the two points main points of air are st that the trial court did not grant the rule fifty motion simply on the basis that the plaintiff has failed prove the alleged claims against the city council three hundred and seventy three thousand eight hundred and thirty nine were all alleging municipal liability as a result of the negligence of the officers the plaintiff never does not your honor but it was briefed by me it was the st argument in fact that i had made in in support of the rule fifty motion in a critical point here because in fact back in two thousand and fifteen prior to the st jury trial well but by reaching the merits of which was your nd your nd point yes but by reaching the merits it seems that the district court was implicitly conforming the pleadings to the proof because if it dealt with the issue on the merits it really did your honor and again i have to claim that as an error because the district court not have the discretion to do waiver of any kind yes and he does have i mean if there had been a motion to amend the pleadings to conform to the proof in the interest of justice it sounds like he would have granted it because he reached the question on the merits or haps but without making that decision the argument that the city made was a just one and that it was based upon the rule of the case back in two thousand and fifteen judge edgington had granted the city's motion for officers that the city is liable if the point of had alleged in count thirty seven or some other count a request for indemnification based on absolutely a typical seven thousand four hundred and sixty five yes in fact that statute requires that within a certain number of days that they actually have to provide notice to the see a hard for it if they make a intend to make a claim like that and typically i handle a lot of these cases for the city has i represent the settee as a corporation council senior assistant corporation council there that that those claims are made in a separate count against the city's so in this case it could've been  wanton conduct allegations is that it well yes but back just to get back into the claims against that were around at that time in the prior trial the only claims that were against the city for municipal liability under those state statutes were a lizabeth edwards's claim based upon defendants the the defendant officers negligent infliction of emotional distress and elizabeth edwards and me tows claim for negligence against the defendant officers  the edwards is a negligence claim and that claim was dismissed long before that's exactly what i'm saying and that's the point i made to the court problem with that is that the jury was charged differently the jury did page and talks about the play as a title to recover if there's been a violation of civil rights were done recklessly and then a discreet discusses that and so the jury was instructed charged but they were charged well actually the jury never heard the plaintiff's claims against the city by way of a joint stipulation the parties entered into all they were against the defendant that would be cover against the defendant but let's cut to the here if they recovered against the police officer for just compensatory damages and not punitive damages under this jury charge you'd have to reimburse him wouldn't you well my argument is i mean let me rephrase being even more specific if they had recovered against a police officer and they made a specific finding of negligence would you have to pay would you have to reimburse the officer for negligence yes there unless and if the if the jury was charged on negligence and they found only compensatory damages and rejected punitive damages you would pay the judgment wouldn't you yes your honor right because they were instructed on punitive damages and they were told that exactly correct and the jury was not told to read that the that there was two dollars separate recoveries they said if it's conduct the conduct that exposes him to excessive force happens to be will and wanton you can also ward in addition to compensatory damages punitive damages that that's correct and so your theory your view of the statute is is that the statute doesn't by different from the district court doesn't bifurcate findings they're not two separate findings here is one finding what was his conduct you say willful on what right if the underlying conduct of any negligence claim or any civil rights is based upon the conduct that can be described as willful or wanton by an officer the city of hartford the state of connecticut and the legislature has carved out an exception to municipal liability so any well i mean it makes sense why would a city be be held responsible for someone who goes willy nilly and does goes out of control in their do duties of a job the job certainly there's an abrogation of immunity  cases where someone makes a mistake like i let say i did something negligent it was a careless mistake the public policy behind that is to reimburse people that have been damaged by the mistakes but if someone goes out of but short of malicious and one that would still be picked up by that step yes and what i would have done in that case with the city would be in it on account of indemnification request jury instructions do one good morning you may please the court james healey from county murphy in hartford for the plaintiffs kanva letter words mr ebbers trial counsel peter van dyke of west hartford is also in the courtroom here today i'll start on the pleadings issue the city is overly reliant i would were negligent in the performance of their duties the supervisors were negligent in supervising them and the personal injuries were the rectum proximate cause of negligence i mean maybe that's a pleading error you should have used conduct or  something else but i think the important point your honor being that those excessive force allegations are expressly incorporated into that count and then the indemnification count by paragraph two hundred and twenty four through two thousand and six is clearly speaking in totality about all s any damages related to this officers conduct so i'd say that we really don't even need a liberal construction of the pleadings which is what we're supposed to use here in evaluating this to see the city has ample notice of the indemnification obligation and the fact that that extends to the officers for conduct as alleged in that camp and the trial judge did not address this point just this point went to the merits i think the trial judge's decision fairly read indicates that it was essentially conformed you know in the process of the you know i think he gets to the merits of the issue seeing that is the main issue for him to decide in this decision and that he had discretion you know he certainly doesn't play it that way the argument by failing to plead correct you're saying the city wasn't prejudiced by this because the need for that special derogatory didn't arise in light of the fact that you were seeking punitive damages and the city was also involved in the process of deciding what in derogatory should and shouldn't go to the jury so  everyone was involved in the process i don't think the actual what was what was submitted the jury would have changed if the magic words in the unincorporated allegations had specifically said excessive force so i think when we return to the statute itself section and sixty five dollars when you look at the plain language of that statute it provides that cities and towns shall pay all sums that an officer becomes obligated to pay for damages awarded for the infringer of any person civil rights and that's not the result of any employee becomes obligated to pay the officer is going to have to pay this liability imposed upon employee for the infringement of anyone civil rights for physical damages claiming that you have the if the officer was acting within the scope of the duty his duties using the male pronouns here nobody is saying that the officer wasn't acting within the scope of his duties correct and if such occurrence accident cool injury or damage was not the result of willful or wanton act of such employee into the discharge of such duty and so it doesn't separate it doesn't separate the injury into two separate currents is one occurrence or there's one set of facts the officer the individual the officer teddies the individual the officer did something the individual it's one set of acts and the jury's instructed it's instruct i've read the instructions repeatedly the jury is instructed on what he has to decide with regard to giving him compensatory damages but then says if you decide that these determination that the injuries caused by the the defendant to the plaintiff were the result of willful and wanton they were the result of a wolf or wanton occurrence deviation from a reasonable act or it can also be well for one can it not that's true but what we have and so therefore is it not possible for a jury to award compensatory damages and  punitive damages at the same time i think what matters here your honor and why this case was by the district it was correct to construe it this way is we have an excessive force case it's an objective reasonableness standard does records that you can't read the statute to cover both it houses be separate and it covers only the punitive damages work that can't be what this language means i think that you have snow sense because it means that if an officer soldiery finding we have in connection with compensatory damages is that the officer used on reasonable force that's an objective determination the supreme court that he says has told us was the entry level but then he went on to charge punitive damages and said you can only award punitive damages the officer did so willfully and wantonly didn't see a nd injury didn't separate out what he did or didn't do is ones x and what the jury the jury if you look at the jury form page a ninety six in the appendix the  collect that might be a logical thing for you to do but that wouldn't prevent the defendants or from the city from seeking a special into raga torrie from the jury as to whether it was wanton and willful anyway because that would then trigger the exception to the indemnification statute right i think the problem we have here is that we have a compensatory damages award that is rendered on the objective reasonable is or lack thereof of the officers conduct that's the so finding already been paid the only issue was whether the municipality and or its carrier had to pay the punitive and so it was very simple for the high court to decide that i would submit you're out of the issue was not even remotely before the connecticut court i think a fair reading of that decision is that everyone takes for granted that compensatory damages are indemnified on a b everyone is wrong and another decision is worth noting is the mullard or decision it's referenced by the trial court that's a case where there was an unreasonable search civil rights claim and what the district court said in that case the district court decision applying the statute it's in the briefing decision that i'm op errantly just agreeing i understand that your honor i'd submit the mullard it was instructive on this point because it says the unreasonable search civil rights claim indemnification could attach for that but indemnification could not attach issue was compensatory damage did they ask the connecticut supreme court to decide whether compensatory damages in light of a punitive damages the word was required to be paid under seven for sixty five dollars they didn't expressly decide that in part because they didn't have to and i would submit that their reasoning sort of assumes that it's going to be paid the only other i thought here to decide which connecticut law is by what connecticut is everyone in connecticut assumes that that is i think a fair read would result in it not having to indemnify the offending officer if they have that into rugged tory if you will directed specifically to the compensatory damages award then they could have it but that's not what we have  conduct be wanton and malicious for purposes of punitive damages and something less for compensatory damages when we're talking about the same conduct is what the jury was a warning i mean going through the damages against the defendant on the plaintiffs constitutional claims as you find them i understand that's how the jury was charged i think what's in it what's important about this case that we if ok if i may you honor this language was at the civil rights language is added to this statute in one thousand nine hundred and seventy five with the obvious intent of ensuring that we can attract qualified people to public service that things happen to police officers in the course of their duties as a district court said here this is an excessive force case that these i think sort of an every day excessive force case was how the disregard talked about it the idea that just what i'm sorry that's a force cases where an officer in gauges on reasonable conduct objectively speaking but it short of being one and malicious and that's what it seems to me the statute picks up but what i don't think what i would respond to ours i don't think the statute intended that if the jury had awarded one dollar punitive damages it would vitiate the entirety of the compensatory awarded and have an officer losing his house or his personal property as a result of that if the conduct is malicious or won the plain words of the statute and it doesn't apply are we understand your point let's  surprised that the city was basically bailing on its own officer right that it would make it difficult to attract officers if they thought the city was going to cut and run whenever there's a punitive damages finding but i said we don't really need to worry about that if the city wants to support the city wants to backstop this judgment perhaps they can yes you know we have we on a case by case basis we look at the facts sometimes and we resolve cases that you know could go badly at trial and we step up for the officers here but that's a case by case basis by district court indicating that that's what the statute requires we do in every single case self insure we have a self insured retention and you buy can you buy a policy you know i've been told no pushing for that but no yes it is mounted it's only seventy five thousand dollars right that's what we're talking about me well though that's the punitive portion but the compensatory portion is one hundred and thirty five dollars and basically this would mean that you know this this this decision we had no alternative we had to proceed with this appeal this would open a huge liability for for municipalities all right thank you thank you all reserve decision the final two