Borelli v. Renaldi

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BORELLI v. RENALDI—DISSENT
ECKER, J., dissenting. Negligence liability for munici-
pal employees is effectively dead. The doctrinal demise
has occurred as the result of an accumulation of cuts
inflicted by this court, on a case-by-case basis, over
the past thirty years. In that sense, today’s decision is
merely one more unfortunate chapter in a story nearing
its now-predictable end. But the majority’s holding also
does new damage. For the first time in Connecticut’s
history, and in direct contravention of numerous stat-
utes reflecting our legislature’s opposite policy choice,
the majority extends immunity to municipal employees
whose negligent operation of a motor vehicle on a pub-
lic road has caused bodily injury or death. This opinion
registers my objection to both the general trend and
the additional step taken by the court today, which, in
my view, further eviscerates a doctrine that, as codified
in 1986; see Public Acts 1986, No. 86-338, § 13 (P.A. 86-
338), codified as amended at General Statutes § 52-
557n; had routinely imposed tort liability on municipal
employees for personal injuries caused by their on-the-
job negligence.
In broad perspective, these recent developments in
the law of municipal immunity reflect a flawed jurispru-
dence that unnecessarily and unjustifiably denies legal
recourse to many individuals who sustain actual physi-
cal harm as a result of a municipal employee’s negligent
conduct. Of particular concern to me is that the nearly
unlimited reach of the current, judge-made, municipal
immunity doctrine is of recent vintage, which is to say
that (1) the current law of municipal employee immu-
nity1 bears only a slight resemblance to the law that
was codified by the legislature in 1986 in P.A. 86-338,
and (2) the developments since the 1986 codification
are not the result of legislative policymaking. The reality
is that the scope of immunity for municipal employees
has expanded radically since 1986 without any basis in
the governing statute, § 52-557n.
This opinion summarizes where we are and how we
have reached this unfortunate state of affairs. Part I
provides a brief historical overview of the doctrine of
municipal employee immunity, both common-law and
statutory, and offers a general critique of the changes
we have made over the past three decades. Parts II and
III examine the doctrinal expansion produced by the
majority in the present case, which, in my view, war-
rants criticism in its own right and marks a milestone
in the judicial eradication of municipal employee negli-
gence liability.
The impact of today’s decision is especially profound
because it is double-fisted. One blow is dealt because
the majority creates a new zone of immunity that did
not exist and that was never intended by the legislature
when it enacted § 52-557n in 1986, namely, immunity for
injuries caused by the negligent driving of a municipal
police officer during a vehicular pursuit on public road-
ways. Immunity for negligent driving—routine or emer-
gency—has never been available to municipal
employees in Connecticut. As discussed in part II of
this opinion, the majority’s holding actually reverses
existing law and overrules established doctrine in the
particular context of emergency vehicle operation. See
Tetro v. Stratford, 189 Conn. 601, 609–10, 458 A.2d 5(1983) (‘‘[w]e . . . conclude that [General Statutes]
§ 14-283 [which governs the rights and duties of emer-
gency vehicles on public roadways] provides no special
zone of limited liability once the defendants’ negligence
has been established [in connection with a police vehic-
ular pursuit]’’); Voltz v. Orange Volunteer Fire Assn.,
Inc., 118 Conn. 307, 310, 172 A. 220 (1934) (‘‘[The defen-
dants’ immunity] claim involves a misconception of the
doctrine of governmental immunity . . . . The driver
of a fire truck is liable to one injured by his negligent
driving, though the municipality employing him is
exempt from liability.’’). The majority’s analysis also
fails to come to terms with the express legislative com-
mand contained in the specific statute, § 14-283, govern-
ing the very municipal activity at issue in the present
case, i.e., the operation of emergency vehicles on public
roadways. Section 14-283 (d) plainly and unambigu-
ously retains the long established negligence liability
of the municipal employee in this context by providing
expressly that the vehicle’s emergency status ‘‘shall not
relieve the operator . . . from the duty to drive with
due regard for the safety of all persons and property.’’
That duty has never been considered ‘‘discretionary,’’
and the majority’s decision to label it as such disregards
the legislature’s affirmation of the mandatory nature of
the duty, even under emergency conditions.
Part III of this opinion addresses the second blow
struck by the majority opinion, which effectively does
away with the identifiable victim, imminent harm
exception to municipal employee immunity in all cases
outside of the public school context. The line drawn
by the majority is arbitrary and bears no connection to
any legitimate, or even articulable, underlying purpose.
The present case presents a paradigmatic example of
identifiable persons being exposed to the risk of immi-
nent harm. In light of the legislature’s codification of the
doctrine in § 52-557n, we are no longer free to change
or contract the scope of that doctrine when the outcome
it produces is not to our liking.
I
A
I begin with the larger picture because the best way
to appreciate what has gone wrong in the field of munic-
ipal employee negligence law over the past three
decades is first to describe the current state of the law
and then to examine how we arrived here. The standard
narrative appearing in our more recent cases views the
current doctrine of near-total immunity as an unadulter-
ated continuation of an old and deeply rooted common-
law tradition, in which a municipality and its employees
always have been immune from liability for negligence
flowing from an employee’s performance of routine,
discretionary tasks.2 The broad immunity conferred
under the common law, the story goes, ultimately was
codified by the legislature in § 52-557n. We have
explained that, since the 1986 codification, our cases
have merely implemented the municipal immunity doc-
trine as codified, without material modification. In other
words, we say that our judicial decisions do not make
new law but merely reflect the legislative will, as estab-
lished in 1986, which, in turn, reflected the accumulated
wisdom of long established common-law rules.3
This story is substantially inaccurate. It ignores the
leading role that we have played in the expansion of
municipal immunity since 1986 and belies our repeated
insistence that, ‘‘[s]ince the codification of the common
law under § 52-557n [in 1986], this court has recognized
that it is not free to expand or alter the scope of govern-
mental immunity therein.’’ Durrant v. Board of Educa-
tion, 284 Conn. 91, 107, 931 A.2d 859 (2007); see footnote
3 of this opinion. I do not intend any criticism of our
court for ‘‘activism’’ in this regard. I believe that, in an
age of statutes, there remains a vital judicial role to
fill, in case-by-case adjudication, the numerous gaps,
interstices, and ambiguities that emerge as legislative
designs meet the infinitely varied and unpredictable
conditions of the real world. See B. Cardozo, The Nature
of the Judicial Process (1921) pp. 15–17, 113–115, 129;
E. Peters, ‘‘Common Law Judging in a Statutory World:
An Address,’’ 43 U. Pitt. L. Rev. 995, 1002–1005 (1982);
R. Traynor, ‘‘Statutes Revolving in Common-Law
Orbits,’’ 17 Cath. U. L. Rev. 401, 401–402 (1968). Rather,
I take issue with the fact that we have failed, in my
view, to perform that necessary analysis in a manner
consistent with the guidance provided by historical
precedent, legislative intentions, and relevant public
policy. I also regret that we too often attribute our
holdings to the very historical and legislative sources
that our analysis contravenes.
As a starting point, the public is entitled to a candid
assessment of the chances that a person today will
succeed in a negligence lawsuit brought against a
municipality or municipal employee for that employee’s
negligence.4 The odds are close to zero.5 This is true
even in cases in which the negligence is manifest, the
causation is direct, and the harm to person or property
is serious. I put the odds at close to zero rather than
completely hopeless because a plaintiff still stands a
modest chance of success if she is a child injured on
school premises under certain limited conditions,6 and,
on exceedingly rare occasions, a nonstudent plaintiff
may avoid the immunity bar by fitting within the narrow
proprietary function exception under § 52-557n (a) (1)
(B) or one of the special exceptions expressly enumer-
ated in § 52-557n (b).7 But, in the vast majority of cases,
a negligence claim against municipal defendants is
doomed from the outset under our current case law.
Indeed, it is difficult to overstate the breadth of the
municipal immunity doctrine under our more recent
cases. A plaintiff will lose her case under current law,
even if the long-standing and on-point precedent of this
court had refused to confer such immunity, and even
in the absence of any indication that the legislature
disapproved of that precedent.8 In the same spirit,
another recent judicial innovation changed who decides
whether municipal immunity applies in any particular
case. This latter development evolved gradually from
1988 until its consummation last year, when we
expressly overruled a long line of precodification cases
holding that the immunity issue ordinarily is for the
jury.9 Most of this court’s other postcodification innova-
tions have involved, in one way or another, the ever-
expanding application of the so-called discretionary
function doctrine to now include virtually every imagin-
able act or omission by virtually every municipal
employee; we now have reached the point—for the very
first time in Connecticut’s history—when it is almost
impossible to prevail against a municipal defendant in
a negligence action for personal injuries or property
damage. It has recently become as difficult to obtain
tort compensation for damages caused by a municipal
employee’s garden-variety negligence as it is to obtain
a court order granting the extraordinary writ of manda-
mus against a judicial officer or other public official.10
Almost every such negligence claim under our new,
judge-made doctrine will be terminated summarily in
the trial court long before the case ever reaches a jury.
Municipalities can rest assured, moreover, that, in the
highly improbable event that a plaintiff somehow man-
ages to avoid such a fate and obtains a jury verdict
finding that the municipality is not entitled to immunity
and must pay damages, our current doctrine will see
the judgment overturned on appeal ‘‘as a matter of
law.’’11 Despite our declaration that the 1986 codifica-
tion erected a bar to any future judicial modification;
Durrant v. Board of Education, supra, 284 Conn. 107;
the pace of our judicial modifications over the past
fifteen years has, at times, been so rapid that we have
been unable to keep up with our own innovations.12 A
negligence claim against a municipal employee simply
is not a viable theory of recovery in the overwhelming
majority of cases brought in Connecticut today.
It would try the reader’s patience beyond the breaking
point to explicate the many sources of this erroneous
turn. The remainder of part I of this opinion, therefore,
will focus primarily on what I believe to be the mistake
most responsible for the doctrinal expansion, which is
our failure to observe and enforce the fundamental
distinction between corporate (municipal entity) immu-
nity and personal (municipal employee) immunity. The
distinction is critical because the former always has
been substantially broader than the latter, a well-known
historical fact that this court unfortunately has forgot-
ten in recent years. The distinction figured prominently
in the common law of this state; it was very familiar to
the Connecticut legislature by 1957, when widespread
concern over the threat of municipal employees’ expo-
sure to personal liability for on-the-job negligence
resulted in the passage of the highly controversial
municipal indemnification statute, General Statutes § 7-
465, and, as I discuss later in this opinion, the legislature
embedded the distinction in the text and structure of
§ 52-557n itself. It is regrettable that this court has,
since 1986, almost completely removed the preexisting
domain of liability, which was substantial, and it is
discomforting that we have done so in the name of
‘‘construing’’ legislation that actually compels the oppo-
site result.
B
Until recently, our common law very clearly distin-
guished between municipal entity immunity and the
personal immunity of municipal employees. This histor-
ical distinction, though largely overlooked in our recent
case law, was readily acknowledged by this court in
the not-too-distant past. Thus, ‘‘ ‘[i]t was once said that
as a general rule governmental officers and employees
were personally liable for their torts, more or less with-
out exception, even where the governmental unit itself
was protected by an immunity.’ [W. Keeton et al., Pro-
sser and Keeton on the Law of Torts (5th Ed. 1984)
§ 132, p. 1056]; see also G. Bermann, ‘Integrating Gov-
ernmental and Officer Tort Liability,’ 77 Colum. L. Rev.
1175, 1178 (1977); 63A Am. Jur. 2d, Public Officers and
Employees § 358 (1984).’’ Gordon v. Bridgeport Hous-
ing Authority, 208 Conn. 161, 165–66, 544 A.2d 1185(1988); see also Spears v. Garcia, 263 Conn. 22, 36, 818
A.2d 37 (2003).13
I will confine myself here to four observations regard-
ing Connecticut’s common law governing the personal
immunity of municipal employees prior to the passage
of § 52-557n in 1986. First, far from being a fixture of
our law since its inception, the municipal employee
immunity doctrine was not recognized in Connecticut
until 1920. See Gordon v. Bridgeport Housing Author-
ity, supra, 208 Conn. 166 (‘‘[t]his court first adopted a
version of qualified official immunity in 1920 in Wadsw-
orth v. Middletown, 94 Conn. 435, 439, 109 A. 246 (1920),
[in which] we said that since certain public officials
were ‘engaged upon a governmental duty . . . so long
as they act in good faith, in the exercise of an honest
judgment, and not in the abuse of their discretion, or
maliciously or wantonly, they cannot be held liable’ ’’).
This doctrinal fact is no mere historical curiosity; it has
unmistakable and unavoidable constitutional implica-
tions because a common-law cause of action in exis-
tence in 1818 cannot be abrogated. Article first, § 10,
of the Connecticut constitution provides: ‘‘All courts
shall be open, and every person, for an injury done to
him in his person, property or reputation, shall have
remedy by due course of law, and right and justice
administered without sale, denial or delay.’’ ‘‘[A]ll rights
derived by statute and the common law extant at the
time of the adoption of article first, § 10, are incorpo-
rated in that provision . . . .’’ Gentile v. Altermatt, 169
Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed,
423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976);
see Sharp v. Mitchell, 209 Conn. 59, 64, 546 A.2d 846(1988).14 When we ignore the traditional common-law
distinction between municipal entity immunity and the
municipal employee’s personal immunity, we also over-
look this lurking constitutional issue, which, regardless
of whether it is meritorious in the final analysis, is by
no means insubstantial.
Second, the citation in Gordon to the seminal deci-
sion in Wadsworth v. Middletown, supra, 94 Conn. 435,
is telling because Wadsworth actually demonstrates
how far we have strayed from the original doctrine.
Wadsworth, in fact, rejected a personal immunity
defense and affirmed a substantial damages judgment
in favor of the plaintiff against the defendant town offi-
cial for the destruction of trees located on the plaintiff’s
roadside property. Id., 437–38, 443. The defendant, who
was the first selectman of Middletown acting on official
business, had sent a man named ‘‘Atkins, whom he
had occasionally hired to make repairs on the town
highways, with a gang of men and with instructions ‘to
trim off the sides of the roads to the wall and make a
good job of it,’ ’’ with no further instruction. Id., 442.
By affirming the judgment against the defendant, Wad-
sworth shows that our law previously did not automati-
cally equate discretion with immunity but, rather,
applied an immunity doctrine for discretionary acts
using a deferential version of the abuse of discretion
standard: ‘‘[S]ince [the defendants] are engaged upon
a governmental duty in the care and maintenance of
the highways, so long as they act in good faith, in the
exercise of an honest judgment, and not in abuse of
their discretion, or maliciously or wantonly, they can-
not be held liable.’’ (Emphasis added.) Id., 439; see
also id., 440 (‘‘[The defendant’s] brief concedes that
the exercise of this discretion does not justify [public
officials’] acting wantonly or maliciously, or with a
clear abuse of discretion. And we think this is our own
rule.’’ (Emphasis added.)).15
Our current law, which holds that municipal employ-
ees enjoy complete and unrestrained freedom to act
carelessly in the absence of unequivocal mandatory
directives instructing their every move,16 would have
been unrecognizable to the court in Wadsworth. Indeed,
in this important respect, the doctrine established in
Wadsworth was the very opposite of our present day,
judge-made rule equating discretion with immunity. As
the court in Wadsworth explained: ‘‘The defendant
argues that public officials caring for highways may
act, in removing obstructions within the highway,
within their discretion. . . . As we have pointed out,
the defendant’s brief practically concedes that the exer-
cise of discretion by a public official in caring for high-
ways does not justify acting maliciously, or wantonly,
or in clear abuse of the discretion by law vested in
him. The finding shows that the defendant cut down a
great number of trees which did not obstruct the public
easement of travel over the highway, and were in fact
distant from it. . . . [A]nd this was done by the defen-
dant, not through mere error of judgment but through
a failure to exercise not merely reasonable discretion
but any discretion.’’ (Emphasis added.) Id., 441. Wad-
sworth did not hold, as we no doubt would today, that
the municipal defendants were immune because the
decision to cut trees abutting a public roadway was
‘‘discretionary’’ in nature or because the municipal
actors would need to exercise judgment and discretion
in deciding which particular trees posed a potential
hazard to the travelling public. Nor did Wadsworth hold,
as our recent cases do, that the municipal defendants
were immune because no task-specific rules had been
promulgated to make the activity ministerial. To the
contrary, the court held that the first selectman was
obligated to provide that task-specific guidance and
that he was liable in negligence for the harm resulting
from his failure to exercise the discretion required of
him.17 Id., 441–42.
This latter point warrants particular emphasis
because it is exactly the claim made in the present case
by the plaintiff, Angela Borelli, administratrix of the
estate of Brandon Giordano. The plaintiff alleges that
two of the defendant police officers—Officer Anthony
Renaldi and Officer Michael Jasmin of the Seymour
Police Department—engaged in a highly dangerous pur-
suit, at night and well beyond posted speed limits, of
a Ford Mustang convertible full of teenagers for no
better reason than that the car was equipped with
underglow lights.18 The plaintiff alleges that, in doing
so, the officers disregarded their legal obligation to
balance the seriousness of the offense with the threat
to public safety caused by the pursuit. The plaintiff’s
claim is that this conduct does not reflect the exercise
of discretion but, instead, demonstrates the failure to
exercise the very discretion required by the governing
law and the Seymour Police Department Pursuit Policy.
The plaintiff, in other words, advances a Wadsworth
claim. Like the plaintiff in Wadsworth, she is entitled
to have a jury determine the merits of that claim.
Third, another important aspect of the common-law,
municipal employee immunity doctrine, also of direct
relevance to the present case, has been overlooked by
this court since 1986 in its postcodification decisions.
This forgotten doctrinal nuance recognizes that the dis-
tinction between discretionary and ministerial acts is
far more subtle than that drawn in this court’s recent
case law. Even the more restrictive of the precodifica-
tion cases recognized this doctrinal subtlety: ‘‘A ministe-
rial duty on the part of an official often follows a quasi-
judicial [discretionary] determination by that official
as to the existence of a state of facts. Although the
determination itself involves the exercise of judgment,
and therefore is not a ministerial act, the duty of giving
effect, by taking appropriate action, to the determina-
tion is often ministerial.’’ (Emphasis added.) Pluhow-
sky v. New Haven, 151 Conn. 337, 347–48, 197 A.2d 645(1964); see Wright v. Brown, 167 Conn. 464, 472, 356
A.2d 176 (1975) (same); Betts v. Dimon, 3 Conn. 107,
108–109 (1819) (administering legal oath ‘‘to a poor
imprisoned debtor’’ is ‘‘an act strictly ministerial,’’ even
though official administering oath must first make ‘‘[an]
[i]nquiry . . . to ascertain the legality of administering
the oath’’). In other words, although the initial decision
to undertake a course of action may be based on discre-
tionary considerations, the implementation of that deci-
sion ‘‘by appropriate action’’ may still require the
exercise of due care under ordinary negligence princi-
ples. This important aspect of the discretionary act anal-
ysis, necessarily incorporated as part of our immunity
doctrine in § 52-557n, has been ignored by this court
since 1986.
Fourth, at the time the common-law doctrine of
municipal employee immunity was adopted by the legis-
lature and codified at § 52-557n, the jury decided when
that immunity applied. See Tango v. New Haven, 173
Conn. 203, 204–206, 377 A.2d 284 (1977) (reversing judg-
ment in favor of defendant on demurrer in negligence
action arising from sledding accident at municipal golf
course); Fraser v. Henninger, 173 Conn. 52, 53–54, 61,
376 A.2d 406 (1977) (rendering judgment in connection
with negligence action arising out of injuries sustained
in basketball game run by municipal recreational pro-
gram); cf. Sestito v. Groton, 178 Conn. 520, 523, 526,
423 A.2d 165 (1979) (‘‘the question of the defendant
town’s negligence . . . should have been submitted to
the jury’’ when town police officer witnessed ongoing
brawl in bar’s parking lot but did not intervene until
after participant shot and killed plaintiff’s decedent).
Even in cases involving a discretionary function, a jury
ordinarily was required to perform fact-finding to deter-
mine whether the individual defendant had acted in the
exercise of his or her discretion or had failed to exercise
discretion that was required properly to discharge his
duties, or to decide whether the negligence at issue
occurred as part of the initial discretionary act or its
subsequent execution by ‘‘appropriate action.’’ Under
the common law codified in 1986, a jury was responsible
for sorting out these issues. This court nevertheless has
seen fit to declare that this is no longer the law, largely
because we have fashioned a one-size-fits-all, per se
rule, under which everything from driving a car to driv-
ing a nail is discretionary. There is nothing left for the
jury to decide.
To summarize, the recent, judge-made developments
represent a major departure from the law as codified in
1986. Our current doctrine considers virtually anything
and everything that a municipal employee does (or
omits doing) as discretionary, which, therefore, renders
the employee immune from negligence liability. The
rule is so extreme that it covers almost every act of
every municipal employee, from planning and formulat-
ing important governmental initiatives to opening a
door.19 Perhaps more incredible, the current doctrine
now appears to confer immunity not only when the
government worker has indeed exercised his or her
considered ‘‘judgment’’ bearing on public safety, but
also, contra Wadsworth, when the employee fails to
recognize the need to exercise discretion at all because
he or she is asleep at the switch, distracted, lazy, oblivi-
ous, or otherwise neglectful. In the absence of a spe-
cific, binding directive leaving the actor absolutely no
room for judgment about how to carry out a particular
task, there is no liability for his or her negligence. None
of these alterations can be justified as a matter of pol-
icy.20 More important, none of them was recognized,
approved, or adopted by the legislature.
C
Additional compelling evidence of the extent to
which municipal employees were often exposed to per-
sonal liability for negligence under the common law,
as it existed at the time of codification in 1986, is found
in a series of indemnification statutes enacted by our
legislature in the middle of the last century for the
express purpose of obligating municipalities to indem-
nify policemen, and later all other municipal employees,
for damages awards against the employee as a result
of the negligent performance of the employee’s duties.21
If municipal employees were already protected by any-
thing approaching the near-absolute immunity mytholo-
gized in our recent revisionist histories, these
indemnification statutes would have been largely
unnecessary; at most, such statutes would have been
minor, interstitial, belt and suspenders measures
intended to fill in any small gaps in the preexisting
immunity doctrine. But it was nothing like that at all.
The legislative record makes clear that the indemnifica-
tion statutes—enacted between 1945 and 1971—were
considered necessary precisely because police officers
and other municipal workers, without such statutory
protection, were exposed to the risk of personal finan-
cial ruin as a result of common-law negligence liability
arising from the performance of their routine job func-
tions. The municipality typically was immune, but the
employee was not.
The first such indemnification statute in Connecticut,
enacted in 1945, dealt specifically with liabilities for
the negligent operation of a motor vehicle by a police
officer. See Public Acts 1945, No. 251, codified at Gen-
eral Statutes (1949 Rev.) § 674.22 As motor vehicles
increasingly became essential to law enforcement activ-
ity, the looming risk of personal liability imposed on
police officers for damages caused by automobile acci-
dents was of widespread concern. Vincent Dooley, cor-
poration counsel for the city of New Haven, explained
the problem to the Judiciary Committee during hearings
on the bill: ‘‘We have had considerable experience from
the matter of [p]olice and [f]iremen in our [c]ity, being
sued for damages due to the [negligent] operation of
motor vehicles.’’ Conn. Joint Standing Committee Hear-
ings, Judiciary, Pt. 1, 1945 Sess., p. 202; see also id.,
remarks of Edward Mugavoro, Chief of Police of the
Darien Police Department (‘‘it will give the [p]olice
[o]fficer security, to know when he goes out to perform
the duty . . . [that he will] not have his life savings
washed away through one little accident’’). The 1945
statute was enacted to ‘‘protect all our policemen who
are operating vehicles in the course of business and in
any accident.’’ Id., p. 194, remarks of Senator Alfred
Tweedy.23
In 1953, the legislature acted to broaden the indemni-
fication to include liabilities incurred by a municipal
police officer for money damages resulting from the
negligent performance of all of the officer’s duties, not
only driving. See Public Acts 1953, No. 469.24 ‘‘This bill
extends this [indemnification] protection . . . to any
activity of the policeman in the course of duty unless
the liability comes from [the] wilful or wanton actions
of the policeman.’’ 5 H.R. Proc., Pt. 7, 1953 Sess., p.
2544, remarks of Representative Frank E. Raymond;
see also 5 S. Proc., Pt. 5, 1953 Sess., p. 1605, remarks
of Senator George A. Saden (‘‘[T]his bill broadens the
protection given to a policeman who is found liable
[for] an act performed in the course of his duties. At
the present time he is given protection only in those
cases [in which] he is operating a vehicle on the public
street. This extends that protection to any act he may
perform.’’). By examining the legislation and its back-
ground, we again see the legislature responding to liabil-
ity concerns that are inconceivable under our municipal
immunity doctrine, as recently expanded by this court.
The particular event prompting the 1955 legislation
illustrates the extent of this court’s recent departure
from preexisting law. The 1955 statute was enacted as
the result of a negligence lawsuit brought against a
West Haven police officer who accidentally discharged
his firearm and killed a fleeing larceny suspect while
engaged in an on-foot pursuit. See Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 3, 1953 Sess., pp.
514–15, remarks of Attorney John Mezzinotti (describ-
ing incident); 5 H.R. Proc., supra, pp. 2545–46, remarks
of Representative John Q. Tilson, Jr. (same). The jury
ultimately returned a verdict for the defendant, but the
case provoked sufficient concerns that the legislature
enlarged the municipality’s indemnity obligation to
include all liabilities arising from the performance of
the officer’s duties and in the course of employment,
unless due to the wilful or wanton act of the employee.
The municipal employee immunity doctrine that today
would spell the certain doom of such a lawsuit at the
earliest stages of litigation was not even mentioned
as a potential bar to liability during the legislature’s
consideration of the law sixty years ago.
Instead, the legislative history reflects intensive focus
on the same general category of common-law liabilities
that were the subject of concern eight years earlier in
connection with No. 251 of the 1945 Public Acts. Thus,
as one proponent of the bill remarked: ‘‘I think the
policeman performing the duties that are his to perform
under the law finds himself subject to a suit and proba-
bly liable for damages as a result of the attempt at the
performance of his duties, I think that it should fall
upon the city to take care of that policeman and see
that he doesn’t lose his personal fortune or assets that
he may have saved throughout the years through hard
work.’’ 5 H.R. Proc., supra, p. 2550, remarks of Repre-
sentative John M. Scanlon; see also Conn. Joint Stand-
ing Committee Hearings, Judiciary, Pt. 3, 1953 Sess., p.
514, remarks of Representative J. Marshall Baldwin (‘‘As
the statutes read today, the policeman of a municipality
can be sued personally for something that was done
while he was performing his duty. As you know, police-
men are not the best paid people. They protect our life
and family and property. I think they have gone a long
time without protection that many of us enjoy today.’’);
Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 3, 1953 Sess., p. 516, remarks of Lieutenant Haddon
(‘‘I am speaking for the Police Benefits Association and
the need for this bill has been brought to our attention.
. . . I would like to also point out that every police
officer in the state is very much interested in this bill.’’);
Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 3, 1953 Sess., p. 517, remarks of Everett W. Shaw,
executive secretary of the New Haven Police Union
(‘‘[w]e would like to point out that a police officer’s
lifetime effort can be wiped out [overnight] in the line
of duty’’).
All this was prelude to the enactment of § 7-465 in
1957. See Public Acts 1957, No. 401, § 1 (P.A. 57-401).
The passage of § 7-465 marked a watershed event in the
law of municipal liability because the statute effectively
eliminated the defense of municipal entity immunity in
a broad range of cases by extending to all municipal
employees the same protection that recently had been
provided, on a selective basis, only to policemen, fire-
men and teachers. See P.A. 57-401, § 1. After years of
effort and study, and despite substantial opposition—
which included two gubernatorial vetoes, the first of
which successfully blocked the legislation25—the legis-
lature voted to override Governor Abraham Ribicoff’s
veto and to require, in very broad terms, all Connecticut
municipalities to indemnify all employees: ‘‘Any town,
city or borough, notwithstanding any inconsistent pro-
vision of law, general, special or local, shall pay on
behalf of any employee of such municipality . . . all
sums which such employee becomes obligated to pay
by reason of the liability imposed upon such employee
by law for damages to person or property, if the
employee, at the time of the occurrence, accident, injury
or damages complained of, was acting in the perfor-
mance of his duties and within the scope of his employ-
ment, and if such occurrence, accident, injury or
damage was not the result of any wilful or wanton act
of such employee in the discharge of such duty.’’ P.A.
57-401, § 1.
Everyone at the time understood the stakes. They
were so high because the legislation served to protect
municipal employees from potential financial ruin, not
by extending immunity to them but, instead, by shifting
the employee’s exposure to the municipality itself—
that is, by rescinding the municipal entity’s immunity.
Both sides of the controversy explicitly recognized that
passage would require the municipality to pay the dam-
age judgments that were sure to follow. Governor Ribi-
coff’s veto message, which proved unsuccessful, made
no bones about it: ‘‘In vetoing a substantially similar
bill during the 1955 regular session of the General
Assembly, I said: ‘The effects of this act are widespread
and complicated. For hundreds of years municipalities
in Connecticut have had a governmental immunity from
liability, except where eliminated in particular cases
such as injuries resulting from defective roads or side-
walks. This bill removes the defense of governmental
immunity from all our cities and towns.
‘‘ ‘Taking away this defense from our municipalities
will cause them to be exposed to heavy damages. These
damages in turn will be placed upon the shoulders of
the taxpayers. Every municipality will have to bear a
considerable cost.
‘‘ ‘With the rising tax rates in most of our cities and
towns, I am unwilling to add to their tax burdens. There
is no sound reason why we should now remove a legal
defense which has existed for so many years.’ [This
bill] is open to identical criticism, and I accordingly
veto it.’’ (Emphasis added.) 7 S. Proc., Pt. 6, 1957 Sess.,
pp. 3228–29. Those legislators supporting the veto
echoed these sentiments. See id., pp. 3234–37, remarks
of Senator Arthur H. Healey; 7 H.R. Proc., Pt. 4, 1957
Sess., pp. 2217–19, remarks of Representative Samuel
S. Googel.
It was no minor matter to override the governor’s
veto,26 and the legislative body that did so responded
to the governor’s criticism with a number of counterar-
guments. They invoked three principles based on fair-
ness, which further demonstrate the fact that municipal
employees at the time were personally liable for their
negligent conduct. First was a simple desire to protect
municipal employees from ruinous liability. The
remarks of Representative Edward C. Krawiecki are
illustrative: ‘‘[L]et me raise my voice [on] behalf of these
little people, who collect your garbage and dig up your
streets, and fix up the sidewalks and do the other jobs
that surround your city, who drive the trucks, who do
all the things which expose them to danger and liability
for the injuries that might happen to others in the course
of the duty they do to the municipality [and they] let
us remember that these jobs which they do are not
personal; they’re performing those jobs in the course
of their employment; and I do not want to see any of
my little people lose their houses or lose their posses-
sions, if they have any, to pay a judgment for any injury
that might have happened due to negligence in the
course of their employment. Certainly the time has
come when I think that our cities are better able to
bear a loss of such proportions [than] one of my little
people, who might lose their house or possessions [and]
I urge you to think of that when you vote on this bill.’’
7 H.R. Proc., supra, p. 2226.27
Second, the legislators also were concerned about
parity among all municipal workers. They expressed
the view that all municipal employees should enjoy the
same statutory protections that policemen, firemen and
teachers had been granted over the past twelve years.
See 7 S. Proc., supra, p. 3241, remarks of Senator Albert
C. Snyder (After explaining the historical background
of the bill, Senator Snyder stated: ‘‘I decided [that] . . .
if we’ve given this to the firemen, [if] we’ve given it to
the policemen, what are the other municipal employees
who work for the Street Department, the Board of Health,
[who] lug the rubbish out, and so forth, are they second-
rate citizens? Should one segment of our municipal employ-
ees be covered against liability, suits, damages, in the
performance of their work?’’).28
Third, and of equal concern to those supporting the
legislation, was the manifest unfairness that inevitably
resulted when the cost of a municipal employee’s neg-
ligence was imposed on the victim of that negligence
rather than on the municipality. The legislators expressed
the opinion that basic principles of fairness required
the cost of the municipality’s operations (including the
cost of accidents) to be spread among the taxpayers,
who are the beneficiaries of those operations. The pro-
ponent of the legislation in the House of Representatives,
Representative Erving Pruyn, explained: ‘‘The [legisla-
tive] [c]ouncil after studying what other states have done,
very careful consideration, came to the conclusion that
the old doctrine of governmental immunity based as it
is on that ancient principle that the [k]ing can do no
wrong was outmoded, and that with the great increase
of activities now being carried on by the municipalities
and the availability at reasonable cost of insurance pro-
tection, the municipalities should assume the liability
for injuries caused by their employees acting in the
performance of their duties, and within the scope of
their employment.’’ 7 H.R. Proc., supra, p. 2215.29
With respect to the financial burden assumed by the
municipalities as the result of the statutory indemnifica-
tion obligation, those who supported the law pointed
out that liability insurance could be purchased to cover
such losses. See 7 S. Proc., supra, p. 3230, remarks of
Senator Benjamin L. Barringer (‘‘[w]e felt that [the
municipalities’] liabilities in this respect could be cov-
ered by insurance if they wished, though in many cases,
apparently, in the larger cities they would prefer to be
self-insured’’); 7 H.R. Proc., Pt. 4, 1957 Sess., p. 2223,
remarks of Representative A. Searle Pinney (‘‘[t]he pub-
lic can protect itself through insurance or through one
of the self-insuring systems that some of the towns in
this state have already adopted’’); 7 H.R. Proc., Pt. 5,
1957 Sess., p. 2763, remarks of Representative Pruyn (‘‘The
bill provides that this liability of municipal employees
may be covered by insurance. I am informed that the
cost of this insurance is extremely reasonable.’’).
The legislative history contains overwhelming evi-
dence that these intentions directly motivated the stat-
ute’s enactment. The legislative intentions are clear
because the ultimate success of the 1957 legislation
depended heavily on the analysis and positive recom-
mendation of the Legislative Council, which was
charged with the task of studying the merits of the
proposal after the 1955 bill was vetoed by Governor
Ribicoff, and the Legislative Council’s report leaves no
doubt about which arguments won the day.30 After
reviewing the background of the proposed legislation
and describing some of the information considered by
the Legislative Council, including input from Connecti-
cut municipalities and a study of national trends pre-
pared by the Institute for Public Service of the
University of Connecticut, the council enumerated
seven reasons supporting the view that municipalities
should assume legal responsibility for the negligent acts
of its employees:31
‘‘1. The defense of governmental immunity should be
eliminated, and cities should assume the same public
liability for which a private individual or corporation
which is exercising the same powers would be liable.
‘‘2. The fear that extending municipal responsibility
in tort will cause the community to suffer serious losses
no longer exists because insurance may be carried on
its employees.
‘‘3. If a municipality is held liable for the negligence
of its agents, a more responsible type of employee
would be hired and thus the rights of the public would
to some extent be protected.
‘‘4. It should be a part of public policy of the commu-
nity that the party wronged should have a right of action
against the principal who made the wrong possible.
This should be a part of the protection furnished by
the municipality to its citizens in return for taxes.
‘‘5. The basis for the rule of governmental immunity
is historical and is not a sound or logical reason for
[nonliability] of a municipality.
‘‘6. With the greater increase in the functions and
powers of the municipality, the duties of the legal
department would be considerably reduced rather
than increased.
‘‘7. Greater justice would result if losses from injuries
were spread over society instead of being borne by
individuals.’’ Report of the Legislative Council (Decem-
ber 7, 1956) p. 12.
The Legislative Council recommended adoption of
the proposed legislation on the following grounds: ‘‘The
[c]ouncil believes that the old rule of governmental
immunity is outmoded and that, with the great increase
of activities being carried on by municipalities and the
availability of insurance at reasonable cost, municipali-
ties should assume liability for injury caused by their
employees acting in the performance of their duties
and within the scope of their employment. It believes
further that [the 1955 legislation vetoed by the governor]
is appropriate legislation to accomplish the desired
objective.’’ Id., p. 13.
The bill recommended by the Legislative Council
became law, over Governor Ribicoff’s veto. It was a
major piece of legislation. After reviewing the statute
and its legislative history in the process of adjudicating
a 1974 negligence case brought against a municipal
employee, Judge John F. Shea, Jr., stated: ‘‘In attempting
to determine the intent of the legislature, especially in
regard to expanding liability and removing common-
law governmental immunity, the court has studied the
legislative history of § 7-465. In particular, the [R]eport
of the [J]udiciary [C]ommittee of the [L]egislative
[C]ouncil has been reviewed. Although § 7-465 was not
fully enacted until the 1957 session of the legislature;
[P.A. 57-401, § 1]; a similar bill was passed in 1955.
Public Acts 1955, No. 72. This bill was vetoed by the
governor on the ground that it would remove the
defense of governmental immunity and expose munici-
palities to costly damages. . . . The proposal was then
referred to the [L]egislative [C]ouncil for further study.
It recommended passage of the act to the 1957 session
of the General Assembly. A review of the [R]eport of
the [L]egislative [C]ouncil and a study of the wording
of the bill convince this court that it was the intention
of the legislature to subject municipal employees, and
hence municipalities by way of indemnification, to
liability for discretionary as well as ministerial acts
so long as they were performed within the scope of the
employment. Municipalities were, however, not obliged
to indemnify for wilful or wanton acts.’’32 (Citation omit-
ted; emphasis added.) Lapierre v. Bristol, 31 Conn.
Supp. 442, 446, 333 A.2d 710 (1974). No other conclusion
is possible on the basis of the historical record.
Yet another municipal indemnification statute was
enacted by our legislature in 1971. See General Statutes
§ 7-101a.33 The details of the statute do not matter for
present purposes; nor does its close relationship to § 7-
465. What does matter is the explanation that this court
provided—in 1986—to explain the purpose of the stat-
ute, because we see this court acknowledging in frank
terms the fact that municipal employees personally
were subject to common-law negligence liability:
‘‘Absent such a statute, claimants injured by the miscon-
duct of municipal officers and employees acting in the
course of their official duties would be limited to
recourse against individual tortfeasors. The legislature
might reasonably have concluded that such limited
recourse would be unfair both to the injured claimant
and to the municipal officer or employee. From the
point of view of the claimant, he would be confronted
with a defendant who might well lack the resources
to provide adequate compensation for the claimant’s
injuries. From the point of view of the municipal officer
or employee, he would be required to shoulder ultimate
liability, as well as the costs of defense, for conduct
that was solely beneficial to his municipal employer. To
remedy these distortions that the law of [governmental]
immunity would otherwise impose upon the fair alloca-
tion of the risks of accident and other tortious miscon-
duct, the legislature provided for statutory
indemnification by municipalities to relieve individual
municipal employees and officers of personal liability
for injuries they cause, or are alleged to have caused,
to third parties on behalf of their municipalities. In
effect, the legislature has created a statutory analogue
for the [common-law] doctrine of respondeat superior.’’
Norwich v. Silverberg, 200 Conn. 367, 374–75, 511 A.2d
336 (1986).
D
The foregoing historical overview demonstrates
beyond any doubt that the common law of municipal
employee immunity and the correlative web of munici-
pal indemnification statutes existing as of 1986 had
established a legal landscape in which the municipal
employees themselves were understood to be person-
ally liable for the damages negligently caused by their
job-related activities, and the municipal employers were
liable by statute for the indemnification of those liabili-
ties. The employee’s liability for discretionary acts was
left unclear after § 7-465 was enacted in 1957,34 but,
regardless of whether the discretionary function doc-
trine had survived, everyone at the time understood
that, in any event, the scope of the employee’s personal
liability (and hence the scope of the municipality’s
indemnification obligation) encompassed a broad range
of day-to-day operational activities, from driving police
cars and fire trucks35 to ‘‘collect[ing] your garbage and
dig[ging] up your streets, and fix[ing] up the sidewalks
and do[ing] the other jobs that surround your city . . .
[and that] expose [municipal employees] to danger and
liability for the injuries that might happen to others in
the course of the duty they do to the municipality.’’ 7
H.R. Proc., Pt. 4, 1957 Sess., p. 2226, remarks of Repre-
sentative Krawiecki; see part I C of this opinion (dis-
cussing extensive legislative history reflecting similar
views about broad scope of municipal indemnifica-
tion statutes).
There are only two possible ways to explain the great
change that has transformed the legal landscape
described above into today’s law of near-absolute
immunity for municipalities and municipal employees.
One possibility is that the operative doctrinal changes
are all incorporated within the text and legislative policy
of § 52-557n, the statute enacted for the purpose of
codifying the law governing the liabilities and immuni-
ties of municipal entities and their employees. The other
possibility is that, in the past three decades, we have
gradually, and perhaps without even noticing, con-
structed a doctrine that has lost its foothold in the text
and legislative purpose of § 52-557n, resulting in an
expanded immunity doctrine that has gained momen-
tum and mass over time, like a snowball rolling down-
hill. An examination of the language, structure and
legislative history of § 52-557n, when considered along-
side the doctrinal history previously set forth, confirms
my belief that the latter explanation is correct.
Probably the most salient textual feature of § 52-557n
is the unmistakable fact, hidden in plain view as it were,
that the statute treats the liabilities and immunities of
municipalities as separate and distinct from the liabili-
ties and immunities of municipal employees. This
should come as no surprise in light of the fact that
the common law has always treated the entity and the
employee very differently for such purposes; see part
I C of this opinion; and I cannot explain why our cases
have overlooked the statutory text in this regard. The
statute makes it crystal clear that certain of its provi-
sions apply to both the municipality and municipal
employees, officers and agents, whereas other provi-
sions apply only to the municipality itself. More specifi-
cally, § 52-557n (a) governs the liabilities and
immunities of the municipality only. Its plain language
says so, more than once, in unmistakable terms. It
begins with these words: ‘‘Except as otherwise provided
by law, a political subdivision of the state shall be
liable for damages to person or property caused by
. . . [t]he 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 . . . .’’ (Emphasis added.) General Statutes § 52-
557n (a) (1) (A). Likewise, § 52-557n (a) (2) (B), which
contains the discretionary-duty exception, provides:
‘‘Except as otherwise provided by law, a political sub-
division of the state shall not be liable for damages to
person or property caused by . . . 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.’’ (Emphasis
added.) Nothing in subsection (a) purports to define,
delineate, or delimit the liability of municipal employ-
ees. Subsection (a) of the statute contains no provision
immunizing municipal employees from liability for their
negligent actions or omissions, discretionary or other-
wise. This is no technicality.
Nor is it an oversight. We know that the word choice
is deliberate because the corresponding language in
subsection (b) of the statute stands in stark contrast
to the language employed by the legislature in subsec-
tion (a). Unlike subsection (a), subsection (b) includes
both the municipality and its employees within its
scope: ‘‘Notwithstanding the provisions of subsection
(a) of this section, a political subdivision of the state
or any employee, officer or agent acting within the
scope of his employment or official duties shall not be
liable for damages to person or property . . . .’’
(Emphasis added.) General Statutes § 52-557n (b). The
difference between the two subsections could not be
more obvious.
The rules of construction take over from here and
lead to one inevitable conclusion: the plain and unam-
biguous language of § 52-557n (a) manifestly does not
impose liabilities or grant immunities to municipal
employees and, therefore, cannot serve as the basis
for the court’s decision with respect to the individual
defendants in the present case. The rules of construc-
tion require us to give meaning to the fact that § 52-
557n (a) addresses liability and immunity with respect
to municipalities only, whereas § 52-557n (b) applies to
both municipalities and their employees. It is ‘‘a funda-
mental tenet of statutory construction that [t]he use of
the different terms . . . within the same statute sug-
gests that the legislature acted with complete aware-
ness of their different meanings . . . and that it
intended the terms to have different meanings . . . .’’
(Internal quotation marks omitted.) Hasselt v. Luf-
thansa German Airlines, 262 Conn. 416, 426, 815 A.2d
94 (2003); accord Marchesi v. Board of Selectmen, 328
Conn. 615, 640–41, 181 A.3d 531 (2018); C. R. Klewin
Northeast, LLC v. State, 299 Conn. 167, 177, 9 A.3d 326(2010); Felician Sisters of St. Francis of Connecticut,
Inc. v. Historic District Commission, 284 Conn. 838,
850, 937 A.2d 39 (2008). Section 52-557n is not exempt
from this basic rule of construction. Indeed, this court
has found that far more subtle differences in word
choices contained in this very statute reflect meaningful
legislative choices that must be honored. See Ugrin v.
Cheshire, 307 Conn. 364, 385, 54 A.3d 532 (2012) (hold-
ing, with respect to language of § 52-557n (b) (4), that
‘‘[the] difference in the use and meaning of ‘if’ and
‘unless’ within the same statute cannot be ignored’’). If
we take the rules of construction seriously, we cannot
overlook this dispositive point.
The foregoing statutory analysis does not establish
definitively that immunity is unavailable to the individ-
ual defendants as a matter of law in the present case.
It does, however, establish without any doubt that the
majority cannot be correct that the individual defen-
dants are entitled to immunity by virtue of § 52-557n
because the relevant language of that statute plainly
and unambiguously applies only to municipalities, not
to municipal employees. There is no other way to read
the statutory text.36
The only issue left unaddressed and unclear in the
relevant statutory text is whether the legislature
intended to leave the employee unprotected by way of
municipal indemnification, which seems very unlikely,
or, instead, intended to retain indirect municipal liabil-
ity for the employee’s negligence under § 7-465 or other
applicable indemnification statutes. Presumably, the
statute’s ‘‘except as otherwise provided by law’’ proviso
answers this question by retaining the statutory indem-
nification.37 This conclusion is consistent with state-
ments in the legislative history indicating an intention
to impose liability on both the employee and the munici-
pality. Representative Robert G. Jaekle, the proponent
in the House of Representatives of the bill that became
§ 52-557n, expressed no uncertainty on the matter:
‘‘Many other questions were posed, statements, the
teacher negligently injures a student and [the municipal-
ities] are not going to [be] liable. Well, of course, they
are going to be liable. And this [bill] says so. But is the
town going to be liable if two students get in a fight
with each other and student one hurts student two? Is
the town liable under a theory that the teacher negli-
gently supervised the activities of the children? That is
[third-party] liability. If the teacher negligently injures
a student, the town is going to be liable under this
language. That is the thrust all the way through.’’
(Emphasis added.) 29 H.R. Proc., Pt. 16, 1986 Sess.,
p. 5942.
One additional point implicit in these observations
warrants emphasis. The only reference to the discre-
tionary function doctrine anywhere in the statute
appears in subsection (a), which, as I have noted,
speaks only to the liabilities and immunities of the
municipal entity. The statute provides that the entity
shall not be liable for damages caused by the employee’s
negligent acts or omissions acting in his or her discre-
tionary capacity. See General Statutes § 52-557n (a) (2)
(B). It leaves the liability of the employee to be deter-
mined under the common law, which the statute codi-
fied without alteration. See footnote 3 of this opinion.
This means that, under the statute, the employee retains
the same liabilities as existed under preexisting law,
subject only to the provisions of subsection (b) of the
statute. Subsection (a) does not expand or modify the
discretionary duty doctrine or any other aspect of
employee liability, and, therefore, any changes made to
that doctrine by this court since 1986, by definition,
contravene the legislature’s intention to codify preex-
isting law.
There are other lessons to be learned from reading
the statute as written. Far from making immunity the
near-absolute rule, as we have done since 1986 by judi-
cial construction, § 52-557n, as written by the legisla-
ture, strongly suggests that immunity is intended to be
an exception to a general rule of municipal liability.
Subdivision (1) of § 52-557n (a) provides that ‘‘a political
subdivision of the state shall be liable for damages to
person or property caused by’’ conduct that falls within
three basic categories of liability, two of which are very
broad: negligence, in § 52-557n (a) (1) (A), and nuisance,
in § 52-557n (a) (1) (C). Subdivision (2) of § 52-557n (a)
then establishes two limited exceptions to the general
rule of liability by providing that municipalities shall
not be liable for damages to person or property caused
by (1) acts or omissions ‘‘which constitute criminal
conduct, fraud, actual malice or wilful misconduct’’;
General Statutes § 52-557n (a) (2) (A); or (2) ‘‘negligent
acts or omissions which require the exercise of judg-
ment or discretion as an official function of the author-
ity expressly or impliedly granted by law.’’ General
Statutes § 52-557n (a) (2) (B).
Our decisions unfortunately have turned the statute
upside down by construction—liability is now the rare
exception to a general rule of immunity. In its current,
judicially revised version, the statute now reads: ‘‘Nei-
ther a political subdivision of the state nor any
employee, officer or agent thereof shall be liable for
damages to person or property caused by 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 unless such
damages are caused by acts or omissions that violate
the clear and express provisions of a city charter, ordi-
nance, regulation, rule, policy or other directive
requiring the employee, officer or agent to act in a
prescribed manner.’’ The actual statute says no such
thing, of course, and its language and structure both
imply a very different meaning. Our rules of construc-
tion prohibit judicial policymaking of this kind. See,
e.g., Commissioner of Emergency Services & Public
Protection v. Freedom of Information Commission,
330 Conn. 372, 393, 194 A.3d 759 (2018) (‘‘It is axiomatic
that the court itself cannot rewrite a statute to accom-
plish a particular result. That is the function of the
legislature.’’ (Internal quotation marks omitted.)).38
One additional structural feature of § 52-557n is of
particular relevance in the present case. Subsection (b)
contains a series of express exceptions or limitations
to the liability rule set forth in subsection (a). It enumer-
ates ten specific circumstances in which neither the
municipality nor the employee is liable, or is liable
only under certain limited conditions, notwithstanding
anything in subsection (a) to the contrary. See General
Statutes § 52-557n (b) (1) through (10). These special
cases cover a wide variety of circumstances in which
the immunity had not previously been clearly estab-
lished. The legislature evidently wished to make its
intentions known with respect to these particular sce-
narios so that there would be no doubt in the future.
The enumerated circumstances include, for example,
the condition of unimproved municipal property; Gen-
eral Statutes § 52-557n (b) (1); the initiation of any judi-
cial or administrative proceeding, unless ‘‘commenced
or prosecuted without probable cause or with a mali-
cious intent to vex or trouble’’; General Statutes § 52-
557n (b) (5); and the ‘‘failure to make an inspection or
making an inadequate or negligent inspection of any
property, other than property owned or leased by or
leased to such political subdivision, to determine
whether the property complies with or violates any law
or contains a hazard to health or safety, unless the
political subdivision had notice of such a violation of
law or such a hazard or unless such failure to inspect
or such inadequate or negligent inspection constitutes
a reckless disregard for health or safety under all the
relevant circumstances . . . .’’ General Statutes § 52-
557n (b) (8).
Two interrelated features of this statutory enumera-
tion leap out. First, none of the ten exceptions relates
to the negligent operation of motor vehicles under rou-
tine or emergency conditions. Motor vehicles are not
mentioned at all, and there is not even a whisper of
any intention to repeal or alter the long existing legal
regime imposing liability for the negligent operation of
a municipal vehicle, whether routine or emergency.39
The majority has an obligation, in my view, not merely
to explain why we should assume that the legislature
intended to create immunity, sub silentio, for the negli-
gent operation of motor vehicles, but why we should
assume that it did so silently in a statute that contains
a lengthy list of express liability exemptions for immuni-
ties not already plainly established under the law
existing at the time § 52-557n was enacted.
Second, and relatedly, there is no indication that the
legislature intended this particularized enumeration to
be nonexhaustive or merely illustrative; to the contrary,
the legislature manifestly paid very close attention to
detail in fashioning subsection (b). The statutory enu-
meration is carefully drawn and covers many different
scenarios, some rather obvious and others obscure in
nature. The legislature drew fine lines and made
nuanced distinctions in its treatment of the circum-
stances selected for inclusion. We cannot avoid applica-
tion of the canon of expressio unius est exclusio
alterius. See, e.g., DeNunzio v. DeNunzio, 320 Conn.
178, 194, 128 A.3d 901 (2016) (‘‘[u]nder the doctrine of
expressio unius est exclusio alterius—the expression
of one thing is the exclusion of another—we presume
that when the legislature expresses items as part of a
group or series, an item that was not included was
deliberately excluded’’).40
Finally, I address the majority’s suggestion that the
doctrine of legislative acquiescence operates to ratify
our misconstruction of § 52-557n due to the passage of
time. ‘‘[S]urely,’’ the majority states, ‘‘at some point in
the . . . years that have passed since the passage of
§ 52-557n, the legislature would have weighed in [to
correct such an error].’’ Footnote 12 of the majority
opinion. This is an odd theory of lawmaking. It appears
to distort the constitutionally prescribed order of things
by relying on a later legislative body, the members of
which may have had no role at all in the original legisla-
tion, to review judicial opinions, not for the purpose of
ensuring fidelity to the original legislative intention, but
to decide if the court’s gloss comports with the later
legislature’s idea of good public policy at that time. I
do not maintain that the doctrine of legislative acquies-
cence is rotten to its core; it may, under limited circum-
stances, provide a modicum of assistance when
construing a statute. See State v. Salamon, 287 Conn.
509, 522, 949 A.2d 1092 (2008) (noting that ‘‘legislative
inaction is not always the best of guides to legislative
intent’’ but providing examples of when court nonethe-
less has done so (internal quotation marks omitted)).
But legislative acquiescence should not be invoked to
justify or ratify an erroneous construction of a statute,
even if a new legislature later may consider that con-
struction to be acceptable or even salutary. I thus agree
with Justice Frankfurter that ‘‘we walk on quicksand
when we try to find in the absence of corrective legisla-
tion a controlling legal principle.’’ Helvering v. Hallock,
309 U.S. 106, 121, 60 S. Ct. 444, 84 L. Ed. 604 (1940).
There are numerous reasons to tread cautiously. Here
is a good summary: ‘‘The verdict of quiescent years
cannot be invoked to baptize a statutory gloss that is
otherwise impermissible. [The United States Supreme
Court] has many times reconsidered statutory construc-
tions that have been passively abided by Congress. Con-
gressional inaction frequently betokens unawareness,
preoccupation, or paralysis. It is at best treacherous to
find in congressional silence alone the adoption of a
controlling rule of law. . . . Where, as in the case
before [the court], there is no indication that a subse-
quent Congress has addressed itself to the particular
problem, we are unpersuaded that silence is tantamount
to acquiescence . . . .’’ (Citations omitted; internal
quotation marks omitted.) Zuber v. Allen, 396 U.S. 168,
185–86 n.21, 90 S. Ct. 314, 24 L. Ed. 2d 345 (1969). In
any event, and regardless of one’s views on the subject
generally, everyone appears in agreement that the doc-
trine of legislative acquiescence should carry no force
when, as here, the legislature has not revisited the statu-
tory provisions at issue since the relevant cases were
decided.41
I conclude this section by explaining that my purpose
is not to cry over spilled milk. I am aware that the
damage in large part has been done, and I am realistic
enough to understand that this court is not soon going
to reverse course with respect to most of the doctrinal
changes that I critique in part I of this opinion. I also
understand that it is unlikely that the legislature will
restore the statute to its original meaning now that this
court has done the work that the legislature was unable
or unwilling to do—as a result of the various demands,
imperatives, deal-breakers, trade-offs and other politi-
cal forces at play between and among the political stake-
holders and interest groups at the negotiating table—
in 1986, when the provisions of § 52-557n were ham-
mered out as part of a much larger legislative initiative
known as the Tort Reform Act of 1986. See, e.g., San-
zone v. Board of Police Commissioners, 219 Conn. 179,
185, 592 A.2d 912 (1991) (‘‘[a]s finally enacted, the [Tort
Reform Act of 1986] represents a complex web of inter-
dependent concessions and bargains struck by hostile
interest groups and individuals of opposing philosophi-
cal positions’’). Nor is my intention to scold the court
for its errant construction of a statute. Section 52-557n
is poorly built. It contains vague terms that reflect
opaque and perhaps even contradictory intentions, and,
by its terms, it incorporates wholesale a patchwork
of common-law doctrines that lack any overarching
internal consistency themselves because each is the
product of highly particularized contextual considera-
tions that have no currency in society today. The task
of interpretation becomes still more challenging
because the statute repeatedly states that its provisions
apply only ‘‘[e]xcept as otherwise provided by law’’;
General Statutes § 52-557n (a); a phrase that we have
construed to include statutory and common law alike.
We are left to find our way in a swirling vortex of rules
swallowed by exceptions swallowed by rules and more
exceptions, and it is no wonder that we have lost our
bearings.
My purpose, rather, is to issue a plea that we open
ourselves to the possibility that we have taken things
too far. We have issued what I consider to be a regretta-
ble series of judicial decisions that has decimated a
previously active and important realm of negligence
law, and I hope that we will be more careful in the
future. Real people have sustained, and will continue
to sustain, real harm, sometimes catastrophic in nature,
because of the negligence of municipal employees
whose careless job performance has created or
increased the risk of harm to innocent victims in public
places. Since 1986, our cases have expanded the immu-
nity for these employees on the theory that their exer-
cise of discretion should not be second-guessed
because such oversight may ‘‘cramp’’ their exercise of
discretion. See, e.g., Doe v. Petersen, 279 Conn. 607,
609–10, 614, 903 A.2d 191 (2006) (concerns about
‘‘cramp[ing] the exercise of official discretion’’ justify
extending immunity to town employee’s negligent mis-
handling of teenage girl’s report that she was sexually
molested by her instructor at municipal tennis pro-
gram). I find this reasoning nothing short of nonsensi-
cal, at least as applied to day-to-day operational
activities such as driving a car, shoveling snow from a
walkway, and opening a hallway door. The fundamental
public policy underlying our negligence law is that we
want to inhibit carelessness. That is what tort liability
rules do. Negligence law gives social actors (and usually
their employers) a financial incentive to consider the
safety of others before engaging in conduct that entails
the foreseeable risk of harm. This has always been our
state’s general policy applicable to municipal employ-
ees, and it was extended to municipal employers in our
indemnification statutes. ‘‘We cannot afford the cost of
operating with due care’’ is not an acceptable reason,
in my opinion, to fashion a doctrine exempting a large
class of social actors from the legal requirements appli-
cable to the rest of society.
II
A
I leave behind the generalized doctrinal critique set
forth in part I of this opinion and now address the
present case. Nothing that follows, in either part II or
part III of this opinion, depends for its validity on the
reader’s acceptance of the foregoing critique. I start
part II with the same point of emphasis, however, by
highlighting the particular context in which this case
arose. Officers Renaldi and Jasmin were driving motor
vehicles on a public roadway. That context is critical
because the law imposes a duty—a legally enforceable
obligation to drive with due regard for the safety of
others—on all persons operating a motor vehicle on
public roads.42 This is not a mere ‘‘duty in the air’’43 or
a duty that disappears when a police officer activates
his lights and siren. The plain language of § 14-283 (d)
says exactly the opposite: ‘‘The provisions of this sec-
tion shall not relieve the operator of an emergency
vehicle from the duty to drive with due regard for the
safety of all persons and property.’’ (Emphasis added.)
Indeed, this court reached the very same conclusion in
a unanimous decision authored by former Chief Justice
Peters.44 See Tetro v. Stratford, supra, 189 Conn. 609–11
(affirming judgment against town police officers for
negligent operation of vehicle during vehicular pursuit).
If the plain statutory text and unmistakable import of
Tetro were not enough to prove the point, there is addi-
tional evidence—I would say there is overwhelming
legal authority—to the same effect dating back nearly
one hundred years. The majority’s holding today inex-
plicably changes all of this by conferring blanket immu-
nity on police officers who fail to exercise reasonable
care while engaging in pursuits on public roads. In doing
so, the majority not only engages in what I consider to
be very poor policymaking, but it does so in the face
of the legislature’s obvious and express intention to
hold operators of emergency vehicles legally responsi-
ble for the negligent operation of their vehicles at all
times.
At the outset, I disagree with the efforts by the major-
ity opinion and Chief Justice Robinson’s concurring
opinion to characterize this appeal as not being about
driving. In my view, the plaintiff’s negligence claim, and
this appeal from the striking of that claim, relate directly
to the acts and omissions of the defendant officers in
driving their vehicles without due regard for the safety
of the plaintiff’s decedent. I understand that this may
become an easier case to decide if the appeal ‘‘does
not concern . . . whether and under what circum-
stances the duty to drive with due regard for the safety
of others is discretionary or ministerial.’’ Footnote 5 of
the majority opinion. But that is not the situation here.
The plaintiff’s fundamental claim is that the plain and
mandatory language of § 14-283 (d) expressly imposes
a duty on operators of emergency vehicles ‘‘to drive
with due regard for the safety of all persons and prop-
erty.’’ (Emphasis added.) General Statutes § 14-283 (d).
Every substantive pleading and motion filed in this case,
by either side, demonstrates that the plaintiff’s claims,
and the defendants’ defenses, necessarily require con-
sideration of the immunity question, as applied to the
vehicular pursuit from its initiation to its tragic end.45
Although, no doubt, a part of the plaintiff’s appellate
brief (part B 1) focuses attention on the police officers’
decision to initiate the pursuit, and perhaps overempha-
sizes the importance of that threshold issue in the over-
all analysis, another part (part B 2) argues that the duty
of care applies during an emergency pursuit to the act
of driving itself.46 As one would expect in a case in
which the plaintiff’s legal and factual claims always
have included the entire duration of the police pursuit,
the appellate argument extends beyond the decision to
initiate the chase. Thus, portions of the introductory
part of the plaintiff’s brief, portions of the statement
of facts, and the entirety of part B 2 of the argument
all serve the plaintiff’s claim that the act of driving—
the dangerous operation of an emergency vehicle at
high speeds rather than the decision only to initiate the
pursuit—is the activity that makes this case different
from the typical immunity situation and that requires
a different outcome.47 The portions of the plaintiff’s
brief quoted by the majority and the Chief Justice’s
concurrence, which focus exclusively on the officer’s
decision to initiate the pursuit, do not nullify or blot
out the other portions of the plaintiff’s brief (including
those quoted in footnote 47 of this opinion), which
the plaintiff offers in support her alternative argument,
contained in part B 2 of her brief, contending more
broadly that immunity does not attach to the officer’s
negligent operation of his vehicle during the pursuit.48
Although, at one level, I take comfort that the majority
chooses to leave for another day the core question
raised on appeal—namely, whether immunity attaches
to the negligent operation of a police car during a
chase—I do not believe that this choice is fair to the
plaintiff, and, therefore, I will address the issue left
undecided by the majority.
We can begin on common ground. I take it that we
can all agree that police officers and their municipal
employers are subject to liability under existing law
for personal injuries caused by the officer’s negligent
operation of a motor vehicle in routine (i.e., nonemer-
gency) conditions. See, e.g., Winn v. Posades, 281 Conn.
50, 59–60, 913 A.2d 407 (2007) (holding that plaintiff
must prove proximate causation in negligence case
against municipal police officer based on excessive
speed in nonemergency situation); Dumas v. Mena, 82
Conn. App. 61, 62, 842 A.2d 618 (2004) (affirming judg-
ment imposing liability for personal injuries caused by
negligent operation of motor vehicle by on-duty police
officer); Hunter v. Healey Car & Truck Leasing, Inc.,
41 Conn. App. 347, 349–51, 675 A.2d 919 (plain error
for trial court to direct verdict for police officer in
negligence action brought on behalf of child struck by
vehicle driven by officer while on-duty), appeal dis-
missed, Connecticut Supreme Court, Docket No. SC
15483 (December 18, 1996). The point is confirmed by
the very existence of our various indemnification stat-
utes enacted to protect municipal employees, including
police officers, from the financial consequences of com-
mon-law tort liability for damages caused by their on-
duty, negligent operation of motor vehicles; concerns
about liability arising from negligent driving in large
measure account for the enactment of our municipal
indemnification statutes. See part I C of this opinion.
It is well established that police officers are situated
no differently from any other municipal employee in
this respect. See, e.g., Rokus v. Bridgeport, 191 Conn.
62, 63–64, 72, 463 A.2d 252 (1983) (affirming judgment
against city and municipal employee for personal injur-
ies caused by negligent operation of municipally-owned
dump truck); Muckle v. Pressley, 185 Conn. App. 488,
489, 197 A.3d 437 (2018) (appeal from judgment against
city and employee for property damage resulting from
negligent operation of motor vehicle by municipal
employee in course of employment); Madsen v. Gates,
85 Conn. App. 383, 385–86, 857 A.2d 412 (affirming judg-
ment in favor of one plaintiff and against second plain-
tiff struck by town vehicle), cert. denied, 272 Conn. 902,
863 A.2d 695 (2004); cf. Fiano v. Old Saybrook Fire Co.
No. 1, Inc., 332 Conn. 93, 95–97, 209 A.3d 629 (2019)
(holding that municipality was not liable for negligent
operation of motor vehicle driven by volunteer fire-
fighter while not engaged in course of employment).
Historically speaking, ordinary negligence principles
so plainly apply to municipal employees who drive
motor vehicles on public roadways that the rubric of
municipal immunity typically is not invoked at all in
this context. The clear thrust of cases such as Winn,
Dumas, Hunter, Rokus, Muckle, and Madsen demon-
strates that the usual, day-to-day operation of motor
vehicles by municipal employees on public roadways
is not subject to the municipal employee immunity doc-
trine, period. This is true because, unlike situations
in which no particularized legal duty is owed by the
municipal employee to ‘‘protect’’ the public,49 the munic-
ipal employee operating a motor vehicle does owe a
duty of care to other drivers and their passengers,
pedestrians, and others lawfully using the roadway.
Every driver—public or private, on-duty or off—owes
a duty of care to every other person using the roadway,
whether they be a driver, passenger, or pedestrian. See,
e.g., Mahoney v. Beatman, 110 Conn. 184, 188, 147 A.
762 (1929) (‘‘[t]he defendant owed to the plaintiff and
all travelers upon the highway the duty of exercising
reasonable care in operating his car so that there might
result from such operation no probability of harm to
them’’); Heimer v. Salisbury, 108 Conn. 180, 183, 142
A. 749 (1928) (‘‘The appellant’s criticism of this charge
seems to be that the standard of duty for the police
officer is said to be the same as for any other user of
the highway. In this the court was right. The general
standard of care which the law requires is the same for
all using the highway—that which a reasonably prudent
person would exercise under the same circum-
stances.’’); State v. Carter, 64 Conn. App. 631, 642, 781
A.2d 376 (‘‘[a]n operator of a motor vehicle is always
under a duty to exercise reasonable care’’), cert. denied,
258 Conn. 914, 782 A.2d 1247 (2001); see also General
Statutes § 14-300d (‘‘each operator of a vehicle shall
exercise due care to avoid colliding with any pedestrian
or person propelling a human powered vehicle and shall
give a reasonable warning by sounding a horn or other
lawful noise emitting device to avoid a collision’’);
Palombizio v. Murphy, 146 Conn. 352, 357, 150 A.2d
825 (1959) (‘‘[a driver] is required to keep a reasonable
lookout for any persons and traffic he is likely to
encounter, and he is chargeable with notice of dangers
of whose existence he could become aware by a reason-
able exercise of his faculties’’); Connecticut Civil Jury
Instructions 3.7-17, available at http://www.jud.ct.gov/
JI/Civil/civil.pdf (last visited June 22, 2020) (‘‘[t]he
driver of an automobile has a duty to use reasonable
care to avoid injury to other persons using the road’’).
Our legal culture, as it functions each and every day in
law offices, legal departments, and courthouses across
Connecticut, is attuned to the express legislative pur-
pose underlying the various indemnification statutes
discussed in part I of this opinion, which were enacted
for the very purpose of indemnifying police officers,
firemen, and other municipal employees for personal
liability arising from motor vehicle accidents caused by
their negligent driving at work. Courts and litigants
involved in these cases apparently consider it self-evi-
dent that municipal employees could be found liable
for the negligent operation of a motor vehicle.50
What has been said so far likely explains why it has
taken until now, approximately one century after
municipal employees first began using automobiles to
perform their jobs, for this court even to be asked to
decide whether driving is ‘‘ministerial’’ or ‘‘discretion-
ary’’ for purposes of our municipal employee immunity
doctrine.51 It has not taken so long for the question to
arise because municipal employees are exceptionally
careful drivers. The real reason is that, historically,
everyone has always taken it for granted that all drivers
owe a duty of care to all other users of the roadway,
and, at least in the absence of an express legislative
exemption from this rule,52 municipal immunity does
not apply. The discretionary versus ministerial issue
never has been part of the analysis. Indeed, we know
with certainty that, when the personal liability of munic-
ipal employees for negligent driving became an issue
of public concern in the middle of the last century, the
legislature did not even consider conferring immunity
on those employees; it did virtually the opposite by
effectively removing the municipality’s immunity via
the indemnification statutes.
Nor does the discretionary/ministerial distinction make
any real sense in the context of driving. To force the
analysis reflects a concession to the artificial demands
of doctrinal pigeonholes rather than a useful exercise
in legal reasoning—no one honestly would assert that
driving a car requires less in the way of judgment and
discretion than, for example, the ‘‘discretionary’’ acts
of shoveling snow or wiping down wet bleachers.53 To
the contrary, anyone who drives a car knows that safe
driving requires far more than rote ministerial compli-
ance with pre-scripted directives. Safe driving depends
largely on the operator’s human ability to react appro-
priately to the amazingly complicated, multi-variant, and
ever-present risk of unpredictable, unforeseen and some-
times unforeseeable roadway occurrences requiring a
near-instantaneous exercise of coordinated perceptive,
cognitive and muscular activity.54 This is true of all
driving in all vehicles, whether personal cars, municipal
vehicles, dump trucks, pickup trucks or garbage trucks.
Safe driving, in short, requires good judgment, which
is how we sometimes refer to the prudent deployment
of discretionary decision making.
In point of fact, the ‘‘rules of the road’’ recognize and
operate on the inherently discretionary nature of the
activity we call driving. This is to say that many of our
driving rules, whether statutory or common-law, do not
eliminate the role of discretion by providing directives
susceptible to mechanical and ministerial application.
They do exactly the opposite. The rules demand the
exercise of discretion and good judgment.55 They do so
in recognition of the fact that the safe operation of a
motor vehicle often involves the very type of split-sec-
ond decision making that, in other contexts, serves as
the signature feature of what our immunity doctrine
labels a ‘‘discretionary’’ act.56 Despite this rather obvi-
ous point, our cases have never conferred immunity to
municipally-employed drivers in the ordinary course;
nor has the legislature ever given any indication that it
intends such a result by statute.
A rule of immunity would be exceedingly difficult to
justify in this context because it would mean that our
municipal employees would be free to drive negligently
with impunity. See Daley v. Kashmanian, 193 Conn.
App. 171, 188, 219 A.3d 499 (2019) (observing that, if
‘‘under all circumstances a municipal police officer
operating a motor vehicle is engaged in discretionary
conduct,’’ then this would ‘‘immuniz[e] the officer and
municipality from damages arising from all violations of
motor vehicle statutes’’), petition for cert. filed (Conn.
October 23, 2019) (No. SC 190245), and cross petition
for cert. filed (Conn. November 1, 2019) (No. SC
190256); Williams v. New London, Superior Court, judi-
cial district of New London, Docket No. CV-XX-XXXXXXX-
S (April 7, 2014) (58 Conn. L. Rptr. 86, 88) (if routine
driving was not ministerial, municipal drivers could
‘‘claim that they have discretion to run stop signs, ignore
pedestrians in the crosswalk, or exceed the speed limit
while driving through city streets’’). Among other
regrettable consequences, an immunity regime in this
context would (1) leave the victim uncompensated for
damages sustained due to the defendant’s negligence
when operating a vehicle on public roads,57 and (2)
remove the deterrent effect that the tort system exer-
cises on all other drivers and their employers (through
the doctrine of respondeat superior and indemnification
statutes), who otherwise would face a far lessened
financial incentive to encourage safe driving and dis-
courage carelessness. See generally Doe v. Cochran, 332
Conn. 325, 363, 210 A.3d 469 (2019) (‘‘[t]he fundamental
policy purposes of the tort compensation system [are]
compensation of innocent parties, shifting the loss to
responsible parties or distributing it among appropriate
entities, and deterrence of wrongful conduct’’ (internal
quotation marks omitted)); Robbins v. Physicians for
Women’s Health, LLC, 311 Conn. 707, 722–23, 90 A.3d
925 (2014) (‘‘[b]y assigning responsibility to employers
for the legal consequences of their employees’ errors of
judgment and other lapses, the doctrine of respondeat
superior ‘creates an incentive for principals to choose
employees and structure work within the organization
so as to reduce the incidence of tortious conduct’ ’’),
quoting 1 Restatement (Third), Agency § 2.04, comment
(b), p. 141 (2006); see also W. Keeton et al., supra,
§ 69, pp. 500–501 (employer liable for torts of employee
because employer has control over selection, instruc-
tion, and supervision of employees, will profit from
enterprise, and is better able to bear costs of doing
business).
These implications have not been lost on the courts
of our sister states. Even those states applying the min-
isterial/discretionary analysis consistently hold routine
driving by municipal employees to be a ministerial func-
tion. See, e.g., Evans v. Cotton, 770 So. 2d 620, 623 (Ala.
Civ. App. 2000) (correctional officer was engaged in
ministerial function when driving van); Snyder v. Cur-
ran Township, 167 Ill. 2d 466, 472–73 and n.4, 657 N.E.2d
988 (1995) (overruling prior decision holding that driv-
ing snowplow is discretionary); Jones v. Lathram, 150
S.W.3d 50, 53 (Ky. 2004) (‘‘the act of safely driving a
police cruiser, even in an emergency, is not an act that
typically requires any deliberation or the exercise of
judgment’’); Prince George’s County v. Brent, 414 Md.
334, 356, 995 A.2d 672 (2010) (‘‘ordinarily the operation
of a vehicle by [anyone], including a public official,
is a mere ministerial act’’ (internal quotation marks
omitted)); Davis v. Little, 362 So. 2d 642, 643–45 (Miss.
1978) (member of county board of supervisors was
engaged in ministerial act when driving pickup truck);
Brown v. Tate, 888 S.W.2d 413, 415 (Mo. App. 1994) (‘‘a
police officer, driving on the public streets and high-
ways, in a [nonemergency] situation, has no blanket
immunity from liability for negligence in the operation
of his car’’); Salek v. Burton, Docket No. 2865, 1979 WL
207732, *1 (Ohio App. July 18, 1979) (‘‘[t]he driving of
vehicles is . . . a ministerial act and not immune’’);
Kyllo v. Panzer, 535 N.W.2d 896, 903 (S.D. 1995) (‘‘[i]t
is inconceivable that driving a motor vehicle is anything
other than a ministerial function’’); Victory v. Far-
adineh, 993 S.W.2d 778, 781 (Tex. App. 1999) (‘‘an offi-
cer driving a motor vehicle while on official,
[nonemergency] business is performing a ministerial
act’’); Morway v. Trombly, 173 Vt. 266, 273, 789 A.2d
965 (2001) (operation of snowplow was ministerial);
Heider v. Clemons, 241 Va. 143, 145, 400 S.E.2d 190(1991) (‘‘[w]hile every person driving a car must make
myriad decisions, in ordinary driving situations the duty
of due care is a ministerial obligation’’); Legue v. Racine,
357 Wis. 2d 250, 298, 849 N.W.2d 837 (2014) (driving is
‘‘a paradigmatic ministerial act’’).
Municipal police officers, like all other drivers, were
and remain legally liable at common law for damages
caused by their negligent operation of a motor vehicle
during nonemergency conditions. This legal liability
flows from the legal duty owed by all drivers, public
and private alike, to the occupants of all other vehicles,
pedestrians, and others lawfully using the roadway. Pur-
suant to our indemnification statute, § 7-465, a munici-
pal employee’s personal financial exposure in this con-
text is removed by the employer’s indemnification obliga-
tion.
B
The only remaining issue—the one presented by this
case—is whether the foregoing analysis changes when
the municipal employee operates a motor vehicle in
‘‘response’’58 to an emergency under the aegis of § 14-
283 rather than in the ordinary course under the ordi-
nary rules of the road. The majority sidesteps the issue
by addressing only the initiation of the pursuit, but its
analysis contains dicta indicating its view that every-
thing changes when the vehicle is being operated in an
emergency capacity within the purview of § 14-283. I
respectfully disagree. In my opinion, the fact that a
municipal police officer activates his emergency lights
and engages in vehicular pursuit does not confer immu-
nity on the officer for his negligent operation of a motor
vehicle resulting in personal injury or property damage.
For the reasons that follow, I do not even view it as a
close legal question under the applicable law. Indeed,
the statute itself answers the question in the following
clear and unambiguous language: ‘‘The provisions of
this section shall not relieve the operator of an emer-
gency vehicle from the duty to drive with due regard
for the safety of all persons and property.’’ General
Statutes § 14-283 (d). Neither our common law nor any
statute in Connecticut has ever conferred immunity on
drivers in this context.
Our emergency vehicle statute, now codified at § 14-
283, has existed in some form since 1925, and, under
this statutory scheme, it always has been understood
that the operator of an emergency vehicle remains sub-
ject to a legally enforceable duty of care, i.e., the opera-
tor enjoys no immunity from liability for the negligent
operation of the emergency vehicle. The historical evi-
dence, including this court’s own precedent, demon-
strates beyond any doubt that the majority’s conferral
of immunity in the present case is without basis in
Connecticut law, as it has existed for nearly 100 years.
The first version of the emergency vehicle statute,
passed as chapter 79 of the Public Acts of 1925, applied
to ‘‘[t]he driver or operator of an ambulance, while
answering a call or taking a patient to a hospital, and the
driver or operator of a fire company or fire department
while on the way to a fire,’’ and gave such emergency
vehicles ‘‘the right of way over all other traffic upon
any public or private way.’’ Public Acts 1925, No. 79,
§ 1 (P.A. 25-79). Unlike the current statute, P.A. 25-79
did not include any mention of a duty of care; it was
not until 1971 that the legislature added subsection (d)
to § 14-283, which expressly codified that duty. See
Public Acts 1971, No. 538 (P.A. 71-538). But, from the
beginning, this court always has held that drivers sub-
ject to the emergency vehicle statute owed a common-
law duty of care to all other users of the roadway. The
first case on this point was decided in 1932, when this
court held that, under the emergency vehicle statute,
the fact that an ambulance drove through a red light
‘‘did not, of itself, render negligent the act of its driver
. . . .’’ (Emphasis added.) Leete v. Griswold Post, No.
79, American Legion, 114 Conn. 400, 407, 158 A. 919(1932). The court then explained that ‘‘[i]t does not
follow that [the emergency vehicle statute] confers a
privilege to neglect the requirements of reasonable care,
under the circumstances, in the operation of the
excepted vehicles; the rate of speed or manner of opera-
tion in view of the conditions existing, or disregard of
reasonably obvious hazards from or to other vehicles
or to pedestrians may be such as to constitute negli-
gence.’’ Id. In other words, the duty of reasonable care
remains during emergency operation.
The very next year, this court held that the trial court
properly denied a plaintiff’s request for a jury instruc-
tion that a volunteer firefighter acting in an emergency
is not required to exercise the same degree of care as
under ordinary circumstances. See Tefft v. New York,
New Haven & Hartford Railroad Co., 116 Conn. 127,
129, 133–34, 163 A. 762 (1933). The court reasoned that,
‘‘[w]hen an alarm of fire is sent out, it is of great impor-
tance that it be answered with celerity; but the driver
of [a] fire apparatus, proceeding to a fire, is bound to
exercise the care and control for his own safety and that
of others which is reasonable under the circumstances.’’
Id., 134. The driver of the fire truck is ‘‘required to
use the care of a reasonably prudent man under the
circumstances . . . .’’ Id. And, one year later, this court
affirmed a judgment in a negligence case brought by a
volunteer firefighter against the fire association and
another firefighter when he was injured responding to
a fire alarm. See Voltz v. Orange Volunteer Fire Assn.,
Inc., supra, 118 Conn. 308–309. The defendants argued
that, ‘‘because of the emergency existing when an alarm
of fire was given to which the fire apparatus must
respond without delay, the driver of the apparatus was
not bound to exercise reasonable care for the safety of
others . . . .’’ Id., 311. This court rejected that argu-
ment as ‘‘without merit,’’ quoting Tefft for the proposi-
tion that the driver of a firetruck ‘‘ ‘is bound to exercise
the care and control for his own safety and that of
others which is reasonable under the circumstances.’ ’’
Id.; see also Matcheski v. Gutkin, 19 Conn. Supp. 29,
32, 109 A.2d 879 (1954) (‘‘[t]he fact that [the police
officer responding to an emergency call] had the right
of way did not excuse him from operating his car with
reasonable care’’); Kittel v. Quish, 15 Conn. Supp. 232,
232–34 (C.P. 1947) (notwithstanding provisions of emer-
gency vehicle statute, driver of ambulance traveling at
sixty miles per hour through stop sign was negligent).
On the basis of this historical review, I believe that
we can conclude with near certainty that the addition of
subsection (d) in 1971 to the emergency vehicle statute;
P.A. 71-538; codified what was already a settled point
of law in Connecticut: operators of emergency vehicles
owe a legally cognizable duty of care to other persons
on the roadways. It is no coincidence that the standard
of care contained in § 14-283 (d) is the familiar negli-
gence standard of care—the same standard that this
court articulated in Leete, Tefft, and Voltz, and that
applies every day in motor vehicle negligence cases in
courthouses around the state. Section 14-283 (d)
reflects an explicit and unequivocal statement by the
legislature that considerations of public safety on our
roads must always remain superior and paramount.
Notwithstanding the fact that operators of emergency
vehicles are accorded special privileges under subsec-
tions (a) through (c) of the statute, subsection (d)
reminds us that those privileges do not preempt, super-
sede or otherwise displace (that is, ‘‘relieve the operator
from’’) the cardinal rule applicable to all drivers at all
times, which imposes a duty to operate one’s vehicle
with due care for the safety of others.
The most basic rules of construction teach that sub-
section (d) was included in the statute for a reason;
Pereira v. State Board of Education, 304 Conn. 1, 58,
37 A.3d 625 (2012) (citing ‘‘the well-founded principle
that we presume that the legislature acts intentionally
when it includes certain words or provisions within a
statute’’); and courts cannot choose to ignore such a
provision, treat it as superfluous, or render it meaning-
less by interpretive gloss. American Promotional
Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937
A.2d 1184 (2008) (‘‘[i]nterpreting a statute to render
some of its language superfluous violates cardinal prin-
ciples of statutory interpretation’’); see also General
Statutes § 1-1 (a) (‘‘[i]n the construction of the statutes,
words and phrases shall be construed according to the
commonly approved usage of the language’’); Maturo
v. State Employees Retirement Commission, 326 Conn.
160, 176, 162 A.3d 706 (2017) (‘‘[w]hen a term is not
defined in a statute, we begin with the assumption that
the legislature intended the word to carry its ordinary
meaning’’). The words mean what they say.
What the words in § 14-283 (d) say is that a police
officer driving an emergency vehicle has a ‘‘duty to
drive with due regard for the safety of all persons and
property.’’ General Statutes § 14-283 (d). The statute
also tells us that the referenced duty is the same legal
duty owed by all drivers, whether public or private, to
operate their vehicles at all times with due regard for
the safety of others.59 See part II A of this opinion (dis-
cussing this duty of care). We know that it is the same
duty that applies under routine conditions because the
provision declares that the driving privileges afforded
to emergency vehicle operators under the statute ‘‘shall
not relieve the operator . . . from the duty to drive
with due regard for the safety of all persons and prop-
erty.’’ (Emphasis added.) General Statutes § 14-283 (d).
The statutory duty is the same duty that the driver had
under nonemergency circumstances—the legal duty
that, if breached, is enforceable in a negligence lawsuit.
See part II A of this opinion. There is no ‘‘relief’’ from
that duty when the driver is operating under emer-
gency conditions.
If more is needed, there is a wealth of additional
evidence that immunity does not operate to shield
police officers from negligence liability when engaged
in vehicular pursuit. One such item is the unanimous
decision of this court in 1983, authored by Justice
Peters, upholding a damages award when a jury found
that two police officers had negligently operated their
cruiser during an emergency pursuit. See Tetro v. Strat-
ford, supra, 189 Conn. 604. The defendants argued on
appeal that the usual principles of common-law tort
liability ‘‘are, for emergency vehicles like police cars,
superseded by the provisions of . . . § 14-283.’’ Id.,
607–608. This court rejected the argument in no uncer-
tain terms: ‘‘[O]ur common law and our statutes do not
confer upon police officers, whose conduct is negligent,
blanket immunity from liability to an innocent
bystander by virtue of their engagement in the pursuit of
persons whom they believe to have engaged in criminal
behavior.’’ Id., 611. With respect to § 14-283 in particu-
lar, we stated: ‘‘The statute, in subsection (b), permits
the operator of an emergency vehicle, in disregard of
traffic laws, inter alia, to ‘proceed past any red light or
stop signal or stop sign . . . exceed the posted speed
limits . . . and . . . disregard . . . regulations gov-
erning direction of movement or turning in specific
directions.’ The subsection limits even this authority,
however, by providing that the operator, in passing
through traffic lights, must slow down ‘to the extent
necessary for the safe operation of such [emergency]
vehicle’ and in exceeding normal speed limits, must
‘not endanger life or property by so doing.’ Furthermore,
the statute expressly states, in subsection (d), that it
‘shall not relieve the operator of an emergency vehicle
from the duty to drive with due regard for the safety
of all persons and property.’ Read as a whole, the defen-
dants contend, this statute limits their scope of duty
to incidents involving collisions with the emergency
vehicle itself.
‘‘We see no reason to read the words ‘safety of all
persons and property’ so restrictively. Other courts,
construing similar statutory language, have explained
that emergency vehicle legislation provides only limited
shelter from liability for negligence. The effect of the
statute is merely to displace the conclusive presump-
tion of negligence that ordinarily arises from the viola-
tion of traffic rules. The statute does not relieve
operators of emergency vehicles from their general
duty to exercise due care for the safety of others. . . .
We agree with this interpretation and conclude that
§ 14-283 provides no special zone of limited liability
once the defendants’ negligence has been established.’’
(Citations omitted; emphasis added; footnote omitted.)
Id., 608–10.
Especially in light of all of the other historical and
statutory evidence, I firmly believe that Tetro controls
the outcome of the present case. It confirms in plain
terms that drivers of emergency vehicles owe the same
duty to abstain from negligent conduct as they have
always had under our emergency vehicle statute and
at common law —that is, ‘‘their general duty to exercise
due care for the safety of others.’’ Id., 609. As Justice
Peters explained: ‘‘The effect of the statute is merely
to displace the conclusive presumption of negligence
that ordinarily arises from the violation of traffic rules.’’
Id. Thus, if a plaintiff’s injuries arise in connection with
a police chase or another emergency covered by § 14-
283, the plaintiff cannot rely on a claim of per se negli-
gence for violation of the designated statutes but,
instead, is required to prove that the officers failed to
exercise ‘‘due regard for the safety of all persons and
property.’’ General Statutes § 14-283 (d). Justice Peters
concluded Tetro in the following unambiguous terms:
‘‘[Neither] our common law [nor] our statutes . . .
confer upon police officers, whose conduct is negligent,
blanket immunity from liability . . . by virtue of their
engagement in the pursuit of persons whom they believe
to have engaged in criminal behavior.’’ Tetro v. Strat-
ford, supra, 189 Conn. 611.
Tetro answers the question posed at the beginning of
this discussion, which asked whether the usual liability
rule applied to the negligent driving by municipal
employees changes when the vehicle is operated under
emergency conditions, as defined by § 14-283. Tetro
explains that emergency driving is treated differently,
but not because the operator is granted immunity when
none previously existed. The difference, rather, is that
the statute removes the availability of negligence per
se under the designated motor vehicle laws and requires
a plaintiff to show a violation of the ‘‘duty to drive with
due regard for the safety of all persons and property.’’
General Statutes § 14-283 (d). The Office of the Attorney
General understood Tetro precisely the same way in
1988. See Opinions, Conn. Atty. Gen. No. 88-032 (Octo-
ber 7, 1988) pp. 219–20 (‘‘[A]lthough [§] 14-283 permits
an officer to disregard certain traffic regulations, it does
not relieve him of responsibility for causing a fatality.
If the Commissioner [of Motor Vehicles] determines
that the police officer was not answering an emergency
call or in pursuit of fleeing law violators . . . was not
using an ‘audible warning signal device’ . . . or was
not operating with ‘due regard for the safety of all per-
sons and property’ . . . then the officer is not relieved
of liability for his negligence by [§] 14-283. This interpre-
tation is supported by the court’s opinion in Tetro
. . . .’’ (Citations omitted.)).
The majority attempts to distinguish Tetro by pointing
out that the municipal defendants in that case did not
plead municipal immunity. It should be clear by now
why this argument cannot withstand scrutiny. Munici-
pal immunity was off the table in Tetro because the
defense could not have been raised in good faith, not
because everyone overlooked it. By the time that Tetro
was decided, emergency vehicle drivers had been sub-
ject to negligence liability for fifty years. Immunity law,
which would be codified by the legislature three short
years after Tetro was decided, gave police officers no
protection for negligent driving, emergency or other-
wise, which is why the indemnification statutes had
been enacted. The majority cannot and does not cite a
single Connecticut case to the contrary. If immunity
merely had been overlooked, but remained available in
other cases to competent litigants—i.e., if the immunity
question remained open even a crack, regardless of
whether it had been raised by a party to the litigation—
this court would not have categorically denounced the
existence of any common-law or statutory ‘‘blanket
immunity’’ in this context. Tetro v. Stratford, supra, 189
Conn. 611. I also have great difficulty believing that the
defendant in Tetro would have overlooked the most
basic and common defense in the municipal playbook
had it been viable. In fact, it appears to me that everyone
in Tetro understood the rules; the plaintiff knew that the
town itself (unlike the individual defendants) enjoyed
immunity and, therefore, sued the town only under the
municipal indemnification statute, § 7-465.60 See id., 602
n.1. The defendants raised their statutory and causation
arguments precisely because the individual defendants
had no immunity available. To summarize, the fact that
municipal immunity was a nonissue in Tetro almost
certainly was ‘‘a function of a failure to litigate the
obvious [rather] than a failure to raise and decide the
issue.’’ Paulus v. LaSala, 56 Conn. App. 139, 150, 742
A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d
789 (2000).61
The majority also fails to consider in a proper light
the timing of Tetro relative to the enactment of § 52-
557n just three years later. Tetro was the controlling
case on police liability for negligent pursuit at the time
that the common law of municipal immunity was codi-
fied in § 52-557n. This chronology is telling. ‘‘Since the
codification of the common law under § 52-557n, this
court has recognized that it is not free to expand or
alter the scope of governmental immunity therein.’’
Durrant v. Board of Education, supra, 284 Conn. 107.
We are bound to assume that Tetro was known to the
legislature in 1986. See, e.g., State v. Dabkowski, 199
Conn. 193, 201, 506 A.2d 118 (1986) (‘‘[the legislature]
is presumed to know the existing state of the case law
in those areas in which it is legislating . . . to be cogni-
zant of judicial decisions relevant to the subject matter
of a statute . . . and to know the state of existing rele-
vant law when it enacts a statute’’ (citations omitted;
internal quotation marks omitted)); 2B N. Singer & J.
Singer, Statutes and Statutory Construction (7th Ed.
2008) § 50:1, p. 160 (‘‘[a]ll legislation must be interpreted
in the light of the common law and the scheme of
jurisprudence existing at the time of its enactment’’).
The legislature, in other words, knew from Tetro that
this court had unanimously held in 1983 that a munici-
pality was liable under existing law for police negli-
gence during pursuits. If the legislature wanted to
establish an immunity rule for emergency vehicles gen-
erally or police pursuits in particular, it surely would
have made some reference to such a scenario in the
1986 codification. Yet there is no mention of emergency
vehicles, police pursuits, or Tetro anywhere in the legis-
lative history, and no exception to liability is included
in the enumeration of ten specific immunities contained
in § 52-557n (b). Again, I have great difficulty imagining
that the 1986 legislature would have remained silent if
its intention was to confer immunity on those very same
individuals on whom it had imposed a duty of care
under §14-283 (d), particularly after this court unani-
mously held in Tetro that neither ‘‘our common law
[nor] our statutes . . . confer upon police officers,
whose conduct is negligent, blanket immunity from lia-
bility . . . by virtue of their engagement in the pursuit
of persons whom they believe to have engaged in crimi-
nal behavior.’’ Tetro v. Stratford, supra, 189 Conn. 611.
This was the law when our immunity doctrine was
codified in 1986, and this court is therefore bound to
hold that municipal immunity does not apply to negli-
gence during police pursuits.
Nor can I make sense of the majority’s observation
that Tetro was decided in 1983, prior to the codification
of the common law in § 52-557n and without the benefit
of the ‘‘dozens of cases’’ decided by this court since
1986 interpreting and applying that statute. I would have
thought that this chronology would operate in the other
direction, to strengthen the precedential force of Tetro
in the present context. Here, we have a unanimous
precedent, decided shortly before the enactment of
§ 52-557n, holding that a municipality is liable for its
employee’s negligent operation of an emergency vehicle
engaged in a police pursuit. Id. The legislature thereafter
codified the then-existing common law governing
municipal liability without so much as a whisper of any
intention to impact, modify, or even address the law of
vehicular negligence in general or the holding of Tetro
in particular. Over the ensuing thirty-plus years, this
court then decided ‘‘dozens’’ of cases involving § 52-
557n—none of which even remotely has to do with
municipal liability arising from a police vehicular pur-
suit. Yet suddenly we declare today that Tetro nonethe-
less has mysteriously met its demise, offstage and out
of view.62
There is still more. The holding in Tetro conforms not
only with our earlier case law construing Connecticut’s
emergency vehicle statute but also with the law in a
substantial number of other states that have interpreted
similar ‘‘duty’’ language contained in their own emer-
gency vehicle statutes to impose negligence liability on
police officers and other municipal employee drivers
who fail to exercise due care in the operation of their
vehicles during police pursuits. See Robbins v. Wichita,
285 Kan. 455, 466–67, 172 P.3d 1187 (2007) (citing four-
teen states, including Connecticut, that apply ordinary
negligence standard of care to this ‘‘duty’’ language).
There is such plentiful statutory and case law on this
issue from other states because nearly all states, includ-
ing Connecticut in P.A. 71-538, modeled their emer-
gency vehicle statutes on § 11-106 of the Uniform
Vehicle Code (UVC). See National Committee on Uni-
form Traffic Laws and Ordinances, Traffic Laws Anno-
tated (1972) § 11-106, statutory annotation, pp. 209–11
(explaining that forty-nine states have adopted some
portion of § 11-106, with seventeen states adopting it in
its entirety); Conn. Joint Standing Committee Hearings,
Transportation, Pt. 3, 1971 Sess., p. 717, remarks of
Lieutenant Michael Griffin of the Traffic Division of the
Connecticut State Police (P.A. 71-538 ‘‘places definite
responsibilities upon the operators of . . . emergency
vehicles. This bill also brings the Connecticut law into
conformance with the [UVC].’’).
The use of a negligence standard of care in this con-
text is even more strongly indicated in Connecticut than
in many other states, because Connecticut, unlike most
other jurisdictions,63 chose to retain the ‘‘due care’’ neg-
ligence standard without adding language contained in
the UVC that could be interpreted to adopt a reckless-
ness standard of care.64 Our legislature’s omission of the
UVC’s recklessness clause is meaningful. As a general
matter, courts find significance in a state’s decision to
adopt a model act but deviate from a particular provi-
sion thereof. See, e.g., Heraeus Medical GMBH v.
Esschem, Inc., 927 F.3d 727, 737 (3d Cir. 2019) (‘‘where
the [legislature] omitted text from a borrowed statute,
[this] offers strong evidence of legislative intent’’);
Springfield Teachers Assn. v. Springfield School Direc-
tors, 167 Vt. 180, 188 n.3, 705 A.2d 541 (1997) (‘‘[o]rdi-
narily, when the [l]egislature models a statute after a
uniform act, but does not adopt particular language
. . . the omission was intentional such that the policy
of the uniform act was rejected’’); cf. Viera v. Cohen,
283 Conn. 412, 431, 927 A.2d 843 (2007) (‘‘[t]ypically,
the omission of a word otherwise used in the statutes
suggests that the legislature intended a different mean-
ing for the alternate term’’).
This rule of construction has been applied in the
present context by those states that, like Connecticut,
chose to adopt the ‘‘due care’’ standard in lieu of the
UVC’s recklessness standard. See Harrison v. Matta-
poisett, 78 Mass. App. 367, 372–73 and n.4, 937 N.E.2d
514 (2010) (weighing sufficiency of evidence of police
officers’ negligence in personal injury case stemming
from high speed police pursuit when state emergency
vehicle statute requires police to exercise ‘‘caution and
due regard under the circumstances for the [safety] of
persons and property’’ and does not include reckless-
ness language (internal quotation marks omitted)); Alli-
ance v. Bush, Docket No. 2007CA00309, 2008 WL
2878321, *4 (Ohio App. July 21, 2008) (‘‘due regard for
the safety of all persons using the street or highway’’
language in emergency vehicle statute that, like Con-
necticut’s, does not include recklessness language
means ‘‘the driver of an emergency vehicle should oper-
ate the vehicle in the same manner as a reasonably
prudent person under similar circumstances’’ (internal
quotation marks omitted)); Lowrimore v. Dimmitt, 310
Or. 291, 297 and n.3, 797 P.2d 1027 (1990) (reversing
summary judgment in favor of police officer involved in
vehicular pursuit in light of Oregon’s emergency vehicle
statute, which ‘‘[does] not relieve the driver of an emer-
gency vehicle or ambulance from the duty to drive with
due regard for the safety of all other persons,’’ because
court ‘‘[could not] say, as a matter of law, that there
[was] no evidence of negligence on the part of the
pursuing officer’’ (internal quotation marks omitted)).65
The majority does not respond to the foregoing analy-
sis of the statute. I honestly do not know what it means
to say, as the majority does, that § 14-283 (d) ‘‘imposes
a general duty on officers to exercise their judgment
and discretion in a reasonable manner.’’ Statutes typi-
cally do not contain precatory advice for healthy living,
and, to the best of my knowledge, the legislature never
has done so by borrowing the language of legal duty
from negligence law. The majority correctly observes
the fact that every law student learns the distinct and
unmistakable meaning of such phrases as ‘‘due care’’
and its synonyms, but then fails to acknowledge what
the students are taught, which is that these words, when
used in association with the word ‘‘duty,’’ are univer-
sally understood to describe a legally enforceable liabil-
ity rule sounding in negligence. Indeed, the possibility
that the legislature intended to impose an unenforce-
able ‘‘general duty’’ in this context becomes inconceiv-
able against a historical background long recognizing
the imposition of liability for the breach of that duty.
Construing the statutory duty language suddenly to
replace an existing liability regime with a newly fash-
ioned immunity represents a complete inversion of the
standard of care articulated in the statute, transforming
subsection (d) from a traditional negligence rule into
its exact opposite: blanket immunity from negligence
liability.66
I understand the majority’s desire to fit this case into
the discretionary/ministerial framework of our govern-
mental immunity law under § 52-557n. Despite that stat-
ute’s proviso that its terms apply ‘‘[e]xcept as otherwise
provided by law’’; General Statutes § 52-557n (a); and
notwithstanding our repeated pronouncement that sub-
section (a) codified then-existing immunity law, we con-
tinue to exhibit a compulsion to create a one-size-fits-
all doctrine encompassing every aspect of municipal
operations. See Northrup v. Witkowski, 332 Conn. 158,
190–203, 210 A.3d 29 (2019) (Ecker, J., dissenting). This
is unfortunate for numerous reasons, not the least of
which is that it is inconsistent with what the legislature
intended. I have already stated my view that vehicular
negligence was never meant to be analyzed within the
discretionary/ministerial framework. See part II A of
this opinion. It simply makes no sense to try to pound
that square peg into the discretionary/ministerial round
hole, which likely explains why we never have
attempted to do so in the past and why the legislature
never indicated any intention to include vehicular negli-
gence under the aegis of § 52-557n. Cf. Elliott v. Water-
bury, 245 Conn. 385, 403, 715 A.2d 27 (1998) (‘‘[T]his
court generally presumes that the legislature, in adopt-
ing a statute, did not have the intention to effect a
significant change in a fundamental common-law princi-
ple. . . . This presumption may be overcome if the
legislative intent ‘is clearly and plainly expressed.’ . . .
[H]owever, neither the text of § 52-557n (b) nor its legis-
lative history yields a clear and plain expression of any
intention to effectuate a significant change.’’ (Cita-
tions omitted.))
The expression of public policy set forth in § 14-283
(d)—the retention of the duty of care for operators of
emergency vehicles—should not be subject to judicial
second-guessing. Put another way, any judicial prefer-
ence for a different public policy (i.e., immunity from
the negligence standard for operators of emergency
vehicles), even if motivated by the laudable desire for
across-the-board doctrinal uniformity, must yield in the
face of the legislature’s ultimate choice to value the
safety of public users of the roadway over whatever
additional marginal utility may result from the operation
of emergency vehicles unrestrained by the negligence
standard of care. See, e.g., DiLieto v. County Obstet-
rics & Gynecology Group, P.C., 316 Conn. 790, 803–804,
114 A.3d 1181 (2015) (‘‘[i]t is not the province of this
court, under the guise of statutory interpretation, to
legislate . . . a [particular] policy, even if we were to
agree . . . that it is a better policy than the one
endorsed by the legislature as reflected in its statu-
tory language’’).
In his concurring opinion, the Chief Justice offers an
alternative reading of the liability and immunity rules
produced where § 52-557n (a) (2) (B) intersects with
§ 14-283 (d). I take comfort in the fact that our views
share substantial common ground. The Chief Justice’s
concurring opinion accurately observes that § 52-557n
(a) expressly embraces all exceptions to its immunity
rules ‘‘as [are] provided by law,’’ and rightly concludes
that § 14-283 (d), ‘‘which imposes on the operators of
emergency vehicles certain obligations, including a
‘duty to drive with due regard [for the safety of all
persons],’ functions as an exception to governmental
immunity for discretionary acts pursuant to . . . § 52-
557n (a) (2) (B).’’ The Chief Justice also agrees with
‘‘the proposition that driving is subject to a standing
common-law exception to discretionary act immunity
under § 52-557n (a) (2) (B). This includes driving an
emergency vehicle in accordance with the privileges
and responsibilities set forth by § 14-283 (d), which
codifies the reasonable care standard . . . .’’ (Citations
omitted.) I consider these views to be entirely consis-
tent with my own.
To the extent that the Chief Justice’s concurring opin-
ion and this opinion diverge, the scope of that disagree-
ment must remain uncertain at this time. The Chief
Justice agrees with me that the discretionary act immu-
nity does not apply to claims of negligence based on
the manner in which the pursuit is conducted but takes
the position, as does the majority, that the plaintiff has
narrowed the issue in the present appeal to relate solely
to the officer’s threshold decision to initiate a pursuit,
and nothing more. I have serious doubts, at both a
conceptual and practical level, whether there is a work-
able distinction between an officer’s decision to initiate
a pursuit and the manner in which that pursuit is con-
ducted. Because this case does not involve that distinc-
tion, however, I leave a discussion of that issue for
another day.67
On the basis of the plain language of the emergency
vehicle statute, our precedent holding drivers liable for
negligence under the predecessors to that statute, and
this court’s unanimous holding in Tetro, I would reverse
the judgment of the trial court.
III
It follows from the foregoing analysis that the identifi-
able victim, imminent harm doctrine has no application
to this case because Renaldi, while driving, owed the
plaintiff’s decedent a common-law and statutory duty
of care. The identifiable victim, imminent harm doctrine
is an exception to immunity; there is no need for an
exception when there is no immunity. Nonetheless, if
I were to reach the identifiable victim, imminent harm
exception, I would hold that it applies with full force
on this record and certainly cannot be ruled out as a
matter of law. Indeed, my view is that this is a para-
digmatic case for the application of the exception.
The majority concludes that the plaintiff’s decedent
was not an identifiable victim for two reasons: (1) he
did not belong to a foreseeable class of identifiable
victims because he ‘‘was not legally compelled to get
into the [pursued vehicle] and was a voluntary passen-
ger in the vehicle,’’ and (2) he was not an identifiable
individual because the officer may not have seen him
in the car, and, in any event, ‘‘in the context of a police
pursuit, there will always be at least one person whose
presence the police could or should be aware of—the
driver of the pursued vehicle—[and] if we agreed with
the plaintiff, the exception would swallow the rule.’’
(Emphasis in original.) Neither point withstands analy-
sis. I address each in turn.
The majority, quoting Strycharz v. Cady, 323 Conn.
548, 575–76, 148 A.3d 1011 (2016), explains that, under
our cases, ‘‘ ‘a paramount consideration in determining
whether the plaintiff was . . . [a] member of a foresee-
able class of victims’ ’’ is ‘‘ ‘whether the plaintiff was
compelled to be at the location where the injury
occurred . . . .’ ’’ The majority then observes that
‘‘[w]e have thus far found this condition to be satisfied
only in the case of schoolchildren attending a public
school during school hours.’’ The majority accurately
describes the ‘‘compelled presence’’ requirement added
to the identifiable victim, imminent harm doctrine by
the court in recent years; unfortunately, in my view, the
majority further entrenches this additional requirement
without pausing to observe that the requirement (1)
makes no sense from any perspective, logical or other-
wise, and (2) did not exist when, by enacting § 52-557n
in 1986, the legislature codified the identifiable victim,
imminent harm doctrine without leave for future judi-
cial emendation. It makes perfect sense that a legal
requirement compelling the presence of a class of indi-
viduals at a particular time and place, and within a
municipal employee’s control, is a sufficient condition
to make that class of individuals ‘‘identifiable’’ for pur-
poses of imposing a duty of care to protect that class
from a foreseeable risk of imminent harm. But it is a
logical error to confuse sufficiency with necessity, and
I entirely fail to understand why a ‘‘legally compelled
presence’’ is a necessary prerequisite to qualifying as
an identifiable class. Having a daughter is sufficient to
make a person a parent, but it is not a necessary condi-
tion to parenthood—having a son will also count. Like-
wise, there are various ways that the generic duty owed
by a municipal employee to the public-at-large can
become a particularized duty attaching to a readily iden-
tifiable class of persons likely to sustain imminent harm
if the employee is negligent. Until recently, our case
law construing the identifiable victim, imminent harm
doctrine took this obvious point for granted.
A brief historical review will once again demonstrate
how far we have strayed in the recent past from the
common-law doctrine, as approved and codified by our
legislature in 1986. The identifiable victim, imminent
harm doctrine was first articulated in Connecticut
shortly before § 52-557n was enacted. The doctrine rec-
ognizes that an official’s discretionary duty owed to the
public-at-large, and therefore subject to immunity for
negligent performance, can become an actionable duty
unprotected by immunity. The transition occurs when
the need for the employee to act becomes ‘‘clear and
unequivocal’’ because it should be apparent to the
employee that the failure to take action subjects an
identifiable victim or class of victims to an imminent
risk of harm. As summarized by this court in Shore v.
Stonington, 187 Conn. 147, 444 A.2d 1379 (1982): ‘‘We
have recognized the existence of such [a] duty in situa-
tions [in which] it would be apparent to the public
officer that his failure to act would be likely to subject
an identifiable person to imminent harm. See Sestito
v. Groton, [supra, 178 Conn. 528]. Sestito involved a
policeman who waited and watched a public distur-
bance without interfering until the plaintiff’s decedent
was shot. Resolving conflicting testimony on the issue
of imminence of harm in favor of the plaintiff, we held
that the case should then have been submitted to the
jury.’’ Shore v. Stonington, supra, 153. As we observed
in Shore, in order to fall within the exception, the munic-
ipal employee must ‘‘have been aware that [the tortfea-
sor’s] conduct threatened an identifiable victim with
imminent harm,’’ otherwise ‘‘[t]he plaintiff’s cause of
action fails . . . for want of a ministerial or a clear and
unequivocal discretionary duty.’’ Id., 154. Shore
involved a police officer who decided not to arrest a
driver named Mark Cugini despite signs of inebriation.
Id., 150. Cugini caused a fatal accident approximately
forty-five minutes later. Id., 151. Over Justice Peters’
dissent, the majority in Shore determined that the offi-
cer’s exercise of discretion not to arrest Cugini was
entitled to immunity because a jury could not reason-
ably find that the officer ‘‘could have been aware that
Cugini’s conduct threatened an identifiable victim with
imminent harm.’’ Id., 154; see also id., 157–63 (Peters,
J., dissenting).
Sestito and Shore establish that, although a municipal
employee’s discretionary ‘‘public’’ duty ordinarily cre-
ates no duty of care owed to any particular person, that
duty can ‘‘[precipitate] into a special [duty] to prevent
harm to an individual’’ upon ‘‘a showing of imminent
harm to an identifiable victim.’’ Id., 156. There was
nothing provisional or contingent about the exception,
and it was well-known to the legislature in 1986, when
our municipal immunity doctrine was codified.68 Nei-
ther of these cases says a single word about a require-
ment that, to be identifiable, a victim or class of victims
must be compelled by law to be present at the location
and the time of the injury. In fact, had such a require-
ment existed, it would have required reversal in Sestito
and a summary affirmance in Shore because, in both
cases, the plaintiffs’ decedents voluntarily were present
at the locations at which they were injured. See id., 151(plaintiff’s decedent was injured in collision on public
expressway); Sestito v. Groton, supra, 178 Conn. 522–23
(plaintiff’s decedent was among group of men drinking,
arguing, and ‘‘scuffling’’ in parking lot adjacent to bar).
The truth is that we made the requirement up, out of
thin air, years after the doctrine was codified by the
legislature and notwithstanding our professed inability
to ‘‘expand or alter’’ the doctrine once it had been codi-
fied. Durrant v. Board of Education, supra, 284 Conn.
107; see id. (stating, in context of discussing identifiable
victim, imminent harm exception, that ‘‘this court has
recognized that it is not free to expand or alter the scope
of governmental immunity [contained in § 52-557n]’’).
A number of our other cases addressing the identifi-
able victim, imminent harm exception illustrate the
same point. There is no mention of any ‘‘legally com-
pelled presence’’ requirement in Edgerton v. Clinton,
311 Conn. 217, 86 A.3d 437 (2014). See id., 231 (holding
that passenger in car, who was injured in vehicular
chase supervised by 911 dispatcher, did not come within
identifiable victim, imminent harm exception, not
because passenger was in car voluntarily, but because
it would not have been apparent to 911 dispatcher that
her failure to act would have subjected identifiable vic-
tim to imminent harm). Nor is the concept mentioned
in Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131(1989). See id., 502, 508 (holding that tenants killed
in fire at multifamily dwelling as result of allegedly
negligent inspection did not come within identifiable
victim, imminent harm doctrine, not because they occu-
pied building voluntarily, but because ‘‘[t]he class of
possible victims of an unspecified fire that may occur
at some unspecified time in the future is by no means
a group of ‘identifiable persons’ within the meaning of
Shore’’). Indeed, this court repeatedly has stated that
determining whether a plaintiff is within a class of iden-
tifiable victims requires consideration of multiple fac-
tors. See Durrant v. Board of Education, supra, 284
Conn. 101 (‘‘[i]n delineating the scope of a foreseeable
class of victims exception to governmental immunity,
our courts have considered numerous criteria, includ-
ing the imminency of any potential harm, the likelihood
that harm will result from a failure to act with reason-
able care, and the identifiability of the particular victim’’
(internal quotation marks omitted)); Grady v. Somers,
supra, 294 Conn. 351 (same); Burns v. Board of Educa-
tion, 228 Conn. 640, 647, 638 A.2d 1 (1994) (same),
overruled in part on other grounds by Haynes v. Middle-
town, 314 Conn. 303, 101 A.3d 249 (2014).
It strikes me as inconceivable that Edgerton and
Evon, like Sestito and Shore before them, could have
been written as they were if the legal doctrine under
review—the identifiable victim, imminent harm excep-
tion to the municipal immunity doctrine—had no possi-
ble application in the case, as a matter of law, for the
simple reason that the plaintiff was not legally com-
pelled to be present at the time and location of the
underlying events. I understand that this court ordi-
narily will take up a case as presented to the trial court
and as framed by the parties to the appeal, and I suppose
there exists a remote possibility that the trial courts
and parties in Sestito, Shore, Evon, Edgerton, and the
numerous other cases that have addressed the require-
ments of the identifiable victim, imminent harm doc-
trine have entirely overlooked a plain fact of dispositive
significance. It also is possible, perhaps, that this court
would have engaged in an entirely unnecessary doc-
trinal analysis in these cases without so much as a
footnote drawing attention to the pig in the parlor. It
seems far more likely, however, that the putative
‘‘requirement’’ of a legally compelled presence was not
mentioned in these cases because it is not a requirement
at all.
In fairness to the majority, the path leading to its
doctrinal error on this point has been under judicial
construction since 2005, and, since then, it slowly has
been broadened in a process of expansion consistent
with the numerous other doctrinal innovations
described and criticized in part I of this opinion.
Although postcodification cases such as Evon and Edg-
erton quite clearly do not consider the identifiable vic-
tim, imminent harm exception to include a ‘‘legally
compelled presence’’ requirement, there are other cases
following a different course. Ironically, these cases turn
the doctrine on its head, and it is unfortunate that the
majority chooses to follow them rather than adhere to
the doctrine as originally formulated.
The first reference to the plaintiff’s involuntary pres-
ence as part of the identifiable victim analysis was made
in 1994, in support of this court’s holding that the excep-
tion applied in the case rather than as a basis for
rejecting its application. See Burns v. Board of Educa-
tion, supra, 228 Conn. 649 (‘‘[t]he presence of the plain-
tiff child on the school premises where he was injured
was not voluntary’’); see also Purzycki v. Fairfield, 244
Conn. 101, 109, 708 A.2d 937 (1998) (citing Burns for
proposition that ‘‘schoolchildren who are statutorily
compelled to attend school, during school hours on
school days, can be an identifiable class of victims’’),
overruled in part on other grounds by Haynes v. Middle-
town, 314 Conn. 303, 101 A.3d 249 (2014).69
What began as a basis for finding that the plaintiff
fell within a foreseeable class of identifiable victims
became, ten years later, a convenient if unwarranted
means to limit the doctrine. In other words, what began
as a sufficient condition to qualify as an identifiable
victim later became a necessary condition. This trend
began in 2005, when the court decided as a ‘‘policy’’
matter to exclude parents injured on school grounds
from the class of identifiable victims who could sue for
negligence. See Prescott v. Meriden, 273 Conn. 759,
760–61, 764–65, 873 A.2d 175 (2005) (holding that father
who slipped on wet bleachers while attending his son’s
high school football game was not identifiable victim
because his ‘‘presence at the game was purely volun-
tary’’); see also Durrant v. Board of Education, supra,
284 Conn. 94, 108 (holding that parent picking up her
six year old daughter from after-school program was
not identifiable victim because both she and her daugh-
ter were on premises ‘‘voluntarily,’’ and, therefore, she
could not recover for injuries sustained when she
slipped in puddle of water on staircase on school prem-
ises). It was only a matter of time before the new
requirement of a legally compelled presence was
applied to plaintiffs in other contexts, as well. See, e.g.,
St. Pierre v. Plainfield, 326 Conn. 420, 438, 165 A.3d
148 (2017) (‘‘[T]he plaintiff was in no way compelled
to attend the aqua therapy sessions provided [at the
municipal pool]. . . . Under established case law, this
choice precludes us from holding that the plaintiff was
an identifiable person or a member of an identifiable
class of persons.’’); Grady v. Somers, supra, 294 Conn.
356 (‘‘we conclude that the plaintiff is not a member
of a class of foreseeable victims because, as he acknowl-
edges, he was not legally required to dispose of his
refuse by taking it to the transfer station personally and
could have hired an independent contractor to do so’’).
No reason or justification exists for limiting an identi-
fiable class of victims to persons who are legally com-
pelled to be present at the time and place of the
negligent act or omission. The duty at issue does not
become actionable because the victim is present invol-
untarily.70 It becomes actionable because it should be
apparent to the municipal employee that an abstract
risk has become sufficiently particularized such that
the employee must act in order to protect the person(s)
likely to suffer harm imminently. In the language of
Shore, following Sestito, the discretionary duty owed
to the public ‘‘precipitates’’ into a clear and unequivocal
duty to a particular person or class of persons when
the harm is imminent and the likely victim is known
or knowable. Shore v. Stonington, supra, 187 Conn.
156. One of the ways that the employee’s generalized
duty precipitates into a particularized one is when the
would-be victim is legally required to be present in the
dangerous situation, as we have said is the case with
schoolchildren attending public schools. But a
moment’s reflection demonstrates that there are many
other circumstances that will also make apparent the
need to protect a particular person or persons from
the risk of imminent harm. See Durrant v. Board of
Education, supra, 284 Conn. 101 (‘‘[i]n delineating the
scope of a foreseeable class of victims exception to
governmental immunity, our courts have considered
numerous criteria, including the imminency of any
potential harm, the likelihood that harm will result from
a failure to act with reasonable care, and the identifiabil-
ity of the particular victim’’ (internal quotation marks
omitted)). A police chase is a perfect example.
There is no question that police pursuits are extremely
dangerous undertakings. In 2003 alone, there were an esti-
mated 35,000 police pursuits across the country, 14,000
of which resulted in crashes. P. O’Connor & W. Norse,
‘‘Police Pursuits: A Comprehensive Look at the Broad
Spectrum of Police Pursuit Liability and Law,’’ 57 Mer-
cer L. Rev. 511, 511 (2005). From 1996 to 2015, police
pursuits resulted in more than 6000 fatal crashes with
more than 7000 deaths; this is an average of 355 deaths
per year, or about one per day. B. Reaves, Bureau of
Justice Statistics, Office of Justice Programs, United
States Department of Justice, Special Report: Police
Vehicle Pursuits, 2012–2013 (May, 2017) p. 6, available
at http://www.bjs.gov/content/pub/pdf/pvp1213.pdf
(last visited June 22, 2020). In Connecticut over this
same time period, fifty-eight people died as a result of
police pursuits. Id., p. 13.
Pursuits are especially dangerous for the occupants
of the pursued vehicle, like the teenager who lost his
life in the pursuit giving rise to the present case. The
United States Department of Justice reports that,
between 1996 and 2015, 65 percent of pursuit-related
fatalities involved occupants of the pursued vehicle.
Id., p. 6. In Connecticut, thirty-four of the fifty-eight
fatalities during that period, or over 58 percent of pur-
suit-related fatalities, involved occupants of the pur-
sued vehicle. Id., p. 13. The Department of Justice also
estimates that, in pursuits occurring between 2009 and
2013 that resulted in serious injuries, over three quarters
of those injuries occurred to the suspect being pursued.
Id., p. 7.
The legislature is well aware of the dangers inherent
to police pursuits and has acted repeatedly to regulate
them and reduce their frequency. In 1978, the legislature
required every municipality in the state to adopt a policy
for handling police pursuits. Number 78-372 of the 1978
Public Acts (P.A. 78-372), codified as amended at Gen-
eral Statutes § 14-283a, mandated that each policy ‘‘shall
specify which driving, support and other police tactics
may be employed in the case of a pursuit.’’ P.A. 78-372,
§ 1. It is clear from the legislative history that concern
over the danger of such pursuits—including the danger
to occupants of the pursued vehicle—was a primary
motivation for the act’s passage. Senator Mary A. Mar-
tin, a sponsor of the 1978 act, lamented: ‘‘We frequently
see in the papers articles on high speed chases and these
chases are usually initiated because of minor traffic
violation[s] or even a suspected violation. The drivers
of these vehicles are challenged to the point where they
will increase their speed. The car may have been stolen
and if so, what good is a wrecked car to the owner?
Or the car may have a light out or the driver may have
been drinking. What justification can there possibly be
for a high speed chase in these circumstances? Is it
worth a life or injury to the occupants?’’ 21 S. Proc.,
Pt. 8, 1978 Sess., pp. 2945–46. Senator Betty Hudson
echoed Senator Martin’s concerns: ‘‘I believe [this] bill
really arose because of the high speed chase and fatality
that occurred in Madison . . . which is my hometown;
and I agree . . . [that] there ha[s] been a lack of train-
ing for police officers throughout the state regarding
the whole issue of high speed police chase[s]. . . . We
have seen far, far too many accidents and deaths occur
because of high speed police chase[s] involving young
people, involving the police officers themselves. Many,
many persons are threatened and their lives are endan-
gered because of these kinds of pursuits.’’ Id., pp.
2940–41.
The legislature expressed further concern in 1999,
when it amended § 14-283a to require the creation of
‘‘a uniform, [statewide] policy for handling pursuits by
police officers.’’ Public Acts 1999, No. 99-171, § 1, codi-
fied at General Statutes § 14-283a (b). During debate in
the Senate, the bill’s proponent, Senator Alvin W. Penn,
explained: ‘‘We’re talking about a guideline for police
behavior. We’re talking about . . . a policy that’s long
overdue in the significance of saving a life, particularly
[that] of an innocent.’’ 42 S. Proc., Pt. 8, 1999 Sess., p.
2670. Echoing the concern that arose during debate
on P.A. 78-372—that the police were initiating pursuits
over minor offenses—Senator Penn argued: ‘‘[There
are] too many activities where a pursuit may go through
that somebody ran a stop sign or somebody ran a stop
light or somebody may or may not have marijuana,
somebody may have done that and put the officer’s life
in jeopardy and an innocent life in jeopardy. And I
think that’s what we’re talking about, putting a safety
mechanism in place.’’ Id., p. 2675. Senator Eric D. Cole-
man shared Senator Penn’s concerns: ‘‘[T]he fact of the
matter is that high speed police pursuits endanger life
and limb. And it would seem to make sense to me that
we ought to try to do something in order to make those
kinds of situations less potentially catastrophic to inno-
cent citizens. And it’s for that matter that I would sup-
port this proposal.’’ Id., p. 2693.
Debate on the statewide policy in the House of Repre-
sentatives evinced similar concerns. Representative
Stephen D. Dargan, the proponent of the bill in that
chamber, remarked: ‘‘There [have] been some incidents
in . . . Connecticut, whereby there [have] been some
tragic deaths from the pursuit of [the] law enforcement
community. I stand here today to say this bill is to help
protect not only the innocent that have been killed
within some of these police pursuits, but to protect the
law enforcement community within our [state] and our
respected municipalities that serve and protect [twenty-
four hours a day], 365 days a [year].’’ 42 H.R. Proc., Pt.
14, 1999 Sess., p. 4880. Representative Ernest E. Newton
II, encouraging passage of the bill, reminded his col-
leagues: ‘‘This bill means that we might save your
[child’s], your [friend’s], your neighbor’s life.’’ Id., p.
4886.
The potential danger of police pursuits remains an
ongoing concern in the legislature.71 In 2018, the legisla-
ture amended § 14-283a to require the police to report
every pursuit engaged in and to require annual reports
from each chief of police and the Commissioner of
Emergency Services and Public Protection. See Public
Acts 2018, No. 18-161, § 3. And, in 2019, the legislature
again amended § 14-283a, mandating updates to the
statewide pursuit policy every five years and adding
specific requirements concerning police conduct during
chases. See Public Acts 2019, No. 19-90, § 5. In support
of one aspect of the 2019 legislation, Representative
Steven Stafstrom, the proponent of the bill in the House
of Representatives, explained: ‘‘I know that a lot of
[police] departments in the [s]tate have issued policies
with respect to police pursuits, the exact reason being
that . . . the data [have] shown that in fact police pur-
suits are more likely to cause death or serious injury
or to result in undesirable outcomes then they are to
achieve by engaging in the pursuit. . . . [T]here [have]
been at least six deaths in Connecticut after police
vehicle pursuits in 2017 alone . . . .’’ 62 H.R. Proc., Pt.
11, 2019 Sess., p. 9197.
The fatal accident that led to the present case is
precisely the type of tragedy the legislature was con-
cerned with preventing when it promulgated and
amended § 14-283a. The plaintiff should have been
allowed to present her claim to the jury because her
decedent, as a passenger in the pursued vehicle, unques-
tionably was a member of an identifiable class of fore-
seeable victims. If the young occupants of the Mustang
convertible being pursued at a high rate of speed do
not qualify as members of an identifiable class of likely
victims, then the doctrine has become an absurdity.
The likely harm—a fatal automobile accident—is obvi-
ous and imminent, and the likely victims—the occu-
pants of the pursued vehicle—consist of a number small
enough to be counted on one hand. This is precisely a
‘‘[situation in which] it would be apparent to the public
officer that his [negligent acts or omissions] would be
likely to subject an identifiable person to imminent
harm.’’ Shore v. Stonington, supra, 187 Conn. 153.
This brings me to the other reason given by the major-
ity for concluding that the plaintiff’s decedent was not
identifiable. The majority observes that it is possible
that Renaldi did not know that there was a backseat
passenger in the Mustang convertible; he testified dur-
ing his deposition that he was focused on other things.
But this point stalls quickly, probably because the
majority realizes that we must draw all reasonable infer-
ences in favor of the plaintiff at this stage of the litiga-
tion, and a jury could easily conclude on this record
that Renaldi was aware that there were passengers in
the vehicle who plainly would qualify as identifiable
victims. The majority therefore turns to an alternative
point, which is that ‘‘public policy’’ requires us to hold
against the plaintiff because, otherwise, every police
chase will involve identifiable victims and ‘‘the excep-
tion would swallow the rule.’’
I am at a loss to understand why the putative public
policy favoring an officer’s exercise of discretion to
engage in a high speed chase should trump the legisla-
ture’s expressed public policy preference favoring pub-
lic safety over the apprehension of the occupants of a
pursued vehicle. The majority’s conclusion is not sup-
ported by case law, common sense, or any legislative
enactment of which I am aware. It appears to assume
a nonexistent ‘‘rule’’ favoring the exercise of unlimited
discretion in police pursuits and then decrees that the
identifiable victim, imminent harm ‘‘exception’’ will
swallow that rule ‘‘because in the context of a police
pursuit, there will always be at least one person whose
presence the police could or should be aware of—the
driver of the pursued vehicle . . . .’’ (Emphasis in origi-
nal.) The argument assumes the point it purports to
demonstrate.
The Chief Justice’s concurring opinion takes a differ-
ent tack but, in my view, ultimately suffers from the
same fundamental flaw as the majority opinion by sub-
stituting its own policy preferences for those policies
established by the legislature. The Chief Justice’s con-
curring opinion acknowledges that, as a matter of logic
alone, no one would be more of an identifiable person
subject to imminent harm than the occupant of a car
being pursued by the police. But the Chief Justice’s
concurring opinion then carves out an exception to the
doctrine72 in the form of an irrebuttable presumption
deeming all voluntary (i.e., nonkidnapped) passengers
in a fleeing vehicle to be ‘‘in cahoots with’’ the driver
of that vehicle and concludes that passengers are there-
fore barred as a matter of policy from invoking the
imminent harm, identifiable victim doctrine. The Chief
Justice’s concurring opinion reaches this conclusion as
a matter of what it considers to be good public policy.
The problem with this approach is that the policy decla-
ration made in the concurring opinion has no basis in
Connecticut law and bears no connection to the facts
of this case. Although presented as a policy informed
by restraint and fashioned in deference to legislative
prerogative, I believe that the Chief Justice’s concurring
opinion actually imposes its own policy preference in
lieu of the legislative policies set forth in §§ 14-283 and
14-283a.
The Chief Justice’s concurring opinion begins with
the proposition that ‘‘whether a particular plaintiff
comes within a cognizable class of foreseeable victims
for purposes of [the identifiable victim, imminent harm]
exception . . . is ultimately a question of policy for
the courts, in that it is in effect a question of duty . . .
[that] involves a mixture of policy considerations and
evolving expectations of a maturing society . . . .’’
(Emphasis added; internal quotation marks omitted.)
Part II of Chief Justice Robinson’s concurring opinion,
quoting Prescott v. Meriden, 273 Conn. 759, 763–64,
873 A.2d 175 (2005). But the Chief Justice’s concurring
opinion then overlooks the single most important indi-
cator of our state’s public policy on this precise issue—
the explicit text of § 14-283 (d), which provides in rele-
vant part that a police officer pursuing a fleeing suspect
has ‘‘the duty to drive with due regard for the safety
of all persons and property.’’ (Emphasis added.) ‘‘[A]ll
persons’’ means everyone; the legislature did not qualify
or limit the class of individuals to whom the duty is
owed, and, in my view, it is not for the judiciary to
devise exceptions to this legislative policy choice. Cf.
DiLieto v. County Obstetrics & Gynecology Group,
P.C., supra, 316 Conn. 803–804 (‘‘[i]t is not the province
of this court, under the guise of statutory interpretation,
to legislate . . . a [particular] policy, even if we were
to agree . . . that it is a better policy than the one
endorsed by the legislature as reflected in its statu-
tory language’’).
In light of the legislature’s powerful statement of
public policy in § 14-283 to protect all potential victims
from the inherent dangers posed by high speed police
pursuits, it is clear that the legislature has chosen to
adopt a public policy establishing the priority of road-
way safety with respect to all foreseeable victims of
that activity, including the passengers in the pursued
vehicle. Rather than confronting the clear legislative
intent expressed in § 14-283, the Chief Justice’s concur-
ring opinion retreats, ironically, to generic concerns
about respecting the legislative prerogative. In my view,
the legislature need not ‘‘amend our governmental
immunity and motor vehicle statutes to waive immunity
and to allow a private right of action,’’ as the Chief
Justice suggests, because a private right of action
already exists. Indeed, the premise of our policy inquiry
in this context is that the legislature has not taken
definitive action—this is why the question comes to us
at all. There is no need for the legislature to create a
‘‘private right of action’’ against individual defendants
because that right, sounding in negligence, has existed
in the common law since emergency vehicles first began
using the roads, and the corresponding cause of action
against the municipality itself exists under the various
municipal indemnification statutes, including § 7-465.
Stated simply, the Chief Justice’s concurring opinion,
which carves out an exception to the duty of care for
the occupants of the vehicle pursued by the municipal
defendants, finds no support in Connecticut law.
The ‘‘in cahoots’’ policy proposed by the Chief Jus-
tice’s concurring opinion conflicts in yet another way
with existing Connecticut public policy, this time a pol-
icy embedded in legal doctrine established by this court.
In Greenwald v. Van Handel, 311 Conn. 370, 88 A.3d
467 (2014), this court adopted the ‘‘wrongful conduct’’
rule, which prohibits a plaintiff from tort recovery if
his or her injuries arose ‘‘from the legal consequences
of the plaintiff’s volitional criminal conduct . . . .’’73
Id., 385. Thus, a passenger in the pursued vehicle is
prohibited from recovering damages in tort for his or
her injuries if, but only if, he or she intentionally
engaged in felonious activity in connection with the
police pursuit. See id., 378–80 (explaining that rule
applies only to preclude claims by persons guilty of
intentional felonious conduct). The wrongful conduct
rule plainly would not apply on this record because
the plaintiff’s decedent, a backseat passenger in the
pursued vehicle, is not even alleged to have committed
any crimes, much less a serious felony; nor is there any
allegation that he had any role whatsoever in aiding
or encouraging the driver’s decision to engage in the
pursuit. I am troubled that we would find the need
to fashion a brand new doctrinal innovation, the ‘‘in
cahoots’’ doctrine, as a custom-tailored public policy
declaring that a plaintiff’s mere status as a passenger
somehow operates to defeat his ability to seek tort
compensation from the persons whose carelessness
proximately caused his injuries. I am unaware of any
rule of law or public policy that would support such a
conclusion. To the contrary, our law—common-law and
statutory alike—supports the opposite conclusion.
The Chief Justice’s concurrence cites numerous out-
of-state cases in support of its ‘‘in cahoots’’ policy con-
cerning police liability for injuries to passengers in flee-
ing vehicles. None of the cases is helpful in connection
with the subject at hand, however, because none of
them involves Connecticut public policy on this issue;
nor do they involve the application of Connecticut’s
rather idiosyncratic identifiable victim, imminent harm
exception. The out-of-state cases are also factually dis-
tinguishable in one or more vitally important ways. For
example, the Chief Justice’s concurring opinion relies
on Sellers v. Abington, 630 Pa. 330, 347–48, 106 A.3d
679 (2014), for the proposition that the law must not
impose a duty on officers to unknown passengers in a
fleeing vehicle for reasons of public policy. Even if that
highly dubious proposition were true in Connecticut—
even if an officer has no duty to learn whether his or her
decision to give chase may put the lives of passengers
at risk—the facts in the present case do not fit that
hypothetical fact pattern because, in the present case,
the parties hotly dispute whether the pursuing officers
were aware that the Mustang convertible contained pas-
sengers.74 Sellers is distinguishable on this ground. See
id., 355 (Todd, J., concurring) (‘‘[t]he majority expressly
conditions its assessment of [the] factor [regarding the
relationship between the parties] on the fact that ‘the
officer was unaware of the presence of a passenger,’
but does not indicate whether it would reach the same
conclusion if the presence of a passenger was known,
but the relationship of the passenger to the driver was
not known’’).
Likewise, Robinson v. Detroit, 462 Mich. 439, 613
N.W.2d 307 (2000), is plainly distinguishable on numer-
ous fronts, and the only relevant aspect of the case
actually supports reversal here. In no uncertain terms,
Robinson states that the pursuing officers owe a duty of
care to passengers who are not themselves wrongdoers:
‘‘[W]e hold that the police owe a duty to innocent pas-
sengers, but owe no duty to passengers who are them-
selves wrongdoers whether they help bring about the
pursuit or encourage flight.’’ Id., 444.75 Robinson also
expressly states that, to the extent that a question of
fact exists regarding whether a passenger is ‘‘innocent,’’
summary judgment is inappropriate. See id., 452–53
(‘‘the issue of the passengers’ status has not been suffi-
ciently developed, thereby making summary disposition
on the basis of duty inappropriate at this time’’).76 Rob-
inson therefore supports my conclusion that the trial
court improperly rendered summary judgment in favor
of the defendants. The other cases briefly cited by the
Chief Justice’s concurring opinion similarly provide no
useful guidance here.77
The Chief Justice’s concurring opinion also echoes
the concern, articulated in some of the out-of-state
cases, that it would be unworkable and unduly burden-
some to require police officers to first determine
whether there are passengers in a vehicle before giving
chase. Even assuming for the sake of argument that
this concern should predominate over roadway safety,
Connecticut law already accounts for it, because a
plaintiff seeking to invoke the identifiable victim, immi-
nent harm exception must demonstrate that the danger
to the plaintiff arising from the alleged negligence
should have been apparent to the defendant. See Edger-
ton v. Clinton, supra, 311 Conn. 231 (‘‘In order to meet
the apparentness requirement, the plaintiff must show
that the circumstances would have made the govern-
ment agent aware that his or her acts or omissions
would likely have subjected the victim to imminent
harm. . . . This is an objective test pursuant to which
we consider the information available to the govern-
ment agent at the time of her discretionary act or omis-
sion.’’ (Citation omitted.)). Once again, there is no need
for the innovation proposed by the Chief Justice
because existing law already provides the necessary
policy-based limitations.
Second, and more concretely, the Chief Justice’s con-
curring opinion addresses a hypothetical policy concern
that may arise in some other case but that is not present
in the case before us. If a case arises in which there is
either (1) insufficient evidence to prove that the pursu-
ing officer was aware of any passengers in the pursued
vehicle, or (2) evidence that the plaintiff-passenger him-
self may be a wrongdoer, then we might wish to con-
sider a policy-based rule barring recovery. In the
present case, the officers were pursuing the driver of
an open convertible for a minor traffic violation. On
this record, it makes no sense to consider, much less
adopt, the counterfactual legal presumption proposed
by the Chief Justice. At the very least, the question of
whether the officer was aware of the passengers and
whether the passengers were ‘‘in cahoots’’ with the
driver’s act of flight should be left to the trier of fact.
The real ‘‘rule’’ at issue in the identifiable victim,
imminent harm analysis is the one set forth in the plain
language of § 52-557n, which is that a municipality is
liable for the negligent acts or omissions of its employ-
ees. There is an exception to that rule for ‘‘negligent acts
or omissions which require the exercise of judgment
or discretion . . . .’’ General Statutes § 52-557 (a) (2)
(B). But then there is an exception to the exception,
which applies when an employee’s discretionary acts
expose a foreseeable victim to an imminent risk of
harm. The majority agrees that the exception applies
here because ‘‘there will always be at least one person
whose presence the police could or should be aware
of—the driver of the pursued vehicle’’; (emphasis in
original); but refuses to accept the consequences of
that point.
There can be no question that the individuals in the
pursued vehicle constitute a narrow class of readily
foreseeable victims, and, therefore, the officer’s duty
to exercise reasonable care is ‘‘owe[d] . . . to the indi-
vidual plaintiff, not just to the public in general.’’ Sestito
v. Groton, supra, 178 Conn. 527. The harm posed by a
nighttime, high speed chase on rural roads is imminent,
the potential injuries are catastrophic, the likelihood
that the harm will eventuate is high, and the victims in
the pursued vehicle are readily identifiable. See Dur-
rant v. Board of Education, supra, 284 Conn. 101 (listing
criteria used to delineate ‘‘the scope of a foreseeable
class of victims exception to governmental immunity’’
(internal quotation marks omitted)). Indeed, the appli-
cation of the exception particularly is appropriate in a
case such as the present one, in which the officer’s
affirmative conduct (i.e., initiating the high speed
chase), as opposed to his or her failure to act, caused
the imminent risk of harm to eventuate, resulting in
bodily injury and death. But cf. Evon v. Andrews, supra,
211 Conn. 507–508 (identifiable victim, imminent harm
exception was inapplicable when city officials failed to
enforce fire safety laws); Shore v. Stonington, supra,187 Conn. 157 (identifiable victim, imminent harm
exception was inapplicable when officer failed to arrest
drunk driver); Sestito v. Groton, supra, 528 (identifiable
victim, imminent harm exception was applicable when
officer failed to interrupt public disturbance).
This state has a strong public policy in favor of
encouraging the safe operation of motor vehicles and
discouraging police officers from initiating high speed
chases for minor vehicular infractions. Nothing is to be
gained and more lives will be lost if we grant immunity
to officers who engage in such chases in a negligent
manner contrary to the spirit and purpose of §§ 52-
557n, 14-283, 14-283a, and our common-law history.
I respectfully dissent.
1
Throughout this opinion, I use the terms ‘‘municipal employee immunity’’
and ‘‘municipal entity immunity’’ to highlight and maintain the important
difference between the immunity of the municipal employee and the immu-
nity of the municipality itself. I use the term ‘‘municipal immunity’’ when I
refer to the doctrine generally, to encompass the immunity of both municipal
employees and municipalities. We would benefit from greater linguistic and
conceptual precision in this regard. Thus, the immunity doctrine applied to
municipal employees has gone by different names in Connecticut. Usually,
it is called either official immunity or qualified immunity; see, e.g., Grady
v. Somers, 294 Conn. 324, 326, 984 A.2d 684 (2009) (referring to ‘‘a municipal
employee’s qualified immunity for discretionary acts’’); though, sometimes,
it is indiscriminately and inaccurately lumped together with the corporate
(municipal entity) immunity under the rubric of ‘‘governmental’’ or ‘‘munici-
pal’’ immunity. See, e.g., Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d
1131 (1989) (referring to ‘‘the general rule of governmental immunity for
employees engaged in discretionary activities’’). Adding to the confusion,
the common law historically distinguished between officials (or officers)
and mere employees of a municipality for immunity purposes. See 1 E.
Kinkead, Commentaries on the Law of Torts (1903) § 153, p. 348 (‘‘we must
have clearly in mind when a person is to be considered a public officer, for
if he is not an official, he must be something else—as an employee—his
liability depending, in such cases, upon different principles’’). This officer/
employee distinction evidently was abandoned in Connecticut, as elsewhere.
2
See, e.g., Northrup v. Witkowski, 332 Conn. 158, 167, 210 A.3d 29 (2019)
(‘‘[t]he [common-law] doctrines that determine the tort liability of municipal
employees are well established’’ (internal quotation marks omitted)); Elliott
v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998) (‘‘under the common
law . . . both municipalities and their employees or agents have immunity
from negligence liability for governmental acts involving the exercise of
judgment or discretion’’ (footnote omitted)).
3
This court has stated on numerous occasions that § 52-557n codified the
fundamental components of the municipal immunity doctrine, as established
under the common law. See, e.g., Violano v. Fernandez, 280 Conn. 310, 320,
907 A.2d 1188 (2006) (‘‘[t]he tort liability of a municipality has been codified
in § 52-557n’’); see also, e.g., Durrant v. Board of Education, 284 Conn. 91,
107, 931 A.2d 859 (2007) (‘‘[s]ince the codification of the common law under
§ 52-557n [in 1986], this court has recognized that it is not free to expand
or alter the scope of governmental immunity therein’’); Considine v. Water-
bury, 279 Conn. 830, 844, 905 A.2d 70 (2006) (concluding that § 52-557n (a)
(1) (B) codified ‘‘municipal common-law liability for acts performed [by the
municipality] in a proprietary capacity’’). As Considine indicates, a more
refined characterization of the statutory codification of municipal immunity
is that subsection (a) of § 52-557n codified the existing common law of
municipal immunity, whereas subsection (b) altered the common law in a
limited set of context-specific circumstances. See Considine v. Waterbury,
supra, 838–41. None of the situations enumerated in subsection (b) of § 52-
557n involves the operation of municipal motor vehicles.
4
This assessment is not meant to include lawsuits seeking recovery for
personal injuries or property damage caused by the negligent operation of
a motor vehicle under routine conditions. See part II A of this opinion.
5
It would risk overheating the printing press to include a complete list
of such cases decided by this court and the Appellate Court since 1990. To
conserve resources, I provide only a representative sampling of cases
decided by this court. See, e.g., Northrup v. Witkowski, 332 Conn. 158,
188–90, 210 A.3d 29 (2019); Ventura v. East Haven, 330 Conn. 613, 640–42,
199 A.3d 1 (2019); Martinez v. New Haven, 328 Conn. 1, 11–12, 176 A.3d
531 (2018); St. Pierre v. Plainfield, 326 Conn. 420, 432–35, 165 A.3d 148(2017); Strycharz v. Cady, 323 Conn. 548, 575, 148 A.3d 1011 (2016), over-
ruled in part by Ventura v. East Haven, 330 Conn. 613, 199 A.3d 1 (2019);
Edgerton v. Clinton, 311 Conn. 217, 235–36, 86 A.3d 437 (2014); Coe v. Board
of Education, 301 Conn. 112, 122, 19 A.3d 640 (2011); Grady v. Somers, 294
Conn. 324, 356–57, 984 A.2d 684 (2009); Cotto v. Board of Education, 294
Conn. 265, 279–80, 984 A.2d 58 (2009); Durrant v. Board of Education,
supra, 284 Conn. 108–11; Violano v. Fernandez, 280 Conn. 310, 327–28, 907
A.2d 1188 (2006); Doe v. Petersen, 279 Conn. 607, 620–21, 903 A.2d 191(2006); Evon v. Andrews, 211 Conn. 501, 506–508, 559 A.2d 1131 (1989).
6
See part III of this opinion.
7
See, e.g., Blonski v. Metropolitan District Commission, 309 Conn. 282,
286, 71 A.3d 465 (2013) (defendant’s negligent actions were connected to
its proprietary function, and, therefore, defendant was liable under § 52-
557n (a) (1) (B)); Ugrin v. Cheshire, 307 Conn. 364, 387, 54 A.3d 532 (2012)
(plaintiffs were not precluded from bringing action for negligent inspection
under § 52-557n (b) (8) when municipality was on notice of hazardous
condition). In addition, statutory claims against municipal defendants exist
outside of the scope of the municipal immunity doctrine. See, e.g., General
Statutes § 13a-149 (highway defect statute).
8
See Northrup v. Witkowski, 332 Conn. 158, 166, 189–90, 210 A.3d 29(2019) (overruling Spitzer v. Waterbury, 113 Conn. 84, 154 A. 157 (1931));
see also id., 190–91, 201–202 (Ecker, J., dissenting).
9
See Ventura v. East Haven, 330 Conn. 613, 634–37, 199 A.3d 1 (2019)
(holding that immunity issues ordinarily present issue of law, disavowing
line of earlier cases stating that issue of whether acts or omissions are
discretionary or ministerial ordinarily presents issue of fact for jury).
10
Thus, a nonsupervisory municipal employee engaged in a routine task—
shoveling snow or opening a hallway door, for example—enjoys the same
insulation from ordinary negligence liability as a public official enjoys from
being ordered by a judge to do (or not to do) some act within the scope
of the official’s discretionary authority. The comparison, while startling,
unfortunately is neither hyperbolic nor accidental. The strict definition of
a ‘‘ministerial act’’ required to overcome municipal employee immunity is
effectively a mandamus standard. Compare Ventura v. East Haven, 330
Conn. 613, 631, 199 A.3d 1 (2019) (‘‘to demonstrate the existence of a
ministerial duty on the part of a municipality and its agents [in a negligence
action], a plaintiff ordinarily must point to some statute, city charter provi-
sion, ordinance, regulation, rule, policy, or other directive that, by its clear
language, compels a municipal employee to act in a prescribed manner,
without the exercise of judgment or discretion’’ (internal quotation marks
omitted)), with AvalonBay Communities, Inc. v. Sewer Commission, 270
Conn. 409, 422, 853 A.2d 497 (2004) (‘‘[A] writ of mandamus will lie only to
direct performance of a ministerial act which requires no exercise of a
public officer’s judgment or discretion. . . . Furthermore, where a public
officer acts within the scope of delegated authority and honestly exercises
her judgment in performing her function, mandamus is not available to
review the action or to compel a different course of action.’’ (Internal quota-
tion marks omitted.)). Something has gone very wrong when our municipal
immunity doctrine has blindly collapsed these two legal standards from the
extreme opposite ends of the judicial remedial spectrum—one a routine
damages award used every day to compensate any person who has sustained
real and demonstrable physical harm as a result of a defendant’s negligent
performance of routine tasks like shoveling snow or opening a hallway door,
the other an extraordinary writ involving the exercise of direct judicial
control to command or prohibit a government official from taking a particu-
lar action.
11
See, e.g., Ventura v. East Haven, 330 Conn. 613, 617, 640–42, 199 A.3d
1 (2019) (reversing judgment awarding plaintiff $6 million, rendered after
jury rejected municipal immunity defense in personal injury case on basis
of negligence); Edgerton v. Clinton, 311 Conn. 217, 219–21, 86 A.3d 437(2014) (reversing approximately $13 million judgment in plaintiff’s favor,
notwithstanding jury’s express finding that defendant was not entitled to
municipal immunity for its employee’s negligence resulting in plaintiff’s
personal injury); Daley v. Kashmanian, 193 Conn. App. 171, 173, 177, 219
A.3d 499 (2019) (upholding trial court’s granting of employee’s and munici-
pality’s motions to set aside $312,160.50 jury verdict on personal injury claim
predicated on negligence), petition for cert. filed (Conn. October 23, 2019)
(No. SC 190245), and cross petition for cert. filed (Conn. November 1, 2019)
(No. SC 190256).
12
I refer to the fact that a substantial number of our recent immunity
cases, sometimes before the ink is dry, have themselves been overruled by
still more recent cases. See, e.g., Ventura v. East Haven, 330 Conn. 613,
634–37 and n.12, 199 A.3d 1 (2019) (holding that immunity issues ordinarily
present issue of law and overruling Strycharz v. Cady, 323 Conn. 548, 148
A.3d 1011 (2016), Coley v. Hartford, 312 Conn. 150, 95 A.3d 480 (2014),
Bonington v. Westport, 297 Conn. 297, 999 A.2d 700 (2010), Martel v. Metro-
politan District Commission, 275 Conn. 38, 881 A.2d 194 (2005), and Lom-
bard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 749 A.2d 630 (2000));
Haynes v. Middletown, 314 Conn. 303, 323–25 n.16, 101 A.3d 249 (2014)
(overruling less demanding imminent harm standard used in Purzycki v.
Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), and Burns v. Board of Educa-
tion, 228 Conn. 640, 638 A.2d 1 (1994)); Grady v. Somers, 294 Conn. 324,
348–49, 984 A.2d 684 (2009) (overruling ‘‘dicta’’ in Pane v. Danbury, 267
Conn. 669, 841 A.2d 684 (2004), and Sanzone v. Board of Police Commission-
ers, 219 Conn. 179, 191–92, 592 A.2d 912 (1991), that identifiable person,
imminent harm exception does not apply to negligence claims brought
against municipality only).
13
In light of the theme of this opinion, it seems fitting that the municipal
immunity doctrine itself originated from the careless transplantation to the
New England states of an English case, Russell v. Men of Devon, 100 Eng.
Rep. 359 (K.B. 1788). See E. Borchard, ‘‘Government Liability in Tort,’’ 34
Yale L.J. 1, 41–42 (1924) (describing doctrine’s history and explaining why
Russell, which addressed liability of unincorporated and unfunded county,
does not support granting immunity to municipalities). Numerous scholarly
and judicial commentators have made the same observation as Professor
Borchard regarding this unfortunate transplantation. See, e.g., Muskopf v.
Corning Hospital District, 55 Cal. 2d 211, 216, 359 P.2d 457, 11 Cal. Rptr.
89 (1961) (Traynor, J.) (opining that cases that adopted reasoning of Russell
‘‘[ignored the] differences’’ that made Russell inapposite to municipalities
in United States); Spanel v. Mounds View School District No. 621, 264 Minn.
279, 282, 118 N.W.2d 795 (1962) (‘‘Every reason assigned by the court [in
Russell] is born of expediency. The wrong to [the] plaintiff is submerged
in the convenience of the public. No moral, ethical, or rational reason for the
decision is advanced by the court except the practical problem of assessing
damages against individual defendants.’’); E. Fuller & A. Casner, ‘‘Municipal
Tort Liability in Operation,’’ 54 Harv. L. Rev. 437, 438 n.2 (1941) (‘‘[t]hese
reasons [used in Russell to justify county immunity] were never applicable
in America’’).
14
In Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d
912 (1991), this court rejected a plaintiff’s claim that her constitutional right
to a remedy was violated when the trial court found that § 52-557n immunized
municipal defendants from liability for injuries the plaintiff sustained as a
result of an automobile collision allegedly caused by the defendants’ negli-
gent maintenance of a defective traffic signal. Id., 182–84, 194–95. It did so,
however, on the ground that the legislature has made available an alternative
form of liability as a substitute for any preexisting liabilities that may have
existed prior to 1818. See id., 196–97 (‘‘[t]he availability of redress under
[General Statutes] § 13a-149 permits the legislature constitutionally to elimi-
nate [common-law] remedies, if any, that may have existed prior to 1818
and that continued to exist prior to the Tort Reform Act of 1986, for injuries
arising out of highway defects’’ (footnotes omitted)).
15
This abuse of discretion standard is familiar in our jurisprudence. Cf.
State v. Ayala, 324 Conn. 571, 588–89, 153 A.3d 588 (2017) (‘‘[i]ndeed, the
failure to exercise discretion is an abuse in and of itself’’); Sturman v. Socha,
191 Conn. 1, 7, 463 A.2d 527 (1983) (‘‘[D]iscretion imports something more
than leeway in [decision making]. . . . Judicial discretion . . . is always
legal discretion, exercised according to the recognized principles of equity.
. . . While its exercise will not ordinarily be interfered with on appeal to
this court, reversal is required where the abuse is manifest or where injustice
appears to have been done. . . . In essence, the trial judge’s discretion
should be exercised in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of substantial justice.’’
(Citations omitted; internal quotation marks omitted.)).
16
‘‘[O]ur courts consistently have held that to demonstrate the existence
of a ministerial duty on the part of a municipality and its agents, a plaintiff
ordinarily must point to some statute, city charter provision, ordinance,
regulation, rule, policy, or other directive that, by its clear language, compels
a municipal employee to act in a prescribed manner, without the exercise
of judgment or discretion. See Violano v. Fernandez, 280 Conn. 310, 323,
907 A.2d 1188 (2006); Evon v. Andrews, 211 Conn. 501, 506–507, 559 A.2d
1131 (1989); DiMiceli v. Cheshire, [162 Conn. App. 216, 224–25, 131 A.3d
771 (2016)]; Grignano v. Milford, 106 Conn. App. 648, 659–60, 943 A.2d 507(2008).’’ (Internal quotation marks omitted.) Ventura v. East Haven, 330
Conn. 613, 631, 199 A.3d 1 (2019).
17
I do not suggest that the ‘‘clear abuse of discretion’’ rule articulated in
Wadsworth was itself consistently followed by this court between 1920 and
1986. Our cases did not establish anything like the near-absolute immunity
rule fashioned by this court after 1986, but they often followed a less nuanced
approach than the court did in Wadsworth. See, e.g., Fraser v. Henninger,
173 Conn. 52, 60, 376 A.2d 406 (1977) (in describing distinction between
ministerial and discretionary duties, noting that ‘‘[t]he word ‘ministerial’
‘refers to a duty which is to be performed in a prescribed manner without
the exercise of judgment or discretion’ ’’); Pluhowsky v. New Haven, 151
Conn. 337, 347, 197 A.2d 645 (1964) (same). Still, Wadsworth, more than
any other case, was cited continually by this court in the common-law era
as the leading precedent on ‘‘official immunity’’ in Connecticut, and, as of
1986, it remained unquestioned authority for the proposition that a municipal
employee does not enjoy immunity from negligence liability if he fails to
exercise the discretion required of him. Although there is one isolated case
suggesting that Wadsworth does not establish any limitation on employee
immunity for negligent (as opposed to wilful or wanton) conduct; see Stiebitz
v. Mahoney, 144 Conn. 443, 449, 134 A.2d 71 (1957); the assertion is demon-
strably incorrect. Stiebitz overlooks the fact that Wadsworth was a negli-
gence case, and Wadsworth held that employee immunity for negligence is
lost if the official acts are undertaken ‘‘wantonly or maliciously, or with a
clear abuse of discretion.’’ (Emphasis added.) Wadsworth v. Middletown,
supra, 94 Conn. 440.
18
I do not agree with the majority’s suggestion that the pursuit did not
begin until the pursued vehicle began driving recklessly. A jury reasonably
could conclude that the plaintiff’s decedent was a passenger in a vehicle
that was being operated in a safe manner until after the police vehicle
observed its underglow lights, performed a U-turn, and pursued the vehicle
for the apparent purpose of taking action against the driver. When a vehicle
takes flight in response to the initiation of law enforcement activity of this
nature, the recklessness inherent in the effort to evade the police cannot itself
be used to justify the emergency pursuit. Otherwise, virtually all emergency
pursuits would be justified, by definition, because a pursuit occurs only if
the driver takes flight. I also strongly disagree with the majority’s suggestion
that the legal issue on appeal involves only the decision to initiate the
pursuit, not to continue the pursuit after its initiation. To the contrary, the
underlying lawsuit and the present appeal plainly include the entire pursuit
from start to finish. See part II A of this opinion.
19
See Colon v. Board of Education, 60 Conn. App. 178, 183, 758 A.2d 900(‘‘[T]here was no directive describing the manner in which [a teacher or an
employee] was to open doors. Rather, it appears that it is [the teacher’s or
employee’s] poor exercise of judgment when opening the door that forms
the basis of the plaintiffs’ complaint. Accordingly, we conclude that [the
teacher’s or employee’s] actions were discretionary in nature.’’), cert. denied,
255 Conn. 908, 763 A.2d 1034 (2000), and cert. denied, 255 Conn. 908, 763
A.2d 1034 (2000). I wish I were exaggerating here, but I am unable to
overstate the scope of the current doctrine; even a maintenance worker
who fails to shovel snow from a sidewalk is immune from negligence liability
under our current doctrine. See Kusy v. Norwich, 192 Conn. App. 171, 180,
217 A.3d 31 (‘‘[t]he act of snow and ice removal, absent a directive strictly
imposing the time and manner in which it is to be done, is inherently a
discretionary act’’), cert. denied, 333 Conn. 931, 218 A.3d 71 (2019).
20
To the contrary, the public policy established by our current doctrine
is inimical to public safety. The doctrine encourages municipal managers
to avoid promulgating any rule, directive or policy that could be used in a
lawsuit to defeat an immunity defense. For anyone in municipal government
paying the least bit of attention to our cases, ‘‘there shall be no mandatory
policies regarding operations’’ will become the only mandatory policy regard-
ing operations. Just as the general counsel to a private enterprise will instruct
management never to publish a personnel manual that could be construed
as creating contractual rights in an employee; see Gaudio v. Griffin Health
Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999) (‘‘[w]e have stated
with unambiguous clarity that employers can protect themselves against
employee contract claims based on statements made in personnel manuals
by following either (or both) of two simple procedures: (1) eschewing lan-
guage that could reasonably be construed as a basis for a contractual prom-
ise; and/or (2) including appropriate disclaimers of the intention to contract’’
(internal quotation marks omitted)); so, too, budget-conscious municipal
managers will instruct supervisory employees never to characterize any
operational duties or tasks as mandatory and never to prescribe in mandatory
terms how any such task must be executed. This ‘‘no ministerial policy’’
policy not only will make the workplace less safe, for both municipal employ-
ees and members of the public, but it will have the desired effect of reducing
the line item for legal liability in the annual budget.
21
See General Statutes (Supp. 1945) § 89h (saving harmless municipal
police officers for negligence in operating vehicle, amended in 1955; General
Statutes (Supp. 1955) § 265d; to indemnify municipal police officers for all
liability for damage to persons or property, and repealed in 1957 by Public
Acts 1957, No. 401, § 3, with establishment of broader § 7-465 indemnifica-
tion); General Statutes § 10-235 (enacted in 1949 to ‘‘protect and save harm-
less’’ any member of board of education, teacher, or other board employee
from financial loss and expense arising out of accidental injury to persons or
property); General Statutes § 7-465 (enacted in 1957 to indemnify municipal
employees for liability for damages to persons or property); General Statutes
§ 7-308 (enacted in 1955 to ‘‘protect and save harmless’’ municipal volunteer
firefighters, ambulance members, and fire police officers from financial loss
and expense arising out of any negligence claim); General Statutes § 7-101a
(enacted in 1971 to ‘‘protect and save harmless’’ municipal officers from
financial loss and expense, including legal fees and costs, arising out of any
negligence claim).
22
Number 251 of the 1945 Public Acts provides in relevant part: ‘‘Each
municipality of this state, notwithstanding any inconsistent provision of law,
general, special or local, or the limitation contained in the provisions of any
city or town charter, shall, upon adopting the provisions of this act in the
manner hereinafter provided, save harmless any duly appointed policeman
of such municipality for the negligence of such appointee in the operation
of a vehicle upon the public streets or highways in the discharge of a
duty imposed by law upon such appointee or municipality, provided the
appointee, at the time of the accident, injury or damages complained of,
was acting in the performance of his duties and within the scope of his
employment. . . .’’
23
In the absence of express statutory authority, it evidently was uncertain
at the time whether municipalities lawfully could expend public funds to
insure or indemnify municipal employees for negligence liability. See Conn.
Joint Standing Committee Hearings, Judiciary, 1945 Sess., p. 201, remarks
of Representative Edward H. Delafield.
24
Number 469 of the 1953 Public Acts provides in relevant part: ‘‘Each
municipality of this state, notwithstanding any inconsistent provision of law,
general, special or local, or the limitation contained in the provisions of any
city or town charter, shall, upon adopting the provisions of this section
in the manner hereinafter provided, pay on behalf of any duly appointed
policeman of such municipality all sums which such appointee shall become
obligated to pay by reason of the liability imposed upon such appointee by
law for damages to person or property, provided the appointee, at the time
of the occurrence, accident, injury or damages complained of, was acting
in the performance of his duties and within the scope of his employment,
in the discharge of a duty imposed by law upon such appointee or municipal-
ity and provided such occurrence, accident, injury or damage was not the
result of any wilful or wanton act of such employee in the discharge of
such duty. . . .’’
25
See 7 S. Proc., Pt. 6, 1957 Sess., pp. 3228–29 (clerk reading Governor
Abraham Ribicoff’s veto message regarding P.A. 57-401); id., pp. 3230–32,
remarks of Senator Benjamin L. Barringer (describing thorough discussion
before Judiciary Committee and extensive study by Legislative Council
regarding bill’s merits).
26
The controversy inspired strong feelings and harsh words. See, e.g., 7
S. Proc., supra, p. 3232, remarks of Senator Benjamin L. Barringer (accusing
governor of ‘‘trying to usurp the legislative functions’’ and trying ‘‘to pervert
the legislative functions into the executive functions’’); id., pp. 3235–37,
remarks of Senator Healey (responding in kind in support of governor); see
also 7 H.R. Proc., supra, p. 2224, remarks of Representative Erving Pruyn
(‘‘I’m very sorry to learn that the [g]overnor will probably veto this bill if
it reaches him, because in doing so he will be thwarting the will of the
legislature, the duly elected representatives of the people of the state for
the second time, and such thwarting is done after careful research and
investigation and recommendation by the Legislative Council. I think it’s
against the public [interest] for him to veto this bill, and I hope that he will
see the light.’’).
27
See also 7 S. Proc., supra, p. 3233, remarks of Senator Harold Borden
(‘‘Why should a poor individual who makes [f]ifty or [s]ixty [d]ollars a week,
just because he happens to be employed by a municipality, [which] can very
well afford it, and if they can’t afford it, then if there is a [t]en [t]housand
[d]ollar judgment against this individual then it’s split up amongst five, ten
and twenty or thirty thousand [municipal taxpayers] instead of one individ-
ual. Why should he be different than a man working in private industry? I
say, he should not be different than private industry. This is a very good
bill. I was on the [l]egislative [c]ouncil and this bill was heard. It came
before the [l]egislative [c]ouncil. We discussed this bill. We had pros and
cons. It finally reached an impasse where we approved this bill unanimously
and had the bill drawn et cetera and sent it to the legislature. I am going
to vote to override the veto.’’); id., p. 3230, remarks of Senator Benjamin L.
Barringer (‘‘We feel, and we felt in the [Judiciary] Committee, that this was
a reasonable and proper bill. We felt that a municipal corporation should
be as subject to [a lawsuit for the negligence of its employees] as a pri-
vate corporation.’’).
28
See also 7 H.R. Proc., supra, p. 2220, remarks of Representative Louis
J. Padula (‘‘As . . . you know there’s a statute where the towns are liable
for negligent acts of firemen, and recently the bill was increased to cover
policemen, where the town has the right to assume they are liable when in
the performance of their duties. There are other employees of the town that
outnumber the firemen and policemen that are exposed to the same type
of risk.’’ (Internal quotation marks omitted.)); id., p. 2224, remarks of Repre-
sentative Erving Pruyn (‘‘[at the] hearing before the [L]egislative [C]ouncil
representatives of the city of Hartford appeared and stated that they insured
all their municipal employees who drive automobiles or rather protected
them—they do it on a self-insurance basis; that their policemen and firemen
and school teachers were protected, but a similar protection was not given
to the other municipalities; and they pointed out that the employees of the
Public Works Department and the Park[s] Department are not protected,
although many of them come in contact with members of the general public
in carrying out their duties; and they further stated that the distinction
between these employees of the city was harmful to the morale of the
employees who are not protected’’).
29
See also 7 H.R. Proc., supra, p. 2216, remarks of Representative Pruyn
(‘‘[i]t is only fair and just that losses from injuries and damages of the kind
under discussion, should be spread over society in general instead of being
borne by the innocent victim’’); id., pp. 2222–23, remarks of Representative
A. Searle Pinney (‘‘[T]he basic underlying question . . . is simply this:
Should an injured individual bear the cost of an accident, which wasn’t his
fault, or should it be borne by the agency which caused it and the burden
spread over the public at large[?] I find nothing in [the governor’s veto]
message which attempts to handle that question. The [L]egislative [C]ouncil
in its study of the matter went into that in great detail, and came to the
conclusion that the cost should be borne by the agency doing the harm and
it should be spread over the entire public. The public can protect itself
through insurance or through one of the self-insuring systems that some of
the towns in this state have already adopted.’’); id., p. 2225, remarks of
Representative Pruyn (After describing the facts of a case in which the
municipality was found by this court to be immune from liability, stating:
‘‘Now, here you have . . . a girl badly injured, no remedy except the doubt-
ful one of recovering against the municipal employee. Certainly the spreading
of this loss over the general society [by way of the indemnification statute]
is certainly much better than of allowing the poor innocent victim to bear
the loss.’’); 7 H.R. Proc., Pt. 5, 1957 Sess., p. 2763, remarks of Representative
Pruyn (‘‘it’s only fair and just that losses from injuries and damages of this
kind should be spread over society instead of being borne by the person
who is injured by the act of a municipal employee—the innocent victim’’).
30
See 7 S. Proc., supra, p. 3231, remarks of Senator Barringer (‘‘[w]e’re
always in the habit of further studying matters if they’re too hot to consider,
and it was referred to the [l]egislative [c]ouncil and I’m given to understand
that the [l]egislative [c]ouncil again endorsed the merits of the bill unani-
mously and returned it to this [G]eneral [A]ssembly as a bill worthy of our
consideration’’); 7 H.R. Proc., Pt. 4, 1957 Sess., pp. 2215–16, remarks of
Representative Pruyn (‘‘Because of the importance of this type of legislation
the 1955 session referred this bill to the [l]egislative [c]ouncil for study
and recommendation. Now, the [c]ouncil gave an exhaustive study to this
proposition; it held a public hearing at which representatives from several
municipalities appeared and urged favorable action on this bill. The [c]ouncil
after studying what other states have done, very careful consideration, came
to the conclusion that the old doctrine of governmental immunity based as
it is on that ancient principle that the [k]ing can do no wrong, was outmoded,
and that with the great increase of activities now being carried on by the
municipalities and the availability at reasonable cost of insurance protection,
the municipalities should assume the liability for injuries caused by their
employees acting in the performance of their duties, and within the scope
of their employment. This bill . . . was therefore recommended for passage
by the [l]egislative [c]ouncil.’’).
31
The Report of the Legislative Council also identified the three main
arguments against indemnification: ‘‘1. Citizens would become claim-con-
scious and the number of legal suits would rise tremendously. 2. High awards
would be made because of the feeling that the government would be paying,
when actually the taxpayers would be footing the bill. 3. Municipal employees
would become careless in their duties to the detriment of the community,
in the knowledge that the municipality is legally responsible for their acts.’’
Report of the Legislative Council (December 7, 1956) p. 13.
32
Judge Shea notes that Judge (later Justice) John P. Cotter reached the
opposite conclusion in Boucher v. Fuhlbruck, 26 Conn. Supp. 79, 83, 213
A.2d 455 (1965). See Lapierre v. Bristol, 31 Conn. Supp. 442, 445–46, 333
A.2d 710 (1974). Boucher relies on generic canons of statutory construction
and does not examine the extensive legislative history considered by Judge
Shea. I include Judge Shea’s views because they reflect a contemporaneous
analysis of the proper construction of § 7-465 as events were unfolding. It
is important to understand, however, that the conclusions contained in this
opinion do not depend at all on Judge Shea having been right about the
intended effect of § 7-465 on the discretionary/ministerial distinction as it
applies to municipal employees. Whatever the intended status of the distinc-
tion as a general matter after the enactment of § 7-465, the historical record
makes it abundantly clear that the distinction had no application to the
employee’s liability for negligent driving (routine or emergency) under the
common law. See part II of this opinion. Liability unquestionably existed as
a matter of well settled common law. Because § 7-465 was an indemnification
statute, the doctrine likewise had no application to the municipality’s indem-
nity obligations with respect to municipal employee liability in such cases.
33
‘‘Section 7-101a, as initially adopted in 1971, mandated that municipali-
ties ‘protect and save harmless any member of any board, committee or
commission of such municipality from financial loss and expense, including
legal fees and costs, if any, arising out of any claim, demand, suit or judgment
by reason of alleged negligence on the part of such member while acting
in the discharge of his duties as such member.’ Public Acts 1971, No. 726.
In 1975, this statute was extended to local council members and included
protection ‘for alleged infringement of any person’s civil rights.’ Public Acts
1975, No. 75-408. In 1977, the statute was amended further by extending
coverage to include ‘any full-time municipal employee.’ Public Acts 1977,
No. 77-399. This amendment became effective October 1, 1977.’’ Ahern v.
New Haven, 190 Conn. 77, 79–80, 459 A.2d 118 (1983). The statute was
amended again in 1980; Public Acts 1980, No. 80-403, §§ 9 and 10; and in
1989. Public Acts 1989, No. 89-212, § 11; Public Acts 1989, No. 89-378.
34
I say that the continued vitality of the discretionary function doctrine
was uncertain in the wake of § 7-465 because there was a difference of
opinion on the question. On the one hand, there is rather compelling evidence
in the legislative history supporting the conclusion reached by Judge Shea,
who determined that the legislature intended to eradicate the doctrine alto-
gether with the enactment of § 7-465: ‘‘A review of the [R]eport of the
[L]egislative [C]ouncil and a study of the wording of the bill convince this
court that it was the intention of the legislature to subject municipal employ-
ees, and hence municipalities by way of indemnification, to liability for
discretionary as well as ministerial acts so long as they were performed
within the scope of the employment.’’ Lapierre v. Bristol, supra, 31 Conn.
Supp. 446. On the other hand, this court evidently had no occasion between
1957 and 1986 to consider the question decided by Judge Shea, and we
continued to apply the discretionary function doctrine (although not in its
current extreme version). See footnote 18 of this opinion.
35
Historically, there has never been any doubt that police officers (and
firefighters) are personally liable for damages caused by negligent, on-duty
driving. See part II of this opinion. Indeed, protecting police and fire workers
against personal liability was why our legislature enacted the original munici-
pal indemnification statutes in Connecticut. See part I C of this opinion
(discussing legislative history of No. 251 of the 1945 Public Acts).
36
To be clear, the common law also never conferred immunity on the
employee for vehicular negligence, whether under routine or emergency
conditions. See part II of this opinion. My immediate point, however, is
simply that the individual defendants are not entitled to immunity under
the plain language of § 52-557n (a).
37
See 29 H.R. Proc., Pt. 16, 1986 Sess., p. 5939, remarks of Representative
Robert G. Jaekle (‘‘[Subs]ection (a), both the liability and the exemptions
from liability are unless otherwise provided by law. Federal, state or local.’’).
There are two responses to any criticism that this reading of § 52-557n would
nullify its limitations on municipal liability because a plaintiff could recover
indirectly, via indemnification pursuant to § 7-465, what the plaintiff is pro-
hibited by the municipal entity immunity doctrine from recovering directly
from the municipality. First, far from being irrational or absurd, this arrange-
ment replicates precisely the result under Connecticut law before the enact-
ment of § 52-557n. The municipality itself was immune, but it was obligated
by statute to indemnify the employee for any personal liability resulting
from that employee’s negligence. This is why it is said that § 52-557n codified
the then-existing common law. Second, in the same way that § 7-465 cannot
be allowed to swallow up § 52-557n, we also must ensure that § 52-557n is
not construed to effectively swallow up § 7-465, a statute of great importance.
See part I C of this opinion. Nothing in § 52-557n or its legislative history
suggests any legislative intention to repeal § 7-465 or render it nugatory.
See, e.g., Rivera v. Commissioner of Correction, 254 Conn. 214, 242, 756
A.2d 1264 (2000) (‘‘[I]t is a well established rule of statutory construction
that repeal of the provisions of a statute by implication is not favored and
will not be presumed where the old and the new statutes . . . can peacefully
coexist. . . . If, by any fair interpretation, we can find a reasonable field
of operation for both [statutes], without destroying or perverting their mean-
ing and intent, it is our duty to reconcile them and give them concurrent
effect.’’ (Internal quotation marks omitted.)).
38
See also State v. Josephs, 328 Conn. 21, 27, 176 A.3d 542 (2018) (in
construing statutes, ‘‘[w]e are not permitted to supply statutory language
that the legislature may have chosen to omit’’ (internal quotation marks
omitted)); DiLieto v. County Obstetrics & Gynecology Group, P.C., 316
Conn. 790, 803–804, 114 A.3d 1181 (2015) (‘‘[i]t is not the province of this
court, under the guise of statutory interpretation, to legislate . . . a [particu-
lar] policy, even if we were to agree . . . that it is a better policy than the
one endorsed by the legislature as reflected in its statutory language’’); State
v. Rupar, 293 Conn. 489, 511, 978 A.2d 502 (2009) (‘‘We are not in the
business of writing statutes; that is the province of the legislature. Our role
is to interpret statutes as they are written. . . . [We] cannot, by [judicial]
construction, read into statutes provisions [that] are not clearly stated.’’
(Internal quotation marks omitted.)); Glastonbury Co. v. Gillies, 209 Conn.
175, 181, 550 A.2d 8 (1988) (‘‘As we have stated in numerous other cases,
‘it is not the province of a court to supply what the legislature chose to
omit. The legislature is supreme in the area of legislation, and courts must
apply statutory enactments according to their plain terms.’ ’’).
39
It is indisputable that the municipal employee was personally liable for
negligent, on-duty driving under our common law. It also is indisputable
that the municipality, although itself immune from liability under the com-
mon law, was required by statute to indemnify this liability. See part II of
this opinion.
40
To avoid any misunderstanding, I am not suggesting that § 52-557n
imposes municipal liability in all circumstances not specifically carved out
by § 52-557n (b). Not at all. Just as subsection (a) contains the basic rules
of municipal liability, it also contains the basic rules of municipal immunity,
not the least of which is § 52-557n (a) (2) (B), which codifies the doctrine
of discretionary act immunity. The point here is that, when, as in the present
case, then existing law did not confer immunity for negligent driving of police
vehicles (or any other municipal vehicles), then any change or clarification
intended by the legislature in 1986 necessarily would be found in § 52-557n
(b). There is nothing in section (b) granting immunity in this case.
41
See, e.g., State v. Salamon, supra, 287 Conn. 525–26 (‘‘[i]t is significant
. . . that, with the exception of a 1993 amendment to [General Statutes]
§ 53a-94 affecting only its penalty provisions, neither that section nor the
pertinent definitional section, General Statutes § 53a-91, has been subject
to any substantive amendments since it first was enacted in 1969’’ (footnote
omitted)). Section 52-557n, likewise, has been amended only twice since its
enactment, and neither amendment involved subsection (a) or involved any
issue relevant to this case. See Public Acts 1992, No. 92-198 (adding subsec-
tion (c) concerning immunity of members of local boards and commissions
who are not compensated for their membership); Public Acts 1993, No. 93-
290 (adding subdivision (10), regarding preexisting conditions on land sold
or transferred by the state, to subsection (b)).
42
I am aware of a single exception to this proposition, which is the
immunity provided to the state and its political subdivisions by General
Statutes § 28-13 (a) for actions taken in connection with a civil preparedness
emergency declared by the governor pursuant to General Statutes § 28-9.
See Sena v. American Medical Response of Connecticut, Inc., 333 Conn.
30, 32–33, 213 A.3d 1110 (2019).
43
Bottomley v. Bannister, 12 K.B. 458, 476 (1932) (‘‘It is a commonplace
of the law of negligence that before you can establish liability for negligence
you must first show that the law recognizes some duty towards the person
who puts forward the claim. . . . English law does not recognize duty in
the air, so to speak; that is, a duty to undertake that no one shall suffer
from one’s carelessness.’’); see also Shore v. Stonington, 187 Conn. 147,
151, 444 A.2d 1379 (1982) (‘‘[t]he law does not recognize a ‘duty in the air’ ’’).
44
I defer discussion of the alternative reading of § 14-283 proposed in the
Chief Justice’s concurring opinion until the end of part II B of this opinion.
45
The plaintiff’s complaint alleges that the pursuing officers were negligent
both in initiating the pursuit and in the manner in which they conducted the
pursuit, and the summary judgment proceedings addressed those allegations.
The trial court’s memorandum of decision granting the defendants’ motion
for summary judgment likewise decided those issues. On appeal, the plaintiff
identifies the issue presented broadly: ‘‘Did the trial court err when it con-
cluded that . . . § 14-283 imposed a discretionary, as opposed to ministerial,
duty?’’ The defendants’ appellate brief follows suit and presented the follow-
ing counterstatement of the issue: ‘‘Whether the trial court correctly deter-
mined, based upon the allegations of the plaintiff’s complaint, that the acts
and omissions complained of with respect to Renaldi and Jasmin inherently
involve discretionary acts/duties?’’
46
In part B 1 of her brief, the plaintiff seeks (unsuccessfully) to harmonize
a host of conflicting Superior Court decisions on the subject by focusing
on the officer’s decision making when initiating a vehicular pursuit. Part B
2 of the plaintiff’s brief, however, argues in the alternative by asserting
(correctly, in my view) that immunity does not apply for the simple reason
that §14-283 requires that even police officers operating emergency vehicles
must exercise due care at all times, period. See Borelli v. Renaldi, Conn.
Supreme Court Briefs and Appendices, April Term, 2019, Plaintiff’s Brief
pp. 14–15 (‘‘[W]hereas typically governmental immunity is applied to those
activities that are uniquely government functions, the operation of a motor
vehicle on a public roadway is not unique to the government. Rather, ordinary
citizens . . . use the public roadways on a daily basis. Accordingly, those
courts that have found that § 14-283 imposes a ministerial duty have done
so on the conclusion that it is desirable, from a public policy perspective,
to mandate that officers act reasonably on the road. Any other conclusion
creates the risk of chaotic and unpredictable roadways.’’). I need not and
do not address the artificial and academic question whether immunity would
attach to the isolated decision to initiate a high speed chase alone, without
more, because that question is not presented here (nor do I suspect that it
will ever be raised as a complete and stand-alone theory of liability).
47
See, e.g., Borelli v. Renaldi, Conn. Supreme Court Briefs and Appendi-
ces, April Term, 2019, Plaintiff’s Brief p. 2 (‘‘[T]he correct conclusion [in
the trial court] should have been that a ministerial duty existed under [the]
plain language of § 14-283 (d), and that it was for the jury to decide the
factual question of whether the defendants performed that duty at all—that
is to say, whether the officers did give due regard for the safety of those
involved in the chase in light of the seriousness of the offense. Given that
the defendants engaged in an extremely dangerous chase at night over a
minor infraction, a jury could conclude that the officers engaged in the
chase thoughtlessly and did not give due regard to safety balanced against
the nature of the minor offense conduct, as § 14-283 requires.’’); id., p. 5
(‘‘Renaldi did not cease his pursuit but instead attempted to proceed to halt
the minor infraction he had observed by continuing, even though he was
losing ground on the Mustang throughout the chase’’ (footnote omitted)); id.,
pp. 14–15 (emphasizing that, in addition to the express directive contained
in § 14-283, the requirements found in both § 14-283a-4 (b) (4) of the Regula-
tions of Connecticut State Agencies and § 5.11.12.B of the Seymour Police
Department Pursuit Policy impose mandatory duties for driving emergency
vehicles extending beyond the threshold decision to initiate a pursuit); see
also id., p. 15 (arguing that various pursuit policies demonstrate that safe
operation of vehicle during police pursuit is ministerial duty because ‘‘[a]
reasonable interpretation of these state and local [pursuit] policies is that
the state and local agencies understood that the operation of an emergency
vehicle, even one in the pursuit of a suspect, must be done with safety,
because § 14-283 requires as much’’ (emphasis omitted); id., p. 17 (arguing
that this court’s other discretionary duty cases do not apply to police pursuits
because there is statutorily recognized duty to drive safely during pursuit,
specifically, ‘‘[§] 14-283 represents a legislative determination as to what
should happen in a police pursuit’’).
48
In support of its contention that the plaintiff’s appeal involves solely
the officer’s decision to initiate the pursuit and excludes his conduct in the
continuation of the pursuit, the majority observes that the Uniform Statewide
Pursuit Policy likewise treats the two aspects of a pursuit separately,
addressing initiation under § 14-283a-4 (a) of the Regulations of Connecticut
State Agencies, and the continuation of the pursuit under § 14-283a-4 (b) and
(d). One flaw in this argument, among others, is that a different subsection
of the same Uniform Statewide Pursuit Policy collapses the clean line drawn
by the majority by requiring the pursuing officer, throughout the entire
duration of the pursuit, to ‘‘continually re-evaluate and assess the pursuit
situation, including all of the initiating factors, and terminate the pursuit
whenever he or she reasonably believes that the risks associated with contin-
ued pursuit are greater than the public safety benefit of making an immediate
apprehension.’’ Regs., Conn. State Agencies § 14-283a-4 (e) (1). The bottom
line is that the typical negligence claim arising from a police pursuit almost
always will require factual consideration of the initiation, continuation and
termination of the pursuit, and it serves no useful purpose to draw bright-
line distinctions between those intertwined aspects of the pursuit when
applying the immunity doctrine or the requirements of § 14-283, for the
simple reason that the legal analysis will always turn on the same fundamen-
tal underlying claim, which is that, at each and every stage of the pursuit,
the officer is required by positive law to exercise the same standard of due
care applicable to all drivers on our public roads.
49
See, e.g., Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982)
(police officer owes no duty to remove from road all persons who may pose
potential hazard).
50
On a few occasions, this ‘‘self-evident’’ proposition has been challenged
by defendants in our Superior Court, almost always without success. See,
e.g., Williams v. New London, Superior Court, judicial district of New Lon-
don, Docket No. CV-XX-XXXXXXX-S (April 7, 2014) (58 Conn. L. Rptr. 86, 89–90)
(noting ‘‘sizeable majority’’ of Superior Court cases ‘‘that have held that
routine nonemergency driving involves ministerial, rather than discretionary,
duties’’); Pelletier v. Petruck, Superior Court, judicial district of Hartford,
Docket No. CV-XX-XXXXXXX-S (September 10, 2008) (46 Conn. L. Rptr. 288,
289) (‘‘Connecticut [case law] supports the argument that the operation of
a motor vehicle is, in fact, a ministerial act to which government immunity
does not attach’’); MacMillen v. Branford, Superior Court, judicial district
of New Haven, Docket No. 374004 (March 30, 1998) (21 Conn. L. Rptr. 561,
561) (‘‘the operation of a motor vehicle is a ministerial act that does not
confer governmental immunity’’); Hurdle v. Waterbury, Docket No. 0123428,
1995 WL 781380, *2 (Conn. Super. December 12, 1995) (‘‘the [police officer]
having embarked upon . . . a plan of action, which involved the operation
of a motor vehicle on the public highways . . . is duty bound to physically
operate the vehicle in a reasonable manner’’); Borchetta v. Brown, 41 Conn.
Supp. 420, 424, 580 A.2d 1007 (1990) (‘‘operation of a police vehicle was a
ministerial function’’); Letowt v. Norwalk, 41 Conn. Supp. 402, 406, 579
A.2d 601 (1989) (police officer’s act of driving to scene of accident was
ministerial). But see Gordils v. Hartford, Docket No. CV-XX-XXXXXXX-S, 2009
WL 1444793, *2 (Conn. Super. May 5, 2009) (sanitation worker who drove
truck into trash barrel that allegedly then struck plaintiff was engaged in
discretionary act, and he ‘‘made an error in judgment by driving too close
to the sidewalk’’).
51
The Appellate Court came close to addressing the issue in a recent
decision. See Daley v. Kashmanian, 193 Conn. App. 171, 219 A.3d 499(2019), petition for cert. filed (Conn. October 23, 2019 (No. SC 190245), and
cross petition for cert. filed (Conn. November 1, 2019) (No. SC 190256). In
Daley, the vehicle driven by the defendant police officer had collided with
the plaintiff’s motorcycle when the officer was conducting ‘‘surveillance’’
of the plaintiff. Id., 174. In affirming the Superior Court’s order granting the
defendants’ motion for a directed verdict on the plaintiff’s negligence claim,
the Appellate Court focused its analysis on whether surveillance of a suspect
is discretionary or ministerial. See id., 184 (noting that ‘‘[n]either [the]
Supreme Court nor [the Appellate] [C]ourt has determined whether a munici-
pal police officer conducting surveillance while driving a motor vehicle is
engaged in discretionary or ministerial conduct’’). The court did not decide
whether the act of driving, in itself, is discretionary or ministerial or address
the impact that § 14-283 would have on the analysis.
52
See, e.g., Sena v. American Medical Response of Connecticut, Inc., 333
Conn. 30, 52, 213 A.3d 1110 (2019) (concluding that General Statutes § 28-
13 (a) extends sovereign immunity to state’s political subdivisions for actions
taken in connection with civil preparedness emergency).
53
Prescott v. Meriden, 273 Conn. 759, 762–63, 873 A.2d 175 (2005) (treating
as ‘‘discretionary’’ school employee’s failure to keep bleachers safe by remov-
ing rain water that had caused slipping hazard); Kusy v. Norwich, 192 Conn.
App. 171, 178, 217 A.3d 31 (treating as ‘‘discretionary’’ school employee’s
failure to remove snow and ice from walkway in absence of mandatory policy
directive prescribing manner in which snow and ice are to be removed),
cert. denied, 333 Conn. 931, 218 A.3d 71 (2019).
54
This may explain why our automakers are experiencing such difficulty
perfecting a self-driving car; bad human judgment causes accidents, but the
right kind of human judgment seems essential to good driving. See N. Oliver
et al., ‘‘To Make Self-Driving Cars Safe, We Also Need Better Roads and
Infrastructure,’’ Harv. Bus. Rev., August 14, 2018, available at http://hbr.org/
2018/08/to-make-self-driving-cars-safe-we-also-need-better-roads-and-infra-
structure (last visited June 22, 2020) (explaining difficulty in designing auton-
omous vehicles that can safely navigate ‘‘edge cases’’ like ‘‘accidents, road
work, or a fast-approaching emergency response vehicle’’); National Trans-
portation Safety Board, Department of Highway Safety, Vehicle Automation
Report No. HWY18MH010 (November, 2019) (report on death of Elaine
Herzberg, pedestrian struck and killed by self-driving car in Tempe, Arizona,
on March 18, 2018).
55
See, e.g., General Statutes § 14-218a (a) (‘‘[n]o person shall operate a
motor vehicle . . . at a rate of speed greater than is reasonable, having
regard to the width, traffic and use of highway, road or parking area, the
intersection of streets and weather conditions’’); General Statutes § 14-240
(a) (‘‘[n]o person operating a motor vehicle shall follow another vehicle
more closely than is reasonable and prudent, having regard for the speed
of such vehicles, the traffic upon and the condition of the highway and
weather conditions’’); McDonald v. Connecticut Co., 151 Conn. 14, 17, 193
A.2d 490 (1963) (‘‘The plaintiff claims that the operator of the bus failed to
maintain a proper lookout. An operator of a motor vehicle is chargeable
with notice of dangers of whose existence he could become aware by a
reasonable exercise of his faculties.’’).
56
See Edgerton v. Clinton, 311 Conn. 217, 228 n.10, 86 A.3d 437 (2014)
(immunity appropriately applied to situations involving ‘‘split second, discre-
tionary decisions on the basis of limited information’’).
57
The costs of the victim’s injuries, of course, do not disappear; the costs
merely get transferred to a payer other than the negligent employee or his
municipal employer. The burden may be shifted to the victim him or herself,
or to his or her medical insurer and/or employer, or to the various governmen-
tal programs of last resort that must pay the costs imposed on society when
the responsible party is not held accountable. Meanwhile, the most efficient
cost-avoiders and most effective cost-spreaders in connection with the
harm—the municipal employee and the municipality—escape liability with-
out paying a nickel.
58
I use quotation marks here because it would appear to be inaccurate,
on this record, to characterize the officer as ‘‘responding’’ to an emergency.
A jury easily might conclude that the officer actually created the emergency
and, thus, created the danger resulting in the plaintiff’s injuries, by initiating
a high speed pursuit in response to a minor violation of the motor vehicle
laws. I discuss this point at greater length later in this opinion.
59
The word ‘‘duty,’’ as used here, has a definitive legal meaning as a legally
enforceable obligation. See Black’s Law Dictionary (11th Ed. 2019) p. 637
(‘‘duty’’ means, inter alia, ‘‘[a] legal obligation that is owed or due to another
and that needs to be satisfied; that which one is bound to do, and for which
somebody else has a corresponding right’’). As this definition explains, the
existence of a legal duty necessarily implies a corresponding legal right in
one or more other persons to obtain redress for breach of that duty. Without
that right of enforcement, no duty exists in the eyes of the law. See W.
Hohfeld, ‘‘Some Fundamental Legal Conceptions as Applied in Judicial Rea-
soning,’’ 23 Yale L.J. 16, 33 (1913) (‘‘a duty is the invariable correlative of
that legal relation which is most properly called a right or claim’’). In § 14-
283 (d), the legislature explicitly recognized the continued existence of a
duty owed to other persons using the roadway. In this context, the existence
of that legal duty necessarily implies a correlative right on the part of injured
parties to sue for breach of that duty.
60
This was not the first time the town had defended against a negligence
action based on § 7-465 indemnification. See Bailey v. Stratford, 29 Conn.
Supp. 73, 74, 271 A.2d 122 (1970) (same municipality sued for negligence
of employee under § 7-465).
61
If the defendants had overlooked a viable immunity defense, the court
in Tetro likely would have found it prudent to note that fact, neutrally and
in passing, so as to leave open for another day a holding based on that
defense. Judge Povodator made a slightly different point regarding Tetro in
a police pursuit case when he observed that the holding in Tetro would be
‘‘superfluous (if not self-contradictory) if there were no possibility of liability
of a police officer whose conduct came within the scope of § 14-283.’’ Torres
v. Norwalk, Superior Court, judicial district of Stamford-Norwalk, Docket
No. FST-CV-XX-XXXXXXX-S (May 2, 2018) (66 Conn. L. Rptr. 548, 558).
62
By my count, this is the third time that our more recent immunity cases
have dealt in this fashion with precodification, common-law cases that were
alive and well at the time the legislature enacted § 52-557n. See Northrup
v. Witkowski, 332 Conn. 158, 166, 210 A.3d 29 (2019) (overruling Spitzer v.
Waterbury, 113 Conn. 84, 154 A. 157 (1931)); Grady v. Somers, 294 Conn.
324, 353, 984 A.2d 684 (2009) (observing that Sestito v. Groton, supra, 178
Conn. 520, ‘‘appears . . . to be limited to its facts’’); see also Edgerton v.
Clinton, 311 Conn. 217, 240, 86 A.3d 437 (2014) (stating that ‘‘we . . . found
[in Grady] that [Sestito’s] holding is limited to its facts’’). Our holding that
Sestito is ‘‘limited to its facts’’ is, of course, a gentle way to say it has been
overruled, although I do not see the need to euphemize. In any event, our
decision to bury Sestito is directly contrary to the intention of the legislature,
which intended to codify its holding rather than overrule it. See Report of
the Law Revision Commission to the Judiciary Committee Comparing Public
Act 86-338, An Act Concerning Tort Reform, and Prior Connecticut Law
(1987) p. 22 (citing Sestito as an example ‘‘of the underlying [common-law
principle]’’ that a municipality is liable when ‘‘there is a knowing failure
to act or to exercise a prescribed duty of care endangering individuals’’).
Likewise, any attempt by this court to marginalize the holding of Tetro
would run contrary to the legislative intention evident from the chronology
described in the text accompanying this footnote.
63
See, e.g., Haw. Rev. Stat. § 291C-26 (d) (2007) (‘‘[t]he foregoing provi-
sions shall not relieve the driver of an authorized emergency vehicle from
the duty to drive with due regard for the safety of all persons, nor shall
those provisions protect the driver from the consequences of the driver’s
reckless disregard for the safety of others’’); Kan. Stat. Ann. § 8-1506 (d)
(2001) (‘‘[t]he foregoing provisions shall not relieve the driver of an author-
ized emergency vehicle from the duty to drive with due regard for the
safety of all persons, nor shall such provisions protect the driver from the
consequences of reckless disregard for the safety of others’’); N.Y. Veh. &
Traf. Law § 1104 (e) (McKinney 2011) (‘‘[t]he foregoing provisions shall not
relieve the driver of an authorized emergency vehicle from the duty to drive
with due regard for the safety of all persons, nor shall such provisions
protect the driver from the consequences of his reckless disregard for the
safety of others’’); Wn. Rev. Code Ann. § 46.61.035 (4) (West 2012) (‘‘[t]he
foregoing provisions shall not relieve the driver of an authorized emergency
vehicle from the duty to drive with due regard for the safety of all persons,
nor shall such provisions protect the driver from the consequences of his
or her reckless disregard for the safety of others’’).
64
Although, in 1971, Connecticut adopted almost all of the UVC as it then
existed, without any substantive deviation, our legislature did not adopt the
model version of subsection (d), which, at that time, provided that ‘‘[t]he
foregoing provisions shall not relieve the driver of an authorized emergency
vehicle from the duty to drive with due regard for the safety of all persons,
nor shall such provisions protect the driver from the consequences of his
reckless disregard for the safety of others.’’ (Emphasis added.) National
Committee on Uniform Traffic Laws and Ordinances, Uniform Vehicle Code
and Model Traffic Ordinance (1968 Rev.) § 11-106 (d), p. 135. Instead, in
P.A. 71-538, the legislature chose to retain the traditional negligence standard
of care: ‘‘The provisions of this act shall not relieve the operator of an
emergency vehicle from the duty to drive with due regard for the safety of
all persons and property.’’ P.A. 71-538, codified as amended at General
Statutes § 14-283 (d).
65
Even among states that have adopted the UVC’s ‘‘reckless disregard’’
language, most nonetheless adhere to a negligence standard of liability for
emergency drivers on the basis of the statutory reference to the duty of
due care. See, e.g., Rutherford v. State, 605 P.2d 16, 19–20 (Alaska 1979);
Pogoso v. Sarae, 138 Haw. 518, 525, 382 P.3d 330 (App. 2016), cert. dismissed,
Docket No. SCWC-XX-XXXXXXX, 2017 WL 679187 (Haw. February 21, 2017);
Stenberg v. Neel, 188 Mont. 333, 337–38, 613 P.2d 1007 (1980); Wright v.
Knoxville, 898 S.W.2d 177, 179–80 (Tenn. 1995). The courts in a minority
of jurisdictions have concluded that their respective statutes’ ‘‘reckless disre-
gard’’ standard supplants the negligence standard for liability purposes. See,
e.g., Robbins v. Wichita, supra, 285 Kan. 469–70; Seide v. State, 875 A.2d
1259, 1268 (R.I. 2005); Rochon v. State, 177 Vt. 144, 145, 862 A.2d 801 (2004).
66
The flaw in the majority opinion’s analysis is well illustrated by its
reliance on Coley v. Hartford, 312 Conn. 150, 95 A.3d 480 (2014), to establish
that this court’s interpretation of ‘‘similar statutory language’’ creates a
discretionary, rather than a ministerial, duty to act. First, the statutory
language at issue in Coley is not at all ‘‘similar’’ to that in § 14-283 (d). Unlike
§ 14-283, the statute in Coley (1) did not mention the word ‘‘duty’’ or use
an iconic legal term of art imposing a ‘‘duty [to act] with due regard for the
safety of all persons,’’ and (2) contained no indication that the legislature
intended to retain a preexisting duty of care, as reflected in the proviso in
§ 14-283 (d) that the emergency provisions ‘‘shall not relieve’’ the operator
of that duty of care. Second, the majority ignores the vast and fundamental
difference between the claim of negligence in Coley, which involved a plain-
tiff’s effort to impose on a police officer an affirmative duty of care to
protect the plaintiff from the risk of harm posed by a third person, and the
traditional claim of negligence in the present case predicated on the officer’s
own negligent conduct that creates or increases a risk of harm. Compare
Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004) (‘‘[T]here
generally is no duty that obligates one party to aid or to protect another
party. See 2 Restatement (Second), Torts § 314, p. 116 (1965).’’ (Internal
quotation marks omitted.)), with 1 Restatement (Third), Torts, Liability for
Physical and Emotional Harm § 7 (a), p. 77 (2010) (‘‘[a]n actor ordinarily
has a duty to exercise reasonable care when the actor’s conduct creates a
risk of physical harm’’).
67
For the same reason, I defer any discussion of the out-of-state case law
bearing on the ‘‘decision/operation’’ distinction until we are confronted with
a case that requires us to determine the soundness and viability of that
distinction. Although the Chief Justice’s concurring opinion engages in its
own extensive discussion of some of the relevant case law, I will not respond
with my own examination of these (and other) out-of-state cases because
the discussion strikes me as unnecessary in the present case, in light of the
fact that the plaintiff’s claims, as construed by my colleagues, do not purport
to involve the manner in which the pursuit was conducted, i.e., the negligent
operation of the vehicle.
68
This court previously has recognized that the legislature was well aware
of the identifiable victim, imminent harm exception when it enacted § 52-
557n. See Grady v. Somers, 294 Conn. 324, 344–46, 984 A.2d 684 (2009).
69
Strictly speaking, of course, no child in Connecticut is legally compelled
to attend public school, so long as the child receives ‘‘equivalent instruction
in the studies taught in the public schools.’’ General Statutes § 10-184.
70
An affirmative duty to protect a person in the defendant’s custodial care
does exist under the law of torts. See, e.g., Doe v. Saint Francis Hospital &
Medical Center, 309 Conn. 146, 181–82, 72 A.3d 929 (2013) (‘‘[An] exception
to the general rule that a defendant has no obligation to aid or protect
another person arises when a special relation exists between the actor and
the other which gives to the other a right of protection. . . . Certain custo-
dial relationships fall within this exception . . . . Under this exception,
one who takes custody of another person may have a duty to protect that
person from the intentional misconduct of a third person.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)); 2 Restatement
(Third), Torts, Liability for Physical and Emotional Harm § 40 (b), pp. 39–40
(2012) (imposing affirmative duty of care on, among others, custodians,
including school personnel, under specified conditions). The principles ani-
mating this doctrine, however, are not the same as those underlying the
identifiable victim, imminent harm doctrine.
71
This concern persists for good reason. See Torres v. Norwalk, Superior
Court, judicial district of Stamford-Norwalk, Docket No. FST-CV-XX-XXXXXXX-
S (May 2, 2018) (66 Conn. L. Rptr. 548, 562 n.16) (providing six examples of
police pursuits in Connecticut that ended in crashes between 2016 and 2018).
72
The identifiable victim, imminent harm doctrine is an exception to the
immunity rule for municipal employees performing discretionary functions,
which itself is an exception to the common-law (now codified) liability rule
historically applicable to municipal employees. In other words, the Chief
Justice’s concurring opinion proposes an exception to the exception to the
exception. Although this proposed arrangement is not definitive proof that
the doctrine has run amuck, it is a strong indication that our immunity rules
have been overtaken by an impractical degree of complexity and confusion.
73
Under the wrongful conduct rule, the driver of the pursued vehicle may
be prohibited from tort recovery by virtue of his unlawful flight from the
police. See Greenwald v. Van Handel, supra, 311 Conn. 385.
74
It seems doubtful that the officers were unaware of the passengers in
the open convertible, which Officer Renaldi watched as it drove past him.
In any event, his state of knowledge was for the jury to decide.
75
For policy reasons, the Michigan court ‘‘place[d] on the plaintiff the
burden of proving that a passenger was an innocent person and that the
police therefore owed the passenger a duty.’’ Robinson v. Detroit, supra,462 Mich. 452.
76
Robinson upheld the trial court’s order rendering summary judgment
in favor the individual officers on causation grounds—an issue not before
us in the present case. The relevant statutes and case law in Michigan,
moreover, demonstrate why we must be cautious before using out-of-state
cases to derive the public policy in Connecticut. In contrast to our law,
Michigan law waives municipal immunity in this context only when the
officers’ conduct amounts to gross negligence that operates as the sole
proximate cause of a plaintiff’s injuries. See Robinson v. Detroit, supra,462 Mich. 460–63.
77
Fawcett v. Adreon, Docket No. M2000-00940-COA-R3-CV, 2001 WL
950159 (Tenn. App. August 21, 2001), relies on a provision in Tennessee’s
emergency vehicle statute, conspicuously absent from General Statutes § 14-
283, that expressly forecloses liability for ‘‘any injury proximately or indi-
rectly caused to an actual or suspected violator of a law or ordinance who
is fleeing pursuit by law enforcement personnel.’’ (Emphasis added; internal
quotation marks omitted.) Id., *3. The two other cases cited by the Chief
Justice rest on what appears to me to be overblown rhetoric, devoid of
empirical basis, expressing the view that, because police officers are ‘‘our
thin blue line protecting society,’’ it would be unfair and impractical to
impose the burden on those officers to ascertain whether their vehicular
pursuit would endanger innocent passengers. Fisher v. Miami-Dade County,
883 So. 2d 335, 337 (Fla. App. 2004), review denied, 901 So. 2d 873 (Fla.
2005); see also Ombres v. Palm Beach Gardens, 788 Fed. Appx. 665, 668–69
(11th Cir. 2019) (following Fisher under Florida law). As previously dis-
cussed, the Connecticut legislature has arrived at the opposite public policy
determination when it comes to emergency police pursuits.