The Connecticut Appellate Court has overturned a lower court ruling in the case of the city of Waterbury and the defense of one of its former police officers.
By Robert Storace
In a case that hinged on governmental immunity even though the defense never brought the issue up in front of the trial court, the Connecticut Appellate Court has overruled that lower court in a case in which a former Waterbury police officer was implicated in abetting and watching the alleged sexual assault of a minor.
Superior Court Judge Rupal Shah rendered a partial summary judgment in favor of Waterbury in the case of former officer Stephen Flanigan, who a lawsuit said pushed a 14-year-old boy to the ground and handcuffed him. That boy, the lawsuit and court synopsis said, then had a sex toy put against hit buttocks—while his clothes were on—by Charles Fullenwiley, a friend of Flanigan’s.
Even though Waterbury never broached the topic of governmental immunity during testimony, Shah did and found that, because of governmental immunity, there should be summary judgment in the case, captioned John Doe v. Stephen Flanigan.Waterbury was also a defendant.
Several counts against Flanigan were subsequently settled, and all that remained were claims against Waterbury. The plaintiffs maintain the city was liable for the carelessness and negligence of Flanigan.
The plaintiff was known in court papers only as John Doe.
Doe, Flanigan and Fullenwiley knew each other before the alleged incident, which occurred in 2006. According to the Appellate Court synopsis of the case, the boy worked with Fullenwiley at a Waterbury business called World Technology.
The court synopsis said Flanigan would often “horse around” with the young people employed at the business while on duty. The synopsis said that, in addition to the horseplay, “Flanigan, on more than one occasion, would handcuff young people at the store ‘because they wanted to see what it was like.’”
On this particular occasion Flanigan was on his way to a meeting of the Police Explorers, comprised of youth interested in police work. For reasons unclear in the court synopsis, things got out of hand, and Flanigan pushed the plaintiff to the ground and handcuffed him. The court synopsis said it was then that “Fullenwiley kneeled on his back and pushed a sex toy against [the boy’s] buttocks.”
Fullenwiley was later sentenced to 45 years in prison for multiple sexual assaults on several minors, and Flanigan no longer works for the police department.
In overturning the lower court Friday afternoon, Connecticut Appellate Court Chief Judge William Bright Jr. wrote: “With respect to the second allegation of negligence, that Flanigan had a duty to protect the plaintiff from Fullenwiley’s actions, the court did not consider whether Flanigan was acting in the scope of his employment or whether his actions were willful, instead disposing of the claim on governmental immunity grounds, an argument that was not advanced by the defendant.”
While the trial court argued there was a question as to whether Flanigan was acting within his scope of employment, Bright wrote that “a jury reasonably could find that he was ‘fulfilling the duties of employment or doing something incidental to it’” when he demonstrated the use of handcuffs on his way to a program where he often demonstrated the use of handcuffs.”
Furthermore, Bright writes: “The defendant argues in the alternative that we should affirm the judgment of the trial court on the grounds that Flanigan was not acting within the scope of his employment when he pushed the plaintiff to the ground and handcuffed him. We are not persuaded.”
Representing John Doe is New Haven solo practitioner Christopher DeMarco.
DeMarco said his client was “never joking around in any form and was not complying with this.”
DeMarco said John Doe, who is now 28, “has post-traumatic stress disorder associated with the incident.”
DeMarco said attorneys should be interested in cases like John Doe.
“I think the bar should take heed and be receptive to the fact that state court causes of action against municipalities are good claims,” DeMarco said.
The case is now remanded back to state court for trial. DeMarco hasn’t stated how much he’s seeking in monetary damages.
“I’m eager to present this case to a jury, to see what they say about Mr. Flanigan’s conduct,” DeMarco said.
Representing the defense is acting Assistant Waterbury Corporation Counsel Daniel Fisher, who didn’t respond to a request for comment.
Law.Com
