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ORVILLE COLEY, ADMINISTRATOR (ESTATE OF

LORNA COLEY) v. CITY OF HARTFORD

(SC 19129)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.
Argued February 21—officially released June 10, 2014

Hugh D. Hughes, with whom, on the brief, was William F. Gallagher, for the appellant (plaintiff).

Jonathan H. Beamon, senior assistant corporation

counsel, for the appellee (defendant).
Opinion

ROGERS, C. J. This appeal requires us to determine

the scope of governmental immunity that is afforded

to a city that has been sued for allegedly negligent

conduct in connection with its police department’s

response to a report of domestic violence. The plaintiff,

Orville Coley, the administrator of the estate of Lorna

Coley (decedent), appeals from the judgment of the

Appellate Court affirming the trial court’s summary

judgment rendered in favor of the defendant, the city

of Hartford. Coley v. Hartford, 140 Conn. App. 315, 327,

59 A.3d 811 (2013). The plaintiff brought this wrongful

death action after the decedent was shot and killed

after police responded to a report of domestic violence

at the apartment where the decedent resided with her

daughter, Jahmesha Williams. The plaintiff alleges, inter

alia, that the police were negligent in failing to remain

at the scene for a reasonable amount of time until the

likelihood of imminent violence had been eliminated,

in violation of the duty allegedly imposed pursuant to

General Statutes § 46b-38b1 and the Hartford Police

Department Policy and Procedure entitled ‘‘Police

Response to Cases of Family Violence’’(police response

procedures). See Hartford Police Dept. Policy and Procedure, No. 7-40 (October 1, 1986).2 Although the plaintiff raises several issues on appeal, the dispositive issue

is whether the Appellate Court properly determined

that any duty to remain at the scene that was allegedly

owed to the plaintiff’s decedent was discretionary.3 We

conclude that any such duty was discretionary and,

therefore, that the defendant is entitled to immunity

pursuant to General Statutes § 52-557n (a) (2) (B).4

Accordingly, we affirm the judgment of the Appellate

Court.

The following uncontested facts and procedural history are relevant to our disposition of this appeal.5

‘‘On

November 5, 2007, at approximately 8:39 p.m., Hartford

police officers [Garrett] Fancher and [Zachary] Freeto

were dispatched to respond to a complaint of domestic

violence at 47 Bolton Street. The complaint had been

made by [Williams], one of the residents of 47 Bolton

Street, who had called the police because the father of

her child, Gerard Chapdelaine, had come to her house

and attempted to gain entry and, having failed, brandished a revolver and threatened her life.

‘‘Williams lived at 47 Bolton Street with her son, a

friend and Williams’ mother, [the decedent]. On the

evening in question, [the decedent] had arrived at the

house in her car and observed Chapdelaine threatening

Williams’ life and brandishing a firearm in the front

yard. [The decedent] told Chapdelaine that she would

call the police if he did not leave. He responded, ‘call

the cops,’ and [the decedent] drove away. By the time

she returned, [O]fficers Fancher and Freeto had arrived

at 47 Bolton Street in response to Williams’ call, but
Chapdelaine was no longer present. The officers spoke

with neighbors and went to Chapdelaine’s residence at

51 Bolton Street, but they were unable to find him.

Williams informed the officers that Chapdelaine’s car

was illegally parked at 55 Bolton Street, and officers

ticketed the vehicle and had it towed. The officers also

learned that Williams had a protective order against

Chapdelaine prohibiting him from threatening or

harassing her, entering her dwelling or having any other

contact with her. Hartford police . . . previously had

responded to incidents of domestic violence between

Chapdelaine and Williams at 47 Bolton Street.

‘‘Unable to locate Chapdelaine, and aware that he

had allegedly committed a family violence crime by

violating a protective order, Fancher and Freeto left

. . . to prepare an arrest warrant.’’ Coley v. Hartford,

supra, 140 Conn. App. 317–18. Priorto leaving the scene,

Officers Fancher and Freeto contacted the Interval

House, a local domestic violence shelter, and spoke

with a representative on Williams’ behalf. The officers

also provided Williams with a victim services card containing additional resources regarding domestic

violence.

‘‘Approximately three hours later, at about 12:05 a.m.,

officers were again dispatched to 47 Bolton Street, this

time in response to a report that a male was attempting

to force entry into the residence. The police determined

that the two reported incidents at 47 Bolton Street were

related, and, upon arrival at the scene, heard screams

coming from the second floor. After setting up a perimeter and entering the residence, police discovered that

[the decedent] had been shot and killed.’’6

Id., 318.

The plaintiff brought this wrongful death action alleging that the defendant’s police officers were negligent

in responding to the domestic violence incident at 47

Bolton Street. Specifically, the plaintiff alleged, inter

alia, that the police officers: ‘‘failed to arrest . . . Chapdelaine as required by . . . § 46b-38b (a)’’; ‘‘failed to

arrest . . . Chapdelaine for violating a protective order

as required by the police response procedures’’; ‘‘left

the scene before the likelihood of further imminent

violence had been eliminated, in violation of . . .

§ 46b-38b (d)’’; and ‘‘left the scene before the likelihood

of further imminent violence had been eliminated, in

violation of the police response procedures.’’ The defendant asserted as a special defense that it is entitled to

governmental immunity pursuant to § 52-557n and it

subsequently filed a motion for summary judgment on

that ground. The trial court, Rittenband, J., rendered

summary judgment in favor of the defendant, concluding that the police officers’ actions were discretionary,

not ministerial, and that the identifiable person-imminent harm exception to governmental immunity for discretionary acts7 does not apply in the present case. The

plaintiff appealed from the trial court’s decision to the
Appellate Court.8

In the Appellate Court, the plaintiff argued that the

trial court improperly rendered summary judgment in

the defendant’s favor because a genuine issue of material fact existed as to whether police officers had a

ministerial duty, pursuant to § 46b-38b and the police

response procedures, to remain at Williams’ residence

for ‘‘a reasonable time until, in the reasonable judgment

of the officer, the likelihood of further imminent violence [had] been eliminated.’’ (Internal quotation marks

omitted.) Coley v. Hartford, supra, 140 Conn. App. 319–

20. The Appellate Court disagreed for three reasons.

First, the Appellate Court concluded that § 46b-38b (d)

does not apply in the present case because that statute

requires police officers to remain at the scene only

when, unlike in the present case, there is no probable

cause for arrest. Id., 324. Second, the Appellate Court

concluded that any duty arising under the police

response procedures was owed to Williams, the victim

of domestic violence, and not to the decedent. Id., 326.

Finally, the Appellate Court determined that, even if it

were to assume that the defendant owed a duty to

the decedent to remain at the scene under the police

response procedures, the duty was discretionary and,

therefore, the defendant is entitled to governmental

immunity. Id., 326 n.10. Forthese reasons, the Appellate

Court affirmed the trial court’s summary judgment in

favor of the defendant. This certified appeal followed.

On appeal, the plaintiff argues that the Appellate

Court improperly affirmed the trial court’s summary

judgment for the defendant. Although the plaintiff challenges each of the three grounds for the Appellate

Court’s decision, we focus our inquiry on the plaintiff’s

claim that the police response procedures gave rise to

a ministerial duty to remain at the scene in the present

case. With respect to this claim, the plaintiff argues that

the police response procedures are broader than § 46b38b (d) because the procedures require law enforcement personnel to remain at the scene for a reasonable

time in the event an arrest is not made. See footnote 2

of this opinion. The plaintiff contends that the Appellate

Court incorrectly concluded that the duty to remain at

the scene under the police response procedures was

discretionary rather than ministerial.

In response, the defendant argues that the Appellate

Court properly affirmed the trial court’s summary judgment in favor of the defendant. With respect to the

plaintiff’s claim regarding the police response procedures, the defendant argues that, even if we were to

assume that there was a duty owed to the decedent

under the police response procedures, it is apparent

from the allegations in the complaint that the duty to

remain at the scene was discretionary. The defendant

contends, therefore, that it is immune from liability for

its allegedly negligent discretionary acts under § 52-
557n (a) (2) (B).

As a preliminary matter, we agree with the plaintiff

that the obligation to remain at the scene in the event

that an arrest is not made under the police response

procedures, on its face, is broader than the obligation

to remain at the scene under the statute, which gives

rise to this obligation only when ‘‘no cause exists for

an arrest . . . .’’ General Statutes § 46b-38b (d); see

footnotes 1 and 2 of this opinion. Because the police

officers determined that there was probable cause to

arrest Chapdelaine, and an arrest was not in fact made,

we conclude that the police response procedures apply

in the present case.9 The dispositive issue in this appeal,

therefore, is whether the duty to remain at the scene

was discretionary or ministerial. See Grignano v. Milford, 106 Conn. App. 648, 659–60, 943 A.2d 507 (2008)

(concluding that defendant’s duty to perform reasonable inspections of premises under town ordinance was

discretionary because ordinance did not prescribe precise manner for inspection, but duty to warn upon making discretionary determination of hazardous condition

was ministerial because ordinance prescribed manner

in which warning should be issued); accord Violano v.

Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006)

(ministerial duty may be created by city charter provision, ordinance, regulation, rule, policy, or other directive). Because we determine that the duty to remain at

the scene was discretionary and, therefore, that the

defendant is entitled to governmental immunity, we will

assume for the purposes of this appeal only that this

duty was owed to the decedent.

We begin with the applicable standard of review.

‘‘Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

. . . Our review of the trial court’s decision to grant

[a] motion for summary judgment is plenary. . . .

[T]he ultimate determination of whether qualified

immunity applies is ordinarily a question of law for the

court . . . [unless] there are unresolved factual issues

material to the applicability of the defense . . . [where

the] resolution of those factual issues is properly left to

the jury.’’ (Citations omitted; internal quotation marks

omitted.) Bonington v. Westport, 297 Conn. 297, 305–

306, 999 A.2d 700 (2010). Because the material facts in

the present case are undisputed; see footnote 5 of this

opinion; we exercise plenary review over the trial

court’s determination that the defendant is entitled to

qualified immunity as a matter of law. See Purzycki v.

Fairfield, 244 Conn. 101, 108 n.4, 708 A.2d 937 (1998)

(exercising plenary review over availability of qualified

immunity because material facts were undisputed).

Certain principles governing the scope of qualified
immunity inform our disposition of this appeal. ‘‘[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

which require the exercise of judgment or discretion

as an official function of the authority expressly or

impliedly granted by law.

‘‘Municipal officials are immune 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.’’10 (Citations omitted; footnote omitted; internal quotation

marks omitted.) Doe v. Petersen, 279 Conn. 607, 614,

903 A.2d 191 (2006). Therefore, ‘‘[d]iscretionary act

immunity reflects a value judgment that—despite injury

to a member of the public—the broader interest in

having government officials and employees free to exercise judgment and discretion in their official functions,

unhampered by fear of second-guessing and retaliatory

lawsuits, outweighs the benefits to be had from imposing liability for that injury.’’ (Internal quotation marks

omitted.) Id., 615. ‘‘The hallmark of a discretionary act

is that it requires the exercise of judgment.’’ (Internal

quotation marks omitted.) Bonington v. Westport,

supra, 297 Conn. 306. ‘‘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.’’(Internal quotation marks omitted.)

Doe v. Petersen, supra, 615.

‘‘Although the determination of whether official acts

or omissions are ministerial or discretionary is normally

a question of fact for the fact finder . . . there are

cases where it is apparent from the complaint . . .

[that the nature of the duty] and, thus, whether governmental immunity may be successfully invoked pursuant

to . . . § 52-557n (a) (2) (B), turns on the character of

the act or omission complained of in the complaint.

. . . Accordingly, where it is apparent from the complaint that the defendants’ allegedly negligent acts or

omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in

nature, summary judgment is proper.’’ (Footnote omitted; internal quotation marks omitted.) Bonington v.

Westport, supra, 297 Conn. 307–308.

With these principles in mind, we turn to the dispositive issue in the present case. The plaintiff argues that

the Appellate Court improperly concluded that any duty
to remain at the scene that the defendant allegedly owed

to the decedent under the police response procedures

was discretionary.11 Contrary to the Appellate Court’s

determination, the plaintiff contends that the mandatory language in § III (B) (4) of the police response

procedures, specifically the phrase ‘‘shall remain,’’ renders the duty to remain at the scene ministerial. The

plaintiff maintains that the police response procedures

were enacted to curtail law enforcement discretion and,

to that end, the procedures mandate that police officers

remain at the scene of a domestic violence incident

when an arrest is not made. Insofar as the police

response procedures provide that an officer shall

remain at the scene ‘‘for a reasonable time until, in the

reasonable judgement of the officer, the likelihood of

further imminent violence has been eliminated’’; Hartford Police Dept. Policy and Procedure, supra, § III (B)

(4); the plaintiff argues that ‘‘reasonable’’ is an objective

standard of reasonableness that creates an issue for

the trier of fact.

The defendant, by contrast, contends that the police

response procedures at issue in the present case necessarily require the exercise of judgment and, therefore,

are discretionary. Specifically, the defendant argues

that the police response procedures vest police officers

with discretion to determine how long to remain at the

scene, that is, what constitutes a ‘‘reasonable time’’

until ‘‘in the reasonable judgement of the officer, the

likelihood of further imminent violence has been eliminated.’’ (Emphasis added.) Id.; General Statutes § 46b38b (d). Because the defendant’s allegedly negligent

acts in ‘‘le[aving] the scene before the likelihood of

further violence had been eliminated’’ necessarily

involved the exercise of judgment or discretion, the

defendant argues that it is entitled to discretionary act

immunity pursuant § 52-557n (a) (2) (B). We agree with

the defendant.

We begin by observing the broad scope of governmental immunity that is traditionally afforded to the actions

of municipal police departments. ‘‘[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. . . . [Accordingly]

[t]he failure to provide, or the inadequacy of, police

protection usually does not give rise to a cause of action

in tort against a city.’’ (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208

Conn. 161, 180, 544 A.2d 1185 (1988). In Gordon, we

concluded that the city was immune from liability for

injuries stemming from an alleged shortage of police

patrols because ‘‘the general deployment of police officers is a discretionary governmental action as a matter

of law.’’ Id. ‘‘[B]ecause a police chief’s authority to

assign his officers to particular duties is deemed a matter that concerns the public safety, he may not be
deprived of his power to exercise his own discretion

and judgment as to the number, qualifications and identity of officers needed for particular situations at any

given time . . . .’’ (Internal quotation marks omitted.)

Id. Although the issue in the present case does not

concern the deployment of police officers generally,

but rather the defendant’s alleged failure to adhere to

specific police response procedures, we find Gordon

instructive because it underscores the considerable discretion inherent in law enforcement’s response to an

infinite array of situations implicating public safety on

a daily basis.

We now turn to the facts in the present case.

‘‘Determining whether it is apparent on the face of the

complaint that the acts complained of are discretionary

requires an examination of the nature of the alleged

acts or omissions.’’ Violano v. Fernandez, supra, 280

Conn. 322. In his complaint, the plaintiff alleges that

the defendant was negligent in leaving the scene of the

domestic violence dispute, 47 Bolton Street, before the

likelihood of further violence had been eliminated,

allegedly in violation of the police response procedures.

Although the complaint characterizes the police officers’ actions as ministerial in nature, that is, failing to

remain at the scene in violation of a clear policy directive, the police response procedures cited in the complaint required the exercise of discretion. Specifically,

the police response procedures provide that ‘‘[i]n the

event that an arrest is not made . . . officers shall

remain at the scene for a reasonable time until, in the

reasonable judgement of the officer, the likelihood of

further imminent violence has been eliminated.’’ Hartford Police Dept. Policy and Procedure, supra, § III (B)

(4). In actuality, then, the gravamen of the plaintiff’s

allegations is that the defendant failed to remain at the

scene for a reasonable time until, in the reasonable

judgment of the police officer, the likelihood of further

imminent violence had been eliminated.

It is difficult to conceive of policy language that could

more clearly contemplate the exercise of judgment by a

municipal employee than is contemplated by the police

response procedures in the present case. At a minimum,

the plaintiff would have this court ignore the police

response procedures’ explicit reference to the ‘‘reasonable judgement of the officer . . . .’’ Id. In no uncertain

terms, the policy requires police officers to exercise

their judgment in evaluating the likelihood of imminent

violence. The plaintiff’s strained interpretation also disregards the discretion inherent in the determination of

what amounts to a ‘‘reasonable time’’ under the police

response procedures. In fact, the police response procedures define ‘‘reasonable time’’ by reference to the

police officer’s discretion; it is the amount of time until

the likelihood of further imminent violence has been

eliminated as determined according to the reasonable

judgment of the police officer. See id.
Thus, the police response procedures in the present

case explicitly require the police officer’s judgment in

evaluating the circumstances in a given situation of

domestic violence. Because the policy language makes

the manner of performance expressly contingent upon

the police officer’s discretion, it cannot be said that the

alleged acts were to be ‘‘performed in a prescribed

manner without the exercise of judgment . . . .’’ (Internal quotation marks omitted.) Doe v. Petersen, supra,

279 Conn. 615. We conclude, therefore, that the defendant’s allegedly negligent acts were discretionary.12

The plaintiff also claimed at oral argument that, even

conceding that the police response procedures are discretionary with respectto what constitutes a reasonable

time,13 the defendant was nonetheless required to

remain at the scene for some time once police officers

determined that there was probable cause for arrest

and an arrest was not made. The plaintiff’s claim centers

on the allegedly mandatory nature of the word ‘‘shall’’

in § III (B) (4) of the police response procedures, which

provides that ‘‘[i]n the event that an arrest is not made

. . . officers shall remain at the scene for a reasonable

time . . . .’’ (Emphasis added.) Thus, as we understand

the plaintiff’s argument, he contends that the defendant

had a ministerial duty to remain at the scene for some

amount of time once there was probable cause to arrest

Chapdelaine.14 We disagree.

Contrary to the plaintiff’s contention, the word

‘‘shall’’ does not necessarily give rise to a ministerial

duty to remain at the scene when the policy language,

read in its entirety, clearly relies upon the police officer’s discretion in deciding how to perform the allegedly

ministerial act of remaining at the scene. ‘‘The mere

fact that a statute uses the word ‘shall’ in prescribing

the function of a government entity or officer should

not be assumed to renderthe function necessarily obligatory in the sense of removing the discretionary nature

of the function.’’ 57 Am. Jur. 2d 113, Municipal, County,

School, and State Tort Liability § 82 (2001). To illustrate

how mandatory language does not necessarily render

a duty ministerial as opposed to discretionary, we turn

to our Appellate Court’s decision in Mills v. The Solution, LLC, 138 Conn. App. 40, 51, 50 A.3d 381, cert.

denied, 307 Conn. 928, 55 A.3d 570 (2012).

In Mills, the plaintiff appealed from the trial court’s

summary judgment rendered in favor of the defendant,

a municipal police department, on the ground of governmental immunity for its allegedly negligent failure to

provide police protection at a carnival where the plaintiff’s decedent was fatally shot. Id., 40, 43. Specifically,

the plaintiff argued that the defendant had a ministerial

duty to provide the police protection that it determined,

in its discretion, was necessary pursuant to the statute

governing police protection at places of public amusement. Id., 51. General Statutes § 7-284 provides in rele-
vant part that ‘‘[w]hen police protection is necessary

or required at any . . . place of public amusement . . .

the amount of such protection necessary shall be determined and shall be furnished by (1) the chief . . . of

the police department . . . .’’ (Emphasis added.) While

the plaintiff did not dispute that § 7-284 affords the

defendant discretion to determine whether police protection is necessary and, if so, the amount of such

protection, the plaintiff argued that ‘‘once the chief of

police, in his or her discretion, determines that police

protection is necessary, the chief of police then has a

ministerial duty to furnish such protection.’’ Mills v.

The Solution, LLC, supra, 138 Conn. App. 50–51.

Like the plaintiff in the present case, the plaintiff in

Mills argued that the mandatory nature of the word

‘‘shall’’ rendered the duty to furnish necessary police

protection ministerial. Id., 51. The Appellate Court

rejected this argument: ‘‘We disagree with the plaintiff

that the word ‘shall’ is sufficient to convert what is

otherwise a discretionary act into a ministerial duty

where the text of the statute leaves to the discretion

of the police official how to perform the function

. . . .’’ Id. Similarly, in the present case, the police

response procedures leave to the discretion of the

police officer how to perform the obligation to remain

at the scene of a domestic violence crime. We find that

the policy language vesting discretion with the police

officer to determine what constitutes a reasonable time

is inextricably intertwined with the policy language stating that the police officer ‘‘shall remain’’ at the scene.

Accordingly, we decline the plaintiff’s invitation to

parse the policy language so as to create a ministerial

duty to remain at the scene notwithstanding the discretionary performance of that duty.15

The facts in the present case are undeniably tragic,

and, understandably, the parties are left questioning

whether anything more could have been done to prevent

the realities that unfolded. It is, however, precisely

because it can always be alleged, in hindsight, that a

public official’s actions were deficient that we afford

limited governmental liability for acts that necessarily

entailed the exercise of discretion. ‘‘We do not think

that the public interest is served by allowing a jury of

laymen with the benefit of 20/20 hindsight to secondguess the exercise of a policeman’s discretionary professional duty. Such discretion is no discretion at all.’’

Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379

(1982); see Doe v. Peterson, supra, 279 Conn. 615 (‘‘[d]iscretionary 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 fear of secondguessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury’’

[internal quotation marks omitted]); Wadsworth v. Mid-
dletown, 94 Conn. 435, 440, 109 A. 246 (1920)(‘‘[t]imidity

and doubt would govern [public officials’] performance

of public duty if they acted in the consciousness that

personal liability might follow, no matter how closely

they followed their best discretion’’). In short, the police

officers’ allegedly negligent acts in the present case

required the exercise of discretion, and, accordingly,

the defendant is immune from liability for its discretionary acts.

Forthe reasons set forth in this opinion, the Appellate

Court properly determined that the duty to remain at

the scene in the present case was discretionary. Accordingly, we conclude that the Appellate Court properly

affirmed the trial court’s decision rendering summary

judgment in the defendant’s favor on the ground that

the defendant is entitled to immunity from liability pursuant to § 52-557n.

The judgment is affirmed.

In this opinion PALMER, ZARELLA, McDONALD,

ESPINOSA and ROBINSON, Js., concurred.

1 General Statutes § 46b-38b provides in relevant part: ‘‘(a) Whenever a

peace officer determines upon speedy information that a family violence

crime has been committed within such officer’s jurisdiction, such officer

shall arrest the person or persons suspected of its commission and charge

such person or persons with the appropriate crime. . . .

‘‘(d) It shall be the responsibility of the peace officer at the scene of a

family violence incident to provide immediate assistance to the victim. . . .

In cases where the officer has determined that no cause exists for an arrest,

assistance shall include . . . (B) remaining at the scene for a reasonable

time until, in the reasonable judgment of the officer, the likelihood of further

imminent violence has been eliminated. . . .’’

Although this statute has been revised since the events giving rise to this

appeal; see, e.g., Public Acts 2010, No. 10-36, § 5; Public Acts 2011, No. 11-

152, § 3; those revisions have no bearing on the merits of the present case.

Accordingly, for purposes of convenience, we refer to the current revision

of the statute.

2 Specifically, the plaintiff relies on the portion of the police response

procedures which provides: ‘‘In the event that an arrest is not made, [Public

Acts 1986, No. 86-337, § 2, codified at General Statutes § 46b-38b] requires

that officers shall remain at the scene for a reasonable time until, in the

reasonable judgement of the officer, the likelihood of further imminent

violence has been eliminated.’’ Hartford Police Dept. Policy and Procedure,

supra, § III (b) (4).

These procedures were promulgated under statutory mandate. See General Statutes § 46b-38b (e) (1) (B) (‘‘[e]ach law enforcement agency shall

develop, in conjunction with the Division of Criminal Justice, and implement

specific operational guidelines for arrest policies in family violence incidents

. . . [including] procedures for arrest and for victim assistance by peace

officers’’). We note that although § 46b-38b (e) has been amended since the

police response procedures were implemented, the statutory authorization

for implementing such procedures has remained unchanged. Accordingly,

we referto the currentrevision of § 46b-38b (e). Although the police response

procedures have subsequently been amended since their enactment in 1986,

we refer to the procedures that were in place on November 5, 2007, at the

time of the alleged events in the present case.

3 The three certified questions in this appeal are as follows: ‘‘(1) Did the

Appellate Court properly determine that . . . § 46b-38b did not apply to

this case?; (2) Did the Appellate Court properly determine that any duty

created by the statutory scheme was not owed to the plaintiff’s decedent?;

and (3) Did the Appellate Court properly determine that any duty was

discretionary?’’ Coley v. Hartford, 308 Conn. 922, A.3d (2013).

4 General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except 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 . . . .

(2) Except as otherwise provided by law, a political subdivision of the state

shall not be liable for damages to person or property caused by . . . (B)

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.’’

5 We note that the trial court’s order granting summary judgment in favor

of the defendant does not discuss the facts alleged in this case, nor does

it reference any affidavits or supporting documents submitted by the parties.

See footnote 8 of this opinion. At oral argument, the parties agreed that the

facts as set forth in the Appellate Court opinion were drawn from the police

report that the investigating police officer, Garrett Fancher, and the assisting

police officer, Zachary Freeto, prepared in connection with the alleged

incidents in the present case. The defendant submitted the police report as

an exhibit to its memorandum in support of the motion for summary judgment. See Practice Book § 17-45 (‘‘[a] motion for summary judgment shall

be supported by such documents as may be appropriate, including but not

limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like’’).

The plaintiff does not contest the facts as set forth in the police report,

nor does he contest the facts as recited by the Appellate Court. Accordingly,

in our disposition of this appeal we rely on the uncontested facts in the

police report, as recited in the Appellate Court opinion and as construed

in the light most favorable to the plaintiff. See Coley v. Hartford, supra, 140

Conn. App. 317 n.2 (‘‘ ‘[t]he record [is] viewed in the light most favorable

to the nonmoving plaintiff for purposes of reviewing the trial court’s grant

of summary judgment’ ’’), quoting Martinelli v. Fusi, 290 Conn. 347, 350,

963 A.2d 640 (2009). Additional facts from the police report in the present

case are set forth as necessary.

6

It is undisputed that Chapdelaine returned to 47 Bolton Street and fatally

shot the decedent.

7 We have described the identifiable person-imminent harm exception

to discretionary act immunity as follows: ‘‘Discretionary act immunity is

abrogated 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 . . . . By its own terms, this test requires three things:

(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 that

victim to harm.’’ (Citation omitted; internal quotation marks omitted.) Doe

v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006).

8 The trial court’s order granting the defendant’s motion for summary

judgment provides in its entirety as follows: ‘‘Under [§] 52-557n (a) (2) (B),

the [defendant] is not liable for discretionary acts and the officers’ decision

to try and find and arrest the domestic violence perpetrator and eventual

shooter, was a discretionary act. The [decedent], shooting victim, was not

an identifiable victim subject to imminent harm, [Williams] was. [Section]

46b-38b (d) requires the officers to exercise reasonable time and reasonable

judgment which makes it discretionary.’’

The plaintiff did not challenge the trial court’s determination that there

is no identifiable person-imminent harm exception to discretionary act

immunity in the present case. During oral argument in the Appellate Court,

the plaintiff explained that the decision not to appeal this aspect of the trial

court’s decision was because, in the plaintiff’s view, the decedent would

not qualify as an identifiable person under the identifiable person-imminent

harm exception to discretionary act immunity. Coley v. Hartford, supra, 140

Conn. App. 320 n.5.

We express no view as to whether the plaintiff’s allegations, if taken

as true, are legally sufficient to satisfy the criteria required to overcome

governmental immunity underthe identifiable person-imminent harm exception to discretionary act immunity.

9 Because we find that the police response procedures apply in the present

case, and because the third issue is dispositive, we do not decide whether

the statute also operated to impose a ministerial or discretionary duty on

police officers to remain at the scene for a reasonable time.

We note, however, that the plaintiff concedes that the facts in the present

case do not fall exclusively under either of the two relevant subsections

of § 46b-38b. See footnote 1 of this opinion. Section 46b-38b (a) and (d),

respectively, appear to prescribe distinct police responses to domestic violence disputes depending upon whether cause for arrest exists. When there
is cause for arrest, subsection (a) requires that police officers arrest the

domestic violence perpetrator. When there is no cause for arrest, subsection

(d) requires that police officers remain at the scene for a reasonable time.

The statute does not expressly prescribe the appropriate police response

when there is cause for arrest, but no arrest is in fact made because the

perpetrator cannot be located.

In the present case, it is undisputed that police officers were required

to arrest Chapdelaine under § 46b-38b (a) upon information that he had

committed a family violence crime. It is also undisputed, however, that

police officers were attempting to arrest Chapdelaine but were unable to

locate him. Because Chapdelaine was still at large, the plaintiff contends

that police officers were required under § 46b-38b (d) to remain at the scene

until the likelihood of imminent violence had been eliminated, presumably

upon Chapdelaine’s arrest. In essence, the plaintiff argues that the legislature

must have intended to require police officers to remain at the scene for a

reasonable time, pursuant to § 46b-38b (d), when, as in the present case,

grounds for arrest exist but no arrest is in fact made.

We agree with the plaintiff that the facts in the present case reveal a

potential gap in the statute. In view of our determination that the police

response procedures gave rise to some type of duty to remain at the scene

in the present case, however, we do not decide whether § 46b-38b (d) also

required police officers to remain at the scene in the present case.

10 Although this court has recognized three exceptions to discretionary

act immunity; see Grady v. Somers, 294 Conn. 324, 338 and n.14, 984 A.2d

684 (2009); the plaintiff does not argue that any of those exceptions are

applicable under the facts in the present case.

11 We note that the plaintiff also argues that the defendant had a ministerial

duty under § 46b-38b (a) and the police response procedures, respectively,

to make an arrest when a family violence crime had been committed, and

that the defendant violated that duty by failing to arrest Chapdelaine. These

claims do not warrant extended discussion for the following reasons.

First, even if we were to assume that the defendant had a ministerial duty

under § 46b-38b (a) to arrest Chapdelaine upon information that he had

committed a family violence crime, it is undisputed that police officers were

attempting to arrest Chapdelaine. When Chapdelaine could not be found,

the police officers prepared a warrant for his arrest. It would be absurd to

conclude that law enforcement’s failure to arrest a suspect who cannot be

located, despite reasonable efforts to do so, violates § 46b-38b (a). We

therefore conclude that, as a matter of law, the defendant complied with

any mandatory directive that was arguably owed to the plaintiff’s decedent

under § 46b-38b (a).

For these same reasons, we reject the plaintiff’s claim that the defendant

violated a ministerial duty, under the police response procedures, to arrest

Chapdelaine for violating a protective order. Furthermore, it bears noting

that the police response procedures prescribe that when an officer has

probable cause to believe that a protective order has been violated, and the

violator is not present, the officer must apply for an arrest warrant. See

Hartford Police Dept. Policy and Procedure, supra, § III (B) (5) (e) (‘‘[i]f

the violator is not present when the officer arrives, the officer shall investigate the incident and, if probable cause exists, the officer will apply for an

arrest warrant’’). It is undisputed that the police officers in the present case

followed this procedure.

12 In support of his claim to the contrary, the plaintiff submitted the sworn

affidavit of Reginald F. Allard, Jr., a ‘‘police procedure expert,’’ as an exhibit

to his memorandum in opposition to the defendant’s motion for summary

judgment. Allard’s affidavit provides in relevant part as follows: ‘‘In my

opinion, [§ 46b-38b et seq. and the police response procedures] are mandatory and must be followed by municipal employees without question, and

involve no discretion as to the obligation to remain at the scene of the

domestic violence incident until the victim was no longer under threat.’’

(Emphasis added.)

Allard’s statement that the statutory scheme and the police response

procedures ‘‘are mandatory’’ and ‘‘involve no discretion’’ provide only a

conclusion that, in his opinion, the police officers had a ministerial duty to

remain at the scene. Allard’s opinion is thus a conclusory statement that

does not create a genuine issue of material fact as to the nature of the duty

allegedly owed to the plaintiff’s decedent. See Buell Industries, Inc. v.

Greater New York Mutual Ins. Co., 259 Conn. 527, 557, 791 A.2d 489 (2002)

(‘‘[a]lthough an affidavit by an expert may be considered in opposition to

a motion for summary judgment, conclusory affidavits, even from expert
witnesses, do not provide a basis on which to deny such motions’’ [internal

quotation marks omitted]).

Moreover, Allard’s interpretation of the police response procedures at

issue in the present case is untenable. Allard’s opinion directly contradicts

the language of the police response procedures, which provide that officers

shall remain at the scene for a ‘‘reasonable time until, in the reasonable

judgement of the officer, the likelihood of further imminent violence has

been eliminated.’’ Hartford Police Dept. Policy and Procedure, supra, § III

(B) (4). Allard’s claim that officers have ‘‘no discretion’’ disregards the clear

policy language vesting discretion in the officers to determine how long to

remain at the scene based upon their judgment as to the likelihood of further

imminent violence. Additionally, Allard’s assertion in his affidavit that the

officers must remain at the scene ‘‘until the victim [is] no longer under

threat’’ ignores the explicit reference in § III (B) (4) of the police response

procedures to the police officer’s judgment as to the ‘‘likelihood of further

imminent violence . . . .’’ Finally, it is telling that the expert concludes that

the procedures are ministerial, yet he provides no insightinto the ‘‘prescribed

manner’’ in which police officers are supposed to act. See Violano v. Fernandez, supra, 280 Conn. 318 (‘‘[m]inisterial refers to a duty [that] is to be

performed in a prescribed manner without the exercise of judgment or

discretion’’ [internal quotation marks omitted]).

Indeed, the police response procedures do not prescribe how long officers

must remain at the scene because that duration is a variable contingent

upon whether the threat of imminent violence has been eliminated, which

itself is a variable contingent upon the unique facts and circumstances of

the domestic violence situation. On their face, the procedures rely on the

police officer’s judgment as to the likelihood of further imminent violence

in a given situation. Although the defendant conceivably could have prescribed set parameters for police officers to adhere to in every situation,

for instance that officers must remain at the scene for one hour, there are

no such procedures at issue in the present case. Rather, the duty to remain

at the scene for ‘‘a reasonable time until, in the reasonable judgement of

the officer, the likelihood of further imminent violence has been eliminated’’;

Hartford Police Dept. Policy and Procedure, supra, § III (B) (4); is inherently discretionary.

13 To the extent that the plaintiff has suggested that there is a question

for the trier of fact as to whether the police officers remained at the scene

for a reasonable time under an objective standard of reasonableness, we

disagree. By definition, negligent acts are not objectively reasonable. ‘‘Imposing liability when a municipal officer deviated from an ordinary negligence

standard of care would render a municipality’s liability under § 52-557n no

different from what it would be under ordinary negligence. This would run

counter to the purpose of governmental immunity, which is to protect a

municipality from liability arising from a municipal officer’s negligent, discretionary acts unless the officer’s duty to act is clear and unequivocal.’’ Edgerton v. Clinton, 311 Conn. 217, 228 n.10, 86 A.3d 437 (2014); General Statutes

§ 52-557n (a) (2) (‘‘[e]xcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property

caused by . . . [B] negligent acts or omissions which require the exercise

of judgment or discretion’’).

14 At oral argument before this court, the defendant, as evidenced by the

following colloquy, appeared to concede that the police response procedures

give rise to a duty to remain at the scene for at least some period of time.

‘‘The Court: The procedures do require [the police] to remain at the scene

for some time?

‘‘The Defendant: Yes.

‘‘The Court: Do we know from this record whether [the police] remained

at the scene?

‘‘The Defendant: Well, we do know from the record that [the police] took

enough information from [the decedent] and from Williams as to what

happened that day, there [is] a three page [police] report. They must have

stayed for some period of time to get that information.

‘‘The Court: But they first of all have to determine whether or not there

is probable cause for an arrest, I would think that [the police] would have

to take information for that, but after they determined whether or not to

make an arrest, it would seem that there is some requirement that they

have to stay at the scene. And do we know whether they stayed at the scene

here? Other than asking for information?

‘‘The Defendant: I guess it’s not clear as to how long they were there.

‘‘The Court: Would you agree [the police] have to stay for a certain period
of time?

‘‘The Defendant: Yes, they do have to stay for a certain period of time.

Of course, it’s difficult to put a number on that . . . .’’

It is unclear, however, whether the defendant’s statement that the police

officers had to remain at the scene for some duration was a concession

that they had to remain at the scene afterthey determined there was probable

cause for arrest as opposed to after the police initially responded to the

scene.

In the dissent’s view, the defendant’s response to the court’s inquiry at

oral argument was a clear concession that police officers have a ministerial

duty to remain at the scene for at least some time after there is probable

cause to arrest a suspect for a family violence crime and the arrest has not

been made. We are less certain. Even if the defendant did state that police

officers must remain at the scene after the probable cause determination,

however, it is not necessarily also true that the defendant conceded that

this duty is ministerial, as opposed to discretionary. To the extent that the

defendant’s statements at oral argument arguably could be construed as a

concession of the central issue in the present case regarding the nature of

the duty arising under the police response procedures, however, we are not

bound by that concession. See State v. Reddick, 224 Conn. 445, 463 n.19,

619 A.2d 453 (1993) (‘‘we are not bound by ill advised concessions of any

party’’); State v. Putnoki, 200 Conn. 208, 219 n.6, 510 A.2d 1329 (1986)

(‘‘The state concurs with the defendant that the evidence was insufficient

to support the trial court’s finding. We are not, however, bound by the state’s

concession.’’); State v. Avery, 199 Conn. 377, 379 n.2, 507 A.2d 464 (1986)

(‘‘[w]e consider this appeal on the merits despite the state’s concession, in

its brief, that the trial court had erred’’).

15 It is the dissent’s position that the duty to remain at the scene was

ministerial, despite the fact that the precise manner in which the police

officers performed that duty was discretionary. The dissent relies principally

on Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975), and Soderlund v.

Merrigan, 110 Conn. App. 389, 955 A.2d 107 (2008). Each of these cases is

distinguishable from the present case. Therefore, we do not find the dissent’s

argument persuasive.

First, the dissent relies on Wright v. Brown, supra, 167 Conn. 464, for the

proposition that a ministerial duty may follow a discretionary determination.

That case is inapposite. In Wright, the statute at issue required the municipal

canine control officer to determine whether a dog had bitten a person

off of the dog owner’s premises and, upon making that determination, to

quarantine the dog. Id., 466. This court concluded that once the officer made

the discretionary determination that, in the officer’s judgment, the dog had

so bitten someone, ‘‘the subsequent duty to quarantine for fourteen days

was mandatory and, therefore, ministerial.’’ Id., 472. The statute in Wright,

however, clearly delineated the nature and duration ofthe mandatory quarantine; see id., 466 n.1; thus removing the canine control officer’s discretion

in the performance of that duty. The police response procedures in the

present case, by contrast, afford complete discretion to police officers in

performing the obligation to remain at the scene of a domestic violence

incident. For that reason, Wright is readily distinguishable from the present

case and does not persuade us that there was a ministerial duty to remain

at the scene.

We also distinguish our Appellate Court’s decision in Soderlund v. Merrigan, supra, 110 Conn. App. 389, from the present case. In Soderlund, the

Appellate Court concluded that a municipality was not immune from liability

for negligently failing to vacate an arrest warrant pursuant to a court order.

Id., 397. The Appellate Court concluded that the order to vacate an arrest

warrant is mandatory, not discretionary, reasoning as follows: ‘‘[T]he conduct complained of does not fall within the definition of a discretionary act

because it does not involve the exercise of judgment and discretion. Instead,

the order to vacate an arrest warrant is mandatory. It does not matter how

the order is vacated, but, simply put, it must be vacated.’’ Id. Relying on

Soderlund, the dissent posits that regardless of how the police officers

performed the duty to remain at the scene, they were required to remain

at the scene. Respectfully, Soderlund does not speak to the issue in the

present case, namely, whetherthe duty to remain at the scene was ministerial

or discretionary. The two cases are not analogous. In Soderlund, the duty

to vacate an arrest warrant was ministerial because, no matter how the

warrant was vacated, there was no discretion involved in the underlying

duty to vacate the warrant. In the present case, by contrast, the duty to

remain at the scene was inherently discretionary because that duty, in and

of itself, required the exercise of judgment under the clear language of the
police response procedures.