Cole v. New Haven ( 2021 )

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AMAADI COLE v. CITY OF NEW HAVEN ET AL.
(SC 20425)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Mullins and Kahn, Js.*
Syllabus
The plaintiff sought to recover damages from the defendants, the city of
New Haven and one of its police officers, C, in connection with injuries
the plaintiff sustained when he crashed his dirt bike to avoid colliding
with C’s police cruiser. C was driving northbound on a New Haven
street when she spotted a group of dirt bikes and all-terrain vehicles
driving the other way down the street in violation of a city ordinance.
Without giving any warning or operating her lights or sirens, C executed
a roadblock maneuver by pulling her cruiser diagonally across the double
yellow line into the southbound lane and directly in front of the group.
To avoid a head-on collision, the plaintiff jumped the curb onto the
sidewalk, where he lost control of his dirt bike and struck a tree. The
plaintiff alleged, inter alia, that C was negligent in responding to the
dirt bikes and all-terrain vehicles because she initiated a pursuit and
engaged in a roadblock maneuver in violation of the city police depart-
ment’s pursuit policy and the uniform statewide pursuit policy set forth
in the applicable state regulation (§ 14-283a-4 (d) (5)), both of which
prohibit the use of roadblocks, except when necessary to save human
life or when specifically authorized by a supervisor, respectively. Accord-
ingly, the plaintiff claimed that C violated a ministerial duty and that
the city was liable pursuant to statute (§ 52-557n (a) (1) (A)) for the
negligent acts of its employee. The defendants moved for summary
judgment, claiming that C was engaged in a discretionary act when
responding to the dirt bikes and all-terrain vehicles, and that the defen-
dants therefore were protected by governmental immunity pursuant to
§ 52-557n (a) (2) (B). In opposing the defendants’ motion, the plaintiff
also relied on the deposition testimony of M, a sergeant with the city’s
police department, that, at the time of the incident, it was the police
department’s policy not to pursue dirt bikes or all-terrain vehicles on
public roads as a matter of public safety, and that C had breached
the department’s pursuit policy by, inter alia, executing a complete
roadblock without providing an opening for oncoming vehicles. The
trial court granted the defendants’ motion and rendered judgment for
the defendants, concluding that they were entitled to governmental
immunity. Crediting C’s deposition testimony, the court concluded that
there was no evidence that C engaged in a pursuit, and, accordingly,
neither the statewide nor the department pursuit policy was applicable
to the present case. The court instead determined that C’s response was
discretionary rather than ministerial and that, even if C had initiated a
pursuit, the language of the statewide and department pursuit policies
nonetheless rendered her decision to do so discretionary. The plaintiff
appealed from the trial court’s judgment. Held that the trial court improp-
erly granted the defendants’ motion for summary judgment on the ground
that C was engaged in a discretionary act when responding to the dirt
bikes and all-terrain vehicles, and, therefore, this court reversed the
trial court’s judgment and remanded the case for further proceedings:
the portions of the statewide and department pursuit policies relating
to roadblocks and the pursuit of dirt bikes and all-terrain vehicles pre-
sented the type of bright-line directives that created a ministerial duty
regarding the manner of pursuit, and, viewing the facts in the light most
favorable to the plaintiff, there was a genuine issue of material fact with
respect to whether a pursuit had occurred within the meaning of those
policies, which was a predicate for establishing whether C had violated
a ministerial duty; moreover, although M was not C’s direct supervisor,
his employment with the department gave him sufficient knowledge,
training, and experience with respect to the department’s policies and
procedures such that his testimony was relevant to establishing the
existence of a ministerial duty.
Argued May 4—officially released October 15, 2020**
Procedural History
Action to recover damages for the defendants’ alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of New Haven, where the
court, Abrams, J., granted the defendants’ motion for
summary judgment and rendered judgment thereon,
from which the plaintiff appealed. Reversed; further
proceedings.
James J. Healy, with whom was Thomas M. McNa-
mara, for the appellant (plaintiff).
Thomas E. Katon, with whom were Philip G. Kent,
Roderick Williams and, on the brief, Adam D. Miller,
for the appellees (defendants).
Opinion
ROBINSON, C. J. This appeal requires us to consider
the limits of our recent decision in Borelli v. Renaldi,
336 Conn. 1, 243 A.3d 1064 (2020), with respect to
whether applicable state and municipal policies render
a police officer’s acts during a pursuit of a motorist
ministerial, rather than discretionary, for purposes of
governmental immunity. The plaintiff, Amaadi Cole,
brought this negligence action against the defendants,
the city of New Haven (city) and one of its police offi-
cers, Nikki Curry, seeking damages for personal injuries
sustained when Curry pulled her police cruiser directly
into an oncoming traffic lane in which the plaintiff was
traveling on his dirt bike, causing him to swerve and
strike a tree. The plaintiff appeals1 from the granting
of summary judgment by the trial court in favor of the
defendants on the ground that they were entitled to
governmental immunity for discretionary acts pursuant
to General Statutes § 52-557n (a) (2) (B).2 On appeal, the
plaintiff claims, inter alia, that the trial court incorrectly
determined that Curry’s decision to drive her cruiser
into the oncoming traffic lane was a discretionary act
because her actions violated several policies that imposed
ministerial duties regarding roadblocks, the operation
of police vehicles, and pursuits. We agree with the plain-
tiff and, accordingly, reverse the judgment of the trial
court.
The record reveals the following facts, which we view
in the light most favorable to the plaintiff, who was the
nonmoving party on the motion for summary judgment.
See, e.g., id., 8. On July 16, 2011, at approximately 6:43
p.m., Curry was operating a city police cruiser on How-
ard Avenue in New Haven in a northbound direction
at approximately thirty miles per hour. Curry was on
duty and on the lookout for dirt bikes and ‘‘quads,’’3
the operation of which on public streets violates a city
ordinance, because several anonymous complaints had
been received of dirt bikes operating ‘‘reckless[ly]’’ in
the vicinity of Ella T. Grasso Boulevard and Howard
Avenue. Curry then spotted a group of approximately
seven dirt bikes and quads traveling in a southbound
direction on Howard Avenue. That group, which included
the plaintiff, was traveling at approximately twenty-five
miles per hour and not doing any wheelies or other
stunts.
When she spotted the group of dirt bikes, Curry sud-
denly and without warning executed a roadblock
maneuver by pulling her cruiser diagonally across the
double yellow line into the southbound lane directly in
front of them. To avoid a head-on collision with Curry’s
cruiser, which was not operating with lights or sirens
at the time,4 three of the bikes jumped the curb onto
the sidewalk, and one veered into the northbound lane.
The plaintiff was riding one of the dirt bikes that went
up onto the sidewalk, at which point he lost control of
the bike and struck a tree. When the various vehicles
stopped, the front of Curry’s police cruiser was about
ten feet from the tree and the plaintiff’s bike. Curry then
radioed for medical and additional police assistance.
The plaintiff was transported by ambulance to Yale-New
Haven Hospital, where he was treated for severe personal
injuries, including skull fractures, optic nerve damage
resulting in a near total loss of vision, memory loss and
cognitive deficits, and permanent facial scarring.5
The plaintiff brought this negligence action against
the defendants in July, 2013. In the operative complaint,
the plaintiff claims, inter alia, that Curry (1) ‘‘violated
proper police department procedures by pulling into the
oncoming lane of traffic,’’ (2) engaged in a roadblock or
attempted roadblock in violation of certain policies,
including New Haven Department of Police Services Gen-
eral Order No. 94-2 (General Order) and the Department of
Public Safety’s Uniform Statewide Pursuit Policy, namely,
§ 14-283a-4 (d) (5) of the Regulations of Connecticut State
Agencies (Statewide Policy), (3) drove her vehicle into
the plaintiff’s travel lane in violation of certain motor
vehicle statutes, namely, General Statutes §§ 14-230,6
4-2367 and 14-242,8 and (4) ‘‘began a pursuit when [it]
was unwarranted under the circumstances, in violation
of proper police procedure . . . .’’9 With respect to the
city, the plaintiff claimed that it was liable (1) directly
for Curry’s negligence under § 52-557n, and (2) to
indemnify Curry under General Statutes § 7-465 (a).
The defendants filed an answer, alleging, inter alia, the
special defense of governmental immunity for discre-
tionary acts under § 52-557n (a) (2) (B). In avoidance
of that special defense, the plaintiff claimed that Curry
had violated ministerial duties and that the plaintiff was
an identifiable person subject to imminent harm.
Following the completion of discovery, the defendants
moved for summary judgment on governmental immu-
nity grounds under § 52-557n (a) (2) (B), claiming that
Curry’s actions were discretionary and that no genuine
issue of material fact exists concerning the identifiable
victim-imminent harm exception to discretionary act
immunity. In its memorandum of decision granting the
defendants’ motion, the trial court rejected the plain-
tiff’s claim that Curry had breached a ministerial duty
by executing a roadblock maneuver that was proscribed
by the General Order, the Statewide Policy, and several
motor vehicle statutes, including §§ 14-230, 14-236 and
14-242. The trial court also rejected the plaintiff’s reli-
ance on the expert testimony of Carlos Maldonado, a
sergeant with the city’s police department, that Curry
had breached police pursuit policy by blocking the
oncoming vehicles without providing an opening to get
by and by pursuing riders on dirt bikes or quads. Instead,
the trial court agreed with the defendants’ argument
that the pursuit policies were inapplicable because
there was no evidence of an actual ‘‘chase’’ that would
constitute a ‘‘pursuit,’’ observing that Curry had testified
at her deposition that she had activated her lights to
warn other motorists and simply changed lanes while
operating her cruiser. Accordingly, the trial court con-
cluded that Curry had ‘‘exercised her discretion in
responding to a situation that could pose a threat to
others,’’ namely, the report of dirt bikes and quads that
had been seen operating illegally on city streets. The
trial court also concluded that, even if Curry had initi-
ated a pursuit, the language of the General Order and
the Statewide Policy rendered her decision to do so
discretionary in nature. With respect to the claimed
statutory violations of §§ 14-230 and 14-236, which
require vehicles to stay to the right and within a single
lane, and § 14-242, which permits only those turns that
can be made with ‘‘reasonable safety,’’ the trial court
held that Curry was privileged to disregard those stat-
utes under the emergency vehicle statute, General Stat-
utes § 14-283,10 because her operation of the police
cruiser was a discretionary act. The trial court further
concluded that there was no genuine issue of material
fact with respect to whether the identifiable person-
imminent harm exception to discretionary act immunity
applied. Finally, the trial court determined that the city
would not be liable for indemnification under § 7-465
(a), given the governmental immunity shield of § 52-
557n (a) (2) (B). Accordingly, the trial court granted
the defendants’ motion for summary judgment and ren-
dered judgment accordingly. This appeal followed.
On appeal, the plaintiff claims that the trial court
improperly granted the motion for summary judgment
on the ground that Curry’s actions were discretionary
acts afforded governmental immunity under § 52-557n
(a) (2) (B) because she had violated a ministerial duty
not to pull her cruiser into the plaintiff’s travel lane.
To establish that ministerial duty, the plaintiff relies on,
inter alia,11 the testimony of Maldonado, a New Haven
police sergeant, and the General Order and the State-
wide Policy, which strictly limit the use of roadblocks
and preclude the chasing of dirt bike riders. Citing,
among other cases, Strycharz v. Cady, 323 Conn. 548,
148 A.3d 1011 (2016), the plaintiff emphasizes that Mal-
donado’s testimony alone was sufficient to establish
the existence of a ministerial duty in this respect. To
this end, the plaintiff observes that, ‘‘[i]n short . . .
Curry was either chasing the plaintiff or driving into
the lane of traffic of the bikes. Either action violated
a clear directive.’’
In response, the defendants contend that there was
no ministerial duty because the various pursuit policies
cited by the plaintiff are not applicable because ‘‘[t]his
is not a pursuit case,’’ as Curry was engaged in ‘‘a traffic
control function while on patrol . . . thereby partially
blocking a portion of Howard Avenue,’’ and ‘‘never
chased the plaintiff or any of the other riders.’’ The
defendants argue that Curry’s activation of the cruiser’s
lights and sirens did not ipso facto constitute a pursuit
under the applicable policies. Relying heavily on Ven-
tura v. East Haven, 330 Conn. 613, 199 A.3d 1 (2019),
the defendants also contend that Strycharz is distin-
guishable and that Maldonado’s testimony is insuffi-
cient to establish the existence of a ministerial duty
because it was ‘‘vague and contradictory’’ with respect
to a city policy prohibiting blocking the road and
because Maldonado was not Curry’s ‘‘direct supervi-
sor.’’ We agree, however, with the plaintiffs and con-
clude that the trial court improperly granted the
defendants’ motion for summary judgment because the
plaintiff has established the existence of a ministerial
duty under the applicable city and state policies and
because a genuine issue of material fact exists with
respect to the factual predicate for that ministerial
duty.12
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
the material facts, which, under applicable principles
of substantive law, entitle[s] him to a judgment as a
matter of law. The courts hold the movant to a strict
standard. To satisfy [this] burden the movant must
make a showing that it is quite clear what the truth is,
and that excludes any real doubt as to the existence of
any genuine issue of material fact. . . . As the burden
of proof is on the movant, the evidence must be viewed
in the light most favorable to the opponent. . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue. . . . Once the moving party has met
its burden, however, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
such a disputed issue. Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court under Practice Book [§ 17-45] . . . .
Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Sena v. American Medical
Response of Connecticut, Inc., 333 Conn. 30, 53, 213
A.3d 1110 (2019).
‘‘The following principles of governmental immunity
are pertinent to our resolution of the plaintiff’s claims.
The [common-law] doctrines that determine the tort
liability of municipal employees are well established.
. . . Generally, a municipal employee is liable for the
misperformance of ministerial acts, but has a qualified
immunity in the performance of governmental acts.
. . . Governmental acts are performed wholly for the
direct benefit of the public and are supervisory or dis-
cretionary in nature. . . . The hallmark of a discretion-
ary act is that it requires the exercise of judgment. . . .
In contrast, [a ministerial act] refers to a duty which is
to be performed in a prescribed manner without the
exercise of judgment or discretion. . . .
‘‘Municipal officials are immunized from liability for
negligence 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. . . .
Discretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officers and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, 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.
. . . This is because society has no analogous interest
in permitting municipal officers to exercise judgment
in the performance of ministerial acts. . . .
‘‘The tort liability of a municipality has been codified
in § 52-557n. Section 52-557n (a) (1) provides that
[e]xcept as otherwise provided by law, a political subdi-
vision of the state shall be liable for damages to person
or property caused by: (A) The negligent acts or omis-
sions of such political subdivision or any employee,
officer or agent thereof acting within the scope of his
employment or official duties . . . . Section 52-557n
(a) (2) (B) extends, however, the same discretionary
act immunity that applies to municipal officials to the
municipalities themselves by providing that they will
not be liable for damages 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. . . .
‘‘For purposes of determining whether a duty is dis-
cretionary or ministerial, this court has recognized that
[t]here is a difference between laws that impose general
duties on officials and those that mandate 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 obedience 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 contrast, 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 directive [requiring the government
official to act in a] prescribed manner, the duty is
deemed discretionary. . . .
‘‘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 discretion.
. . . Because the construction of any such provision,
including a municipal rule or regulation, presents a
question of law for the court . . . whether the provi-
sion creates a ministerial duty gives rise to a legal issue
subject to plenary review on appeal. . . .
‘‘Because this appeal concerns the actions of police
officers and the [city] police department, we also
observe that [i]t is firmly established that the operation
of a police department is a governmental function, and
that acts or omissions in connection therewith ordi-
narily do not give rise to liability on the part of the
municipality. . . . Indeed, this court has long recog-
nized 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 [police officer’s] discre-
tionary professional duty. Such discretion is no discre-
tion at all. . . . Thus, as a general rule, [p]olice officers
are protected by discretionary act immunity when they
perform the typical functions of a police officer.’’ (Cita-
tions omitted; internal quotation marks omitted.) Bore-
lli v. Renaldi, supra, 336 Conn. 10–13; see also Coley
v. Hartford, 312 Conn. 150, 164–65, 95 A.3d 480 (2014)
(noting, with respect to officers’ alleged failure to
‘‘adhere to specific police response procedures . . .
the considerable discretion inherent in law enforce-
ment’s response to an infinite array of situations impli-
cating public safety on a daily basis’’); Shore v.
Stonington, 187 Conn. 147, 153–55, 157, 444 A.2d 1379(1982) (whether to detain suspected drunk driver was
discretionary act).
Having reviewed the record, we first conclude that
there is a genuine issue of material fact with respect
to the predicate for a ministerial duty, namely, whether
a ‘‘pursuit’’ occurred, thus rendering summary judgment
improper in this case. See Ventura v. East Haven, supra,
330 Conn. 636 n.11 (‘‘although the ultimate determina-
tion of whether governmental immunity applies is typi-
cally a question of law for the court, there may well be
disputed factual issues material to the applicability of
the defense, the resolution of which are properly left
to the trier of fact’’). First, Curry’s decision to pull her
cruiser across the oncoming traffic lane of Howard
Avenue may be viewed in the light most favorable to
the plaintiff as a roadblock maneuver intended to stop
the bikers, thus implicating city and state pursuit poli-
cies that clearly compelled her to ‘‘act in a prescribed
manner, without the exercise of judgment or discre-
tion.’’ (Internal quotation marks omitted.) Borelli v.
Renaldi, supra, 336 Conn. 12. Although the defendants
are correct that, under the General Order, merely acti-
vating the cruiser’s lights and siren to effectuate a stop
did not ipso facto constitute a pursuit under the applica-
ble policies; but see footnote 4 of this opinion; Curry’s
act of using her vehicle to apprehend the plaintiff and
the bikers raises an issue of material fact as to whether
a pursuit occurred in light of her deposition testimony
that she activated her lights and sirens and that some
members of the group reacted to seeing her by fleeing,
at which point she executed the maneuver at issue in
this case. Specifically, the General Order does not
define the term ‘‘pursuit,’’ and the Statewide Policy
defines that term more broadly than the ‘‘chase’’ envi-
sioned by the trial court and the defendants. Consistent
with its authorizing statute; see General Statutes § 14-
283a (b); the Statewide Policy does not expressly con-
template a ‘‘chase’’ but, instead, defines ‘‘pursuit’’ as ‘‘an
attempt by a police officer in an authorized emergency
vehicle to apprehend any occupant of another moving
motor vehicle, when the driver of the fleeing vehicle is
attempting to avoid apprehension by maintaining or
increasing the speed of such vehicle or by ignoring the
police officer’s attempt to stop such vehicle.’’ Regs.,
Conn. State Agencies § 14-283a-3 (1). The use of the
cruiser under these circumstances to physically attempt
to apprehend the plaintiff and the other bikers may
reasonably be viewed as a pursuit—albeit brief—con-
sistent with that definition and the public safety goals
that underlie the adoption of the Statewide Policy,
which recognizes that ‘‘[p]ursuits of fleeing motor vehi-
cles may present a danger to the lives of the public,
officers, and those vehicle occupants involved in the
pursuit.’’ Regs., Conn. State Agencies § 14-283a-2; see also
Borelli v. Renaldi, supra, 155–58 (Ecker, J., dissenting)
(discussing legislative history of police pursuit statute,
§ 14-283a).
Turning to the applicable policies governing such pur
suits, we note that the first such written policy is the
city’s General Order, which provides: ‘‘Roadblocks will
not [be] utilized EXCEPT in cases where this action is
necessary to save human life.’’ There is nothing in the
record—including any deposition testimony from Curry
herself—to indicate a perception that anyone’s life was
in immediate danger before Curry executed the road-
block maneuver. Second, the Statewide Policy, which
the Department of Public Safety promulgated pursuant
to the police pursuit statute; see General Statutes § 14-
283a (b); provides in relevant part: ‘‘Roadblocks are
prohibited unless specifically authorized by the supervi-
sor in charge after consideration of the necessity of
applying deadly physical force to end the pursuit.’’
Regs., Conn. State Agencies § 14-283a-4 (d) (5). There
is nothing in the record to indicate that Curry even
attempted to obtain supervisory approval to block How-
ard Avenue with her cruiser in order to stop the plaintiff.
Accordingly, Curry’s actions with her cruiser, viewed
in the light most favorable to the plaintiff, are an unmis-
takable violation of these written city and state policies.
Further, the deposition testimony of Maldonado, a
New Haven police sergeant, amplifies the applicability
of the General Order and the Statewide Policy under
the circumstances of this case, and provides evidence
from which a reasonable fact finder could conclude
that Curry violated numerous ministerial duties with
respect to pursuits and police officer interactions with
dirt bikes. Maldonado stated that, in 2011, the policy
of the city’s police department was not to ‘‘chase’’ or
‘‘pursue’’ vehicles such as dirt bikes or quads on public
roads as a matter of public safety. An officer was permit-
ted only to ‘‘follow at a normal . . . speed but not
chase.’’ Maldonado stated that the practice consistent
with that policy was not to ‘‘intervene, chase or pursue’’
but to ‘‘[g]et descriptive . . . information, and possibly
seize the bike later based on any of the other informa-
tion that the department can collect . . . .’’13
Turning to roadblocks, we observe that Maldonado
testified that, consistent with that policy, he would
never seek to safely stop an oncoming dirt bike or quad
by driving his vehicle into the opposing lane of traffic
and that officers were never instructed or trained to do
so. Furthermore, a complete roadblock violates police
department policy, as ‘‘there always has to be an open-
ing for that vehicle to be able to continue on.’’ Even if
lights and sirens are used, a roadblock is not appro-
priate for a ‘‘traffic law’’ violation. Maldonado stated
that an officer could engage in a pursuit only for felonies
‘‘of a serious nature’’ and not ‘‘for minor violations.’’14
When the facts are viewed in the light most favorable
to the plaintiff, we conclude that Maldonado’s testi-
mony, in combination with the General Order and the
Statewide Policy, establishes the existence of a ministe-
rial duty as a matter of law not to use a complete
roadblock maneuver to stop the plaintiff simply for
violating the city’s dirt bike ordinance, and also pro-
vides evidence from which a reasonable fact finder
could conclude that Curry violated that ministerial duty.
The defendants rely, however, on our recent decision
in Ventura v. East Haven, supra, 330 Conn. 640 and n.14,
for the proposition that Maldonado’s deposition was
(1) ‘‘vague and contradictory’’ with respect to a city policy
prohibiting blocking the road, and (2) insufficient as a
matter of law to establish the existence of a ministerial
duty because he was not Curry’s ‘‘direct supervisor.’’
We disagree. In Ventura, we held that the tow rules of
the town of East Haven applied only to towing operators
and did not create a ministerial duty on the part of its
police officers to have a truck towed when the officer
could not confirm during a traffic stop that its driver had
a valid driver’s license or proper vehicle registration.
Id., 640–42. We rejected the plaintiff’s argument that
the jury reasonably could have found, based on the
testimony of an East Haven police lieutenant, that the
patrol officer had a ministerial duty to have the truck
towed, ‘‘independent of any duty allegedly imposed on
him by the tow rules.’’ Id., 628, 639. We emphasized
that the lieutenant had ‘‘testified unequivocally that
there was no rule, written or unwritten, dictating the
manner in which an East Haven police officer must
handle an unregistered vehicle or one with misused
plates. [The lieutenant] also testified that an officer’s
decision to tow a vehicle is always within the officer’s
discretion.’’15 (Emphasis in original.) Id., 639–40; see id.,
640 (‘‘the plaintiff’s own expert testified that he was
aware of no Connecticut law requiring an officer to tow
an unregistered vehicle or a vehicle determined to have
misused plates’’).
In the Ventura footnote, on which the defendants in
the present appeal rely, we observed that the plaintiff
in Ventura had relied on Strycharz v. Cady, supra, 323
Conn. 566, and Wisniewski v. Darien, 135 Conn. App.
364, 373, 42 A.3d 436 (2012), ‘‘for the proposition that,
in the absence of an explicit written directive, the testi-
mony of a municipal official may be sufficient to estab-
lish the existence of a ministerial duty.’’ Ventura v.
East Haven, supra, 330 Conn. 640 n.14. We then stated:
‘‘Strycharz and Wisniewski bear no resemblance to
[Ventura], however, because, in both cases, the testi-
mony relied on to establish the ministerial duty did
so unequivocally and was elicited directly from the
municipal official alleged to have breached that duty,
or from that person’s direct supervisor. See Strycharz
v. Cady, supra, 566 (‘the deposition testimony of [the
superintendent of schools], who testified that [the
school principal] had a duty to assign school staff mem-
bers to different posts, including the bus port, and that
he lacked the discretion not to do so . . . provided a
sufficient basis to conclude that school administrators
had the ministerial duty to assign staff members to
monitor students throughout the school’ . . .); Wis-
niewski v. Darien, supra, 376–77 (‘[i]n this case . . .
the plaintiffs provided evidence through [the tree war-
den’s] own testimony that he had a nondiscretionary
duty to inspect the trees on the town’s right-of-way in
front of the property’). No testimony was elicited by
the plaintiff in [Ventura] that was even remotely compa-
rable to the testimony elicited by the plaintiffs in Stry-
charz and Wisniewski concerning the existence of an
unwritten municipal rule or policy.’’ (Emphasis added.)
Ventura v. East Haven, supra, 640 n.14.
We conclude that Ventura is not controlling in the
present case. First, viewed in the light most favorable
to the plaintiff, Maldonado’s testimony ‘‘unequivocally’’
established a lack of discretion in this case, in contrast
to that of the police lieutenant in Ventura, which
expressly acknowledged a discretionary component
with respect to East Haven police officers’ implementa-
tion of the towing policies at issue.16 Second, and most
significant, like the school superintendent in Strycharz
v. Cady, supra, 323 Conn. 566, Maldonado qualified by
rank and experience to be Curry’s direct supervisor,
despite the fact that he was not specifically assigned
to that position; he was employed as a supervisor of
patrol officers in the city’s police department at all
relevant times in this case and, in fact, responded to
the scene of the collision between Curry and the plain-
tiff. Put differently, Maldonado’s employment with the
city’s police department gave him sufficient knowledge,
training, and experience with respect to its policies and
practices to render his testimony relevant to establish
the existence of a ministerial duty.
We also emphasize that our conclusion in the present
case is consistent with our recent decision in Borelli
v. Renaldi, supra, 336 Conn. 1, which held that the
decision of a police officer for the town of Seymour
to pursue a motorist who had fled when the officer
attempted to stop him for having illegal underglow light-
ing was discretionary under § 14-283 and the applicable
state and municipal pursuit policies. See id., 5–6, 23.
Specifically, we held in Borelli that, in the context of an
officer’s decision whether to pursue, the ‘‘due regard’’
language of § 14-283 (d) did not impose a ministerial
duty on the officer, observing that, ‘‘[b]y its very defini-
tion . . . the duty to act with due regard is a discretion-
ary duty.’’ (Emphasis omitted.) Id., 15. We also followed
Coley v. Hartford, supra, 312 Conn. 165–66,17 and relied
on the relevant language of the Statewide Policy, which
‘‘contemplates that officers will exercise their judgment
and discretion in giving due regard to the safety of all
persons and property when determining whether to
engage a pursuit.’’ Borelli v. Renaldi, supra, 16. We
distinguished much of the Statewide Policy language
that ‘‘provides detailed rules governing the conduct of
the pursuit’’; id., 20; see Regs., Conn. State Agencies
§§ 14-283a-1 through 14-283a-4; such as requiring that
the ‘‘pursuing officer ‘activate appropriate warning
equipment,’ ’’ from the multifactored ‘‘determination of
whether to pursue.’’ (Emphasis omitted.) Borelli v.
Renaldi, supra, 20; see also id., 22 (discussing similar
discretionary language in Seymour pursuit policy that
‘‘directs officers to weigh ‘many factors’ in determining
whether to initiate a pursuit’’). Consistent with the
majority’s emphasis on the discretionary nature of the
policies governing the decision to pursue, a concurring
opinion in Borelli emphasized that ‘‘there are certain
portions of the town and statewide policies governing
the manner of pursuit that are phrased in a manner that
is susceptible to being read as imposing a ministerial
duty, such as mandating the use of emergency lights
and sirens during the pursuit and requiring officers to
discontinue pursuit when directed by a supervisor, or
precluding certain units from engaging in pursuit.’’ Id.,
57 n.18 (Robinson, C. J., concurring). That concurring
opinion cited with approval Mumm v. Mornson, 708
N.W.2d 475 (Minn. 2006), in which the Minnesota
Supreme Court rejected the argument ‘‘that all police
conduct in emergency situations is discretionary and
thus entitled to official immunity unless it is [wilful] or
malicious.’’ Id., 492; see Borelli v. Renaldi, supra, 58
n.18 (Robinson, C. J., concurring). The Minnesota court
‘‘recognize[d] that the doctrine of official immunity is
a complex and difficult area of law that must be applied
to [ever changing] fact patterns and governmental poli-
cies,’’ and emphasized the distinction between pursuit
policies that ‘‘reserved substantial discretion for police
officers’’ from those that contain ‘‘express dictates’’ and
limit officers’ ‘‘independent exercise of judgment.’’
Mumm v. Mornson, supra, 492–93. In contrast to the
multifactored, discretionary analysis at issue in Borelli,
the particular roadblock and dirt bike policies in the
present case present the bright lines that render an
officer’s duty ministerial.
Finally, we acknowledge the defendants’ argument that
‘‘[p]ersonal and municipal liability for an officer’s use
of discretion on patrol would hamper [officers’] ability
to perform their duties as caretakers of the public.’’
Although our case law repeatedly emphasizes the broad
discretion generally afforded to police officers in the
performance of their duties; see, e.g., Coley v. Hartford,
supra, 312 Conn. 164–65; the defendants’ arguments in
the present case verge on ‘‘ask[ing] too much in urging
us to conclude that all police conduct in emergency
situations is discretionary. We do not read our previous
cases as establishing the broad proposition that all
police conduct in emergencies is discretionary, even in
the face of binding police department policies. Indeed,
[although] often necessary, police pursuits by definition
are emergency situations, jeopardizing the safety and
lives of those involved, as well as innocent bystanders.
We recognize that governmental entities have the
authority to eliminate by policy the discretion of their
employees, as was done [by the policies at issue in the
present case]. By adopting policies specifically intended
to apply to pursuits, the [state and the city] implicitly
[recognize] that officers should not have unfettered dis-
cretion in emergency situations.’’ (Emphasis added.)
Mumm v. Mornson, supra, 708 N.W.2d 493. Accordingly,
we conclude that the trial court improperly granted the
defendants’ motion for summary judgment on discre-
tionary immunity grounds.18
The judgment is reversed and the case is remanded
with direction to deny the defendants’ motion for sum-
mary judgment and for further proceedings according
to law.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** October 15, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we granted the plaintiff’s motion to transfer the appeal to this
court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.
2
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.’’
(Emphasis added.) See also General Statutes § 52-557n (b) (providing spe-
cific immunities for certain acts).
3
As the trial court noted, ‘‘[a] ‘quad’ is a four-wheeled vehicle also known
as an ‘all-terrain vehicle’ . . . .’’
4
Curry testified at her deposition that she had witnessed the group of
dirt bikes and quads operating recklessly in a way that ‘‘consumed the entire
road,’’ and that, prior to pulling into the southbound lane, she had activated
her cruiser’s emergency lights and siren both to warn other drivers. Curry
intended to execute a U-turn in order to stop the group and to advise her
dispatcher by radio of their direction of travel.
In contrast, Anthony Maebry, a neighborhood resident who witnessed the
collision from outside his nearby residence, testified that Curry’s cruiser
was not operating with emergency lights or sirens when she pulled into the
southbound lane. Raymond Jones, a friend who was biking with the plaintiff,
and Martese Allen, another biker who was in front of a nearby package
store and also witnessed the collision, testified consistently with Maebry,
stating that Curry activated her lights and sirens only after the collision had
occurred. Viewing the evidence in the light most favorable to the nonmoving
plaintiff, we adopt this version of the facts for purposes of this appeal.
5
Curry subsequently went to the hospital and handed the plaintiff’s mother
a summons for the plaintiff for numerous motor vehicle offenses, including
operating without a license and insurance.
6
General Statutes § 14-230 provides in relevant part: ‘‘(a) Upon all high-
ways, each vehicle . . . shall be driven upon the right, except (1) when
overtaking and passing another vehicle proceeding in the same direction,
(2) when overtaking and passing pedestrians, parked or standing vehicles,
animals, bicycles, electric bicycles, mopeds, scooters, electric foot scooters,
vehicles moving at a slow speed, as defined in section 14-220, or obstructions
on the right side of the highway, (3) when the right side of a highway is
closed to traffic while under construction or repair, (4) on a highway divided
into three or more marked lanes for traffic, or (5) on a highway designated
and signposted for one-way traffic. . . .’’
Although § 14-230 has been amended by the legislature since the events
underlying the present case; see, e.g., Public Acts 2019, No. 19-162, § 5;
Public Acts 2018, No. 18-165, §7; these amendments have no bearing on the
merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
7
General Statutes § 14-236 provides in relevant part: ‘‘When any highway
has been divided into two or more clearly marked lanes for traffic, (1) a
vehicle shall be driven as nearly as practicable entirely within a single lane
and shall not be moved from such lane until the driver has ascertained that
such movement can be made with safety . . . .’’
8
General Statutes § 14-242 provides in relevant part: ‘‘(a) No person shall
turn a vehicle at an intersection unless the vehicle is in a proper position
on the highway as required by section 14-241, or turn a vehicle to enter a
private road or driveway or otherwise turn a vehicle from a direct course
or move right or left upon a highway unless such movement can be made
with reasonable safety. No person shall so turn any vehicle without giving
an appropriate signal in the manner provided in section 14-244.
***
‘‘(e) The driver of a vehicle intending to turn to the left within an intersec-
tion or into an alley, private road or driveway shall yield the right-of-way
to any vehicle approaching from the opposite direction which is within the
intersection or within the area formed by the extension of the lateral lines
of the private alley, road or driveway across the full width of the public
highway with which it intersects, or so close to such intersection of public
highways or to the area formed by the extension of the lateral lines of said
private alley, road or driveway across the full width of the public highway
as to constitute an immediate hazard. . . .’’
Although § 14-242 has been amended by the legislature since the events
underlying the present case; see, e.g., Public Acts 2019, No. 19-162, § 8;
Public Acts 2018, No. 18-165, § 10; these amendments have no bearing on
the merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
9
The plaintiff also alleged that Curry (1) negligently pulled her vehicle
into the travel path of the dirt bikes, (2) ‘‘was inattentive and failed to
properly operate her police cruiser in a safe and prudent manner,’’ (3)
operated her cruiser ‘‘at a rate of speed that was unreasonable, improper,
and excessive under the circumstances,’’ (4) ‘‘failed to sound her horn or
[to] give the plaintiff a timely warning, or any warning whatsoever, before
pulling into his lane of traffic,’’ (5) ‘‘failed to slow her vehicle while
approaching oncoming traffic while driving in the wrong lane,’’ and (6) failed
to ‘‘take corrective action by either turning her vehicle to the left or the
right, or decelerating by putting on her brakes when a collision with oncom-
ing traffic was likely to occur.’’
10
General Statutes § 14-283 provides in relevant part: ‘‘(a) As used in this
section, ‘emergency vehicle’ means any ambulance or vehicle operated by
a member of an emergency medical service organization responding to an
emergency call, any vehicle used by a fire department or by any officer of
a fire department while on the way to a fire or while responding to an
emergency call but not while returning from a fire or emergency call, any
state or local police vehicle operated by a police officer or inspector of the
Department of Motor Vehicles answering an emergency call or in the pursuit
of fleeing law violators or any Department of Correction vehicle operated
by a Department of Correction officer while in the course of such officer’s
employment and while responding to an emergency call.
‘‘(b) (1) The operator of any emergency vehicle may (A) park or stand
such vehicle, irrespective of the provisions of this chapter, (B) except as
provided in subdivision (2) of this subsection, proceed past any red light
or stop signal or stop sign, but only after slowing down or stopping to the
extent necessary for the safe operation of such vehicle, (C) exceed the
posted speed limits or other speed limits imposed by or pursuant to section
14-218a or 14-219 as long as such operator does not endanger life or property
by so doing, and (D) disregard statutes, ordinances or regulations governing
direction of movement or turning in specific directions.
‘‘(2) The operator of any emergency vehicle shall immediately bring such
vehicle to a stop not less than ten feet from the front when approaching
and not less than ten feet from the rear when overtaking or following any
registered school bus on any highway or private road or in any parking area
or on any school property when such school bus is displaying flashing red
signal lights and such operator may then proceed as long as he or she does
not endanger life or property by so doing.
‘‘(c) The exemptions granted in this section shall apply only when an
emergency vehicle is making use of an audible warning signal device, includ-
ing but not limited to a siren, whistle or bell which meets the requirements
of subsection (f) of section 14-80, and visible flashing or revolving lights
which meet the requirements of sections 14-96p and 14-96q, and to any state
or local police vehicle properly and lawfully making use of an audible
warning signal device only.
‘‘(d) 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. . . .’’
As with §§ 14-230 and 14-242; see footnotes 6 and 8 of this opinion; § 14-
283 has been amended by the legislature since the events underlying the
present case. See, e.g., Public Acts 2014, No. 14-221, § 1. These amendments,
however, have no bearing on the merits of this appeal, and, in the interest
of simplicty, we refer to the current revision of the statute.
11
See footnote 18 of this opinion for our discussion of the plaintiff’s other
claims with respect to the existence of a ministerial duty.
12
Given our conclusion that a ministerial duty exists in this case, we need
not reach the plaintiff’s claim that, even if the duty were discretionary in
nature, he was an identifiable victim subject to imminent harm for purposes
of that exception to discretionary act immunity. See, e.g., Borelli v. Renaldi,
supra, 336 Conn. 26–27.
13
Beyond this policy, Maldonado testified that the better practice with
respect to interacting with dirt bikes or quads was to follow one and to
approach when it stopped at a traffic light or when the operator was stopped
to speak with a pedestrian because the engine would often shut off at that
time, making it safer to approach.
14
We note that Curry acknowledged at her deposition that the city had
a no pursuit policy in effect at the time of the collision in July, 2011. Indeed,
the sergeant who responded to the collision had ‘‘strongly wanted to make
sure that [Curry] was not in pursuit of the dirt bikes and vehicles and quads.’’
15
The lieutenant had testified that ‘‘unregistered vehicles are routinely
towed in East Haven’’ and that, ‘‘based on his training and experience, he
did not let anybody drive off in an unregistered vehicle following a traffic
stop, and that the general rule among police officers is to tow and impound
such vehicles, albeit with certain exceptions.’’ (Internal quotation marks
omitted.) Ventura v. East Haven, supra, 330 Conn. 640. We stated, however,
that the ‘‘mere fact that an officer, either by training or experience, ordinarily
responds to a situation in a particular manner does not transform his or
her response into a ministerial duty.’’ Id., 640–41.
16
Moreover, the language in footnote 14 of Ventura with respect to the
‘‘direct supervisor’’ was nonbinding dictum because it was not necessary
to the holding in that case with respect to the effect of the lieutenant’s
testimony. See Ventura v. East Haven, supra, 330 Conn. 640 n.14; see also,
e.g., Cruz v. Montanez, 294 Conn. 357, 376–77, 984 A.2d 705 (2009).
17
In Coley v. Hartford, supra, 312 Conn. 150, we concluded that General
Statutes (Rev. to 2013) § 46b-38b (d), which directs officers who report to
the scene of a report of domestic violence, upon determining that no cause
exists for arrest, to remain ‘‘at the scene for a reasonable time until, in
the reasonable judgment of the officer, the likelihood of further imminent
violence has been eliminated,’’ imposed a discretionary duty, given that the
phrases ‘‘reasonable judgment’’ and ‘‘reasonable time’’ inherently require
the exercise of judgment and discretion. (Internal quotation marks omitted.)
Id., 152 n.1, 165–66.
18
Given our conclusion that a genuine issue of material fact exists with
respect to the factual predicate for whether Curry violated a ministerial
duty under the state and city pursuit policies, we need not consider the
plaintiff’s claims that (1) beyond emergency operation in accordance with
§ 14-283, the state traffic statutes impose ministerial obligations, and (2) as
a corollary, nonemergency operation of a motor vehicle is not a discretionary
act. See Borelli v. Renaldi, supra, 336 Conn. 5 (specifically declining to
‘‘address the question of whether governmental immunity applies to routine
driving of emergency response vehicles by municipal actors’’). This is partic-
ularly so given that a genuine issue of material fact exists as to whether
Curry had activated her emergency lights and sirens and engaged in the
emergency operation of her cruiser at the time of the collision. See footnote
4 of this opinion. Because the Statewide Policy, the General Order, and
Maldonado’s testimony were sufficient to establish the existence of a minis-
terial duty in this case, we need not consider further this issue concerning
the effect of the state traffic statutes to establish a ministerial duty in this
case. But see Daley v. Kashmanian, 193 Conn. App. 171, 187–89, 219 A.3d
499 (2019) (concluding that Hartford police officer engaging in surveillance
operations in ‘‘soft car’’ lacking lights and sirens was engaged in discretionary
act and did not have ministerial duty to comply with motor vehicle statutes
but ‘‘declin[ing] 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’’ (emphasis in original)), cert. granted,
335 Conn. 939, 237 A.3d 1 (2020).