Dubinsky v. Black ( 2018 )

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DAVID DUBINSKY v. KEVIN M. BLACK
(AC 40203)
Elgo, Bright and Mihalakos, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney for
legal malpractice in connection with the defendant’s representation of
the plaintiff in a criminal proceeding and his alleged failure to advise
the plaintiff that his acceptance of a plea offer in the criminal proceeding
would preclude him from subsequently pursuing an action for malicious
prosecution. In the underlying criminal proceeding, the plaintiff had
been charged with, inter alia, risk of injury to a child in violation of
statute (§ 53-21) in connection with an incident at the defendant’s home
where he repeatedly struck his seven year old son with a belt in the
presence of his stepdaughter. The plaintiff had entered into a conditional
guilty plea in that case, which resulted in all charges being vacated and
dismissed because the plaintiff complied with all the conditions of the
plea agreement. The trial court in the present case granted the defen-
dant’s motion for summary judgment on the ground that the plaintiff,
as a matter of law, could not prevail on the malpractice action, as
probable cause existed to charge the defendant with the crime of risk
of injury to a child. From the judgment rendered thereon, the plaintiff
appealed to this court. Held:
1. The trial court did not err in granting the defendant’s motion for summary
judgment; the plaintiff bore the burden of establishing not only negli-
gence on the part of the defendant in apprising him of the consequences
of his guilty plea in the underlying criminal proceeding, but also that
he would have prevailed in his malicious prosecution claim against the
arresting officers, and the plaintiff could not meet that burden at trial,
as the documentation submitted in connection with the motion for
summary judgment demonstrated that no genuine issue of material fact
existed as to whether, on the basis of the totality of the circumstances
and facts known to them at the time, the arresting officers possessed
an objectively reasonable basis to believe that the plaintiff’s conduct
placed both his son and stepdaughter in a situation that was likely to
be psychologically injurious to them and, thus, that the plaintiff had
violated § 53-21 (a), and, therefore, the plaintiff could not establish the
lack of probable cause as required for a malicious prosecution action.
2. The plaintiff’s claim that the arresting officers lacked probable cause in
light of the parental justification defense afforded to parents under
statute (§ 53a-18 [1]) was unavailing; the ultimate determination of
whether the particular conduct of a parent is reasonable and, thus,
entitled to protection under § 53a-18 (1) is a factual determination to
be made by a trier of fact, which could not have been made by the
arresting officers or the prosecutor in this case, as the arresting officers
performed a preliminary and fundamentally distinct function, specifi-
cally, the determination of whether the facts then known were sufficient
to justify a reasonable person to believe that reasonable grounds for
prosecuting an action existed, proof of probable cause requires less
than proof by a preponderance of the evidence, and, thus, because the
arresting officers were not the finders of fact tasked with making a final
determination as to the reasonableness of the plaintiff’s conduct after
an evidentiary proceeding, the parental justification defense had little
bearing on the preliminary determination of probable cause made by
the arresting officers who had responded to the 911 call in this case.
3. The plaintiff could not prevail on his claim that summary judgment was
inappropriate because the arresting officers allegedly fabricated the
claim that he had left red welts on his son’s backside: the fact that
there was conflicting evidence as to whether the marks existed was not
material to the question of whether the arresting officers possessed
probable cause to charge the plaintiff with risk of injury to a child, as
actual physical injury is not a prerequisite to a conviction under the
situation prong of § 53-21, and even if such evidence was discounted,
no genuine issue of material fact existed as to whether the arresting
officers possessed an objectively reasonable basis to believe that the
plaintiff, through his conduct, placed both minor children in a situation
that was likely to be injurious to their mental health and well-being in
violation of § 53-21 (a) (1); moreover, because the existence of probable
cause is an absolute protection against an action for malicious prosecu-
tion, the plaintiff could not demonstrate, as he was required, that he
would have been entitled to judgment in a malicious prosecution action
against the arresting officers but for the defendant’s professional negli-
gence, and, therefore, the plaintiff cannot prevail on his legal malpractice
claim against the defendant.
Argued May 21—officially released September 25, 2018
Procedural History
Action to recover damages sustained as a result of
the defendant’s alleged legal malpractice, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Bridgeport, where the court, Krumeich, J.,
granted the defendant’s motion for summary judgment
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Affirmed.
John R. Williams, for the appellant (plaintiff).
Bridgitte E. Mott, with whom, on the brief, was
Thomas P. O’Dea, Jr., for the appellee (defendant).
Opinion
ELGO, J. The plaintiff, David Dubinsky, appeals from
the summary judgment rendered in favor of the defen-
dant, Kevin M. Black, in this legal malpractice action
predicated on the defendant’s alleged failure to advise
the plaintiff that his acceptance of a plea offer in a
criminal proceeding would preclude him from subse-
quently pursuing an action for malicious prosecution.
In rendering summary judgment, the court concluded,
as a matter of law, that the plaintiff could not prevail
on such an action, as probable cause existed to charge
him with the crime of risk of injury to a child in violation
of General Statutes § 53-21. The plaintiff now challenges
the propriety of that determination. We affirm the judg-
ment of the trial court.
Mindful of the procedural posture of the case, we set
forth the following facts as gleaned from the pleadings,
affidavits and other proof submitted, viewed in a light
most favorable to the plaintiff. See Martinelli v. Fusi,
290 Conn. 347, 350, 963 A.2d 640 (2009). On the morning
of Saturday, June 23, 2012, officers from the Fairfield
Police Department (department) responded to a 911
call from the plaintiff’s then wife, Miriam Dubinsky,1
regarding an incident at their home in which the plaintiff
shoved her onto a bed and repeatedly struck their minor
son, Jake, with a belt in the presence of the plaintiff’s
minor stepdaughter, Abigail.2 The plaintiff, at that time,
was arrested and charged with one count of risk of
injury to a child in violation of § 53-21, one count of
assault in the third degree in violation of General Stat-
utes § 53a-61, and three counts of disorderly conduct
in violation of General Statutes § 53a-182.3
Later that day, department officials filed a request
for a probable cause determination with the Superior
Court. Accompanying that request were copies of the
police incident report, an arrest affidavit signed by Offi-
cer John Tyler, a family violence offense report, and a
written statement by Miriam regarding the incident.
After reviewing those materials that evening, the court,
Bellis, J., concluded that probable cause existed and
signed the request. The plaintiff was arraigned on Mon-
day, June 25, 2012.
Following his arraignment, the plaintiff retained the
services of the defendant, an attorney licensed to prac-
tice law in this state, who represented the plaintiff in
connection with the aforementioned criminal charges.
Plea negotiations with the state followed. The state
ultimately made an offer, pursuant to which the plaintiff
would enter a conditional plea of guilty to the charges
of breach of peace and disorderly conduct. The plea
offer further provided that, if the plaintiff complied with
the terms of a protective order issued by the court
and completed a family violence education program, all
charges would be vacated and dismissed. The defendant
encouraged the plaintiff to accept that conditional guilty
plea offer and, on August 30, 2012, the plaintiff so
pleaded before the court. The plaintiff thereafter com-
plied with the terms of the plea agreement and all
charges against him were dismissed.
On August 14, 2014, the plaintiff commenced the pre-
sent legal malpractice action, claiming that the defen-
dant failed to advise him that acceptance of the plea
offer would preclude him from instituting a malicious
prosecution action against the arresting officers.4 In his
answer, the defendant denied the substance of that
allegation. The defendant also raised the special
defenses of accord and satisfaction, waiver, laches, and
comparative negligence, all of which the plaintiff
denied.
The defendant filed a motion for summary judgment
on January 3, 2017, in which he argued that the plaintiff
could not establish the causation element of his legal
malpractice action. More specifically, the defendant
claimed that no genuine issue of material fact existed
as to whether the arresting officers possessed probable
cause to institute the underlying criminal action. The
defendant’s motion was accompanied by seventeen
exhibits, including copies of the police incident report
and Miriam’s signed statement to the police made on
the date of the incident, transcripts from the underlying
criminal proceedings, and deposition transcripts of vari-
ous individuals. In opposing that motion for summary
judgment, the plaintiff submitted only one exhibit—a
copy of the January 28, 2013 decision, issued following
an evidentiary hearing, of the administrative hearings
unit of the Department of Children and Families on the
issue of the plaintiff’s physical neglect of Jake.5
The court rendered summary judgment in favor of
the defendant on February 21, 2017. In its memorandum
of decision, the court stated in relevant part that the
plaintiff ‘‘would not have prevailed in any action alleging
. . . malicious prosecution . . . because he could not
prove want of probable cause . . . . Therefore, [the
plaintiff] would not have been able to prove that [the
defendant’s] failure to advise him of the consequences
of the plea agreement caused him harm when he lost his
right to recover in a civil litigation for . . . malicious
prosecution.’’ (Citations omitted.) From that judgment,
the plaintiff now appeals.
I
As a preliminary matter, we note the well established
standard that governs our review of the trial court’s
decision to grant summary judgment. ‘‘Practice Book
§ 17-49 provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits 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. In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . [T]he moving party . . . has the burden of
showing the absence of any genuine issue as to all
the material facts. . . . When documents submitted in
support of a motion for summary judgment fail to estab-
lish that there is no genuine issue of material fact, the
nonmoving party has no obligation to submit docu-
ments establishing the existence of such an issue. . . .
Once the moving party has met its burden, however,
the [nonmoving] party must present evidence that dem-
onstrates the existence of some disputed factual issue.
. . . Our review of the trial court’s decision to grant the
defendant’s motion for summary judgment is plenary.’’
(Citations omitted; internal quotation marks omitted.)
Lucenti v. Laviero, 327 Conn. 764, 772–73, 176 A.3d
1 (2018).
The present action is one sounding in legal malprac-
tice. As our Supreme Court has explained, ‘‘[i]n legal
malpractice actions, the plaintiff typically proves that
the defendant attorney’s professional negligence
caused injury to the plaintiff by presenting evidence of
what would have happened in the underlying action
had the defendant not been negligent. This traditional
method of presenting the merits of the underlying action
is often called the ‘case-within-a-case.’ ’’ Margolin v.
Kleban & Samor, P.C., 275 Conn. 765, 775 n.9, 882 A.2d
653 (2005). To prevail, ‘‘the plaintiff must prove that,
in the absence of the alleged breach of duty by [his]
attorney, the plaintiff would have prevailed [in] the
underlying cause of action and would have been entitled
to judgment.’’ (Internal quotation marks omitted.)
Bozelko v. Papastavros, 323 Conn. 275, 284, 147 A.3d
1023 (2016); see also Grimm v. Fox, 303 Conn. 322,
352, 33 A.3d 205 (2012) (Palmer, J., concurring) (‘‘[T]o
prevail on his claim against the defendants, the plaintiff
[must] prove not only that the defendants were negli-
gent in their handling of his [action], but also that [the
action] would have been successful if the defendants
had represented him competently. In the absence of
such proof, the plaintiff could not establish that his
alleged damages . . . were the result of the defen-
dants’ negligence . . . .’’). Accordingly, the plaintiff in
the present case bore the burden of establishing not
only negligence on the part of the defendant in apprising
him of the consequences of his guilty plea in the underly-
ing criminal proceeding, but also that he would have
prevailed in his malicious prosecution claim against the
arresting officers. We therefore focus our attention on
that cause of action.
‘‘Malicious prosecution is a tort arising out of a crimi-
nal complaint that is intended to protect an individual’s
interest in freedom from unjustifiable and unreasonable
litigation . . . .’’ (Internal quotation marks omitted.)
Lefebvre v. Zarka, 106 Conn. App. 30, 35, 940 A.2d 911
(2008). An essential element of that action is proof that
the defendant acted without probable cause; see Falls
Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281
Conn. 84, 94, 912 A.2d 1019 (2007); as ‘‘[t]he existence
of probable cause is an absolute protection against an
action for malicious prosecution . . . .’’ Brodrib v.
Doberstein, 107 Conn. 294, 296, 140 A. 483 (1928). Our
Supreme Court has defined probable cause in this con-
text as ‘‘the knowledge of facts sufficient to justify a
reasonable [person] in the belief that he has reasonable
grounds for prosecuting an action. . . . Mere conjec-
ture or suspicion is insufficient. . . . Moreover, belief
alone, no matter how sincere it may be, is not enough,
since it must be based on circumstances which make
it reasonable. . . . Although want of probable cause is
negative in character, the burden is [on] the plaintiff
to prove affirmatively, by circumstances or otherwise,
that the defendant had no reasonable ground for insti-
tuting the criminal proceeding.’’ (Citation omitted; inter-
nal quotation marks omitted.) Brooks v. Sweeney, 299
Conn. 196, 211, 9 A.3d 347 (2010). We agree with the
trial court that, even when construing the pleadings,
affidavits, and other proof submitted in a light most
favorable to him, the plaintiff cannot meet that burden
at trial.
As the Supreme Court has observed, ‘‘[i]t is clear
that [t]he general purpose of § 53-21 is to protect the
physical and psychological well-being of children from
the potentially harmful conduct of [others] . . . .’’
(Emphasis added; internal quotation marks omitted.)
State v. Nathan J., 294 Conn. 243, 251, 982 A.2d 1067
(2009). That statute ‘‘comprise[s] . . . two distinct
prongs, the situation prong and act prong . . . .’’ (Inter-
nal quotation marks omitted.) State v. Owens, 100 Conn.
App. 619, 635, 918 A.2d 1041, cert. denied, 282 Conn.
927, 926 A.2d 668 (2007). Section 53-21 (a) ‘‘prohibits
two different types of behavior: (1) deliberate indiffer-
ence to, acquiescence in, or the creation of situations
inimical to the [child’s] moral or physical welfare . . .
and (2) acts directly perpetrated on the person of the
[child] and injurious to his [or her] moral or physical
well-being.’’ (Emphasis in original; citations omitted;
internal quotation marks omitted.) State v. Robert H.,
273 Conn. 56, 65, 866 A.2d 1255 (2005). ‘‘Cases constru-
ing § 53-21 have emphasized this clear separation
between the two parts of the statute . . . .’’ (Internal
quotation marks omitted.) Id.
Under the situation prong, the state is not required
to prove that the child in question sustained an actual
injury. See State v. Gewily, 280 Conn. 660, 669, 911
A.2d 293 (2006) (‘‘actual injury is not an element of the
‘situation’ prong of § 53-21 [a] [1]’’), and cases cited
therein. With particular respect to the potential for harm
to the mental health of a child, ‘‘the fact finder is not
required to make a determination as to the precise
nature or severity of the injury . . . rather, the fact
finder need only decide whether the accused placed the
child in a situation that was likely to be psychologically
injurious to that child.’’ (Citation omitted; internal quo-
tation marks omitted.) Id. The pleadings, affidavits and
other proof submitted in the present case confirm that
no genuine issue of material fact exists as to whether
the arresting officers possessed probable cause to
believe that the plaintiff’s conduct on June 23, 2012,
placed both Jake and Abigail in such a situation.6
The police incident report, which was submitted as
an exhibit to the defendant’s motion for summary judg-
ment, indicates that when the arresting officers arrived
at the scene, they were ‘‘met at the door by Miriam and
[Abigail] and both were crying, shaking, and visibly
upset.’’ In his deposition testimony, which also was
submitted as an exhibit to the motion for summary
judgment, Officer Tyler stated that Miriam and Abigail
had ‘‘a hard time talking’’ and appeared ‘‘as if [they]
witnessed a horrible accident . . . .’’ Both Miriam and
Abigail had witnessed the plaintiff spanking his son
Jake, who was seven years old at the time, with a
folded belt.
Abigail described the spanking to officers as ‘‘very
disturbing,’’ stating that the plaintiff had ‘‘wound up his
arm and hit him hard, several times.’’ Miriam likewise
informed the officers that, after placing the boy over
his knee, the plaintiff hit him ‘‘hard several times. I
thought he was way out of line and I tried to stop it
but he pushed me hard [three] or [four] times in the
chest, until I fell on the bed.’’ The officers, at that time,
observed redness on the upper chest area of Miri-
am’s body.
In the written statement that she provided to the
police on the day of the incident, which was submitted
as an exhibit to the summary judgment motion, Miriam
indicated that Jake was ‘‘screaming’’ as the plaintiff
repeatedly struck him with the belt. She further stated:
‘‘I will not have my children subject to or witness to
violence. [The plaintiff] scared me and [Abigail]. There
has been [an] increase in underlying anxiety and anger
with [the plaintiff] and this was the worst he has ever
exhibited.’’ Abigail similarly reported to the officers that
the plaintiff ‘‘raises his voice all the time and we are
on edge all the time. He has never hit me but I fear he
would.’’ In making their probable cause determination,
the arresting officers properly could rely on the state-
ments made by Miriam and Abigail. See State v. Colon,
272 Conn. 106, 152 n.15, 864 A.2d 666 (2004) (‘‘the police
had probable cause to arrest the defendant as a result
of the statement of the victim’s sister’’ who witnessed
the crime), cert. denied, 546 U.S. 848, 126 S. Ct. 102,
163 L. Ed. 2d 116 (2005); see also Iocovello v. City of
New York, 701 Fed. Appx. 71, 72 (2d Cir. 2017) (‘‘[a]
police officer may rely on the statements of a putative
victim or witness to determine if probable cause exists
for an arrest, unless the officer is presented with a
reason to doubt the witness’ veracity’’).
As Tyler noted during his deposition, the plaintiff is
‘‘a big guy’’; the plaintiff acknowledged in his deposition
testimony, which also was before the court, that he was
6’3’’ tall and weighed approximately 235 pounds. The
police incident report also indicates that when the offi-
cers spoke with the plaintiff, he acknowledged striking
Jake with the belt and pushing Miriam onto the bed.
The plaintiff at that time cautioned: ‘‘Look, you or any
other [department] officer [are] not going to tell me
how to discipline my son. There is nothing wrong with
using a belt. Put this on [the] record, OK—I will use
the belt again and I will spank my son again.’’
The police incident report also notes that Tyler spoke
with Jake and asked him if he was okay. In response,
the boy began to cry and then stated, ‘‘[m]y butt really
hurts. It hurts sitting here.’’
‘‘Probable cause is the knowledge of facts sufficient
to justify a reasonable person in the belief that there
are reasonable grounds for prosecuting an action.’’ Falls
Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,
supra, 281 Conn. 94. ‘‘[T]he probable cause determina-
tion is, simply, an analysis of probabilities. . . . The
determination is not a technical one, but is informed
by the factual and practical considerations of everyday
life on which reasonable and prudent [persons], not
legal technicians, act.’’ (Internal quotation marks omit-
ted.) State v. Brown, 279 Conn. 493, 523, 903 A.2d 169
(2006). For that reason, probable cause ‘‘is a flexible
common sense standard that does not require the police
officer’s belief to be correct or more likely true than
false. . . . [W]hile probable cause requires more than
mere suspicion . . . the line between mere suspicion
and probable cause necessarily must be drawn by an
act of judgment formed in light of the particular situa-
tion and with account taken of all the circumstances.
. . . The existence of probable cause does not turn on
whether the defendant could have been convicted on
the same available evidence.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Washington v. Blackmore, 119 Conn. App. 218, 221–22,
986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d
1104 (2010). In the context of the motion for summary
judgment filed by the defendant in the present case,
the critical question is whether the plaintiff can demon-
strate that the officers had no objectively reasonable
basis to believe that an offense has been committed.
The documentation submitted in connection with
that motion convinces us that no genuine issue of mate-
rial fact exists as to whether the arresting officers pos-
sessed an objectively reasonable basis to believe that
the plaintiff’s conduct on June 23, 2012, placed both
Jake and Abigail in a situation that was likely to be
psychologically injurious to them. Abigail watched as
the plaintiff wound up his arm and then struck Jake
with the belt several times, which reduced her to tears
and left her shaking and visibly upset when officers
arrived at the residence soon thereafter. Abigail, at that
time, described the incident as ‘‘very disturbing’’ and
informed officers that she was fearful that the plaintiff
would hit her in the future. Seven year old Jake not
only bore the brunt of the plaintiff’s blows with the
belt, but also watched the plaintiff shove his mother to
the bed when she attempted to intervene on his behalf.
When the officers spoke with Jake and asked if he was
okay, the boy began to cry and then confessed that his
‘‘butt really hurts,’’ so much so that it pained him to be
seated. In her written statement, Miriam informed the
officers that Jake was screaming as the plaintiff struck
him and that the plaintiff’s behavior had frightened Abi-
gail. Miriam also indicated in that statement that she
‘‘will not have my children subject to or witness to
violence.’’ Furthermore, the officers in the present case
were summoned to the residence by a 911 call that
included a report of domestic violence,7 and the plaintiff
thereafter responded to the officer’s questions in a defi-
ant manner, insisting that they could not ‘‘tell [him]
how to discipline [his] son’’ and imploring them to ‘‘[p]ut
this on the record . . . I will use the belt again and I
will spank my son again.’’
Viewing the record before us in a light most favorable
to the plaintiff, we conclude that the plaintiff has not
demonstrated the existence of a genuine issue of mate-
rial fact as to whether, on the totality of the circum-
stances and the facts known to them at the time, the
arresting officers lacked an objectively reasonable basis
to believe that he had violated the situational prong of
§ 53-21 (a). The plaintiff, therefore, cannot establish the
probable cause element of an action for malicious pros-
ecution.
II
The plaintiff nonetheless argues that the arresting
officers lacked probable cause in light of the protection
afforded parents under General Statutes § 53a-18 (1).
That statute provides in relevant part that ‘‘[t]he use
of physical force upon another person which would
otherwise constitute an offense is justifiable and not
criminal under any of the following circumstances . . .
(1) A parent, guardian or other person entrusted with
the care and supervision of a minor . . . may use rea-
sonable physical force upon such minor . . . when and
to the extent that he reasonably believes such to be
necessary to maintain discipline or to promote the wel-
fare of such minor or incompetent person. . . .’’
It is well established that § 53a-18 (1) functions as a
defense under our law. Commonly known as ‘‘the paren-
tal justification defense’’; State v. Nathan J., supra, 294
Conn. 253; § 53a-18 (1) operates as a ‘‘shield’’ in certain
circumstances in recognition of ‘‘the parental right to
punish children for their own welfare.’’ State v. Leavitt,
8 Conn. App. 517, 522, 513 A.2d 744, cert. denied, 201
Conn. 810, 516 A.2d 886 (1986). The statute ‘‘enumerates
circumstances in which physical force, which would
otherwise constitute an offense, is justifiable and thus
not criminal.’’ State v. Nathan J., supra, 253. As our
Supreme Court has explained: ‘‘The parental justifica-
tion defense . . . provides that [physical] force is not
criminal, as long as it is reasonable, when directed by
a parent, or someone standing in loco parentis, against
a child for disciplinary purposes. If the force is unrea-
sonable . . . however, the parental justification
[defense] does not apply and the force may constitute
risk of injury.’’ Id., 260.
Significantly, the ultimate determination of whether
the particular conduct of a parent is reasonable, and
thus entitled to the protection of § 53a-18 (1), ‘‘is a
factual determination to be made by the trier of fact.’’
State v. Brocuglio, 56 Conn. App. 514, 518, 744 A.2d
448, cert. denied, 252 Conn. 950, 748 A.2d 874 (2000);
State v. Leavitt, supra, 8 Conn. App. 522. Because ‘‘the
defense only applies to ‘reasonable physical force’ to
the extent ‘reasonably . . . necessary to maintain dis-
cipline or to promote the welfare’ of the child’’; State
v. Nathan J., supra, 294 Conn. 255 (emphasis in origi-
nal); the factual question of reasonableness cannot be
determined by the arresting officers or the prosecutor
in a given case, but rather remains exclusively the
domain of the trier of fact. Id., 259.
Indeed, the arresting officers in the present case per-
formed a preliminary, and fundamentally distinct, func-
tion—namely, the determination of whether the facts
then known were sufficient to justify a reasonable per-
son to believe that reasonable grounds for prosecuting
an action existed. See Falls Church Group, Ltd. v. Tyler,
Cooper & Alcorn, LLP, supra, 281 Conn. 94. For that
reason, our Supreme Court has recognized that ‘‘[t]he
existence of probable cause does not turn on whether
the defendant could have been convicted on the same
available evidence’’; State v. Trine, 236 Conn. 216, 237,
673 A.2d 1098 (1996); particularly because ‘‘proof of
probable cause requires less than proof by a preponder-
ance of the evidence.’’ State v. Munoz, 233 Conn. 106,
135, 659 A.2d 683 (1995). As the United States Court of
Appeals for the Second Circuit has noted, ‘‘[i]t would
be unreasonable and impractical to require that every
innocent explanation for activity that suggests criminal
behavior be proved wrong, or even contradicted, before
an arrest warrant could be issued with impunity. . . .
It is up to the factfinder to determine whether a defen-
dant’s story holds water, not the arresting officer. . . .
Once officers possess facts sufficient to establish proba-
ble cause, they are neither required nor allowed to sit as
prosecutor, judge or jury. Their function is to apprehend
those suspected of wrongdoing, and not to finally deter-
mine guilt through a weighing of the evidence.’’ (Cita-
tions omitted.) Krause v. Bennett, 887 F.2d 362, 372
(2d Cir. 1989).
Had the plaintiff elected to proceed to trial in the
underlying criminal proceeding, the finder of fact ulti-
mately may have found his conduct on June 23, 2012,
to be reasonable, and thus subject to the protection of
the parental justification defense contained in § 53-18
(1). That defense has little bearing, however, on the
preliminary determination of probable cause made by
the arresting officers who responded to the 911 call in
the present case.
III
Also misplaced is the plaintiff’s reliance on this
court’s decision in Lovan C. v. Dept. of Children &
Families, 86 Conn. App. 290, 860 A.2d 1283 (2004).
Unlike the present case, which involves a probable
cause determination made soon after the incident in
question, Lovan C. involved a decision of the adminis-
trative hearings unit of the Department of Children and
Families substantiating an allegation of physical abuse
by a parent who had engaged in corporal punishment of
her child. Id., 292–93. In concluding that ‘‘substantiation
must be reversed for lack of substantial evidence that
the plaintiff’s discipline was unreasonable’’; id., 301; this
court emphasized that the hearing officer improperly
‘‘failed to hold a hearing regarding the reasonableness
of the plaintiff’s discipline of the child before substanti-
ating the allegation of physical abuse.’’ Id., 297. In such
proceedings, the hearing officer of the administrative
hearings unit of the Department of Children and Fami-
lies is the finder of fact that makes that reasonableness
determination as part of its final decision following a
hearing. See id., 299–300; State v. Nathan J., supra, 294
Conn. 259. We reiterate that, in the present case, the
arresting officers were not the finders of fact tasked
with making a final determination as to the reasonable-
ness of the plaintiff’s conduct after an evidentiary pro-
ceeding. Lovan C., therefore, is inapposite to the
present case.
IV
As a final matter, we note that the plaintiff also argues
that summary judgment was inappropriate because the
arresting officers allegedly ‘‘fabricated the claim [in the
police incident report] that he had left red welts on his
son’s backside . . . .’’8 That contention is unavailing.
In its memorandum of decision, the trial court acknowl-
edged that, although the record contained documenta-
tion substantiating the existence of such marks,9 the
plaintiff disputed their existence. The court neverthe-
less found that the ‘‘differences in the various accounts
[as to whether the marks existed] are not material’’ to
the question of whether the arresting officers possessed
probable cause to charge the plaintiff with risk of injury
to a child. We concur. Actual physical injury is not a
prerequisite to a conviction under the situation prong
of § 53-21. State v. Gewily, supra, 280 Conn. 669. In
reviewing the defendant’s motion for summary judg-
ment, we view the pleadings, affidavits and other proof
submitted in a light most favorable to the plaintiff, and,
therefore, have not considered the presence of red welts
or bruising on Jake’s buttocks in our analysis of whether
the arresting officers possessed probable cause. Even
discounting such evidence, we nonetheless are con-
vinced that no genuine issue of material fact exists as to
whether the arresting officers possessed an objectively
reasonable basis to believe that the plaintiff, through
his conduct on June 23, 2012, placed both Jake and
Abigail in a situation that was likely to be injurious to
their mental health and well-being in violation of § 53-
21 (a) (1). Because the existence of probable cause is
an absolute protection against an action for malicious
prosecution; Bhatia v. Debek, 287 Conn. 397, 411, 948
A.2d 1009 (2008); the plaintiff cannot demonstrate, as
he must, that he would have been entitled to judgment
in a malicious prosecution action against the arresting
officers but for the defendant’s professional negligence.
See Bozelko v. Papastavros, supra, 323 Conn. 284. The
plaintiff therefore cannot prevail on his legal malprac-
tice claim against the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the plaintiff’s former spouse is identified as Miriam Edelson
in certain documents in the record before us. For convenience, we refer to
her as Miriam in this opinion.
2
The police incident report indicates that Jake was seven years old and
Abigail was fifteen years old on June 23, 2012.
3
At oral argument before this court, the plaintiff’s counsel confirmed that
this appeal pertains only to the risk of injury charge.
4
Although his complaint also alleged an impairment of his ability to pursue
an action for false arrest, the plaintiff has pursued no such claim in this
case. For example, in his memorandum of law in opposition to the defen-
dant’s motion for summary judgment, the plaintiff acknowledged that Judge
Bellis had made a finding that probable cause existed at the time of his
arrest. The plaintiff nonetheless stated: ‘‘While that finding might be relevant
if the plaintiff were suing for false arrest, it is meaningless in an action for
malicious prosecution . . . .’’ The plaintiff likewise has advanced no claim
on appeal regarding an action for false arrest, and instead has focused
entirely on the impairment of his ability to pursue a malicious prosecution
action. In his appellate brief, the plaintiff notes that he ‘‘had informed [the
defendant] of his desire to sue . . . for malicious prosecution’’ and there-
after discusses certain legal principles related thereto. He has not provided
any citation to, or discussion of, legal authority regarding actions for false
arrest. See Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 124,
956 A.2d 1145 (2008). Accordingly, we confine our review to the plaintiff’s
claims regarding the impairment of his ability to initiate a malicious prosecu-
tion action.
We further note that the plaintiff, in his complaint, averred that he had
‘‘explained to the defendant from the outset that . . . he wished not only
to be vindicated of the said allegations [in the underlying criminal proceed-
ing] but to sue the person who had accused him, and the arresting officers
. . . .’’ (Emphasis added.) In his appellate brief, the plaintiff reiterated that
he had informed the defendant ‘‘of his desire to sue the arresting officers
and [Miriam] for malicious prosecution.’’ At oral argument before this court,
the plaintiff’s counsel abandoned any such claim with respect to Miriam,
conceding that it was not a ‘‘viable lawsuit’’ and stating that the plaintiff
was not pursuing a claim against Miriam. The present appeal, therefore,
concerns the viability of a malicious prosecution action against the
arresting officers.
5
Although it reversed an earlier substantiation of physical neglect, that
administrative decision also noted that the June 23, 2012 incident ‘‘was no
doubt an ugly scene, and one which likely will have a lasting impact on the
family.’’ It also noted that, when the police arrived at the residence that
day, the plaintiff ‘‘became flippant and belligerent with the responding offi-
cers. His behavior appeared erratic at that time.’’ The plaintiff’s belligerent
behavior toward law enforcement responding to a 911 call also is docu-
mented in the police incident report, which provides necessary context for
the probable cause determination made by the arresting officers.
6
During his deposition testimony, Officer Tyler indicated that the risk of
injury charge was premised on the ‘‘dangerous situation’’ created by the
plaintiff’s conduct.
7
The police incident report states in relevant part that Miriam ‘‘called 911
to report that her husband . . . is beating [their] seven year old son . . .
with a belt.’’
8
The police incident report states in relevant part that Miriam and Sergeant
Edward Weihe ‘‘inspected Jake’s buttocks and they were cherry red, with
welts. . . .’’ In his deposition, the plaintiff testified: ‘‘I don’t believe there
[were] any marks [on Jake’s body]. I don’t see how there could have been.
. . . [T]here wasn’t any marks . . . the police lied, lied, and . . . there
were no marks on Jake, on Jake’s butt.’’ In his appellate brief, the plaintiff
alleges that the arresting officers ‘‘lied about the alleged ‘red welts’ ’’ in the
police incident report.
9
In her deposition testimony, which was submitted in support of the
defendant’s motion for summary judgment, Miriam stated that she inspected
Jake’s buttocks soon after the incident and observed red marks on his
buttocks. Miriam further testified that she observed ‘‘black and blue marks’’
on her son’s body a day or two after the incident transpired. In response,
she took him to department headquarters, where an officer took photographs
of his body. Three photographs depicting bruising on Jake’s buttocks were
submitted to the court in support of the defendant’s motion for summary
judgment, and are contained in the record before us.