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Bucci v. Bridgeport

ELIZABETH BUCCI v. CITY OF BRIDGEPORT

(AC 46399)

Elgo, Suarez and Keller, Js.

Syllabus

The plaintiff sought to recover damages from the defendant city for injuries

she sustained in connection with a motor vehicle accident. On the night

of the accident, after finishing their shifts, C and G, police officers

employed by the defendant, drove separately to a restaurant, where C

consumed alcoholic beverages. When they left the establishment, C was

visibly intoxicated. As G was following C to his home, C’s vehicle crossed

into the plaintiff’s lane of travel and collided with her vehicle. The

plaintiff claimed that the defendant was liable for G’s allegedly negligent

conduct in allowing C to operate his vehicle while under the influence

of alcohol pursuant to the applicable statute (§ 52-557n) and for failing

to properly screen C prior to hiring him as a member of the police

department. The trial court granted the defendant’s motion for summary

judgment and denied the plaintiff’s motion for summary judgment, and

the plaintiff appealed to this court. Held:

1. The trial court properly determined that a genuine issue of material

fact did not exist as to whether G was acting within the scope of his

employment or official duties so as to subject the defendant to a claim

for the plaintiff’s injuries pursuant to § 52-557n (a) (1) (A): the affidavits

submitted by the defendant in connection with its motion for summary

judgment demonstrated that G was not engaged in any official duty of

his employment or doing something incidental to it at the time of his

allegedly negligent conduct, as G and C had been off duty for approximately four hours prior to the accident, they drove their personal vehicles to the restaurant, they were not in uniform and did not have badges,

identifying insignia or service weapons on their person at the restaurant,

they had not been attending a party sponsored by the police department,

and they did not perform any police services while at the restaurant;

moreover, contrary to the plaintiff’s assertions, G’s violations of the

police department’s policies and procedures did not constitute violations

of his official duties pursuant to statute (§ 54-1f) but, rather, were violations of his overall responsibility and ethical character.

2. The trial court properly determined that the plaintiff’s claim regarding

the defendant’s negligent hiring of C was barred by the applicable statute

of limitations (§ 52-584): because C was hired in 2011 and the present

case was commenced in 2019, C was hired more than three years before

the institution of the present action; moreover, the court properly determined that the plaintiff had waived her claim that the continuing course

of conduct doctrine tolled the statute of limitations as it was procedurally
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Bucci v. Bridgeport

defective because, instead of affirmatively pleading the doctrine in avoidance of the defendant’s statute of limitations special defense, she

asserted it for the first time in her memorandum of law in opposition

to the defendant’s motion for summary judgment; furthermore, the court

properly rejected the plaintiff’s continuing course of conduct argument

on substantive grounds as the plaintiff failed to allege that she had a

special relationship with the defendant or to demonstrate that a genuine

issue of material fact existed with respect to whether the defendant

committed some later, actual or affirmative wrongful act related to the

initial hiring of C.

Argued February 7—officially released August 27, 2024

Procedural History

Action to recover damages for personal injuries sustained as a result of, inter alia, the defendant’s alleged

negligence, brought to the Superior Court in the judicial

district of Fairfield, where the court, Welch, J., granted

the defendant’s motion to strike the second count of

the plaintiff’s complaint; thereafter, the court, Hon.

Barry K. Stevens, judge trial referee, granted the defendant’s motion for summary judgment, denied the plaintiff’s motion for summary judgment, and rendered judgment thereon, from which the plaintiff appealed to this

court. Affirmed.

Stephanie Z. Roberge, for the appellant (plaintiff).

Bruce L. Levin, associate city attorney, for the appellee (defendant).

Opinion

SUAREZ, J. The plaintiff, Elizabeth Bucci, appeals

from the judgment rendered by the trial court following

its granting of a motion for summary judgment that was

filed by the defendant, the city of Bridgeport, and its

denial of her motion for summary judgment. On appeal,

the plaintiff claims that, in granting the defendant’s

motion for summary judgment, the court improperly

(1) concluded that a genuine issue of material fact did

not exist with respect to whether Bridgeport Police
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Bucci v. Bridgeport

Officer Anthony Gianpoalo1 was acting within the scope

of his employment or official duties, and (2) determined

that her claim based on the defendant’s negligent hiring

of Bridgeport Police Officer John Carrano was barred

by the applicable statute of limitations.2 We affirm the

judgment of the trial court.

The following procedural history is relevant to our

resolution of this appeal. In November, 2019, the plaintiff commenced this action against the defendant. In

her complaint, subsequently amended on August 5, 2021

(amended complaint), the plaintiff brought a cause of

action, sounding in negligence, based on the conduct

of Gianpoalo.3 In count one of her amended complaint,

the plaintiff alleged the following facts: ‘‘At all times

relevant . . . [Carrano] . . . [and Gianpoalo] . . .

were employed by the defendant . . . . [O]n the evening of December 22, 2017 . . . Carrano and other

1 Gianpoalo’s name is alternatively spelled ‘‘Gianpaolo’’ in the record and

in the parties’ appellate briefs. We will use the spelling Gianpoalo because

that is how his name appears on his affidavit that was submitted to the

court in connection with the defendant’s motion for summary judgment. 2 The plaintiff also claims on appeal that the court erred in ‘‘holding [that]

the discretionary function doctrine barred [her August 5, 2021 amended]

complaint.’’ The court, however, did not grant the defendant’s summary

judgment motion on this ground. Accordingly, we need not address this

issue in light of our conclusions that the court correctly determined that a

genuine issue of material fact did not exist as to whether Gianpoalo and

Carrano were acting within the scope of their employment and that the

plaintiff’s claim of negligent hiring was barred by the statute of limitations.

Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985) (‘‘we need

not address other issues raised on appeal if the trial court has correctly

decided an issue that is sufficient to sustain the judgment’’ (emphasis omitted)). Moreover, in light of our decision to affirm the court’s judgment

granting the defendant’s summary judgment motion, we need not address

the court’s denial of the plaintiff’s motion for summary judgment. 3 Although the plaintiff referred to Gianpoalo as Officer Doe in her

amended complaint, by the time that the court subsequently ruled on the

defendant’s motion for summary judgment, it was undisputed that Officer

Doe referred to Gianpoalo. For the purposes of clarity, all references to

Officer Doe in the plaintiff’s amended complaint have been changed to

Gianpoalo.
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Bucci v. Bridgeport

police officers . . . were attending a holiday party held

by the . . . Bridgeport Police Department at Vazzy’s

Pasta & Pizza [in Bridgeport (Vazzy’s)] . . . . Between

approximately 10 p.m. on December 22, 2017, and 12:08

a.m. on December 23, 2017, [Carrano] consumed alcoholic beverages and became visibly intoxicated while

attending said party. . . .

‘‘On December 23, 2017, at approximately 12:08 a.m.,

[Carrano] left [Vazzy’s] intoxicated and was accompanied by [Gianpoalo] . . . . [Gianpoalo] . . . permitted [Carrano] to drive his motor vehicle when [he] knew

or should have known that [Carrano] was intoxicated.

. . . [Gianpoalo] . . . made a plan to follow [Carrano]

to his destination when he knew or should have known

that [Carrano] was intoxicated and undertook to follow

him as planned. . . .

‘‘On December 23, 2017, at approximately 12:08 a.m.,

the plaintiff . . . was operating her motor vehicle in a

northerly direction on Broadridge Avenue, at or near

the intersection of Emerald Place, in Bridgeport . . . .

[A]s the plaintiff . . . proceeded northbound on Broadridge Avenue, the vehicle operated by [Carrano], suddenly and without warning, crossed over the yellow

line into the plaintiff’s lane of travel and violently collided into the front of her vehicle, resulting in significant

front end damage which required the plaintiff to be

extricated from the vehicle. . . . The plaintiff . . .

and [Carrano] were both transported by ambulance

from the scene of the accident to Bridgeport Hospital

for an evaluation of their injuries. . . . Following an

investigation by the Stratford Police Department, it was

discovered that [Carrano’s] blood alcohol content was

0.25 . . . at the time he was being treated at Bridgeport

Hospital following the collision.

***

‘‘As a . . . result [of the accident], the plaintiff . . .

incurred considerable expenses for emergency medical
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Bucci v. Bridgeport

care, hospitalization, physicians’ visits, diagnostic studies, physical rehabilitation, surgical intervention, follow-up therapy, and medicines . . . .’’

In her amended complaint, the plaintiff alleged that,

pursuant to General Statutes § 52-557n,4 the defendant,

through its agents, servants, and/or employees, was liable for the damages she sustained as a result of the

accident. Specifically, the plaintiff alleged that the

defendant was liable because Gianpoalo allowed Carrano to operate his motor vehicle while under the influence of alcohol in violation of General Statutes §§ 14-

222 and 14-227a5 and several Bridgeport Police Department policies.6 The plaintiff also alleged that the defendant was liable because Gianpoalo failed to prevent

Carrano’s operation of his motor vehicle in violation of

General Statutes § 54-1f,7 as Gianpoalo did not arrest

4 General Statutes § 52-557n provides in relevant part: ‘‘(a) (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 . . . .’’ 5 General Statutes § 14-222 provides in relevant part: ‘‘(a) No person shall

operate any motor vehicle upon any public highway of the state . . . recklessly . . . .’’

General Statutes § 14-227a provides in relevant part: ‘‘(a) No person shall

operate a motor vehicle while under the influence of intoxicating liquor or

any drug or both. A person commits the offense of operating a motor vehicle

while under the influence of intoxicating liquor or any drug or both if such

person operates a motor vehicle (1) while under the influence of intoxicating

liquor or any drug or both, or (2) while such person has an elevated blood

alcohol content. For the purposes of this section, ‘elevated blood alcohol

content’ means a ratio of alcohol in the blood of such person that is eighthundredths of one per cent or more of alcohol, by weight . . . .’’ 6 The policies that the plaintiff alleged Gianpoalo violated include 1.1.7

Law Enforcement Code of Ethics, 1.1.7.2 Performance of the Duties of a

Police Officer, 1.1.7.9 Private Life, 1.3.4 Knowledge of Department Rules

and Regulations, 1.3.5 Violation of Rules, 1.3.7 Conformance to Laws, and

1.3.21 Unbecoming Conduct. 7 General Statutes § 54-1f provides in relevant part: ‘‘(b) Members of . . .

any local police department . . . shall arrest, without previous complaint

and warrant, any person who the officer has reasonable grounds to believe

has committed or is committing a felony.’’
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Bucci v. Bridgeport

Carrano when he had reasonable grounds to believe

that Carrano was committing a felony. The plaintiff

further alleged that the defendant was liable for failing

to properly screen Carrano prior to hiring him as a

member of the Bridgeport Police Department. In count

three of her amended complaint,8 the plaintiff pleaded

in the alternative that, in the event the court finds that

the defendant’s actions were discretionary, Gianpoalo’s

duty to act was so clear and unequivocal that discretionary act immunity does not apply to the defendant.

On September 2, 2021, the defendant filed an answer

in response to the plaintiff’s amended complaint. In its

answer, the defendant admitted to some of the plaintiff’s allegations, denied some of the allegations, and

left the plaintiff to her proof as to other allegations.

In particular, the defendant admitted that it employed

Carrano and Gianpoalo as Bridgeport police officers

and that the officers were at Vazzy’s between approximately 8:30 p.m. and 11:45 p.m. on December 22, 2017,

but denied that they were attending a holiday party held

by the Bridgeport Police Department. The defendant

also admitted that, between approximately 10 p.m. and

11:45 p.m. that evening, Carrano consumed alcoholic

beverages and left Vazzy’s intoxicated, accompanied by

Gianpoalo. Moreover, the defendant admitted that, at

approximately 12:08 a.m. on December 23, 2017, the

vehicle operated by Carrano crossed over the yellow

line into the plaintiff’s lane of travel and violently collided into the front of her vehicle. The defendant further

admitted that the plaintiff and Carrano were transported by ambulance from the scene of the accident

to Bridgeport Hospital and that Carrano had a blood

8 On October 13, 2020, and July 2, 2021, the court, Welch, J., struck count

two of the plaintiff’s original and substitute complaints, respectively. Thereafter, the plaintiff left count two intentionally blank in her amended complaint. The plaintiff does not challenge the court’s granting of the defendant’s

motion to strike in this appeal.
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Bucci v. Bridgeport

alcohol content of 0.25 at the time he was treated at

the hospital. In addition, by way of a special defense,

the defendant alleged that the plaintiff operated her

motor vehicle in violation of General Statutes § 14-36.9

On September 13, 2021, the plaintiff filed a reply to

the defendant’s special defense raised in its September

2, 2021 answer, denying the defendant’s allegations contained therein. On May 20, 2022, the defendant filed a

request for leave to amend its answer and special

defense to include two additional special defenses. Specifically, the defendant alleged that the plaintiff’s claim

that the defendant negligently hired Carrano was barred

by the statute of limitations, as this action was commenced more than three years from the defendant’s

hiring of Carrano. The defendant also alleged that the

plaintiff’s claims were barred by governmental immunity. On May 27, 2022, the plaintiff filed an objection

to the defendant’s request to amend its answer and

special defense, arguing that the request would cause

undue delay and significant prejudice to the plaintiff.

On June 20, 2022, the court, Welch, J., overruled the

plaintiff’s objection and allowed the defendant to

amend its answer to include the two additional special

defenses. Later, the court permitted the defendant to

file a fourth special defense based on an allegation

that the plaintiff had released any claim sounding in

negligence against Carrano.10

9 General Statutes § 14-36 provides in relevant part: ‘‘(c) . . . (2) The

youth instruction permit shall entitle the holder, while such holder has the

permit in his or her immediate possession, to operate a motor vehicle on

the public highways, provided such holder is under the instruction of, and

accompanied by, a person who holds an instructor’s license . . . or a person

twenty years of age or older who has been licensed to operate, for at least

four years preceding the instruction, a motor vehicle of the same class as

the motor vehicle being operated and who has not had his or her motor

vehicle operator’s license suspended by the commissioner during the fouryear period preceding the instruction. . . .’’ 10 On July 12, 2022, the defendant filed a second request to amend its

answer to include a fourth special defense alleging that, ‘‘[t]o the extent

that the negligence of . . . Carrano is an element of any claim or cause of
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Bucci v. Bridgeport

On July 6, 2022, the defendant filed a motion for

summary judgment and a supporting memorandum of

law. In its motion for summary judgment, the defendant

argued that Carrano and Gianpoalo were off duty during

the events alleged in the plaintiff’s amended complaint

and were not acting within the scope of their employment pursuant to § 52-557n (a) (1) (A). See footnote 4

of this opinion. The defendant also argued that the

plaintiff’s claim of negligence for its hiring of Carrano

was barred by the statute of limitations pursuant to

General Statutes § 52-584.11 The defendant further

asserted that the plaintiff’s claim of negligence involved

discretionary acts for which there is governmental

immunity, and the plaintiff had not claimed that any

exception to governmental immunity applied. In support of its motion, the defendant submitted multiple

exhibits including, inter alia, affidavits from Carrano,

Gianpoalo, Bridgeport Police Captain Kevin Gilleran,

Kristine Kelley Dwyer (a manager of Vazzy’s), and the

former Bridgeport Chief of Police Armando Perez; the

deposition transcript of the acting Bridgeport Chief of

Police Rebeca Garcia; and a letter of findings and discipline imposed on Gianpoalo by the internal affairs division of the Bridgeport Police Department.

In both Carrano’s and Gianpoalo’s affidavits, the officers stated that, on December 22, 2017, at approximately 8 p.m., they were dismissed from their detail,

action, that claim or cause of action is barred by the plaintiff having released

Carrano for $50,000 consideration.’’ On July 27, 2022, the plaintiff filed an

objection to the defendant’s request to amend, arguing that the defendant’s

request to amend its answer would cause an unreasonable delay and was

unnecessary. On August 8, 2022, the court overruled the plaintiff’s objection

and allowed the defendant to amend its answer to include its fourth special defense. 11 General Statutes § 52-584 provides in relevant part: ‘‘No action to recover

damages for injury to the person . . . caused by negligence . . . shall be

brought but within two years from the date when the injury is first sustained

or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years

from the date of the act or omission complained of . . . .’’
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Bucci v. Bridgeport

removed their police uniforms, and dressed in civilian

attire. Thereafter, they drove their personal vehicles

to Vazzy’s. At Vazzy’s, the officers did not have any

identifying insignia, service weapons, or police badges

on their persons. They also stated that there were no

police holiday parties, or parties held by the defendant,

at Vazzy’s on December 22, 2017, nor did the defendant

provide the officers with alcoholic beverages, encourage their drinking, or compensate them for being at

Vazzy’s. The affidavits by Dwyer and Perez further supported the officers’ statements that there were no holiday parties at Vazzy’s involving the Bridgeport Police

Department on that date. Dwyer also averred that Carrano and Gianpoalo were not in uniform and did not

have any police markings on their clothing at Vazzy’s

that evening. Furthermore, Gianpoalo averred that he

and Carrano left Vazzy’s at approximately 11:40 p.m.,

and, shortly before midnight, he witnessed Carrano’s

vehicle veer into the northbound lane, striking the plaintiff’s vehicle.

On September 2, 2022, the plaintiff filed a motion for

summary judgment and supporting memorandum of

law, and an objection to the defendant’s motion for

summary judgment and supporting memorandum of

law. In her memorandum of law in support of her summary judgment motion, the plaintiff argued the defendant was liable to her, pursuant to § 52-557n, because

‘‘following the policies and procedures of the Bridgeport Police Department is part of an officer’s official

duties.’’ Specifically, the plaintiff asserted that,

‘‘[a]lthough [Gianpoalo] was off duty at the time he

knowingly permitted and facilitated his intoxicated fellow police officer to drive on December 23, 2017, he

was nonetheless acting within the scope of his employment or official duties.’’ In support of her argument,

the plaintiff relied on the testimony from the deposition

of Garcia where she affirmed that following the policies
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Bucci v. Bridgeport

and procedures of the Bridgeport Police Department is

part of an officer’s official duties. The plaintiff also

referenced the findings from the Bridgeport Police

Department’s internal affairs investigation and suspension of Gianpoalo for violating the police department’s

policies and procedures regarding his conduct on

December 23, 2017, while he was off duty. Moreover,

the plaintiff argued that § 54-1f mandated Gianpoalo to

intervene and arrest Carrano to stop him from operating

his motor vehicle while he was visibly intoxicated.

In her memorandum of law in support of her objection to the defendant’s summary judgment motion, the

plaintiff, for the first time, asserted that her negligent

hiring claim was not barred by the statute of limitations

on the basis of the continuing course of conduct doctrine. Specifically, she argued that ‘‘Carrano was unfit

to serve as a police officer from the day he was hired

and every day thereafter. . . . The [defendant’s] ministerial duty to keep an unfit police officer from the police

force continued from . . . Carrano’s date of hire until

his resignation. The actionable harm that occurred as

a result of that breach occurred on December 23, 2017,

and the plaintiff instituted this action well within the

applicable statute of limitations.’’ (Citation omitted;

emphasis omitted.)

On November 15, 2022, the defendant filed a memorandum of law in opposition to the plaintiff’s motion for

summary judgment. In its memorandum, the defendant

argued that ‘‘[t]he statute [of limitations] is not extended

on the unpleaded grounds of continuing course of conduct because there was no special relationship—in fact,

no relationship at all—between the [defendant] and the

plaintiff. Nor is there a special relationship between

either Carrano and Gianpoalo with either the [defendant] or the plaintiff when they are off duty.’’

On November 21 and 28, 2022, the court, Stevens, J.,

held oral argument on the plaintiff’s and the defendant’s
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Bucci v. Bridgeport

respective motions for summary judgment. On March

17, 2023, the court issued a memorandum of decision

granting the defendant’s summary judgment motion and

denying the plaintiff’s summary judgment motion. In

its memorandum of decision, the court stated that ‘‘[a]

dispositive issue for the [plaintiff’s] claims against [the

defendant] is whether [Carrano and Gianpoalo] were

‘acting within the scope of [their] employment or official

duties’ within the meaning of § 52-557n.’’ The court concluded that the defendant had produced sufficient evidence to satisfy its initial burden of showing the absence

of any genuine issue of material fact that Gianpoalo

and Carrano were not acting within the scope of their

employment. In support thereof, the court referenced

the affidavits submitted by the defendant, which confirmed that, on December 22, 2017, the officers were

off duty when they arrived at Vazzy’s. Accordingly, the

court shifted the burden to the plaintiff to ‘‘provide an

evidentiary foundation to demonstrate the existence of

a genuine issue of material fact.’’ (Internal quotation

marks omitted.)

In its memorandum of decision, the court stated that

the plaintiff essentially argued, in opposition to the

defendant’s position, that Bridgeport police officers

always have a duty to follow the policies and procedures

of the Bridgeport Police Department, and, therefore,

Gianpoalo and Carrano were acting within the scope of

their official duties during the events of the automobile

accident. The court rejected the plaintiff’s argument,

explaining that such an argument would ‘‘dissolve the

distinction between an employee’s official and unofficial acts because under [the plaintiff’s] reasoning all

personal and private activities, no matter how attenuated from the employer’s legitimate business concerns,

could be labeled as official duties.’’ Accordingly, the

court concluded that the defendant was entitled to summary judgment as a matter of law regarding the allegedly negligent conduct of Carrano and Gianpoalo.
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As to the plaintiff’s negligent hiring claim with respect

to Carrano, the court concluded that it was barred by

the statute of limitations, pursuant to § 52-584. Specifically, the court agreed with the defendant that, because

Carrano was hired on April 25, 2011, and the present

case was filed in 2019, Carrano was hired more than

three years before the institution of the present action,

and, thus, her negligent hiring claim was time barred.

Furthermore, the court rejected the plaintiff’s continuing course of conduct argument on both procedural

and substantive grounds. The court noted that the plaintiff had asserted the doctrine only in response to the

defendant’s motion for summary judgment and that her

reliance on the doctrine was not reflected anywhere

in the pleadings prior to the filing of the defendant’s

summary judgment motion. Therefore, pursuant to

Practice Book § 10-57,12 the court held that, ‘‘[b]ecause

the continuing course of conduct doctrine was not

pleaded or timely raised, the doctrine must be deemed

waived.’’

Moreover, the court determined that, ‘‘even if [the

plaintiff] had properly asserted the continuing course

of conduct doctrine, this argument would fail as a matter of law because she has not satisfied all of the elements necessary for its application.’’ Specifically, the

court explained that, ‘‘in order to establish that a duty

continued to exist after the alleged[ly] wrongful hiring

of Carrano, [the plaintiff] must provide ‘evidence of

either a special relationship between the parties giving

rise to such a continuing duty or some later wrongful

conduct of a defendant, related to the prior act.’ ’’ The

court concluded that the plaintiff had not alleged or

shown that a special relationship existed between the

parties. The court also determined that, even if the

12 Practice Book § 10-57 provides in relevant part: ‘‘Matter in avoidance

of affirmative allegations in an answer or counterclaim shall be specially

pleaded in the reply. . . .’’
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Bucci v. Bridgeport

plaintiff had established that the defendant’s initial hiring of Carrano was negligent, the plaintiff failed to show

that the defendant committed some later, actual or affirmative wrongful act related to its prior negligent conduct. The court held that ‘‘the continuing course of

conduct doctrine cannot be invoked in a situation that

merely or solely involves an initial wrong that continues

unabated or uncorrected until it reaches and harms a

victim. Such a concept would absorb the statute of

limitations to such an extent that the limitation period

would be rejected in virtually all the cases for which

it would appropriately apply.’’ This appeal followed.

Additional procedural history will be set forth as necessary.

Before addressing the merits of the plaintiff’s claims,

we begin by setting forth the applicable standard of

review and relevant legal principles. ‘‘In seeking summary judgment, it is the movant who has the burden

of showing the nonexistence of any issue of fact. The

courts are in entire agreement that the moving party

for summary judgment has the burden of showing the

absence of any genuine issue as to all the material facts,

which, under applicable principles of substantive law,

entitle him to a judgment as a matter of law. The courts

hold the movant to a strict standard. To satisfy his

burden the movant must make a showing that it is quite

clear what the truth is, and that excludes any real doubt

as to the existence of any genuine issue of material

fact. . . . As the burden of proof is on the movant, the

evidence must be viewed in the light most favorable to

the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish

that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents

establishing the existence of such an issue. . . . Once

the moving party has met its burden, however, the
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Bucci v. Bridgeport

opposing party must present evidence that demonstrates the existence of some disputed factual issue.

. . . It is not enough, however, for the opposing party

merely to assert the existence of such a disputed issue.

Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court

under Practice Book § [17-45]. . . . Our review of the

trial court’s decision to grant [or to deny a] motion

for summary judgment is plenary.’’ (Internal quotation

marks omitted.) Kuselias v. Zingaro & Cretella, LLC,

224 Conn. App. 192, 207–208, 312 A.3d 118, cert. denied,

349 Conn. 916, 316 A.3d 357 (2024).

I

The plaintiff first claims that, in rendering summary

judgment in favor of the defendant, the court improperly concluded that a genuine issue of material fact did

not exist with respect to whether Gianpoalo was acting

within the scope of his employment or official duties.

The plaintiff argues that ‘‘[t]he evidence supports a finding that [Gianpoalo’s] conduct on December 22, 2017,

was a violation of his official duties.’’ Specifically, the

plaintiff contends that the policies and procedures of

the Bridgeport Police Department and the results of

its internal affairs investigation support the fact that

Gianpoalo violated his official duties as a matter of law

under § 52-557n. In further support thereof, the plaintiff

refers to the testimony of Garcia, who, in her deposition,

affirmed that following the policies and procedures of

the Bridgeport Police Department is part of an officer’s

official duties. We are not persuaded.

The following additional procedural history is relevant to our resolution of the plaintiff’s claim. On December 7, 2021, and June 21, 2022, the plaintiff’s attorney

conducted remote depositions of Garcia, the acting

Bridgeport chief of police. At her December 7, 2021
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Bucci v. Bridgeport

deposition, the plaintiff’s attorney asked Garcia

whether ‘‘abiding by or following the policies and procedures of the . . . Bridgeport Police Department is part

of an officer’s official duties . . . .’’ Garcia responded

in the affirmative. Thereafter, during her June 21, 2022

deposition, the plaintiff’s attorney asked Garcia

whether Gianpoalo’s violations of the Bridgeport Police

Department’s policies and procedures, as found by its

internal affairs investigation, were ‘‘violation[s] of

[Gianpoalo’s] official duties as a police officer . . . .’’

Garcia clarified that ‘‘[the violations] were not part of

[his] official duties per se, because he was not working

at the time that this incident occurred. . . . If he would

have been working, it would be part of his official duties.

. . . He was comporting himself in . . . his private

life, so it was not his official duties. . . . The private

life is in concert with being a police officer, but it’s not

an official duty. An official duty is if you’re actually

working within your capacity as a police officer.

***

‘‘[T]here is such a thing as an officer being off duty

and not being held as a police officer himself or herself;

they’re not working within their official capacity

. . . .’’ Garcia explained that the policies and procedures of the Bridgeport Police Department are not part

of an officer’s official duties but, rather, ‘‘part of the

ethical makeup of that officer and [his] responsibility.’’

In its March 17, 2023 memorandum of decision, the

court referenced this portion of Garcia’s testimony, stating that ‘‘Garcia explains that the general responsibilities of a police officer and the issues of a police investigation present separate questions than whether

Gianpoalo was acting in an official capacity at the time

of the accident. . . . Garcia explains that the policies

and procedures of the Bridgeport Police Department,

which Gianpoalo is said to have violated, are part of
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the overall police officer’s responsibility and ethical

character. She specifically does not categorize the violations as part of Gianpoalo’s, or any other officer’s, official duties and distinguishes between the policies and

procedures which govern private life and official police

conduct.’’ (Citation omitted.)

On appeal, the plaintiff argues that, ‘‘although [Gianpoalo] was off duty, because he failed to intervene to

prevent a fellow officer from driving while intoxicated,

he violated his official duties thereby subjecting the

defendant . . . to a claim for the plaintiff’s injuries pursuant to . . . § 52-557n.’’ We are not persuaded.

The following legal principles are relevant to our

resolution of the plaintiff’s claim. ‘‘Section 52-557n (a)

provides that a local government will not be liable for

the negligent acts or omissions of an employee unless

the employee was acting within the scope of his employment or official duties. In determining whether an

employee has acted within the scope of employment,

courts look to whether the employee’s conduct: (1)

occurs primarily within the employer’s authorized time

and space limits; (2) is of the type that the employee

is employed to perform; and (3) is motivated, at least

in part, by a purpose to serve the employer. . . . Ordinarily, it is a question of fact as to whether a wilful tort

of the servant has occurred within the scope of the

servant’s employment . . . [b]ut there are occasional

cases [in which] a servant’s digression from [or adherence to] duty is so clear-cut that the disposition of the

case becomes a matter of law. . . . More specifically,

we have held that a police officer’s actions occurred

in the course of duties if [the actions] took place (1)

within the period of employment, (2) at a place where

the employee could reasonably be, and (3) while the

employee is reasonably fulfilling the duties of employment or doing something incidental to it.’’ (Citation
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omitted; internal quotation marks omitted.) Doe v. Flanigan, 201 Conn. App. 411, 431–32, 243 A.3d 333, cert.

denied, 336 Conn. 901, 242 A.3d 711 (2020).

In the present case, the affidavits by Carrano, Gianpoalo, and Gilleran set forth undisputed evidence that

Gianpoalo and Carrano were released from their detail

at approximately 8 p.m. on December 22, 2017, and

were off duty for approximately four hours prior to the

time of the accident or the allegedly negligent conduct.

Moreover, the affidavits by Gianpoalo, Carrano, and

Dwyer support the conclusion that the officers drove

their personal vehicles to Vazzy’s, were not in uniform,

and did not have their badges, identifying insignia, or

service weapons on their person at Vazzy’s. The affidavits also revealed that the officers were not attending a

Bridgeport Police Department sponsored holiday party

that evening, nor did they perform any police services

while at Vazzy’s. These submissions demonstrated that,

at the time of Gianpoalo’s allegedly negligent conduct,

he was not engaged in any official duty of his employment or doing something incidental to it. On the basis

of the aforementioned evidence, the court properly concluded that the defendant had produced sufficient evidence to satisfy its initial burden of showing an absence

of any genuine issue of fact that Gianpoalo was not

acting within the scope of his employment as a police

officer at the time of his allegedly negligent conduct.

Moreover, in its March 17, 2023 memorandum of decision, the court rejected the plaintiff’s argument that

Gianpoalo’s violations of the policies and procedures

of the Bridgeport Police Department illustrate that he

violated his official duties. The court noted that ‘‘the

general responsibilities of a police officer and the issues

of a police [internal affairs] investigation present separate questions than whether Gianpoalo was acting in

an official capacity at the time of the accident. . . .

Garcia explains that the policies and procedures of the
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Bridgeport Police Department, which Gianpoalo is said

to have violated, are part of the overall police officer’s

responsibility and ethical character. She specifically

does not categorize the violations as part of Gianpoalo’s, or any other officer’s, official duties and distinguishes between the policies and procedures which

govern private life and official police conduct.’’ (Citation omitted.) In doing so, the court reasoned that ‘‘[the

plaintiff’s] argument would dissolve the distinction

between an employee’s official and unofficial acts

because under her reasoning all personal and private

activities, no matter how attenuated from the employer’s legitimate business concerns, could be labeled as

official duties.’’

The plaintiff argues that the court’s analysis too narrowly defines what constitutes ‘‘official duties.’’ In support of her argument, the plaintiff cites to this court’s

decision in State v. Ramirez, 61 Conn. App. 865, 871,

767 A.2d 778, cert. denied, 256 Conn. 903, 772 A.2d 599

(2001), for the principle that the actions of off-duty

police officers have been found by this court to be

part of their official duties. The plaintiff’s reliance on

Ramirez, however, is misplaced, as that case is factually

distinguishable from the present case. In Ramirez, an

off-duty police officer was assaulted in a nightclub after

attempting to break up an altercation. Id., 867–68. During the altercation, the officer specifically identified

himself as a police officer, and, after the altercation

appeared to have been settled, the officer turned his

back to use the restroom. Id., 868. The defendant then

struck the officer in the back of the head, causing the

officer to fall to the floor, and proceeded to kick him

repeatedly in the face. Id. The defendant subsequently

was arrested and convicted, inter alia, of assault of a

peace officer. Id., 867. On appeal, this court held that,

‘‘[u]nder the circumstances of this case, there was sufficient evidence for the jury to find that [the officer] was
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acting within the scope of his duty as a police officer.’’

Id., 871. This court stated that, although the officer was

not in uniform and did not display a badge, he identified

himself as a police officer and performed his obligation

as a police officer. Id. Specifically, this court reasoned

that ‘‘[a] police officer has the duty to enforce the laws

and to preserve the peace. . . . The test is whether

the [police officer] is acting within that compass or

is engaging in a personal frolic of his own.’’ (Internal

quotation marks omitted.) Id.

In the present case, the plaintiff did not present evidence that Gianpoalo was performing his duties as a

police officer at any time after being released from his

detail on December 22, 2017. The undisputed evidence

produced by the defendant illustrates that the officers

were in civilian clothing, drove their personal vehicles

to and from Vazzy’s, did not identify themselves in any

way as police officers, and did not perform any police

services at Vazzy’s. Unlike the officer in Ramirez, Gianpoalo was ‘‘ ‘engaging in a personal frolic of his own’ ’’

at the time of the accident. Id. Accordingly, we conclude

that the court properly determined that a genuine issue

of material fact did not exist as to whether Gianpoalo

was acting within the scope of his employment or official duties.

II

Next, the plaintiff claims that the court improperly

determined that her claim for the defendant’s negligent

hiring of Carrano was barred by the statute of limitations. Specifically, the plaintiff argues that the court

misapplied the continuing course of conduct doctrine

on both procedural and substantive grounds. Contrary

to the court’s conclusion, the plaintiff asserts that, procedurally, she sufficiently pleaded the doctrine in her

amended complaint. The plaintiff also contends that,
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substantively, the act of Carrano driving while intoxicated constituted an affirmative wrongful act that was

related to the defendant’s initial negligence of hiring

Carrano. We disagree.

The following standard of review and legal principles

are relevant to our resolution of this claim. ‘‘The question of whether a party’s claim is barred by the statute

of limitations is a question of law, which this court

reviews de novo. . . . The issue, however, of whether

a party engaged in a continuing course of conduct that

tolled the running of the statute of limitations is a mixed

question of law and fact. . . . We defer to the trial

court’s findings of fact unless they are clearly erroneous.’’ (Internal quotation marks omitted.) Medical

Device Solutions, LLC v. Aferzon, 207 Conn. App. 707,

754–55, 264 A.3d 130, cert. denied, 340 Conn. 911, 264

A.3d 94 (2021).

‘‘[I]n the context of a motion for summary judgment

based on a statute of limitations special defense, [the

defendant] typically [meets its] initial burden of showing the absence of a genuine issue of material fact by

demonstrating that the action had commenced outside

of the statutory limitation period. . . . When the plaintiff asserts that the limitations period has been tolled

by an equitable exception to the statute of limitations,

the burden normally shifts to the plaintiff to establish

a disputed issue of material fact in avoidance of the

statute. . . . Put differently, it is then incumbent upon

the party opposing summary judgment to establish a

factual predicate from which it can be determined, as

a matter of law, that a genuine issue of material fact

exists.’’ (Internal quotation marks omitted.) Kuselias

v. Zingaro & Cretella, LLC, supra, 224 Conn. App. 208.

‘‘Our Supreme Court has recognized . . . that the

statute of limitations and period of repose contained
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in . . . § 52-584 may be tolled, in the proper circumstances, under . . . the continu[ing] course of conduct

doctrine . . . thereby allowing a plaintiff to bring an

action more than three years after the commission of

the negligent act . . . . [T]he continuing course of conduct doctrine reflects the policy that, during an ongoing

relationship, lawsuits are premature because specific

tortious acts or omissions may be difficult to identify

and may yet be remedied. . . . For example, the doctrine is generally applicable under circumstances where

[i]t may be impossible to pinpoint the exact date of a

particular negligent act or omission that caused injury

or where the negligence consists of a series of acts or

omissions and it is appropriate to allow the course of

[action] to terminate before allowing the repose section

of the statute of limitations to run . . . .

‘‘It is axiomatic that [w]hen the wrong sued upon

consists of a continuing course of conduct, the statute

does not begin to run until that course of conduct is

completed. . . . [I]n order [t]o support a finding of a

continuing course of conduct that may toll the statute

of limitations there must be evidence of the breach of

a duty that remained in existence after the commission

of the original wrong related thereto. That duty must

not have terminated prior to commencement of the

period allowed for bringing an action for such a wrong.

. . . Where [our Supreme Court has] upheld a finding

that a duty continued to exist after the cessation of the

act or omission relied upon, there has been evidence

of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful

conduct of a defendant related to the prior act. . . .

Furthermore, [t]he doctrine of continuing course of

conduct as used to toll a statute of limitations is better

suited to claims where the situation keeps evolving

after the act complained of is complete . . . .
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‘‘In deciding whether the trial court properly granted

the [defendant’s] motion for summary judgment, we

must determine if there is a genuine issue of material

fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff, and (2) whether

a duty continued to exist after the cessation of the act

or omission relied upon by (a) evidence of a special

relationship between the parties giving rise to such a

continuing duty or (b) some later wrongful conduct

of the [defendant] related to the prior act.’’ (Citations

omitted; internal quotation marks omitted.) Macellaio

v. Newington Police Dept., 145 Conn. App. 426, 434–36,

75 A.3d 78 (2013).

‘‘Practice Book § 10-57 provides in relevant part that

[m]atter in avoidance of affirmative allegations in an

answer or counterclaim shall be specially pleaded in

the reply. . . . Under § 10-57, the continuing course of

conduct doctrine is a matter that must be pleaded in

avoidance of a statute of limitations special defense.’’

(Internal quotation marks omitted.) Flannery v. Singer

Asset Finance Co., LLC, 312 Conn. 286, 300, 94 A.3d 553

(2014). ‘‘Beyond the trial courts’ discretion to overlook

violations of the rules of practice in the absence of a

timely objection from the opposing party . . . it may

be just to reach the merits of a plaintiff’s claim to a toll

of the statute of limitations, even when not properly

pleaded pursuant to . . . § 10-57, if the issue is otherwise put before the trial court and no party is prejudiced

by the lapse in pleading. For example, in Bellemare v.

Wachovia Mortgage Corp., [94 Conn. App. 593, 607, 894

A.2d 335 (2006), aff’d, 284 Conn. 193, 931 A.2d 916

(2007), this court] deemed it just to reach the merits

of a plaintiff’s claim that the statute of limitations was

tolled by the continuing course of conduct doctrine,

despite the plaintiff’s failure to plead the doctrine properly pursuant to . . . § 10-57, when the plaintiff

asserted the doctrine’s applicability for the first time
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Bucci v. Bridgeport

in a pleading filed in opposition to the defendant’s

motion for summary judgment, observing that however

imperfectly, the plaintiff placed the issue before the

court . . . .’’ (Citation omitted; internal quotation

marks omitted.) Flannery v. Singer Asset Finance Co.,

LLC, supra, 301–302.

In the present case, the plaintiff asserted the continuing course of conduct doctrine, for the first time, in her

memorandum of law in opposition to the defendant’s

motion for summary judgment. She did not affirmatively

plead the doctrine as a matter in avoidance of the defendant’s statute of limitations special defense. Therefore,

the court found that the plaintiff waived her continuing

course of conduct claim as it was procedurally defective. The court nevertheless exercised its discretion and

considered the substance of the plaintiff’s claim.13

In addressing the merits of the plaintiff’s claim, the

court stated that ‘‘[n]o special relationship between the

parties has been either alleged or shown. Furthermore,

assuming arguendo that [the plaintiff] has established

an initial wrong in the hiring of Carrano (a finding that

the court expressly does not make), she has failed to

show that the [defendant] committed some later, actual

or affirmative, wrongful act that related to any such

prior conduct. . . . Contrary to [the plaintiff’s] apparent position, the continuing course of conduct doctrine

cannot be invoked in a situation that merely or solely

13 ‘‘We previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of

those rules . . . . It necessarily follows, therefore, that, when a party properly objects to a violation of the rules of practice, the trial court may

disregard the improperly raised claim if doing so is not an abuse of discretion.’’ (Citation omitted; emphasis added.) Schilberg Integrated Metals Corp.

v. Continental Casualty Co., 263 Conn. 245, 273–74, 819 A.2d 773 (2003).

The issue of whether the court properly exercised its discretion in addressing

the merits of the plaintiff’s claim is not raised by the parties on appeal. See

State v. Connor, 321 Conn. 350, 362, 138 A.3d 265 (2016) (‘‘appellate courts

generally do not consider issues that were not raised by the parties’’).
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involves an initial wrong that continues unabated or

uncorrected until it reaches and harms a victim.’’ (Citation omitted.)

It is undisputed that the plaintiff has failed to allege

that she has a special relationship with the defendant.

Instead, she argues merely that Carrano’s act of driving

while intoxicated on December 23, 2017, was an affirmative wrongful act directly related to the defendant’s

hiring of Carrano. Even if we were to assume that the

plaintiff established that the defendant negligently hired

Carrano, her continuing course of conduct claim fails

as a matter of law because, as the court concluded,

she has failed to demonstrate that a genuine issue of

material fact exists with respect to whether the defendant committed some later, actual or affirmative wrongful act related to its initial hiring of Carrano. The plaintiff

has attempted to demonstrate only that Carrano, acting

in his individual capacity, committed a wrongful act

by driving while intoxicated. Accordingly, we conclude

that court properly determined that the plaintiff’s claim

for the defendant’s negligent hiring of Carrano was

barred by the statute of limitations.

The judgment is affirmed.

In this opinion the other judges concurred.