185 Conn. App. 53
Conn. App. Ct.2018Background
- On June 23, 2012, police responded to a 911 call from Miriam Dubinsky reporting that David Dubinsky had shoved her and repeatedly struck their 7‑year‑old son Jake with a belt in the presence of a 15‑year‑old stepdaughter, Abigail.
- Officers observed Miriam and Abigail crying and distressed, interviewed witnesses (Miriam, Abigail, Jake), and spoke with Officer Tyler who prepared an arrest affidavit; the plaintiff admitted striking Jake and was defiant toward officers.
- The court found probable cause that evening and Dubinsky was arraigned on risk of injury to a child (§ 53‑21) and related charges; Dubinsky later accepted a conditional guilty plea (breach of peace and disorderly conduct) that was vacated and dismissed after compliance with conditions.
- Dubinsky sued his criminal-defense lawyer (Black) for legal malpractice, alleging Black failed to advise that accepting the plea would bar a subsequent malicious prosecution claim against the arresting officers.
- The defendant moved for summary judgment arguing Dubinsky could not prove he would have prevailed on a malicious prosecution claim because probable cause existed; the trial court granted summary judgment and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dubinsky can prove causation in his malpractice claim by showing he would have prevailed on a malicious prosecution action | Dubinsky: officers lacked probable cause, so had he been advised, he would have rejected the plea and could have sued for malicious prosecution | Black: record shows officers had objectively reasonable grounds (probable cause), so Dubinsky could not have prevailed on malicious prosecution and thus cannot prove causation | Court: Granted for Black—no genuine issue that officers had probable cause; malpractice causation fails |
| Whether parental‑justification (§ 53a‑18(1)) negates probable cause | Dubinsky: the parental‑justification defense could make the officers’ arrest unreasonable | Black/State: reasonableness under § 53a‑18 is a factfinder issue and does not defeat a preliminary probable‑cause determination | Court: Rejected Dubinsky’s argument—parental‑justification is for the trier of fact and does not undermine officers’ objectively reasonable basis for probable cause |
| Whether alleged fabrication of red welts (physical marks) by officers creates a genuine issue as to probable cause | Dubinsky: officers lied about marks, so probable cause is questionable | Black: actual injury/marks are not required for the situation prong of § 53‑21; conflicting accounts are immaterial to probable cause | Court: Rejected—discounting marks still leaves ample evidence for probable cause; the existence of probable cause is dispositive against malicious prosecution claim |
| Whether administrative findings (e.g., Lovan C.) or DCF results alter probable‑cause analysis here | Dubinsky: administrative proceedings elsewhere support his position | Black: Lovan C. is inapposite because those proceedings involve a finder of fact after a hearing; officers make preliminary determinations | Court: Agreed with Black—administrative findings do not change that officers’ probable‑cause decision was reasonable at the time |
Key Cases Cited
- Martinelli v. Fusi, 290 Conn. 347 (discusses summary judgment standard)
- Margolin v. Kleban & Samor, P.C., 275 Conn. 765 (explains case‑within‑a‑case requirement in legal malpractice)
- Bozelko v. Papastavros, 323 Conn. 275 (malpractice requires proof plaintiff would have prevailed in underlying action)
- Brooks v. Sweeney, 299 Conn. 196 (definition and burden regarding probable cause in malicious prosecution)
- State v. Nathan J., 294 Conn. 243 (purpose and construction of § 53‑21 and parental justification defense)
- State v. Gewily, 280 Conn. 660 (actual injury not required for § 53‑21 situation prong)
- Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84 (probable cause as knowledge of facts sufficient to justify prosecution)
- State v. Brown, 279 Conn. 493 (probable cause as a flexible common‑sense standard)
- Krause v. Bennett, 887 F.2d 362 (Second Circuit: officers need not resolve every innocent explanation before probable cause exists)