Is a police officer immune from liability under Conn. Gen. Stat. § 52-557n(a) for injuries caused by the negligent operation of a police vehicle?

"The following principles of governmental immunity are pertinent to our resolution of the plaintiff's claims.

7

The [common-law] doctrines that determine the tort liability of municipal employees are well established. . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, [a ministerial act] refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion. . . .

"Municipal officials are immunized 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. . . . Discretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing 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. . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts. . . .

"The tort liability of a municipality has been codified in § 52-557n. Section 52-557n (a) (1) provides that [e]xcept 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 .... Section 52-557n (a) (2) (B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by 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. . . .

"For purposes of determining whether a duty is discretionary or ministerial, this 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

8

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. . . .

§ 52-557n. Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions

(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;

(B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and

(C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149.

(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.

(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from:

(1) The condition of natural land or unimproved property;

(2) the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person in a manner which is not reasonably foreseeable;

(3) the temporary condition of a road or bridge which results from weather, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe;

(4) the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe;

(5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568;

(6) the act or omission of someone other than an employee, officer or agent of the political subdivision;

(7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety;

(8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances;

(9) failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision; or

(10) conditions on land sold or transferred to the political subdivision by the state when such conditions existed at the time the land was sold or transferred to the political subdivision.

(c) Any person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury occurring on or after October 1, 1992, resulting from any act, error or omission made in the exercise of such person's policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person's official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person, or in violation of subsection (a) of section 9-369b or subsection (b) or (c) of section 1-206. The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, wilful or wanton misconduct of such person.

The legislative history of the statute, although less than definitive in other contexts,^[15] establishes the legislature's understanding of the effect of the Tort Reform I bill enacted as § 52-557n on municipalities' liability

10

for vehicular negligence. Most instructive are the remarks of Representative Robert G. Jaekle, the bill's sponsor, in response to "an unsuccessful amendment that would have deleted the portion of the bill enacted as § 52-557n ... on the ground that it was too restrictive with respect to its limitations on claimants' rights," in which he answered "numerous questions about municipalities' potential liability under a variety of fact patterns, some hypothetical, and some actual cases." Grady v. Somers, supra, 294 Conn. 344. Several of Representative Jaekle's answers expressly contemplated vehicular negligence in the performance of governmental tasks as a basis for municipal liability. In one instance, Representative Jaekle responded to a question posed by Representative Gabriel J. Biafore, opining that the bill would have imposed no limitation on the liability of the city of Bridgeport when one of its snowplows struck a student who was present in the parking lot and schoolyard of a city school that was closed during a snowstorm. See 29 H.R. Proa, Pt. 16, 1986 Sess., pp. 5903-5904; see also id., pp. 5899-5901, remarks of Representative Jaekle (opining that municipality would not be immune for injuries caused by school bus crash involving "some negligence"). In another exchange with Representative Eugene A. Migliaro, Jr., concerning a hypothetical case of a fatal accident caused by a town employee who was intoxicated when he drove a town truck while on-duty, Representative Jaekle agreed with Representative Migliaro that the bill would permit both the employee and the town to be held liable, regardless of whether the employee's supervisor was aware of his intoxication. See id., pp. 5932-34. Representative Migliaro then stated that Representative Jaekle's explanation had "clarified" his understanding of the bill that, "as far as the employees are concerned, that the town, as long as they work for the town, the town can still be held responsible for the actions of [its] employees." Id., pp. 5936-37. This legislative history suggests, therefore, that the legislature contemplated negligence in the operation of motor vehicles not to be subject to governmental immunity, both before and after the passage of § 52-557n.

Although the legislative history of § 52-557n demonstrates the legislature's understanding that the negligent operation of motor vehicles is not shielded by governmental immunity, the legislative history provides no clarity as to the specific doctrinal basis for that understanding. In the absence of any indication in the text or legislative history of § 52-557n that the legislature intended to alter or abolish the existing liability regime under the common law and related indemnification statutes, which imposed liability on municipalities for damages caused by the negligent operation of motor vehicles driven by municipal employees, we conclude that the legislature understood the operation of a motor vehicle to be a ministerial act.^[17] This is consistent with the fact that the operation of a motor vehicle is a highly regulated activity governed by a panoply of state motor

12

vehicle statutes establishing the rules of the road for all drivers as expressly provided. A review of this statutory scheme is instructive because it demonstrates that the terms of the relevant motor vehicle laws establish a ministerial duty insofar as they contain "mandatory statutory language" that "itself limits discretion in the performance of the mandatory act." (Emphasis in original.) Northrup v. Witkowski, 332 Conn. 158, 187, 210 A.3d 29 (2019). Accordingly we now turn specifically to the rules of the road that are at issue in this pleaded in the operative complaint, which require vehicles to be driven to the right, govern following distances, and prohibit driving at an unreasonable rate of speed. See General Statutes (Rev. to 2013) §§ 14-218a, 14-230 and 14-240.

The fact that the violation of these rules-beyond the emergency operation shelter of § 14-283-is punishable quasi-criminally as an infraction further suggests that the statutory rules of the road create a ministerial obligation. See State v. Nesteriak, 60 Conn.App. 647, 652-54, 760 A.2d 984 (2000) (concluding that § 14-283 (b) provides emergency vehicle operator with immunity from criminal prosecution for violation of traffic laws, including improper passing in violation of General Statutes § 14-232 and improper driving on left side of highway on curve in violation of General Statutes § 14-235, which is not overridden by "due care" requirement of subsection (d)); State v. Plaskonka, 22 Conn.App. 207, 209, 577 A.2d 729

14

("the state had the burden of proving every element of the infractions beyond a reasonable doubt"), cert, denied, 216 Conn. 812, 580 A.2d 65 (1990); see also General Statutes § 51-164n (h) ("[i]n any trial for the alleged commission of an infraction, the practice, procedure, rules of evidence and burden of proof applicable in criminal proceedings shall apply"); State v. Scribner, 72 Conn.App. 736, 741-42, 805 A.2d 812 (2002) (emergency vehicle operator's privilege under § 14-283 does not provide immunity from negligent homicide with motor vehicle under General Statutes § 14-222a because that statute's terms indicate that "the legislature did not intend to put the limitation of liability offered under § 14-283 above the safety of the public"). These statutes, therefore, do not call for the kind of open-ended good professional judgment that is the hallmark of discretionary act immunity. Cf. Coley v. Hartford, supra, 312 Conn. 165-66 (police department response procedure requiring officer to remain at scene of domestic disturbance "for a reasonable time" period, as determined by "the reasonable judgment of the officer," created discretionary duty for purposes of § 52-557n (a) (2) (B) (internal quotation marks omitted)).

It is also significant that, although there is no appellate authority on point, our trial courts uniformly have held that the operation of an emergency vehicle-at least beyond the scope of § 14-283, the emergency vehicle statute-is a ministerial function for purposes of governmental immunity.^[24] Prior to the enactment of § 52-557n in 1986, "[n]o serious questions appeared to have been raised as to whether a police officer might be liable for negligence in the operation of a motor vehicle . . . [but, rather] the municipal employer would be responsible for indemnification of an officer found to have been civilly liable, under the provisions of ... § 7-465 . . . ." Torres v. Norwalk, Superior Court, judicial district of Stamford-Norwalk, Docket No. FST-CV-16-6029691-S (May 2, 2018) (66 Conn. L. Rptr. 548, 550);^[25] see Borelli v. Renaldi, supra, 336 Conn. 119 (Ecker, J., dissenting) (" [historically speaking, ordinary negligence principles so plainly apply to municipal employees who drive motor vehicles on public roadways that the rubric of municipal immunity typically is not invoked at all in this context"). These courts describe driving as an act that "occurs subconsciously much of the time" but that also "is constantly guided by a vast array of statutes and regulations that prescribe the conduct that is proper and improper while on the road. Following the rules of [the] road and exercising due care to the public is not optional for municipal employees engaged in routine driving." 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, 89-90); see id., 88 ("[R]outine driving cannot be considered a purely discretionary function. That is because, for example, municipal employees cannot

15

claim that they have discretion to run stop signs, ignore pedestrians in the crosswalk, or exceed the speed limit while driving through city streets. These rules of the road are ministerial duties to which everyone must adhere, even police officers and firefighters when not responding to emergencies."); see also, e.g., Torres v. Norwalk, supra, 556 ("[v]iewed in isolation, the court must reject any suggestion that [nonemergency] operation of a motor vehicle, by a police officer, is a governmental function"); Gagliardi v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV-95-0380916 (September 16,1997) (20 Conn. L. Rptr. 264, 266-67) (operation of school district truck in school parking lot was ministerial act); Letowt v. Norwalk, 41 Conn. Supp. 402, 406, 579 A.2d 601 (1989) ("[ordinary citizens drive their cars every day, not just police officers, and hence the operation of a motor vehicle would be deemed ministerial").

Significantly, these Superior Court decisions distinguish between the act of driving the motor vehicle, which is ministerial in nature, and the task that the employee sought to accomplish by driving the motor vehicle, which might well be discretionary, in concluding that governmental immunity does not bar claims of vehicular negligence. Most instructive is MacMillen v. Branford, Superior Court, judicial district of New Haven, Docket No. 374004 (March 30, 1998) (21 Conn. L. Rptr. 561), in which the court rejected a claim that a police officer who crashed his cruiser while in the course of investigating reported discharges of illegal fireworks was engaged in a discretionary act; the court drew a sharp distinction between the acts of driving and investigation. See id., 561-62; see also Pelletier v. Petruck, Superior Court, judicial district of Hartford, Docket No. CV-07-5009064-S (September 10, 2008) (46 Conn. L. Rptr. 288, 289) (denying motion for summary judgment in case arising from collision with snowplow because "the plaintiff does not allege that she was injured as a result of the construction or maintenance of the highways, but rather that her damages were the result of [the town employee's] alleged negligent operation of a motor vehicle"); Letowt v. Norwalk, supra, 41 Conn. Supp. 406 (contrasting act of driving police car to accident scene from duties officer performed once there, such as measuring skid marks or caring for injured person).

§ 14-283. Rights and duties re emergency vehicles. Obstruction of emergency vehicle

(a) As used in this section, "emergency vehicle" means (1) any ambulance or vehicle operated by a member of an emergency medical service organization responding to an emergency call or taking a patient to a hospital, (2) any vehicle used by a fire department or by any officer of a fire department while on the way to a fire or while responding to an emergency call but not while returning from a fire or emergency call, (3) any state or local police vehicle operated by a police officer or inspector of the Department of Motor Vehicles answering an emergency call or in the pursuit of fleeing law violators, (4) any Department of Correction vehicle operated by a Department of Correction officer while in the course of such officer's employment and while responding to an emergency call, or (5) any Department of Energy and Environmental Protection vehicle operated by a Department of Energy and Environmental Protection employee authorized to operate such vehicle while in the course of such employee's employment and while on the way to a fire or responding to an emergency call but not while returning from a fire or emergency call.

(b)

(1) The operator of any emergency vehicle may (A) park or stand such vehicle, irrespective of the provisions of this chapter, (B) except as provided in subdivision (2) of this subsection, proceed past any red light, stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (C) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a, 14-219 or 14-307 a as long as such operator does not endanger life or property by so doing, and (D) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.

(2) The operator of any emergency vehicle shall immediately bring such vehicle to a stop not less than ten feet from the front when approaching and not less than ten feet from the rear when overtaking or following any registered school bus on any highway or private road or in any parking area or on any school property when such school bus is displaying flashing red signal lights and such operator may then proceed as long as he or she does not endanger life or property by so doing.

(c) The exemptions granted in this section shall apply only when an emergency vehicle is making use of an audible warning signal device, including, but not limited to, a siren, whistle or bell which meets the requirements of subsection (f) of section 14-80, and visible flashing or revolving lights which meet the requirements of sections 14-96p and 14-96q, and to any state or local police vehicle properly and lawfully making use of an audible warning signal device only.

(d) 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.

(e) Upon the immediate approach of an emergency vehicle making use of such an audible warning signal device and such visible flashing or revolving lights or of any state or local police vehicle properly and lawfully making use of an audible warning signal device only, the operator of every other vehicle in the immediate vicinity shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a state or local police officer or a firefighter.

(f) Any person who is (1) operating a motor vehicle that is not an emergency vehicle, and (2) following an ambulance that is using flashing lights or a siren, shall not follow such ambulance more closely than one hundred feet.

(g) Any officer of a fire department may remove, or cause to be removed, any vehicle upon any highway or private way which obstructs or impedes any fire department, or any officer thereof, in controlling or extinguishing any fire.

(h) Any person who wilfully or negligently obstructs or impedes an emergency vehicle or any vehicle used by the state or local police shall be fined not more than two hundred fifty dollars.

(i) Nothing in this section shall be construed as permitting the use of a siren upon any motor vehicle other than an emergency vehicle or an authorized emergency medical services vehicle that is registered with the Department of Motor Vehicles pursuant to section 19a-181.

(j) A police officer may issue a written warning or a summons to the owner of a vehicle based upon an affidavit signed by the operator of an emergency vehicle specifying (1) the license plate number, color and type of any vehicle observed violating any provision of subsection (e) or (h) of this section, and (2) the date, approximate time and location of such violation.

We therefore conclude that, because the operation of a motor vehicle is a highly regulated activity that constitutes a ministerial function, Kashmanian's operation of the soft car was not itself a discretionary activity during the surveillance operation that led to the collision that injured the plaintiff. The decision of Kashmanian and his fellow officers to use the soft car to surveil the plaintiff was indeed a discretionary one. See, e.g., Priah v. United States, supra, 590 F.Supp.2d 922-23, 928-29 (there was no liability under Federal Tort Claims Act because federal agents were engaged in discretionary act in attempting to rescue kidnapped confidential informant via SWAT team raid, which led to death of informant when agents fired on vehicle in self-defense); Flax v. United States, supra, 847 F.Supp. 1190-91 (there was no liability under Federal Tort Claims Act because federal agents were engaged in discretionary act in deciding to engage in further surveillance of kidnapper in hopes of locating accomplice and victim, which was unsuccessful, rather than to apprehend kidnapper immediately after ransom pickup). But see State Farm Mutual Automobile Ins. Co. v. United States, supra, 2017 U.S. Dist. LEXIS 62132, *9 (vehicle surveillance without use of warning devices when proceeding against

17

red light was expressly discretionary act under terms of Federal Bureau of Investigation's ground surveillance policy, which recognized that, "under certain conditions, the rules of the road give way to the exigencies of surveillance"); cf. Borelli v. Renaldi, supra, 336 Conn. 14-15 (decision to pursue is discretionary). Nevertheless, once the officers decided to operate a motor vehicle on public streets for the surveillance operation, they were legally bound to comply with the statutory rules of the road unless they were operating as an emergency vehicle within the meaning of § 14-283, which they concede was not the case under the present circumstances because § 14-283 is expressly limited to pursuits and emergency call responses, neither of which is a scenario presented in this case. Accordingly, Kashmanian's operation of the soft car was a ministerial act for purposes of his governmental immunity and that of the city pursuant to § 52-557n.

The defendants argue, however, that these common law principles are, for emergency vehicles like police cars, superseded by the provisions of General[189 Conn. 608] Statutes § 14-283. ⁴ That statute defines the term "emergency vehicle" to include a "local police vehicle ... in the pursuit of fleeing law violators," and the plaintiff has not challenged its general applicability to this case. The statute, in subsection (b), permits the operator of an emergency vehicle, in disregard of traffic laws, inter alia, to "proceed past any red light or stop signal or stop sign ... exceed the posted speed limits ... and ... disregard ... regulations governing direction of movement or turning in specific directions." The subsection limits even this authority, however, by providing that the operator, in passing through traffic lights, must slow down "to the extent necessary for the safe operation of such [emergency] [189 Conn. 609] vehicle" and in exceeding normal speed limits, must "not endanger life or property by so doing." Furthermore, the statute expressly states, in subsection (d), that it "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." Read as a whole, the defendants contend, this statute limits their scope of duty to incidents involving collisions with the emergency vehicle itself.

We see no reason to read the words "safety of all persons and property" so restrictively. Other courts, construing similar statutory language, have explained that emergency vehicle legislation provides only limited shelter from liability for negligence. The effect of the statute is merely to displace the conclusive presumption of negligence that ordinarily arises from the violation of traffic rules. The statute does not relieve operators of emergency vehicles from their general duty to exercise due care for the safety of others. Brummett v. County of Sacramento, 21 Cal.3d 880, 886-87, 148 Cal.Rptr. 361, 582 P.2d 952 (1978); City of Sacramento v. Superior Court of the State of California, supra; Mason v. Bitton,

Page 10

supra. ⁵ We agree with this interpretation and conclude [189 Conn. 610] that § 14-283 provides no special zone of limited liability once the defendants' negligence has been established.

As a general proposition, our common law and our statutes do not confer upon police officers, whose conduct is negligent, blanket immunity from liability to an innocent bystander by virtue of their engagement in the pursuit of persons whom they believe to have engaged in criminal behavior. We note again the salient circumstances of this case: the occupants of the Chevrolet were not endangering anyone when they were first confronted by the defendants; the defendants, in violation of announced town policy, pursued the Chevrolet at high speeds through busy city thoroughfares, into a one-way street the wrong way. In these circumstances, the trial court correctly refused to direct a verdict for the defendants and left to the jury the determination of both negligence and of proximate cause as questions of fact.

There is no error.

This appeal requires us to consider the narrow question of whether a town and its municipal police officers are shielded by governmental and qualified immunity from liability for the decision to initiate a high-speed police pursuit that lasted less than two

[336 Conn. 4]

minutes and ended in a fatal automobile accident. The plaintiff, Angela Borelli, administratrix of the estate of Brandon Giordano (decedent), appeals¹ from the judgment of the trial court granting summary judgment in favor of the defendants, the town of Seymour (town) and three officers of the Seymour Police Department (department), Officer Anthony Renaldi, Officer Michael Jasmin and Sergeant William King. The plaintiff claims that the trial court incorrectly concluded that (1) General Statutes § 14-283 (d)² imposes a discretionary rather than a ministerial duty on police officers "to drive with due regard for the safety of all persons and property" in determining whether to pursue a motorist who flees when an officer attempts to pull him or her over, and (2) the plaintiff failed to demonstrate that any issue of material fact remained regarding whether the decedent was an identifiable victim subject to imminent harm on the basis of the court's finding that there was no evidence in the record supporting that conclusion. We affirm the judgment of the trial court.

We next turn to the relevant statutory provisions and rules. Section 14-283 permits the operators of emergency vehicles to disregard certain traffic rules in light of the circumstances. The term "emergency vehicle," as used in § 14-283 (a), includes "any state or local police vehicle operated by a police officer ... in the pursuit of fleeing law violators ...." Section 14-283 (b) (1) provides in relevant part that an operator of an emergency vehicle may "(B) ... proceed past any red light or stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (C) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as such operator does not endanger life or property by so doing, and (D) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions." The ability to disregard traffic rules is not, however, unlimited. By its terms, § 14-283 applies to state and local police vehicles only when "operated by a police officer or inspector of the Department of Motor Vehicles answering an emergency call or in the pursuit of fleeing law violators ...." General Statutes § 14-283 (a). Additionally, subsection (d) of § 14-283 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 ." (Emphasis added.) It is this requirement,

[336 Conn. 14]

that officers drive with due regard for safety, on which the plaintiff relies in contending that the officers’ duty to weigh the safety of all persons and property and the seriousness of the offense prior to initiating a pursuit was ministerial, rather than discretionary.

The phrase "due regard," however, rather than man-dating a particular response to specific conditions, imposes a general duty on officers to exercise their judgment and discretion in a reasonable manner. See Bonington v. Westport , supra, 297 Conn. at 308, 999 A.2d 700 (high-lighting significance of "difference between laws that impose general duties on officials and those that mandate a particular response to specific

[243 A.3d 1074]

conditions"). Because § 14-283 (d) does not define the phrase "due regard," we are guided by General Statutes § 1-1 (a), which provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." Both the legal and common usage definitions yield the same conclusion—"due regard" directs officers to exercise their judgment prudently. Black's Law Dictionary defines the term "due" as "[j]ust, proper, regular, and reasonable," and "regard" as "[a]ttention, care, or consideration ...." Black's Law Dictionary (11th Ed. 2019) pp. 631, 1535. Those definitions evoke the early days of law school, when all aspiring lawyers first learn of the classic concepts of "reasonable consideration" and "due care." "Due regard" is a synonym for those phrases, which embody the duty to exercise good judgment. The technical meaning of the phrase is echoed in the common usage definition. Merriam-Webster's Dictionary defines "with due regard to" as "with the proper care or concern for." Merriam-Webster's Dictionary, available at https://www.merriam-webster.com/dictionary/with_due_regard_to (last visited

[336 Conn. 15]

June 16, 2020). By its very definition, therefore, the duty to act with due regard is a discretionary duty.⁶

We also look to a related statute, General Statutes (Supp. 2020) § 14-283a, ⁷

[336 Conn. 16]

[243 A.3d 1075]

which authorizes the adoption of "a uniform, state-wide policy for handling pursuits by police officers." General Statutes (Supp. 2020) § 14-283a (b) (1). As we explain in detail herein, the Uniform Statewide Pursuit Policy adopted pursuant to § 14-283a contemplates that officers will exercise their judgment and discretion in giving due regard to the safety of all persons and property when determining whether to engage a pursuit.

Our conclusion that § 14-283 (d) imposes a discretionary duty on police officers to act finds further support in the decisions of this court, which have interpreted similar statutory language to create a discretionary, rather than a ministerial, duty to act. For example, in Coley v. Hartford , 312 Conn. 150, 95 A.3d 480 (2014), we considered the type of duty created by General Statutes (Rev. to 2013) § 46b-38b (d) (5) (B), which directs officers who report to the scene of a report of domestic violence, upon determining that no cause exists for arrest, to remain "at the scene for a reasonable time until, in the reasonable judgment of the officer, the likelihood of further imminent violence has been eliminated."⁸ The plaintiff in Coley argued that, because the statute required that officers remain at the scene for a reasonable time and exercise reasonable judgment, they did not have discretion to do otherwise, and the question of the reasonableness of the officers’ actions should go to the jury. Coley v. Hartford, supra, at 163, 95 A.3d 480. We rejected that argument on the basis that the phrases "reasonable judgment" and "reasonable time" inherently require the exercise of judgment and discretion. (Internal quotation marks omitted.) Id., at 165–66, 95 A.3d 480. That language, we explained, "makes the manner of performance expressly contingent upon the police officer's discretion ...." Id., at 166, 95 A.3d 480. Similarly, in the present case, the requirement in § 14-283 (d) that, during a pursuit of a fleeing motorist, police officers must drive with

[336 Conn. 17]

"due regard for the safety of all persons and property," directs officers to exercise their duties with discretion and judgment.

In closing, we observed in dictum that, "[a]s a general proposition, our common law and our statutes do not confer upon police officers, whose conduct is negligent, blanket immunity from liability to an innocent bystander by virtue of their engagement in the pursuit of persons whom they believe to have engaged in criminal behavior." (Emphasis added.) Id., at 611, 458 A.2d 5. Our rejection of the defendants’ claim that they were not liable for an accident that did not directly involve the emergency vehicle has no bearing on the question of whether the duty imposed on officers by § 14-283 is discretionary

[336 Conn. 26]

or ministerial. That question was simply not before us in Tetro.

Second, Tetro was decided in 1983—thirty-seven years ago, and prior to the codification of the common law in § 52-557n. We have since interpreted and applied § 52-557n in dozens of cases.¹² See,

[243 A.3d 1081]

e.g., Northrup v. Witkowski , supra, 332 Conn. at 166–77, 210 A.3d 29; Considine v. Waterbury , 279 Conn. 830, 836–44, 905 A.2d 70 (2006); Spears v. Garcia, 263 Conn. 22, 29–34, 818 A.2d 37 (2003). In the more recent decisions interpreting § 52-557n, we have recognized that our interpretation of the distinction between ministerial and discretionary duties is one that has evolved over time. See, e.g., Northrup v. Witkowski, supra, at 166, 210 A.3d 29 (overruling Spitzer v. Waterbury, 113 Conn. 84, 154 A. 157 (1931), in light of "more modern case law and statutes governing the distinction between ministerial and discretionary duties"). In summary, we do not find Tetro to be either relevant or helpful. It addressed a different question than that presented in this case, was decided almost forty years ago, prior to the evolution of our law, and the language that the plaintiff points to is dictum.

This appeal requires us to consider the limits of our recent decision in Borelli v. Renaldi , 336 Conn. 1, 243 A.3d 1064, 2020 WL 3467487 (2020), with respect to whether applicable state and municipal policies render a police officer's acts during a pursuit of a motorist ministerial, rather than discretionary, for purposes of governmental immunity. The plaintiff, Amaadi Cole, brought this negligence action against the defendants, the city of New Haven (city) and one of its police officers, Nikki Curry, seeking damages for personal injuries sustained when Curry pulled her police cruiser directly into an oncoming traffic lane in which the plaintiff was traveling on his dirt bike, causing him to swerve and strike a tree. The plaintiff appeals¹ from the granting of summary judgment by the trial court in favor of the defendants on the ground that they were entitled to governmental immunity for discretionary acts pursuant to General Statutes § 52-557n (a) (2) (B).² On appeal, the plaintiff claims, inter alia, that the trial court incorrectly determined that Curry's decision to drive her cruiser into the oncoming traffic lane was a discretionary act because her actions violated several policies that imposed ministerial duties regarding roadblocks, the operation

[337 Conn. 329]

of police vehicles, and pursuits. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

We conclude that Ventura is not controlling in the present case. First, viewed in the light most favorable to the plaintiff, Maldonado's testimony "unequivocally" established a lack of discretion in this case, in contrast to that of the police lieutenant in Ventura, which expressly acknowledged a discretionary component with respect to East Haven police officers’ implementation of the towing policies at issue.¹⁶ Second, and most

[337 Conn. 345]

significant, like the school superintendent in Strycharz v. Cady, supra, 323 Conn. at 566, 148 A.3d 1011, Maldonado qualified by rank and experience to be Curry's direct supervisor,

[253 A.3d 490]

despite the fact that he was not specifically assigned to that position; he was employed as a supervisor of patrol officers in the city's police department at all relevant times in this case and, in fact, responded to the scene of the collision between Curry and the plaintiff. Put differently, Maldonado's employment with the city's police department gave him sufficient knowledge, training, and experience with respect to its policies and practices to render his testimony relevant to establish the existence of a ministerial duty.

We also emphasize that our conclusion in the present case is consistent with our recent decision in Borelli v. Renaldi, supra, 336 Conn. at 1, 243 A.3d 1064, which held that the decision of a police officer for the town of Seymour to pursue a motorist who had fled when the officer attempted to stop him for having illegal underglow lighting was discretionary under § 14-283 and the applicable state and municipal pursuit policies. See id., at 5-6, 23, 243 A.3d 1064. Specifically, we held in Borelli that, in the context of an officer's decision whether to pursue, the "due regard" language of § 14-283 (d) did not impose a ministerial duty on the officer, observing that, "[b]y its very definition ... the duty to act with due regard is a discretionary duty." (Emphasis omitted.) Id., at 15, 243 A.3d 1064. We also followed Coley v. Hartford, supra, 312 Conn. at 165–66, 95 A.3d 480,¹⁷ and relied

[337 Conn. 346]

on the relevant language of the Statewide Policy, which "contemplates that officers will exercise their judgment and discretion in giving due regard to the safety of all persons and property when determining whether to engage a pursuit." Borelli v. Renaldi, supra, at 16, 243 A.3d 1064. We distinguished much of the Statewide Policy language that "provides detailed rules governing the conduct of the pursuit"; id., at 20, 243 A.3d 1064; see Regs., Conn. State Agencies §§ 14-283a-1 through 14-283a-4 ; such as requiring that the "pursuing officer ‘activate appropriate warning equipment,’ " from the multifactored "determination of whether to pursue." (Emphasis omitted.) Borelli v. Renaldi , supra, at 20, 243 A.3d 1064; see also id., at 22, 243 A.3d 1064 (discussing similar discretionary language in Seymour pursuit policy that "directs officers to weigh ‘many factors’ in determining whether to initiate a pursuit"). Consistent with the majority's emphasis on the discretionary nature of the policies governing the decision to pursue, a concurring opinion in Borelli emphasized that "there are certain portions of the town and statewide policies governing the manner of pursuit that are phrased in a manner that is susceptible to being read as imposing a ministerial duty, such as mandating the use of emergency lights and sirens during the pursuit and requiring officers to discontinue pursuit when directed by a supervisor, or precluding certain units from engaging in pursuit." Id., at 57 n.18, 243 A.3d 1064 (Robinson, C. J., concurring). That concurring opinion cited with approval Mumm v. Mornson, 708 N.W.2d 475 (Minn. 2006), in which the Minnesota Supreme Court rejected the argument "that all police conduct in emergency situations is discretionary and thus entitled to official immunity unless it is

[253 A.3d 491]

[wilful] or malicious." Id., at 492; see Borelli v. Renaldi, supra, at 58 n.18, 243 A.3d 1064 (Robinson, C. J., concurring). The Minnesota court "recognize[d] that the doctrine of official immunity is a complex and difficult area of law that must be applied to [ever changing] fact patterns and governmental policies," and emphasized the distinction between pursuit

[337 Conn. 347]

policies that "reserved substantial discretion for police officers" from those that contain "express dictates" and limit officers’ "independent exercise of judgment." Mumm v. Mornson, supra, at 492–93. In contrast to the multifactored, discretionary analysis at issue in Borelli, the particular roadblock and dirt bike policies in the present case present the bright lines that render an officer's duty ministerial.

Finally, we acknowledge the defendants’ argument that "[p]ersonal and municipal liability for an officer's use of discretion on patrol would hamper [officers’] ability to perform their duties as caretakers of the public." Although our case law repeatedly emphasizes the broad discretion generally afforded to police officers in the performance of their duties; see, e.g., Coley v. Hartford, supra, 312 Conn. at 164–65, 95 A.3d 480 ; the defendants’ arguments in the present case verge on "ask[ing] too much in urging us to conclude that all police conduct in emergency situations is discretionary. We do not read our previous cases as establishing the broad proposition that all police conduct in emergencies is discretionary, even in the face of binding police department policies. Indeed, [although] often necessary, police pursuits by definition are emergency situations, jeopardizing the safety and lives of those involved, as well as innocent bystanders. We recognize that governmental entities have the authority to eliminate by policy the discretion of their employees, as was done [by the policies at issue in the present case]. By adopting policies specifically intended to apply to pursuits, the [state and the city] implicitly [recognize] that officers should not have unfettered discretion in emergency situations." (Emphasis added.) Mumm v. Mornson, supra, 708 N.W.2d at 493. Accordingly, we conclude that the trial court improperly granted the defendants’ motion for summary judgment on discretionary immunity grounds.¹⁸

[253 A.3d 492]

[337 Conn. 348]

The judgment is reversed and the case is remanded with direction to deny the defendants’ motion for summary judgment and for further proceedings according to law.