Daley v. Kashmanian

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DEVONTE DALEY v. ZACHARY
KASHMANIAN ET AL.
(AC 41393)
Keller, Bright and Harper, Js.
Syllabus
The plaintiff sought to recover damages from the defendant police detective,
K, and the defendant city of Hartford for personal injuries he sustained
when he was ejected from his motorcycle after it was struck by K’s
unmarked vehicle, which was not equipped with flashing or revolving
lights or a siren, while K was surveilling the plaintiff and traveling above
the speed limit in the wrong lane of traffic. The plaintiff sought to
recover damages on the basis of K’s alleged reckless and negligent
conduct, claiming that K’s conduct violated a ministerial duty imposed
on him by certain motor vehicle statutes. After the case was tried to a
jury, the trial court granted K’s motion for a directed verdict on the
plaintiff’s recklessness claim. The jury thereafter returned a verdict in
favor of the plaintiff on his negligence claim. Subsequently, the trial
court set aside the verdict on the negligence count, concluding that
the plaintiff’s allegations related to discretionary acts for which the
defendants were immune from liability pursuant to the statute (§ 52-
557n) concerning governmental immunity. From the judgment rendered
thereon, the plaintiff appealed to this court. Held:
1. The trial court improperly directed a verdict in favor of K as to the
plaintiff’s recklessness claim, as the evidence, viewed in a light most
favorably to the plaintiff, was sufficient for the jury reasonably to con-
clude that K acted recklessly: on the basis of the evidence presented,
the jury reasonably could have concluded that K consciously disregarded
state laws relating to speed limits, reckless driving, following too closely
and traveling in the correct lane of traffic in a situation in which a high
degree of danger was present, and that he was aware of the risks and
dangers his conduct imposed on others, yet showed little regard for the
consequences of his actions; accordingly, the plaintiff was entitled to
have his recklessness claim submitted to the jury.
2. The trial court properly set aside the verdict in favor of the plaintiff
on his negligence claim; the circumstances surrounding K’s conduct
demonstrated that he was engaged in discretionary activity, as he was
engaged in the discretionary police activity of surveilling the plaintiff
and, thus, did not have a ministerial duty to follow every motor vehicle
statute, even if those statutes in other circumstances would impose
ministerial duties, and in the absence of a directive that clearly compelled
K’s conduct, he was entitled to governmental immunity for his discretion-
ary acts.
Argued May 13—officially released October 1, 2019
Procedural History
Action to recover damages for the alleged negligence
and recklessness of the named defendant et al., and for
other relief, brought in the Superior Court in the judicial
district of Hartford and tried to the jury before Scholl,
J.; thereafter, the court granted the named defendant’s
motion for a directed verdict on the plaintiff’s reckless-
ness claim; verdict for the plaintiff on his negligence
claim; subsequently, the court set aside the verdict and
rendered judgment for the defendants, from which the
plaintiff appealed to this court. Reversed in part;
new trial.
Martin McQuillan, for the appellant (plaintiff).
William J. Melley, for the appellee (named
defendant).
Nathalie Feola-Guerrieri, for the appellee (defen-
dant city of Hartford).
James J. Healy and Karen K. Clark filed a brief for
the Connecticut Trial Lawyers Association as amicus
curiae.
Opinion
BRIGHT, J. This appeal stems from a personal injury
action brought by the plaintiff, Devonte Daley, against
the defendants, Zachary Kashmanian and the city of
Hartford (city), seeking damages for the injuries he
sustained when Kashmanian, a detective with the Hart-
ford Police Department who had been surveilling the
plaintiff in an unmarked police car, allegedly, negli-
gently and recklessly caused the plaintiff to be ejected
from his motorcycle. The plaintiff appeals, following a
jury trial, from the judgment of the trial court directing
a verdict in favor of Kashmanian on the plaintiff’s reck-
lessness claim, and from the judgment of the trial court
setting aside the jury’s verdict on the plaintiff’s negli-
gence claim. On appeal, the plaintiff claims that the
court improperly (1) directed a verdict because there
was sufficient evidence for the jury to find that Kash-
manian engaged in reckless conduct, and (2) set aside
the verdict with respect to the negligence claim on the
ground that the defendants were entitled to governmen-
tal immunity because Kashmanian was engaged in min-
isterial, not discretionary, conduct. We agree with the
plaintiff’s first claim only, and, accordingly, we reverse
the judgment of the trial court directing a verdict on
the recklessness claim and affirm the judgment of the
trial court setting aside the verdict on the negligence
claim.
The relevant facts, viewed in a light most favorable
to the plaintiff, and procedural history, are as follows.
On June 1, 2013, at approximately 12 a.m., the plaintiff
was riding his yellow Suzuki motorcycle on Asylum
Avenue in Hartford with a group of eight to ten other
people who were riding ‘‘dirt bikes’’ and ‘‘quads.’’ The
plaintiff’s motorcycle was neither ‘‘street legal’’ nor
‘‘roadworthy’’ because it did not have headlights and
was equipped with off-road tires: a black tire on the
front and a yellow tire on the back. Also at that time,
Kashmanian was operating an unmarked gray Acura
TL, which the police characterize as a ‘‘soft car.’’ A soft
car is a vehicle that is not equipped with flashing or
revolving lights, sirens, or police markings so that it is
indiscernible from ordinary civilian cars.
At or around that same time, a confidential informant
provided an anonymous tip to the police that a man
riding a yellow motorcycle with a yellow tire had a gun.
Kashmanian was instructed by other officers to perform
surveillance1 on the group of motorcycles and quads,
including the yellow motorcycle, which was operated
by the plaintiff. When Kashmanian arrived at Asylum
Avenue, he observed the yellow motorcycle and the
group of motorcycles and quads, and proceeded to fol-
low them westbound on Asylum Avenue. All of the
motorcycles and quads then turned right and proceeded
northbound on Sumner Street, which is a two lane road
with a speed limit of twenty-five miles per hour. At
the intersection of Asylum and Sumner, Kashmanian’s
vehicle ‘‘sideswip[ed]’’ another motor vehicle driven by
Brontain Stringer, which had been proceeding in the
same direction. Kashmanian paused for a brief second,
but he was directed by the police on the radio to ‘‘just
keep going’’ and that they would ‘‘take care of the acci-
dent; just keep going.’’
Kashmanian then proceeded north in the northbound
lane of Sumner Street, to continue to surveil the plain-
tiff. Kashmanian was traveling between forty and fifty
miles per hour, well over the twenty-five miles per hour
speed limit. Kashmanian then crossed the center line
to travel north in the southbound lane in an effort to
avoid two quads in the group that fishtailed and side-
swiped his vehicle. Although he could have returned
to the northbound lane of traffic after passing the two
quads, Kashmanian continued to travel north in the
southbound lane, closing the distance between his car
and the plaintiff’s motorcycle until he struck the back
tire of the plaintiff’s motorcycle with the front left panel
of his vehicle, which caused the plaintiff to crash his
motorcycle into a parked car in the southbound lane
of Sumner Street. The plaintiff was ejected from his
motorcycle and landed approximately ninety-five feet
down Sumner Street, causing him significant injuries.
As evinced by the lack of skid marks on Sumner Street,
Kashmanian neither suddenly slowed his vehicle nor
applied his brakes before striking the plaintiff’s
motorcycle.
On February 26, 2015, the plaintiff filed this personal
injury action against the defendants. The plaintiff’s
operative fifth amended complaint contains two rele-
vant counts.2 In count one, the plaintiff asserted a com-
mon-law negligence claim against Kashmanian in his
official capacity and the city, alleging that Kashmanian
negligently caused the plaintiff’s injuries. In count two,
the plaintiff asserted a common-law recklessness claim
against Kashmanian, alleging that he recklessly, wil-
fully, and wantonly caused the plaintiff’s injuries.
In response, the defendants filed answers denying
the essential allegations of the plaintiff’s complaint and
alleging two relevant special defenses. The defendants
alleged that the plaintiff’s injuries were caused by his
own comparative negligence, and that the plaintiff’s
claims are barred by common-law and statutory govern-
mental immunity, pursuant to General Statutes § 52-
557n,3 because Kashmanian was engaged in discretion-
ary acts.4 Prior to the submission of the case to the
jury, the parties stipulated that the issue of whether
the defendants were entitled to governmental immunity
would be decided by the court if the jury returned a
verdict in favor of the plaintiff on his negligence claim.
The case was tried to a jury over the course of five
days. At the close of evidence, Kashmanian made an
oral motion for a directed verdict as to count two, the
common-law recklessness count. In particular, Kash-
manian argued that count two should not be submitted
to the jury because there was no evidence that Kash-
manian engaged in reckless conduct. After hearing the
plaintiff’s counterargument, the court orally granted
Kashmanian’s motion for a directed verdict as to count
two. Accordingly, the jury was charged and the case
was submitted to the jury only as to count one, the
negligence count, and the defendants’ comparative neg-
ligence special defense. On that same day, the jury
returned a verdict for the plaintiff in the total amount
of $416,214, reduced on the basis of the jury’s finding
that the plaintiff comparatively was 25 percent negli-
gent, for a net award of $312,160.50.
The court then scheduled oral argument for January
23, 2018, and ordered the parties to file memoranda of
law on the reserved issue of governmental immunity.
On December 19 and 22, 2017, the city and Kashmanian,
respectively, each filed a memorandum of law in which
they argued, inter alia, that the jury’s verdict in favor
of the plaintiff on his negligence claim should be set
aside because it was barred by the doctrine of govern-
mental immunity.5 On January 12, 2018, the plaintiff
filed a memorandum of law in opposition on the ground
that the defendants are not entitled to governmental
immunity.
On February 8, 2018, the court set aside the jury’s
verdict in favor of the plaintiff on count one, the negli-
gence claim. In particular, the court concluded that
governmental immunity was applicable to Kashmani-
an’s conduct because his driving surveillance involved
discretionary police activity, which is protected under
§ 52-557n (a) (2) (B). Because of its determination on
governmental immunity, the court also reasoned that
no cognizable claim existed against the city for indemni-
fication under § 7-465. See footnotes 2 and 5 of this
opinion. The court then rendered judgment in favor of
the defendants on counts one and four of the plaintiff’s
complaint. This appeal followed. Additional facts will
be set forth as necessary.
I
The plaintiff first claims that the court improperly
directed a verdict in favor of Kashmanian on his claim
of recklessness. We agree.
‘‘We begin our analysis with the standard of review
of a trial court’s decision to grant a motion for a directed
verdict. Whether the evidence presented by the plaintiff
was sufficient to withstand a motion for a directed
verdict is a question of law, over which our review is
plenary. . . . Directed verdicts are not favored. . . .
A trial court should direct a verdict only when a jury
could not reasonably and legally have reached any other
conclusion. . . . In reviewing the trial court’s decision
to direct a verdict in favor of a defendant we must
consider the evidence in the light most favorable to the
plaintiff. . . . Although it is the jury’s right to draw
logical deductions and make reasonable inferences
from the facts proven . . . it may not resort to mere
conjecture and speculation. . . . A directed verdict is
justified if . . . the evidence is so weak that it would
be proper for the court to set aside a verdict rendered
for the other party. . . . [Our Supreme Court] has
emphasized two additional points with respect to
motions to set aside a verdict that are equally applicable
to motions for a directed verdict: First, the plaintiff in
a civil matter is not required to prove his case beyond
a reasonable doubt; a mere preponderance of the evi-
dence is sufficient. Second, the well established stan-
dards compelling great deference to the historical func-
tion of the jury find their roots in the constitutional
right to a trial by jury.’’ (Citations omitted; internal
quotation marks omitted.) Curran v. Kroll, 303 Conn.
845, 855–56, 37 A.3d 700 (2012).
Next, we turn to our standard for recklessness, which
is well established. ‘‘Recklessness requires a conscious
choice of a course of action either with knowledge
of the serious danger to others involved in it or with
knowledge of facts which would disclose this danger
to any reasonable man, and the actor must recognize
that his conduct involves a risk substantially greater
. . . than that which is necessary to make his conduct
negligent. . . . More recently, we have described reck-
lessness as a state of consciousness with reference to
the consequences of one’s acts. . . . It is more than
negligence, more than gross negligence. . . . The state
of mind amounting to recklessness may be inferred
from conduct. But, in order to infer it, there must be
something more than a failure to exercise a reasonable
degree of watchfulness to avoid danger to others or to
take reasonable precautions to avoid injury to them.
. . . Wanton misconduct is reckless misconduct . . . .
It is such conduct as indicates a reckless disregard of
the just rights or safety of others or of the consequences
of the action. . . .
‘‘While we have attempted to draw definitional dis-
tinctions between the terms wilful, wanton or reckless,
in practice the three terms have been treated as meaning
the same thing. The result is that willful, wanton, or
reckless conduct tends to take on the aspect of highly
unreasonable conduct, involving an extreme departure
from ordinary care, in a situation where a high degree
of danger is apparent.’’ (Citations omitted; internal quo-
tation marks omitted) Matthiessen v. Vanech, 266 Conn.
822, 832–33, 836 A.2d 394 (2003); see Williams v. Hous-
ing Authority, 327 Conn. 338, 380, 174 A.3d 137
(2017) (same).
The plaintiff claims on appeal that the court erred in
granting Kashmanian’s motion for a directed verdict
because there was sufficient evidence for the jury to
find that Kashmanian’s conduct that caused the plain-
tiff’s injuries was wilful, wanton, or reckless. Specifi-
cally, the plaintiff cites Kashmanian’s numerous traffic
violations, the fact that Kashmanian did not stop or
change course even though he was aware of the plain-
tiff’s motorcycle slightly in front of him, and his accident
with Stringer as evidence of highly unreasonable con-
duct rising to the level of recklessness. Conversely,
Kashmanian contends that, because he was conducting
surveillance in the scope of his police duties and in
response to direct orders from his supervisor, his con-
duct lacked the requisite conscious disregard for the
safety of others. Kashmanian argues that his conduct
was the opposite of reckless because it was done to
preserve the safety of others. We do not agree with
Kashmanian’s argument. We agree with the plaintiff
that, viewing the evidence in a light most favorable to
him, there was sufficient evidence for the jury reason-
ably to conclude that Kashmanian’s conduct was
reckless.
At trial, Kashmanian testified that the purpose of
surveillance is to monitor covertly the conduct of the
subject at a distance. Nevertheless, the evidence,
viewed in a light most favorable to the plaintiff, demon-
strated that Kashmanian drove down Sumner Street, in
the dark, in a soft car, and at approximately double the
speed limit in order to stay close to the plaintiff. He
did so immediately after colliding with Stringer’s vehicle
on Asylum Avenue, and driving away to continue his
surveillance. Kashmanian maintained his same rate of
speed while knowingly driving northbound in the south-
bound lane, even though he could have returned to the
correct lane. In fact, the jury reasonably could have
concluded that Kashmanian, following his collision with
Stringer, must have increased his speed in order to
catch up to the plaintiff. Kashmanian ultimately got so
close to the plaintiff, while in the wrong lane of traffic,
that he struck the plaintiff’s motorcycle at such a speed
and with enough force to drive it into a parked vehicle,
which propelled the plaintiff ninety-five feet. As a result
of Kashmanian’s driving on Asylum Avenue and Sumner
Street, there were at least three vehicles that sustained
significant damage and one person, the plaintiff, who
sustained significant physical injuries.
On the basis of this evidence, the jury reasonably
could have concluded that Kashmanian consciously dis-
regarded Connecticut’s laws relating to speed limits,
reckless driving, following too closely, and travelling
in the correct lane of traffic, in a situation in which a
high degree of danger was apparent. See General Stat-
utes §§ 14-218a, 14-222, 14-230 and 14-240a. The jury
reasonably could have concluded that Kashmanian was
aware of the dangers and risks he was imposing on
others, including the plaintiff, and yet showed little
regard for the consequences of his actions. Although
Kashmanian’s supervisor instructed him to surveil the
plaintiff and to continue that surveillance after his acci-
dent with Stringer, those instructions did not give Kash-
manian license to engage in wilful, wanton, or reckless
conduct. See, e.g., O’Connor v. City of New York, 280
A.D.2d 309, 719 N.Y.S.2d 656 (2001) (findings that officer
drove unmarked vehicle without turret light or siren,
at high rate of speed against flow of traffic on one-
way street, and entered intersection without warning
or slowing down were sufficient to support reckless
claim); Adams v. Peoples, 18 Ohio St. 3d 140, 480 N.E.2d
428 (1985) (allegations that officer drove his vehicle at
excessive speed, ‘‘had gone left of the center line to
enter the intersection on a red traffic light,’’ under wet
road conditions, were sufficient to support willful and
wanton claim). Similarly, Kashmanian’s argument that
he was attempting to stop the entire group of riders
who posed a threat to the residents of the city does
not justify engaging in reckless conduct.6 Jackson v.
Lipsey, 834 So. 2d 687, 690 (Miss. 2003) (findings that
officer, in attempt to apprehend suspects, suddenly
turned into traffic without headlights, blue lights, or
siren were sufficient to support reckless claim). Ulti-
mately, because the evidence, viewed in a light most
favorable to the plaintiff, was sufficient for the jury
reasonably to conclude that Kashmanian acted reck-
lessly, the plaintiff was entitled to have his claim submit-
ted to the jury. Therefore, we conclude that the court
erred in granting Kashmanian’s motion for a directed
verdict as to count two.
II
The plaintiff next claims that the court improperly
set aside the verdict on his negligence claim on the
ground that the defendants are entitled to governmental
immunity. We disagree.
We begin with the standard of review and legal princi-
ples relevant to our resolution of this claim. Although
generally a court’s decision to set aside a jury verdict
is subject to an abuse of discretion review; Rawls v.
Progressive Northern Ins. Co., 310 Conn. 768, 776, 83
A.3d 576 (2014); we afford plenary review to the present
claim because, as the parties properly recognize, the
ultimate determination as to whether the defendants
are entitled to governmental immunity is a question of
law. Ventura v. East Haven, 330 Conn. 613, 634–37, 199
A.3d 1 (2019).
The law pertaining to municipal immunity is well
settled. ‘‘[Section] 52-557n abandons the common-law
principle of municipal sovereign immunity and estab-
lishes the circumstances in which a municipality may
be liable for damages. . . . One such circumstance is
a negligent act or omission of a municipal officer acting
within the scope of his or her employment or official
duties. . . . [Section] 52-557n (a) (2) (B), however,
explicitly shields a municipality from liability for dam-
ages to person or property caused by the negligent acts
or omissions [that] require the exercise of judgment
or discretion as an official function of the authority
expressly or impliedly granted by law.’’ (Footnote omit-
ted; internal quotation marks omitted.) Brooks v. Pow-
ers, 328 Conn. 256, 264–65, 178 A.3d 366 (2018).
‘‘Municipal officials are immune from liability for neg-
ligence arising out of their discretionary acts in part
because of the danger that a more expansive exposure
to liability would cramp the exercise of official discre-
tion beyond the limits desirable in our society. . . .
[D]iscretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officials and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, outweighs the bene-
fits to be had from imposing liability for that injury.
. . . In contrast, municipal officers are not immune
from liability for negligence arising out of their ministe-
rial acts, defined as acts to be performed in a prescribed
manner without the exercise of judgment or discretion.’’
(Citations omitted; internal quotation marks omitted.)
Ventura v. East Haven, supra, 330 Conn. 630.
‘‘For purposes of determining whether a duty is dis-
cretionary or ministerial, [our Supreme Court] has rec-
ognized that [t]here is a difference between laws that
impose general duties on officials and those that man-
date a particular response to specific conditions. . . .
A ministerial act is one which a person performs in a
given state of facts, in a prescribed manner, in obedi-
ence to the mandate of legal authority, without regard
to or the exercise of his own judgment [or discretion]
upon the propriety of the act being done. . . . In con-
trast, when an official has a general duty to perform
a certain act, but there is no city charter provision,
ordinance, regulation, rule, policy, or any other direc-
tive [requiring the government official to act in a] pre-
scribed manner, the duty is deemed discretionary.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Northrup v. Witkowski, 332 Conn. 158,
169–70, 210 A.3d 29 (2019).
‘‘[I]t is firmly established that the operation of a police
department is a governmental function, and that acts
or omissions in connection therewith ordinarily do not
give rise to liability on the part of the municipality. . . .
Indeed, [our Supreme Court] has long recognized that
it is not in the public’s interest to [allow] a jury of
laymen with the benefit of 20/20 hindsight to second-
guess the exercise of a policeman’s discretionary pro-
fessional duty. Such discretion is no discretion at all.
. . . Thus, as a general rule, [p]olice officers are pro-
tected by discretionary act immunity when they per-
form the typical functions of a police officer. . . .
‘‘In accordance with these principles, our courts con-
sistently 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 discre-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) Ventura v. East Haven, supra, 330 Conn. 630–31.
Neither our Supreme Court nor this court has deter-
mined whether a municipal police officer conducting
surveillance while driving a motor vehicle is engaged
in discretionary or ministerial conduct. The plaintiff,
relying on a number of Superior Court and out-of-state
cases,7 argues that Kashmanian’s surveillance, while
operating a motor vehicle, was ministerial. Conversely,
the defendants argue that Kashmanian’s surveillance,
while driving, was discretionary because it entailed the
use of judgment. We conclude that, on the basis of the
facts of the present case, the defendants are entitled to
governmental immunity as to the plaintiff’s negligence
claim because Kashmanian was engaged in discretion-
ary conduct.
In the present case, the plaintiff, concededly, has not
pointed us to any directive that prescribes the manner
in which police officers are required to conduct surveil-
lance. The plaintiff relies, instead, on Kashmanian’s tes-
timony as to his subjective understanding that surveil-
lance meant ‘‘you’re following someone at a distance,
trying to keep an eye on them, where they’re going;
what their actions are. It could be in a car; it can be
walking. It could be anywhere. It could be through
a camera.’’ We reject the plaintiff’s position because
Kashmanian’s understanding of desired conduct does
not clearly establish a ministerial duty. See, e.g., Stry-
charz v. Cady, 323 Conn. 548, 566–67, 148 A.3d 1011
(2016) (testimony that did not identify specific directive
but merely established manner in which individual offi-
cial performed his official duties was insufficient to
establish existence of ministerial duty); Northrup v.
Witkowski, 175 Conn. App. 223, 236 n.5, 167 A.3d 443
(2017) (explaining that ‘‘vague’’ testimony that ‘‘does
not come close to an admission that the town had a
nondiscretionary duty’’ is insufficient to establish minis-
terial duty in absence of written directive), aff’d, 332
Conn. 158, 210 A.3d 29 (2019).
Further, even in instances in which an officer has
been provided with a written directive, courts across
the country have held that officer surveillance is a dis-
cretionary function. See, e.g., Estate of Salazar v.
United States, United States District Court, Docket No.
LA-CV-11-10279 JAK (SPx) (C.D. Cal. May 20, 2014)
(examining United States Marshall Policy Directives,
which ‘‘suggest, but do not require, particular conduct,’’
to determine that surveillance is discretionary); Davis
v. United States, United States District Court, Docket
No. 7:10CV00005 (GEC) (W.D. Va. July 12, 2010) (exam-
ining United States Code and prison regulations to
determine that surveillance of inmates is discretionary);
Flax v. United States, 847 F. Supp. 1183, 1188–89 (D.N.J.
1994) (examining police guidelines to determine that
surveillance is discretionary). These decisions are con-
sistent with the general rule in Connecticut that
‘‘[p]olice officers are protected by discretionary act
immunity when they perform the typical functions of
a police officer.’’ (Internal quotation marks omitted.)
Ventura v. East Haven, supra, 330 Conn. 630. Kashmani-
an’s surveillance, performed in the course of his
employment as a police officer, necessarily required
him to exercise his judgment, under the circumstances;
for example, as to how fast to travel, the distance to
maintain between his car and the plaintiff, and whether
to change lanes.
The plaintiff also argues that, because there is no
statutory exception applicable, Kashmanian had a min-
isterial duty to comply with the motor vehicle statutes.
In particular, the plaintiff argues, and the defendants
do not dispute, that Kashmanian was not exempt from
certain motor vehicle statutes pursuant to General Stat-
utes § 14-283 (providing that police officers responding
to ‘‘emergency call[s]’’ while ‘‘making use of an audible
warning signal device’’ are exempt from certain motor
vehicle statutes in some circumstances) because he was
operating a soft car with no lights or sirens. According
to the plaintiff, because the legislature has identified
specific circumstances in § 14-283 in which police may
disregard certain motor vehicle statutes, that necessar-
ily means that absent those circumstances, police have
a ministerial duty to obey all traffic laws. We disagree.
Section 14-283 addresses only two situations:
responses to emergency calls and pursuit of fleeing
law violators. It does not purport to set a standard of
conduct for other police endeavors, including surveil-
lance.8 Furthermore, the plaintiff’s argument would
make effective police surveillance impossible in many
instances. For example, if an officer is instructed to
maintain surveillance of another vehicle and the opera-
tor of that vehicle decides to exceed the posted speed
limit, the officer would be unable to maintain surveil-
lance without driving contrary to the mandate of Gen-
eral Statutes § 14-219 (prohibiting speeding). Similarly,
maintaining surveillance of a particular suspected crim-
inal may require an officer engaged in such surveillance
while driving his vehicle to drive though a stop sign
or red traffic light, make a right turn on red without
stopping, or even drive the wrong way down a one-way
street. Deciding whether the need to maintain surveil-
lance of the person or vehicle being surveilled out-
weighs the risk to public safety caused by the violation
of a motor vehicle statute requires the sound judgment
of the police officer, and, is, therefore, inherently discre-
tionary.
Having said this, we decline to hold that, under all
circumstances, a municipal police officer operating a
motor vehicle is engaged in discretionary conduct,
thereby immunizing the officer and municipality from
damages arising from all violations of motor vehicle
statutes. Although it may be true that some motor vehi-
cle statutes implicitly require drivers to exercise some
degree of judgment when operating a motor vehicle,
some statutes do not. Furthermore, although some cir-
cumstances may permit an officer, in the exercise of
discretion, to violate a motor vehicle statute, that is not
always the case. Affording governmental immunity in
every instance where an officer violates a motor vehicle
statute is far too expansive a rule. For example, a police
officer who fails to stop at a stop sign because he is
distracted by a personal phone call and, as a result,
causes an accident can hardly be said to be engaging
in discretionary conduct. In such a circumstance, the
officer likely has a ministerial duty to obey the law and
stop at the stop sign. Ultimately, the determination of
whether a police officer who violates a motor vehicle
statute is engaged in ministerial or discretionary con-
duct must be made in view of the language of the statute
at issue and the circumstances presented. See Ventura
v. East Haven, supra, 330 Conn. 636–37 n.11 (issue of
governmental immunity, in some cases, is contingent
on factual circumstances).9
In the present case, the circumstances surrounding
Kashmanian’s conduct demonstrate that he was
engaged in discretionary activity. Kashmanian was not
merely operating his motor vehicle on the roads under
ordinary conditions; instead, he was engaged in the
discretionary police activity of surveilling the plaintiff.
In exercising such discretion in the present case, Kash-
manian did not have a ministerial duty to follow each
and every motor vehicle statute, even if those statutes
in other circumstances would impose ministerial duties.
Under these circumstances, Kashmanian’s discretion as
to the manner in which to conduct his surveillance
extends to whether to violate the motor vehicle statutes.
A review on appeal of Kashmanian’s actions in the per-
formance of his police duties would violate the proscrip-
tion of second-guessing the decisions made pursuant
to his professional duty. See Ventura v. East Haven,
supra, 330 Conn. 630–31. Therefore, in the absence of a
directive that clearly compelled Kashmanian’s conduct
and considering the circumstances of his conduct, we
conclude that the defendants are entitled to governmen-
tal immunity and, thus, the court properly set aside the
jury’s verdict in favor of the plaintiff on his negli-
gence claim.
The judgment setting aside the jury’s verdict on the
negligence count is affirmed; the judgment directing a
verdict in favor of Kashmanian on the common-law
recklessness count is reversed and the case is remanded
for a new trial as to that count.
1
Kashmanian testified that his understanding of surveillance is ‘‘you’re
following someone at a distance, trying to keep an eye on them, where
they’re going; what their actions are. It could be in a car; it can be walking.
It could be anywhere. It could be through a camera.’’
2
The complaint contains two additional counts that are not relevant to
our resolution of this appeal. In count three, the plaintiff alleged a statutory
recklessness claim pursuant to General Statutes § 14-295 against Kashman-
ian in his individual capacity. The plaintiff withdrew this count at the conclu-
sion of the presentation of evidence at trial. In count four, the plaintiff
alleged an indemnification claim against the city pursuant to General Statutes
§ 7-465 (providing indemnification by municipalities of municipal officers,
agents or employees who incur liability for negligent official conduct). Count
four was not submitted to the jury because resolution of that claim was
dependent on the court’s analysis of the defendants’ governmental immunity
special defense. Specifically, in the absence of a common-law negligence
claim against Kashmanian, there would be no basis for a statutory indemnifi-
cation claim against the city pursuant to § 7-465. See Wu v. Fairfield, 204
Conn. 435, 438, 528 A.2d 364 (1987) (‘‘in a suit under § 7-465, any municipal
liability which may attach is predicated on prior findings of individual negli-
gence on the part of the employee and the municipality’s employment rela-
tionship with that individual’’).
3
General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(2) Except as otherwise provided by law, a political subdivision of the state
shall not be liable for damages to person or property caused by: (A) Acts
or omissions of any employee, officer or agent which constitute criminal
conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or
omissions which require the exercise of judgment or discretion as an official
function of the authority expressly or impliedly granted by law.’’
4
The defendants pleaded governmental immunity as a special defense
generally to all of the plaintiff’s claims, yet Kashmanian does not argue
that governmental immunity would apply to his alleged wilful, wanton, or
reckless conduct.
5
In its December 19, 2017 memorandum of law, the city also moved for
a directed verdict as to count four of the plaintiff’s complaint, the § 7-
465 indemnification claim against it. See footnote 2 of this opinion. In his
December 22, 2017 memorandum of law, Kashmanian specifically moved
for a ‘‘directed verdict’’ as to count one, the negligence claim, however, the
court properly treated this memorandum of law as seeking to set aside the
jury’s verdict in favor of the plaintiff on count one. Further, the city, by way
of motion filed on December 29, 2017, joined and incorporated Kashmanian’s
December 22, 2017 memorandum of law.
6
The jury reasonably could have found Kashmanian’s testimony that his
goal was to assist in stopping the entire group of motorcycles and quads
not credible given evidence that he passed other members of the group to
close in on the plaintiff.
7
The decisions of the Superior Court are split as to whether a police
officer is entitled to governmental immunity for the operation of a motor
vehicle. See Williams v. New London, Superior Court, judicial district of
New London, Docket No. CV-XX-XXXXXXX-S (April 7, 2014) (58 Conn. L. Rptr.
86) (collecting cases on both sides).
The plaintiff cites to several Superior Court cases for the proposition that
a police officer’s operation of a motor vehicle is ministerial conduct. See,
e.g., Letowt v. Norwalk, 41 Conn. Supp. 402, 405–406, 579 A.2d 601 (1989)
(relying on Rhode Island Supreme Court decision to hold that police officer
driving patrol car to scene of accident is ministerial because ‘‘[o]rdinary
citizens drive their cars every day, not just police officers . . . .’’); Borchetta
v. Brown, 41 Conn. Supp. 420, 424, 580 A.2d 1007 (1990) (relying on Letowt
to determine that ‘‘operation of a police vehicle [on patrol duty] was a
ministerial function’’); MacMillen v. Branford, Superior Court, judicial dis-
trict of New Haven, Docket No. 374004 (March 30, 1998) (21 Conn. L. Rptr.
561) (relying on Letowt to determine that operation of police vehicle on the
way to crime scene is ministerial activity); Hurdle v. Waterbury, Superior
Court, judicial district of Waterbury, Docket No. 0123428 (December 12,
1995) (relying on Letowt to determine that operation of police vehicle is
ministerial activity); see also Jones v. Lathram, 150 S.W.3d 50, 53 (Ky. 2004)
(act of safely driving police cruiser, even in emergency, was ministerial
because it does not require any deliberation or exercise of judgment).
The cases that the defendants cite stand for the contrary proposition
that driving is a discretionary activity because it requires some degree of
judgment. See, e.g., Kajic v. Marquez, Superior Court, judicial district of
Hartford, Docket No. CV-XX-XXXXXXX-S (August 16, 2017) (determining that
police officer’s operation of patrol car was discretionary because duty to
use reasonable care ‘‘is a quintessentially discretionary duty because it
involves the exercise of judgment in evaluating the circumstances requiring
action or inaction’’); Paternoster v. Paszkowski, Superior Court, judicial
district of Fairfield, Docket No. CV-XX-XXXXXXX-S (September 1, 2015)
(determining that police officer’s pursuit in patrol car, in violation of motor
vehicle statutes, was discretionary).
8
We note that § 14-283 (d) provides: ‘‘The provisions of this section 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.’’ The question
of whether this language creates a ministerial duty to which governmental
immunity would not apply is currently before our Supreme Court in Borelli
v. Renaldi, SC 20232. That case involves the defendant officer’s pursuit of
a fleeing vehicle under § 14-283. We asked counsel at oral argument in the
present case if we should stay this case pending the outcome of Borelli.
Both counsel agreed that, because this case did not involve activity governed
by § 14-283, resolution of the present case would not be impacted by our
Supreme Court’s decision in Borelli.
9
Further, the policy determination as to whether a municipal police officer
should be liable for operating a motor vehicle under all circumstances is
best left to our legislature. See Thomas v. Dept. of Developmental Services,
297 Conn. 391, 412, 999 A.2d 682 (2010) (‘‘[w]e are not in the business of
writing statutes; that is the province of the legislature’’ [internal quotation
marks omitted]); see also General Statutes § 52-556 (‘‘[a]ny person injured
in person or property through the negligence of any state official or employee
when operating a motor vehicle owned and insured by the state against
personal injuries or property damage shall have a right of action against
the state to recover damages for such injury’’ [emphasis added]).