Coley v. Hartford ( 2014 )

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ORVILLE COLEY, ADMINISTRATOR (ESTATE OF
LORNA COLEY) v. CITY OF HARTFORD
(SC 19129)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued February 21—officially released June 10, 2014
Hugh D. Hughes, with whom, on the brief, was Wil-
liam F. Gallagher, for the appellant (plaintiff).
Jonathan H. Beamon, senior assistant corporation
counsel, for the appellee (defendant).
Opinion
ROGERS, C. J. This appeal requires us to determine
the scope of governmental immunity that is afforded
to a city that has been sued for allegedly negligent
conduct in connection with its police department’s
response to a report of domestic violence. The plaintiff,
Orville Coley, the administrator of the estate of Lorna
Coley (decedent), appeals from the judgment of the
Appellate Court affirming the trial court’s summary
judgment rendered in favor of the defendant, the city
of Hartford. Coley v. Hartford, 140 Conn. App. 315, 327,
59 A.3d 811 (2013). The plaintiff brought this wrongful
death action after the decedent was shot and killed
after police responded to a report of domestic violence
at the apartment where the decedent resided with her
daughter, Jahmesha Williams. The plaintiff alleges, inter
alia, that the police were negligent in failing to remain
at the scene for a reasonable amount of time until the
likelihood of imminent violence had been eliminated,
in violation of the duty allegedly imposed pursuant to
General Statutes § 46b-38b1 and the Hartford Police
Department Policy and Procedure entitled ‘‘Police
Response to Cases of Family Violence’’ (police response
procedures). See Hartford Police Dept. Policy and Pro-
cedure, No. 7-40 (October 1, 1986).2 Although the plain-
tiff raises several issues on appeal, the dispositive issue
is whether the Appellate Court properly determined
that any duty to remain at the scene that was allegedly
owed to the plaintiff’s decedent was discretionary.3 We
conclude that any such duty was discretionary and,
therefore, that the defendant is entitled to immunity
pursuant to General Statutes § 52-557n (a) (2) (B).4
Accordingly, we affirm the judgment of the Appellate
Court.
The following uncontested facts and procedural his-
tory are relevant to our disposition of this appeal.5 ‘‘On
November 5, 2007, at approximately 8:39 p.m., Hartford
police officers [Garrett] Fancher and [Zachary] Freeto
were dispatched to respond to a complaint of domestic
violence at 47 Bolton Street. The complaint had been
made by [Williams], one of the residents of 47 Bolton
Street, who had called the police because the father of
her child, Gerard Chapdelaine, had come to her house
and attempted to gain entry and, having failed, bran-
dished a revolver and threatened her life.
‘‘Williams lived at 47 Bolton Street with her son, a
friend and Williams’ mother, [the decedent]. On the
evening in question, [the decedent] had arrived at the
house in her car and observed Chapdelaine threatening
Williams’ life and brandishing a firearm in the front
yard. [The decedent] told Chapdelaine that she would
call the police if he did not leave. He responded, ‘call
the cops,’ and [the decedent] drove away. By the time
she returned, [O]fficers Fancher and Freeto had arrived
at 47 Bolton Street in response to Williams’ call, but
Chapdelaine was no longer present. The officers spoke
with neighbors and went to Chapdelaine’s residence at
51 Bolton Street, but they were unable to find him.
Williams informed the officers that Chapdelaine’s car
was illegally parked at 55 Bolton Street, and officers
ticketed the vehicle and had it towed. The officers also
learned that Williams had a protective order against
Chapdelaine prohibiting him from threatening or
harassing her, entering her dwelling or having any other
contact with her. Hartford police . . . previously had
responded to incidents of domestic violence between
Chapdelaine and Williams at 47 Bolton Street.
‘‘Unable to locate Chapdelaine, and aware that he
had allegedly committed a family violence crime by
violating a protective order, Fancher and Freeto left
. . . to prepare an arrest warrant.’’ Coley v. Hartford,
supra, 140 Conn. App. 317–18. Prior to leaving the scene,
Officers Fancher and Freeto contacted the Interval
House, a local domestic violence shelter, and spoke
with a representative on Williams’ behalf. The officers
also provided Williams with a victim services card con-
taining additional resources regarding domestic
violence.
‘‘Approximately three hours later, at about 12:05 a.m.,
officers were again dispatched to 47 Bolton Street, this
time in response to a report that a male was attempting
to force entry into the residence. The police determined
that the two reported incidents at 47 Bolton Street were
related, and, upon arrival at the scene, heard screams
coming from the second floor. After setting up a perime-
ter and entering the residence, police discovered that
[the decedent] had been shot and killed.’’6 Id., 318.
The plaintiff brought this wrongful death action alleg-
ing that the defendant’s police officers were negligent
in responding to the domestic violence incident at 47
Bolton Street. Specifically, the plaintiff alleged, inter
alia, that the police officers: ‘‘failed to arrest . . . Chap-
delaine as required by . . . § 46b-38b (a)’’; ‘‘failed to
arrest . . . Chapdelaine for violating a protective order
as required by the police response procedures’’; ‘‘left
the scene before the likelihood of further imminent
violence had been eliminated, in violation of . . .
§ 46b-38b (d)’’; and ‘‘left the scene before the likelihood
of further imminent violence had been eliminated, in
violation of the police response procedures.’’ The defen-
dant asserted as a special defense that it is entitled to
governmental immunity pursuant to § 52-557n and it
subsequently filed a motion for summary judgment on
that ground. The trial court, Rittenband, J., rendered
summary judgment in favor of the defendant, conclud-
ing that the police officers’ actions were discretionary,
not ministerial, and that the identifiable person-immi-
nent harm exception to governmental immunity for dis-
cretionary acts7 does not apply in the present case. The
plaintiff appealed from the trial court’s decision to the
Appellate Court.8
In the Appellate Court, the plaintiff argued that the
trial court improperly rendered summary judgment in
the defendant’s favor because a genuine issue of mate-
rial fact existed as to whether police officers had a
ministerial duty, pursuant to § 46b-38b and the police
response procedures, to remain at Williams’ residence
for ‘‘a reasonable time until, in the reasonable judgment
of the officer, the likelihood of further imminent vio-
lence [had] been eliminated.’’ (Internal quotation marks
omitted.) Coley v. Hartford, supra, 140 Conn. App. 319–
20. The Appellate Court disagreed for three reasons.
First, the Appellate Court concluded that § 46b-38b (d)
does not apply in the present case because that statute
requires police officers to remain at the scene only
when, unlike in the present case, there is no probable
cause for arrest. Id., 324. Second, the Appellate Court
concluded that any duty arising under the police
response procedures was owed to Williams, the victim
of domestic violence, and not to the decedent. Id., 326.
Finally, the Appellate Court determined that, even if it
were to assume that the defendant owed a duty to
the decedent to remain at the scene under the police
response procedures, the duty was discretionary and,
therefore, the defendant is entitled to governmental
immunity. Id., 326 n.10. For these reasons, the Appellate
Court affirmed the trial court’s summary judgment in
favor of the defendant. This certified appeal followed.
On appeal, the plaintiff argues that the Appellate
Court improperly affirmed the trial court’s summary
judgment for the defendant. Although the plaintiff chal-
lenges each of the three grounds for the Appellate
Court’s decision, we focus our inquiry on the plaintiff’s
claim that the police response procedures gave rise to
a ministerial duty to remain at the scene in the present
case. With respect to this claim, the plaintiff argues that
the police response procedures are broader than § 46b-
38b (d) because the procedures require law enforce-
ment personnel to remain at the scene for a reasonable
time in the event an arrest is not made. See footnote 2
of this opinion. The plaintiff contends that the Appellate
Court incorrectly concluded that the duty to remain at
the scene under the police response procedures was
discretionary rather than ministerial.
In response, the defendant argues that the Appellate
Court properly affirmed the trial court’s summary judg-
ment in favor of the defendant. With respect to the
plaintiff’s claim regarding the police response proce-
dures, the defendant argues that, even if we were to
assume that there was a duty owed to the decedent
under the police response procedures, it is apparent
from the allegations in the complaint that the duty to
remain at the scene was discretionary. The defendant
contends, therefore, that it is immune from liability for
its allegedly negligent discretionary acts under § 52-
557n (a) (2) (B).
As a preliminary matter, we agree with the plaintiff
that the obligation to remain at the scene in the event
that an arrest is not made under the police response
procedures, on its face, is broader than the obligation
to remain at the scene under the statute, which gives
rise to this obligation only when ‘‘no cause exists for
an arrest . . . .’’ General Statutes § 46b-38b (d); see
footnotes 1 and 2 of this opinion. Because the police
officers determined that there was probable cause to
arrest Chapdelaine, and an arrest was not in fact made,
we conclude that the police response procedures apply
in the present case.9 The dispositive issue in this appeal,
therefore, is whether the duty to remain at the scene
was discretionary or ministerial. See Grignano v. Mil-
ford, 106 Conn. App. 648, 659–60, 943 A.2d 507 (2008)
(concluding that defendant’s duty to perform reason-
able inspections of premises under town ordinance was
discretionary because ordinance did not prescribe pre-
cise manner for inspection, but duty to warn upon mak-
ing discretionary determination of hazardous condition
was ministerial because ordinance prescribed manner
in which warning should be issued); accord Violano v.
Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006)
(ministerial duty may be created by city charter provi-
sion, ordinance, regulation, rule, policy, or other direc-
tive). Because we determine that the duty to remain at
the scene was discretionary and, therefore, that the
defendant is entitled to governmental immunity, we will
assume for the purposes of this appeal only that this
duty was owed to the decedent.
We begin with the applicable standard of review.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . Our review of the trial court’s decision to grant
[a] motion for summary judgment is plenary. . . .
[T]he ultimate determination of whether qualified
immunity applies is ordinarily a question of law for the
court . . . [unless] there are unresolved factual issues
material to the applicability of the defense . . . [where
the] resolution of those factual issues is properly left to
the jury.’’ (Citations omitted; internal quotation marks
omitted.) Bonington v. Westport, 297 Conn. 297, 305–
306, 999 A.2d 700 (2010). Because the material facts in
the present case are undisputed; see footnote 5 of this
opinion; we exercise plenary review over the trial
court’s determination that the defendant is entitled to
qualified immunity as a matter of law. See Purzycki v.
Fairfield, 244 Conn. 101, 108 n.4, 708 A.2d 937 (1998)
(exercising plenary review over availability of qualified
immunity because material facts were undisputed).
Certain principles governing the scope of qualified
immunity inform our disposition of this appeal. ‘‘[Sec-
tion] 52-557n abandons the common-law principle of
municipal sovereign immunity and establishes the cir-
cumstances in which a municipality may be liable for
damages. . . . One such circumstance is a negligent
act or omission of a municipal officer acting within the
scope of his or her employment or official duties. . . .
[Section] 52-557n (a) (2) (B), however, explicitly shields
a municipality from liability for damages to person or
property caused by the negligent acts or omissions
which require the exercise of judgment or discretion
as an official function of the authority expressly or
impliedly granted by law.
‘‘Municipal officials are immune from liability for neg-
ligence arising out of their discretionary acts in part
because of the danger that a more expansive exposure
to liability would cramp the exercise of official discre-
tion beyond the limits desirable in our society.’’10 (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) Doe v. Petersen, 279 Conn. 607, 614,
903 A.2d 191 (2006). Therefore, ‘‘[d]iscretionary act
immunity reflects a value judgment that—despite injury
to a member of the public—the broader interest in
having government officials and employees free to exer-
cise judgment and discretion in their official functions,
unhampered by fear of second-guessing and retaliatory
lawsuits, outweighs the benefits to be had from impos-
ing liability for that injury.’’ (Internal quotation marks
omitted.) Id., 615. ‘‘The hallmark of a discretionary act
is that it requires the exercise of judgment.’’ (Internal
quotation marks omitted.) Bonington v. Westport,
supra, 297 Conn. 306. ‘‘In contrast, municipal officers
are not immune from liability for negligence arising out
of their ministerial acts, defined as acts to be performed
in a prescribed manner without the exercise of judg-
ment or discretion.’’ (Internal quotation marks omitted.)
Doe v. Petersen, supra, 615.
‘‘Although the determination of whether official acts
or omissions are ministerial or discretionary is normally
a question of fact for the fact finder . . . there are
cases where it is apparent from the complaint . . .
[that the nature of the duty] and, thus, whether govern-
mental immunity may be successfully invoked pursuant
to . . . § 52-557n (a) (2) (B), turns on the character of
the act or omission complained of in the complaint.
. . . Accordingly, where it is apparent from the com-
plaint that the defendants’ allegedly negligent acts or
omissions necessarily involved the exercise of judg-
ment, and thus, necessarily were discretionary in
nature, summary judgment is proper.’’ (Footnote omit-
ted; internal quotation marks omitted.) Bonington v.
Westport, supra, 297 Conn. 307–308.
With these principles in mind, we turn to the disposi-
tive issue in the present case. The plaintiff argues that
the Appellate Court improperly concluded that any duty
to remain at the scene that the defendant allegedly owed
to the decedent under the police response procedures
was discretionary.11 Contrary to the Appellate Court’s
determination, the plaintiff contends that the manda-
tory language in § III (B) (4) of the police response
procedures, specifically the phrase ‘‘shall remain,’’ ren-
ders the duty to remain at the scene ministerial. The
plaintiff maintains that the police response procedures
were enacted to curtail law enforcement discretion and,
to that end, the procedures mandate that police officers
remain at the scene of a domestic violence incident
when an arrest is not made. Insofar as the police
response procedures provide that an officer shall
remain at the scene ‘‘for a reasonable time until, in the
reasonable judgement of the officer, the likelihood of
further imminent violence has been eliminated’’; Hart-
ford Police Dept. Policy and Procedure, supra, § III (B)
(4); the plaintiff argues that ‘‘reasonable’’ is an objective
standard of reasonableness that creates an issue for
the trier of fact.
The defendant, by contrast, contends that the police
response procedures at issue in the present case neces-
sarily require the exercise of judgment and, therefore,
are discretionary. Specifically, the defendant argues
that the police response procedures vest police officers
with discretion to determine how long to remain at the
scene, that is, what constitutes a ‘‘reasonable time’’
until ‘‘in the reasonable judgement of the officer, the
likelihood of further imminent violence has been elimi-
nated.’’ (Emphasis added.) Id.; General Statutes § 46b-
38b (d). Because the defendant’s allegedly negligent
acts in ‘‘le[aving] the scene before the likelihood of
further violence had been eliminated’’ necessarily
involved the exercise of judgment or discretion, the
defendant argues that it is entitled to discretionary act
immunity pursuant § 52-557n (a) (2) (B). We agree with
the defendant.
We begin by observing the broad scope of governmen-
tal immunity that is traditionally afforded to the actions
of municipal police departments. ‘‘[I]t is firmly estab-
lished that the operation of a police department is a
governmental function, and that acts or omissions in
connection therewith ordinarily do not give rise to liabil-
ity on the part of the municipality. . . . [Accordingly]
[t]he failure to provide, or the inadequacy of, police
protection usually does not give rise to a cause of action
in tort against a city.’’ (Internal quotation marks omit-
ted.) Gordon v. Bridgeport Housing Authority, 208
Conn. 161, 180, 544 A.2d 1185 (1988). In Gordon, we
concluded that the city was immune from liability for
injuries stemming from an alleged shortage of police
patrols because ‘‘the general deployment of police offi-
cers is a discretionary governmental action as a matter
of law.’’ Id. ‘‘[B]ecause a police chief’s authority to
assign his officers to particular duties is deemed a mat-
ter that concerns the public safety, he may not be
deprived of his power to exercise his own discretion
and judgment as to the number, qualifications and iden-
tity of officers needed for particular situations at any
given time . . . .’’ (Internal quotation marks omitted.)
Id. Although the issue in the present case does not
concern the deployment of police officers generally,
but rather the defendant’s alleged failure to adhere to
specific police response procedures, we find Gordon
instructive because it underscores the considerable dis-
cretion inherent in law enforcement’s response to an
infinite array of situations implicating public safety on
a daily basis.
We now turn to the facts in the present case.
‘‘Determining whether it is apparent on the face of the
complaint that the acts complained of are discretionary
requires an examination of the nature of the alleged
acts or omissions.’’ Violano v. Fernandez, supra, 280
Conn. 322. In his complaint, the plaintiff alleges that
the defendant was negligent in leaving the scene of the
domestic violence dispute, 47 Bolton Street, before the
likelihood of further violence had been eliminated,
allegedly in violation of the police response procedures.
Although the complaint characterizes the police offi-
cers’ actions as ministerial in nature, that is, failing to
remain at the scene in violation of a clear policy direc-
tive, the police response procedures cited in the com-
plaint required the exercise of discretion. Specifically,
the police response procedures provide that ‘‘[i]n the
event that an arrest is not made . . . officers shall
remain at the scene for a reasonable time until, in the
reasonable judgement of the officer, the likelihood of
further imminent violence has been eliminated.’’ Hart-
ford Police Dept. Policy and Procedure, supra, § III (B)
(4). In actuality, then, the gravamen of the plaintiff’s
allegations is that the defendant failed to remain at the
scene for a reasonable time until, in the reasonable
judgment of the police officer, the likelihood of further
imminent violence had been eliminated.
It is difficult to conceive of policy language that could
more clearly contemplate the exercise of judgment by a
municipal employee than is contemplated by the police
response procedures in the present case. At a minimum,
the plaintiff would have this court ignore the police
response procedures’ explicit reference to the ‘‘reason-
able judgement of the officer . . . .’’ Id. In no uncertain
terms, the policy requires police officers to exercise
their judgment in evaluating the likelihood of imminent
violence. The plaintiff’s strained interpretation also dis-
regards the discretion inherent in the determination of
what amounts to a ‘‘reasonable time’’ under the police
response procedures. In fact, the police response proce-
dures define ‘‘reasonable time’’ by reference to the
police officer’s discretion; it is the amount of time until
the likelihood of further imminent violence has been
eliminated as determined according to the reasonable
judgment of the police officer. See id.
Thus, the police response procedures in the present
case explicitly require the police officer’s judgment in
evaluating the circumstances in a given situation of
domestic violence. Because the policy language makes
the manner of performance expressly contingent upon
the police officer’s discretion, it cannot be said that the
alleged acts were to be ‘‘performed in a prescribed
manner without the exercise of judgment . . . .’’ (Inter-
nal quotation marks omitted.) Doe v. Petersen, supra,
279 Conn. 615. We conclude, therefore, that the defen-
dant’s allegedly negligent acts were discretionary.12
The plaintiff also claimed at oral argument that, even
conceding that the police response procedures are dis-
cretionary with respect to what constitutes a reasonable
time,13 the defendant was nonetheless required to
remain at the scene for some time once police officers
determined that there was probable cause for arrest
and an arrest was not made. The plaintiff’s claim centers
on the allegedly mandatory nature of the word ‘‘shall’’
in § III (B) (4) of the police response procedures, which
provides that ‘‘[i]n the event that an arrest is not made
. . . officers shall remain at the scene for a reasonable
time . . . .’’ (Emphasis added.) Thus, as we understand
the plaintiff’s argument, he contends that the defendant
had a ministerial duty to remain at the scene for some
amount of time once there was probable cause to arrest
Chapdelaine.14 We disagree.
Contrary to the plaintiff’s contention, the word
‘‘shall’’ does not necessarily give rise to a ministerial
duty to remain at the scene when the policy language,
read in its entirety, clearly relies upon the police offi-
cer’s discretion in deciding how to perform the allegedly
ministerial act of remaining at the scene. ‘‘The mere
fact that a statute uses the word ‘shall’ in prescribing
the function of a government entity or officer should
not be assumed to render the function necessarily oblig-
atory in the sense of removing the discretionary nature
of the function.’’ 57 Am. Jur. 2d 113, Municipal, County,
School, and State Tort Liability § 82 (2001). To illustrate
how mandatory language does not necessarily render
a duty ministerial as opposed to discretionary, we turn
to our Appellate Court’s decision in Mills v. The Solu-
tion, LLC, 138 Conn. App. 40, 51, 50 A.3d 381, cert.
denied, 307 Conn. 928, 55 A.3d 570 (2012).
In Mills, the plaintiff appealed from the trial court’s
summary judgment rendered in favor of the defendant,
a municipal police department, on the ground of govern-
mental immunity for its allegedly negligent failure to
provide police protection at a carnival where the plain-
tiff’s decedent was fatally shot. Id., 40, 43. Specifically,
the plaintiff argued that the defendant had a ministerial
duty to provide the police protection that it determined,
in its discretion, was necessary pursuant to the statute
governing police protection at places of public amuse-
ment. Id., 51. General Statutes § 7-284 provides in rele-
vant part that ‘‘[w]hen police protection is necessary
or required at any . . . place of public amusement . . .
the amount of such protection necessary shall be deter-
mined and shall be furnished by (1) the chief . . . of
the police department . . . .’’ (Emphasis added.) While
the plaintiff did not dispute that § 7-284 affords the
defendant discretion to determine whether police pro-
tection is necessary and, if so, the amount of such
protection, the plaintiff argued that ‘‘once the chief of
police, in his or her discretion, determines that police
protection is necessary, the chief of police then has a
ministerial duty to furnish such protection.’’ Mills v.
The Solution, LLC, supra, 138 Conn. App. 50–51.
Like the plaintiff in the present case, the plaintiff in
Mills argued that the mandatory nature of the word
‘‘shall’’ rendered the duty to furnish necessary police
protection ministerial. Id., 51. The Appellate Court
rejected this argument: ‘‘We disagree with the plaintiff
that the word ‘shall’ is sufficient to convert what is
otherwise a discretionary act into a ministerial duty
where the text of the statute leaves to the discretion
of the police official how to perform the function
. . . .’’ Id. Similarly, in the present case, the police
response procedures leave to the discretion of the
police officer how to perform the obligation to remain
at the scene of a domestic violence crime. We find that
the policy language vesting discretion with the police
officer to determine what constitutes a reasonable time
is inextricably intertwined with the policy language stat-
ing that the police officer ‘‘shall remain’’ at the scene.
Accordingly, we decline the plaintiff’s invitation to
parse the policy language so as to create a ministerial
duty to remain at the scene notwithstanding the discre-
tionary performance of that duty.15
The facts in the present case are undeniably tragic,
and, understandably, the parties are left questioning
whether anything more could have been done to prevent
the realities that unfolded. It is, however, precisely
because it can always be alleged, in hindsight, that a
public official’s actions were deficient that we afford
limited governmental liability for acts that necessarily
entailed the exercise of discretion. ‘‘We do not think
that the public interest is served by allowing a jury of
laymen with the benefit of 20/20 hindsight to second-
guess the exercise of a policeman’s discretionary pro-
fessional duty. Such discretion is no discretion at all.’’
Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379
(1982); see Doe v. Peterson, supra, 279 Conn. 615 (‘‘[d]is-
cretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officers and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, outweighs the bene-
fits to be had from imposing liability for that injury’’
[internal quotation marks omitted]); Wadsworth v. Mid-
dletown, 94 Conn. 435, 440, 109 A. 246 (1920) (‘‘[t]imidity
and doubt would govern [public officials’] performance
of public duty if they acted in the consciousness that
personal liability might follow, no matter how closely
they followed their best discretion’’). In short, the police
officers’ allegedly negligent acts in the present case
required the exercise of discretion, and, accordingly,
the defendant is immune from liability for its discretion-
ary acts.
For the reasons set forth in this opinion, the Appellate
Court properly determined that the duty to remain at
the scene in the present case was discretionary. Accord-
ingly, we conclude that the Appellate Court properly
affirmed the trial court’s decision rendering summary
judgment in the defendant’s favor on the ground that
the defendant is entitled to immunity from liability pur-
suant to § 52-557n.
The judgment is affirmed.
In this opinion PALMER, ZARELLA, McDONALD,
ESPINOSA and ROBINSON, Js., concurred.
1
General Statutes § 46b-38b provides in relevant part: ‘‘(a) Whenever a
peace officer determines upon speedy information that a family violence
crime has been committed within such officer’s jurisdiction, such officer
shall arrest the person or persons suspected of its commission and charge
such person or persons with the appropriate crime. . . .
‘‘(d) It shall be the responsibility of the peace officer at the scene of a
family violence incident to provide immediate assistance to the victim. . . .
In cases where the officer has determined that no cause exists for an arrest,
assistance shall include . . . (B) remaining at the scene for a reasonable
time until, in the reasonable judgment of the officer, the likelihood of further
imminent violence has been eliminated. . . .’’
Although this statute has been revised since the events giving rise to this
appeal; see, e.g., Public Acts 2010, No. 10-36, § 5; Public Acts 2011, No. 11-
152, § 3; those revisions have no bearing on the merits of the present case.
Accordingly, for purposes of convenience, we refer to the current revision
of the statute.
2
Specifically, the plaintiff relies on the portion of the police response
procedures which provides: ‘‘In the event that an arrest is not made, [Public
Acts 1986, No. 86-337, § 2, codified at General Statutes § 46b-38b] requires
that officers shall remain at the scene for a reasonable time until, in the
reasonable judgement of the officer, the likelihood of further imminent
violence has been eliminated.’’ Hartford Police Dept. Policy and Procedure,
supra, § III (b) (4).
These procedures were promulgated under statutory mandate. See Gen-
eral Statutes § 46b-38b (e) (1) (B) (‘‘[e]ach law enforcement agency shall
develop, in conjunction with the Division of Criminal Justice, and implement
specific operational guidelines for arrest policies in family violence incidents
. . . [including] procedures for arrest and for victim assistance by peace
officers’’). We note that although § 46b-38b (e) has been amended since the
police response procedures were implemented, the statutory authorization
for implementing such procedures has remained unchanged. Accordingly,
we refer to the current revision of § 46b-38b (e). Although the police response
procedures have subsequently been amended since their enactment in 1986,
we refer to the procedures that were in place on November 5, 2007, at the
time of the alleged events in the present case.
3
The three certified questions in this appeal are as follows: ‘‘(1) Did the
Appellate Court properly determine that . . . § 46b-38b did not apply to
this case?; (2) Did the Appellate Court properly determine that any duty
created by the statutory scheme was not owed to the plaintiff’s decedent?;
and (3) Did the Appellate Court properly determine that any duty was
discretionary?’’ Coley v. Hartford, 308 Conn. 922, A.3d (2013).
4
General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(2) Except as otherwise provided by law, a political subdivision of the state
shall not be liable for damages to person or property caused by . . . (B)
negligent acts or omissions which require the exercise of judgment or discre-
tion as an official function of the authority expressly or impliedly granted
by law.’’
5
We note that the trial court’s order granting summary judgment in favor
of the defendant does not discuss the facts alleged in this case, nor does
it reference any affidavits or supporting documents submitted by the parties.
See footnote 8 of this opinion. At oral argument, the parties agreed that the
facts as set forth in the Appellate Court opinion were drawn from the police
report that the investigating police officer, Garrett Fancher, and the assisting
police officer, Zachary Freeto, prepared in connection with the alleged
incidents in the present case. The defendant submitted the police report as
an exhibit to its memorandum in support of the motion for summary judg-
ment. See Practice Book § 17-45 (‘‘[a] motion for summary judgment shall
be supported by such documents as may be appropriate, including but not
limited to affidavits, certified transcripts of testimony under oath, disclo-
sures, written admissions and the like’’).
The plaintiff does not contest the facts as set forth in the police report,
nor does he contest the facts as recited by the Appellate Court. Accordingly,
in our disposition of this appeal we rely on the uncontested facts in the
police report, as recited in the Appellate Court opinion and as construed
in the light most favorable to the plaintiff. See Coley v. Hartford, supra, 140
Conn. App. 317 n.2 (‘‘ ‘[t]he record [is] viewed in the light most favorable
to the nonmoving plaintiff for purposes of reviewing the trial court’s grant
of summary judgment’ ’’), quoting Martinelli v. Fusi, 290 Conn. 347, 350,
963 A.2d 640 (2009). Additional facts from the police report in the present
case are set forth as necessary.
6
It is undisputed that Chapdelaine returned to 47 Bolton Street and fatally
shot the decedent.
7
We have described the identifiable person-imminent harm exception
to discretionary act immunity as follows: ‘‘Discretionary act immunity is
abrogated when the circumstances make it apparent to the public officer
that his or her failure to act would be likely to subject an identifiable person
to imminent harm . . . . By its own terms, this test requires three things:
(1) an imminent harm; (2) an identifiable victim; and (3) a public official
to whom it is apparent that his or her conduct is likely to subject that
victim to harm.’’ (Citation omitted; internal quotation marks omitted.) Doe
v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006).
8
The trial court’s order granting the defendant’s motion for summary
judgment provides in its entirety as follows: ‘‘Under [§] 52-557n (a) (2) (B),
the [defendant] is not liable for discretionary acts and the officers’ decision
to try and find and arrest the domestic violence perpetrator and eventual
shooter, was a discretionary act. The [decedent], shooting victim, was not
an identifiable victim subject to imminent harm, [Williams] was. [Section]
46b-38b (d) requires the officers to exercise reasonable time and reasonable
judgment which makes it discretionary.’’
The plaintiff did not challenge the trial court’s determination that there
is no identifiable person-imminent harm exception to discretionary act
immunity in the present case. During oral argument in the Appellate Court,
the plaintiff explained that the decision not to appeal this aspect of the trial
court’s decision was because, in the plaintiff’s view, the decedent would
not qualify as an identifiable person under the identifiable person-imminent
harm exception to discretionary act immunity. Coley v. Hartford, supra, 140
Conn. App. 320 n.5.
We express no view as to whether the plaintiff’s allegations, if taken
as true, are legally sufficient to satisfy the criteria required to overcome
governmental immunity under the identifiable person-imminent harm excep-
tion to discretionary act immunity.
9
Because we find that the police response procedures apply in the present
case, and because the third issue is dispositive, we do not decide whether
the statute also operated to impose a ministerial or discretionary duty on
police officers to remain at the scene for a reasonable time.
We note, however, that the plaintiff concedes that the facts in the present
case do not fall exclusively under either of the two relevant subsections
of § 46b-38b. See footnote 1 of this opinion. Section 46b-38b (a) and (d),
respectively, appear to prescribe distinct police responses to domestic vio-
lence disputes depending upon whether cause for arrest exists. When there
is cause for arrest, subsection (a) requires that police officers arrest the
domestic violence perpetrator. When there is no cause for arrest, subsection
(d) requires that police officers remain at the scene for a reasonable time.
The statute does not expressly prescribe the appropriate police response
when there is cause for arrest, but no arrest is in fact made because the
perpetrator cannot be located.
In the present case, it is undisputed that police officers were required
to arrest Chapdelaine under § 46b-38b (a) upon information that he had
committed a family violence crime. It is also undisputed, however, that
police officers were attempting to arrest Chapdelaine but were unable to
locate him. Because Chapdelaine was still at large, the plaintiff contends
that police officers were required under § 46b-38b (d) to remain at the scene
until the likelihood of imminent violence had been eliminated, presumably
upon Chapdelaine’s arrest. In essence, the plaintiff argues that the legislature
must have intended to require police officers to remain at the scene for a
reasonable time, pursuant to § 46b-38b (d), when, as in the present case,
grounds for arrest exist but no arrest is in fact made.
We agree with the plaintiff that the facts in the present case reveal a
potential gap in the statute. In view of our determination that the police
response procedures gave rise to some type of duty to remain at the scene
in the present case, however, we do not decide whether § 46b-38b (d) also
required police officers to remain at the scene in the present case.
10
Although this court has recognized three exceptions to discretionary
act immunity; see Grady v. Somers, 294 Conn. 324, 338 and n.14, 984 A.2d
684 (2009); the plaintiff does not argue that any of those exceptions are
applicable under the facts in the present case.
11
We note that the plaintiff also argues that the defendant had a ministerial
duty under § 46b-38b (a) and the police response procedures, respectively,
to make an arrest when a family violence crime had been committed, and
that the defendant violated that duty by failing to arrest Chapdelaine. These
claims do not warrant extended discussion for the following reasons.
First, even if we were to assume that the defendant had a ministerial duty
under § 46b-38b (a) to arrest Chapdelaine upon information that he had
committed a family violence crime, it is undisputed that police officers were
attempting to arrest Chapdelaine. When Chapdelaine could not be found,
the police officers prepared a warrant for his arrest. It would be absurd to
conclude that law enforcement’s failure to arrest a suspect who cannot be
located, despite reasonable efforts to do so, violates § 46b-38b (a). We
therefore conclude that, as a matter of law, the defendant complied with
any mandatory directive that was arguably owed to the plaintiff’s decedent
under § 46b-38b (a).
For these same reasons, we reject the plaintiff’s claim that the defendant
violated a ministerial duty, under the police response procedures, to arrest
Chapdelaine for violating a protective order. Furthermore, it bears noting
that the police response procedures prescribe that when an officer has
probable cause to believe that a protective order has been violated, and the
violator is not present, the officer must apply for an arrest warrant. See
Hartford Police Dept. Policy and Procedure, supra, § III (B) (5) (e) (‘‘[i]f
the violator is not present when the officer arrives, the officer shall investi-
gate the incident and, if probable cause exists, the officer will apply for an
arrest warrant’’). It is undisputed that the police officers in the present case
followed this procedure.
12
In support of his claim to the contrary, the plaintiff submitted the sworn
affidavit of Reginald F. Allard, Jr., a ‘‘police procedure expert,’’ as an exhibit
to his memorandum in opposition to the defendant’s motion for summary
judgment. Allard’s affidavit provides in relevant part as follows: ‘‘In my
opinion, [§ 46b-38b et seq. and the police response procedures] are manda-
tory and must be followed by municipal employees without question, and
involve no discretion as to the obligation to remain at the scene of the
domestic violence incident until the victim was no longer under threat.’’
(Emphasis added.)
Allard’s statement that the statutory scheme and the police response
procedures ‘‘are mandatory’’ and ‘‘involve no discretion’’ provide only a
conclusion that, in his opinion, the police officers had a ministerial duty to
remain at the scene. Allard’s opinion is thus a conclusory statement that
does not create a genuine issue of material fact as to the nature of the duty
allegedly owed to the plaintiff’s decedent. See Buell Industries, Inc. v.
Greater New York Mutual Ins. Co., 259 Conn. 527, 557, 791 A.2d 489 (2002)
(‘‘[a]lthough an affidavit by an expert may be considered in opposition to
a motion for summary judgment, conclusory affidavits, even from expert
witnesses, do not provide a basis on which to deny such motions’’ [internal
quotation marks omitted]).
Moreover, Allard’s interpretation of the police response procedures at
issue in the present case is untenable. Allard’s opinion directly contradicts
the language of the police response procedures, which provide that officers
shall remain at the scene for a ‘‘reasonable time until, in the reasonable
judgement of the officer, the likelihood of further imminent violence has
been eliminated.’’ Hartford Police Dept. Policy and Procedure, supra, § III
(B) (4). Allard’s claim that officers have ‘‘no discretion’’ disregards the clear
policy language vesting discretion in the officers to determine how long to
remain at the scene based upon their judgment as to the likelihood of further
imminent violence. Additionally, Allard’s assertion in his affidavit that the
officers must remain at the scene ‘‘until the victim [is] no longer under
threat’’ ignores the explicit reference in § III (B) (4) of the police response
procedures to the police officer’s judgment as to the ‘‘likelihood of further
imminent violence . . . .’’ Finally, it is telling that the expert concludes that
the procedures are ministerial, yet he provides no insight into the ‘‘prescribed
manner’’ in which police officers are supposed to act. See Violano v. Fernan-
dez, supra, 280 Conn. 318 (‘‘[m]inisterial refers to a duty [that] is to be
performed in a prescribed manner without the exercise of judgment or
discretion’’ [internal quotation marks omitted]).
Indeed, the police response procedures do not prescribe how long officers
must remain at the scene because that duration is a variable contingent
upon whether the threat of imminent violence has been eliminated, which
itself is a variable contingent upon the unique facts and circumstances of
the domestic violence situation. On their face, the procedures rely on the
police officer’s judgment as to the likelihood of further imminent violence
in a given situation. Although the defendant conceivably could have pre-
scribed set parameters for police officers to adhere to in every situation,
for instance that officers must remain at the scene for one hour, there are
no such procedures at issue in the present case. Rather, the duty to remain
at the scene for ‘‘a reasonable time until, in the reasonable judgement of
the officer, the likelihood of further imminent violence has been eliminated’’;
Hartford Police Dept. Policy and Procedure, supra, § III (B) (4); is inher-
ently discretionary.
13
To the extent that the plaintiff has suggested that there is a question
for the trier of fact as to whether the police officers remained at the scene
for a reasonable time under an objective standard of reasonableness, we
disagree. By definition, negligent acts are not objectively reasonable. ‘‘Impos-
ing liability when a municipal officer deviated from an ordinary negligence
standard of care would render a municipality’s liability under § 52-557n no
different from what it would be under ordinary negligence. This would run
counter to the purpose of governmental immunity, which is to protect a
municipality from liability arising from a municipal officer’s negligent, discre-
tionary acts unless the officer’s duty to act is clear and unequivocal.’’ Edger-
ton v. Clinton, 311 Conn. 217, 228 n.10, 86 A.3d 437 (2014); General Statutes
§ 52-557n (a) (2) (‘‘[e]xcept as otherwise provided by law, a political subdivi-
sion of the state shall not be liable for damages to person or property
caused by . . . [B] negligent acts or omissions which require the exercise
of judgment or discretion’’).
14
At oral argument before this court, the defendant, as evidenced by the
following colloquy, appeared to concede that the police response procedures
give rise to a duty to remain at the scene for at least some period of time.
‘‘The Court: The procedures do require [the police] to remain at the scene
for some time?
‘‘The Defendant: Yes.
‘‘The Court: Do we know from this record whether [the police] remained
at the scene?
‘‘The Defendant: Well, we do know from the record that [the police] took
enough information from [the decedent] and from Williams as to what
happened that day, there [is] a three page [police] report. They must have
stayed for some period of time to get that information.
‘‘The Court: But they first of all have to determine whether or not there
is probable cause for an arrest, I would think that [the police] would have
to take information for that, but after they determined whether or not to
make an arrest, it would seem that there is some requirement that they
have to stay at the scene. And do we know whether they stayed at the scene
here? Other than asking for information?
‘‘The Defendant: I guess it’s not clear as to how long they were there.
‘‘The Court: Would you agree [the police] have to stay for a certain period
of time?
‘‘The Defendant: Yes, they do have to stay for a certain period of time.
Of course, it’s difficult to put a number on that . . . .’’
It is unclear, however, whether the defendant’s statement that the police
officers had to remain at the scene for some duration was a concession
that they had to remain at the scene after they determined there was probable
cause for arrest as opposed to after the police initially responded to the
scene.
In the dissent’s view, the defendant’s response to the court’s inquiry at
oral argument was a clear concession that police officers have a ministerial
duty to remain at the scene for at least some time after there is probable
cause to arrest a suspect for a family violence crime and the arrest has not
been made. We are less certain. Even if the defendant did state that police
officers must remain at the scene after the probable cause determination,
however, it is not necessarily also true that the defendant conceded that
this duty is ministerial, as opposed to discretionary. To the extent that the
defendant’s statements at oral argument arguably could be construed as a
concession of the central issue in the present case regarding the nature of
the duty arising under the police response procedures, however, we are not
bound by that concession. See State v. Reddick, 224 Conn. 445, 463 n.19,
619 A.2d 453 (1993) (‘‘we are not bound by ill advised concessions of any
party’’); State v. Putnoki, 200 Conn. 208, 219 n.6, 510 A.2d 1329 (1986)
(‘‘The state concurs with the defendant that the evidence was insufficient
to support the trial court’s finding. We are not, however, bound by the state’s
concession.’’); State v. Avery, 199 Conn. 377, 379 n.2, 507 A.2d 464 (1986)
(‘‘[w]e consider this appeal on the merits despite the state’s concession, in
its brief, that the trial court had erred’’).
15
It is the dissent’s position that the duty to remain at the scene was
ministerial, despite the fact that the precise manner in which the police
officers performed that duty was discretionary. The dissent relies principally
on Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975), and Soderlund v.
Merrigan, 110 Conn. App. 389, 955 A.2d 107 (2008). Each of these cases is
distinguishable from the present case. Therefore, we do not find the dissent’s
argument persuasive.
First, the dissent relies on Wright v. Brown, supra, 167 Conn. 464, for the
proposition that a ministerial duty may follow a discretionary determination.
That case is inapposite. In Wright, the statute at issue required the municipal
canine control officer to determine whether a dog had bitten a person
off of the dog owner’s premises and, upon making that determination, to
quarantine the dog. Id., 466. This court concluded that once the officer made
the discretionary determination that, in the officer’s judgment, the dog had
so bitten someone, ‘‘the subsequent duty to quarantine for fourteen days
was mandatory and, therefore, ministerial.’’ Id., 472. The statute in Wright,
however, clearly delineated the nature and duration of the mandatory quaran-
tine; see id., 466 n.1; thus removing the canine control officer’s discretion
in the performance of that duty. The police response procedures in the
present case, by contrast, afford complete discretion to police officers in
performing the obligation to remain at the scene of a domestic violence
incident. For that reason, Wright is readily distinguishable from the present
case and does not persuade us that there was a ministerial duty to remain
at the scene.
We also distinguish our Appellate Court’s decision in Soderlund v. Merri-
gan, supra, 110 Conn. App. 389, from the present case. In Soderlund, the
Appellate Court concluded that a municipality was not immune from liability
for negligently failing to vacate an arrest warrant pursuant to a court order.
Id., 397. The Appellate Court concluded that the order to vacate an arrest
warrant is mandatory, not discretionary, reasoning as follows: ‘‘[T]he con-
duct complained of does not fall within the definition of a discretionary act
because it does not involve the exercise of judgment and discretion. Instead,
the order to vacate an arrest warrant is mandatory. It does not matter how
the order is vacated, but, simply put, it must be vacated.’’ Id. Relying on
Soderlund, the dissent posits that regardless of how the police officers
performed the duty to remain at the scene, they were required to remain
at the scene. Respectfully, Soderlund does not speak to the issue in the
present case, namely, whether the duty to remain at the scene was ministerial
or discretionary. The two cases are not analogous. In Soderlund, the duty
to vacate an arrest warrant was ministerial because, no matter how the
warrant was vacated, there was no discretion involved in the underlying
duty to vacate the warrant. In the present case, by contrast, the duty to
remain at the scene was inherently discretionary because that duty, in and
of itself, required the exercise of judgment under the clear language of the
police response procedures.