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*********************************************** 
DAVID DUBINSKY v. KEVIN M. BLACK

(AC 40203)

Elgo, Bright and Mihalakos, Js.

Syllabus

The plaintiff sought to recover damages from the defendant attorney for

legal malpractice in connection with the defendant’s representation of

the plaintiff in a criminal proceeding and his alleged failure to advise

the plaintiff that his acceptance of a plea offer in the criminal proceeding

would preclude him from subsequently pursuing an action for malicious

prosecution. In the underlying criminal proceeding, the plaintiff had

been charged with, inter alia, risk of injury to a child in violation of

statute (§ 53-21) in connection with an incident at the defendant’s home

where he repeatedly struck his seven year old son with a belt in the

presence of his stepdaughter. The plaintiff had entered into a conditional

guilty plea in that case, which resulted in all charges being vacated and

dismissed because the plaintiff complied with all the conditions of the

plea agreement. The trial court in the present case granted the defendant’s motion for summary judgment on the ground that the plaintiff,

as a matter of law, could not prevail on the malpractice action, as

probable cause existed to charge the defendant with the crime of risk

of injury to a child. From the judgment rendered thereon, the plaintiff

appealed to this court. Held:

1. The trial court did not err in granting the defendant’s motion for summary

judgment; the plaintiff bore the burden of establishing not only negligence on the part of the defendant in apprising him of the consequences

of his guilty plea in the underlying criminal proceeding, but also that

he would have prevailed in his malicious prosecution claim against the

arresting officers, and the plaintiff could not meet that burden at trial,

as the documentation submitted in connection with the motion for

summary judgment demonstrated that no genuine issue of material fact

existed as to whether, on the basis of the totality of the circumstances

and facts known to them at the time, the arresting officers possessed

an objectively reasonable basis to believe that the plaintiff’s conduct

placed both his son and stepdaughter in a situation that was likely to

be psychologically injurious to them and, thus, that the plaintiff had

violated § 53-21 (a), and, therefore, the plaintiff could not establish the

lack of probable cause as required for a malicious prosecution action.

2. The plaintiff’s claim that the arresting officers lacked probable cause in

light of the parental justification defense afforded to parents under

statute (§ 53a-18 [1]) was unavailing; the ultimate determination of

whether the particular conduct of a parent is reasonable and, thus,

entitled to protection under § 53a-18 (1) is a factual determination to

be made by a trier of fact, which could not have been made by the

arresting officers or the prosecutor in this case, as the arresting officers

performed a preliminary and fundamentally distinct function, specifically, the determination of whether the facts then known were sufficient

to justify a reasonable person to believe that reasonable grounds for

prosecuting an action existed, proof of probable cause requires less

than proof by a preponderance of the evidence, and, thus, because the

arresting officers were not the finders of fact tasked with making a final

determination as to the reasonableness of the plaintiff’s conduct after

an evidentiary proceeding, the parental justification defense had little

bearing on the preliminary determination of probable cause made by

the arresting officers who had responded to the 911 call in this case.

3. The plaintiff could not prevail on his claim that summary judgment was

inappropriate because the arresting officers allegedly fabricated the

claim that he had left red welts on his son’s backside: the fact that

there was conflicting evidence as to whether the marks existed was not

material to the question of whether the arresting officers possessed

probable cause to charge the plaintiff with risk of injury to a child, as

actual physical injury is not a prerequisite to a conviction under the

situation prong of § 53-21, and even if such evidence was discounted,

no genuine issue of material fact existed as to whether the arresting
officers possessed an objectively reasonable basis to believe that the

plaintiff, through his conduct, placed both minor children in a situation

that was likely to be injurious to their mental health and well-being in

violation of § 53-21 (a) (1); moreover, because the existence of probable

cause is an absolute protection against an action for malicious prosecution, the plaintiff could not demonstrate, as he was required, that he

would have been entitled to judgment in a malicious prosecution action

against the arresting officers but for the defendant’s professional negligence, and, therefore, the plaintiff cannot prevail on his legal malpractice

claim against the defendant.

Argued May 21—officially released September 25, 2018

Procedural History

Action to recover damages sustained as a result of

the defendant’s alleged legal malpractice, and for other

relief, brought to the Superior Court in the judicial district of Bridgeport, where the court, Krumeich, J.,

granted the defendant’s motion for summary judgment

and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

John R. Williams, for the appellant (plaintiff).

Bridgitte E. Mott, with whom, on the brief, was

Thomas P. O’Dea, Jr., for the appellee (defendant).
Opinion

ELGO, J. The plaintiff, David Dubinsky, appeals from

the summary judgment rendered in favor of the defendant, Kevin M. Black, in this legal malpractice action

predicated on the defendant’s alleged failure to advise

the plaintiff that his acceptance of a plea offer in a

criminal proceeding would preclude him from subsequently pursuing an action for malicious prosecution.

In rendering summary judgment, the court concluded,

as a matter of law, that the plaintiff could not prevail

on such an action, as probable cause existed to charge

him with the crime of risk of injury to a child in violation

of General Statutes § 53-21. The plaintiff now challenges

the propriety of that determination. We affirm the judgment of the trial court.

Mindful of the procedural posture of the case, we set

forth the following facts as gleaned from the pleadings,

affidavits and other proof submitted, viewed in a light

most favorable to the plaintiff. See Martinelli v. Fusi,

290 Conn. 347, 350, 963 A.2d 640 (2009). On the morning

of Saturday, June 23, 2012, officers from the Fairfield

Police Department (department) responded to a 911

call from the plaintiff’s then wife, Miriam Dubinsky,1

regarding an incident at their home in which the plaintiff

shoved her onto a bed and repeatedly struck their minor

son, Jake, with a belt in the presence of the plaintiff’s

minor stepdaughter, Abigail.2 The plaintiff, at that time,

was arrested and charged with one count of risk of

injury to a child in violation of § 53-21, one count of

assault in the third degree in violation of General Statutes § 53a-61, and three counts of disorderly conduct

in violation of General Statutes § 53a-182.3

Later that day, department officials filed a request

for a probable cause determination with the Superior

Court. Accompanying that request were copies of the

police incident report, an arrest affidavit signed by Officer John Tyler, a family violence offense report, and a

written statement by Miriam regarding the incident.

After reviewing those materials that evening, the court,

Bellis, J., concluded that probable cause existed and

signed the request. The plaintiff was arraigned on Monday, June 25, 2012.

Following his arraignment, the plaintiff retained the

services of the defendant, an attorney licensed to practice law in this state, who represented the plaintiff in

connection with the aforementioned criminal charges.

Plea negotiations with the state followed. The state

ultimately made an offer, pursuant to which the plaintiff

would enter a conditional plea of guilty to the charges

of breach of peace and disorderly conduct. The plea

offer further provided that, if the plaintiff complied with

the terms of a protective order issued by the court

and completed a family violence education program, all

charges would be vacated and dismissed. The defendant
encouraged the plaintiff to accept that conditional guilty

plea offer and, on August 30, 2012, the plaintiff so

pleaded before the court. The plaintiff thereafter complied with the terms of the plea agreement and all

charges against him were dismissed.

On August 14, 2014, the plaintiff commenced the present legal malpractice action, claiming that the defendant failed to advise him that acceptance of the plea

offer would preclude him from instituting a malicious

prosecution action against the arresting officers.4

In his

answer, the defendant denied the substance of that

allegation. The defendant also raised the special

defenses of accord and satisfaction, waiver, laches, and

comparative negligence, all of which the plaintiff

denied.

The defendant filed a motion for summary judgment

on January 3, 2017, in which he argued that the plaintiff

could not establish the causation element of his legal

malpractice action. More specifically, the defendant

claimed that no genuine issue of material fact existed

as to whether the arresting officers possessed probable

cause to institute the underlying criminal action. The

defendant’s motion was accompanied by seventeen

exhibits, including copies of the police incident report

and Miriam’s signed statement to the police made on

the date of the incident, transcripts from the underlying

criminal proceedings, and deposition transcripts of various individuals. In opposing that motion for summary

judgment, the plaintiff submitted only one exhibit—a

copy of the January 28, 2013 decision, issued following

an evidentiary hearing, of the administrative hearings

unit of the Department of Children and Families on the

issue of the plaintiff’s physical neglect of Jake.5

The court rendered summary judgment in favor of

the defendant on February 21, 2017. In its memorandum

of decision, the court stated in relevant part that the

plaintiff ‘‘would not have prevailed in any action alleging

. . . malicious prosecution . . . because he could not

prove want of probable cause . . . . Therefore, [the

plaintiff] would not have been able to prove that [the

defendant’s] failure to advise him of the consequences

of the plea agreement caused him harm when he lost his

right to recover in a civil litigation for . . . malicious

prosecution.’’ (Citations omitted.) From that judgment,

the plaintiff now appeals.

I

As a preliminary matter, we note the well established

standard that governs our review of the trial court’s

decision to grant summary judgment. ‘‘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. In deciding a motion
for summary judgment, the trial court must view the

evidence in the light most favorable to the nonmoving

party. . . . [T]he moving party . . . has the burden of

showing the absence of any genuine issue as to all

the material facts. . . . 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 [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue.

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

defendant’s motion for summary judgment is plenary.’’

(Citations omitted; internal quotation marks omitted.)

Lucenti v. Laviero, 327 Conn. 764, 772–73, 176 A.3d

1 (2018).

The present action is one sounding in legal malpractice. As our Supreme Court has explained, ‘‘[i]n legal

malpractice actions, the plaintiff typically proves that

the defendant attorney’s professional negligence

caused injury to the plaintiff by presenting evidence of

what would have happened in the underlying action

had the defendant not been negligent. This traditional

method of presenting the merits of the underlying action

is often called the ‘case-within-a-case.’ ’’ Margolin v.

Kleban & Samor, P.C., 275 Conn. 765, 775 n.9, 882 A.2d

653 (2005). To prevail, ‘‘the plaintiff must prove that,

in the absence of the alleged breach of duty by [his]

attorney, the plaintiff would have prevailed [in] the

underlying cause of action and would have been entitled

to judgment.’’ (Internal quotation marks omitted.)

Bozelko v. Papastavros, 323 Conn. 275, 284, 147 A.3d

1023 (2016); see also Grimm v. Fox, 303 Conn. 322,

352, 33 A.3d 205 (2012) (Palmer, J., concurring) (‘‘[T]o

prevail on his claim against the defendants, the plaintiff

[must] prove not only that the defendants were negligent in their handling of his [action], but also that [the

action] would have been successful if the defendants

had represented him competently. In the absence of

such proof, the plaintiff could not establish that his

alleged damages . . . were the result of the defendants’ negligence . . . .’’). Accordingly, the plaintiff in

the present case bore the burden of establishing not

only negligence on the part of the defendant in apprising

him of the consequences of his guilty plea in the underlying criminal proceeding, but also that he would have

prevailed in his malicious prosecution claim against the

arresting officers. We therefore focus our attention on

that cause of action.

‘‘Malicious prosecution is a tort arising out of a criminal complaint that is intended to protect an individual’s

interest in freedom from unjustifiable and unreasonable

litigation . . . .’’ (Internal quotation marks omitted.)

Lefebvre v. Zarka, 106 Conn. App. 30, 35, 940 A.2d 911

(2008). An essential element of that action is proof that
the defendant acted without probable cause; see Falls

Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281

Conn. 84, 94, 912 A.2d 1019 (2007); as ‘‘[t]he existence

of probable cause is an absolute protection against an

action for malicious prosecution . . . .’’ Brodrib v.

Doberstein, 107 Conn. 294, 296, 140 A. 483 (1928). Our

Supreme Court has defined probable cause in this context as ‘‘the knowledge of facts sufficient to justify a

reasonable [person] in the belief that he has reasonable

grounds for prosecuting an action. . . . Mere conjecture or suspicion is insufficient. . . . Moreover, belief

alone, no matter how sincere it may be, is not enough,

since it must be based on circumstances which make

it reasonable. . . . Although want of probable cause is

negative in character, the burden is [on] the plaintiff

to prove affirmatively, by circumstances or otherwise,

that the defendant had no reasonable ground for instituting the criminal proceeding.’’ (Citation omitted; internal quotation marks omitted.) Brooks v. Sweeney, 299

Conn. 196, 211, 9 A.3d 347 (2010). We agree with the

trial court that, even when construing the pleadings,

affidavits, and other proof submitted in a light most

favorable to him, the plaintiff cannot meet that burden

at trial.

As the Supreme Court has observed, ‘‘[i]t is clear

that [t]he general purpose of § 53-21 is to protect the

physical and psychological well-being of children from

the potentially harmful conduct of [others] . . . .’’

(Emphasis added; internal quotation marks omitted.)

State v. Nathan J., 294 Conn. 243, 251, 982 A.2d 1067

(2009). That statute ‘‘comprise[s] . . . two distinct

prongs, the situation prong and act prong . . . .’’ (Internal quotation marks omitted.) State v. Owens, 100 Conn.

App. 619, 635, 918 A.2d 1041, cert. denied, 282 Conn.

927, 926 A.2d 668 (2007). Section 53-21 (a) ‘‘prohibits

two different types of behavior: (1) deliberate indifference to, acquiescence in, or the creation of situations

inimical to the [child’s] moral or physical welfare . . .

and (2) acts directly perpetrated on the person of the

[child] and injurious to his [or her] moral or physical

well-being.’’ (Emphasis in original; citations omitted;

internal quotation marks omitted.) State v. Robert H.,

273 Conn. 56, 65, 866 A.2d 1255 (2005). ‘‘Cases construing § 53-21 have emphasized this clear separation

between the two parts of the statute . . . .’’ (Internal

quotation marks omitted.) Id.

Under the situation prong, the state is not required

to prove that the child in question sustained an actual

injury. See State v. Gewily, 280 Conn. 660, 669, 911

A.2d 293 (2006) (‘‘actual injury is not an element of the

‘situation’ prong of § 53-21 [a] [1]’’), and cases cited

therein. With particular respect to the potential for harm

to the mental health of a child, ‘‘the fact finder is not

required to make a determination as to the precise

nature or severity of the injury . . . rather, the fact

finder need only decide whether the accused placed the
child in a situation that was likely to be psychologically

injurious to that child.’’ (Citation omitted; internal quotation marks omitted.) Id. The pleadings, affidavits and

other proof submitted in the present case confirm that

no genuine issue of material fact exists as to whether

the arresting officers possessed probable cause to

believe that the plaintiff’s conduct on June 23, 2012,

placed both Jake and Abigail in such a situation.6

The police incident report, which was submitted as

an exhibit to the defendant’s motion for summary judgment, indicates that when the arresting officers arrived

at the scene, they were ‘‘met at the door by Miriam and

[Abigail] and both were crying, shaking, and visibly

upset.’’ In his deposition testimony, which also was

submitted as an exhibit to the motion for summary

judgment, Officer Tyler stated that Miriam and Abigail

had ‘‘a hard time talking’’ and appeared ‘‘as if [they]

witnessed a horrible accident . . . .’’ Both Miriam and

Abigail had witnessed the plaintiff spanking his son

Jake, who was seven years old at the time, with a

folded belt.

Abigail described the spanking to officers as ‘‘very

disturbing,’’ stating that the plaintiff had ‘‘wound up his

arm and hit him hard, several times.’’ Miriam likewise

informed the officers that, after placing the boy over

his knee, the plaintiff hit him ‘‘hard several times. I

thought he was way out of line and I tried to stop it

but he pushed me hard [three] or [four] times in the

chest, until I fell on the bed.’’ The officers, at that time,

observed redness on the upper chest area of Miriam’s body.

In the written statement that she provided to the

police on the day of the incident, which was submitted

as an exhibit to the summary judgment motion, Miriam

indicated that Jake was ‘‘screaming’’ as the plaintiff

repeatedly struck him with the belt. She further stated:

‘‘I will not have my children subject to or witness to

violence. [The plaintiff] scared me and [Abigail]. There

has been [an] increase in underlying anxiety and anger

with [the plaintiff] and this was the worst he has ever

exhibited.’’ Abigail similarly reported to the officers that

the plaintiff ‘‘raises his voice all the time and we are

on edge all the time. He has never hit me but I fear he

would.’’ In making their probable cause determination,

the arresting officers properly could rely on the statements made by Miriam and Abigail. See State v. Colon,

272 Conn. 106, 152 n.15, 864 A.2d 666 (2004) (‘‘the police

had probable cause to arrest the defendant as a result

of the statement of the victim’s sister’’ who witnessed

the crime), cert. denied, 546 U.S. 848, 126 S. Ct. 102,

163 L. Ed. 2d 116 (2005); see also Iocovello v. City of

New York, 701 Fed. Appx. 71, 72 (2d Cir. 2017) (‘‘[a]

police officer may rely on the statements of a putative

victim or witness to determine if probable cause exists

for an arrest, unless the officer is presented with a
reason to doubt the witness’ veracity’’).

As Tyler noted during his deposition, the plaintiff is

‘‘a big guy’’; the plaintiff acknowledged in his deposition

testimony, which also was before the court, that he was

6’3’’ tall and weighed approximately 235 pounds. The

police incident report also indicates that when the officers spoke with the plaintiff, he acknowledged striking

Jake with the belt and pushing Miriam onto the bed.

The plaintiff at that time cautioned: ‘‘Look, you or any

other [department] officer [are] not going to tell me

how to discipline my son. There is nothing wrong with

using a belt. Put this on [the] record, OK—I will use

the belt again and I will spank my son again.’’

The police incident report also notes that Tyler spoke

with Jake and asked him if he was okay. In response,

the boy began to cry and then stated, ‘‘[m]y butt really

hurts. It hurts sitting here.’’

‘‘Probable cause is the knowledge of facts sufficient

to justify a reasonable person in the belief that there

are reasonable grounds for prosecuting an action.’’ Falls

Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,

supra, 281 Conn. 94. ‘‘[T]he probable cause determination is, simply, an analysis of probabilities. . . . The

determination is not a technical one, but is informed

by the factual and practical considerations of everyday

life on which reasonable and prudent [persons], not

legal technicians, act.’’ (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 523, 903 A.2d 169

(2006). For that reason, probable cause ‘‘is a flexible

common sense standard that does not require the police

officer’s belief to be correct or more likely true than

false. . . . [W]hile probable cause requires more than

mere suspicion . . . the line between mere suspicion

and probable cause necessarily must be drawn by an

act of judgment formed in light of the particular situation and with account taken of all the circumstances.

. . . The existence of probable cause does not turn on

whether the defendant could have been convicted on

the same available evidence.’’ (Citations omitted;

emphasis added; internal quotation marks omitted.)

Washington v. Blackmore, 119 Conn. App. 218, 221–22,

986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d

1104 (2010). In the context of the motion for summary

judgment filed by the defendant in the present case,

the critical question is whether the plaintiff can demonstrate that the officers had no objectively reasonable

basis to believe that an offense has been committed.

The documentation submitted in connection with

that motion convinces us that no genuine issue of material fact exists as to whether the arresting officers possessed an objectively reasonable basis to believe that

the plaintiff’s conduct on June 23, 2012, placed both

Jake and Abigail in a situation that was likely to be

psychologically injurious to them. Abigail watched as

the plaintiff wound up his arm and then struck Jake
with the belt several times, which reduced her to tears

and left her shaking and visibly upset when officers

arrived at the residence soon thereafter. Abigail, at that

time, described the incident as ‘‘very disturbing’’ and

informed officers that she was fearful that the plaintiff

would hit her in the future. Seven year old Jake not

only bore the brunt of the plaintiff’s blows with the

belt, but also watched the plaintiff shove his mother to

the bed when she attempted to intervene on his behalf.

When the officers spoke with Jake and asked if he was

okay, the boy began to cry and then confessed that his

‘‘butt really hurts,’’ so much so that it pained him to be

seated. In her written statement, Miriam informed the

officers that Jake was screaming as the plaintiff struck

him and that the plaintiff’s behavior had frightened Abigail. Miriam also indicated in that statement that she

‘‘will not have my children subject to or witness to

violence.’’ Furthermore, the officers in the present case

were summoned to the residence by a 911 call that

included a report of domestic violence,7 and the plaintiff

thereafter responded to the officer’s questions in a defiant manner, insisting that they could not ‘‘tell [him]

how to discipline [his] son’’ and imploring them to ‘‘[p]ut

this on the record . . . I will use the belt again and I

will spank my son again.’’

Viewing the record before us in a light most favorable

to the plaintiff, we conclude that the plaintiff has not

demonstrated the existence of a genuine issue of material fact as to whether, on the totality of the circumstances and the facts known to them at the time, the

arresting officers lacked an objectively reasonable basis

to believe that he had violated the situational prong of

§ 53-21 (a). The plaintiff, therefore, cannot establish the

probable cause element of an action for malicious prosecution.

II

The plaintiff nonetheless argues that the arresting

officers lacked probable cause in light of the protection

afforded parents under General Statutes § 53a-18 (1).

That statute provides in relevant part that ‘‘[t]he use

of physical force upon another person which would

otherwise constitute an offense is justifiable and not

criminal under any of the following circumstances . . .

(1) A parent, guardian or other person entrusted with

the care and supervision of a minor . . . may use reasonable physical force upon such minor . . . when and

to the extent that he reasonably believes such to be

necessary to maintain discipline or to promote the welfare of such minor or incompetent person. . . .’’

It is well established that § 53a-18 (1) functions as a

defense under our law. Commonly known as ‘‘the parental justification defense’’; State v. Nathan J., supra, 294

Conn. 253; § 53a-18 (1) operates as a ‘‘shield’’ in certain

circumstances in recognition of ‘‘the parental right to

punish children for their own welfare.’’ State v. Leavitt,
8 Conn. App. 517, 522, 513 A.2d 744, cert. denied, 201

Conn. 810, 516 A.2d 886 (1986). The statute ‘‘enumerates

circumstances in which physical force, which would

otherwise constitute an offense, is justifiable and thus

not criminal.’’ State v. Nathan J., supra, 253. As our

Supreme Court has explained: ‘‘The parental justification defense . . . provides that [physical] force is not

criminal, as long as it is reasonable, when directed by

a parent, or someone standing in loco parentis, against

a child for disciplinary purposes. If the force is unreasonable . . . however, the parental justification

[defense] does not apply and the force may constitute

risk of injury.’’ Id., 260.

Significantly, the ultimate determination of whether

the particular conduct of a parent is reasonable, and

thus entitled to the protection of § 53a-18 (1), ‘‘is a

factual determination to be made by the trier of fact.’’

State v. Brocuglio, 56 Conn. App. 514, 518, 744 A.2d

448, cert. denied, 252 Conn. 950, 748 A.2d 874 (2000);

State v. Leavitt, supra, 8 Conn. App. 522. Because ‘‘the

defense only applies to ‘reasonable physical force’ to

the extent ‘reasonably . . . necessary to maintain discipline or to promote the welfare’ of the child’’; State

v. Nathan J., supra, 294 Conn. 255 (emphasis in original); the factual question of reasonableness cannot be

determined by the arresting officers or the prosecutor

in a given case, but rather remains exclusively the

domain of the trier of fact. Id., 259.

Indeed, the arresting officers in the present case performed a preliminary, and fundamentally distinct, function—namely, the determination of whether the facts

then known were sufficient to justify a reasonable person to believe that reasonable grounds for prosecuting

an action existed. See Falls Church Group, Ltd. v. Tyler,

Cooper & Alcorn, LLP, supra, 281 Conn. 94. For that

reason, our Supreme Court has recognized that ‘‘[t]he

existence of probable cause does not turn on whether

the defendant could have been convicted on the same

available evidence’’; State v. Trine, 236 Conn. 216, 237,

673 A.2d 1098 (1996); particularly because ‘‘proof of

probable cause requires less than proof by a preponderance of the evidence.’’ State v. Munoz, 233 Conn. 106,

135, 659 A.2d 683 (1995). As the United States Court of

Appeals for the Second Circuit has noted, ‘‘[i]t would

be unreasonable and impractical to require that every

innocent explanation for activity that suggests criminal

behavior be proved wrong, or even contradicted, before

an arrest warrant could be issued with impunity. . . .

It is up to the factfinder to determine whether a defendant’s story holds water, not the arresting officer. . . .

Once officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as

prosecutor, judge or jury. Their function is to apprehend

those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.’’ (Citations omitted.) Krause v. Bennett, 887 F.2d 362, 372
(2d Cir. 1989).

Had the plaintiff elected to proceed to trial in the

underlying criminal proceeding, the finder of fact ultimately may have found his conduct on June 23, 2012,

to be reasonable, and thus subject to the protection of

the parental justification defense contained in § 53-18

(1). That defense has little bearing, however, on the

preliminary determination of probable cause made by

the arresting officers who responded to the 911 call in

the present case.

III

Also misplaced is the plaintiff’s reliance on this

court’s decision in Lovan C. v. Dept. of Children &

Families, 86 Conn. App. 290, 860 A.2d 1283 (2004).

Unlike the present case, which involves a probable

cause determination made soon after the incident in

question, Lovan C. involved a decision of the administrative hearings unit of the Department of Children and

Families substantiating an allegation of physical abuse

by a parent who had engaged in corporal punishment of

her child. Id., 292–93. In concluding that ‘‘substantiation

must be reversed for lack of substantial evidence that

the plaintiff’s discipline was unreasonable’’; id., 301; this

court emphasized that the hearing officer improperly

‘‘failed to hold a hearing regarding the reasonableness

of the plaintiff’s discipline of the child before substantiating the allegation of physical abuse.’’ Id., 297. In such

proceedings, the hearing officer of the administrative

hearings unit of the Department of Children and Families is the finder of fact that makes that reasonableness

determination as part of its final decision following a

hearing. See id., 299–300; State v. Nathan J., supra, 294

Conn. 259. We reiterate that, in the present case, the

arresting officers were not the finders of fact tasked

with making a final determination as to the reasonableness of the plaintiff’s conduct after an evidentiary proceeding. Lovan C., therefore, is inapposite to the

present case.

IV

As a final matter, we note that the plaintiff also argues

that summary judgment was inappropriate because the

arresting officers allegedly ‘‘fabricated the claim [in the

police incident report] that he had left red welts on his

son’s backside . . . .’’8 That contention is unavailing.

In its memorandum of decision, the trial court acknowledged that, although the record contained documentation substantiating the existence of such marks,9

the

plaintiff disputed their existence. The court nevertheless found that the ‘‘differences in the various accounts

[as to whether the marks existed] are not material’’ to

the question of whether the arresting officers possessed

probable cause to charge the plaintiff with risk of injury

to a child. We concur. Actual physical injury is not a

prerequisite to a conviction under the situation prong
of § 53-21. State v. Gewily, supra, 280 Conn. 669. In

reviewing the defendant’s motion for summary judgment, we view the pleadings, affidavits and other proof

submitted in a light most favorable to the plaintiff, and,

therefore, have not considered the presence of red welts

or bruising on Jake’s buttocks in our analysis of whether

the arresting officers possessed probable cause. Even

discounting such evidence, we nonetheless are convinced that no genuine issue of material fact exists as to

whether the arresting officers possessed an objectively

reasonable basis to believe that the plaintiff, through

his conduct on June 23, 2012, placed both Jake and

Abigail in a situation that was likely to be injurious to

their mental health and well-being in violation of § 53-

21 (a) (1). Because the existence of probable cause is

an absolute protection against an action for malicious

prosecution; Bhatia v. Debek, 287 Conn. 397, 411, 948

A.2d 1009 (2008); the plaintiff cannot demonstrate, as

he must, that he would have been entitled to judgment

in a malicious prosecution action against the arresting

officers but for the defendant’s professional negligence.

See Bozelko v. Papastavros, supra, 323 Conn. 284. The

plaintiff therefore cannot prevail on his legal malpractice claim against the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that the plaintiff’s former spouse is identified as Miriam Edelson

in certain documents in the record before us. For convenience, we refer to

her as Miriam in this opinion.

2 The police incident report indicates that Jake was seven years old and

Abigail was fifteen years old on June 23, 2012.

3 At oral argument before this court, the plaintiff’s counsel confirmed that

this appeal pertains only to the risk of injury charge.

4 Although his complaint also alleged an impairment of his ability to pursue

an action for false arrest, the plaintiff has pursued no such claim in this

case. For example, in his memorandum of law in opposition to the defendant’s motion for summary judgment, the plaintiff acknowledged that Judge

Bellis had made a finding that probable cause existed at the time of his

arrest. The plaintiff nonetheless stated: ‘‘While that finding might be relevant

if the plaintiff were suing for false arrest, it is meaningless in an action for

malicious prosecution . . . .’’ The plaintiff likewise has advanced no claim

on appeal regarding an action for false arrest, and instead has focused

entirely on the impairment of his ability to pursue a malicious prosecution

action. In his appellate brief, the plaintiff notes that he ‘‘had informed [the

defendant] of his desire to sue . . . for malicious prosecution’’ and thereafter discusses certain legal principles related thereto. He has not provided

any citation to, or discussion of, legal authority regarding actions for false

arrest. See Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 124,

956 A.2d 1145 (2008). Accordingly, we confine our review to the plaintiff’s

claims regarding the impairment of his ability to initiate a malicious prosecution action.

We further note that the plaintiff, in his complaint, averred that he had

‘‘explained to the defendant from the outset that . . . he wished not only

to be vindicated of the said allegations [in the underlying criminal proceeding] but to sue the person who had accused him, and the arresting officers

. . . .’’ (Emphasis added.) In his appellate brief, the plaintiff reiterated that

he had informed the defendant ‘‘of his desire to sue the arresting officers

and [Miriam] for malicious prosecution.’’ At oral argument before this court,

the plaintiff’s counsel abandoned any such claim with respect to Miriam,

conceding that it was not a ‘‘viable lawsuit’’ and stating that the plaintiff

was not pursuing a claim against Miriam. The present appeal, therefore,

concerns the viability of a malicious prosecution action against the

arresting officers.
5 Although it reversed an earlier substantiation of physical neglect, that

administrative decision also noted that the June 23, 2012 incident ‘‘was no

doubt an ugly scene, and one which likely will have a lasting impact on the

family.’’ It also noted that, when the police arrived at the residence that

day, the plaintiff ‘‘became flippant and belligerent with the responding officers. His behavior appeared erratic at that time.’’ The plaintiff’s belligerent

behavior toward law enforcement responding to a 911 call also is documented in the police incident report, which provides necessary context for

the probable cause determination made by the arresting officers.

6 During his deposition testimony, Officer Tyler indicated that the risk of

injury charge was premised on the ‘‘dangerous situation’’ created by the

plaintiff’s conduct.

7 The police incident report states in relevant part that Miriam ‘‘called 911

to report that her husband . . . is beating [their] seven year old son . . .

with a belt.’’

8 The police incident report states in relevant part that Miriam and Sergeant

Edward Weihe ‘‘inspected Jake’s buttocks and they were cherry red, with

welts. . . .’’ In his deposition, the plaintiff testified: ‘‘I don’t believe there

[were] any marks [on Jake’s body]. I don’t see how there could have been.

. . . [T]here wasn’t any marks . . . the police lied, lied, and . . . there

were no marks on Jake, on Jake’s butt.’’ In his appellate brief, the plaintiff

alleges that the arresting officers ‘‘lied about the alleged ‘red welts’ ’’ in the

police incident report.

9

In her deposition testimony, which was submitted in support of the

defendant’s motion for summary judgment, Miriam stated that she inspected

Jake’s buttocks soon after the incident and observed red marks on his

buttocks. Miriam further testified that she observed ‘‘black and blue marks’’

on her son’s body a day or two after the incident transpired. In response,

she took him to department headquarters, where an officer took photographs

of his body. Three photographs depicting bruising on Jake’s buttocks were

submitted to the court in support of the defendant’s motion for summary

judgment, and are contained in the record before us.