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A West Hartford, Conn., police detective accidentally shot by a fellow member of the department in 1995 cannot bring suit against the town, the state appellate court ruled Feb. 13. The three-member panel unanimously found that detective Paul Melanson failed to allege sufficient facts to support his claim that staffing and training problems made his injuries “substantially certain” to occur — the test employees covered by workers’ compensation must pass before suing their employers. Melanson’s attorney said his client is considering a further appeal. The Connecticut Supreme Court’s 1994 decision in Suarez v. Dickmont Plastics Corp. permits such suits only when an employer either intended to injure an employee or intentionally created a dangerous condition that all but guaranteed the likelihood of an accident. West Hartford Corporation Counsel Kevin J. O’Connor said, to his knowledge, this is the first time the Suarez standard has been applied to the accidental discharge of a police officer’s weapon. AN ACCIDENT WAITING TO HAPPEN? The October 1995 shooting occurred during the execution of a search warrant on a West Hartford business suspected of being part of a stolen auto-parts ring. Anthony Miele, a 15-year veteran of the police force, accidentally pulled the trigger on his Glock 9mm pistol, lodging a bullet into Melanson’s lower back and upper buttocks, according to press reports. In his April 21, 1999 fourth amended complaint, Melanson claimed that the injury required him to undergo surgery and extensive physical therapy as well as suffer what is likely to be permanent nerve and leg damage. He has since returned to the department and is currently working in a limited capacity, according to O’Connor. Both Miele and Melanson were members of the department’s tactical response team. In his complaint, Melanson alleged that department supervisors were explicitly warned about the allegedly haphazard way in which the team’s operations were being conducted. Among other alleged problems, Melanson claimed the department didn’t fully brief the team about upcoming missions and failed to assign enough personnel to safely carry out its assignments, including the one during which he was shot. Team members also failed to receive proper training and equipment, he alleged. In the 18 months prior to the October 1995 incident, two other West Hartford police officers, according to the complaint, accidentally discharged their weapons as the result of their failure to keep their trigger fingers outside their guns’ trigger guards. In a 14-page report released in 1996, the department’s firearms discharge review board found that Melanson was shot when Miele tightened his grip on a suspect with his left hand while holding his gun in his other hand, according to press reports. Melanson’s attorney, Walter R. Hampton Jr., said Miele was in the process of putting the pistol back into its holster. Melanson claimed his supervisors permitted and devised the allegedly understaffed raid “in direct contravention to general standards of tactical operations,” which dictate that two officers be used to apprehend a single suspect. Hampton, of the Hampton Law Offices in Canton, said a state police task force originally planned to take the lead role in the raid. But for a reason unknown to Hampton, local police ended up assuming that task at the last minute, he said. AFFIRMATIVE INTENT DIFFICULT TO PROVE O’Connor said the town denies the charges outright. But in its successful 1999 motion to strike, it convinced Hartford Superior Court Judge Norris L. O’Neill that, even if they are true, the claims are insufficient to prove that Melanson’s supervisors acted intentionally, rather than negligently. Upholding O’Neill’s decision, the Appellate Court agreed. “Failure to take affirmative action, even if wrongful, does not demonstrate an affirmative intent to create a situation that causes personal injury,” wrote retired Supreme Court Chief Justice Ellen A. Peters, sitting on the panel by designation. “Even if the allegations somehow could be stretched to encompass a claim for intentional misconduct generally, the complaint provides no factual basis for a finding that the town was substantially certain that the specific injury that the plaintiff suffered would occur.” Appellate Court Chief Judge William J. Lavery and Appellate Court Judge Anne C. Dranginis concurred. In Suarez, the plaintiff lost two fingers after his foreman ordered him to clean out a molten-plastic molding machine with his bare hands while the machine was operating to save time and money. Even then, he could “not prevail in the absence of a further showing that ‘the employer believed the injury was substantially certain to follow the employer’s acts or conduct,’” Peters wrote. “It’s a very high bar � to fall within this exception” to the state Workers’ Compensation Act, noted O’Connor, also a lawyer at Hartford’s Day, Berry & Howard. Hampton, however, said his argument is similar to one used in a suit brought by a Wells Fargo driver who claimed he suffered gunshot wounds because his employer refused to provide him with a bulletproof vest. The trial court judge in that case recently refused to grant the defendant’s motion to dismiss, even though the driver already had received workers’ compensation benefits.

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