Justin LUND v. MILFORD HOSPITAL, INC.

168 A.3d 479, 326 Conn. 846, 2017 WL 4230747, 2017 Conn. LEXIS 258

• Court: Supreme Court of Connecticut
• Decided: September 26, 2017
• Docket: SC19834
• Status: Published

Opinion

EVELEIGH, J.

**848 The plaintiff, Justin Lund, a Connecticut state trooper, brought this action against the defendant, Milford Hospital, Inc., seeking damages for personal injuries sustained while subduing an emotionally disturbed person, Dale Pariseau, who had been committed to the defendant's custody on an emergency basis for psychiatric evaluation. The plaintiff has alleged that the defendant was negligent in numerous ways, including (1) failing to supervise or restrain Pariseau properly, (2) failing to provide for adequate security in the area where foreseeably dangerous patients are held, (3) allowing Pariseau, who was known to be dangerous, to go to the bathroom unrestrained and unaccompanied, and (4) failing to train its staff properly.

The record contains the following relevant procedural history. The plaintiff filed a substitute complaint 1 **849 pursuant to *482 Practice Book § 10-44 2 after the trial court granted the defendant's motion to strike his original complaint on the ground that the claims set forth therein were barred by "underlying justifications for the [firefighter's] rule ...." In sustaining the defendant's objection to the substitute complaint, the trial court concluded that, despite certain new allegations, the plaintiff's pleading failed to state a claim for which relief could be granted because this court's decision in Kaminski v. Fairfield , 216 Conn. 29 , 38-39, 578 A.2d 1048 (1990), is not limited to cases in which a person has actually requested police assistance. The trial court rendered judgment accordingly, and this appeal followed. 3 On appeal, the plaintiff claims primarily that, under this court's subsequent decision in Levandoski v. Cone , 267 Conn. 651 , 841 A.2d 208 (2004), the firefighter's rule does not bar police officers from bringing negligence claims in nonpremises liability cases for injuries suffered during the performance of their duties. The plaintiff also claims that the trial court erred in sustaining the objection to the substitute complaint because the allegations set forth therein were materially different from his original complaint. For the reasons that follow, we reverse the judgement of the trial court and remand the case for further proceedings. **850 I

The governing legal principles on motions to strike are very well established. "[A]fter a court has granted a motion to strike, [a party] may either amend his pleading [pursuant to Practice Book § 10-44 ] or, on the rendering of judgment, file an appeal.... The choices are mutually exclusive [as the] filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading.... Stated another way: When an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment, and previous rulings on the original pleading cannot be made the subject of appeal." (Citations omitted; internal quotation marks omitted.) Ed Lally & Associates, Inc. v. DSBNC, LLC , 145 Conn.App. 718 , 745-46, 78 A.3d 148 , cert. denied, 310 Conn. 958 , 82 A.3d 626 (2013) ; see also Royce v. Westport , 183 Conn. 177 , 178-79, 439 A.2d 298 (1981) ; Caltabiano v. L & L Real Estate Holdings II, LLC , 128 Conn.App. 84 , 90, 15 A.3d 1163 (2011) ; Wilson v. Hryniewicz , 38 Conn.App. 715 , 719, 663 A.2d 1073 , cert. denied, 235 Conn. 918 , 665 A.2d 610 (1995).

If the plaintiff elects to replead following the granting of a motion to *483 strike, the defendant may take advantage of this waiver rule by challenging the amended complaint as not "materially different than the [stricken] ... pleading that the court had determined to be legally insufficient. That is, the issue [on appeal becomes] whether the court properly determined that the plaintiffs had failed to remedy the pleading deficiencies that gave rise to the granting of the motions to strike or, in the alternative, set forth an entirely new cause of action. It is proper for a court to dispose of the substance of a complaint merely repetitive of one to which a demurrer had earlier been sustained." **851 Caltabiano v. L & L Real Estate Holdings II, LLC , supra, 128 Conn.App. at 88 , 15 A.3d 1163 . "Furthermore, if the allegations in a complaint filed subsequent to one that has been stricken are not materially different than those in the earlier, stricken complaint, the party bringing the subsequent complaint cannot be heard to appeal from the action of the trial court striking the subsequent complaint." Id., at 90, 15 A.3d 1163 ; see also Parsons v. United Technologies Corp. , 243 Conn. 66 , 74, 700 A.2d 655 (1997). In the present case, the defendant argues that, because the two complaints were not materially different, no other issue is properly before the court on appeal, and the plaintiff abandoned any claim of error with respect to the trial court's prior decision striking the original complaint. We disagree. The law in this area requires the court to compare the two complaints to determine whether the amended complaint "advanced the pleadings" by remedying the defects identified by the trial court in granting the earlier motion to strike. 4 Caltabiano v. L & L Real Estate Holdings II, LLC , supra, at 88-89, 15 A.3d 1163 . In determining whether the amended pleading is "materially different," we read it in the light most favorable to the plaintiff. 5 See, e.g., **852 Melfi v. Danbury , 70 Conn.App. 679 , 684, 800 A.2d 582 , cert. denied, 261 Conn. 922 , 806 A.2d 1061 (2002). 6 *484 Changes in the amended pleading are material if they reflect a "good faith effort to file a complaint that states a cause of action" in a manner responsive to the defects identified by the trial court in its grant of the motion to strike the earlier pleading. Parsons v. United Technologies Corp. , supra, 243 Conn. at 75-76 , 700 A.2d 655 . Factual revisions **853 or additions are necessary; mere rewording that "basically restate[s] the prior allegations" is insufficient to render a complaint new following the granting of a previous motion to strike. Caltabiano v. L & L Real Estate Holdings II, LLC , supra, 128 Conn.App. at 89 n.4. The changes in the allegations need not, however, be extensive to be material.

For example, in Parsons , the trial court had stricken an earlier wrongful termination count on the ground that the complaint had "fail[ed] to specify a particular 'workplace' or 'place of employment' within Bahrain that was allegedly unsafe. The [trial] court held that the plaintiff's allegation that the entire nation was generally unsafe was insufficient." Parsons v. United Technologies Corp. , supra, 243 Conn. at 75 , 700 A.2d 655 . In concluding that the additional facts pleaded in the subsequent complaint "render the allegations sufficiently different from those in the [stricken] complaint to make the waiver rule inapplicable," this court recognized that "the only difference between the two sets of allegations is the addition of the specific location in Bahrain to which the plaintiff was to be sent. This addition, however, addresses the specific defect that the trial court had emphasized in originally striking the plaintiff's wrongful termination claim ...." Id., at 74-75, 700 A.2d 655 ; see also id., at 71, 700 A.2d 655 (noting that amendment specified location of " 'Headquarters, Bahrain Defense Force,' " while previously stricken complaint "merely stated that the plaintiff was to be sent to Bahrain"). The court emphasized that, "although the plaintiff's subsequent additions to his factual allegations may have been limited, they can fairly be read as attempting to address the specific problem identified by the trial court in striking the plaintiff's original wrongful termination claim. The plaintiff appears to have made a good faith effort to file a complaint **854 that states a cause of action." 7 (Footnote omitted.) *485 Id., at 75-76, 700 A.2d 655 .

The defendant argues that the trial court properly concluded that the substitute complaint was not materially **855 different from the original complaint and, therefore, properly sustained its objection. We disagree. While the original and substitute complaints at issue in the present appeal contain similar factual allegations and specifications of negligence, there are significant differences that appear to address the trial court's determination that the claims in the original complaint were barred by the justifications underlying the firefighter's rule. In particular, the original complaint alleged that the plaintiff followed the ambulance transporting Pariseau to the defendant's facilities to " both ... check upon the condition of the [police officers] injured by Pariseau incident to his arrest, and to attend to the paperwork necessary for Pariseau's emergency committal as a psychiatric patient. To this end, he brought with him Pariseau's effects, specifically the quantities of psychotropic prescription drugs [found in Pariseau's car] as evidence of the necessity of such committal." (Emphasis added.) The original complaint then alleges that, when the plaintiff arrived at the defendant's facilities, "he first checked on the condition of the injured [police officers], then he attended to filling out the emergency committal paperwork for Pariseau. Pursuant to committal, [the defendant] took Pariseau into custody based on the evidence of the clear danger he posed to the public. During this process, [the plaintiff] was shown by [the defendant's employees] that Pariseau was in a holding room under *486 observation, undergoing a full psychiatric evaluation. [The plaintiff] saw that Pariseau had been placed in restraints by [the defendant's employees]." (Emphasis added.)

In granting the defendant's motion to strike the original complaint, the trial court agreed with the plaintiff that this court stated in Levandoski v. Cone , supra, 267 Conn. at 661 , 841 A.2d 208 , that the firefighter's rule itself is limited to premises liability cases. Nevertheless, the court followed Superior Court case law; see, e.g., **856 Jainchill v. Friends of Keney Park , Superior Court, judicial district of Hartford, Docket No. CV-00-0800130-S, 2001 WL 282836 (February 28, 2001) ; implementing the policies underlying the firefighter's rule as expressed in Kaminski v. Fairfield , supra, 216 Conn. at 38-39 , 578 A.2d 1048 , and Lodge v. Arett Sales Corp. , 246 Conn. 563 , 579-81, 717 A.2d 215 (1998), and determined that it precluded liability based on the allegations in the complaint because "the plaintiff was injured while acting in the performance of his duty as a police officer and that the alleged acts of negligence were intimately connected with the very occasion for which the plaintiff was on the property. " (Emphasis added; internal quotation marks omitted.) The trial court relied on the allegations that the plaintiff had arrested Pariseau and brought him to the defendant's facilities for emergency commitment, at which point the plaintiff became concerned about the defendant's security measures.

The new and revised factual allegations in the substitute complaint are responsive to the memorandum of decision granting the motion to strike insofar as they deemphasize, or eliminate entirely, the plaintiff's role in Pariseau's committal. First, the substitute complaint contains a new paragraph alleging that the plaintiff first proceeded to Bridgeport Hospital "to follow up with [a separate] accident," which had occurred prior to and in the vicinity of Pariseau's accident. See footnote 1 of this opinion. The substitute complaint then alleges that, "[u]pon the completion of his obligations as to the first accident, the plaintiff left Bridgeport Hospital and proceeded to [the defendant's facilities], to check upon the condition of the [police officers] injured by Pariseau incident to his arrest." Notably, the substitute complaint omits the allegation from the original complaint concerning the plaintiff's role in completing the documents necessary for Pariseau's emergency committal. The substitute complaint further minimizes the plaintiff's role in the committal of Pariseau, alleging that, when **857 the plaintiff arrived at the defendant's facilities, "he first checked on the condition of the [injured police and officers and then] attended to additional paperwork." The substitute complaint then specifically alleges that, "[b]ased upon the actions of Pariseau and the observations of [the injured police officers], an emergency committal was completed for Pariseau pursuant to [General Statutes] § 17a-503(a)." To this end, the substitute complaint also alleges that the defendant "did not at any time call for or seek or invite in any regard the assistance of the Connecticut state troopers, including but not limited to [the plaintiff]." 8 *487 Read in the light most favorable to the plaintiff, the allegations set forth in the plaintiff's substitute complaint constitute a "good faith effort" to address the pleading deficiency identified by the trial court in granting the motion to strike the original complaint. Parsons v. United Technologies Corp. , supra, 243 Conn. at 75-76 , 700 A.2d 655 . Specifically, the new allegations in the substitute complaint are an attempt to distinguish this case from Kaminski v. Fairfield , supra, 216 Conn. at 31 , 578 A.2d 1048 , which held that the parents who allowed their adult schizophrenic son to live with them could not be held vicariously liable for the injuries he inflicted on a policeman, and that **858 they had no duty to warn beyond the initial call. The new allegations seek to disconnect the plaintiff's presence from the emergency committal of Pariseau in an apparent attempt to address the trial court's observation in granting the motion to strike that the defendant's "alleged acts of negligence were intimately connected with the very occasion for which the plaintiff was on the property." (Internal quotation marks omitted.) The new allegations in the substitute complaint, therefore, materially differ from those in the original complaint for purposes of preserving the plaintiff's right to appeal after repleading pursuant to Practice Book § 10-44. Accordingly, we reach the merits of the plaintiff's claims on appeal.

II

We note that, following this court's decisions in Kaminski and Levandoski , some trial court judges have continued to apply the firefighter's rule 9 to nonpremises liability claims while others have not. In the present case, the trial court relied on Jainchill v. Friends of Kenney Park , supra, Superior Court, Docket No. CV-00-0800130-S, which had applied the justifications underlying firefighter's rule to a nonpremises liability claim. In granting the defendant's motion to strike, the trial court in the present case found that "the alleged acts of negligence were 'intimately connected with the very occasion for which the plaintiff was on the property' " because "[s]pecifically, according to the complaint, the plaintiff knew about Pariseau's violent and unstable emotional condition because the plaintiff had arrested him and brought him to the hospital."

**859 In response, the plaintiff added multiple new allegations to clarify the circumstances under which the plaintiff had gone to the defendant's facilities and certain other facts on which the trial court had previously relied. Specifically, the substitute complaint alleged that (1) the plaintiff had been on duty on Interstate 95 in connection with an entirely unrelated accident before encountering Pariseau, (2) the plaintiff had traveled to Bridgeport Hospital in connection with his duties relating to the other accident before traveling to the defendant's facilities, (3) the plaintiff had *488 traveled to the defendant's facilities in order to check on the police officers who had arrested Pariseau and to complete additional paperwork, (4) Pariseau was brought to the defendant's facilities by an ambulance, not by the plaintiff, and (5) the defendant had accepted custody of Pariseau, in its institutional capacity, as a professional custodian with a degree of special competence.

In sustaining the defendant's objection to the substitute complaint, the trial court held that the defendant's negligent act was " 'intimately connected' with the very reason ... the plaintiff ... acted to apprehend Pariseau when he attempted to escape" and that "the plaintiff was injured while acting in the performance of his duty as a police officer ...." 10 In reaching its conclusion, the trial court again cited Jainchill and Kaminski. As this court has recently clarified in Sepega v. DeLaura , 326 Conn. 788 , 167 A.3d 916 , 2017 WL 4230673 (2017), however, **860 the firefighter's rule does not extend beyond claims of premises liability. In Sepega , this court also distinguished Kaminski as a case that was primarily concerned with vicarious liability of parents and an independent duty to warn. Id., at 799-800, 167 A.3d 916 . Accordingly, we conclude that the trial court's decision to sustain the defendant's objection to the substitute complaint in the present case was improper because the plaintiff had alleged a valid cause of action. As a result, the trial court's subsequent judgment in favor of the defendant must be reversed in light of this court's decision in Sepega . 11

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion ROGERS, C.J., and ESPINOSA, Js., concurred.

ROBINSON, J., with whom McDONALD, J., joins, dissenting.

I respectfully disagree with part II of the majority's opinion, which concludes that the claims of the plaintiff, Justin Lund, a Connecticut state trooper, are not barred by the firefighter's rule in accordance with Sepega v. DeLaura , 326 Conn. 788 , 167 A.3d 916 , 2017 WL 4230673 (2017), also decided today, which limits that doctrine to premises liability cases. 1 As I stated in my concurring opinion in Sepega , I believe that, under Kaminski v. Fairfield , 216 Conn. 29 , 578 A.2d 1048 (1990), and Lodge v. Arett Sales Corp. , 246 Conn. 563 , 717 A.2d 215 (1998), along with the vast majority of sister state decisions, the firefighter's rule is not so limited, notwithstanding some unfortunate obiter dicta in Levandoski v. Cone , 267 Conn. 651 , 841 A.2d 208 (2004). See **861 Sepega v. DeLaura , supra, at 816-18, 167 A.3d 916 . Applying the firefighter's rule to the present case, I conclude that it bars the ordinary negligence claims made by the plaintiff, who was injured in the line of duty while attempting *489 to subdue an emotionally disturbed person who had been committed to the custody of the defendant, Milford Hospital, Inc. I would affirm the judgment of the trial court, rendered after sustaining the defendant's objection to a substitute complaint, which the plaintiff filed after the court had granted the defendant's motion to strike the original complaint. Accordingly, I respectfully dissent.

My analysis of the firefighter's rule is framed by a review of the operative facts, as pleaded in the substitute complaint. 2 The substitute complaint alleges that Dale Pariseau was transported by ambulance to the defendant's emergency room for psychiatric observation following his violent and irrational behavior-including attacks that injured two other Connecticut state troopers-at the scene of an automobile accident on Interstate 95. The plaintiff, who had been attending to an earlier accident nearby, went to the defendant's emergency room to check on the two police officers who had been injured by Pariseau; the defendant's staff did not "at any time" ask for the assistance of any other police officers, including the plaintiff, with regard to Pariseau. In the process of checking on the injured officers, the defendant's staff showed the plaintiff that Pariseau was being restrained under observation while undergoing a full psychiatric evaluation. The plaintiff relied on their representations that Pariseau had been properly secured and restrained.

After gathering up Pariseau's effects and leaving the emergency room, the plaintiff looked into Pariseau's **862 room and noticed that he was no longer there. The plaintiff asked where Pariseau had gone, and a nurse indicated that he had gone unaccompanied and unrestrained into a bathroom behind the nurse's station to change into a hospital gown. The plaintiff then knocked on the locked bathroom door, heard water running in the sink, and asked Pariseau to unlock the door. Pariseau asked for more time in the bathroom, with the water still running. After ten minutes, Pariseau flung open the door and ran out, hurling a garbage can that was filled with a mix of hot water and his own urine at the plaintiff, another police officer, and two nurses. The plaintiff pursued Pariseau, but slipped in the mix of urine and water on the floor. The plaintiff then caught up to Pariseau, and sustained injuries to his head, shoulder, elbow, wrist, and hand in the ensuing struggle.

The plaintiff then brought the civil action underlying the present appeal, alleging that the defendant was negligent in numerous ways, including (1) failing to supervise or restrain Pariseau properly, (2) failing to provide for adequate security in the area where foreseeably dangerous patients are held, (3) allowing Pariseau, who was known to be dangerous, to go to the bathroom unrestrained and unaccompanied, and (4) failing to train its staff properly.

In my concurring opinion in Sepega , I disagreed with the majority's decision to limit the firefighter's rule to premises liability cases and concluded that, like the vast majority of our sister states, Connecticut should retain "the common-law firefighter's rule as a matter of public policy, notwithstanding underlying doctrinal changes such as the statutory abolition of assumption of risk or differing landowners' duties." Sepega v. DeLaura , supra, 326 Conn. at 839 , 167 A.3d 916 . In reaching this conclusion, I agreed with the New Mexico Supreme Court's recent observation in Baldonado v. El Paso Natural Gas Co. , 143 N.M. 288 , 293, 176 P.3d 277 (2008), that **863 grounding the firefighter's *490 rule in public policy allows for an "approach [that] will encourage the public to ask for rescue while allowing professional rescuers to seek redress in limited but appropriate circumstances." (Internal quotation marks omitted.) Sepega v. DeLaura , supra, at 841, 167 A.3d 916 .

In Sepega , I agreed with the enumeration of the firefighter's rule by the Rhode Island Supreme Court in Ellinwood v. Cohen , 87 A.3d 1054 , 1057-58 (R.I. 2014), namely, that an injured first responder 3 is barred "from maintaining a negligence action against a tortfeasor whose alleged malfeasance is responsible for bringing the officer to the scene of a fire, crime, or other emergency where the officer is injured.... To be shielded from liability under the public-safety officer's rule, the defendant, or alleged tortfeasor, must establish three elements: (1) that the tortfeasor injured the [first responder] ... in the course of [the first responder's] employment; (2) that the risk the tortfeasor created was the type of risk that one could reasonably anticipate would arise in the dangerous situation which [the first responder's] employment requires [him or her] to encounter; and (3) that the tortfeasor is the individual who created the dangerous situation which brought the [first responder] ... to the ... accident scene ...." (Internal quotation marks omitted.) Sepega v. DeLaura , supra, 326 Conn. at 841-42 , 167 A.3d 916 .

With respect to the circumstances under which it is appropriate for our first responders to seek redress, I found instructive the Kansas Supreme Court's recent formulation of exceptions to the firefighter's rule in **864 Apodaca v. Willmore , 306 Kan. 103 , 392 P.3d 529 (2017), under which "a law enforcement officer will not be barred from recovery [1] for negligence or intentional acts of misconduct by a third party, [2] if the individual responsible for the [officer's] presence engages in a subsequent act of negligence after the [officer] arrives at the scene, or [3] if an individual fails to warn of known, hidden dangers on his premises or misrepresents the nature of the hazard where such misconduct causes the injury to the [officer]." (Footnote omitted; internal quotation marks omitted.) Sepega v. DeLaura , supra, 326 Conn. at 842 , 167 A.3d 916 .

Assuming the applicability of the firefighter's rule, the plaintiff argues that the subsequent negligence exception allows him to maintain this action against the defendant. Specifically, the plaintiff argues that, "[w]hether [he] even came to the [defendant's facilities] in the exercise of any official capacity, he was clearly not summoned by the [defendant]. He was, thus, injured not by the negligence which caused his engagement (the accident on the highway), but rather-once he completed his official duties-by the [defendant's] subsequent negligence in failing properly to control a dangerous psychiatric patient who had been previously delivered to its custody." (Emphasis in original.) I disagree. Rather, in concluding that the plaintiff's claim is barred by the firefighter's rule-despite the fact that he acted independently and was not summoned by the defendant's staff to aid in controlling Pariseau-I find highly instructive the decision of the California Court of Appeal in Seibert Security Services, Inc. v. Superior Court , 18 Cal.App.4th 394 , 22 Cal.Rptr.2d 514 (1993), the facts of which are remarkably similar to the present case.

*491 In Seibert Security Services, Inc. , a police officer, John Migailo, had brought a suspect in custody to a hospital for examination of possible injuries. Id., at 402, 22 Cal.Rptr.2d 514 .

**865 While Migailo was doing paperwork, a psychiatric patient became abusive toward a privately employed security guard and another police officer. Id. At the time, the patient "was restrained in a chair; Migailo asked that he be handcuffed for greater control, but [the security guard] failed to do so. Shortly thereafter, [the patient] stood up and grabbed for [the security guard's] baton, and Migailo helped subdue him." Id. The patient "was then handcuffed and put in an isolation cell, but the handcuffs were taken off because he seemed 'pretty pleasant' " to another security guard, who believed that the patient was abusive toward only black persons. Id. Within fifteen minutes, however, the patient attacked the second security guard, who then called for help. Id., at 402-403, 22 Cal.Rptr.2d 514 . Migailo then helped subdue the patient again and was injured. Id., at 403, 22 Cal.Rptr.2d 514 .

The California court rejected the argument that the firefighter's rule did not apply because Migailo's "presence was unrelated to the negligence which caused his injury." Id., at 407, 22 Cal.Rptr.2d 514 . The court noted that, while at the hospital, Migailo "was performing one duty-completing paperwork relating to the injured suspect-when the alleged negligence of [the security guards] caused him to initiate a new and different law enforcement action and attempt to subdue [the patient]. While the conduct of [the security guards] may have been 'independent of and unrelated to' the conduct which originally brought Migailo to the hospital, it is factually undisputed that it was the immediate cause of Migailo's presence in or near the holding cell ...." (Emphasis in original.) Id., at 411, 22 Cal.Rptr.2d 514 . The court emphasized that "the fortuitous presence of such personnel cannot mean that any negligent conduct which creates a crisis to which such personnel react becomes actionable in tort ...." Id. It observed the inequity of "awarding tort recovery to the officer who happens to be at the scene when a negligently caused incident occurs, but barring recovery **866 for the officer who responds to a radio call. We find such distinctions untenable and inconsistent with the long-established purpose of the [firefighter's] rule." Id., at 410, 22 Cal.Rptr.2d 514 ; see also Kelhi v. Fitzpatrick , 25 Cal.App.4th 1149 , 1158-60, 31 Cal.Rptr.2d 182 (1994) (The court followed Seibert Security Services, Inc. , and held that the firefighter's rule barred claims of a highway patrol officer who was injured while blocking traffic from runaway tires because "despite the fortuitous nature of [officer's] presence" riding department motorcycle on way to work, "the runaway tires were a significant factor in prompting [his] subsequent actions. Once aware of the crippled truck and the runaway tires, [the officer] unhesitatingly reacted as though on duty, which he was, and as though he had been summoned to deal with those precise hazards."); cf. Hodges v. Yarian , 53 Cal.App.4th 973 , 984-85, 62 Cal.Rptr.2d 130 (1997) (Following Seibert Security Services, Inc. , and holding that firefighter's rule barred claim of off-duty deputy sheriff injured while apprehending burglar in neighbor's garage, because "original reason" deputy was in garage was "irrelevant" and apprehension of criminal suspect is "precisely the [type] of public [function] the taxpayers expect, pay, and equip ... [police] officers to perform. When a [police] officer assumes responsibility for performing such functions and is injured in the process, his or her recourse is in the system of special public benefits established to compensate the officer for such injuries." [Internal quotation marks omitted.] ). *492 Similarly, in Higgins v. Rhode Island Hospital , 35 A.3d 919 , 921 (R.I. 2012), the plaintiff, a firefighter and emergency medical technician, was present in a hospital emergency room after transporting a patient there by ambulance. A nurse asked the plaintiff for assistance in restraining an emotionally disturbed patient who was shouting and spitting at her, so that she could administer medication to him. Id. The plaintiff was injured while **867 attempting to restrain the patient in conjunction with two private security guards contracted by the hospital. Id., at 921-22 . In holding that the plaintiff's claim against the hospital and the security firm was barred by the firefighter's rule, the Rhode Island Supreme Court rejected his argument that "the firefighter's rule should bar claims only in those limited situations when an emergency requires the firefighter to go to the scene, and that for the rule to apply, injury must arise out of the same circumstances that originally brought the firefighter to the scene. [The plaintiff] points out that the emergency that caused him to go to the hospital in the first place had been resolved and that his efforts to assist the nurse in subduing the unruly patient were not a requirement of his job." Id., at 923 .

The Rhode Island court emphasized in Higgins that the firefighter's rule "was never intended to impose a literal requirement for the alleged tortfeasor to have called the [first responder] to the scene in order for the rule to apply.... What is required is that there be some nexus or connection between the alleged tortfeasor and the emergency that brought the [first responder] to the place where he or she was injured." (Citations omitted; internal quotation marks omitted.) Id. The court held that the hospital and its nurse were "the allegedly negligent tortfeasors who caused the [plaintiff] to go to the place where he was injured," and rejected the plaintiff's "argument that he was injured in an intervening incident that occurred at the original emergency scene." Id., at 923-24 . Focusing on the nurse, the court emphasized that the plaintiff, as a firefighter and emergency medical technician, "was responding to a citizen who was in distress and who was at risk of being injured by an unruly patient. Thus, he was reacting to an emergency as opposed to a routine, previously scheduled call." Id., at 924 . The court emphasized that when the plaintiff "completed his original task of transporting **868 the first patient to the hospital, he left the emergency scene involving the first patient and moved to a new emergency scene after a nurse at the hospital requested [his] assistance with a difficult patient. At that point, the first emergency ended and a new emergency, allegedly created by the negligent restraint of the patient, began." Id., at 925 ; see Read v. Keyfauver , 233 Ariz. 32 , 34-37, 308 P.3d 1183 (App. 2013) (firefighter's rule barred claim of on-duty police officer injured while extricating plaintiff from wrecked vehicle, despite fact that officer's actions exceeded his obligations because "[a]pplication of the rule ... does not ... turn on [the officer's] responsibilities and obligations once he arrived on the scene; rather, the key to the analysis is whether [the officer's] on-duty obligations as a law enforcement officer compelled his presence at the scene in the first instance"); Kennedy v. Tri-City Comprehensive Community Mental Health Center, Inc. , 590 N.E.2d 140 , 145 (Ind. App. 1992) (firefighter's rule "particularly suited" to bar claim of police officers summoned by group home to assist with emotionally disturbed resident).

These cases demonstrate that, for purposes of the firefighter's rule, it was of no moment that the plaintiff in the present case, as an on-duty police officer, did not act in response to a formal request by the defendant for assistance, but rather, exercised his own initiative to check on, and ultimately subdue, Pariseau. I recognize *493 that, "while the firefighter's rule may be a wise one, implementation often depends on fortuitous circumstances," and that, at least in some ways, its application to the present case would have rewarded the plaintiff "had he chosen to ignore his duty, and penalize[d] him for his courage and conscientiousness" in voluntarily acting to restrain Pariseau. Kelhi v. Fitzpatrick , supra, 25 Cal.App.4th at 1161 , 31 Cal.Rptr.2d 182 . Nevertheless, the significant public policy underlying the firefighter's **869 rule; see Sepega v. DeLaura , supra, 326 Conn. at 820 , 167 A.3d 916 ( Robinson, J. , concurring); leads me to conclude that the defendant did not owe the plaintiff a duty of care in this situation, thus, barring the plaintiff's negligence claims. Accordingly, I conclude that the trial court properly sustained the defendant's objection to the substitute complaint and rendered judgment accordingly.

Because I would affirm the judgment of the trial court in favor of the defendant, I respectfully dissent.

1 The substitute complaint alleges the following underlying facts. Pariseau had been transported to the defendant's facilities and committed for psychiatric observation following certain violent and irrational behavior-including attacks that injured two police officers-at the scene of an automobile accident on Interstate 95. The plaintiff, who had been attending to an earlier accident nearby and had assisted in Pariseau's arrest, subsequently traveled to the defendant's facilities to check on the condition of the injured police officers. The defendant did not "at any time" ask for the assistance of any police officer, including the plaintiff, with regard to Pariseau. In the process of checking on the injured police officers, the defendant's employees showed the plaintiff that Pariseau was being restrained under observation while undergoing a full psychiatric evaluation. The plaintiff relied on the representations of the defendant's employees that Pariseau had been properly secured and restrained.

Shortly before leaving, the plaintiff noticed that Pariseau was no longer in his room. The plaintiff asked where Pariseau had gone, and a nurse indicated that he had gone unaccompanied and unrestrained into the bathroom behind the nurse's station to change into a hospital gown. The plaintiff then knocked on the locked bathroom door, heard water running in the sink, and asked Pariseau to unlock the door. Pariseau asked for more time in the bathroom, with the water still running. After ten minutes, Pariseau flung open the door and ran out, hurling a garbage can that was filled with a mix of hot water and his own urine at the plaintiff, another police officer, and two nurses. The plaintiff, after slipping and falling in the mix of urine and water on the floor, caught up with Pariseau and, with the assistance of others, subdued him. In the course of these events, the plaintiff sustained injuries to his head, shoulder, elbow, wrist, and hand.

2 Practice Book § 10-44 provides: "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof. Nothing in this section shall dispense with the requirements of Sections 61-3 or 61-4 of the appellate rules."

3 The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

4 "An example of a proper pleading filed pursuant to Practice Book § 10-44 is one that [supplies] the essential allegation lacking in the complaint that was stricken." (Internal quotation marks omitted.) Perugini v. Giuliano , 148 Conn.App. 861 , 878, 89 A.3d 358 (2014). It may not assert an entirely new cause of action premised on a legal theory not previously asserted in the stricken complaint, which would require permission under Practice Book § 10-60(a). See also id., at 878-79, 89 A.3d 358 (substitute complaint asserting new legal theories was not proper because it did not correct deficiencies identified in previous decision granting motion to strike, which was grounded on fact that "Rules of Professional Conduct do not give rise to a private cause of action," and, thus, "there was no essential allegation or any other correction to be added that would have made the stricken count legally sufficient" [internal quotation marks omitted] ).

5 Subsequent appellate review of this comparative process is plenary because it considers the trial court's interpretation of the pleadings. See, e.g., Caltabiano v. L & L Real Estate Holdings II, LLC , supra, 128 Conn.App. at 88 , 15 A.3d 1163 .

6 We note that the defendant's arguments regarding this issue may be premised on a misunderstanding of the trial court's memorandum of decision. Specifically, the introduction to the trial court's decision sustaining the defendant's objection to the substitute complaint states generally that the court "agrees" with the defendant's arguments "that the allegations of the substitute complaint are insufficient to cure the legal deficiencies of the earlier pleading. The defendant requests that its objection be sustained and that judgment enter in its favor based on the plaintiff's failure to file an adequate substitute pleading in response to the order granting the motion to strike. See Practice Book § 10-44." Acknowledging the changes made to the allegations in the substitute complaint, the trial court nevertheless concluded that the "substantive allegations of the substitute complaint describing the circumstances of the plaintiff's injur[ies] remain essentially the same as those of the original complaint." The trial court's analysis does not , however, specifically conclude that the substitute complaint lacked "materially different" allegations; see Caltabiano v. L & L Real Estate Holdings II, LLC , supra, 128 Conn.App. at 88 , 15 A.3d 1163 ; rather, the trial court went on to reach the merits of the plaintiff's claim, concluding that, in light of the factual allegations made in the substitute complaint, the justifications underlying the firefighter's rule barred the plaintiff's cause of action. Specifically, the trial court concluded that the plaintiff's substitute complaint continued to allege that "the defendant's negligence precipitated the very reason for his involvement" and rejected "the plaintiff's argument that the ... holding in Kaminski ... should be applied only in situations where a person actually requests police assistance." Following Jainchill v. Friends of Keney Park , Superior Court, judicial district of Hartford, Docket No. CV-00-0800130-S, 2001 WL 282836 (February 28, 2001), the trial court in the present case reiterated that "there is no question that the alleged acts of negligence ... were 'intimately connected' with the very reason why the plaintiff became involved with Pariseau and why he acted to apprehend Pariseau when he attempted to escape. Specifically, the plaintiff engaged Pariseau precisely because he was concerned about the level of the [defendant's] control or supervision of Pariseau. Furthermore, the plaintiff was injured while acting in the performance of his duty as a police officer to apprehend a dangerous, fleeing individual and to protect other people from this potential danger."

7 A comparison of other cases is helpful to illustrate those amendments that rise to the level of "materially different" for purposes of avoiding the waiver rule. Compare Alexander v. Commissioner of Administrative Services , 86 Conn.App. 677 , 683, 862 A.2d 851 (2004) ("new allegations [in amended complaint] that transformed [the] previous, generic equal protection claim into a colorable claim of selective enforcement ... differ materially from the equal protection allegation contained in [the] original complaint"), Emerick v. Kuhn , 52 Conn.App. 724 , 734, 737 A.2d 456 (adding statutory and constitutional references, even if inapposite, "may be read as attempting to address the legal insufficiency specifically identified by the trial court ... making the count materially different," and, therefore, plaintiff had not "waived his right to appeal from the striking"), cert. denied, 249 Conn. 929 , 738 A.2d 653 , cert. denied, 528 U.S. 1005 , 120 S.Ct. 500 , 145 L.Ed.2d 386 (1999), and Doe v. Marselle , 38 Conn.App. 360 , 364-65, 660 A.2d 871 (1995) (reaching "merits of the plaintiff's argument that she has pleaded wilful conduct" in amended complaint because, "[d]espite this inexplicable continued absence of the word wilful, her next pleading contained additional language with which she argues that wilful conduct may be inferred," which constituted "a good faith effort to file a complaint that states a cause of action"), rev'd on other grounds, 236 Conn. 845 , 675 A.2d 835 (1996), with St. Denis v. de Toledo , 90 Conn.App. 690 , 695-96, 879 A.2d 503 (reiteration of facts, without satisfying defect by providing content of confidential information gained by defendant during attorney-client relationship, did not constitute "materially different" complaint), cert. denied, 276 Conn. 907 , 884 A.2d 1028 (2005), Ross v. Forzani , 88 Conn.App. 365 , 369-70, 869 A.2d 682 (2005) (waiver rule applicable when original complaint alleged that " 'the defendant deposed the plaintiff and ... used against the plaintiff at said deposition confidential information [previously] disclosed by the plaintiff to the defendant's law firm,' " and amended complaint "simply restated the original allegations, now stating that '[i]n representing [the plaintiff's wife] in the dissolution of her marriage to the plaintiff, after having represented the plaintiff in the same matter, the defendant used to the plaintiff's disadvantage privileged information obtained as a result of his prior representation of the plaintiff' "), and Parker v. Ginsburg Development CT, LLC , 85 Conn.App. 777 , 780 n.2, 859 A.2d 46 (2004) ("[T]he plaintiff attempted to amend the complaint by emphasizing that he had been promised employment until a certain time and omitted the language regarding the number of houses contemplated to be sold per year. These changes are not material. Furthermore, substituting the phrase 'explicitly told' for 'promised without ambiguity' does not change the plaintiff's status as an at-will employee, which was the basis of the trial court's decision to strike the complaint. In both the original and substitute complaints, the two phrases mean the same thing.").

8 The plaintiff also added new allegations to the substitute complaint concerning the defendant's duty. The substitute complaint emphasized that the plaintiff "at no time assumed a duty as a public servant to protect a mentally compromised individual" and that the plaintiff had acted under an assumption that, following Pariseau's committal, the defendant and its employees "would perform to the reasonable standards inherent in their duty as professional custodians so as not to risk the safety and well-being of others." The plaintiff also added numerous allegations emphasizing the defendant's special competence and relationship of custody and control over Pariseau in light of the emergency committal under § 17a-503(a).

We note that the substitute complaint also contains certain immaterial differences, namely, an allegation that the plaintiff walked from the first accident on Interstate 95 to a second accident involving Pariseau. See footnote 1 of this opinion. Likewise, the substitute complaint also provides greater detail about the plaintiff's injuries.

9 The common-law firefighter's rule provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his or her duties cannot bring a civil action against the property owner for injuries sustained as the result of a defect in the premises. See Levandoski v. Cone , supra, 267 Conn. at 653-54 , 841 A.2d 208 . We note that a full discussion of the policies underlying the firefighter's rule and its limitation to premises liability claims is set forth in Sepega v. DeLaura , 326 Conn. 788 , 167 A.3d 916 , 2017 WL 4230673 (2017).

10 We note that this language, which is different from that used by the trial court in granting the motion to strike, appears to dispense with any requirement of antecedent negligence on the property and, thereby, would provide immunity to a defendant whenever there is any negligence that triggers a response by a public safety officer in the performance of his or her official duties. This test would convert the firefighter's rule into an outright ban on any claim by a public safety officer who was injured through the negligence of a third party while on duty. For the reasons stated in Sepega v. DeLaura , 326 Conn. 788 , 167 A.3d 916 , 2017 WL 4230673 (2017), such an expansion is unwarranted.

11 The plaintiff has requested that we recognize § 319 of the Restatement (Second) of Torts. In view of our decision that the substitute complaint stated a valid cause of action, it is unnecessary for us to reach that issue.

1

I note that I agree with, and join in, part I of the majority's opinion.

2 The standards governing review of a motion to strike are well established. See, e.g., Lawrence v. O & G Industries, Inc. , 319 Conn. 641 , 648-49, 126 A.3d 569 (2015).

3 I note that the doctrine known in Connecticut as the firefighter's rule has been described in other jurisdictions in broader terms such as the "public safety officer's rule" or the "professional rescuer doctrine." Sepega v. De L aura , supra, 326 Conn. at 816 n.1, 167 A.3d 916 ( Robinson, J. , concurring). As in Sepega , I refer to police officers, firefighters, and emergency medical technicians, collectively, as first responders.