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*********************************************** 
DEVONTE DALEY v. ZACHARY

KASHMANIAN ET AL.

(AC 41393)

Keller, Bright and Harper, Js.

Syllabus

The plaintiff sought to recover damages from the defendant police detective,

K, and the defendant city of Hartford for personal injuries he sustained

when he was ejected from his motorcycle after it was struck by K’s

unmarked vehicle, which was not equipped with flashing or revolving

lights or a siren, while K was surveilling the plaintiff and traveling above

the speed limit in the wrong lane of traffic. The plaintiff sought to

recover damages on the basis of K’s alleged reckless and negligent

conduct, claiming that K’s conduct violated a ministerial duty imposed

on him by certain motor vehicle statutes. After the case was tried to a

jury, the trial court granted K’s motion for a directed verdict on the

plaintiff’s recklessness claim. The jury thereafter returned a verdict in

favor of the plaintiff on his negligence claim. Subsequently, the trial

court set aside the verdict on the negligence count, concluding that

the plaintiff’s allegations related to discretionary acts for which the

defendants were immune from liability pursuant to the statute (§ 52-

557n) concerning governmental immunity. From the judgment rendered

thereon, the plaintiff appealed to this court. Held:

1. The trial court improperly directed a verdict in favor of K as to the

plaintiff’s recklessness claim, as the evidence, viewed in a light most

favorably to the plaintiff, was sufficient for the jury reasonably to conclude that K acted recklessly: on the basis of the evidence presented,

the jury reasonably could have concluded that K consciously disregarded

state laws relating to speed limits, reckless driving, following too closely

and traveling in the correct lane of traffic in a situation in which a high

degree of danger was present, and that he was aware of the risks and

dangers his conduct imposed on others, yet showed little regard for the

consequences of his actions; accordingly, the plaintiff was entitled to

have his recklessness claim submitted to the jury.

2. The trial court properly set aside the verdict in favor of the plaintiff

on his negligence claim; the circumstances surrounding K’s conduct

demonstrated that he was engaged in discretionary activity, as he was

engaged in the discretionary police activity of surveilling the plaintiff

and, thus, did not have a ministerial duty to follow every motor vehicle

statute, even if those statutes in other circumstances would impose

ministerial duties, and in the absence of a directive that clearly compelled

K’s conduct, he was entitled to governmental immunity for his discretionary acts.

Argued May 13—officially released October 1, 2019

Procedural History

Action to recover damages for the alleged negligence

and recklessness of the named defendant et al., and for

other relief, brought in the Superior Court in the judicial

district of Hartford and tried to the jury before Scholl,

J.; thereafter, the court granted the named defendant’s

motion for a directed verdict on the plaintiff’s recklessness claim; verdict for the plaintiff on his negligence

claim; subsequently, the court set aside the verdict and

rendered judgment for the defendants, from which the

plaintiff appealed to this court. Reversed in part;

new trial.

Martin McQuillan, for the appellant (plaintiff).

William J. Melley, for the appellee (named
defendant).

Nathalie Feola-Guerrieri, for the appellee (defendant city of Hartford).

James J. Healy and Karen K. Clark filed a brief for

the Connecticut Trial Lawyers Association as amicus

curiae.
Opinion

BRIGHT, J. This appeal stems from a personal injury

action brought by the plaintiff, Devonte Daley, against

the defendants, Zachary Kashmanian and the city of

Hartford (city), seeking damages for the injuries he

sustained when Kashmanian, a detective with the Hartford Police Department who had been surveilling the

plaintiff in an unmarked police car, allegedly, negligently and recklessly caused the plaintiff to be ejected

from his motorcycle. The plaintiff appeals, following a

jury trial, from the judgment of the trial court directing

a verdict in favor of Kashmanian on the plaintiff’s recklessness claim, and from the judgment of the trial court

setting aside the jury’s verdict on the plaintiff’s negligence claim. On appeal, the plaintiff claims that the

court improperly (1) directed a verdict because there

was sufficient evidence for the jury to find that Kashmanian engaged in reckless conduct, and (2) set aside

the verdict with respect to the negligence claim on the

ground that the defendants were entitled to governmental immunity because Kashmanian was engaged in ministerial, not discretionary, conduct. We agree with the

plaintiff’s first claim only, and, accordingly, we reverse

the judgment of the trial court directing a verdict on

the recklessness claim and affirm the judgment of the

trial court setting aside the verdict on the negligence

claim.

The relevant facts, viewed in a light most favorable

to the plaintiff, and procedural history, are as follows.

On June 1, 2013, at approximately 12 a.m., the plaintiff

was riding his yellow Suzuki motorcycle on Asylum

Avenue in Hartford with a group of eight to ten other

people who were riding ‘‘dirt bikes’’ and ‘‘quads.’’ The

plaintiff’s motorcycle was neither ‘‘street legal’’ nor

‘‘roadworthy’’ because it did not have headlights and

was equipped with off-road tires: a black tire on the

front and a yellow tire on the back. Also at that time,

Kashmanian was operating an unmarked gray Acura

TL, which the police characterize as a ‘‘soft car.’’ A soft

car is a vehicle that is not equipped with flashing or

revolving lights, sirens, or police markings so that it is

indiscernible from ordinary civilian cars.

At or around that same time, a confidential informant

provided an anonymous tip to the police that a man

riding a yellow motorcycle with a yellow tire had a gun.

Kashmanian was instructed by other officers to perform

surveillance1 on the group of motorcycles and quads,

including the yellow motorcycle, which was operated

by the plaintiff. When Kashmanian arrived at Asylum

Avenue, he observed the yellow motorcycle and the

group of motorcycles and quads, and proceeded to follow them westbound on Asylum Avenue. All of the

motorcycles and quads then turned right and proceeded

northbound on Sumner Street, which is a two lane road

with a speed limit of twenty-five miles per hour. At
the intersection of Asylum and Sumner, Kashmanian’s

vehicle ‘‘sideswip[ed]’’ another motor vehicle driven by

Brontain Stringer, which had been proceeding in the

same direction. Kashmanian paused for a brief second,

but he was directed by the police on the radio to ‘‘just

keep going’’ and that they would ‘‘take care of the accident; just keep going.’’

Kashmanian then proceeded north in the northbound

lane of Sumner Street, to continue to surveil the plaintiff. Kashmanian was traveling between forty and fifty

miles per hour, well over the twenty-five miles per hour

speed limit. Kashmanian then crossed the center line

to travel north in the southbound lane in an effort to

avoid two quads in the group that fishtailed and sideswiped his vehicle. Although he could have returned

to the northbound lane of traffic after passing the two

quads, Kashmanian continued to travel north in the

southbound lane, closing the distance between his car

and the plaintiff’s motorcycle until he struck the back

tire of the plaintiff’s motorcycle with the front left panel

of his vehicle, which caused the plaintiff to crash his

motorcycle into a parked car in the southbound lane

of Sumner Street. The plaintiff was ejected from his

motorcycle and landed approximately ninety-five feet

down Sumner Street, causing him significant injuries.

As evinced by the lack of skid marks on Sumner Street,

Kashmanian neither suddenly slowed his vehicle nor

applied his brakes before striking the plaintiff’s

motorcycle.

On February 26, 2015, the plaintiff filed this personal

injury action against the defendants. The plaintiff’s

operative fifth amended complaint contains two relevant counts.2

In count one, the plaintiff asserted a common-law negligence claim against Kashmanian in his

official capacity and the city, alleging that Kashmanian

negligently caused the plaintiff’s injuries. In count two,

the plaintiff asserted a common-law recklessness claim

against Kashmanian, alleging that he recklessly, wilfully, and wantonly caused the plaintiff’s injuries.

In response, the defendants filed answers denying

the essential allegations of the plaintiff’s complaint and

alleging two relevant special defenses. The defendants

alleged that the plaintiff’s injuries were caused by his

own comparative negligence, and that the plaintiff’s

claims are barred by common-law and statutory governmental immunity, pursuant to General Statutes § 52-

557n,3 because Kashmanian was engaged in discretionary acts.4 Prior to the submission of the case to the

jury, the parties stipulated that the issue of whether

the defendants were entitled to governmental immunity

would be decided by the court if the jury returned a

verdict in favor of the plaintiff on his negligence claim.

The case was tried to a jury over the course of five

days. At the close of evidence, Kashmanian made an

oral motion for a directed verdict as to count two, the
common-law recklessness count. In particular, Kashmanian argued that count two should not be submitted

to the jury because there was no evidence that Kashmanian engaged in reckless conduct. After hearing the

plaintiff’s counterargument, the court orally granted

Kashmanian’s motion for a directed verdict as to count

two. Accordingly, the jury was charged and the case

was submitted to the jury only as to count one, the

negligence count, and the defendants’ comparative negligence special defense. On that same day, the jury

returned a verdict for the plaintiff in the total amount

of $416,214, reduced on the basis of the jury’s finding

that the plaintiff comparatively was 25 percent negligent, for a net award of $312,160.50.

The court then scheduled oral argument for January

23, 2018, and ordered the parties to file memoranda of

law on the reserved issue of governmental immunity.

On December 19 and 22, 2017, the city and Kashmanian,

respectively, each filed a memorandum of law in which

they argued, inter alia, that the jury’s verdict in favor

of the plaintiff on his negligence claim should be set

aside because it was barred by the doctrine of governmental immunity.5 On January 12, 2018, the plaintiff

filed a memorandum of law in opposition on the ground

that the defendants are not entitled to governmental

immunity.

On February 8, 2018, the court set aside the jury’s

verdict in favor of the plaintiff on count one, the negligence claim. In particular, the court concluded that

governmental immunity was applicable to Kashmanian’s conduct because his driving surveillance involved

discretionary police activity, which is protected under

§ 52-557n (a) (2) (B). Because of its determination on

governmental immunity, the court also reasoned that

no cognizable claim existed against the city for indemnification under § 7-465. See footnotes 2 and 5 of this

opinion. The court then rendered judgment in favor of

the defendants on counts one and four of the plaintiff’s

complaint. This appeal followed. Additional facts will

be set forth as necessary.

I

The plaintiff first claims that the court improperly

directed a verdict in favor of Kashmanian on his claim

of recklessness. We agree.

‘‘We begin our analysis with the standard of review

of a trial court’s decision to grant a motion for a directed

verdict. Whether the evidence presented by the plaintiff

was sufficient to withstand a motion for a directed

verdict is a question of law, over which our review is

plenary. . . . Directed verdicts are not favored. . . .

A trial court should direct a verdict only when a jury

could not reasonably and legally have reached any other

conclusion. . . . In reviewing the trial court’s decision

to direct a verdict in favor of a defendant we must
consider the evidence in the light most favorable to the

plaintiff. . . . Although it is the jury’s right to draw

logical deductions and make reasonable inferences

from the facts proven . . . it may not resort to mere

conjecture and speculation. . . . A directed verdict is

justified if . . . the evidence is so weak that it would

be proper for the court to set aside a verdict rendered

for the other party. . . . [Our Supreme Court] has

emphasized two additional points with respect to

motions to set aside a verdict that are equally applicable

to motions for a directed verdict: First, the plaintiff in

a civil matter is not required to prove his case beyond

a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional

right to a trial by jury.’’ (Citations omitted; internal

quotation marks omitted.) Curran v. Kroll, 303 Conn.

845, 855–56, 37 A.3d 700 (2012).

Next, we turn to our standard for recklessness, which

is well established. ‘‘Recklessness requires a conscious

choice of a course of action either with knowledge

of the serious danger to others involved in it or with

knowledge of facts which would disclose this danger

to any reasonable man, and the actor must recognize

that his conduct involves a risk substantially greater

. . . than that which is necessary to make his conduct

negligent. . . . More recently, we have described recklessness as a state of consciousness with reference to

the consequences of one’s acts. . . . It is more than

negligence, more than gross negligence. . . . The state

of mind amounting to recklessness may be inferred

from conduct. But, in order to infer it, there must be

something more than a failure to exercise a reasonable

degree of watchfulness to avoid danger to others or to

take reasonable precautions to avoid injury to them.

. . . Wanton misconduct is reckless misconduct . . . .

It is such conduct as indicates a reckless disregard of

the just rights or safety of others or of the consequences

of the action. . . .

‘‘While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless,

in practice the three terms have been treated as meaning

the same thing. The result is that willful, wanton, or

reckless conduct tends to take on the aspect of highly

unreasonable conduct, involving an extreme departure

from ordinary care, in a situation where a high degree

of danger is apparent.’’ (Citations omitted; internal quotation marks omitted) Matthiessen v. Vanech, 266 Conn.

822, 832–33, 836 A.2d 394 (2003); see Williams v. Housing Authority, 327 Conn. 338, 380, 174 A.3d 137

(2017) (same).

The plaintiff claims on appeal that the court erred in

granting Kashmanian’s motion for a directed verdict

because there was sufficient evidence for the jury to
find that Kashmanian’s conduct that caused the plaintiff’s injuries was wilful, wanton, or reckless. Specifically, the plaintiff cites Kashmanian’s numerous traffic

violations, the fact that Kashmanian did not stop or

change course even though he was aware of the plaintiff’s motorcycle slightly in front of him, and his accident

with Stringer as evidence of highly unreasonable conduct rising to the level of recklessness. Conversely,

Kashmanian contends that, because he was conducting

surveillance in the scope of his police duties and in

response to direct orders from his supervisor, his conduct lacked the requisite conscious disregard for the

safety of others. Kashmanian argues that his conduct

was the opposite of reckless because it was done to

preserve the safety of others. We do not agree with

Kashmanian’s argument. We agree with the plaintiff

that, viewing the evidence in a light most favorable to

him, there was sufficient evidence for the jury reasonably to conclude that Kashmanian’s conduct was

reckless.

At trial, Kashmanian testified that the purpose of

surveillance is to monitor covertly the conduct of the

subject at a distance. Nevertheless, the evidence,

viewed in a light most favorable to the plaintiff, demonstrated that Kashmanian drove down Sumner Street, in

the dark, in a soft car, and at approximately double the

speed limit in order to stay close to the plaintiff. He

did so immediately after colliding with Stringer’s vehicle

on Asylum Avenue, and driving away to continue his

surveillance. Kashmanian maintained his same rate of

speed while knowingly driving northbound in the southbound lane, even though he could have returned to the

correct lane. In fact, the jury reasonably could have

concluded that Kashmanian, following his collision with

Stringer, must have increased his speed in order to

catch up to the plaintiff. Kashmanian ultimately got so

close to the plaintiff, while in the wrong lane of traffic,

that he struck the plaintiff’s motorcycle at such a speed

and with enough force to drive it into a parked vehicle,

which propelled the plaintiff ninety-five feet. As a result

of Kashmanian’s driving on Asylum Avenue and Sumner

Street, there were at least three vehicles that sustained

significant damage and one person, the plaintiff, who

sustained significant physical injuries.

On the basis of this evidence, the jury reasonably

could have concluded that Kashmanian consciously disregarded Connecticut’s laws relating to speed limits,

reckless driving, following too closely, and travelling

in the correct lane of traffic, in a situation in which a

high degree of danger was apparent. See General Statutes §§ 14-218a, 14-222, 14-230 and 14-240a. The jury

reasonably could have concluded that Kashmanian was

aware of the dangers and risks he was imposing on

others, including the plaintiff, and yet showed little

regard for the consequences of his actions. Although

Kashmanian’s supervisor instructed him to surveil the
plaintiff and to continue that surveillance after his accident with Stringer, those instructions did not give Kashmanian license to engage in wilful, wanton, or reckless

conduct. See, e.g., O’Connor v. City of New York, 280

A.D.2d 309, 719 N.Y.S.2d 656 (2001) (findings that officer

drove unmarked vehicle without turret light or siren,

at high rate of speed against flow of traffic on oneway street, and entered intersection without warning

or slowing down were sufficient to support reckless

claim); Adams v. Peoples, 18 Ohio St.3d 140, 480 N.E.2d

428 (1985) (allegations that officer drove his vehicle at

excessive speed, ‘‘had gone left of the center line to

enter the intersection on a red traffic light,’’ under wet

road conditions, were sufficient to support willful and

wanton claim). Similarly, Kashmanian’s argument that

he was attempting to stop the entire group of riders

who posed a threat to the residents of the city does

not justify engaging in reckless conduct.6 Jackson v.

Lipsey, 834 So. 2d 687, 690 (Miss. 2003) (findings that

officer, in attempt to apprehend suspects, suddenly

turned into traffic without headlights, blue lights, or

siren were sufficient to support reckless claim). Ultimately, because the evidence, viewed in a light most

favorable to the plaintiff, was sufficient for the jury

reasonably to conclude that Kashmanian acted recklessly, the plaintiff was entitled to have his claim submitted to the jury. Therefore, we conclude that the court

erred in granting Kashmanian’s motion for a directed

verdict as to count two.

II

The plaintiff next claims that the court improperly

set aside the verdict on his negligence claim on the

ground that the defendants are entitled to governmental

immunity. We disagree.

We begin with the standard of review and legal principles relevant to our resolution of this claim. Although

generally a court’s decision to set aside a jury verdict

is subject to an abuse of discretion review; Rawls v.

Progressive Northern Ins. Co., 310 Conn. 768, 776, 83

A.3d 576 (2014); we afford plenary review to the present

claim because, as the parties properly recognize, the

ultimate determination as to whether the defendants

are entitled to governmental immunity is a question of

law. Ventura v. East Haven, 330 Conn. 613, 634–37, 199

A.3d 1 (2019).

The law pertaining to municipal immunity is well

settled. ‘‘[Section] 52-557n abandons the common-law

principle of municipal sovereign immunity and establishes the circumstances in which a municipality may

be liable for damages. . . . One such circumstance is

a negligent act or omission of a municipal officer acting

within the scope of his or her employment or official

duties. . . . [Section] 52-557n (a) (2) (B), however,

explicitly shields a municipality from liability for damages to person or property caused by the negligent acts
or omissions [that] require the exercise of judgment

or discretion as an official function of the authority

expressly or impliedly granted by law.’’ (Footnote omitted; internal quotation marks omitted.) Brooks v. Powers, 328 Conn. 256, 264–65, 178 A.3d 366 (2018).

‘‘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. . . .

[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 secondguessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.

. . . 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.’’

(Citations omitted; internal quotation marks omitted.)

Ventura v. East Haven, supra, 330 Conn. 630.

‘‘For purposes of determining whether a duty is discretionary or ministerial, [our Supreme Court] has recognized that [t]here is a difference between laws that

impose general duties on officials and those that mandate a particular response to specific conditions. . . .

A ministerial act is one which a person performs in a

given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard

to or the exercise of his own judgment [or discretion]

upon the propriety of the act being done. . . . In contrast, when an official has a general duty to perform

a certain act, but there is no city charter provision,

ordinance, regulation, rule, policy, or any other directive [requiring the government official to act in a] prescribed manner, the duty is deemed discretionary.’’

(Citations omitted; footnote omitted; internal quotation

marks omitted.) Northrup v. Witkowski, 332 Conn. 158,

169–70, 210 A.3d 29 (2019).

‘‘[I]t is firmly established that the operation of a police

department is a governmental function, and that acts

or omissions in connection therewith ordinarily do not

give rise to liability on the part of the municipality. . . .

Indeed, [our Supreme Court] has long recognized that

it is not in the public’s interest to [allow] a jury of

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

. . . Thus, as a general rule, [p]olice officers are protected by discretionary act immunity when they perform the typical functions of a police officer. . . .

‘‘In accordance with these principles, our courts consistently have held that to demonstrate the existence
of a ministerial duty on the part of a municipality and

its agents, a plaintiff ordinarily must point to some

statute, city charter provision, ordinance, regulation,

rule, policy, or other directive that, by its clear language,

compels a municipal employee to act in a prescribed

manner, without the exercise of judgment or discretion.’’ (Citations omitted; internal quotation marks omitted.) Ventura v. East Haven, supra, 330 Conn. 630–31.

Neither our Supreme Court nor this court has determined whether a municipal police officer conducting

surveillance while driving a motor vehicle is engaged

in discretionary or ministerial conduct. The plaintiff,

relying on a number of Superior Court and out-of-state

cases,7 argues that Kashmanian’s surveillance, while

operating a motor vehicle, was ministerial. Conversely,

the defendants argue that Kashmanian’s surveillance,

while driving, was discretionary because it entailed the

use of judgment. We conclude that, on the basis of the

facts of the present case, the defendants are entitled to

governmental immunity as to the plaintiff’s negligence

claim because Kashmanian was engaged in discretionary conduct.

In the present case, the plaintiff, concededly, has not

pointed us to any directive that prescribes the manner

in which police officers are required to conduct surveillance. The plaintiff relies, instead, on Kashmanian’s testimony as to his subjective understanding that surveillance meant ‘‘you’re following someone at a distance,

trying to keep an eye on them, where they’re going;

what their actions are. It could be in a car; it can be

walking. It could be anywhere. It could be through

a camera.’’ We reject the plaintiff’s position because

Kashmanian’s understanding of desired conduct does

not clearly establish a ministerial duty. See, e.g., Strycharz v. Cady, 323 Conn. 548, 566–67, 148 A.3d 1011

(2016) (testimony that did not identify specific directive

but merely established manner in which individual official performed his official duties was insufficient to

establish existence of ministerial duty); Northrup v.

Witkowski, 175 Conn. App. 223, 236 n.5, 167 A.3d 443

(2017) (explaining that ‘‘vague’’ testimony that ‘‘does

not come close to an admission that the town had a

nondiscretionary duty’’ is insufficient to establish ministerial duty in absence of written directive), aff’d, 332

Conn. 158, 210 A.3d 29 (2019).

Further, even in instances in which an officer has

been provided with a written directive, courts across

the country have held that officer surveillance is a discretionary function. See, e.g., Estate of Salazar v.

United States, United States District Court, Docket No.

LA-CV-11-10279 JAK (SPx) (C.D. Cal. May 20, 2014)

(examining United States Marshall Policy Directives,

which ‘‘suggest, but do not require, particular conduct,’’

to determine that surveillance is discretionary); Davis

v. United States, United States District Court, Docket
No. 7:10CV00005 (GEC) (W.D. Va. July 12, 2010) (examining United States Code and prison regulations to

determine that surveillance of inmates is discretionary);

Flax v. United States, 847 F. Supp. 1183, 1188–89 (D.N.J.

1994) (examining police guidelines to determine that

surveillance is discretionary). These decisions are consistent with the general rule in Connecticut that

‘‘[p]olice officers are protected by discretionary act

immunity when they perform the typical functions of

a police officer.’’ (Internal quotation marks omitted.)

Ventura v.East Haven, supra, 330 Conn. 630. Kashmanian’s surveillance, performed in the course of his

employment as a police officer, necessarily required

him to exercise his judgment, under the circumstances;

for example, as to how fast to travel, the distance to

maintain between his car and the plaintiff, and whether

to change lanes.

The plaintiff also argues that, because there is no

statutory exception applicable, Kashmanian had a ministerial duty to comply with the motor vehicle statutes.

In particular, the plaintiff argues, and the defendants

do not dispute, that Kashmanian was not exempt from

certain motor vehicle statutes pursuant to General Statutes § 14-283 (providing that police officers responding

to ‘‘emergency call[s]’’ while ‘‘making use of an audible

warning signal device’’ are exempt from certain motor

vehicle statutes in some circumstances) because he was

operating a soft car with no lights or sirens. According

to the plaintiff, because the legislature has identified

specific circumstances in § 14-283 in which police may

disregard certain motor vehicle statutes, that necessarily means that absent those circumstances, police have

a ministerial duty to obey all traffic laws. We disagree.

Section 14-283 addresses only two situations:

responses to emergency calls and pursuit of fleeing

law violators. It does not purport to set a standard of

conduct for other police endeavors, including surveillance.8 Furthermore, the plaintiff’s argument would

make effective police surveillance impossible in many

instances. For example, if an officer is instructed to

maintain surveillance of another vehicle and the operator of that vehicle decides to exceed the posted speed

limit, the officer would be unable to maintain surveillance without driving contrary to the mandate of General Statutes § 14-219 (prohibiting speeding). Similarly,

maintaining surveillance of a particular suspected criminal may require an officer engaged in such surveillance

while driving his vehicle to drive though a stop sign

or red traffic light, make a right turn on red without

stopping, or even drive the wrong way down a one-way

street. Deciding whether the need to maintain surveillance of the person or vehicle being surveilled outweighs the risk to public safety caused by the violation

of a motor vehicle statute requires the sound judgment

of the police officer, and, is, therefore, inherently discretionary.
Having said this, we decline to hold that, under all

circumstances, a municipal police officer operating a

motor vehicle is engaged in discretionary conduct,

thereby immunizing the officer and municipality from

damages arising from all violations of motor vehicle

statutes. Although it may be true that some motor vehicle statutes implicitly require drivers to exercise some

degree of judgment when operating a motor vehicle,

some statutes do not. Furthermore, although some circumstances may permit an officer, in the exercise of

discretion, to violate a motor vehicle statute, that is not

always the case. Affording governmental immunity in

every instance where an officer violates a motor vehicle

statute is far too expansive a rule. For example, a police

officer who fails to stop at a stop sign because he is

distracted by a personal phone call and, as a result,

causes an accident can hardly be said to be engaging

in discretionary conduct. In such a circumstance, the

officer likely has a ministerial duty to obey the law and

stop at the stop sign. Ultimately, the determination of

whether a police officer who violates a motor vehicle

statute is engaged in ministerial or discretionary conduct must be made in view of the language of the statute

at issue and the circumstances presented. See Ventura

v. East Haven, supra, 330 Conn. 636–37 n.11 (issue of

governmental immunity, in some cases, is contingent

on factual circumstances).9

In the present case, the circumstances surrounding

Kashmanian’s conduct demonstrate that he was

engaged in discretionary activity. Kashmanian was not

merely operating his motor vehicle on the roads under

ordinary conditions; instead, he was engaged in the

discretionary police activity of surveilling the plaintiff.

In exercising such discretion in the present case, Kashmanian did not have a ministerial duty to follow each

and every motor vehicle statute, even if those statutes

in other circumstances would impose ministerial duties.

Under these circumstances, Kashmanian’s discretion as

to the manner in which to conduct his surveillance

extends to whether to violate the motor vehicle statutes.

A review on appeal of Kashmanian’s actions in the performance of his police duties would violate the proscription of second-guessing the decisions made pursuant

to his professional duty. See Ventura v. East Haven,

supra, 330 Conn. 630–31. Therefore, in the absence of a

directive that clearly compelled Kashmanian’s conduct

and considering the circumstances of his conduct, we

conclude that the defendants are entitled to governmental immunity and, thus, the court properly set aside the

jury’s verdict in favor of the plaintiff on his negligence claim.

The judgment setting aside the jury’s verdict on the

negligence count is affirmed; the judgment directing a

verdict in favor of Kashmanian on the common-law

recklessness count is reversed and the case is remanded
for a new trial as to that count.

1 Kashmanian testified that his understanding of surveillance is ‘‘you’re

following someone at a distance, trying to keep an eye on them, where

they’re going; what their actions are. It could be in a car; it can be walking.

It could be anywhere. It could be through a camera.’’

2 The complaint contains two additional counts that are not relevant to

our resolution of this appeal. In count three, the plaintiff alleged a statutory

recklessness claim pursuant to General Statutes § 14-295 against Kashmanian in his individual capacity. The plaintiff withdrew this count at the conclusion of the presentation of evidence at trial. In count four, the plaintiff

alleged an indemnification claim against the city pursuant to General Statutes

§ 7-465 (providing indemnification by municipalities of municipal officers,

agents or employees who incur liability for negligent official conduct). Count

four was not submitted to the jury because resolution of that claim was

dependent on the court’s analysis of the defendants’ governmental immunity

special defense. Specifically, in the absence of a common-law negligence

claim against Kashmanian, there would be no basis for a statutory indemnification claim against the city pursuant to § 7-465. See Wu v. Fairfield, 204

Conn. 435, 438, 528 A.2d 364 (1987) (‘‘in a suit under § 7-465, any municipal

liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality’s employment relationship with that individual’’).

3 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: (A) Acts

or omissions of any employee, officer or agent which constitute criminal

conduct, fraud, actual malice or wilful misconduct; or (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.’’

4 The defendants pleaded governmental immunity as a special defense

generally to all of the plaintiff’s claims, yet Kashmanian does not argue

that governmental immunity would apply to his alleged wilful, wanton, or

reckless conduct.

5

In its December 19, 2017 memorandum of law, the city also moved for

a directed verdict as to count four of the plaintiff’s complaint, the § 7-

465 indemnification claim against it. See footnote 2 of this opinion. In his

December 22, 2017 memorandum of law, Kashmanian specifically moved

for a ‘‘directed verdict’’ as to count one, the negligence claim, however, the

court properly treated this memorandum of law as seeking to set aside the

jury’s verdict in favor of the plaintiff on count one. Further, the city, by way

of motion filed on December 29, 2017, joined and incorporated Kashmanian’s

December 22, 2017 memorandum of law.

6 The jury reasonably could have found Kashmanian’s testimony that his

goal was to assist in stopping the entire group of motorcycles and quads

not credible given evidence that he passed other members of the group to

close in on the plaintiff.

7 The decisions of the Superior Court are split as to whether a police

officer is entitled to governmental immunity for the operation of a motor

vehicle. See Williams v. New London, Superior Court, judicial district of

New London, Docket No. CV-12-6012328-S (April 7, 2014) (58 Conn. L. Rptr.

86) (collecting cases on both sides).

The plaintiff cites to several Superior Court cases for the proposition that

a police officer’s operation of a motor vehicle is ministerial conduct. See,

e.g., Letowt v. Norwalk, 41 Conn. Supp. 402, 405–406, 579 A.2d 601 (1989)

(relying on Rhode Island Supreme Court decision to hold that police officer

driving patrol car to scene of accident is ministerial because ‘‘[o]rdinary

citizens drive their cars every day, not just police officers . . . .’’); Borchetta

v. Brown, 41 Conn. Supp. 420, 424, 580 A.2d 1007 (1990) (relying on Letowt

to determine that ‘‘operation of a police vehicle [on patrol duty] was a

ministerial function’’); MacMillen v. Branford, Superior Court, judicial district of New Haven, Docket No. 374004 (March 30, 1998) (21 Conn. L. Rptr.

561) (relying on Letowt to determine that operation of police vehicle on the

way to crime scene is ministerial activity); Hurdle v. Waterbury, Superior

Court, judicial district of Waterbury, Docket No. 0123428 (December 12,

1995) (relying on Letowt to determine that operation of police vehicle is

ministerial activity); see also Jones v. Lathram, 150 S.W.3d 50, 53 (Ky. 2004)
(act of safely driving police cruiser, even in emergency, was ministerial

because it does not require any deliberation or exercise of judgment).

The cases that the defendants cite stand for the contrary proposition

that driving is a discretionary activity because it requires some degree of

judgment. See, e.g., Kajic v. Marquez, Superior Court, judicial district of

Hartford, Docket No. CV-16-6065320-S (August 16, 2017) (determining that

police officer’s operation of patrol car was discretionary because duty to

use reasonable care ‘‘is a quintessentially discretionary duty because it

involves the exercise of judgment in evaluating the circumstances requiring

action or inaction’’); Paternoster v. Paszkowski, Superior Court, judicial

district of Fairfield, Docket No. CV-14-6042098-S (September 1, 2015)

(determining that police officer’s pursuit in patrol car, in violation of motor

vehicle statutes, was discretionary).

8 We note that § 14-283 (d) provides: ‘‘The provisions of this section shall

not relieve the operator of an emergency vehicle from the duty to drive

with due regard for the safety of all persons and property.’’ The question

of whether this language creates a ministerial duty to which governmental

immunity would not apply is currently before our Supreme Court in Borelli

v. Renaldi, SC 20232. That case involves the defendant officer’s pursuit of

a fleeing vehicle under § 14-283. We asked counsel at oral argument in the

present case if we should stay this case pending the outcome of Borelli.

Both counsel agreed that, because this case did not involve activity governed

by § 14-283, resolution of the present case would not be impacted by our

Supreme Court’s decision in Borelli.

9 Further, the policy determination as to whether a municipal police officer

should be liable for operating a motor vehicle under all circumstances is

best left to our legislature. See Thomas v. Dept. of Developmental Services,

297 Conn. 391, 412, 999 A.2d 682 (2010) (‘‘[w]e are not in the business of

writing statutes; that is the province of the legislature’’ [internal quotation

marks omitted]); see also General Statutes § 52-556 (‘‘[a]ny person injured

in person or property through the negligence of any state official or employee

when operating a motor vehicle owned and insured by the state against

personal injuries or property damage shall have a right of action against

the state to recover damages for such injury’’ [emphasis added]).