Opinion
CV156057627S
02-07-2018
Devonte S. DALEY v. Zachary KASHMANIAN et al.
UNPUBLISHED OPINION
File Date: February 8, 2018
OPINION
Jane S. Scholl, J.
Introduction
In this case the plaintiff, Devonte S. Daley, alleges in his Fifth Amended Complaint claims of negligence and recklessness against a City of Hartford police officer, Zachary Kashmanian, as well as indemnification from the City pursuant to General Statutes § 7-465. The action arises out of an incident in which the plaintiff claimed that he was operating a motorcycle on a street in Hartford when the defendant Kashmanian, operating a grey Acura as part of a joint task force with the State and the City, accelerated towards the motorcycle operated by the plaintiff striking or nearly striking him and causing him to collide with a parked vehicle and as a result to sustain significant injuries. In his special defense, the defendant Kashmanian claims that he is immune from liability pursuant to General Statutes § 52-557n. The plaintiff replies to the defendant’s special defense that his claims against the defendant are not barred by governmental immunity because the defendant’s actions were ministerial in nature.
Prior to trial, the parties agreed that the indemnification claim against the City of Hartford made in the Fourth Count of the Fifth Amended Complaint would be addressed by the court after verdict, if a verdict was rendered for the plaintiff.
The action was tried to a jury on November 28, 29, 30, December 1, 5, 2017. At the close of evidence, the court granted the defendant Kashmanian’s motion for a directed verdict as to the recklessness claim made against him in the Second Count of the complaint and the plaintiff withdrew the Third Count of his complaint which claimed a violation of General Statutes § 14-295 against the defendant Kashmanian. Pursuant to the stipulation of the parties, it was agreed that the court would determine whether governmental immunity applied to the actions of the defendant, that is, whether, as a matter of law, the actions of the defendant were ministerial or discretionary. It was agreed that the matter would be submitted to the jury on the negligence claim, and, if a plaintiff’s verdict was rendered by the jury, the court would consider this issue post verdict. The case was then submitted to the jury only as to the First Count of the complaint which claimed negligence against Kashmanian. On December 5, 2017, the jury rendered a verdict for the plaintiff and awarded economic damages of $180,214.00 and non-economic damages of $236,000.00 for a total of $416,214.00. The jury also found that the plaintiff was 25% comparatively negligent.
In light of the jury having rendered a plaintiff’s verdict, the court ordered that it would address the reserved issue of governmental immunity. The defendants filed memoranda of law addressed to this issue on December 19 and 22, 2017. The plaintiff filed a reply memorandum on January 12, 2018. The court heard oral argument on the reserved issue on February 6, 2018.
Discussion
The plaintiff alleges in his complaint that on or about June 1, 2013, at approximately 12:24 a.m., he was operating a motorcycle north in the northbound lane of Sumner Street, north of its intersection with Asylum Avenue in Hartford, Connecticut. At the same time and place, the defendant Zachary Kashmanian was operating an unmarked grey 2005 Acura TL owned by the State of Connecticut, which was also traveling north on Sumner Street north of its intersection with Asylum Avenue. The complaint alleges that at all times the defendant Kashmanian was acting within the course and scope of his employment as a police officer for the City of Hartford Police Department. The plaintiff claims that at said time and place, the defendant Kashmanian accelerated the grey Acura TL police vehicle towards the motorcycle being operated by the plaintiff striking or nearly striking the motorcycle and causing the plaintiff to cross the south bound lane of Sumner Street into a parked vehicle, causing the plaintiff to sustain and suffer personal injuries and losses. The complaint alleges that the collision and the personal injuries and losses the plaintiff sustained were caused by the negligence and carelessness of the defendant Kashmanian in one or more of the following ways in that: a) he operated said vehicle at a rate of speed greater than is reasonable having regard to the width, traffic, and use of the highway, the intersection of streets, and weather conditions, in violation of § 14-218(a) of the Connecticut General Statutes; b) he failed to keep a proper and reasonable lookout for other vehicles upon the roadway, including the plaintiff’s motorcycle; c) he failed to have and keep his vehicle under proper and reasonable control; d) he failed to apply his brakes in time to avoid colliding with the plaintiff’s motorcycle, although by a proper and reasonable exercise of his facilities he could and should have done so; e) he failed to turn his vehicle so as to avoid colliding with the plaintiff’s motorcycle, although by a proper and reasonable exercise of his facilities he could and should have done so; 1) he violated Section 14-240(a) of the motor vehicle laws of the State of Connecticut in following the plaintiff more closely than is reasonable and prudent, having regard to the speed of such motorcycle, the traffic upon and the condition of the highway; and g) he violated Section 14-230 of the motor vehicle laws of the State of Connecticut in failing to operate a vehicle on the right side of the road.
The evidence presented at trial established that on June 1, 2013, shortly after midnight, the plaintiff met with eight to ten people to go motor bike riding. He had a yellow Suzuki which was not street legal and had no blinkers or lights. Around that same time, the defendant heard a call for a soft car, which is an unmarked car with no lights, sirens or police markings. A confidential informant had said a kid with a yellow dirt bike with a yellow tire had a gun. The defendant was directed to follow the bike. He was not in uniform. He followed the group of dirt bikes in which the plaintiff was riding. They were driving recklessly and ignoring traffic lights. He followed them on Asylum Avenue where another vehicle pulled out near him which resulted in defendant Kashmanian’s vehicle making contact with the other vehicle. Kashmanian stopped briefly but was told by his superior to continue his surveillance of the group of bikes. Kashmanian then followed the group of bikes as they turned from Asylum Avenue onto Summer Street. He saw the plaintiff in front of him and saw him hit a parked car and fly into the air. The plaintiff sustained serious injuries as a result. The plaintiff had no memory of the crash and the evidence was conflicting as to cause of the crash and whether the defendant’s vehicle had any contact with the plaintiff’s bike or what role the defendant’s actions played in the plaintiff’s collision with the parked car.
No interrogatories regarding liability were submitted to the jury or requested to be.
General Statutes § 52-557n provides: " (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."
The plaintiff also cites General Statutes § 52-556. That statute provides: " Any 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." The plaintiff argues that the enactment of this statute evidences some intention on the part of the legislature that a municipality should be subject to a similar liability, although the plaintiff admits no corresponding statute waiving municipal immunity in the same context exists. However, it is well settled that " the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." Williams v. City of New Haven, 243 Conn. 763, 766-67 (1998). Therefore, in the absence of a similar statute applicable to municipal employees operating a motor vehicle owned by the City, the court cannot conclude that the immunity of the City has been abrogated on the basis of General Statutes § 52-556.
General Statutes § 7-465 provides: " (a) 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 infringement of any person’s civil rights or for physical damages to person or property, except as set forth in this section, 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, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty ..."
" The law of this state regarding the liability of municipalities and their agents is well established. [Our Supreme Court] has previously stated that [a] municipality itself was generally immune from liability for its tortious acts at common law ... [The court has] also recognized, however, that governmental immunity may be abrogated by statute ... [Section] 52-557n(a)(1) provides in relevant part: Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer, or agent thereof acting within the scope of his employment or official duties ... [The court] previously [has] concluded that [t]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from torts committed by their employees and agents ... Subdivision (2) of § 52-557n(a), lists two exceptions to the statutory abrogation of governmental immunity ... Except as otherwise provided by law, a political subdivision 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 ... The statute thus distinguishes between discretionary acts and those that are ministerial in nature, with liability attaching to a municipality only for negligently performed ministerial acts, not for negligently performed discretionary acts ... The hallmark of a discretionary act is that it requires the exercise of judgment ... If by statute or other rule of law the official’s duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance ... [M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion ... In order to create a ministerial act, there must be a city charter, provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner ... 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 ... [T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city ... Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer ... 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. 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 benefits to be had from imposing liability for that injury ..." (Citations omitted; internal quotation marks omitted.) Texidor v. Thibedeau, 163 Conn.App. 847, 856-61 (2016).
Some courts have held that routine driving by a municipal employee is a minsterial duty. For example, in Williams v. City of New London, Superior Court, judicial district of New London at New London, Docket No. CV126012328S (Devine, J., April 7, 2014) , the court stated: " At the outset, the court notes that routine driving cannot be considered a purely discretionary function. That is because, for example, municipal employees cannot claim that they have discretion to run stop signs, ignore pedestrians in the crosswalk, or exceed the speed limit while driving through city streets. These rules of the road are ministerial duties to which everyone must adhere, even police officers and firefighters when not responding to emergencies. Of course, not all examples are this clear. The question thus becomes whether routine nonemergency driving is exclusively ministerial, or if it can be either discretionary or ministerial depending on the act or omission involved." The court in Williams cites Letowt v. City of Norwalk, 41 Conn.Supp. 402 (1989), also cited by the plaintiff, as well as many case which rely on the decision in Letowt, in support of its conclusion.
The following decisions, which concluded that ordinary driving of a motor vehicle involves a ministerial act, cited in Williams, rely on Letowt as well: Pelletier v. Petruck, Superior Court, judicial district of Hartford, Docket No. CV 07-5009064 (Dubay, J., September 10, 2008) ; Vilton v. Burns, Superior Court, judicial district of Waterbury, Complex Litigation Docket No. X06-CV 00-0169481S (Alander, J., June 22, 2004) ; and Dutlinger v. Stashenko, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91-0115366 (Rush, J., March 25, 1992) .
The Williams’ rationale appears to have been first adopted by our superior court in Letowt where the court stated: " The preferred approach or analysis, however, is the one used very recently by the Supreme Court of Rhode Island in Catone v. Medberry, 555 A.2d 328, 334 (R.I. 1989). After analyzing decisions in other states, as well as interpretations of the Federal Tort Claims Act, the Rhode Island court offered as the most practical guideline the distinction between activities that only a municipal employee may perform, as contrasted with those activities that any citizen may perform: ‘We therefore hold that when the government or its agent engages in an activity normally undertaken by private individuals in the course of their everyday lives, a duty arises under the common law to exercise reasonable care in the performance of this task. Governmental employees, like ordinary citizens, must operate their vehicles in a reasonable safe manner and avoid creating foreseeably unreasonable risks of harm to the motoring public.’ This distinction would mean that Blakely’s activities at the accident scene would be discretionary in nature and hence the municipality would not be liable for her negligence. For example, if she decided not to transport an injured person to the hospital or decided to measure skid marks, or engaged in any of the myriad activities that only a police officer would perform at the scene of an accident, she would be performing discretionary activities. Driving to the scene of an accident, however, is different. Ordinary citizens drive their cars every day, not just police officers, and hence the operation of a motor vehicle would be deemed ministerial."
This court finds the reasoning in Letowt unconvincing. Accord, Gordils v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 075012160S (Rittenband, J.T.R., 2009). First, a review of the Rhode Island case cited by the court, Catone v. Medberry, reveals that its conclusion that the plaintiff could sue the state regarding the death of his decedent as a result of a collision with a state truck, was based on the provisions of the Rhode Island Tort Claims Act, which the court noted was enacted after the Supreme Court of Rhode Island had abolished the common-law immunity conferred upon municipal and quasi-municipal corporations. The Rhode Island statute permits individuals to sue governmental units in the same manner as private individuals for injuries caused by the negligence of a state or local employee although the statute caps the available damages. The court noted that the statute was designed to constrain the doctrine of sovereign immunity. The legal framework in Connecticut is clearly not the same as that on which the decision in Catone was based. Connecticut has not abolished the common-law immunity of the state or its municipalities. " It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued." (Citation omitted; internal quotation marks omitted.) Giannoni v. Commissioner of Transportation, 322 Conn. 344, 348 (2016). " [T]he general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Citation omitted; internal quotation marks omitted.) J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC, 164 Conn.App. 508, 514 (2016). Second, municipal employees, as part of their duties, perform many activities that private citizens perform, for example, cook, clean, shovel snow, etc. To expand the liability of municipalities to include responsibility for the negligence of their employees in those instances would allow the exception to swallow the rule of immunity. Such a determination is inconsistent with our Supreme and Appellate Courts’ definition of ministerial duties and the scope of municipal immunity set forth in our General Statutes. " Statutes that abrogate or modify governmental immunity are to be strictly construed ... This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction ... The court is to go no faster and no further than the legislature has gone ... A legislative intention not expressed in some appropriate manner has no legal existence." (Citations omitted; internal quotation marks omitted.) Segreto v. City of Bristol, 71 Conn.App. 844, 849-50 (2002).
In Coley v. City of Hartford, 312 Conn. 150, 164-72 (2014), the Supreme Court stated: " We begin by observing the broad scope of governmental immunity that is traditionally afforded to the actions of municipal police departments. ‘[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 ... [Accordingly] [t]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city.’ (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988). In Gordon, we concluded that the city was immune from liability for injuries stemming from an alleged shortage of police patrols because the general deployment of police officers is a discretionary governmental action as a matter of law ... [B]ecause a police chief’s authority to assign his officers to particular duties is deemed a matter that concerns the public safety, he may not be deprived of his power to exercise his own discretion and judgment as to the number, qualifications and identity of officers needed for particular situations at any given time ... Although the issue in the present case does not concern the deployment of police officers generally, but rather the defendant’s alleged failure to adhere to specific police response procedures, we find Gordon instructive because it underscores the considerable discretion inherent in law enforcement’s response to an infinite array of situations implicating public safety on a daily basis ... The facts in the present case are undeniably tragic, and, understandably, the parties are left questioning whether anything more could have been done to prevent the realities that unfolded. It is, however, precisely because it can always be alleged, in hindsight, that a public official’s actions were deficient that we afford limited governmental liability for acts that necessarily entailed the exercise of discretion. We do not think that the public interest is served by allowing a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman’s discretionary professional duty. Such discretion is no discretion at all." Coley v. City of Hartford, 312 Conn. 150, 164-72 (2014).
More recently, the Appellate Court in Ventura v. Town of East Haven, 170 Conn.App. 388, 400-07, cert. granted, 325 Conn. 905 (2017), noted: " [m]unicipal 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 discretion 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 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 ... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts ... Thus, [u]nder § 52-557n(a)(1)(A), a municipality generally is liable for the ministerial acts of its agents. 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 ... The hallmark of a discretionary act is that it requires the exercise of judgment ... If by statute or other rule of law the official’s duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance ... [M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion ... [E]vidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive ... 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 ... We note that, because § 52-557n(a)(1) constitutes an abrogation of common-law governmental immunity, it must be strictly construed ... Our Supreme Court has concluded that for the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists ... Moreover, as stated, a plaintiff seeking to avoid the immunity typically afforded to police officers must demonstrate that by statute or other rule of law the official’s duty is clearly ministerial rather than discretionary ... The standard calls for a statute, rule, or ordinance to ‘clearly’ impose a ministerial standard so as to eliminate the possibility that the municipality waived immunity inadvertently, inconsistently, or ambiguously."
The court notes that neither the Supreme nor Appellate Court have held that, as to municipal police officers, motor vehicle laws impose ministerial duties upon them. Although the court in Kajic v. Marquez, Superior Court, judicial district of Hartford at Hartford, Docket No. HHDCV166065320S (Noble, J., August 16, 2017), found that certain mandates in those statutes, for example, to stop one’s motor vehicle at a red light, may be considered ministerial, 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.
" The difference between ministerial and discretionary duties, though, is not whether they must be performed in the first place. The difference is whether they can be ‘performed in a prescribed manner without the exercise of judgment or discretion .’ (Emphasis added; internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. at 318, 907 A.2d 1188." Parker v. Stadalink, Superior Court, judicial district of Waterbury, Docket No. UWYCV136020769S (Brazzel-Massaro, J., May 4, 2016) . Here also the statutory violations on which the jury was charged involve some exercise of discretion. The plaintiff claimed that the defendant was negligent in that he operated his vehicle at a rate of speed greater than is reasonable in violation of General Statutes § 14-218a. A reasonable speed is the speed at which a reasonably prudent person would travel under all of the circumstances. The plaintiff also claimed that the defendant violated General Statutes § 14-240(a) in following the plaintiff more closely than is reasonable and prudent, having regard to the speed of such motorcycle, the traffic upon and the condition of the highway. That statute requires that " [n]o driver of a motor vehicle shall follow another vehicle more closely than is reasonable and prudent, having regard for the speed of such vehicles, the traffic upon and the condition of the highway and weather conditions." " This reference to reasonable and prudent distance indicates it is discretionary." Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield, Docket No. FBTCV146042098 (Kamp, J., Sept. 1, 2015). Lastly, the plaintiff claimed that the defendant operated his vehicle in the southbound lane when he was traveling northbound forcing the plaintiff’s motorcycle into a parked car in violation of General Statutes § 14-230. That statute requires that vehicles be driven on the right side of a two-lane highway except in certain situations. Under the statute a driver may move from the right side of the highway: 1) when overtaking and passing another vehicle proceeding in the same direction; 2) when overtaking and passing pedestrians, parked vehicles, animals or obstructions on the right side of the highway; or 3) when the right side of a highway is closed to traffic while under construction or repair. Thus all the statutes referenced by the plaintiff involve some exercise of discretion and judgment by the operator of a motor vehicle and not the performance of a purely ministerial duty.
Nor is the manner in which one drives a car while conducting a police surveillance, as in this case, similar to those instances in which our appellate courts have held that a municipal employee violated a ministerial duty. In Wright v. Brown, 167 Conn. 464 (1975) the Court held that the dog warden was charged under [General Statutes § ]22-358 with the duty of quarantining a dog for fourteen days once she found that the dog had bitten a person who was not upon the premises of the owner or keeper of the dog. The court noted that " [w]hile the determination of that state of facts involved the exercise of judgment, the subsequent duty to quarantine for fourteen days was mandatory and, therefore, ministerial." In Soderlund v. Merrigan, 110 Conn.App. 389 (2008) the court held that the defendants had a minsterial duty to remove an arrest warrant from the statewide police computer system after the court had ordered the warrant vacated. In Wisniewski v. Town of Darien, 135 Conn.App. 364 (2012), the court held that based on the testimony of the Tree Warden himself, he had a ministerial duty to inspect when he received a complaint concerning a potentially hazardous tree.
This analysis does not mean that municipal employees are free to claim that they have discretion to run stop signs, ignore pedestrians in the crosswalk, or exceed the speed limit while driving through city streets, as the court in Williams, supra, suggests. The governmental immunity provided by General Statutes § 52-557n does not apply to the actions of a municipal " employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct." Nor do the indemnification provisions of General Statutes § 7-465 protect a municipal employee from damages which are " the result of any wilful or wanton act of such employee in the discharge of such duty ..."
The plaintiff claims that General Statutes § 14-283 provides the only exception to a police officer operating his vehicle contrary to the motor vehicle laws. That statute provides: " (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, including 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. 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 issue here, however, is not whether the police, in only certain circumstances can violate the motor vehicle laws, but whether the operation of a motor vehicle involves the exercise of discretion or the performance of a ministerial duty. Even as to the duty to drive safely set forth in General Statutes § 14-283 it has been held that the duty is discretionary and not minsterial. " Purely based on the text of the statute, the various duties to drive safely stated throughout § 14-283 are not ministerial because they are not defined to be performed in a prescribed manner. The statute does not state, for example, that emergency vehicle operators must not collide with other vehicles, people or property if they are disregarding traffic laws. The duties referenced in the statute impose general duties rather than mandate a particular response to specific conditions ... For example, § 14-283(d) states that the statute does not absolve emergency vehicle operators from the duty to drive with ‘due regard for the safety of all persons and property.’ The statute does not define or explain how to determine whether someone is driving ‘in due regard’ for safety. Similarly, § 14-283(b) is silent as to how to drive in manner that does not ‘endanger life or property’ or define what it means to slow down at intersections ‘to the extent necessary’ for safety. Instead, the phrases ‘due care,’ due regard,’ and ‘extent necessary’ strongly suggest that [emergency vehicle operators] must make a difficult discretionary determination. [They] must balance the need to proceed [in excess of traffic laws] ... to apprehend the suspect and thereby protect citizens with the need to proceed [safely] ... so that [they] or the suspect[s] [do] not cause injury to citizens." (Citations omitted; internal quotation marks omitted.) Parker v. Stadalink, Superior Court, judicial district of Waterbury, Docket No. UWYCV136020769S (Brazzel-Massaro, May 4, 2016) .
Therefore, for the reasons stated above, the court holds that the actions of the defendant Kashmanian in this matter involved the exercise of discretion and therefore he is entitled to immunity as to those acts pursuant to General Statutes § 52-557n. Consequently, the City is not liable pursuant to General Statutes § 7-465. " A claim for indemnification against a municipality under § 7-465 is entirely dependent upon establishing liability against a municipal employee." (Citation omitted.) Bonington v. Town of Westport, 297 Conn. 297, 316 (2010).
Conclusion
The court directs that the verdict of the jury be set aside and judgment be entered in favor of the defendants Kashmanian and the City of Hartford.