Opinion
No. 569339
January 24, 2005
MEMORANDUM OF DECISION RE:
MOTION TO DISMISS
FACTS
On May 5, 2004, the plaintiff Kemper Auto and Home Insurance Company, commenced this present action by filing a two-count complaint against the defendants, the state of Connecticut and Kerrie Perez. Count one of the complaint alleges negligence against the state of Connecticut pursuant to General Statutes § 52-556, and count two alleges recklessness against Kerrie Perez in her individual capacity. This action arises from a car accident that occurred in Voluntown, Connecticut. The complaint alleges that on November 29, 2003, a car owned by passenger Patricia Jackman and operated by Gary Czeczotka was traveling northbound on Ekonk Hill Road, and collided with a police cruiser, also traveling northbound on Ekonk Hill Road, owned by the state of Connecticut, and operated by Kerrie Perez, a state trooper.
General Statutes § 52-556 states: "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 complaint further alleges that Czeczotka activated his left turn signal, indicating his approach into the driveway of 587 Ekonk Hill Road, when suddenly and without warning, the police cruiser, operated by Perez, passed on the left and collided with the front driver's side of Jackman's vehicle. Additionally the complaint alleges that as a proximate result of the collision, Jackman suffered property damage to her vehicle. At the time of the collision, Jackman's vehicle was covered by an insurance policy issued by the plaintiff and pursuant to this policy, the plaintiff compensated Jackman for said property damage. The plaintiff now seeks reimbursement for these payments from the defendants in the amount of $16,704.50.
In count one of the complaint, the plaintiff alleges that Perez acted negligently and carelessly by: failing to keep a proper lookout, failing to keep her vehicle under reasonable and proper control, failing to operate her vehicle in a manner as not to cause other operators property damage, failing to timely apply her brakes, failing to control her vehicle in order to avoid the collision, operating her vehicle at an unreasonable rate of speed, failing to activate her siren or otherwise give notice of her approach to other operators in violation of General Statutes § 14-283(c), and improperly passing another vehicle in violation General Statutes § 14-232.
General Statutes § 14-283 in relevant part states:
(c) The exemptions herein granted 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.
General Statutes § 14-232 states:
Except as provided in sections 14-233 and 14-234, (1) the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the highway until safely clear of the overtaken vehicle; and (2) the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle and shall not increase the speed of his vehicle until completely passed by the over-taking vehicle.
No vehicle shall be driven to the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. Violation of any provision of this section shall be an infraction.
In count two of the complaint, the plaintiff alleges that Perez, in her individual capacity, acted recklessly thereby causing property damage to Jackman's vehicle. The complaint specifically alleges that said damage was caused by Perez when she recklessly operated her vehicle with reckless disregard to the width, traffic and roadways, and knowingly operated her vehicle at an excessive rate of speed in violation of General Statutes § 14-222. The complaint further alleges that Perez acted recklessly when she operated her vehicle with reckless disregard of statutory motor vehicle provisions thereby violating General Statutes §§ 14-218a, 14-222, 14-240, and such violations therefore constituted a substantial factor in the plaintiff's injuries and damages. Additionally, the complaint alleges that Perez acted recklessly when she failed to activate her siren or otherwise give notice of her approach in violation of General Statutes § 14-283 (c), and improperly passed Jackman's vehicle in violation of General Statutes § 14-232. The plaintiff seeks to recover monetary damages including double and treble damages pursuant to General Statutes § 14-295
General Statutes § 14-222 states:
(a) No person shall operate any motor vehicle upon any public highway of the state, or any road of any specially chartered municipal association or of any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or in any parking area for ten cars or more or upon any private road on which a speed limit has been established in accordance with the provisions of section 14-218a or upon any school property recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle, or the operation, downgrade, upon any highway, of any motor vehicle with a commercial registration with the clutch or gears disengaged, or the operation knowingly of a motor vehicle with defective mechanism, shall constitute a violation of the provisions of this section. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at a rate of speed greater than eighty-five miles per hour shall constitute a violation of the provisions of this section.
(b) Any person who violates any provision of this section shall be fined not less than one hundred dollars nor more than three hundred dollars or imprisoned not more than thirty days or be both fined and imprisoned for the first offense and for each subsequent offense shall be fined not more than six hundred dollars or imprisoned not more than one year or be both fined and imprisoned.
General Statutes § 14-218 (a) states:
(a) No person shall operate a motor vehicle upon any public highway of the state, or road of any specially chartered municipal association or any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any parking area as defined in section 14-212, or upon a private road on which a speed limit has been established in accordance with this subsection, or upon any school property, at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions. The State Traffic Commission may determine speed limits which are reasonable and safe on any state highway, bridge or parkway built or maintained by the state, and differing limits may be established for different types of vehicles, and may erect or cause to be erected signs indicating such speed limits. The traffic authority of any town, city or borough may establish speed limits on streets, highways and bridges or in any parking area for ten cars or more or on any private road wholly within the municipality under its jurisdiction; provided such limit on streets, highways, bridges and parking areas for ten cars or more shall become effective only after application for approval thereof has been submitted in writing to the State Traffic Commission and a certificate of such approval has been forwarded by the commission to the traffic authority; and provided such signs giving notice of such speed limits shall have been erected as the State Traffic Commission directs, provided the owner of such road. The presence of such signs adjacent to or on the highway or parking area for ten cars or more shall be prima facie evidence that they have been so placed under the direction of and with the approval of the State Traffic Commission. Approval of such speed limits may be revoked by said commission at any time if it deems such revocation to be in the interest of public safety and welfare, and thereupon such speed limits shall cease to be effective and any signs that have been erected shall be removed. Any speed in excess of such limits, other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable, but the fact that the speed of a vehicle is lower than such limits shall not relieve the operator from the duty to decrease speed when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. CT Page 1294
(b) The State Traffic Commission shall establish a speed limit of sixty-five miles per hour on any multiple lane, limited access highways that are suitable for a speed limit of sixty-five miles per hour, taking into consideration relevant factors including design, population of area and traffic flow.
(c) Any person who operates a motor vehicle at a greater rate of speed than is reasonable, other than speeding, as provided for in section 14-219, shall commit the infraction of traveling unreasonably fast.
See footnote 4.
General Statutes § 14-240 states:
(a) No 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.
(b) No person shall drive a vehicle in such proximity to another vehicle as to obstruct or impede traffic.
(c) Motor vehicles being driven upon any highway in a caravan shall be so operated as to allow sufficient space between such vehicles or combination of vehicles to enable any other vehicle to enter and occupy such space without danger. The provisions of this subsection shall not apply to funeral processions or to motor vehicles under official escort or traveling under a special permit.
(d) Violation of any of the provisions of this section shall be an infraction, provided any person operating a commercial vehicle combination in violation of any such provision shall have committed a violation and shall be fined not less than one hundred dollars nor more than one hundred fifty dollars."
See footnote 2.
See footnote 3.
General Statutes § 14-295 states:
In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property.
On August 18, 2004, Perez filed a motion to dismiss count two of the complaint with a supporting memorandum of law. The grounds for Perez' motion to dismiss count two of the complaint are that Perez is protected by the common-law doctrine of sovereign immunity and statutory immunity pursuant to General Statutes § 4-165. Thereafter, on August 23, 2004, the plaintiff filed a memorandum of law in opposition to the motion to dismiss. The motion to dismiss is presently before the court and is the subject of this memorandum. This matter was heard on the short calendar September 27, 2004.
General Statutes § 4-165 states:
No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment.
Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. For the purposes of this section "scope of employment" shall include, but not be limited to, representation by an attorney appointed by the Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as a special assistant public defender of an indigent accused or of a child on a petition of delinquency, representation by such other attorneys, referred to in section 4-141, of state officers and employees, in actions brought against such officers and employees in their official and individual capacities, the discharge of duties as a trustee of the state employees retirement system, the discharge of duties of a commissioner of Superior Court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, and the discharge of duties of a person appointed to a committee established by law for the purpose of rendering services to the Judicial Department including, but not limited to, the Legal Specialization Screening Committee, the State Wide Grievance Committee, the Client Security Fund Committee and the State Bar Examining Committee; provided such actions arise out of the discharge of the duties or within the scope of employment of such officers or employees. For purposes of this section, members or employees of the soil and water district boards established pursuant to section 22a-315 shall be considered state employees.
DISCUSSION CT Page 1283
The purpose of a motion to dismiss is to, "properly [attack] the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). The test for a motion to dismiss is "whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). Moreover, "subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) ABC, LLC v. State Ethics Commission, 264 Conn. 812, 822-23, 826 A.2d 1077 (2003). The court, "[i]n ruling upon whether a complaint survives a motion to dismiss . . . must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
The burden rests on "the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003). Moreover, "[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Lagassey v. State, supra, 268 Conn. 736.
Perez moves to dismiss count two of the complaint on the ground that the court lacks subject matter jurisdiction based upon statutory immunity and the common law doctrine of sovereign immunity. Perez maintains that statutory immunity precludes this claim because the allegations in the second count of the complaint fall short of describing "wanton, reckless or malicious" conduct as required pursuant to General Statutes § 4-165 Perez further maintains that the common law doctrine of sovereign immunity also precludes this claim because she was acting in her official capacity and the plaintiff does not allege that she was acting pursuant to an unconstitutional statute. In support of this ground, Perez argues that even though she is named in the complaint individually, the claim is more properly characterized as against Perez in her official capacity because at all times alleged in the complaint she was acting within and in furtherance of her state employment.
See footnote 11.
The plaintiff counters by arguing in its memorandum in opposition to the motion to dismiss that it has sufficiently pleaded a cause of action for recklessness against Perez thereby invoking the exception to the protection of statutory immunity. Furthermore, the plaintiff argues that the common law doctrine of sovereign immunity is inapplicable to bar this claim because the allegations in the complaint are against Perez individually and no reference is made to Perez in her official capacity. In support, the plaintiff argues that Perez is not protected under the doctrine of sovereign immunity because Perez in her own discretion failed to abide by the statutory rules of pursuit. Therefore, the plaintiff maintains that once Perez undertook her pursuit she was required to proceed under the mandates of the statutory rules of pursuit set forth in General Statutes § 14-283.
See footnotes 13, 14, 15.
Sovereign Immunity
The common law doctrine of sovereign immunity is well settled. The Connecticut Supreme Court has "long recognized the common-law principle that the state cannot be sued without its consent . . . [The court] also [recognizes] that because the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state . . ." The absolute bar of actions against the state on the ground of sovereign immunity has been modified by statute and by judicial decisions. Sovereign immunity does not bar suits against state officials [or agents] acting in excess of their statutory authority or pursuant to an unconstitutional statute . . . In addition, the state cannot use sovereign immunity as a defense in an action for declaratory or injunctive relief . . ." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 107-08, 856 A.2d 335 (2004). Furthermore, it has been recognized that a plaintiff may also "circumvent the doctrine of sovereign immunity [by showing] that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . ." (Citations omitted.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003).
In "determining whether and to what extent the defendants are shielded by the statutory immunity provided by § 4-165, it is appropriate to [first] determine whether the claims against them are barred by the common-law doctrine of sovereign immunity. " Shay v. Rossi, 253 Conn. 134, 162-63, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, 265 Conn. 301, 325-7, 828 A.2d 549 (2003). This order is important "because the statutory immunity provided by § 4-165 applies where sovereign immunity does not apply." Shay v. Rossi, supra, 164. Sovereign immunity bars actions against the state, however, "[i]f the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims." Miller v. Egan, supra, 265 Conn. 307. "The construction of a pleading is a question of law . . ." (Citation omitted.) Id., 308. "The determination of whether the plaintiff's complaint [alleges] claims against the [defendant] in [her] individual [capacity] is governed by the test set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975)." Id. Our Supreme Court in Spring v. Constantino, "set forth four criteria to determine whether an action is in effect one against the state which cannot be maintained without its consent . . . (Internal quotation marks omitted; citation omitted.) Id. "The vital test is to be found in the essential nature and effect of the proceeding." (Internal quotation marks omitted.) Id. "These four factors are: (1) Whether a state official has been sued; (2) Whether the suit concerns some matter in which that official represents the state; (3) Whether the state is the real party against whom relief is sought; (4) The judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." Dontigney v. Murphy, Superior Court, Judicial District of Hartford, Docket No. CV 04 0831316 (May 20, 2004, Hennessey, J.), citing Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975).
Applying these factors in the present case requires a step-by-step analysis. The first element, whether a state official has been sued is easily met in this case. It is undisputed that Perez is a defendant in this case and that she is a Connecticut state trooper. It has been established that "the essential characteristics of a public office are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government." (Internal quotation marks omitted.) Spring v. Constantino, supra, 168 Conn. 568. "A key element of this test is that the officer is carrying out a sovereign function." (Internal quotation marks omitted.) Id., 569. A state trooper has authority conferred by law, a fixed tenure and clearly exercises some sovereign functions of government, the enforcement of state laws. Therefore, because a state trooper is a state official, the first element of the Spring test is established.
The second element of the test whether the suit concerns some matter in which that official represents the state is also established. The present matter concerns an accident that occurred between a driver and a state trooper while she was responding to a burglar alarm. When a state trooper is acting within the scope of employment, that trooper is an official representing the state.
The third element of the test is whether the state is the real party against whom relief is sought. Analysis under this element requires scrutiny of the complaint because it has been established that "the right of a plaintiff to recover is limited by the allegations of [the] complaint . . ." (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 309. The court in Miller, while construing this element of the test, noted that "[n]owhere in the plaintiff's complaint did he allege that he was bringing an action against the defendants in their individual capacities. Instead . . . the complaint repeatedly alleged that the defendants acted in their official capacity." Id. The court, in its analysis, commented that "[t]he plaintiff could have responded, in his objection to the motion to dismiss, that his complaint brought claims against the individual defendants, not only in their official capacities, but also in their individual capacities, and could have argued that sovereign immunity was inapplicable to any individual capacity claims, but he did not do so." Id. In the present case, the plaintiff has alleged that it is bringing an action against Perez in her individual capacity and the plaintiff has labeled count two of the complaint, "recklessness claim against Kerrie Perez individually." Additionally, it is alleged in count two of the complaint that the damages were caused by the recklessness of Perez. Moreover, the plaintiff in count one of its complaint brings a claim against the state and in count two brings a claim against Perez individually. Furthermore, the plaintiff in its memorandum of law in opposition to the motion to dismiss argues that sovereign immunity is inapplicable to bar any individual capacity claims. Therefore, the plaintiff, in accordance with the analysis in Miller v. Egan, has asserted claims against Perez in her individual capacity in count two and in her official capacity in count one.
More conclusive of the fact that the state is not the real party against whom relief is sought is the fact that the complaint seeks relief from Perez in her individual capacity in addition to seeking relief from the state. Count two of the complaint alleges recklessness on behalf of Perez and seeks to hold her individually liable; therefore, the plaintiff is not seeking relief solely from the state. See Miller v. Egan, supra, 265 Conn. 310. Additionally, because the plaintiff's claim rests in recklessness, the plaintiff is not required to get permission from the claims commissioner in order to bring a claim against the state or state official/employee. This further establishes that the relief sought is not against the state. See Epstein v. Jalbert, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV93 0525834 (September 9, 1997, Wagner, JTR.). This court finds that the real party against whom relief is sought is Perez individually and not the state; therefore, the third element of the Spring test has not been established.
Furthermore, the fourth element, whether the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability, is not established in this case. It is important to note that because this claim is grounded in recklessness the state indemnification statute is inapplicable. The state's indemnification statute codified in General Statutes § 5-141d (a) states in relevant part that "[t]he state shall save harmless and indemnity any state officer or employee . . . from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence . . . resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious." (Emphasis added; internal quotation marks omitted.) Mendela v. O'Hanlon, Superior Court, judicial district of New Britain, Docket No. CV 04 0524888, n. 2 (May 27, 2004, Robinson, J.), quoting General Statutes § 5-141d (a). As a result of the inapplicability of § 5-141d (a) a judgment issued in favor of the plaintiff on count two in this case will cause Perez to be individually liable, not the state. Accordingly, count two of the plaintiff's complaint reasonably may be construed as bringing claims against the defendant in her individual capacity and therefore these claims are not banned by the doctrine of sovereign immunity.
Statutory Immunity
Having concluded that the defendant is not entitled to dismissal on the basis of sovereign immunity, this court must next determine whether the defendant is entitled to the statutory immunity provided by General Statutes § 4-165. See Shay v. Rossi, supra, 253 Conn. 180. "Section 4-165 of the Connecticut General Statutes concerns statutory immunity of state officers and employees from personal liability." Colon v. Malcolm, Superior Court, judicial district of New Haven, Docket No. CV 00 0439285 (December 18, 2003, Robinson, J.). General Statutes § 4-165 provides in relevant part: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment." Our Supreme court in Miller v. Egan, supra, 265 Conn. 301, examined § 4-165 and provided guidance in its interpretation and application. The court in Miller explained that under § 4-165, "state employees may not be held personally liable for their negligent actions performed within the scope of their employment. This provision of statutory immunity to state employees has a twofold purpose. First, the legislature sought to avoid placing a burden upon state employment. Second, § 4-165 makes clear that the remedy available to plaintiff's who have suffered harm from the negligent actions of a state employee who acted in the scope of his or her employment must bring a claim against the state under the provisions of this chapter, namely chapter 53 of the General Statutes, which governs the office of the claims commissioner."
"State employees do not, however, have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 319, 828 A.2d 549 (2003). The plaintiff argues in its memorandum in opposition to the motion to dismiss that Perez is not entitled to statutory immunity under § 4-165 because the complaint sufficiently pleaded a cause of action for recklessness. The plaintiff argues that the complaint alleges facts sufficient to constitute wanton, reckless or malicious conduct by Perez, thereby satisfying the exception to statutory immunity. The plaintiff in count two of the complaint alleges that Perez was reckless by operating her vehicle with reckless disregard to the width, traffic and roadway, knowingly operating her vehicle at an excessive rate of speed, knowingly violating and disregarding motor vehicle provisions, making an illegal pass, and failing to activate her siren or otherwise give notice of her movements. Perez in her memorandum in support of the motion to dismiss, counters that the complaint falls well short of describing conduct that is wanton, reckless or malicious thereby entitling her to the protections afforded by statutory immunity. Perez argues that the nature of the conduct alleged at most constitutes negligent conduct but does not rise to the level of reckless conduct.
In Shay v. Rossi, supra, 253 Conn. 134, our Supreme Court defined the meaning of the language "wanton, reckless or malicious" in § 4-165 as identical to "wanton, reckless, willful, intentional or malicious" conduct in the common law context. See Hanrahan v. Egan, Superior Court, judicial district of New London, Docket No. 559287 (August 2, 2002, Hurley, J.T.R.). The Supreme Court held that "[i]n order to establish that the defendants' conduct was wanton, reckless, willful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . We see no reason to give a different meaning to that phrase as used in § 4-165." (Citations omitted; internal quotation marks omitted.) Shay v. Rossi, supra, 253 Conn. 181-82.
Applying this standard to the present case, this court finds that the plaintiff's complaint, taken in the light most favorable to the plaintiff, sufficiently alleges facts that if proven could support a conclusion that Perez' conduct was reckless. As stated above, the plaintiff's complaint alleges that Perez was reckless by operating her vehicle with reckless disregard to the width, traffic and roadway, knowingly operating her vehicle at an excessive rate of speed, knowingly violating and disregarding motor vehicle provisions, making an illegal pass, and failing to activate her siren or otherwise give notice of her movements. This court finds that Perez, although on route to respond to a burglar alarm, was nonetheless under a duty to properly warn others of her high speed approach in accordance with the mandates of General Statutes § 14-283. General Statutes § 14-283, entitled "Rights of emergency vehicles," allows exemptions from various motor vehicle provisions for emergency vehicles while responding to emergency calls. Under the § 14-283 (c) these exemptions are allowed for "any state or local police vehicle properly and lawfully making use of an audible warning signal device . . ." In this case, the plaintiff alleges that Perez did not activate her siren or otherwise provide any warning to motorists. This court finds that the alleged motor vehicle violations in a residential area, in conjunction with the failure to make use of an audible warning device as required by law or even to provide any warning, if proven, would support a cause of action for recklessness. These alleged deliberate acts, if proven, could support a conclusion that Perez acted with a state of consciousness amounting to more than negligence and more than gross negligence. Although the law provides exemptions for emergency vehicles responding to emergency calls, Perez was still obligated to warn other motorists and was not relieved "from the duty to drive with due regard for the safety of all persons and property." General Statutes § 14-283 (d). Based on the allegations of the complaint, thiscourt finds that Perez is not entitled to statutory immunity pursuant to General Statutes § 4-165.
General Statutes § 14-283(b) states:
(b) The operator of any emergency vehicle may (1) park or stand such vehicle, irrespective of the provisions of this chapter, (2) 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, (3) 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 (4) disregard statutes, ordinances or regulations governing direction of movement or tuning in specific directions.
General Statutes § 14-283(a) states in relevant part: "[A]ny state or local police vehicle operated by a police officer or inspector of the Department of Motor Vehicles answering an emergency call . . ."
General Statutes § 14-283(c) states:
(c) The exemptions herein granted 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.
(Emphasis added.)
CONCLUSION
For the reasons set forth above, this court finds that Perez is not shielded by the common-law doctrine of sovereign immunity or statutory immunity pursuant to General Statutes § 4-165; therefore, the motion to dismiss count two of the complaint is hereby denied. Because of the conclusion that the defendant is not immune from suit, this court will not address any claim for double and treble damages under General Statutes § 14-295.
D. Michael Hurley JTR