are "free to exercise judgment and discretion in their official fu n c tio n s , unhampered by fear of second-guessing and retaliatory lawsuits." Peterson, 279 Conn. at 615. Ultimately, imposing liability upon the Firefighter D e fe n d a n ts under the circumstances of this case could have the deleterious effect o f discouraging future rescue attempts. The Plaintiff attempts to escape the conclusion that the Firefighter D e fe n d a n ts are entitled to qualified immunity by shifting the focus from the rescue a tte m p t itself to their alleged failure to properly maintain the zodiac boat. As

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discussed previously, however, the Plaintiff has cited no evidence in the record s u p p o r tin g the assertion that the zodiac boat was improperly maintained or r e p a ir e d . Therefore, the Plaintiff's negligence claims against the Firefighter D e fe n d a n ts are barred by qualified immunity, and must be dismissed. C. Negligence Claims Against the Town of Stratford and Patricia Patusky N e x t, the Plaintiff alleges that the Town of Stratford and Stratford Director of Parks and Recreation Patricia Patusky were negligent by 1) "Failing to warn the d e c e d e n t and others similarly situated of the hazardous and unsafe conditions p r e s e n t at Long Beach and the surrounding waters of Long Island Sound by, a m o n g other things, failing to post warning signs[;]" 2) "In inviting the public to u s e Long Beach when there were no lifeguards on duty[;]" 3) "Failing to a d e q u a te ly warn that the lifeguards were not on duty[;] 4) "Failing to close the b e a c h and/or erect barriers limiting the public's access to the beach[;]" 5) " Atte m p tin g to rescue the decedent with inadequate and/or defective equipment in c a p a b le of completing a rescue in the conditions confronting the decedent[;]" a n d 6) "Failing to institute adequate and reasonable procedures for use in the e v e n t defendant was notified of a missing person and/or if said procedures e x is te d , not following said procedures when decedent was reported missing." Compl. ¶¶ 12, 23. In addition, although not specifically alleged in the Complaint, th e Plaintiff further argues in her opposition brief that the Town of Stratford and P a tu s k y were negligent by failing to install a hard wired emergency telephone or

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to ensure that cellular service was available at the location of Long Beach where th e decedent was kite-surfing. The Court's above analysis concluding that qualified immunity bars the P la in tiff's negligence claims against the Firefighter Defendants in connection with th e rescue attempt applies equally to the Town of Stratford and Patusky.2 With r e s p e c t to the Town of Stratford, the Plaintiff makes the additional argument that th e Town was negligent by failing to have a larger rescue boat in commission d u r in g the winter months. The facts show that the Stratford Police Department h a s a boat larger than the zodiac boat used by the Fire Department in their rescue a tte m p t, but this boat was taken out of the water months before January 21, 2006. However, there is no evidence in the record that the failure to deploy the larger b o a t prevented the decedent's rescue. Moreover, even assuming that the Town of S tr a tfo r d could be found negligent for failing to have this larger boat in service in J a n u a r y, they would be entitled to qualified immunity as to this claim as well b e c a u s e the decedent was not an identifiable person subject to imminent harm at

The Town of Stratford is entitled to the same discretionary act immunity that applies to the individual Defendants in this case. The Connecticut legislature codified the tort liability of municipalities in Conn. Gen. Stat. § 52-557n. Section 52-557n (a)(1) states 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 . . ." However, § 52-557n(a)(2)(B) extends the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that municipalities 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." See Violano v. Fernandez, 280 Conn. 310, 320 (2006).
2

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the time the decision was made to remove the boat from the water. The Plaintiff a r g u e s that the Plaintiff was a member of a foreseeable class of victims, namely, k ite -s u r fe r s who used Long Beach on a regular basis. However, the only id e n tifia b le class of foreseeable victims that the Connecticut Supreme Court has r e c o g n iz e d is that of school children who are statutorily compelled to attend p u b lic schools during school hours. See Durrant, 284 Conn. at 107. Obviously, th e presence of the decedent and other kite-surfers at Long Beach was entirely v o lu n ta r y. Moreover, the group of people who use Long Beach for kite-surfing and o th e r water sports, and thus may need to be rescued, is naturally an ill-defined a n d amorphous group, rather than a clearly identifiable class. Nor was the harm a t issue in this case "imminent" in the sense contemplated by the Connecticut S u p r e m e Court. As in Evon, where the Connecticut Supreme Court held that the r is k of fire was not an imminent harm, the risk of drowning "implicates a wide r a n g e of factors that can occur, if at all, at some unspecified time in the future." 211 Conn. at 508. The Plaintiff's remaining negligence claims against the Town of Stratford a n d Patusky are premises liability claims in which she alleges that these D e fe n d a n ts were negligent because they failed to post warning signs or erect b a r r ie r s preventing access to Long Beach during the winter, failed to have life g u a r d s on duty or warn that no lifeguards were on duty, and failed to install an e m e r g e n c y telephone or a cellular tower. The duty owed by a landowner to an e n tr a n t onto the land is determined by the entrant's status as a trespasser,

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licensee, or invitee. See Salaman v. Waterbury, 246 Conn. 298, 304-05 (1998). "In g e n e r a l, there is an ascending degree of duty owed by the possessor of land to p e r s o n s on the land based on their entrant status, i.e., trespasser, licensee or in v ite e ." Morin v. Bell Court Condo. Ass'n, Inc., 223 Conn. 323, 327 (1992). "A p o s s e s s o r of land has a duty to an invitee to reasonably inspect and maintain the p r e m is e s in order to render them reasonably safe." Id. "In addition, the p o s s e s s o r of land must warn an invitee of dangers that the invitee could not r e a s o n a b ly be expected to discover." Id. "The duty that a . . . [possessor of land] o w e s to a licensee, [however,] does not ordinarily encompass the responsibility to k e e p the property in a reasonably safe condition, because the licensee must take th e premises as he finds them." Id. "As a general rule, the possessor of real e s ta te owes no duty to trespassers . . . to keep the property in a reasonably safe c o n d itio n for their use." Id. (internal quotation marks omitted). "A public invitee is a person who is invited to enter or remain on land as a member of the public for th e purpose for which the land is held open to the public." Kurti v. Becker, 54 C o n n . App. 335, 338 (1999). The Plaintiff claims that the Town of Stratford and Patusky invited the public to use Long Beach for kite-surfing, including during the winter months, and th e r e fo r e owed the decedent and other kite-surfers a duty of care. However, the P la in tiff cites no evidence to support her claim that these Defendants took any a c tio n s which could be construed as extending an invitation to the decedent or o th e r s to kite-surf at Long Beach during the month of January. See id. ("The

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distinction between one who is an invitee and one who is merely a licensee turns la r g e ly on whether the visitor has received an invitation, as opposed to p e r m is s io n , from the possessor of the land, to enter the land or remain on the la n d ." ). There is no evidence, for instance, that the Town made any improvements u p o n the area of Long Beach where the decedent was kite-surfing. See, e.g., Lyles v . City of Stamford, No. CV970340593S, 2000 WL 1838707, at *3 (Conn. Super. Ct. N o v . 22, 2000) (finding question of material fact as to status of decedent who d r o w n e d in Long Island Sound where City made improvements on land at S o u th fie ld Beach in the form of playground equipment, basketball courts, a picnic a r e a , bathhouse and parking lot, and imported sand to restore and expand the b e a c h following a storm). Moreover, even if the Town of Stratford and Patusky owed the decedent a d u ty of care as an invitee, that duty extends only to "dangers that the invitee could n o t reasonably be expected to discover." Morin, 223 Conn. at 327. Here, the d e c e d e n t was engaged in an inherently dangerous water sport during the month of J a n u a r y, when the water temperature was between 38 degrees and 40 degrees F a h r e n h e it. Guimond testified that the decedent arrived at the beach at a p p r o x im a te ly 3:30 p.m., when weather conditions took a turn for the worse as a s to r m approached. By the time the decedent entered the water, it had begun to g e t dark and the wind was blowing strongly away from shore, creating "squall" lik e conditions and prompting other kite-surfers to return to shore. In addition, G u im o n d expressed his concern to the decedent about the equipment he was

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using. The risk of engaging in an extreme water sport in such conditions was p a te n tly obvious to any reasonable person, and the Defendants should not be held lia b le for their failure to warn of this risk. See Salaman v. Waterbury, 246 Conn. 2 9 8 , 307 (Conn. 1998) (holding that the City "was not required to remind adult s w im m e r s of the obvious and commonly known dangers of drowning inherent in s w im m in g " ); see also Sartoris v. State, 133 A.D.2d 619, 619 (N.Y. App. Div. 1987) (" O n e who engages in water sports assumes the reasonably foreseeable risks in h e r e n t in the activity."). As the Connecticut Supreme Court held in Salaman, A rule requiring a property owner to post warning signs about the d a n g e r s inherent in swimming is unreasonable. In Connecticut, a small s ta te , hundreds of miles of shoreline would be exposed to this u n r e a s o n a b le requirement. Property ow n e r s who have water on their la n d are entitled to assume that a reasonable adult would be aware of th e risk of drowning in a body of water. Id. The reasoning of Salaman is even more compelling in this case, as it would be h ig h ly unreasonable to expect property owners to warn adults of the dangers of e n g a g in g in an extreme water sport in the middle of winter during storm-like c o n d itio n s . Finally, even if the Town of Stratford and Patusky had a duty to warn the d e c e d e n t of the conditions in Long Island Sound by posting signs or erecting b a r r ie r s , they would be entitled to qualified immunity and thus the Plaintiff's c la im s would still fail. As discussed above, municipalities and municipal officials a r e immune from liability for negligence arising out of their discretionary, as o p p o s e d to ministerial, acts. Martel, 275 Conn. at 48-49; Violano, 280 Conn. at 320. Ministerial acts are "acts to be performed in a prescribed manner without the

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exercise of judgment or discretion." Doe, 279 Conn. at 615. "The maintenance of p a r k s . . . is a governmental function and is usually subject to municipal immunity fo r negligence." Boucher v. Fuhlbruck, 26 Conn. Supp. 79, 81 (1965). The Plaintiff h a s failed to cite any statute or regulation prescribing the posting of signs or w a r n in g s , or the stationing of life guards, at public beach areas during the winter m o n th s . Nor has the Plaintiff adduced the testimony of any witness or any other e v id e n c e suggesting that the Town of Stratford or Patusky, as Director of Parks a n d Recreation for the Town, were obligated or expected to post signs and w a r n in g s or station lifeguards at public beaches during the winter months. The D e fe n d a n ts , on the other hand, have submitted an affidavit and attached job d e s c r ip tio n from Patusky stating that she is not responsible for placing signs, e r e c tin g barriers, or warning the public that lifeguards are not on duty at Long B e a c h during the winter months. See Def. Ex. F. Similarly, the Plaintiff cites no ordinance, statute, or regulation prescribing th e provision of a phone service, whether hard-wired or cellular, at Long Beach. In fact, pursuant to Connecticut statute, the Connecticut Sitting Council, not the T o w n of Stratford, oversees the installation of telecommunications towers. See C o n n . Gen. Stat. § 16-50g et seq. Because the Plaintiff fails to cite evidence of any s ta tu to r y or other obligation from which the Court may determine that there is s o m e question of fact as to whether the acts in question were ministerial rather th a n discretionary, the Court finds that the Town of Stratford and Patusky are e n title d to qualified immunity as to the Plaintiff's claims of negligence for failure to

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warn and failure to provide phone services. See Peterson v. Town of North C a n a a n , No. CV000082985, 2001 WL 950905, at *1-*2 (Conn. Super. Ct. July 24, 2 0 0 1 ); see also Boucher, 26 Conn. Supp. at 81-82 (holding that city officials were e n title d to qualified immunity against allegations of negligence for, inter alia, fa ilin g to place barriers around river, to supervise river areas, to post warnings s ig n s , and to have railings or safety devices along banks of river because such a lle g a tio n s involved discretionary rather than ministerial acts on the part of the c ity officials). D. Indemnification Claims Against the Town of Stratford T h e Plaintiff also asserts claims for indemnification against the Town of Stratford pursuant to Conn. Gen. Stat. § 7-465. "Section 7-465 is an indemnity s ta tu te ; it does not create liability. Under Section 7-465, the municipality's duty to in d e m n ify attaches only when the employee is found to be liable and the e m p lo ye e 's actions do not fall within the exception for willful and wanton acts." Myers v. City of Hartford, 84 Conn. App. 395, 400 (2004). Section 7-465 imposes no lia b ility upon a municipality for breach of any statutory duty of its own. Ahern v. N e w Haven, 190 Conn. 77, 82 (1983). "The obligation imposed is indemnification fo r the legal liability arising out of certain tortious conduct of the municipal e m p lo ye e ," and "[t]he municipality's liability is derivative." Id. Section 7-465 d o e s not create liability which did not previously exist. See Boucher, 26 Conn. S u p p . at 83. The statute "provides for indemnification by the municipality of the e m p lo ye e 's liability and not for the assumption of the liability." Id. "A plaintiff

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bringing suit under General Statutes § 7-465 first must allege in a separate count a n d prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the municipality's liability by in d e m n ific a tio n ." Sestiso v. City of Groton, 178 Conn. 520, 527 (1979). As set forth above, there are no genuine issues of material fact with regard to the Plaintiff's claims for negligence against the individual defendants such that th e y are entitled to judgment as a matter of law and are not liable to the Plaintiff fo r any damages. Since the Town of Stratford's liability as to these claims is d e r iva tiv e only, there are no damages for which the municipality is obligated to p a y pursuant to Conn. Gen. Stat. § 7-465. Accordingly, the Plaintiff's in d e m n ific a tio n claims against the Town of Stratford must be dismissed. E. Nuisance Claim Against the Town of Stratford F in a lly, the Plaintiff brings a claim for nuisance against the Town of S tr a tfo r d . To succeed on a claim for common-law nuisance, the Plaintiff must p r o v e four elements: "(1) the condition complained of had a natural tendency to c r e a te danger and inflict injury upon person or property; (2) the danger created w a s a continuing one; (3) the use of the land was unreasonable or unlawful; and (4 ) the existence of the nuisance was the proximate cause of the plaintiffs' injuries a n d damages." Elliot v. City of Waterbury, 245 Conn. 385, 421 (1998). In addition, w h e r e , as here, the Plaintiff asserts a public nuisance rather than a private n u is a n c e , the Plaintiff has the additional burden of "proving that the nuisance in te r fe r e s with a right common to the general public." Id. "Finally, in order to

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overcome the governmental immunity of municipal defendants where it applies, th e plaintiff must prove that the defendants, by some positive act, intentionally c r e a te d the conditions alleged to constitute a nuisance." Id.; see also Keeney v. O ld Saybrook, 237 Conn. 135, 162-63 (1996). "[L]iability can be imposed on the m u n ic ip a lity only in the event that, if the condition constitute[s] a nuisance, it was c r e a te d by some positive act of the municipality." Id. at 164 (internal quotation m a r k s omitted). The alleged nuisance that the Plaintiff complains of in this case is the h a z a r d o u s condition of the waters in the Long Island Sound adjacent to Long B e a c h where the decedent was kite-surfing. Assuming that the Plaintiff could p r o v e the elements of a public nuisance, her claim would still be barred because s h e has adduced no evidence of any positive act on the part of the Town of S tr a tfo r d that created the condition complained of. Obviously, the hazardous c o n d itio n of the waters in Long Island Sound during the winter months was a n a tu r a lly occurring condition, not a condition created by the municipality. The P la in tiff asserts that the Town of Stratford is nonetheless responsible for the n u is a n c e created by the waters because it was aware of the presence of kites u r fe r s at the Long Beach area during the winter months but failed to warn them o f the dangers or erect barriers and warning signs, and failed to install an e m e r g e n c y telephone or a cellular tower. However, "failure to remedy a condition n o t of the municipality's own making is not the equivalent of the required positive a c t in imposing liability in nuisance upon a municipality." Lukas v. New Haven,

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184 Conn. 205, 210 (1981) (holding that icy condition on public street which c a u s e d the plaintiff's injury was natural in origin and therefore municipality was n o t liable in nuisance for failing to remedy it). Accordingly, the Plaintiff's nuisance c la im is dismissed. III. CONCLUSION B a s e d upon the above reasoning, the Defendants' motion for summary ju d g m e n t is GRANTED. The Clerk is directed to enter judgment for the D e fe n d a n ts , and to close this case.

IT IS SO ORDERED.

/s/ Vanessa L. Bryant U n ite d States District Judge

Dated at Hartford, Connecticut: February 12, 2010

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