Edgerton v. Clinton

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ADELE P. EDGERTON, SUCCESSOR CONSERVATOR
(ESTATE OF WALKER HOPKINS) v. TOWN
OF CLINTON ET AL.
(SC 19095)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued September 26, 2013—officially released March 18, 2014
Aaron S. Bayer, with whom were Julie Loughran and
Lawrence A. Ouellette, Jr., and, on the brief, Michael P.
Thompson, for the appellant (named defendant).
Steven D. Ecker, with whom were M. Caitlin S.
Anderson, and, on the brief, Gavan F. Meehan, for the
appellee (substitute plaintiff).
Opinion
ZARELLA, J. The principal issue in this appeal is
whether the named defendant, the town of Clinton
(town),1 is shielded from liability under the doctrine of
governmental immunity because it would not have been
apparent to Ellen Vece, a 911 dispatcher employed by
the town, that her acts or omissions would have been
likely to subject Walker Hopkins to imminent harm.
Hopkins’ injuries occurred as a result of the second of
two vehicle collisions on August 5, 2005, in Clinton.
First, at approximately 9:15 p.m., a dark red Infiniti
driven by William Cardillo struck the side of a vehicle
driven by Matthew Vincent, a volunteer firefighter and
security guard at Clinton Crossing Premium Outlets
(Clinton Crossing). Vincent pursued the Infiniti in his
vehicle with blue courtesy lights flashing for nearly
three miles at forty to fifty miles per hour over winding,
residential roads. The Infiniti eventually crashed into a
tree, and Hopkins, a passenger in the Infiniti, suffered
severe injuries. During the course of the pursuit, Vincent
calmly relayed information about the Infiniti and its
location to Vece2 via cell phone. Vincent did not inform
Vece that he was driving in excess of the speed limit
or that he had engaged his blue courtesy lights.
The substitute plaintiff, Adele P. Edgerton, successor
conservator of Hopkins’ estate (plaintiff),3 claimed,
inter alia, that the town was liable for Hopkins’ injuries
under General Statutes § 52-557n (a) (1) (A).4 At trial,
the jury found the town liable under the identifiable
person-imminent harm exception to governmental
immunity because the circumstances would have made
it apparent to Vece that her failure to act would have
been likely to subject an identifiable person to imminent
harm. The jury further found that Vece’s failure to act
was a proximate cause of Hopkins’ injuries. As a result,
the jury attributed 90 percent of the negligence to Vece
and ultimately awarded the plaintiff $12,713,612.97 in
damages.5 On appeal, the town claims that it should
not be held liable under the identifiable person-immi-
nent harm exception to the doctrine of governmental
immunity because the circumstances would not have
made it apparent to Vece that her failure to instruct
Vincent to stop following the Infiniti likely would have
subjected Hopkins to imminent harm. The town further
argues that, even if the exception does apply, Vece’s
failure to act was not a proximate cause of Hopkins’
injuries. The plaintiff counters that the identifiable per-
son-imminent harm exception does apply and that
Vece’s failure to act was a proximate cause of Hopkins’
injuries. We agree with the town and, accordingly,
reverse the judgment of the trial court with respect to
the town.
The jury reasonably could have found the following
relevant facts. On August 5, 2005, Hopkins was a passen-
ger6 in the dark red Infiniti, which was driven by Car-
dillo. At approximately 9:15 p.m., Cardillo was slowly
making a left hand turn at the intersection of Route 81
and Glenwood Road in Clinton when his vehicle
swerved and hit the rear left quarter panel of Vincent’s
car. After this initial collision, Vincent stopped, but
Cardillo proceeded to drive away on Glenwood Road
at approximately twenty miles per hour. Vincent then
continued on Glenwood Road, pursuing the Infiniti at
approximately forty to fifty miles per hour. The route
consisted of winding, narrow, residential roads with
speed limits of twenty-five or thirty miles per hour. This
pursuit lasted for nearly three miles.
At some point during the pursuit, Vincent turned on
blue courtesy lights, with which his car was equipped
because he was a volunteer firefighter. Blue courtesy
lights, which are similar to police lights, are intended
to be used when a volunteer firefighter is responding
to a fire or a medical emergency. An eyewitness stated
that, at one point during the pursuit, Vincent’s vehicle
and the Infiniti were less than two feet apart and Vin-
cent’s vehicle had its ‘‘hazards on or flashers on . . . .’’
After Vincent had been following the Infiniti for
between four and five minutes, the Infiniti collided with
a tree and caught on fire. As a result of this second
collision, Hopkins sustained serious injuries, including
a closed head injury and traumatic brain injury. Follow-
ing their arrival at the accident scene, the police issued
Vincent a citation for the improper use of his blue cour-
tesy lights.
While Vincent was following the Infiniti, he relayed
information regarding the Infiniti and its location to
Vece via cell phone. Vincent initially called 911 when
he realized that Cardillo was not going to stop after the
initial collision occurred. Vincent and Vece knew each
other well and had communicated more than 100 times
about security issues at Clinton Crossing. During the
911 call, Vincent’s tone was calm and collected. When
Vece answered the call and asked if it was an emer-
gency, Vincent calmly responded: ‘‘Yes, it is.’’ He
informed her that he ‘‘just got hit by a motor vehicle’’
and that the vehicle ‘‘took off . . . .’’ He also told Vece
that he was ‘‘trying to catch up to [the vehicle] to get
[the license] plate [number].’’ When Vece asked where
Vincent was, he continuously provided her with infor-
mation on his location and the location of the Infiniti.
Approximately thirty-six seconds into the 911 call, Vin-
cent provided Vece with the license plate number of
the Infiniti. After another few minutes, Vincent gave
Vece a more detailed description of the Infiniti, includ-
ing its model name and color. Importantly, the audio
recording of the 911 call revealed that there were no
outside noises to indicate that Vincent was driving at
an excessive rate of speed. Moreover, there was nothing
in the conversation between Vincent and Vece during
the 911 call to indicate that Vincent had been using his
blue courtesy lights while he was following the Infiniti.
Approximately three minutes into the 911 call, Vin-
cent informed Vece that the Infiniti had ‘‘just taken off
and [was] going at a high rate of speed . . . [u]p Iron-
works [Road].’’ Vincent then said that he did not ‘‘know
how fast [he] want[ed] [to go] to try to catch up to [the
Infiniti].’’ Vece replied that the police ‘‘[knew] who it
[was].’’ At trial, Vece explained that there was no reason
for Vincent to continue following the Infiniti at that
point because the police were aware of the identity of
the driver of the Infiniti. Approximately ten seconds
later, Vincent exclaimed that Cardillo ‘‘just wrecked it’’
by ‘‘roll[ing] the car’’ and that ‘‘[t]he car [was] on fire.’’7
Hopkins required permanent care as a result of his
injuries, and an action was filed on his behalf on May
16, 2006, against the town, among others, pursuant to
§ 52-557n (a) (1) (A). The town responded that the
action was barred by the common-law doctrine of gov-
ernmental immunity and § 52-557n (a) (2).8 The plaintiff
filed an amended complaint on March 18, 2010. The
town and the defendant Clinton Volunteer Fire Depart-
ment (fire department) moved for summary judgment
on March 29, 2010, which the trial court denied.
The jury found in favor of the plaintiff on January
25, 2011. Specifically, the jury found that (1) Vece was
negligent and that her negligence was a proximate cause
of Hopkins’ injuries, (2) an exception to governmental
immunity applied because the circumstances would
have made it apparent to Vece that her failure to act
would have been likely to subject an identifiable person
to imminent harm, (3) Hopkins was not negligent and
did not cause his own injuries, (4) Vincent was negligent
and that his negligence was a proximate cause of Hop-
kins’ injuries, and (5) Cardillo was negligent and that
his negligence was a proximate cause of Hopkins’ injur-
ies. The jury apportioned 90 percent of the negligence
to Vece, 5 percent to Vincent, and 5 percent to Cardillo.
On March 11, 2011, the town filed a motion for remitti-
tur or for a new trial, and a motion for a directed verdict,
for judgment notwithstanding the verdict, or to set aside
the verdict. The town claimed, inter alia, that (1) the
plaintiff’s claim was barred by the doctrine of govern-
mental immunity because the evidence did not support
the application of the identifiable person-imminent
harm exception, and (2) the evidence failed to establish
that Vece’s acts or omissions were the actual or proxi-
mate cause of Hopkins’ injuries. The town further
argued that the jury’s determination that Vece was 90
percent responsible for Hopkins’ injuries ‘‘so shock[ed]
the conscience that the jury clearly was influenced by
sympathy, prejudice, mistake or partiality.’’ On July 22,
2011, the trial court denied the motions and rendered
judgment in accordance with the jury verdict. The town
filed a motion to reargue, which the trial court denied.
The town appealed to the Appellate Court from the trial
court’s judgment on August 5, 2011.
The trial court issued an articulation on January 6,
2012. In this articulation, the trial court stated that the
identifiable person-imminent harm exception to the
governmental immunity doctrine applied because Vece
already knew the license plate number of the Infiniti,
the pursuit was of a limited duration, the parties were
in a specific geographic location, and there were only
a small number of people involved. The trial court thus
concluded that the circumstances would have made it
apparent to Vece that her failure to instruct Vincent
to stop the pursuit would have been likely to subject
Hopkins to imminent harm. The trial court further
stated that the plaintiff had adduced sufficient evidence
to establish that Vece’s negligence was the proximate
cause of Hopkins’ injuries. On that same date, the town
filed with this court a motion to transfer the appeal from
the Appellate Court to this court, which we granted on
January 15, 2013.
On appeal, the town claims that the identifiable per-
son-imminent harm exception does not apply in the
present case and thus it is shielded from liability under
the doctrine of governmental immunity. Although the
town does not contest the identifiable person or immi-
nent harm requirements of the exception, the town
argues that a jury reasonably could not have found that
the circumstances would have made it apparent to Vece
that her failure to act would have been likely to subject
Hopkins to imminent harm. The town argues that the
only facts relevant to a determination of apparentness
are what Vece knew at the time of the 911 call. The
town further claims that the plaintiff did not submit
enough evidence for the jury reasonably to find that
Vece’s failure to act was the proximate cause of Hop-
kins’ injuries. The plaintiff counters that the identifiable
person-imminent harm exception to governmental
immunity applies in the present case because circum-
stances would have made the risk of imminent harm
to Hopkins apparent to Vece. The plaintiff also argues
that the jury properly found that Vece’s failure to act
was the proximate cause of Hopkins’ injuries. We agree
with the town.
We begin our analysis with the applicable standard
of review. ‘‘The defendant must overcome a high thresh-
old to prevail on either a motion for a directed verdict
or a motion to set aside a [verdict]. Directed verdicts
are not favored. . . . A trial court should direct a ver-
dict only when a jury could not reasonably and legally
have reached any other conclusion. . . . In reviewing
the trial court’s decision to direct a verdict in favor of
a defendant we must consider the evidence in the light
most favorable to the plaintiff.’’ (Internal quotation
marks omitted.) Hicks v. State, 287 Conn. 421, 432, 948
A.2d 982 (2008).
The present case requires us to determine whether
the town is immune from liability under the doctrine
of governmental immunity. ‘‘[T]he ultimate determina-
tion 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] resolution of those factual
issues is properly left to the jury.’’9 (Internal quotation
marks omitted.) Purzycki v. Fairfield, 244 Conn. 101,
107–108, 708 A.2d 937 (1998). We therefore exercise
plenary review over the issue of whether the identifiable
person-imminent harm exception to governmental
immunity applies.10 See, e.g., Fleming v. Bridgeport,
284 Conn. 502, 532–33, 935 A.2d 126 (2007).
‘‘[Section] 52-557n abandons the common-law princi-
ple of municipal sovereign immunity and establishes
the circumstances in which a municipality may be liable
for damages.’’11 (Footnote omitted.) Doe v. Petersen,
279 Conn. 607, 614, 903 A.2d 191 (2006). ‘‘One such
circumstance is a negligent act or omission of a munici-
pal officer acting within the scope of his or her employ-
ment or official duties. . . . [Section] 52-557n (a) (2)
(B), however, explicitly shields a municipality from lia-
bility 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.’’12 (Cita-
tion omitted; internal quotation marks omitted.) Id.
Affording immunity to municipal officers performing
discretionary acts serves the policy goal of avoiding
‘‘expansive exposure to liability,’’ which ‘‘would cramp
the exercise of official discretion beyond the limits
desirable in our society.’’ (Internal quotation marks
omitted.) Id. ‘‘Discretionary 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, out-
weighs the benefits to be had from imposing liability
for that injury. . . . 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. . . . This is because society has
no analogous interest in permitting municipal officers
to exercise judgment in the performance of ministerial
acts.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 615.
This court has recognized an exception to discretion-
ary act immunity that allows for liability 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 . . . .’’13 (Internal
quotation marks omitted.) Id., 616. This identifiable per-
son-imminent harm exception has three requirements:
‘‘(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 that harm.’’
Id. All three must be proven in order for the exception
to apply. See id., 620.
The plaintiff and the town agree that the only require-
ment at issue in the present case is whether it would
have been apparent to Vece that her failure to act would
have subjected an identifiable person to imminent
harm. In order to meet the apparentness requirement,
the plaintiff must show that the circumstances would
have made the government agent aware that his or her
acts or omissions would likely have subjected the victim
to imminent harm. See id., 618–20. This is an objective
test pursuant to which we consider the information
available to the government agent at the time of her
discretionary act or omission.14 See id., 620; see also
Fleming v. Bridgeport, supra, 284 Conn. 534–35 (gov-
ernment officials were not apprised of ‘‘the most critical
piece of information that would have made it apparent
that the plaintiff would have been subject to the alleged
imminent harm’’). We do not consider what the govern-
ment agent could have discovered after engaging in
additional inquiry. See Doe v. Petersen, supra, 279 Conn.
616–17, 619–20 n.11; Fleming v. Bridgeport, supra, 535.
Imposing such a requirement on government officials
would run counter to ‘‘the policy goal underlying all
discretionary act immunity, that is, ‘keeping public offi-
cials unafraid’ to exercise judgment.’’15 Doe v. Petersen,
supra, 616. ‘‘It surely would ill serve this goal to expose
a public official to liability for his or her failure to
respond adequately to a harm that was not apparent to
him or her.’’ (Emphasis in original.) Id., 616–17.
In Doe, the plaintiff, Jane Doe, alleged that she was
sexually assaulted when she was fifteen years old by
an instructor in a tennis program offered by the town of
Wethersfield. Id., 609–10. The assault allegedly occurred
when the instructor offered to drive Doe home after
the program was cancelled due to a thunderstorm. Id.
A few days after the assault, Doe approached the
instructor’s supervisor to speak with him about the
incident. Id., 610. Specifically, Doe testified: ‘‘I told [the
supervisor] that I needed to talk to him about something
that had happened a couple [of] nights earlier between
me and . . . [the instructor]. And [the supervisor]
stopped and he said okay. Was this during tennis, some-
thing to that effect. And I said actually, no, the night
of the big storm, they closed the park and he offered
me a ride home, only he didn’t take me home. And I
don’t think I got much past that, just my anxiety level,
he immediately started, you know—he immediately
made me feel that he was very nervous with what I was
trying to say. And he said, [h]old on a second, hold on
a second, this is something the two of you [have] got
to work out. It’s obviously a misunderstanding. I’m not
going to get involved. Work it out.’’ (Internal quotation
marks omitted.) Id. Doe brought an action against the
town of Wethersfield for carelessness and negligence,
and against the instructor for assault, negligent inflic-
tion of emotional distress, and intentional infliction of
emotional distress. Id., 610–11. The town of Wethers-
field filed a motion for summary judgment on the
ground that Doe’s claims against it were barred by gov-
ernmental immunity. Id., 611.
We agreed, reasoning that the supervisor ‘‘had no
knowledge of the assault, and [Doe] did not apprise
him of it.’’ Id., 619. Therefore, it could not have been
‘‘apparent’’ to the supervisor that his acts or omissions
would have been likely to subject Doe to a risk of harm.
Id., 620. Doe argued that she was unable to inform the
supervisor of what had occurred because the supervisor
‘‘cut [her] off from any further explanation . . . .’’
(Internal quotation marks omitted.) Id., 619 n.11. None-
theless, we concluded that, even if this allegation were
true, our analysis would not change because the super-
visor ‘‘still would have [had] no knowledge of the
assault, and the record [did] not reflect any other possi-
ble basis on which to conclude that the risk of ‘terror
and long term psychological injury’ to [Doe] would have
been apparent to [the supervisor].’’16 Id., 619–20 n.11.
We thus decided that the supervisor’s conduct did not
fall within the purview of the identifiable person-immi-
nent harm exception to discretionary act immunity.
Id., 620.
Similarly, in Fleming, this court concluded that the
identifiable person-imminent harm exception to govern-
mental immunity did not apply. See Fleming v. Bridge-
port, supra, 284 Conn. 535. In that case, the plaintiff,
Sylvia Fleming, was in actual possession of an apart-
ment but did not inform the police officers, who were
called to remove her, of her status as a resident. See
id., 534–35. The court specifically determined that the
police officers who removed Fleming despite her status
as a resident were entitled to governmental immunity
because the risk of harm to Fleming was not apparent
to them. See id., 535. Although the court acknowledged
that the police officers ‘‘might have asked more perti-
nent questions of [Fleming] to ascertain her status as
a resident,’’ it did not consider what the officers could
have discovered. Id. Rather, the court considered the
evidence available to the officers at the time of their
discretionary act in determining that their duty to act
was not ‘‘clear and unequivocal . . . .’’ (Internal quota-
tion marks omitted.) Id.
As the court did in Doe and Fleming, we examine
the record in the present case to determine if there is
any possible basis on which to conclude that it would
have been apparent to Vece that her actions likely would
have subjected Hopkins to imminent harm. The only
possible basis on which Vece could have become aware
of such harm was through her conversation with Vin-
cent during the 911 call. During that conversation, how-
ever, Vincent was calm, collected, and rational, his voice
was ‘‘level and steady,’’ and he did not ‘‘sound excited
. . . .’’17 There were no background noises in the form
of squealing tires or gusting winds to indicate high
speeds on winding roads. There was therefore nothing
in the first four minutes of the 911 call to alert Vece
that Vincent was speeding or driving aggressively.18 Fur-
thermore, Vece would not have known that Vincent was
improperly using his blue courtesy lights, as there is
nothing in the audio recording of the 911 call to alert
her to this fact.19
In addition, although Vece never specifically asked
Vincent whether he was exceeding the speed limit, she
was not required to do so under our decisions in Doe
and Fleming. In Doe, the supervisor could have asked
Doe more questions when she began to confide in him.
See Doe v. Petersen, supra, 279 Conn. 619–20 n.11. Simi-
larly, the police officers in Fleming could have asked
Fleming whether she resided in the apartment. See
Fleming v. Bridgeport, supra, 284 Conn. 534–35. None-
theless, we did not require that the government officials
in either case engage in further inquiry beyond the infor-
mation available to them at the time of their discretion-
ary acts or omissions. Just as the supervisor in Doe
‘‘never became aware’’ of the assault, Vece never
became aware that Vincent was driving at an excessive
rate of speed or improperly using his blue courtesy
lights, and, therefore, ‘‘it could not have been apparent
to [Vece]’’ that her response to Vincent or lack thereof
likely would have subjected the occupants of the Infin-
iti, including Hopkins, to imminent harm.20 Doe v. Pet-
ersen, supra, 620.
The plaintiff argues that we should consider more
than just the audio recording and transcript of the 911
call in evaluating whether the apparentness require-
ment was satisfied because Vece’s knowledge went
beyond what she heard during her conversation with
Vincent. Vece’s knowledge, the plaintiff contends,
includes the geography and layout of the town roads.
The plaintiff further claims that this knowledge of the
town’s geography would have made it apparent to Vece
that Cardillo was making a lot of turns with the Infiniti
and, therefore, that a dangerous pursuit was occurring.
Vece’s knowledge of the roads, in and of itself, is not
probative, however. Although Vece may have known
that the roads were winding and unilluminated, the
speed limit was put in place to foster a safe mode of
travel and, thus, Vece would have had little cause for
concern if Vincent and Cardillo had been driving at or
below the speed limit.21
Similarly, the plaintiff contends that the risk of harm
to Hopkins was apparent to Vece because she knew
the location of the vehicles at various points of the
pursuit and therefore would have been able to deter-
mine that the drivers were speeding by comparing the
elapsed time during the 911 call to the progress of the
vehicles during the pursuit.22 This is precisely the type
of analysis that the court rejected in Doe. Although the
supervisor in Doe knew that the instructor had offered
Doe a ride in the instructor’s car but had not taken her
home, because the supervisor ‘‘never became aware of
the alleged assault, it could not have been apparent to
[the supervisor] that his response to [Doe’s] concerns
would have been likely to subject her to a risk of harm.’’
Id. Similarly, although Vece knew the location of the
vehicles at various points, she never became aware that
a dangerous pursuit was occurring, and, therefore, the
risk of harm to Hopkins could not have been apparent
to her. Furthermore, to require Vece to analyze the
route that Vincent and Cardillo were taking and to calcu-
late how much time it would have taken them to travel
from one point on that route to another while obeying
the speed limit would place a significant burden on
her duties as a 911 dispatcher, which include assessing
information as quickly as possible and relaying that
information to responding emergency personnel.
Although we agree that a court may consider a gov-
ernment official’s position and accompanying back-
ground knowledge, Vece’s knowledge regarding the
inherent dangers of vehicular pursuits also is not out-
come determinative. If Vincent was indeed engaging in
a ‘‘pursuit,’’ as defined by the legislature in the context
of police chases,23 Vece could not have become aware
of this fact from their conversation during the 911 call.
The legislature has defined a police ‘‘pursuit’’ as ‘‘an
attempt by a police officer in an authorized emergency
vehicle to apprehend any occupant of another moving
motor vehicle, when the driver of the fleeing vehicle is
attempting to avoid apprehension by maintaining or
increasing the speed of such vehicle or by ignoring the
police officer’s attempt to stop such vehicle.’’ (Empha-
sis added.) General Statutes § 14-283a (a). Importantly,
the object of a pursuit is to apprehend the subject.
Vincent did not indicate to Vece during their conversa-
tion that he was attempting to apprehend the driver of
the Infiniti. Rather, the audio recording and transcript
of the 911 call reveal that Vincent merely was attempting
to keep the Infiniti in sight in order to identify details
regarding the vehicle, including the model name, color
and license plate number, and to report its location.24
Although flashing blue courtesy lights, high speed, and
tailgating might have indicated to the occupants of the
Infiniti that Vincent was pursuing them, Vece was not
aware of these facts, and, thus, it could not have been
apparent to her that a dangerous vehicular pursuit was
in progress.
The plaintiff also claims that Vece’s acknowledgment
that there was no further value to Vincent in keeping
the Infiniti in sight indicates that the apparentness
requirement has been satisfied because it was apparent
to Vece that there was no need for the pursuit to con-
tinue. This argument fundamentally misconstrues the
apparentness requirement. Our inquiry is not whether
it is apparent to the government official that an action is
useful, optimal, or even adequate. Rather, we determine
whether it would have been apparent to the government
official that her actions likely would have subjected an
identifiable person to imminent harm. See, e.g., Doe v.
Petersen, supra, 279 Conn. 620. Although it might have
been apparent to Vece that Vincent’s actions served no
further purpose, it does not follow that she was or
should have been aware that her acts or omissions
likely would have subjected Hopkins to imminent harm.
Finally, the plaintiff argues that we should be guided
by our decisions in Purzycki v. Fairfield, supra, 244
Conn. 101, and Sestito v. Groton, 178 Conn. 520, 423
A.2d 165 (1979). Neither of these cases is controlling.
The sole issue in Purzycki was whether the plaintiffs
had proven that a child was ‘‘subject to imminent harm’’;
Purzycki v. Fairfield, supra, 103; and this court thus
did not fully address the apparentness requirement.25
See Doe v. Petersen, supra, 279 Conn. 618 (‘‘[w]e relied
heavily on the ‘imminency’ requirement to reach our
conclusion in Purzycki’’). In addition, we decided Ses-
tito before we adopted the three-pronged imminent
harm test and have found that its holding is limited to
its facts. Grady v. Somers, 294 Conn. 324, 353, 984 A.2d
684 (2009); see also Shore v. Stonington, 187 Conn. 147,
153–54, 444 A.2d 1379 (1982).26
The judgment is reversed only with respect to the
town and the case is remanded with direction to render
judgment for the town; the judgment is affirmed in all
other respects.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and ESPINOSA, Js., concurred.
1
The Clinton Volunteer Fire Department, Matthew Vincent and William
Cardillo also were named as defendants in the present action. The action was
withdrawn as against Vincent and Cardillo. See footnote 3 of this opinion. The
town is the only defendant participating in this appeal.
2
The amended complaint, which was filed by the substitute plaintiff, Adele
P. Edgerton, successor conservator of Hopkins’ estate (plaintiff), alleged,
inter alia, that Vece, as a 911 dispatcher, was an employee and agent of the
town and was acting within the scope of her employment when responding
to Vincent’s call. The plaintiff thus contended that the town should be liable
for Hopkins’ injuries because Vece ‘‘explicitly and/or impliedly encourag[ed],
authorize[ed], permitt[ed] and fail[ed] to deter or prohibit Vincent [from]
track[ing], follow[ing], pursu[ing], or otherwise engag[ing] the Infiniti, and
was utilizing Vincent as an agent of the [t]own . . . to track, follow, pursue,
or otherwise engage the Infiniti.’’ According to the plaintiff, Vece allegedly
deputized Vincent by failing to instruct him not to follow and pursue the
Infiniti.
3
Walker Hopkins was severely injured in the collision. Catharine Hopkins,
the conservatrix of Walker Hopkins’ estate, filed an action on Walker Hop-
kins’ behalf against the town, the Clinton Volunteer Fire Department (fire
department), Vincent, and Cardillo. Catharine Hopkins claimed that the
town was liable due to the negligent acts or omissions of Vece and Vincent,
both of whom allegedly were acting in their capacity as government officials
at the time of the accident. Catharine Hopkins further claimed that the fire
department was liable because Vincent allegedly was acting, at all relevant
times, within the scope of his duties as a volunteer firefighter. Edgerton
subsequently was substituted as the plaintiff. Hereinafter, we refer to Walker
Hopkins as Hopkins.
The action later was withdrawn as to Vincent. Although the action also
was withdrawn as to Cardillo, the town and the fire department filed an
apportionment complaint against Cardillo, which also was subsequently
withdrawn. The fire department remains as a defendant but has not actively
participated in this appeal. See footnote 1 of this opinion.
4
General Statutes § 52-557n (a) (1) provides in relevant part: ‘‘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 . . . .’’
5
The jury attributed 5 percent of the negligence to Vincent and the
remaining 5 percent to Cardillo.
6
Jacqueline Denise Douglas also was a passenger in the Infiniti.
7
The transcript of the 911 call, which commenced at approximately 9:20
p.m. on August 5, 2005, provides in relevant part:
‘‘[9:20:14 Vece]: Is this an emergency?
‘‘[9:20:15 Vincent]: Yes, it is. I just got hit by a motor vehicle, and he just
took off and I’m trying to catch up to him to get his plate.
‘‘[9:20:20 Vece]: Where are you?
‘‘[9:20:21 Vincent]: I’m on Liberty Street.
***
‘‘[9:20:31 Vincent]: I’m going toward the bridge. He’s now gonna turn onto
Ferry Dell Road.
***
‘‘[9:20:39 Vincent]: This is Matt Vincent. He’s got front end damage, he’s
not stopping—
‘‘[9:20:47 Vece]: Did you get a plate?
‘‘[9:20:48 Vincent]: Yup. 280TVD, I think.
***
‘‘[9:21:03 Vincent]: We’re going up to the Jared Eliot [Middle] School.
***
‘‘[9:22:57 Vincent]: 280TVD—we’re coming out onto, uh, what’s the name
of the road, Brickyard?
‘‘[9:23:06 Vece]: Okay.
‘‘[9:23:06 Vincent]: We’re off Brickyard. We’re coming up onto Brickyard.
‘‘[9:23:12 Vece to Police Officers]: All units, the hit-and-run vehicle, the
person that he hit is following, it is going onto Brickyard.
‘‘[9:23:18 Vincent]: We’re going down toward Glenwood.
‘‘[9:23:19 Vece to Police Officers]: They’re going down towards Glenwood.
‘‘[9:23:26 Vece]: What color’s the vehicle?
‘‘[9:23:28 Vincent]: It’s brown. It’s a brown Infiniti I30, 280TVD.
‘‘[9:23:32 Vece]: Okay.
‘‘[9:23:35 Vincent]: We’re just coming up on Ironworks.
***
‘‘[9:23:41 Vincent]: Turning onto Ironworks. Turning onto Ironworks.
***
‘‘[9:23:53 Vece]: [On] [w]hat road did he hit you, Matt?
‘‘[9:23:55 Vincent]: What?
‘‘[9:23:57 Vece]: [On] [w]hat road did he hit you?
‘‘[9:23:59 Vincent]: He hit me right at the intersection of the commuter lot.
‘‘[9:24:01 Vece]: Okay.
‘‘[9:24:07 Vincent]: And he [has] just taken off, and he’s going at a high
rate of speed.
‘‘[9:24:11 Vece]: Up Ironworks?
‘‘[9:24:12 Vincent]: Up Ironworks.
‘‘[9:24:15 Vece to Police Officers]: All responding units, the vehicle [has]
now taken off. He’s going a high rate of speed up Ironworks. I’ll notify
the troop.
‘‘[9:24:23 Vincent]: You know, I don’t know how fast I want to try to catch
up to him.
‘‘[9:24:27 Vece]: Matt, we know who it is. We know who it is, Matt. Hold
on, I’m gonna call Troop F and see if we can get another officer up at the
other end of Ironworks, okay?
‘‘[9:24:33 Vincent]: Oh, he just wrecked it. He just wrecked it.
‘‘[9:24:36 Vece]: Wait a minute. Where?
‘‘[9:24:36 Vincent]: He just—holy shit—he just rolled the car. He just rolled
the car.
‘‘[9:24:39 Vece]: Alright. Whereabouts?
‘‘[9:24:41 Vincent]: Right on Ironworks.
‘‘[9:24:42 Vece to Police Officers]: All units, head up to Ironworks . . . .
[T]his person just rolled the vehicle. I’m trying to get more information.
‘‘[9:24:47 Vincent]: You better get a frickin’ ambulance up here. The car
is on fire.
‘‘[9:24:51 Vece]: Okay.
‘‘[9:24:52 Vincent]: I’m gonna get out, and I’m gonna try and hit the fire.
‘‘[9:24:53 Vece to Police Officers]: Okay. All units, be advised the vehicle
is fully involved, okay.’’
8
The town also claimed that the plaintiff failed to state a claim on which
relief could be granted and that Hopkins’ injuries were due to his own
negligence and carelessness in that he operated or allowed the Infiniti to
be operated under the influence of alcohol or drugs, failed to keep a proper
lookout, failed to act as a reasonably prudent person would act under the
circumstances, evaded responsibility after colliding with Vincent’s vehicle,
and failed to keep his vehicle under proper control.
9
Unlike sovereign immunity, which includes immunity from suit and
immunity from liability, governmental immunity shields a municipality from
liability only. See, e.g., Vejseli v. Pasha, 282 Conn. 561, 572–74, 923 A.2d
688 (2007). Immunity from suit on the basis of sovereign immunity implicates
subject matter jurisdiction, and, therefore, sovereign immunity issues are
resolved prior to trial. See id., 571–72; Manifold v. Ragaglia, 94 Conn. App.
103, 122, 891 A.2d 106 (2006). In contrast, because governmental immunity
shields a governmental entity from liability rather than litigation to which
it does not consent, unresolved factual issues concerning a governmental
immunity claim can be decided by a jury. See Vejseli v. Pasha, supra, 572–74.
10
In the present case, there are no unresolved factual issues regarding
apparentness because all of the relevant facts were captured in the audio
recording of the 911 call or are otherwise undisputed. The dissenting justice
asserts that there is a material issue of fact regarding whether Vece acted
as a reasonable dispatcher would under the circumstances, citing to the
competing testimony from the plaintiff’s expert and the town’s expert about
the standard of care. The dissenting justice contends that, if the jury accepted
the plaintiff’s expert’s testimony, the standard of care would render it ‘‘appar-
ent to a reasonable dispatcher in Vece’s position that failing to order Vincent
to cease his pursuit, in and of itself, created [a risk of] imminent . . . harm
to an identifiable person . . . .’’ We disagree. Imposing 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, discretionary acts unless
the officer’s duty to act is clear and unequivocal. See, e.g., Doe v. Petersen,
279 Conn. 607, 615, 903 A.2d 191 (2006); cf. General Statutes § 52-557n (a)
(2) (‘‘[e]xcept 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
discretion as an official function of the authority expressly or impliedly
granted by law’’). This policy is especially relevant in cases such as the
present one, in which the government officer is called on to make split
second, discretionary decisions on the basis of limited information. See
Durrant v. Board of Education, 284 Conn. 91, 106, 931 A.2d 859 (2007)
(‘‘[d]iscretionary 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 benefits to be had from imposing liability for that
injury’’ [internal quotation marks omitted]).
Therefore, unlike under an ordinary negligence standard of care, under
the apparentness requirement of the identifiable person-imminent harm
exception, there is no inquiry into the ideal course of action for the govern-
ment officer under the circumstances. Rather, the apparentness requirement
contemplates an examination of the circumstances of which the government
officer could be aware, thereby ensuring that liability is not imposed solely
on the basis of hindsight, and calls for a determination of whether those
circumstances would have revealed a likelihood of imminent harm to an
identifiable person.
Finally, we note that the plaintiff’s expert in emergency communications,
Nancy Dzoba, acknowledged in her testimony the distinction between what a
reasonable dispatcher would do and what would be apparent to a reasonable
officer. Specifically, the town’s attorney asked Dzoba: ‘‘[A]nd someone with
[the] information [available to Vece] wouldn’t be able to say at any time
during this route that the Hopkins driver is at imminent risk of harm, meaning
about to happen, am I correct?’’ Dzoba replied: ‘‘That’s correct, I think.’’
Thus, Dzoba acknowledges that, even if a reasonable dispatcher would have
told Vincent to cease his pursuit, that does not necessarily mean that it
would be apparent to a reasonable dispatcher that not doing so would have
put Hopkins at risk of imminent harm.
11
See footnote 4 of this opinion for the text of § 52-557n (a) (1) (A).
12
This section codified the common-law distinction between discretionary
and ministerial acts. See Grady v. Somers, 294 Conn. 324, 347–48, 984 A.2d
684 (2009).
13
This court determined in Grady v. Somers, 294 Conn. 324, 984 A.2d 684
(2009), that the identifiable person-imminent harm exception applies in
actions brought pursuant to § 52-557n. See id., 348–49.
We take this opportunity to clarify the relationship between the public
versus private duty distinction and the identifiable person-imminent harm
exception to governmental immunity. Under § 52-557n (a) (1), ‘‘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 . . . acting within the scope of his employment or official
duties . . . .’’ (Emphasis added.) This negligent act or omission must arise
from the breach of a private duty on the part of the officer or municipality.
See Shore v. Stonington, 187 Conn. 147, 152, 444 A.2d 1379 (1982). The
court in Shore stated that a private duty may be established when, for
example, it would be apparent to a municipal official that his failure to act
likely would subject an identifiable person to imminent harm. Id., 153.
Therefore, if the plaintiff satisfies the identifiable person-imminent harm
test, the plaintiff has proven that the municipality or its officers owed a
private duty to the plaintiff. See id., 152–53. Conversely, if the plaintiff fails
to satisfy the identifiable person-imminent harm test and does not establish
a private duty through other means, the plaintiff cannot succeed in bringing
a negligence action against a municipal officer or municipality under § 52-
557n on the basis of the municipal officer’s discretionary act or omission.
Thus, we now clarify that the identifiable person-imminent harm exception
is one of the ways in which a plaintiff may establish that, despite the
discretionary nature of the officer’s acts or omissions, the officer’s duty
to act was clear and unequivocal so as to warrant imposing liability on
the municipality.
14
We recognize that we have described the apparentness requirement as
‘‘would have made it apparent.’’ We take this opportunity to clarify that the
test is an objective one. We do not ask whether the government agent actually
knew that harm was imminent but, rather, whether the circumstances would
have made it apparent to a reasonable government agent that harm was
imminent.
15
The dissenting justice suggests that this court’s jurisprudence would
‘‘[encourage] municipalities to engage in wilful blindness to dangers that
might be prevented through the institution of better training programs.’’
First, a strict adherence to what a reasonable municipal officer would know
under the circumstances is the best way to ensure that wilful blindness
does not occur. If the circumstances are such that the imminent harm
would be apparent, then, of course, governmental immunity would not apply
regardless of the wilful blindness of the officer. In addition, not imposing
liability for dangers of which the officer could not be aware protects
important government functions, as it shields officers from hindsight bias,
second-guessing and retaliatory lawsuits. See Doe v. Petersen, supra, 279
Conn. 615.
16
We further stated that this allegation was ‘‘unsupported by the record
. . . .’’ Doe v. Petersen, supra, 279 Conn. 619 n.11.
17
It was the plaintiff’s expert in emergency communications who
acknowledged that Vincent did not ‘‘sound excited’’ and that ‘‘his voice . . .
sound[ed] very level and steady’’ in the audio recording. The plaintiff’s expert
also testified that, from listening to the audio recording, she ‘‘could not
tell how fast the cars were traveling . . . .’’ The plaintiff’s expert further
acknowledged that Vece ‘‘heard nothing about [the Infiniti] being [driven]
erratic[ally] in any way until . . . Vincent said, and they’ve taken off at a
high rate of speed while on Ironworks [Road] . . . .’’
18
Vece did know that the Infiniti was traveling at a ‘‘high rate of speed’’
approximately twenty-four seconds prior to the accident. Nevertheless, the
Infiniti’s high rate of speed—in the absence of speeding on the part of
Vincent—would not have made it apparent to Vece that her acts or omissions
might cause any imminent harm. Vece had no contact with, and therefore
no control over, the occupants of the Infiniti. Thus, her acts or omissions
could have affected the Infiniti only insofar as she gave instructions to
Vincent, Vincent followed those instructions, and Cardillo reacted in
response.
The only point at which Vincent mentioned his own speed was approxi-
mately ten seconds before the collision, when he stated: ‘‘I don’t know how
fast I want [to go] to try to catch up to him.’’ This statement, if anything,
would indicate to a reasonable dispatcher that Vincent was not driving at
an excessive rate of speed at the time and was merely considering such an
action. Moreover, Vece responded to Vincent’s statement by assuring him
that the police knew who the driver was, thus indicating to Vincent that
there was no need for him to engage in a pursuit. There was no additional
time for Vece to clarify further, as she testified that ‘‘when [she] told him
that [the police] knew who it was and [she] finished that sentence, [the
Infiniti] had wrecked.’’ The audio recording and transcript of the 911 call
support this statement, as there were only a few seconds in between Vin-
cent’s statement that he did not know how fast he wanted to go to try to
catch up, Vece’s response, and Vincent’s report that the Infiniti had crashed.
19
In fact, Vece testified that she ‘‘didn’t know that [Vincent] was on the
fire department’’ and, therefore, had no way of knowing that his vehicle
was equipped with blue courtesy lights, let alone that he was using them.
20
In addition, we note that, unlike the supervisor in Doe, Vece did not
affirmatively hinder Vincent from informing her of potentially dangerous
conditions relating to Vincent’s pursuit of the Infiniti. Therefore, the facts
of the present case provide an even stronger basis on which to afford
governmental immunity than the court had in Doe.
21
The dissenting justice states that our ‘‘conclusion that the risk would
not be apparent to a reasonable dispatcher in Vece’s position seems to be
based on [our] understanding that Vincent’s pursuit of the [Infiniti] would
have created a risk of imminent harm only if the vehicles were traveling at
a high rate of speed.’’ (Emphasis in original.) Although the speed of the
vehicles is not determinative of whether there is a pursuit or chase, knowl-
edge of high speeds, or lack thereof, is certainly relevant to the apparentness
requirement. It certainly could not be apparent to Vece, who had no knowl-
edge that Vincent was speeding, tailgating, or engaging his blue courtesy
lights, that Cardillo would drive erratically as a result of Vincent’s actions.
22
Specifically, the plaintiff demonstrated that, if both Vincent and Cardillo
had been driving at or below the speed limit, the drive should have taken
nearly five minutes but, in fact, took three minutes and ten seconds.
23
The town has no written policy regarding hit-and-run accidents, and,
thus, we draw our conclusions on the basis of the definition of ‘‘pursuit’’
in this parallel context.
24
The plaintiff claims that Vincent’s statement that ‘‘he’s not stopping’’
should have alerted Vece to the fact that there was a pursuit. The plaintiff
takes this statement out of context. Vincent informs Vece approximately
three seconds into the 911 call that he was the victim of a hit-and-run
collision. He then conveys more information to Vece, including ‘‘[h]e’s got
front end damage, he’s not stopping,’’ an identification of the license plate
number, the make and model of the vehicle, and the location of the vehicle
at various points of the route. When a collision occurs, normally, the driver
of the offending vehicle will stop and communicate with the driver of the
other vehicle involved. It would be reasonable for a dispatcher to believe
that Vincent merely was imparting another piece of information about the
behavior of the driver of the Infiniti.
25
Although the court in Purzycki did briefly mention the apparentness
requirement; Purzycki v. Fairfield, supra, 244 Conn. 108; the issue on appeal
was not apparentness but, rather, the imminent harm prong of the identifi-
able person-imminent harm test. See id., 108–11. The parties did not raise
the apparentness issue. See id. Furthermore, both Purzycki and another
related decision, namely, Burns v. Board of Education, 228 Conn. 640, 638
A.2d 1 (1994), are distinguishable from the present case because they
involved school principals or superintendents who had a special duty of
care regarding children in their respective school districts. See Purzycki v.
Fairfield, supra, 103 n.1, 108; Burns v. Board of Education, supra, 648.
The dissenting justice contends that ‘‘the fact that a municipal official
might owe a higher duty to schoolchildren while [they are] on school prop-
erty than another municipal official would owe to other persons under
other circumstances has little bearing on an analysis of whether a threat
of imminent harm to an identifiable person would be apparent to a municipal
official . . . in any setting.’’ (Emphasis in original.) We first observe that
this statement seems contrary to the dissenting justice’s position that the
standard of care for a reasonable dispatcher is relevant to the apparentness
analysis in the present case. In addition, we note that the special duties in
Burns and Purzycki, unlike any duty that Vece may have owed to Hopkins
in the present case, arose from the fact that school principals and superinten-
dents are charged with the responsibility of caring for schoolchildren. Of
course, circumstances that would not otherwise create an apparent danger
for an adult, such as a lack of supervision, nevertheless could create a likely
risk of imminent harm for children.
For instance, in Purzycki, an eight year old elementary school child was
tripped by another child and sustained injuries while the child was running
through the school hallway unsupervised. Purzycki v. Fairfield, supra, 244
Conn. 104. The issue on appeal was whether the child was subject to ‘‘immi-
nent harm . . . .’’ Id., 106. Unlike in the present case, the apparentness
requirement was not at issue in Purzycki because the school principal
admitted (1) to his awareness that the schoolchildren were not supervised
during the window of time at issue, and (2) that the schoolchildren tend to
‘‘run’’ and ‘‘engage in horseplay,’’ often resulting in injuries when they were
left unsupervised. Purzycki v. Fairfield, 44 Conn. App. 359, 367, 689 A.2d
504 (1997) (Heiman, J., dissenting), rev’d, 244 Conn. 101, 708 A.2d 937 (1998).
Similarly, in Burns, a high school student slipped and fell on ice while
walking through a school courtyard on the way to his guidance counselor’s
office, thereby sustaining injuries. Burns v. Board of Education, supra, 228
Conn. 642. In concluding that the city of Stamford and the superintendent
of schools were not shielded from liability by governmental immunity, the
court concluded that, ‘‘[a]s a matter of policy . . . our case law . . . has
traditionally recognized that children require special consideration when
dangerous conditions are involved.’’ Id., 650; see also Durrant v. Board of
Education, 284 Conn. 91, 120, 931 A.2d 859 (2007) (Norcott, J., dissenting)
(‘‘[t]he ringing of the . . . bell at the end of the school day does not magically
bestow a young child with maturity and sound judgment, and does not,
therefore, deprive that child of the ‘special considerations’ to which he is
entitled under the law’’).
In sum, because Burns and Purzycki do not specifically address the
apparentness requirement and there were special considerations in each
case, we are guided instead by our more recent precedent in Doe and
Fleming, both of which outline the apparentness requirement in more detail.
26
Because we conclude that the identifiable person-imminent harm excep-
tion does not apply in the present case, we decline to address the second
issue, namely, whether Vece’s failure to act was a proximate cause of Hop-
kins’ injuries.