Lund v. Milford Hospital, Inc. ( 2017 )


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    JUSTIN LUND v. MILFORD HOSPITAL, INC.
    (SC 19834)
    Rogers, C. J., and Eveleigh, McDonald, Espinosa and Robinson, Js.*
    Syllabus
    The plaintiff, a police officer, brought a negligence action, seeking to recover
    damages for personal injuries that he sustained while subduing an emo-
    tionally disturbed person, P, who had been committed to the defendant
    hospital’s custody on an emergency basis for psychiatric evaluation.
    Specifically, the plaintiff alleged that P had been transported to the
    defendant’s facilities after exhibiting certain irrational behavior and
    injuring two other police officers at the scene of an automobile accident.
    The plaintiff traveled to the defendant’s facilities to check on the injured
    officers and observed that P had been restrained by the defendant’s
    employees. Subsequently, P was allowed to go to the bathroom unaccom-
    panied and unrestrained. Upon exiting the bathroom, P threw an object
    at the plaintiff and fled. The plaintiff was injured in the course of the
    pursuit that followed. The defendant filed a motion to strike the original
    complaint, which the trial court granted, concluding that the plaintiff’s
    claim was barred by the justifications underlying the firefighter’s rule,
    which generally bars firefighters and police officers who enter private
    property in the exercise of their duties from bringing civil actions against
    the landowner for injuries caused by defective conditions on the prop-
    erty. The plaintiff then filed a substitute complaint, to which the defen-
    dant objected. In sustaining the defendant’s objection, the trial court
    concluded that, despite certain new allegations, the plaintiff had failed
    to state a claim for which relief could be granted. The trial court subse-
    quently rendered judgment for the defendant, from which the plaintiff
    appealed. Held:
    1. This court concluded that the allegations set forth in the plaintiff’s substi-
    tute complaint were materially different from those in the original com-
    plaint, and, therefore, the plaintiff had preserved his right to appeal
    after repleading; the new and revised factual allegations set forth in the
    substitute complaint, read in the light most favorable to the plaintiff,
    constituted a good faith effort to address the trial court’s determination
    that the claims of negligence in the original complaint were barred by
    the justifications underlying the firefighter’s rule insofar as the substitute
    complaint deemphasized, or eliminated entirely, the plaintiff’s role in
    P’s committal.
    2. The trial court improperly sustained the defendant’s objection to the
    plaintiff’s substitute complaint, this court having concluded that the
    claims of negligence set forth therein alleged a valid cause of action
    and, therefore, the trial court’s judgment was reversed and the case was
    remanded for further proceedings; pursuant to this court’s decision in
    Sepega v. DeLaura (326 Conn.         ), the firefighter’s rule does not extend
    to cases, such as the present case, in which the complaint alleges ordi-
    nary negligence rather than premises liability.
    (Two justices dissenting in one opinion)
    Argued February 22—officially released September 26, 2017
    Procedural History
    Action to recover damages for the defendant’s alleged
    negligence, and for other relief, brought to the Superior
    Court in the judicial district of Ansonia-Milford, where
    the court, Stevens, J., granted the defendant’s motion
    to strike the plaintiff’s complaint; thereafter, the court,
    Stevens, J., granted the defendant’s objection to the
    plaintiff’s corrected substitute complaint and the defen-
    dant’s motion for judgment, and rendered judgment
    thereon for the defendant, from which the plaintiff
    appealed. Reversed; further proceedings.
    Jennifer B. Goldstein, with whom were Jonathan
    M. Levine and, on the brief, Jeffrey L. Ment, for the
    appellant (plaintiff).
    Sherwin M. Yoder, with whom, on the brief, was
    Mariella LaRosa, for the appellee (defendant).
    Opinion
    EVELEIGH, J. The plaintiff, Justin Lund, a Connecti-
    cut state trooper, brought this action against the defen-
    dant, Milford Hospital, Inc., seeking damages for
    personal injuries sustained while subduing an emotion-
    ally 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 Pari-
    seau properly, (2) failing to provide for adequate secu-
    rity 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 proce-
    dural history. The plaintiff filed a substitute complaint1
    pursuant to Practice Book § 10-442 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 [fire-
    fighter’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 fol-
    lowed.3On 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 firefight-
    er’s rule does not bar police officers from bringing negli-
    gence claims in nonpremises liability cases for injuries
    suffered during the performance of their duties. The
    plaintiff also claims that the trial court erred in sus-
    taining 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.
    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 plead-
    ing [pursuant to Practice Book § 10-44] or, on the ren-
    dering 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 quota-
    tion 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 strike, the defendant may take advantage
    of this waiver rule by challenging the amended com-
    plaint 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 deficien-
    cies 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.’’ Cal-
    tabiano v. L & L Real Estate Holdings II, 
    LLC, supra
    ,
    
    128 Conn. App. 88
    . ‘‘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., 90; 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 com-
    plaints 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 reme-
    dying 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
    , 88–89. In determining
    whether the amended pleading is ‘‘materially different,’’
    we read it in the light most favorable to the plaintiff.5
    See, e.g., Melfi v. Danbury, 
    70 Conn. App. 679
    , 684,
    
    800 A.2d 582
    , cert. denied, 
    261 Conn. 922
    , 
    806 A.2d 1061
    (2002).6
    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 Tech-
    nologies 
    Corp., supra
    , 
    243 Conn. 75
    –76. Factual revi-
    sions 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. 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 Technolo-
    gies 
    Corp., supra
    , 
    243 Conn. 75
    . 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 dif-
    ference between the two sets of allegations is the addi-
    tion 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., 74–75; see
    also 
    id., 71 (noting
    that amendment specified location of ‘‘ ‘Head-
    quarters, 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 fac-
    tual 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 com-
    plaint that states a cause of action.’’7 (Footnote omit-
    ted.) 
    Id., 75–76. The
    defendant argues that the trial court properly
    concluded that the substitute complaint was not materi-
    ally 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 specifica-
    tions 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 psy-
    chiatric patient. To this end, he brought with him Pari-
    seau’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 facili-
    ties, ‘‘he first checked on the condition of the injured
    [police officers], then he attended to filling out the
    emergency committal paperwork for Pariseau. Pursu-
    ant 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 Pari-
    seau was in a holding room under observation, undergo-
    ing a full psychiatric evaluation. [The plaintiff] saw that
    Pariseau had been placed in restraints by [the defen-
    dant’s employees].’’ (Emphasis added.)
    In granting the defendant’s motion to strike the origi-
    nal complaint, the trial court agreed with the plaintiff
    that this court stated in Levandoski v. 
    Cone, supra
    , 
    267 Conn. 661
    , that the firefighter’s rule itself is limited to
    premises liability cases. Nevertheless, the court fol-
    lowed Superior Court case law; see, e.g., Jainchill v.
    Friends of Keney Park, Superior Court, judicial district
    of Hartford, Docket No. CV-00-0800130-S (February 28,
    2001); implementing the policies underlying the fire-
    fighter’s rule as expressed in Kaminski v. 
    Fairfield, supra
    , 
    216 Conn. 38
    –39, and Lodge v. Arett Sales Corp.,
    
    246 Conn. 563
    , 579–81, 
    717 A.2d 215
    (1998), and deter-
    mined 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 plain-
    tiff 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 con-
    cerned about the defendant’s security measures.
    The new and revised factual allegations in the substi-
    tute 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 pro-
    ceeded 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 con-
    cerning 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
    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 pur-
    suant 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
    Read in the light most favorable to the plaintiff, the
    allegations set forth in the plaintiff’s substitute com-
    plaint constitute a ‘‘good faith effort’’ to address the
    pleading deficiency identified by the trial court in grant-
    ing the motion to strike the original complaint. Parsons
    v. United Technologies 
    Corp., supra
    , 
    243 Conn. 75
    –76.
    Specifically, the new allegations in the substitute com-
    plaint are an attempt to distinguish this case from Kam-
    inski v. 
    Fairfield, supra
    , 
    216 Conn. 31
    , 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
    they had no duty to warn beyond the initial call. The
    new allegations seek to disconnect the plaintiff’s pres-
    ence from the emergency committal of Pariseau in an
    apparent attempt to address the trial court’s observa-
    tion 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 Kam-
    inski and Levandoski, some trial court judges have
    continued to apply the firefighter’s rule9 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 prop-
    erty’ ’’ because ‘‘[s]pecifically, according to the com-
    plaint, the plaintiff knew about Pariseau’s violent and
    unstable emotional condition because the plaintiff had
    arrested him and brought him to the hospital.’’
    In response, the plaintiff added multiple new allega-
    tions to clarify the circumstances under which the plain-
    tiff 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 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 plain-
    tiff, 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 substi-
    tute complaint, the trial court held that the defendant’s
    negligent act was ‘‘ ‘intimately connected’ with the very
    reason . . . the plaintiff . . . acted to apprehend Pari-
    seau when he attempted to escape’’ and that ‘‘the plain-
    tiff was injured while acting in the performance of his
    duty as a police officer . . . .’’10 In reaching its conclu-
    sion, the trial court again cited Jainchill and Kaminski.
    As this court has recently clarified in Sepega v.
    DeLaura, 326 Conn.         ,    A.3d        (2017), however,
    the firefighter’s rule does not extend beyond claims of
    premises liability. In Sepega, this court also distin-
    guished Kaminski as a case that was primarily con-
    cerned with vicarious liability of parents and an
    independent duty to warn. 
    Id., . 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.
    * The listing of justices reflects their seniority status on this court as of
    the date of oral argument.
    1
    The substitute complaint alleges the following underlying facts. Pariseau
    had been transported to the defendant’s facilities and committed for psychi-
    atric observation following certain violent and irrational behavior—includ-
    ing 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 represen-
    tations 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 bath-
    room 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 com-
    plaint, 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., 878–79 (substitute
    complaint asserting new
    legal theories was not proper because it did not correct deficiencies identi-
    fied 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 correc-
    tion 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. 88.
    6
    We note that the defendant’s arguments regarding this issue may be
    premised on a misunderstanding of the trial court’s memorandum of deci-
    sion. 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 Hold-
    ings II, 
    LLC, supra
    , 
    128 Conn. App. 88
    ; 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 (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 perfor-
    mance 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 Ser-
    vices, 
    86 Conn. App. 677
    , 683, 
    862 A.2d 851
    (2004) (‘‘new allegations [in
    amended complaint] that transformed [the] previous, generic equal protec-
    tion claim into a colorable claim of selective enforcement . . . differ materi-
    ally 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, plain-
    tiff 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 infor-
    mation gained by defendant during attorney-client relationship, did not con-
    stitute ‘‘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. Further-
    more, substituting the phrase ‘explicitly told’ for ‘promised without ambigu-
    ity’ 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 foot-
    note 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. 653
    –54. 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.         ,     A.3d     (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.         ,      A.3d      (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.