Maio v. City of New Haven, 167 A.3d 338

Background

Anthony Maio, a New Haven police officer, was acquitted of sexual assault and unlawful restraint arising from conduct while working an "extra duty" shift at a nightclub; he sued the City under Conn. Gen. Stat. § 53-39a seeking indemnification for attorney’s fees and related economic losses.
Maio admitted he entered the bar in violation of a departmental General Order (82-1) that generally forbids officers on extra duty from entering premises except for emergencies; he argued supervisory acquiescence in such violations meant his conduct was "in the course of his duty."
At the indemnification trial Maio presented testimony that department rules were routinely violated with knowledge of higher-ups; the City countered that Maio’s presence in the bar was unauthorized and outside the course of duty.
The City sought to introduce the two complainants’ prior testimony from Maio’s criminal trial under the former‑testimony exception (Conn. Code Evid. § 8-6(1)) after they failed to appear; the trial court excluded those prior statements, finding the witnesses not "unavailable."
The jury returned a verdict for Maio awarding attorney’s fees and lost time; the City appealed, challenging (1) the trial court’s use of workers’ compensation principles to define "in the course of his duty," and (2) exclusion of the complainants’ former testimony.
The Connecticut Supreme Court affirmed the statutory‑interpretation approach but reversed and remanded for a new trial because the trial court erred in excluding the prior testimony and that error was not harmless.

Issues

Issue	Plaintiff's Argument (Maio)	Defendant's Argument (City)	Held
1. Proper construction of "in the course of his duty" under § 53-39a	Use workers’ compensation analog (Link/Rawling): conduct within time/place/incidental to duty; employer acquiescence may qualify otherwise-prohibited acts	Workers’ comp principles are incompatible; § 53-39a must be strictly construed so on-premises, order-violating conduct cannot be "in the course of duty"; extra-duty officers generally excluded	Court: affirmed use of workers’ compensation framework (Link, Rawling); decline to overrule precedent and found legislative acquiescence—City cannot prevail on this claim
2. Whether employer acquiescence can render prohibited conduct part of duty	Maio: evidence that higher-ranking officers tolerated General Order violations supports acquiescence and course-of-duty finding	City: Maio failed to prove acquiescence by supervisory officials (not just lower ranks); thus conduct was outside course of duty	Court: factual question for jury; trial court’s instruction that acquiescence by high-ranking officials could establish course of duty was permissible
3. Admissibility of prior criminal-trial testimony under Conn. Code Evid. § 8-6(1) (former testimony)	Prior sworn testimony admissible because witnesses were unavailable despite attempts to secure attendance; prior proceeding was substantially similar and testimony reliable	Trial court properly excluded prior testimony because City did not attempt to depose witnesses and counsel’s representations were insufficient to show due diligence	Court: reversed exclusion. Federal Rule 804(a)/(b)(1) guidance applies; no blanket deposition precondition for former testimony; court may rely on counsel’s competent representations regarding diligence; exclusion was error not shown harmless
4. Harmlessness of evidentiary error	Exclusion did not affect verdict because other evidence supported Maio	Exclusion was harmless given other testimony	Court: error not harmless—complainants’ testimony was critical to City’s defense that Maio acted outside course of duty; new trial required

Key Cases Cited

Link v. Shelton, 186 Conn. 623 (construing "in the course of his duty" by reference to workers’ compensation "course of employment")
Rawling v. New Haven, 206 Conn. 100 (adopting workers’ compensation three‑part test for § 53-39a: time, place, duties/incidents)
McNamara v. Hamden, 176 Conn. 547 (workers’ compensation analysis of activities "incident to" employment)
State v. Schiappa, 248 Conn. 132 (adopts federal definitions of "unavailable" for hearsay exceptions)
State v. Aillon, 202 Conn. 385 (limits reliance on unsupported counsel representations where no effort made to secure witness; distinguished here)
Conway v. Wilton, 238 Conn. 653 (stare decisis standard for overruling precedent)
State v. Lopez, 239 Conn. 56 (proponent must show diligent, reasonable efforts to procure witness attendance)
State v. Chambers, 296 Conn. 397 (trial courts may rely on attorneys’ representations as officers of the court)
Klein v. Norwalk Hosp., 299 Conn. 241 (harmless‑error standard for evidentiary improprieties)