Opinion
CV156057054S
03-13-2019
Antonio Walker v. John Folch et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION
Wilson, J.
I
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Antonio Walker commenced this negligence action against the defendants, John Folch and the city of New Haven, by service of writ, summons and complaint. The return date is September 22, 2015, and the complaint was returned to court on September 9, 2015. The complaint was brought in three counts. Count one alleges negligence against the defendant Folch, a New Haven police officer, as a result of a collision that took place between a police cruiser that was operated by Folch and a bicycle ridden by the plaintiff. Count two, which is brought pursuant to General Statutes § 7-465, is directed against the defendant city of New Haven and alleges an indemnity claim based upon the alleged negligence of officer Folch. Count three which was withdrawn at trial, alleged a property damage claim.
On October 22, 2015, the defendants filed an answer and two special defenses. In their answer, the defendants denied the material allegations of the plaintiff’s complaint. In their first special defense, the defendants alleged that the proximate cause of the collision and alleged injuries and damages, was the result of the plaintiff’s own negligence. In their second special defense, the defendants claim that officer Folch is immune from liability because at the time of the alleged incident, he was a municipal employee acting within the course and scope of his employment, and that his actions required the exercise of judgment and discretion. The defendants further alleged that if officer Folch is not liable to the plaintiff, then the defendant city is also not liable.
On October 28, 2015, the plaintiff filed his reply denying the defendants’ special defenses. The case was tried to the court on September 26, 2018, and the court ordered the parties to file proposed findings of fact and briefs by November 13, 2018.
II
STANDARD OF REVIEW
"It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony ... The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence ..." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). "The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906 (2005).
"The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct." Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). "[T]he trier of fact’s assessment of the credibility of ... witnesses ... is made on the basis of its firsthand observation of their conduct, demeanor and attitude ... The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). "It is well established that [t]he trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what— all, none, or some of— a witness’ testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
III
BURDEN OF PROOF/STANDARD OF PROOF
The burden of proof is on the plaintiff to prove all of the essential allegations of his complaint. See Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). "While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant[s] need not present any evidence to contradict it ... The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of his cause of action by a fair preponderance of the evidence." Gulycz v. Stop and Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id. In Connecticut, "[a] special defense is an affirmative defense that must be proven by the defendant." (Internal quotation marks omitted.) Caciapoli v. Lebowitz, Superior Court, judicial district of New Haven, Docket No. CV 08 5020658 (March 4, 2010, Berdon, J.T.R.). Like the plaintiff, the defendants must prove all of the essential elements of their affirmative defense by a fair preponderance of the evidence.
IV
FINDINGS OF FACT
The court finds the following facts by a fair preponderance of the evidence presented. The city of New Haven, as required by statute, General Statutes § 14-283a has a pursuit policy which is set forth in general order 302 and which governs all police pursuits in the city of New Haven.
General Statutes § 14-283a provides: "Adoption of state-wide policy for pursuits by police officers. Reports.
On August 9, 2014, shortly before 6:27 p.m., the defendant, officer Folch and his partner, officer David Portela, were at a substation of the New Haven Police Department, located at the corner of Winchester Avenue and Hazel Street in New Haven, Connecticut. While at the substation, the officers heard on the radio dispatch, that there was a motor vehicle pursuit involving New Haven and Hamden police. The pursuit terminated when the vehicle that was being pursued crashed into a fence, the location of which was initially reported to be at or near the intersection of Newhall Street and Hazel Street. This report turned out to be erroneous. The collision of the pursued vehicle actually occurred at or near the intersection of Newhall and Ivy streets.
Defendant Folch also heard on the radio dispatch that three of the occupants of the collided vehicle, which was stolen, were in custody, but that another individual, who was described as a tall, black male, was running on Hazel Street toward Winchester Avenue with a gun in his hand. This individual, based upon this information, would have been running directly toward the location of defendant Folch and officer Portela. Folch and Portela exited the substation, to meet the threat, however, they did not see anyone running down Hazel Street towards Winchester Avenue.
The defendant and officer Portela entered their police cruiser in an attempt to determine where the crash took place. Officer Folch, after driving a short distance on Winchester Avenue, toward Hamden, looked left down Ivy Street, and approximately one block away, at or near the intersection of Ivy and Newhall streets, observed a large amount of police officers and a large crowd of people, approximately 30-50 people gathered on the sidewalk. The crash actually took place on Ivy Street, just a bit into Newhall on the left hand side of the street. As Folch approached the area, he could observe officer Boyle, another New Haven police officer, trying to transmit on the radio, but a lot of chaos was going on. Folch observed the plaintiff’s brother who was located in the police cruiser, and could also observe the plaintiff who was in the middle of the street, a little off from the crowd, screaming and yelling obscenities and threats in the direction of officer Boyle. Officer Folch heard the plaintiff screaming at officer Boyle that he better not "f— ing touch [his] brother, I’m going to murk you you white mother f— er, better not touch my brother, I swear to God." While screaming, the plaintiff was flailing his hands. The plaintiff appeared to be very agitated. Folch told the plaintiff to go home, however the plaintiff refused to listen. Considering the entire situation, Folch characterized the plaintiff as overreacting and his behavior to be totally out of control. The plaintiff’s brother who was a juvenile at the time, was in the cruiser and nothing was happening to him. The plaintiff was the only animated individual. There was crowd noise which Folch and Portela were able to control, but the plaintiff was screaming over the crowd, and the more he screamed, the more the crowd stood to see the show which prevented Folch from getting the crowd to move back out of the street. After Folch told the plaintiff to go home, the plaintiff refused to listen, and continued to scream at officer Boyle. After Folch got the crowd under control a bit, he advised the plaintiff "that’s enough you’re going to jail." The plaintiff put his hands behind his back and started to back pedal toward Newhall Street. When the plaintiff put his hands behind his back, Folch is already on high alert, because the initial dispatch indicated there was a gun in place, and Folch doesn’t know if the plaintiff has a gun or if someone in the crowd has a gun. The plaintiff was backing up Ivy towards Newhall Street. Folch started to walk towards the plaintiff, informing the plaintiff that he was under arrest. The plaintiff did not comply, but instead took off running down Newhall Street. At that point, Folch jumps into the police cruiser in pursuit of the plaintiff, because the plaintiff has about a block on him. Officer Portela is on the passenger side and Folch immediately activates his lights, hits the air horn and gets on the PA system commanding the plaintiff to stop and informing him that he is under arrest.
"Murk" is slang for "kill" or "injure."
The plaintiff continues running at a decent speed and when he gets to the corner of Newhall and Lilac, he pushes a kid off of his bike, takes the bike and continues on the bike onto Newhall Street at which point he blows thru the red light at Newhall and Bassett. Folch then hits his horn and turns on the siren to alert cars that he is coming and that the plaintiff is coming so that the plaintiff doesn’t get hit. Folch starts to pass Newhall and Bassett and approaches Huntington at which point the plaintiff begins to pick up speed. Folch is coasting, he is not on the engine, and is about fifteen to seventeen feet behind the plaintiff, and on the PA system commanding the plaintiff to stop. As Folch approaches Huntington, the plaintiff has a little speed, starts to turn right onto Huntington without any signal. As Folch starts to turn onto Huntington to follow the plaintiff, the plaintiff pivots the bike left, without signal, and cuts back in front of the cruiser, at which point Folch slams on the brakes, but could not avoid striking the rear tire of the bicycle. The impact was at a low speed. The bike goes down, plaintiff comes off of the bike, so he’s a little bit in the air, rolls off, jumps up and yells "F— k you mother f— er," and then starts to run on Huntington Street toward Winchester Avenue, at which point Folch gets out of the cruiser and commands the plaintiff to stop. The plaintiff responds, "Nah I got you mother f— er" and continues to run through backyards, jumping at least one fence at which point Folch and Portela lost sight of him. Folch and Portela then drove to the plaintiff’s residence on Winchester Avenue to wait for the plaintiff. The plaintiff did not return to his residence after eluding the police. It took two telephone conversations to convince the plaintiff to come home. In one of the conversations, which was with Folch, the plaintiff was laughing, and bragged that Folch did not catch him. Folch told the plaintiff that the plaintiff fell off
the bike, that he was going to call an ambulance, and that the plaintiff needed to come back to get checked out. The plaintiff refused and told Folch he did not trust him. Folch then asked the plaintiff’s girlfriend to call the plaintiff, she called the plaintiff who said he would not come back if Folch was going to arrest him. Folch told the girlfriend to tell the plaintiff that he would arrest the plaintiff by summons if he comes back and gets medically checked out. The girlfriend calls the plaintiff, and Folch then observed the plaintiff walking down the street back to the residence and walking without any problems. The plaintiff sees the ambulance and the sergeant, and when he gets about ten to fifteen feet from Folch, yells that Folch tried to kill him, collapses to the ground and then starts to vomit. Folch observed the ambulance personnel assist the plaintiff off the ground and the plaintiff walk on his own without incident to the ambulance.
From the Newhall Street/Ivy Street intersection where the defendant Folch and officer Portela began to follow the plaintiff in their cruiser, to the Newhall Street/Huntington Street intersection where the cruiser struck the bicycle being ridden by the plaintiff, the distance is only three blocks. From the Newhall Street/Ivy Street intersection to the approximate intersection of Newhall Street with Lilac Street, the plaintiff was on foot. From the approximate intersection of Newhall Street with Lilac Street to the Newhall Street/Huntington Street intersection, a distance of two blocks, the plaintiff was riding a bicycle. During the pursuit of the plaintiff on the bicycle, the police cruiser being operated by defendant Folch, was coasting and never gained on the plaintiff until the cruiser made actual contact with the bicycle, when the plaintiff pivoted back in front of the cruiser.
The plaintiff was treated at Yale New Haven Hospital Emergency Department on the night of the incident and released. This is the only documented treatment that the plaintiff received for this incident. The emergency room records indicate that the plaintiff was noted to have a puncture to the right testicle with a small amount of blood, abrasions to the right scapula, right arm, left lower leg and right ankle. Urology cleared the plaintiff and opined that the laceration did not cross into the scrotum. The plaintiff was able to void in the emergency room and no follow up was necessary per urology.
The plaintiff underwent a CT scan of the brain and cervical spine. There was no evidence of intracranial abnormality and no evidence of fracture or subluxation of the cervical spine. The plaintiff also underwent a CT scan of the chest, abdomen and pelvis which showed no evidence of acute traumatic injury to the chest, abdomen or pelvis and no evidence of acute traumatic injury to the thoracic or lumbar spine.
The court will make additional findings of facts as necessary in determining the merits.
V
LIABILITY
A
Governmental Immunity
The defendants in the present case claim that the defendant Folch and the city of New Haven are entitled to immunity from liability on the plaintiff’s claims of negligence because the defendant Folch’s conduct involved the exercise of discretion in the performance of his duties on behalf of the city. The plaintiff has alleged that defendant Folch was negligent in that he pulled into the path of the bicycle when he knew or should have known that such action would cause harm; he pulled into the path of the bicycle operated by the plaintiff without considering the danger of his actions; he was inattentive and failed to properly operate his police cruiser in a safe and prudent manner; he operated his motor vehicle at a rate of speed that was unreasonable, improper and excessive under the circumstances; he violated Connecticut General Statutes § 14-240 in that he followed the plaintiff more closely than was prudent or reasonably to do so; he failed to slow his vehicle while approaching the intersection of Newhall Street and Huntington Street; he failed to activate the audible warning device on his New Haven Police Department vehicle as required by Reg. Conn. State Agencies § 14-283a-4(b)(2); and that even though Folch knew, or in the exercise of reasonable care should have known that his manner of driving would probably cause injury, he did not take corrective action by either turning his vehicle to the left or the right, or decelerating by putting on his brakes when a collision with intersection traffic was likely to occur.
The plaintiff further claims that in applying the factors that General Order 302.4 states should be considered by a police officer when deciding whether to initiate a pursuit, those factors weighed against defendant Folch’s pursuit of the plaintiff. The plaintiff argues that because these factors weighed against pursuing the plaintiff, the defendants cannot claim that Folch’s alleged negligent operation of the police cruiser is shielded by governmental immunity because they exercised discretion and sound judgment in pursuit of the plaintiff. The plaintiff also claims that Folch violated General Order 302.4(B) in that while he and officer Portela were engaged in the pursuit of the plaintiff Folch failed to operate the police cruiser "with regard for the safety of persons and property."
Based upon the testimony of the witnesses, Folch and Portela clearly were in pursuit of the plaintiff. "The [common-law] doctrines that determine the tort liability of municipal employees are well established ... Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ... Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ... The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion ... Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official 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 the 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, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts ... The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides that [e]xcept as otherwise provided by law, a political 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 ... Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law ..." (Internal quotation marks omitted.) Faulkner v. Daddona, 142 Conn.App. 113, 119-20, 63 A.3d 993 (2013).
"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." (Internal quotation marks and citation omitted.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011).
"The determination by a police officer whether to commence a ... pursuit of a fleeing law violator is unquestionably a matter of judgment. It depends on a multitude of factors including the seriousness of the offense, the potential danger to the public of engaging in pursuit, the potential danger to the public of the suspects remaining at large and the surrounding conditions, including weather conditions, traffic conditions, road conditions and the condition of the vehicles. See, e.g., Uniform Statewide Pursuit Policy, Regs., Conn. State Agencies § 14-283a-4(a) ... Accordingly, it is a decision that is discretionary and for which governmental immunity applies. See Docchio v. Bender, Superior Court, judicial district of Waterbury, Docket No. CV 98-01460145 (Aug. 15, 2002, Holzberg, J.) ; Nunez v. VPSI, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0347902 (February 20, 2001, Melville, J.) ; and Boone v. Mills, Superior Court, judicial district of Litchfield, Docket No. 0051318 (October 17, 1990, McDonald, J.) . See also County of 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’) (footnote omitted)." Dudley v. City of Hartford, Superior Court, judicial district of Hartford, Docket No. CV0950337678 (July 24, 2013, Scholl, J.). This court does not disagree with this analysis and therefore, as to the defendant Folch’s and officer Portela’s decision to initiate the pursuit of the plaintiff in the present case, the defendants are entitled to qualified immunity.
The plaintiff was the only person animated at the scene of the stolen car crash and was preventing other police officers from controlling the crowd and doing their job at the scene. Notwithstanding officer Folch’s repeated instructions to leave the area, the plaintiff remained at the scene and continued to scream obscenities and threats at the officers. Because the plaintiff failed to heed officer Folch’s instructions, Folch was left with no other choice but to place the plaintiff under arrest. At this time the plaintiff attempted to evade the arrest by back peddling down Ivy Street and reached behind his back and made a physical gesture. When the plaintiff put his hands behind his back, both defendant Folch and officer Portela were concerned that the plaintiff was in possession of a gun. They both were already on high alert due to the prior dispatch of someone running down Hazel Street with a firearm. Although defendant Folch and officer Portela did not observe anyone with a gun when they exited the substation after the dispatch, they felt that they could not take a chance that the plaintiff, or someone in the crowd did not have a gun. Given the crowd that had gathered at the scene, the plaintiff’s animated and threatening behavior at the scene, his conduct when he attempted to evade the arrest by back peddling with his hands behind his back, and the totality of the circumstances, both defendant Folch’s and officer Portela’s decision to pursue the plaintiff and their attempt to apprehend him involved discretionary acts which shields the defendants from liability.
As previously noted, the plaintiff claims that Folch violated General Order 302.4(B) and was negligent in that while he and officer Portela were engaged in the pursuit of the plaintiff Folch failed to operate the police cruiser "with regard for the safety of persons and property."
The language in general order 302.4(B) which provides that "[w]hen engaged in a pursuit, all officers shall drive with regard for the safety of persons and property" clearly implies the use of judgment. "[T]he phrases ‘due care’ [and] ‘due regard’ ... strongly suggest that the officer must make a difficult discretionary determination. He must balance the need to proceed at a fast speed in order to apprehend the suspect and thereby protect citizens with the need to proceed at a safe speed so that he or the suspect does not cause injury to citizens. Moreover, based on Coley and Faulkner the court believes that the question is not whether the statutes are clearly discretionary, but rather whether they clearly create a ministerial duty. Due care is a highly subjective standard dependent on the conditions in which the police officer finds himself ..." Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield, Docket No. FBTCV-146042098 (September 1, 2015, Kamp, J.). Moreover, "the general orders which the plaintiff claims to have been violated are replete with directives to officers to take ‘appropriate’ action, as ‘necessary’ or ‘reasonable’ in the attending circumstances, rather than prescribing a single, unalterable method for [engaging in a pursuit]. Such directives describe duties whose performance requires the exercise of judgment and discretion, for which ... [defendant Folch] is entitled to governmental immunity." (Citations omitted; internal quotation marks omitted.) Id. Here, since the defendant’s operation of the cruiser when engaged in a pursuit requires the exercise of judgment, his actions are immune.
Likewise, the plaintiff’s claim that defendant Folch violated Regs. Conn. State Agencies § 14-283a-4(b)(2) by failing to activate the audible warning device on his police cruiser must also fail since whether to do so requires the exercise of judgment. Section 14-283a-4(b)(2) provides in relevant part that "[u]pon engaging in or entering into a pursuit, the pursuing vehicle shall activate appropriate warning equipment. An audible warning device shall be used during all such pursuits." In Faulkner v. Daddona, supra, 142 Conn.App. 113, the Appellate Court considered whether a police officer had any ministerial duties when securing an accident scene to prevent further accidents. Id., 115-16. "[T]hirteen of the plaintiff’s twenty allegations against [the officer] involved his alleged failure to enforce state statutes; and five involved his alleged failure to comply with provisions of the Watertown police department general orders." (Footnotes omitted.) Id., at 121-22. The Appellate Court stated that "[t]he fact that a claim is based upon a defendant’s alleged failure to enforce a statute, however, does not, in and of itself, make enforcement of that statute a ministerial duty. See Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982). 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." Faulkner v. Daddona, supra, at 122-23. Regarding the Watertown police department general orders, the Appellate Court stated: "No such provision prescribes the particular manner in which an officer must always secure an accident scene. This, of course, is because all accident scenes are different from one another, and in fact are so different as to require that different measures be taken to secure them. Consistent with this reality, even the general orders which the plaintiff claims to have been violated are replete with directives to officers to take ‘appropriate’ action, as ‘necessary’ or ‘reasonable’ in the attending circumstances, rather than prescribing a single, unalterable method for securing the scene. Such directives describe duties whose performance requires the exercise of judgment and discretion, for which the officer is entitled to governmental immunity." (Footnote omitted.) Id., 123. Here, officer Folch’s decision when to activate the audible warning device on his police cruiser while in pursuit of the plaintiff, required the exercise of judgment. Regulation § 14-283-4(b) does not prescribe the manner in which an officer must always activate his or her warning device because not all pursuits are the same. Indeed, all pursuits are different from one another, and in fact are so different as to require that different measures be taken when engaged in them. Whether and how to activate warning devices and sirens while engaged in a police pursuit necessarily requires an examination of the surrounding circumstances and a determination as to when such warning device should be activated, and appropriate in those circumstances. Such a decision thus invariably involves the exercise of judgment and discretion and as such, discretionary immunity applies.
In addition, all of the plaintiff’s allegations of negligence alleged against the defendant require the exercise of discretion. The plaintiff alleges that Folch was negligent in the operation of his cruiser in that he pulled into the path of the bicycle when he knew or should have known that such action would cause harm; he pulled into the path of the bicycle operated by the plaintiff without considering the danger of his actions; he was inattentive and failed to properly operate his police cruiser in a safe and prudent manner; he operated his motor vehicle at a rate of speed that was unreasonable, improper and excessive under the circumstances; he violated Connecticut General Statutes § 14-240 in that he followed the plaintiff more closely than was prudent or reasonably to do so; he failed to slow his vehicle while approaching the intersection of Newhall Street and Huntington Street; and that even though the defendant knew, or in the exercise of reasonable care should have known that his manner of driving would probably cause injury, he did not take corrective action by either turning his vehicle to the left or the right, or decelerating by putting on his brakes when a collision with intersection traffic was likely to occur.
A reasonable speed is the speed at which a reasonably prudent person would travel under all of the circumstances. This reference to a speed which a reasonably prudent person would travel under all of the circumstances requires the exercise of judgment. Likewise, the plaintiff’s allegation 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 vehicle, the traffic upon and the condition of the highway also requires the exercise of judgment. 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). Accordingly, as all of the plaintiff’s allegations of negligence against defendant Folch require the exercise of discretion and judgment, his actions are immune from liability.
There are "three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official’s duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity— to encourage municipal officers to exercise judgment— has no force ... First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure ... Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ... Third, liability may be imposed 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." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006). "This identifiable person-imminent harm exception has three requirements: (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 the victim to that harm ... All three must be proven in order for the exception to apply." Haynes v. Middletown, 314 Conn. 303, 312-13, 101 A.3d 249 (2014). The plaintiff in the present case has neither pled nor proven that he fits within any of the exceptions to discretionary act immunity. As such, the court again concludes that the defendant Folch’s conduct is protected by discretionary act immunity.
B
Count Two: Indemnification § 7-465
The second count of the plaintiff’s complaint is against the city of New Haven pursuant to the indemnification statute, § 7-465." ‘Section 7-465(a) effectively circumvented the general common-law immunity of municipalities from vicarious liability for their employees’ acts by permitting injured plaintiffs to seek indemnification from a municipal employer for such acts under certain circumstances ...’ (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010). Section 7-465 provides in relevant part: ‘(a) Any town, city or borough, notwithstanding any inconsistent provision of law ... 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, 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.’
" ‘A claim for indemnification against a municipality under § 7-465 is entirely dependent upon establishing liability against a municipal employee.’ Bonington v. Westport, supra, 297 Conn. at 316. Thus, ‘in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality’s employment relationship with that individual.’ Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); see also Martyn v. Donlin, 148 Conn. 27, 32, 166 A.2d 856 (1961) (when asserting claim under § 7-465, ‘[t]he complaint should be in two counts: the first, alleging the facts essential to the legal liability of the employee, and the second, the facts essential to the legal liability of the municipality under the statute’)." Jurgilewicz v. Sita, Superior Court, judicial district of New Haven, Docket No. CV-13-6036859S (December 20, 2013, Wilson, J.). Since the plaintiff has failed to establish liability on the part of defendant Folch, his claim against the city of New Haven pursuant to § 7-465 must fail.
C
Proof of Negligence
Even if this court were to conclude that discretionary act immunity does not apply to defendant Folch’s conduct, the plaintiff has failed to prove by a preponderance of the credible evidence that defendant Folch was negligent in the operation of his police cruiser. The plaintiff alleged a number of ways in which the defendant Folch was negligent in the operation of his police cruiser. The plaintiff claims that Folch pulled into the path of his bicycle when he knew or should have known would cause harm to’ the plaintiff; that he pulled into the path of the bicycle being ridden by the plaintiff without considering the danger of his action; that defendant Folch was inattentive and failed to properly operate the police cruiser in a safe and prudent manner; that defendant Folch was traveling at a rate of speed that was unreasonable, improper and excessive under the circumstances; that defendant Folch followed the plaintiff more closely than was prudent or reasonable in violation of General Statutes § 14-240; that he failed to slow his cruiser as he approached the intersection of Newhall Street and Huntington Street; that there was a failure to activate an audible warning device on the police cruiser as required by Regs. Conn. State Agencies § 14-283a-4(b)(2); and that even though defendant Folch knew, or in the exercise of reasonable care should have known, that his manner of driving would probably cause injury he failed to take corrective action such as turning his cruiser to the left or to the right, or braking when a collision was likely to occur.
The" ‘essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.’ (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004). ‘To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries ... The first component of legal cause is causation in fact. Causation in fact is the purest legal application of ... legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct ... The second component of legal cause is proximate cause ... [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries ... Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants’ conduct] ... The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ... This causal connection must be based upon more than conjecture and surmise.’ (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999). ‘An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm ... The finding of actual cause is thus a requisite for any finding of proximate cause.’ (Citations omitted; internal quotation marks omitted.) Boehm v. Kish, 201 Conn. 385, 391-92, 517 A.2d 624 (1986)." Winn v. Posades, 281 Conn. 50, 56-57, 913 A.2d 407 (2007).
The plaintiff failed to produce any credible evidence that defendant Folch was negligent in the operation of his cruiser. There was no credible evidence that defendant Folch pulled into the pathway of the plaintiff’s bicycle. Rather, the evidence demonstrates that it was plaintiff who cut in front of defendant Folch when the plaintiff first steered to the right and then made a quick left turn manuever cutting in front of Folch to evade the police, which resulted in the plaintiff’s bicycle colliding with Folch’s cruiser. Neither did this court hear any credible evidence that defendant Folch was inattentive or that he was traveling at an unreasonable rate of speed. To the contrary, the evidence demonstrated that during the pursuit, Folch was coasting behind the plaintiff and never gained up on the plaintiff. In addition, the evidence showed that during the pursuit when the plaintiff blew a red light at Newhall and Bassett, it was Folch who hit the horn and activated his siren to alert cars that he was approaching and to alert cars that the plaintiff was approaching so that the plaintiff would not get hit. Moreover, the plaintiff failed to introduce any credible evidence that defendant Folch failed to control his vehicle, or engaged in specific conduct that constituted a failure to control the vehicle. The plaintiff has failed to prove that defendant Folch was negligent in the operation of his police cruiser, or that the manner in which he operated the police cruiser caused the plaintiff’s injuries.
The plaintiff claims that Folch violated § 14-240 in that he was following the plaintiff more closely than was prudent or reasonable. Section 14-240(a) provides: "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." In examining the meaning of "follow" under § 14-240(a), the Supreme Court reasoned that "in the context of a motor vehicle statute, the term ‘follow’ implies movement of two vehicles: a leader and a follower." Wrinn v. State, 234 Conn. 401, 406, 661 A.2d 1034 (1995).
"Thus, § 14-240, read in light of the plain meaning of the word ‘follow, ’ requires that in order to prove a violation the plaintiff must show that: (1) the rear vehicle ‘followed’ the front vehicle; and (2) the distance between the vehicles was closer than is reasonable and prudent under the circumstances. Accordingly, we agree with the Appellate Court’s conclusion that § 14-240 is applicable to situations in which one motor vehicle is [traveling] behind another in the same lane of traffic, and there is evidence that the operator of the rear vehicle failed to maintain a reasonably safe distance between the vehicles, and that failure had a causal connection to a resulting collision.’ (Emphasis added.) Wrinn v. State, supra, 35 Conn.App. at 473, 646 A.2d 869." (Emphasis in original.) Id.
Here, the court cannot conclude from the credible evidence presented that Folch’s police cruiser was following the plaintiff too closely in that Folch failed to maintain a reasonably safe distance between the cruiser and the plaintiff’s bicycle and that such failure had a causal connection to the resulting collision. Folch testified that he was approximately fifteen to seventeen feet coasting behind the plaintiff. Folch testified that he never gained up on the plaintiff and that it was the plaintiff who caused the collision when at the intersection of Newhall Street and Huntington, the plaintiff steered his bicycle to turn right onto Huntington and then in an attempt to evade the police he pivoted left and cut in front of Folch causing the bike to collide with the police cruiser. Accordingly, the court cannot conclude that Folch failed to maintain a reasonably safe distance between his police cruiser and the plaintiff’s bicycle in violation of § 14-240.
What the overwhelming credible evidence demonstrates is that the plaintiff’s injuries were caused by his own negligence in that he failed to bring the bicycle that he was riding to a stop when signaled to do so by officer Folch, a police officer, in violation of General Statutes § 14-223(a) as made applicable to the riders of bicycles by General Statutes § 14-286a; in that after being signaled to stop by defendant Folch, a police officer, who was using his flashing and/or revolving lights and/or an audible signal device, the plaintiff increased the speed of the bicycle he was riding in an attempt to escape or elude defendant Folch, in violation of § 14-223(b) as made applicable to the riders of bicycles by § 14-286a; in that he operated the bicycle he was riding in the wrong direction on Newhall Street, a one-way street, in violation of § 14-239 and § 14-303, as made applicable to the operators of bicycles by § 14-286a; in that he failed to keep the bicycle he was riding as near to the right side of the roadway as practicable in violation of § 14-286b(a); in that at the intersection of Newhall and Huntington Street, the plaintiff steered the bicycle he was riding first to the right and then to the left, causing his bicycle to come directly into the path of the police cruiser operated by defendant Folch, without signaling his intention to intially make a right turn, or his intention to then turn back left, in violation of § 14-286c; in that he failed to keep the bicycle he was riding under reasonable and proper control; in that he failed to keep a proper and reasonable lookout for other vehicles on the highway; in that he failed to apply the brakes on the bicycle he was riding in time to avoid a collision although by a proper and reasonable exercise of his faculties, he could and should have done so; and in that he failed to turn the bicycle he was riding to the left or to the right so as to avoid a collision, although by a proper and reasonable exercise of his faculties, he could and should have done so.
General Statutes § 14-223(a) provides: "(a) Whenever the operator of any motor vehicle fails promptly to bring his motor vehicle to a full stop upon the signal of any officer in uniform or prominently displaying the badge of his office, or disobeys the direction of such officer with relation to the operation of his motor vehicle, he shall be deemed to have committed an infraction and be fined fifty dollars."
General Statutes § 14-286a provides in relevant part that "(a) Every person riding a bicycle ... upon the traveled portion of a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of any vehicle subject to the requirements of the statutes relating to motor vehicles, except as to those provisions which by their nature can have no application ..."
General Statutes 14-223(b) provides in relevant part: "No person operating a motor vehicle, when signaled to stop by an officer in a police vehicle using an audible signal device or flashing or revolving lights, shall increase the speed of the motor vehicle in an attempt to escape or elude such police officer ..."
General Statutes § 14-239 provides in relevant part: "(a) The Office of the State Traffic Administration may designate any state highway and local traffic authorities may designate streets and highways under their jurisdiction for one-way traffic and shall erect signs, devices or markings conforming to the standards of the Office of the State Traffic Administration giving notice thereof. Upon any highway so designated a vehicle shall be driven only in the direction indicated ... (c) Violation of any of the provisions of this section shall be an infraction."
General Statutes § 14-303 provides: "Subject to the provisions of this chapter, the traffic authority shall have power to designate streets as one-way streets and to place and maintain on each street intersecting a street designated as a one-way street, at or near the property line of such one-way street, appropriate signs upon or in the street; such signs, devices or marks to bear the word "one-way" with an arrow pointing in the direction that all vehicular traffic shall travel when using such designated one-way street. No person shall operate or drive any vehicle upon or through any one-way street contrary to the directions as indicated by such signs, devices or marks established under the provisions of this section."
General Statutes § 14-286b(a) provides in relevant part: "Any person operating a bicycle ... upon a roadway at less than the normal speed of traffic shall ride as close to the right side of the roadway as is safe, as judged by the bicyclist ..."
General Statutes § 14-286c provides in relevant part:
Based upon the foregoing, this court concludes that the plaintiff failed to satisfy his burden of proving that his injuries were the result of the defendant Folch’s negligent operation of his police cruiser or any violation of New Haven’s pursuit policy.
D
Affirmative Defense of Comparative Negligence
Even if this court were to conclude that the defendant Folch was negligent in any of the ways enumerated in the plaintiff’s complaint, the court concludes that compared to any negligent conduct on the part of the defendant Folch, the plaintiff was more than 50% negligent. The court concludes that the defendants have met their burden of proving by a fair preponderance of the evidence that the plaintiff himself was negligent in causing his own injuries. It was the plaintiff’s own erratic and reckless operation of the bicycle, in his attempt to evade the police, and specifically, his attempt to operate the bike illegally, that caused his injuries. In addition to what had taken place before the plaintiff arrived at the intersection of Newhall Street with Huntington Street, it was the plaintiff’s maneuvers to evade the police when he turned right and then abruptly turned left cutting directly in front of defendant Folch’s police cruiser that caused the collision and plaintiff’s resulting injuries.
VI
CONCLUSION
Accordingly, for all of the foregoing reasons, the court finds in favor of the defendants on all counts of the complaint as to liability and damages. Judgment shall therefore enter in favor of the defendants, Folch and the city of New Haven.
(a) As used in this section, ‘police officer’ has the same meaning as provided in section 7-294a, and "pursuit" means 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.
(b) The Commissioner of Emergency Services and Public Protection, in conjunction with the Chief State’s Attorney, the Police Officer Standards and Training Council, the Connecticut Police Chiefs Association and the Connecticut Coalition of Police and Correctional Officers, shall adopt, in accordance with the provisions of chapter 54, 1 a uniform, state-wide policy for handling pursuits by police officers. Such policy shall specify: (1) The conditions under which a police officer may engage in a pursuit and discontinue a pursuit, (2) alternative measures to be employed by any such police officer in order to apprehend any occupant of the fleeing motor vehicle or to impede the movement of such motor vehicle, (3) the coordination and responsibility, including control over the pursuit, of supervisory personnel and the police officer engaged in such pursuit, (4) in the case of a pursuit that may proceed and continue into another municipality, (A) the requirement to notify and the procedures to be used to notify the police department in such other municipality or, if there is no organized police department in such other municipality, the officers responsible for law enforcement in such other municipality, that there is a pursuit in progress, and (B) the coordination and responsibility of supervisory personnel in each such municipality and the police officer engaged in such pursuit, (5) the type and amount of training in pursuits, that each police officer shall undergo, which may include training in vehicle simulators, if vehicle simulator training is determined to be necessary, and (6) that a police officer immediately notify supervisory personnel or the officer in charge after the police officer begins a pursuit. The chief of police or Commissioner of Emergency Services and Public Protection, as the case may be, shall inform each officer within such chief’s or said commissioner’s department and each officer responsible for law enforcement in a municipality in which there is no such department of the existence of the policy of pursuit to be employed by any such officer and shall take whatever measures that are necessary to assure that each such officer understands the pursuit policy established.
(c)(1) Not later than December 1, 2018, the Police Officer Standards and Training Council, established under section 7-294b, shall develop and promulgate a standardized form for (A) reporting pursuits by police officers pursuant to subdivision (2) of this subsection, and (B) submitting annual reports pursuant to subdivision (3) of this subsection.
(2) On and after January 1, 2019, the chief of police or the Commissioner of Emergency Services and Public Protection, as the case may be, shall require each police officer who engages in a pursuit to report such pursuit on the standardized form developed and promulgated under subdivision (1) of this subsection.
(3) Not later than January 31, 2020, and annually thereafter, each chief of police and the Commissioner of Emergency Services and Public Protection shall submit an annual report to the Police Officer Standards and Training Council regarding pursuits by police officers on the standardized form developed and promulgated under subdivision (1) of this subsection.
Not later than April 30, 2020, and annually thereafter, the Police Officer Standards and Training Council shall compile, analyze and summarize the annual reports and submit, in accordance with section 11-4a, a consolidated report regarding police pursuits and any recommendations for legislation to the joint standing committee of the General Assembly having cognizance of matters relating to public safety and security. The council may partner with an institution of higher education in this state or a professional police organization to prepare or to assist in the preparation of the consolidated report.
(a) Each person riding a bicycle ... upon the traveled portion of a highway and intending to make a left turn after proceeding pursuant to the provisions of section 14-244 or subsection (b) of this section may, in lieu of the procedure prescribed by section 14-241, approach as close as practicable to the right-hand curb or edge of the highway, proceed across the intersecting roadway and make such turn as close as practicable to the curb or edge of the highway on the far side of the intersection, provided such procedure is not prohibited by any regulation issued by any town, city, borough or the Office of the State Traffic Administration.
(b) Each person riding a bicycle or an electric bicycle, as defined in section 14-1, upon the traveled portion of a highway and intending to make a right turn may in lieu of the procedure prescribed by section 14-244, before turning and while in motion or if stopped while waiting to turn signal such turn by extending his right hand and arm horizontally with forefinger extended.
General Statutes § 14-244 provides: "Any stop or turn signal required ... may be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device. Hand signals shall be as follows: (1) To stop or decrease speed: Hand and arm extended downward; (2) to turn left or to leave or draw away from a curb or the edge of the highway: Hand and arm extended horizontally with forefinger pointed; (3) to turn right: Hand and aim extended upward. Each operator of a motor vehicle who makes a turn signal by means of signal lamps or mechanical signal device shall turn in the direction indicated and return such signal to the nonoperating position immediately after completing the movement for which a signal has been given. Violation of any of the provisions of this section shall be an infraction."