DEVONTE DALEY v. ZACHARY KASHMANIAN ET AL.
(AC 41393)
Keller, Bright and Harper, Js.
Argued May 13—officially released October 1, 2019
Keller, Bright and Harper, Js.
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Syllabus
The plaintiff sought to recover damages from the defendant police detective, K, and the defendant city of Hartford for personal injuries he sustained when he was ejected from his motorcycle after it was struck by K‘s unmarked vehicle, which was not equipped with flashing or revolving lights or a siren, while K was surveilling the plaintiff and traveling above the speed limit in the wrong lane of traffic. The plaintiff sought to recover damages on the basis of K‘s alleged reckless and negligent conduct, claiming that K‘s conduct violated a ministerial duty imposed on him by certain motor vehicle statutes. After the case was tried to a jury, the trial court granted K‘s motion for a directed verdict on the plaintiff‘s recklessness claim. The jury thereafter returned a verdict in favor of the plaintiff on his negligence claim. Subsequently, the trial court set aside the verdict on the negligence count, concluding that the plaintiff‘s allegations related to discretionary acts for which the defendants were immune from liability pursuant to the statute (
1. The trial court improperly directed a verdict in favor of K as to the plaintiff‘s recklessness claim, as the evidence, viewed in a light most favorably to the plaintiff, was sufficient for the jury reasonably to conclude that K acted recklessly: on the basis of the evidence presented, the jury reasonably could have concluded that K consciously disregarded state laws relating to speed limits, reckless driving, following too closely and traveling in the correct lane of traffic in a situation in which a high degree of danger was present, and that he was aware of the risks and dangers his conduct imposed on others, yet showed little regard for the consequences of his actiоns; accordingly, the plaintiff was entitled to have his recklessness claim submitted to the jury.
2. The trial court properly set aside the verdict in favor of the plaintiff on his negligence claim; the circumstances surrounding K‘s conduct demonstrated that he was engaged in discretionary activity, as he was engaged in the discretionary police activity of surveilling the plaintiff and, thus, did not have a ministerial duty to follow every motor vehicle statute, even if those statutes in other circumstances would impose ministerial duties, and in the absence of a directive that clearly compelled K‘s conduct, he was entitled to governmental immunity for his discretionary acts.
Procedural History
Action to recover damages for the alleged negligence and recklessness of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Scholl, J.; thereafter, the court granted the named defendant‘s motion for a directed verdict on the plaintiff‘s recklessness claim; verdict for the plaintiff on his negligence claim; subsequently, the court set aside the verdict and rendered judgment for the defendants, from which the plaintiff appealed to this court.
Martin McQuillan, for the appellant (plaintiff).
William J. Melley, for the appellee (named defendant).
Nathalie Feola-Guerrieri, for the appellee (defendant city of Hartford).
James J. Healy and Karen K. Clark filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
Opinion
BRIGHT, J. This appeal stems from a personal injury action brought by the plaintiff, Devonte Daley, against the defendants, Zachary Kashmanian and the city of Hartford (city), seeking damages for the injuries he sustained when Kashmanian, a detective with the Hartford Police Department who had been surveilling the plaintiff in an unmarked рolice car, allegedly, negligently and recklessly caused the plaintiff to be ejected from his motorcycle. The plaintiff appeals, following a jury trial, from the judgment of the trial court directing a verdict in favor of Kashmanian on the plaintiff‘s recklessness claim, and from the judgment of the trial court setting aside the jury‘s verdict on the plaintiff‘s negligence claim. On appeal, the plaintiff claims that the court improperly (1) directed a verdict because there was sufficient evidence for the jury to find that Kashmanian engaged in reckless conduct, and (2) set aside the verdict with respect to the negligence claim on the ground that the defendants were entitled to governmental immunity because Kashmanian was engaged in ministerial, not discretionary, conduct. We agreе with the plaintiff‘s first claim only, and, accordingly, we reverse the judgment of the trial court directing a verdict on the recklessness claim and affirm the judgment of the trial court setting aside the verdict on the negligence claim.
The relevant facts, viewed in a light most favorable to the plaintiff, and procedural history, are as follows. On June 1, 2013, at approximately 12 a.m., the plaintiff was riding his yellow Suzuki motorcycle on Asylum Avenue in Hartford with a group of eight to ten other people who were riding “dirt bikes” and “quads.” The plaintiff‘s motorcycle was neither “street legal” nor “roadworthy” because it did not have headlights and was equipped with off-road tires: a black tire on the front and a yellow tire on the back. Also at that time, Kashmanian was operating an unmarked gray Acura TL, which the police сharacterize as a “soft car.” A soft car is a vehicle that is not equipped with flashing or revolving
At or around that same time, a confidential informant provided an anonymous tip to the police that a man riding a yellow motorcycle with a yellow tire had a gun. Kashmanian was instructed by other officers to perform surveillance1 on the group of motorcycles and quads, including the yellow motorcycle, which was operated by the plaintiff. When Kashmanian arrived at Asylum Avenue, he observed the yellow motorcycle and the group of motorcycles and quads, and proceeded to follow them westbound on Asylum Avenue. All of the motorcycles and quads then turned right and proceeded northbound on Sumnеr Street, which is a two lane road with a speed limit of twenty-five miles per hour. At the intersection of Asylum and Sumner, Kashmanian‘s vehicle “sideswip[ed]” another motor vehicle driven by Brontain Stringer, which had been proceeding in the same direction. Kashmanian paused for a brief second, but he was directed by the police on the radio to “just keep going” and that they would “take care of the accident; just keep going.”
Kashmanian then proceeded north in the northbound lane of Sumner Street, to continue to surveil the plaintiff. Kashmanian was traveling between forty and fifty miles per hour, well over the twenty-five miles per hour speed limit. Kashmanian then crossed the center line to travel north in the southbound lane in an effort to avoid two quads in the group that fishtailed and sideswiped his vehiсle. Although he could have returned to the northbound lane of traffic after passing the two quads, Kashmanian continued to travel north in the southbound lane, closing the distance between his car and the plaintiff‘s motorcycle until he struck the back tire of the plaintiff‘s motorcycle with the front left panel of his vehicle, which caused the plaintiff to crash his motorcycle into a parked car in the southbound lane of Sumner Street. The plaintiff was ejected from his motorcycle and landed approximately ninety-five feet down Sumner Street, causing him significant injuries. As evinced by the lack of skid marks on Sumner Street, Kashmanian neither suddenly slowed his vehicle nor applied his brakes before striking the plaintiff‘s motorcycle.
On February 26, 2015, the plaintiff filed this personal injury action against the defendаnts. The plaintiff‘s operative fifth amended complaint contains two relevant counts.2 In count one, the plaintiff asserted
In response, the defendants filed answers denying the essential allegations of the plaintiff‘s complaint and alleging two relevant special defenses. The defendants alleged that the plaintiff‘s injuries were caused by his own comparative negligence, and that the plaintiff‘s claims are barred by common-law and statutory governmental immunity, pursuant to
The case was tried to a jury over the course of five days. At the close of evidence, Kashmanian made an oral motion for a directed verdict as to count two, the common-law recklessness count. In particular, Kashmanian argued that count two should not be submitted to the jury because there was no evidence that Kashmanian engaged in reckless conduct. After hearing the plaintiff‘s counterargument, the court orally granted Kashmanian‘s motion for a directed verdict as to count two. Accordingly, the jury was charged and the case was submitted to the jury only аs to count one, the negligence count, and the defendants’ comparative negligence special defense. On that same day, the jury returned a verdict for the plaintiff in the total amount of $416,214, reduced on the basis of the jury‘s finding that the plaintiff comparatively was 25 percent negligent, for a net award of $312,160.50.
The court then scheduled oral argument for January 23, 2018, and ordered the parties to file memoranda of law on the reserved issue of governmental immunity. On December 19 and 22, 2017, the city and Kashmanian, respectively, each filed a memorandum of law in which they argued, inter alia, that the jury‘s verdict in favor of the plaintiff on his negligence claim should be set aside because it was barred by the doctrine of governmental immunity.5 On
On February 8, 2018, the court set aside the jury‘s verdict in favor of the plaintiff on count one, the negligence claim. In particular, the court concluded that governmental immunity was applicable to Kashmanian‘s conduct because his driving surveillance involved discretionary police activity, which is protected under
I
The рlaintiff first claims that the court improperly directed a verdict in favor of Kashmanian on his claim of recklessness. We agree.
“We begin our analysis with the standard of review of a trial court‘s decision to grant a motion for a directed verdict. Whether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary. . . . Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court‘s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury‘s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation. . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . [Our Supreme Court] has emphasized two additional points with respect to motions to set aside a verdict that are equally applicable to motions for a directed verdict: First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury.” (Citations omittеd; internal quotation marks omitted.) Curran v. Kroll, 303 Conn. 845, 855-56, 37 A.3d 700 (2012).
Next, we turn to our standard for recklessness, which is well established. “Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent. . . . More recently, we have described recklessness as a state of consciousness with reference to the consequences of one‘s acts. . . . It is more than negligence, more than gross negligence. . . . The state of mind amounting to recklessness may be inferred from conduct. But, in 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
“While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless 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.” (Citations omitted; internal quotation marks omitted) Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836, 836 A.2d 394 (2003); see Williams v. Housing Authority, 327 Conn. 338, 380, 174 A.3d 137 (2017) (same).
The plaintiff claims on appeal that the court erred in granting Kashmanian‘s motion for a directed verdict because there was sufficient evidence for the jury to find that Kashmanian‘s conduct that caused the plaintiff‘s injuries was wilful, wanton, or reckless. Specifically, the plaintiff cites Kashmanian‘s numerous traffic violations, the fact that Kashmanian did not stop or change course even though he was aware of the plaintiff‘s motorcycle slightly in front of him, and his accident with Stringer as evidence of highly unreasonable conduct rising to the level of recklessness. Conversely, Kashmanian contends that, because he was conducting surveillance in the scope of his police duties and in response to direct orders from his supervisor, his conduct lacked the requisite conscious disregard for the safety of others. Kashmanian argues that his conduct was the opposite of reckless because it was done to preserve the safety of others. We do not agree with Kashmanian‘s argument. We agree with the plaintiff that, viewing the evidence in a light most favorable to him, there was sufficient evidence for the jury reasonably to conclude that Kashmanian‘s conduct was reckless.
At trial, Kashmanian testified that the purpose of surveillance is to monitor covertly the conduct of the subject at a distance. Nevertheless, the evidence, viewed in a light most favorable to the plaintiff, demonstrated that Kashmanian drove down Sumner Street, in the dark, in a soft car, and at approximately double the speed limit in order to stay close to the plaintiff. He did so immediately after colliding with Stringer‘s vehicle on Asylum Avenue, and driving away to continue his surveillance. Kashmanian maintained his same rate of speed while knowingly driving northbound in the southbound lane, even though he could have returned to the correct lane. In fact, the jury reasonably could have concluded that Kashmanian, following his collision with Stringer, must have increased his speed in order to catch up to the plaintiff. Kashmanian ultimately got so close to the plaintiff, while in the wrong lane of traffic, that he struck the plaintiff‘s motorcycle at such a speed and with enough force to drive it into a parked vehicle, which propelled the plaintiff ninety-five feet. As a result of Kashmanian‘s driving on Asylum Avenue and Sumner Street, there were at least three vehicles that sustained signifiсant damage and one person, the plaintiff, who sustained significant physical injuries.
On the basis of this evidence, the jury reasonably could have concluded that Kashmanian consciously disregarded Connecticut‘s laws relating to speed limits, reckless driving, following too closely, and travelling in the correct lane of traffic, in a situation in which a high degree of danger was apparent. See
II
The plaintiff next claims that the court improperly set aside the verdict on his negligence claim on the ground that the defendants are entitled to governmental immunity. We disagree.
We begin with the standard of review and legal principles relevant to our resolution of this claim. Although generally a court‘s decision to set aside a jury verdict is subject to an abuse of discretion review; Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 776, 83 A.3d 576 (2014); we afford plenary review to the present claim because, as thе parties properly recognize, the ultimate determination as to whether the defendants are entitled to governmental immunity is a question of law. Ventura v. East Haven, 330 Conn. 613, 634-37, 199 A.3d 1 (2019).
The law pertaining to municipal immunity is well settled. “[Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages. . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. . . . [Section] 52-557n (a) (2) (B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions [that] require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” (Footnote omitted; internal quotation marks omitted.) Brooks v. Powers, 328 Conn. 256, 264-65, 178 A.3d 366 (2018).
“For purposes of determining whether a duty is discretionary or ministerial, [our Supreme Court] has recognized that [t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions. . . . A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment [or discretion] upon the propriety of the act being done. . . . In contrast, when an official has a general duty to perform a сertain act, but there is no city charter provision, ordinance, regulation, rule, policy, or any other directive [requiring the government official to act in a] prescribed manner, the duty is deemed discretionary.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Northrup v. Witkowski, 332 Conn. 158, 169-70, 210 A.3d 29 (2019).
“[I]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality. . . . Indeed, [our Supreme Court] has long recognized that it is not in the public‘s interest to [allow] a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman‘s discretionary professional duty. Such discretion is no discretion at all. . . . Thus, as a general rule, [p]olice officers are protected by discretionary act immunity when they perform the typical functions of a police officer. . . .
“In accordance with these principles, our courts consistently have held that to demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion.” (Citations omitted; internal quotation marks omitted.) Ventura v. East Haven, supra, 330 Conn. 630-31.
Neither our Supreme Court nor this court has determined whether a municipal police officer conducting surveillance while driving a motоr vehicle is engaged in discretionary or ministerial conduct. The plaintiff, relying on a number of Superior Court and out-of-state cases,7 argues that Kashmanian‘s
In the present case, the plaintiff, concededly, has not pointed us to any directive that prescribes the manner in which police officers are required to conduct surveillance. The plaintiff relies, instead, оn Kashmanian‘s testimony as to his subjective understanding that surveillance meant “you‘re following someone at a distance, trying to keep an eye on them, where they‘re going; what their actions are. It could be in a car; it can be walking. It could be anywhere. It could be through a camera.” We reject the plaintiff‘s position because Kashmanian‘s understanding of desired conduct does not clearly establish a ministerial duty. See, e.g., Strycharz v. Cady, 323 Conn. 548, 566-67, 148 A.3d 1011 (2016) (testimony that did not identify specific directive but merely established manner in which individual official performed his official duties was insufficient to establish existence of ministerial duty); Northrup v. Witkowski, 175 Conn. App. 223, 236 n.5, 167 A.3d 443 (2017) (explaining that “vague” testimony that “does not come close to an admission that the town had a nondiscretionary duty” is insufficient to establish ministerial duty in absence of written directive), aff‘d, 332 Conn. 158, 210 A.3d 29 (2019).
Furthеr, even in instances in which an officer has been provided with a written directive, courts across the country have held that officer surveillance is a discretionary function. See, e.g., Estate of Salazar v. United States, United States District Court, Docket No. LA-CV-11-10279 JAK (SPx) (C.D. Cal. May 20, 2014) (examining United States
The plaintiff also argues that, because there is no statutory exception applicable, Kashmanian had a ministerial duty to comply with the motor vehicle statutes. In particular, the plaintiff argues, and the defendants do not dispute, that Kashmanian was not exempt from certain motor vehicle statutes pursuant to
Section
In the present case, the circumstances surrounding Kashmanian‘s conduct demonstrate that he was еngaged in discretionary activity. Kashmanian was not merely operating his motor vehicle on the roads under ordinary conditions; instead, he was engaged in the discretionary police activity of surveilling the plaintiff. In exercising such discretion in the present case, Kashmanian did not have a ministerial duty to follow each and every motor vehicle statute, even if those statutes in other circumstances would impose ministerial duties. Under these circumstances, Kashmanian‘s discretion as to the manner in which to conduct his surveillance extends to whether to violate the motor vehicle statutes. A review on appeal of Kashmanian‘s actions in the performance of his police duties would violate the proscription of second-guessing the decisions made pursuant to his professional duty. See Ventura v. East Haven, supra, 330 Conn. 630-31. Therefore, in the absence of a directive that clearly compelled Kashmanian‘s conduct and considering the circumstances of his conduct, we conclude that the defendants are entitled to governmental immunity and, thus, the court properly set aside the jury‘s verdict in favor of the plaintiff on his negligence claim.
The judgment setting aside the jury‘s verdict on the negligence count is affirmed; the judgment directing a verdict in favor of Kashmanian on the common-law recklessness count is reversed and the case is remanded for a new trial as to that count.