Opinion
CV136039961
01-11-2019
Amaadi COLE v. CITY OF NEW HAVEN et al.
UNPUBLISHED OPINION
OPINION
James W. Abrams, Judge
The plaintiff, Amaadi Cole, commenced this action against the defendants City of New Haven and police officer Nikki Curry on July 8, 2013. The plaintiff has amended his complaint five separate times; the most recent amendment having been filed on October 1, 2018. The complaint alleges that Curry was negligent and that the plaintiff is entitled to recover from the City as an indemnitor for its police officer’s negligence pursuant to General Statutes § § 52-557n and 7-465.
The action was initiated by Lucretia Cole, guardian and next friend of Amaadi Cole, when Amaadi Cole was a minor. After Amaadi Cole reached the age of majority, the plaintiff’s attorney moved to substitute Amaadi Cole as the first-named plaintiff.
The fourth amended complaint was operative at the time of the filing of the motion at issue. The lone difference between the fourth and fifth amended complaints is the addition of a citation to the provision on police roadblocks in the Uniform Statewide Pursuit Policy. Both versions of the complaint contain allegations that the policy was violated.
The defendants filed this motion for summary judgment and supporting memorandum of law on August 23, 2018. The plaintiff objected to the motion on timeliness grounds on August 27, 2018, arguing that the motion was filed later than contemplated by a scheduling order agreed upon by the parties months earlier. The defendants filed a supplemental memorandum of law in support of their motion on September 26, 2018, on the issue of whether the identifiable victim-imminent harm exception to governmental immunity is applicable. The plaintiff filed his substantive objection and memorandum of law in opposition to the defendants’ motion on October 16, 2018. The defendants filed a reply memorandum of law in support of their motion on November 13, 2018. The court heard oral argument on the motion at the November 19, 2018 short calendar.
The parties agreed in the scheduling order to file, mark ready, and argue all dispositive motions by September 6, 2018. The defendants filed their motion for summary judgment on August 23, 2018, leaving it extremely unlikely that the plaintiff could respond and the matter be argued at short calendar prior to the deadline. Though the plaintiff’s timeliness argument is well-taken, it cannot be said that the plaintiff was prejudiced to the extent that the court must deny the defendants’ motion. See Clawson v. LaValley, Superior Court, judicial district of Tolland, Docket No. CV-17-6011664 (March 29, 2018, Farley, J.) (66 Conn. L. Rptr . 250, 251-52). The plaintiff had the opportunity to file an objection, which he did; the matter was argued at short calendar; and the court has rendered a decision on the motion prior to the scheduled trial date.
The plaintiff moved to correct a small portion of that memorandum on November 15, 2018. The court granted the motion.
I
FACTS
The plaintiff alleges that on July 16, 2011 at about 6:43 p.m., he and several other individuals were operating dirt bikes and quads southbound on Howard Avenue in New Haven. He alleges that Curry, a New Haven police officer, was traveling northbound in a police cruiser on Howard Avenue at the same time, when she drove her cruiser into the southbound lane of Howard Avenue, cutting off the riders’ path of travel. The plaintiff alleges that he swerved right in order to avoid a collision with the cruiser, hit the curb, lost control of the dirt bike, and struck a tree, causing him to suffer severe and permanent injuries and incur significant related medical expenses.
A "quad" is a four-wheeled vehicle also known as an "all-terrain vehicle" (ATV).
In the defendants’ filings related to this motion, they claim that on July 16, 2011, between 5:00 p.m. and 6:30 p.m., the New Haven Police Department fielded complaints of dirt bikes being operated recklessly in the area of Ella T. Grasso Boulevard, Howard Avenue, and Greenwich Avenue. After hearing the report, Curry said she observed about nine dirt bikes and two quads traveling southbound on Howard Avenue as she was traveling northbound on Howard Avenue.
In 2005, the New Haven Code of General Ordinances was amended to ban the operation of dirt bikes on City streets, sidewalks, and public property. See New Haven Code of General Ordinances, § 29-131 et seq.
The testimony differs on what transpired next. Curry says that she activated the cruiser’s emergency lights and sirens in order to alert motorists and members of the public to the riders, not to apprehend the riders. Eyewitnesses deposed by the plaintiff testified that Curry did not activate the emergency lights and sirens on the cruiser prior to crossing into the oncoming riders’ lane of travel, effectively cutting the riders off.
The defendants argue that, by, the time Curry was able to complete a U-turn and bring her cruiser to a stop, the plaintiff had crashed and the other riders had fled, which, even if true, does not serve to contradict the plaintiff’s assertion that Curry cut the riders off.
It follows from the sworn statements of the plaintiff’s accident reconstruction expert, Charles C. Grasso III, that, once the plaintiff perceived the change in direction by Curry’s cruiser, he had between 2.52 and 4.06 seconds to avoid colliding with the cruiser. Fortunately, the plaintiff is the only rider who crashed in attempting to avoid Curry’s cruiser; some riders jumped the curb and at least one swerved into the northbound lane of Howard Avenue. The plaintiff was not wearing a helmet and suffered serious head injuries in the collision; he was transported to Yale-New Haven Hospital.
That evening, with the plaintiff in critical condition, Curry served the plaintiff’s mother, Lucretia Cole, with a juvenile summons and complaint at the hospital, listing statutory violations for operation of an unregistered motor vehicle, operation of a motor vehicle without a license, operation of a motor vehicle without insurance, and reckless driving.
In their most recent answer and special defenses, the defendants admit that Curry is a New Haven police officer and was acting in the scope of her employment while driving the police cruiser on Howard Avenue on July 16, 2011. The defendants, however, deny that Curry drove into the path of the riders, causing the plaintiff’s collision. The defendants also raised three special defenses: that any injuries sustained by the plaintiff were the result of his own negligence, that any recovery should be reduced proportionately by the plaintiff’s level of fault, and that the defendants are shielded from liability by the doctrine of governmental immunity.
II
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
"Mere statements of legal conclusions ... and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). "It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party ... such allegations must be supported by counteraffidavits or other documentary submissions that controvert the evidence offered in support of summary judgment." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 178, 73 A.3d 742 (2013). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
The defendants raise three issues in their motion for summary judgment: 1) That no genuine issue of material fact exists concerning the fact that the police officer’s actions, even if they took place as alleged, were discretionary rather than ministerial, giving rise to governmental immunity; 2) That no genuine issue of material fact exists concerning the imminent harm/identifiable victim exception to governmental immunity doctrine does not apply in this case; and 3) If the police officer is shielded from liability by virtue of the doctrine of governmental immunity, the City is not required to indemnify her as a matter of law.
A) The Defendant Police Officer did not breach a Ministerial Duty
General Statutes § 52-557n states in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." General Statutes § 52-557n(a)(2). "Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts." Mulligan v. Rioux, 229 Conn. 716, 727, 643 A.2d 1226 (1994). Whether an act is discretionary or ministerial is usually a question of fact, but "[when] it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Strycharz v. Cady, 323 Conn. 548, 565, 148 A.3d 1011 (2016).
Discretionary act immunity as codified by the legislature often leads to harsh results in cases such as this. "Discretionary act immunity reflects a value judgment that— despite injury to a member of the public— the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, out-weighs the benefits to be had from imposing liability for that injury ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Edgerton v. Clinton, 311 Conn. 217, 229, 86 A.3d 437 (2014). "Although police officers, and police departments, are typically protected by discretionary act immunity, the mere status of a defendant as a police officer does not itself impart a cloak of immunity. The policy behind discretionary act immunity for police officers is based on the desire to encourage police officers to use their discretion in the performance of their typical duties." Coley v. Hartford, 312 Conn. 150, 178-79, 95 A.3d 480 (2014). "Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer." (Internal quotation marks omitted.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011). "[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." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988).
To find a ministerial duty requires a "city charter provision, ordinance, regulation, rule, policy, or any other directive to [act] in any prescribed manner." Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006). "Testimony of a municipal official ... may provide an evidentiary basis from which a jury could find the existence of a specific duty ..." Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012). "Exceptions to governmental immunity will be found only if there is a duty to act that is so clear and unequivocal that the policy rationale underlying discretionary act immunity— to encourage municipal officers to exercise judgment— has no force." (Internal quotation marks omitted.) Ventura v. East Haven, 170 Conn.App. 388, 402, 154 A.3d 1020, cert. granted, 325 Conn. 905, 156 A.3d 537 (2017). "The fact that a claim is based upon a defendant’s alleged failure to enforce a statute ... does not, in and of itself, make enforcement of that statute a ministerial duty ... Rather, a police officer’s decision whether and how to enforce a statute necessarily requires an examination of the surrounding circumstances and a determination as to what enforcement action, if any, is necessary and appropriate in those circumstances. Such a decision thus invariably involves the exercise of judgment and discretion. Indeed, even if the command of a statute is mandatory, it is well settled that a police officer’s decision whether or not to enforce the statute in particular circumstances is a matter that requires the exercise of judgment and discretion." (Citation omitted.) Faulkner v. Daddona, 142 Conn.App. 113, 122-23, 63 A.3d 993 (2013).
Here, the plaintiff alleges the defendants breached a ministerial duty to the plaintiff and that Curry’s negligence proximately caused the plaintiff’s injuries. The plaintiff alleges Curry violated sections of the Uniform Statewide Pursuit Policy, New Haven Police Department General Order 94-2, and General Statutes § § 14-230, 14-236, and 14-242. The defendants argue that Curry’s conduct was discretionary and is protected by governmental immunity.
As relates to the statewide and New Haven pursuit policies, the plaintiff argues that Curry executed an illegal roadblock. See Uniform Statewide Pursuit Policy, Regs., Conn. State Agencies § 14-283a-4(d)(5) ("Roadblocks are prohibited unless specifically authorized by the supervisor in charge after consideration of the necessity of applying deadly physical force to end the pursuit"); New Haven Police Department General Order 94-2, § IV.H ("Roadblocks will not [be] utilized EXCEPT in cases where this action is necessary to save human life" [emphasis in original]). The plaintiff’s expert, New Haven Police Sgt. Carlos Maldonado, testified it was against police policy, in a pursuit, to pull one’s cruiser in front of oncoming dirt bikes or quads to the extent that riders are not permitted an opening to continue on. Police officers were not to engage in a pursuit of riders on dirt bikes or quads. The defendants argue that Curry never engaged in a pursuit of the plaintiff, as her objective was not to apprehend the plaintiff nor did she chase after fleeing riders and, as a result, the pursuit policies are not applicable. The statewide policy defines a 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). "Pursuit" is not defined in General Order 94-2, though its section on non-pursuit situations is instructive. "The mere fact that an officer has activated his/her lights and siren does not constitute a pursuit ... The pursuit begins when it is clear in the officer’s mind that the subject vehicle has increased speed in an attempt to escape or elude. In such situations, officers should follow with lights and siren ... The purpose of this action is to both apprehend the offender and to warn other operators of a dangerous condition." General Order 94-2, § V.
There is insufficient evidence to raise a triable issue of fact as to whether Curry pursued the riders, thereby implicating the statewide and New Haven pursuit policies. The scope of the policies is limited to police pursuits and should not be construed to apply outside that context. See Regs., Conn. State Agencies § 14-283a-1 ("The purpose of this policy is to establish a Uniform Statewide Pursuit Policy ... This policy shall serve as the minimum standard for all police pursuits in Connecticut"); General Order 94-2, § I ("The purpose of this General Order is to establish guidelines and procedures for police pursuits by motor vehicles"). Though the parties’ recollections of the facts differ in part, there is no evidentiary support under any version of events for the contention that Curry chased after the plaintiff or the other riders in order to apprehend them. Curry testified at her deposition that she sought to alert the public to the riders’ presence. This is not a pursuit case, where the officer attempts to effect a traffic stop, the vehicle being pursued either speeds up or otherwise attempts to elude the officer, and the officer subsequently gives chase. Here, Curry was driving in the opposite lane of the riders, changed lanes, and the plaintiff thereafter crashed. Curry was, at all times relevant, on patrol in her cruiser, performing a typical police officer function; she heard a report of, and thereafter observed, dirt bikes and quads being operated illegally; and exercised her discretion in responding to a situation that could pose a threat to others. Ultimately, whether an act is discretionary or ministerial is not determined by the egregiousness of the facts, but rather whether a statute, regulation, or rule sets forth a precise manner by which the officer must respond to a given fact scenario, eliminating the exercise of discretion. No such statute, regulation or rule exists in this case.
Had Curry executed the U-turn and chased after the fleeing riders— and the fleeing riders at this point continued on in an attempt to elude Curry— it most likely would have constituted a pursuit. See, e.g., Regs., Conn. State Agencies § 14-283a-2 ("Pursuits of fleeing motor vehicles ...").
The plaintiff, in relying on Maldonado’s testimony to establish a ministerial duty, cites Wisniewski v. Darien, 135 Conn.App. 364, 42 A.3d 436 (2012). In that case, the co-defendant town tree warden testified that, upon receipt of a complaint of a potentially hazardous tree, he had a nondiscretionary duty to inspect it. Id., 375. The defendants do not make such a concession here.
The plaintiff separately argues that Curry unlawfully initiated a pursuit. See Regs., Conn. State Agencies § 14-283a-4(a)(1) ("The decision to initiate a pursuit shall be based on the pursuing police officer’s conclusion that the immediate danger to the police officer and the public created by the pursuit is less than the immediate or potential danger to the public-should the occupants of such vehicle remain at large"). Officers are to consider a number of factors in determining whether to initiate a pursuit, such as road and weather conditions, vehicular and pedestrian traffic, whether the identity of the suspect(s) is known, whether immediate apprehension of the suspect(s) is necessary to protect public safety or apprehension at a later time is feasible, the performance capabilities of the pursuit vehicle and vehicle being pursued, and the seriousness of the offense. See Regs., Conn. State Agencies § 14-283a-4(a)(2). The policy language ("shall be based on the pursuing police officer’s conclusion ...") and inclusion of factors for the officer to balance in assessing whether to initiate a pursuit indicate that the decision is discretionary. See Dudley v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV-09-5033767-S (July 24, 2013, Scholl, J.) ("This court ... cannot find that the initiation of a pursuit is a ministerial duty"); Vilton v. Burns, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-000169481-S (June 22, 2004, Alander, J.) (37 Conn.L.Rptr. 425, 430) ("The determination by a police officer whether to commence a high speed pursuit of a fleeing law violator is unquestionably a matter of judgment. It depends on a multitude of factors ... Accordingly, it is a decision that is discretionary and for which governmental immunity applies" [citation omitted]). See also Sacramento v. Lewis, 523 U.S. 833, 853, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders").
Thirdly, the plaintiff argues that Curry violated § § 14-230, 14-236, and 14-242. Section 14-230(a) requires that motor vehicles be driven on the right side of any highway; § 14-236 states 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 ..."; and § 14-242(a) states in relevant part: "No person shall turn a vehicle at an intersection unless the vehicle is in a proper position on the highway ... 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." General Statutes § 14-283, however, states in relevant part: "The operator of an emergency vehicle may ... (D) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions." General Statutes § 14-283(b)(1). "[N]either the Supreme nor Appellate Court have held that, as to municipal police officers, motor vehicle laws impose ministerial duties upon them." Daley v. Kashmanian, Superior Court, judicial district of Hartford, Docket No. CV-15-6057627-S (February 8, 2018, Scholl, J.) (66 Conn.L.Rptr. 47, 51). See also Parker v. Stadalink, Superior Court, judicial district of Waterbury, Docket No. CV- 13-6020769-S (May 4, 2016, Brazzel-Massaro, J.) (62 Conn.L.Rptr. 281, 284) ("This court holds that the duty to drive safely in § 14-283 is discretionary, not only for the reasons stated in the other Superior Court decisions holding likewise but also based on statutory interpretation guided by longstanding appellate authority on the difference between ministerial and discretionary duties"). There being no prescribed manner in § 14-283 by which Curry must have responded upon seeing the plaintiff and other riders; see Violano v. Fernandez, supra, 280 Conn. 318; the court cannot find a breach of ministerial duty as a matter of law. The fact that, in hindsight, one might wish that the police officer had chosen a different course of action under the circumstances must not factor into the court’s decision on this issue. Based on the foregoing, the court finds is compelled to find that no genuine issue of material fact exists regarding the fact that the police officer’s actions that led to the accident were discretionary in nature and, as a result, shield the officer from liability by virtue of the doctrine of governmental immunity.
"Upon all highways, 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, mopeds, scooters, vehicles moving at a slow speed ... 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." General Statutes § 14-230(a).
The plaintiff argues, and some courts have held, that routine driving is a ministerial act. See, e.g.,
B) The Imminent Harm-Identifiable Victim Exception Does Not Apply
The plaintiff argues that, should the court find that Curry’s acts were discretionary rather than ministerial in this case, then the identifiable victim-imminent harm exception to discretionary act immunity applies. "The imminent harm exception to discretionary act immunity applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Footnote omitted; internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329. "[T]he criteria of ‘identifiable person’ and ‘imminent harm’ must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." Doe v. Petersen, 279 Conn. 607, 620-21, 903 A.2d 191 (2006).
"With respect to the identifiable victim element, we note that this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350-51, 984 A.2d 684 (2009). "The only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours. In determining that such schoolchildren were within such a class, we focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 107, 931 A.2d 859 (2007). See also Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005) (holding parent-spectator attending child’s school football game injured on bleachers not foreseeable victim subject to imminent harm because attendance at game voluntary).
The identifiable victim-imminent harm exception "has received very little recognition in this state." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329. "[T]he decisions [of our Supreme Court] reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent haul for purposes of this exception to qualified immunity. See Sestito v. Groton, [ 178 Conn. 520, 522-23, 423 A.2d 165 (1979) ] (facts presented jury question in case wherein on-duty town police officer watched and witnessed ongoing brawl in bar’s parking lot but did not intervene until after participant had shot and killed plaintiff’s decedent). Sestito appears ... to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because [a]n allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm." (Internal quotation marks omitted.) Merritt v. Bethel Police Dept., 120 Conn.App. 806, 815-16, 993 A.2d 1006 (2010). See also Borelli v. Renaldi, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-14-6015474-S (September 26, 2017, Tyma, J.) (holding backseat passenger in pursued vehicle not identifiable person subject to imminent harm).
The facts in this case differ greatly from those in Sestito, so there is no precedent that would allow the plaintiff to fall within this narrow exception to governmental immunity as an identifiable victim. "This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot." Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989). As a result, the court finds that no genuine issue of material fact exists regarding the issue that the imminent harm/identifiable victim exception does apply in this case.
C) The Plaintiff is Not Entitled to Indemnification From the City as a Matter of Law
In the final two counts of his complaint, the plaintiff alleges that he is entitled to indemnification from the City of New Haven, pursuant to General Statutes § § 7-465 and 52-557n. Section 7-465(a) states in relevant part: "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... for physical damages to person or property ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment ..." Liability on the part of the municipality requires a threshold finding of liability on the part of its employee. Kostyal v. Cass, 163 Conn. 92, 97, 302 A.2d 121 (1972). "[I]n no event may the municipality be held liable under [§ 7-465] unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon ... [him] by law for physical damages to person or property." (Internal quotation marks omitted.) Martyn v. Donlin, 151 Conn. 402, 405, 198 A.2d 700 (1964). "A claim for indemnification against a municipality under § 7-465 is entirely dependent upon establishing liability against a municipal employee." Bonington v. Westport, 297 Conn. 297, 316, 999 A.2d 700 (2010). The plaintiff here being unable to establish liability against the individual defendant police officer, the City cannot be held liable pursuant to § 7-465.
"[Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes 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 damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." (Citation omitted; footnote omitted; internal quotation marks omitted.) Edgerton v. Clinton, supra, 311 Conn. 229. The court having found that the underlying acts were discretionary and not subject to the imminent harm/identifiable victim exception, the City of New Haven is not liable pursuant to § 52-557n as a matter of law.
III
CONCLUSION
The plaintiff’s claims are barred by governmental immunity and the defendants’ motion for summary judgment is hereby granted.
Williams v. New London, Superior Court, judicial district of New London, Docket No. CV-12-6012328-S (April 7, 2014, Devine, J.) (58 Conn. L. Rptr . 86, 90). However, "our appellate courts have never held that a general requirement for all drivers comes within the ambit of the description of a ministerial duty imposed on a municipal official when carrying out his official duties." Daley v. Kashmanian, Superior Court, judicial district of Hartford, Docket No. CV-15-6057627-S (February 8, 2018, Scholl, J.) (66 Conn. L. Rptr . 47, 51).