Daley v. Kashmanian

• Decision Date: 30 August 2022
• Docket Number: SC 20498
• Citation: 344 Conn. 464,280 A.3d 68
• Parties: Devonte DALEY v. Zachary KASHMANIAN et al.
• Court: Connecticut Supreme Court

344 Conn. 464

280 A.3d 68

Devonte DALEY

v.Zachary KASHMANIAN et al.

SC 20498

Supreme Court of Connecticut.

Argued December 15, 2021

Officially released August 30, 2022

Martin McQuillan, for the appellant (plaintiff).

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

Nathalie Feola-Guerrieri, senior assistant corporation counsel, for the appellee (defendant city of Hartford).

Sarah Steinfeld and Erica Ryan Moskowitz filed a brief for Moral Monday CT et al. as amici curiae.

Julianne Lombardo Klaassen and James J. Healy filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Robinson, C. J., and McDonald, D'Auria, Kahn, and Ecker, Js.

ROBINSON, C. J.

The sole issue in this certified appeal is whether a police officer who was involved in a crash while using an automobile to perform surveillance during an investigation of possible criminal activity was engaged in a discretionary act for purposes of governmental immunity under the common law or General Statutes § 52-557n (a) (2) (B).¹ The plaintiff, Devonte Daley, appeals, upon our grant of his petition for certification,² from the judgment of the Appellate Court reversing in part the judgment of the trial court, rendered in favor of the plaintiff after a jury trial, in this personal injury action against the defendants, Zachary Kashmanian, a police officer, and his employer, the city of Hartford (city). See Daley v. Kashmanian , 193 Conn. App. 171, 190, 219 A.3d 499 (2019). On appeal, the plaintiff contends that the Appellate Court incorrectly concluded that Kashmanian's actions during his surveillance of the plaintiff using a "soft car," which is an unmarked vehicle lacking police equipment, were discretionary acts for purposes of governmental immunity. We conclude that Kashmanian's operation of the soft car, including following the statutory rules of the road; see General Statutes § 14-212 et seq. ; was a ministerial function and that the defendants, therefore, were not entitled to discretionary act immunity for Kashmanian's negligent operation of the soft car during the surveillance operation. Accordingly, we reverse in part the judgment of the Appellate Court.

The Appellate Court's opinion aptly sets forth the facts and procedural history in this case. "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 offroad 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 surveillance³ [of] 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 ... [that] 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 [to sustain serious] 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.⁴ 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 ... § 52-557n, because Kashmanian was engaged in discretionary acts.⁵ 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, [counsel for] Kashmanian made an oral motion for a directed verdict as to count two, the common-law recklessness count. In particular, [he] 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." (Footnote omitted; footnotes in original.) Daley v. Kashmanian , supra, 193 Conn. App. at 173–77, 219 A.3d 499.

Following the submission of memoranda of law and oral arguments on the reserved issue of governmental immunity, the trial court "set aside the jury's verdict in favor of the plaintiff on count one, the negligence claim. In particular, the [trial] 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 [General Statutes] § 7-465.⁶ See [footnote 4] of this opinion.

The court then rendered judgment in favor of the defendants on counts one and four of the plaintiff's complaint." (Footnote added.) Daley v. Kashmanian , supra, 193 Conn. App. at 177–78, 219 A.3d 499.

The plaintiff appealed from the judgment of the trial court to the Appellate Court. After first agreeing with the plaintiff's claim that the trial court had improperly granted the defendants’ motion for a directed verdict on count two of the complaint alleging recklessness; see id., at 181–82, 219 A.3d 499 ; the Appellate Court then concluded that the trial court had properly granted the defendants’ motion to set aside the verdict on the ground that the plaintiff's negligence claims were barred by governmental immunity. See id., at 185–86, 219 A.3d 499. The Appellate Court reasoned that Kashmanian was engaged in discretionary conduct while surveilling the plaintiff, which is one of the "typical functions of a police officer." (Internal quotation marks omitted.) Id., at 186, 219 A.3d 499. The court emphasized that "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's motorcycle], and whether to change lanes." Id., at 187, 219 A.3d 499.

In so concluding, the Appellate Court rejected the plaintiff's argument that "Kashmanian had a ministerial duty to comply with the motor vehicle statutes" while "operating a soft car with no lights or sirens" insofar as "the legislature has identified specific circumstances in [General Statutes] § 14-283⁷ in which [the] police may disregard certain motor vehicle statutes," which means that, "absent those circumstances, police have a ministerial duty to obey all traffic laws." (Footnote added; internal quotation marks omitted.) Id. The Appellate Court reasoned that "[§] 14-283 addresses...