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BORELLI v. RENALDI—FIRST CONCURRENCE
ROBINSON, C. J., concurring. I agree with and join
the majority opinion, in which the majority upholds the
trial court’s grant of summary judgment on governmen-
tal immunity grounds in favor of the defendants, the
town of Seymour and three of its municipal police offi-
cers,1 in this action claiming that two of the police
officers acted negligently when they briefly pursued a
Ford Mustang convertible in which Brandon Giordano,
the decedent of the plaintiff, Angela Borelli, was a pas-
senger. I write separately to explain my views about
the significant issues of municipal law considered in the
majority and dissenting opinions in this appeal. First,
I agree with the dissent’s conclusion that General Stat-
utes § 14-283 (d),2 which imposes on the operators of
emergency vehicles certain obligations, including a
‘‘duty to drive with due regard,’’ functions as an excep-
tion to governmental immunity for discretionary acts
pursuant to General Statutes § 52-557n (a) (2) (B).3 I
also conclude, however, that a police officer’s decision
to pursue a fleeing law violator is a discretionary act
not within the contemplation of this exception because
it does not constitute ‘‘driv[ing]’’ under § 14-283 (d).
Second, although the dissent’s doctrinal and historical
observations about this court’s limited application of
the identifiable person, imminent harm exception to
discretionary act immunity are well taken, substantial
public policy reasons support the majority’s conclusion
that the decedent, who was a passenger in a vehicle
fleeing from the police during a pursuit, was not an
identifiable person subject to imminent harm. Accord-
ingly, I join the majority opinion affirming the judgment
of the trial court.
I
I begin with whether a police officer’s decision to
engage in a pursuit is a discretionary act subject to
governmental immunity under § 52-557n (a) (2) (B),
which provides: ‘‘Except as otherwise provided by law,
a political subdivision of the state shall not be liable
for damages to person or property caused by . . . neg-
ligent acts or omissions which require the exercise of
judgment or discretion as an official function of the
authority expressly or impliedly granted by law.’’
(Emphasis added.) This statute codifies the well estab-
lished common-law principles governing governmental
immunity for discretionary acts and extends those prin-
ciples from municipal employees to the municipality
itself. See, e.g., Northrup v. Witkowski, 332 Conn. 158,
167, 210 A.3d 29 (2019); Edgerton v. Clinton, 311 Conn.
217, 229 n.12, 86 A.3d 437 (2014). ‘‘Generally, a munici-
pal employee is liable for the misperformance of minis-
terial 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,
[m]inisterial refers to a duty [that] is to be performed
in a prescribed manner without the exercise of judg-
ment 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 discre-
tion 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 bene-
fits to be had from imposing liability for that injury.
. . . In contrast, municipal officers are not immune
from liability for negligence arising out of their ministe-
rial 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. . . .
‘‘This court has identified two other policy rationales
for immunizing municipalities and their officials from
tort liability. The first rationale is grounded in the princi-
ple that for courts to second-guess municipal policy
making by imposing tort liability would be to take the
administration of municipal affairs out of the hands to
which it has been entrusted by law. . . . Second, we
have recognized that a civil trial may be an inappropri-
ate forum for testing the wisdom of legislative actions.
This is particularly true if there is no readily ascertain-
able standard by which the action of the government
servant may be measured . . . . Thus, [t]he policy
behind the exception is to avoid allowing tort actions
to be used as a monkey wrench in the machinery of
government decision making. . . .
‘‘For purposes of determining whether a duty is dis-
cretionary 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
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, supra, 332 Conn. 167–70.
As the majority aptly notes, ‘‘[i]t is firmly established
that the operation of a police department is a govern-
mental function, and that acts or omissions in connec-
tion therewith ordinarily do not give rise to liability on
the part of the municipality. . . . Indeed, this 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 hind-
sight to second-guess the exercise of a [police officer’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.’’ (Citation omitted; internal quotation marks
omitted.) Part I of the majority opinion, quoting Ventura
v. East Haven, 330 Conn. 613, 630–31, 199 A.3d 1 (2019),
and Gordon v. Bridgeport Housing Authority, 208
Conn. 161, 180, 544 A.2d 1185 (1988); see, e.g., Coley
v. Hartford, 312 Conn. 150, 164–65, 95 A.3d 480 (2014)
(noting, with respect to officer’s ‘‘alleged failure to
adhere to specific police response procedures . . . the
considerable discretion inherent in law enforcement’s
response to an infinite array of situations implicating
public safety on a daily basis’’), overruled in part on
other grounds by Ventura v. East Haven, 330 Conn.
613, 199 A.3d 1 (2019); Shore v. Stonington, 187 Conn.
147, 153–55, 444 A.2d 1379 (1982) (whether to detain
suspected drunk driver was discretionary act).
It is well settled, however, that exceptions to discre-
tionary act immunity under § 52-557n (a) (2) (B) may
be furnished by state or federal statutory law, as well
as the common law. See, e.g., Grady v. Somers, 294
Conn. 324, 344–46, 984 A.2d 684 (2009) (reviewing legis-
lative history of § 52-557n in concluding that phrase
‘‘except as provided by law’’ in subsection (a) (2) (B)
encompasses identifiable person, imminent harm
exception to discretionary act immunity at common
law). Thus, whether § 14-283 and the common-law prin-
ciples governing the operation of emergency vehicles
furnish an exception to discretionary act immunity
under § 52-557n (a) (2) (B) presents a question of statu-
tory interpretation, under General Statutes § 1-2z, over
which our review is plenary. See, e.g., Ventura v. East
Haven, supra, 330 Conn. 631–32, 634; Grady v. Somers,
supra, 332–33.
In my view, part II of the dissenting opinion makes
compelling arguments in support of the proposition that
driving is subject to a standing common-law exception
to discretionary act immunity under § 52-557n (a) (2)
(B). This includes driving an emergency vehicle in
accordance with the privileges and responsibilities set
forth by § 14-283 (d), which codifies the reasonable care
standard articulated by this court in Voltz v. Orange
Volunteer Fire Assn., Inc., 118 Conn. 307, 311, 172 A. 220
(1934), and Tefft v. New York, New Haven & Hartford
Railroad Co., 116 Conn. 127, 134, 163 A. 762 (1933).4 I
part company from the dissent, however, because I
conclude that the exception does not extend to the
decision to engage in a pursuit5 and, instead, agree with
the majority’s conclusion that the exception is limited
to the manner in which the officer conducts the pursuit.6
Pursuant to § 1-2z, I begin with the statutory text.
First, § 14-283 (d), which prescribes the duty of care,
is limited to ‘‘the duty to drive with due regard for the
safety of all persons and property.’’ (Emphasis added.)
The ordinary meaning of the word ‘‘drive’’ is ‘‘to operate
the mechanism and controls and direct the course of
(as a vehicle) . . . .’’ Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2011) p. 381; see, e.g., In re Elianah
T.-T., 326 Conn. 614, 622, 165 A.3d 1236 (2017) (noting
that, pursuant to General Statutes § 1-1 (a), ordinary
meaning of word is determined by reference to diction-
ary definitions). This limited definition does not encom-
pass the initial decision to engage in emergency
operation, as envisioned under § 14-283 (a), which
defines ‘‘emergency vehicle,’’ in relevant part, as ‘‘any
state or local police vehicle operated by a police officer
. . . answering an emergency call or in the pursuit of
fleeing law violators . . . .’’ That initial decision to
escalate from ordinary to emergency operation under
subsection (a) of § 14-283 is what gives rise to the vari-
ous operating privileges and responsibilities available
under subsections (b), (c) and (d), including the right
to disregard the rules of the road, such as speed limits
or stopping at red lights, when using lights and sirens
and driving with ‘‘due regard for the safety of all persons
and property.’’7 General Statutes § 14-283 (d); see State
v. Gurich, 238 P.3d 1, 9–10 (Okla. 2010) (Reif, J., dis-
senting) (analyzing text of Oklahoma’s uniform emer-
gency vehicle statute and concluding that it does not
govern decision to pursue). That having been said, I
believe that the dissent’s reading of the statute to
include the decision to pursue, which is consistent with
that of two of our sister states; see Robbins v. Wichita,
285 Kan. 455, 465–66, 172 P.3d 1187 (2007); State v.
Gurich, supra, 7–8; is reasonable, rendering the statute
ambiguous for purposes of the § 1-2z analysis. Accord-
ingly, I turn to extratextual sources and existing case
law.
I begin with this court’s decision in Tetro v. Stratford,
189 Conn. 601, 458 A.2d 5 (1983), the import of which
presents a point of strong disagreement between the
majority and the dissent. I review Tetro in detail because
I agree with the dissent that it would be dispositive, if
it is in fact on point.8 In Tetro, two Stratford police
officers observed a green Chevrolet in a shopping center
parking lot that they thought might have been stolen
because it was occupied by several boys who ‘‘looked
too young to have valid drivers’ licenses,’’ and, ‘‘[w]hen
the police approached the Chevrolet to make inquiries,
the boys drove off.’’ Id., 602–603. The officers pursued
the Chevrolet at high speeds through a densely popu-
lated urban area, proceeding the wrong way up a one-
way street, leading to a head-on collision with the Chev-
rolet and the vehicle driven by the plaintiff, Joseph
Tetro. Id., 603. Tetro brought an action against the two
individual officers and the town of Stratford (collec-
tively, Stratford defendants). Id., 602. This court
observed that the Stratford defendants did ‘‘not directly
challenge [on appeal] the propriety of the jury’s conclu-
sion that [the officers’] conduct was negligent’’ but
‘‘claim[ed] instead that the evidence was insufficient,
for three reasons, to establish the necessary causal link
between their acts or omissions and the injuries sus-
tained by [Tetro]. They argue[d] that proximate cause
was lacking because of: (1) the intervening negligence
of the driver of the pursued car; (2) the lack of connec-
tion between [Tetro’s] injuries and the [officers’] opera-
tion of the police car; and (3) the immunity conferred,
as a matter of public policy, upon emergency vehicles
in pursuit of law violators. Therefore, the [Stratford]
defendants maintain[ed], the court was required to
resolve the issue of proximate cause in their favor as
a matter of law.’’ Id., 604.
The court first rejected the common-law causation
arguments before concluding that § 14-283 did not sup-
plant the common-law principles of proximate causa-
tion with respect to emergency vehicles. Id., 607–608.
The court disagreed with the Stratford defendants’ argu-
ment that § 14-283 ‘‘limits [the officers’] scope of duty
to incidents involving collisions with the emergency
vehicle itself,’’ declining to ‘‘read the words ‘safety of
all persons and property’ [in § 14-283 (d)] so restric-
tively.’’ Id., 609. The court noted that ‘‘[o]ther 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 exer-
cise due care for the safety of others.’’ Id. Thus, the
court concluded that ‘‘§ 14-283 provides no special zone
of limited liability once the [municipal] defendants’ neg-
ligence has been established.’’ Id., 610.
The Stratford defendants’ third and final claim in
Tetro was that ‘‘public policy requires a limitation of
the liability of pursuing police vehicles to accidents
involving the police car itself. [They] maintain[ed] that
police officers should not have to abandon or terminate
the pursuit of law violators just because the fleeing
person may create a risk to the public.’’ Id. The court
followed the general verdict rule in declining to con-
sider this argument, observing that the argument con-
cerned ‘‘principally one aspect of the [officers’] alleged
failure to exercise due care, namely the failure to aban-
don or terminate pursuit, and assume[d] a jury verdict
on this basis.’’ (Emphasis added.) Id. The court recog-
nized that ‘‘[Tetro’s] complaint is not so limited. The jury
having returned a general verdict against the [Stratford]
defendants, [the court] must presume that the jury
found every issue in favor of [Tetro], including the
claim of the [Stratford] defendants’ negligence in [the
officers’] manner of pursuit.’’ (Emphasis added.) Id.;
see id., 610–11 (‘‘[s]ince the [Stratford] defendants do
not contest the sufficiency of the evidence to support
a finding on this claim of negligence, the jury’s verdict
must stand, whether or not there was error with regard
to the alleged failure to abandon pursuit of the Chevro-
let’’ (emphasis added; footnote omitted)).
Having based its holding on the general verdict rule,
however, this court went on to observe, in dictum, that
Connecticut’s ‘‘common law and . . . 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. [The court] note[d] again the salient circum-
stances of [the] case: the occupants of the Chevrolet
were not endangering anyone when they were first con-
fronted by [the officers]; the [officers], 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 [Strat-
ford] defendants and left to the jury the determination
of both negligence and of proximate cause as questions
of fact.’’ (Emphasis added.) Id., 611.
Ultimately, I agree with the majority’s determination
that Tetro provides only limited lessons with respect
to the present case. First, this court relied on the general
verdict rule and expressly declined to consider whether
public policy precludes the imposition of liability arising
from the decision whether to continue or terminate the
pursuit standing by itself. See id., 610–11. Instead, the
court focused on details relative to the ‘‘manner of
the pursuit’’; id., 610; such as the high speeds and the
officers’ decision to proceed the wrong direction on
a one-way street, which, along with the fact that the
occupants of the Chevrolet were not suspected of any
serious offenses, rendered the officers’ actions in con-
ducting the high speed pursuit that much more negligent
under the due care standard of § 14-283. Id., 611. The
court’s reliance on the general verdict rule eschewed
any consideration of the decision to initiate or continue
pursuit by itself.
Second, I agree with the majority that it is speculative
to rely on Tetro as informative with respect to the immu-
nity question at issue in this appeal, particularly because
none of the contemporary case law on that point—
most notably Shore v. Stonington, supra, 187 Conn. 147,
which was decided just one year before—was cited in
Tetro.9 Thus, I respectfully disagree with the dissent’s
conclusion that Tetro stands for the broader proposition
that, in enacting § 52-557n in 1986, the legislature must
have been aware that this court ‘‘had unanimously held
in 1983 that a municipality was liable under existing
law for police negligence during pursuits,’’ and, there-
fore, had ‘‘the legislature wanted to establish an immu-
nity rule for emergency vehicles generally, or police
pursuits in particular, it surely would have made some
reference to such a scenario in the 1986 codification.’’10
Having received no guidance from Tetro,11 I turn to
other extratextual sources to determine whether § 14-
283 governs the decision to engage in a pursuit.
Beginning with the relatively sparse legislative his-
tory, I note that the legislature enacted § 14-283 (d) as
part of No. 538 of the 1971 Public Acts, entitled ‘‘An
Act Granting Ambulances, Police and Fire Department
Vehicles the Right of Way.’’ The legislature intended
the 1971 act to amend the existing version of § 14-283
to ‘‘[outline] in somewhat greater detail the restrictions
upon and the advantages to police and fire department
vehicles. It does not restrict them seriously, but it does
call for slowing down at red lights and observation that
the way is clear and such matters of that sort. It also
outlines what the public is expected to do when a vehi-
cle with its siren going is approaching them . . . along
the lines of pulling parallel to the highway in order to
not obstruct the passage of the vehicle.’’ 14 H.R. Proc.,
Pt. 9, 1971 Sess., p. 4061, remarks of Representative
Frank M. Reinhold. Testimony before the Transporta-
tion Committee indicates that the bill enacted as the
1971 act was intended to conform Connecticut law to
the Uniform Vehicle Code by ‘‘clarify[ing] many of the
areas [that] previously . . . were left up to chance. It
will clarify the duties and rights and [responsibilities]
of both the driver of the emergency vehicle as well as
motorists and drivers of other vehicles.’’12 Conn. Joint
Standing Committee Hearings, Transportation, Pt. 3,
1971 Sess., p. 717, remarks of Bill Adint of the Connecti-
cut Safety Commission; see also id., pp. 716–17, remarks
of Lieutenant Michael Griffin of the Traffic Division of
the Connecticut State Police (‘‘This bill . . . requires
[not only] that the motoring public grant the right of
way to ambulances, [and] police and fire department
vehicles under certain prescribed conditions, but it also
places definite responsibilities upon the operators of
these emergency vehicles. This bill also brings the Con-
necticut law into conformance with the Uniform Vehicle
Code.’’); National Committee on Uniform Traffic Laws
and Ordinances, Uniform Vehicle Code and Model Traf-
fic Ordinance (1968 Rev.) § 11-106 (d), p. 135; National
Committee on Uniform Traffic Laws and Ordinances,
Uniform Vehicle Code (2000 Rev.) § 11-106 (d), p. 126.13
Because § 14-283 is intended to conform Connecticut
law to the Uniform Vehicle Code, I find it helpful to
consider sister state precedent considering emergency
vehicle statutes that are based on the uniform law. See,
e.g., Friezo v. Friezo, 281 Conn. 166, 187–88, 914 A.2d
533 (2007). The most comprehensive and persuasive
analysis that my research has revealed is Justice Reif’s
dissent from the Oklahoma Supreme Court’s decision
in State v. Gurich, supra, 238 P.3d 1, which aptly blends
both textual and policy considerations in concluding
that the decision to pursue is distinct from the driving
of the vehicle for purposes of Oklahoma’s emergency
vehicle statute, which is identical to § 14-283 for all
relevant purposes. See id., 8–10 (Reif, J., dissenting).
Justice Reif explains that subsection (a) of that statute
sets forth ‘‘public interests protected by the privilege,’’
namely, responding to emergency calls or engaging in
pursuits, meaning that ‘‘the decision that the driver of
an emergency vehicle should act for the purpose of
protecting or advancing these public interests has been
made by the [l]egislature.’’ (Emphasis in original.) Id.,
9 (Reif, J., dissenting). Justice Reif then posits that the
remainder of the emergency vehicle statute functions
to ‘‘balance the protection of these specific interests,
with a more general interest of public safety,’’ insofar
as ‘‘the [l]egislature made exercise of the emergency
vehicle privilege subject to certain conditions [such as
use of emergency lights and sirens and slowing down
as necessary for safe operation]. These conditions deal
with the operation of the emergency vehicle.’’ Id. Justice
Reif emphasizes that the proviso—present in our § 14-
283 (d)—that ‘‘[t]he provisions of this section shall not
relieve the driver of an authorized emergency vehicle
from the duty to drive with due regard for the safety
of all persons,’’ along with the Oklahoma statute’s ‘‘con-
sequences of reckless disregard’’ language; (emphasis
in original; internal quotation marks omitted) id.; see
footnote 13 of this opinion; states that it is ‘‘simply
another condition on the exercise of the privilege. That
is, a driver of an emergency vehicle who acts (drives)
with reckless disregard loses the protection of the privi-
lege. Conversely, a driver who maintains control of the
emergency vehicle and does not harm anyone with the
vehicle, remains within the privilege, breaches no duty,
and commits no tort as a matter of law.’’ State v. Gurich,
supra, 9 (Reif, J., dissenting). Justice Reif emphasizes
that, ‘‘once a pursuit is commenced, [the emergency
vehicle statute] governs the action of the pursuing offi-
cer. The initiation of a pursuit and its continuation in
compliance with [the emergency vehicle statute] cre-
ates nothing more than a condition for harm caused by
the violator being pursued.’’ (Emphasis in original.) Id.
Beyond this textual analysis, Justice Reif observed that,
‘‘[i]n setting public policy, the [l]egislature has decided
that the public benefit to be achieved by pursuit of
violators outweighs any potential harm caused by the
violators being pursued, who are under a duty to stop
. . . and [who] if they attempt to allude, commit a crime
. . . .’’ Id., 10 (Reif, J., dissenting).
I find similarly instructive the Wisconsin Supreme
Court’s well reasoned decision in Estate of Cavanaugh
v. Andrade, 202 Wis. 2d 290, 298 n.3, 315, 550 N.W.2d
103 (1996), which considered the intersection of Wis-
consin’s emergency vehicle statute and a governmental
immunity statute that, like § 52-557n (a) (2) (B),
afforded immunity to police officers for liability during
the performance of discretionary acts. In Cavanaugh,
the plaintiff’s decedent was driving a car that was struck
by a vehicle fleeing from the police at high speeds
through a residential neighborhood. Id., 295–96. The
court concluded that ‘‘an officer’s decision to initiate
or continue a [high speed] chase is a discretionary act
entitled to immunity.’’ Id., 315. Emphasizing that the
emergency vehicle statute did not evince ‘‘an expression
of clear legislative intent to abolish discretionary act
immunity,’’ the court observed that the application of
discretionary act ‘‘immunity for an officer’s decision to
initiate or continue a pursuit does not mean . . . that
officers are afforded blanket immunity from all liability
by virtue of their involvement in a pursuit,’’ stating that,
under the emergency vehicle statute, ‘‘an officer may
be negligent . . . for failing to physically operate his
or her vehicle with due regard for the safety of others.’’
Id., 317. The Wisconsin court distinguished ‘‘between
an officer’s discretionary decision to initiate and con-
tinue a pursuit and the physical operation of the vehi-
cle,’’ concluding that ‘‘the duty of due care created by
the emergency vehicle statutes applies only to the oper-
ation of the emergency vehicle itself. The statutes
exempt emergency drivers from certain operational
rules of the road, such as obedience to speed limits,
parking restrictions and stop signals. The statutes rec-
ognize the public necessity for a fire, ambulance or
police vehicle in an emergency situation to be driven
unhindered by the traffic rules governing ordinary vehi-
cles. . . . [The plaintiff’s] real objection is to [the offi-
cer’s] decision to initiate and continue police pursuit.
This is not the consideration addressed by [the emer-
gency vehicle statutes].’’ (Emphasis in original; internal
quotation marks omitted.) Id., 317–18; see also Legue
v. Racine, 357 Wis. 2d 250, 291, 849 N.W.2d 837 (2014)
(‘‘Cavanaugh . . . attempted to segregate an officer’s
decision to initiate or continue a pursuit from that offi-
cer’s physical operation of the vehicle with due regard
under the circumstances for the safety of all persons’’).
Similarly, in Lancaster v. Chambers, 883 S.W.2d 650,
652 (Tex. 1994), the Texas Supreme Court addressed
claims brought by plaintiffs whose son was the passen-
ger on a motorcycle that crashed while fleeing during
a police pursuit. The Texas court concluded that the
state’s emergency vehicle statute did not mandate ‘‘a
holding that an officer has no discretion to drive without
due regard for the safety of all persons.’’ Id., 655. The
court concluded that that reading of the emergency
vehicle statute would ‘‘[frustrate] official immunity’s
very function. If public officials perform their duties
without negligence, they do not need immunity. The
complex policy judgment reflected by the doctrine of
official immunity, if it is to mean anything, protects
officers from suit even if they acted negligently.’’ Id.
Instead, the court concluded that the ‘‘decision to pur-
sue a particular suspect will fundamentally involve the
officer’s discretion, because the officer must, in the first
instance, elect whether to undertake pursuit. Beyond
the initial decision to engage in the chase, a high speed
pursuit involves the officer’s discretion on a number of
levels, including, which route should be followed, at
what speed, should [backup] be called for, and how
closely should the fleeing vehicle be pursued. [The
Texas court held] that these police [officers’] engaging
in a [high speed] chase was a discretionary act.’’ Id.;
see Pletan v. Gaines, 494 N.W.2d 38, 39–41 and n.2
(Minn. 1992) (police officer’s decision to pursue vehicle
that had been involved in ‘‘snatch and grab’’ theft from
clothing store and that struck child during chase was
discretionary decision subject to official immunity doc-
trine governing ‘‘operational’’ discretion, despite state’s
emergency vehicle statute, because ‘‘[t]he issue . . . is
not about how a police car should be driven during a
pursuit, but whether a pursuit should have been under-
taken in the first place or discontinued at some point
after being undertaken’’); Colby v. Boyden, 241 Va. 125,
129–31, 400 S.E.2d 184 (1991) (concluding that engaging
in pursuit, including operation of vehicle during pursuit
that struck plaintiff’s car, is discretionary function for
purposes of state’s governmental immunity doctrine,
which required plaintiff to prove gross negligence,
despite ‘‘reasonable care’’ language in state’s emergency
vehicle statute); see also Pinellas Park v. Brown, 604
So. 2d 1222, 1226–28 (Fla. 1992) (extending discretion-
ary immunity to police officers’ decision to engage in
pursuit via ‘‘actual execution of a [hot pursuit] policy’’
but concluding that ‘‘the method chosen for engaging
in hot pursuit will remain an operational function that
is not immune from liability if accomplished in a manner
contrary to reason and public safety,’’ such as in that
case, in which twenty police vehicles engaged in high
speed chase for nearly twenty-five miles in densely pop-
ulated area and officers disobeyed supervisor’s order
to discontinue chase (emphasis omitted)); Robinson v.
Detroit, 462 Mich. 439, 457, 613 N.W.2d 307 (2000) (‘‘the
decision to pursue a fleeing motorist, which is separate
from the operation of the vehicle itself, is not encom-
passed within a narrow construction of the phrase
‘operation of a motor vehicle’ ’’ for purposes of statute
providing exception to governmental immunity
resulting from ‘‘operation’’ of motor vehicle); Tice v.
Cramer, 133 N.J. 347, 370–72, 627 A.2d 1090 (1993)
(emergency vehicle statute did not affect absolute
immunity afforded police officers, in absence of wilful
misconduct, for actions of fleeing or escaping offender
and injuries resulting from pursuit).
Given that they arise under similar emergency vehicle
statutes and governmental immunity schemes, I find
these sister state cases highly instructive.14 Accordingly,
I conclude that deciding whether to engage in a vehicu-
lar pursuit of a fleeing suspect is not ‘‘driving’’ within
the contemplation of § 14-283 (d) and, thus, remains a
decision that is unique to law enforcement and rife with
the exercise of professional discretion. ‘‘The decision
to engage in a car chase and to continue the chase
involves the weighing of many factors. How dangerous
is the fleeing suspect and how important is it that he
be caught? To what extent may the chase be dangerous
to other persons because of weather, time of day, road,
and traffic conditions? Are there alternatives to a car
chase, such as a road block up ahead? These and other
questions must be considered by the police officer in
deciding whether . . . to engage in a vehicular pursuit.
And these questions must be resolved under emergency
conditions with little time for reflection and often on
the basis of incomplete and confusing information. It
is difficult to think of a situation [in which] the exercise
of significant, independent judgment and discretion
would be more required.’’ (Footnote omitted.) Pletan
v. Gaines, supra, 494 N.W.2d 41.
I further agree with the majority’s conclusion that
the town and statewide pursuit policies at issue in this
case, promulgated pursuant to the police pursuit stat-
ute, General Statutes § 14-283a,15 do not change the
inherently discretionary nature of the pursuit decision
in this case. For example, § 14-283a-4 of the Regulations
of Connecticut State Agencies,16 governing the decision
to initiate a pursuit, provides that ‘‘[t]he decision to
initiate a pursuit shall be based on the pursuing police
officer’s conclusion that the immediate danger to the
police officer and the public created by the pursuit is
less than the immediate or potential danger to the public
should the occupants of such vehicle remain at large.’’
Regs., Conn. State Agencies § 14-283a-4 (a) (1). It then
requires the officers to ‘‘take the following factors into
consideration’’ in making that determination: (1)
‘‘[r]oad, weather and environmental conditions’’; (2)
‘‘[p]opulation density and vehicular and pedestrian traf-
fic’’; (3) ‘‘[w]hether the identity of the occupants is
known and immediate apprehension is not necessary
to protect the public or police officers and apprehension
at a later time is feasible’’; (4) ‘‘[t]he relative perfor-
mance capabilities of the pursuit vehicle and the vehicle
being pursued’’; (5) ‘‘[t]he seriousness of the offense’’;
and (6) ‘‘[t]he presence of other persons in the police
vehicle.’’ Id., § 14-283a-4 (a) (2) (A) through (F). Officers
engaged in a pursuit are required to ‘‘continually re-
evaluate and assess the pursuit situation, including all
of the initiating factors, and terminate the pursuit when-
ever he or she reasonably believes that the risks associ-
ated with continued pursuit are greater than the public
safety benefit of making an immediate apprehension.’’17
Id., § 14-283a-4 (e) (1). I agree with the majority that
the state regulations, and the very similarly worded
town policy; see Seymour Police Department Pursuit
Policy §§ 5.11.11 and 5.11.12; are written in a manner
that we consider discretionary rather than mandatory—
at least with respect to the multifactored decisions to
engage in a pursuit.18 ‘‘It is difficult to conceive of policy
language that could more clearly contemplate the exer-
cise of judgment by a municipal employee than is con-
templated by the police response procedures in the
present case.’’ Coley v. Hartford, supra, 312 Conn. 165.
‘‘Because the policy language makes the manner of
performance expressly contingent upon the police offi-
cer’s discretion, it cannot be said that the alleged acts
were to be performed in a prescribed manner without
the exercise of judgment . . . .’’ (Internal quotation
marks omitted.) Id., 166. Accordingly, I conclude that
the decision to engage in pursuit in this case was discre-
tionary for purposes of governmental immunity.
II
‘‘Three exceptions to discretionary act immunity are
recognized,19 but only one is relevant here: the identifi-
able person, imminent harm exception. Pursuant to this
exception, liability is not precluded when the circum-
stances make it apparent to the public officer that his
or her failure to act would be likely to subject an identifi-
able person to imminent harm . . . .’’ (Footnote in orig-
inal; internal quotation marks omitted.) St. Pierre v.
Plainfield, 326 Conn. 420, 434–35, 165 A.3d 148 (2017).
‘‘[T]he identifiable person, imminent harm exception to
qualified immunity for an employee’s discretionary acts
is applicable in an action brought under § 52-557n (a)
to hold a municipality directly liable for those acts. . . .
The exception requires three elements: (1) an imminent
harm; (2) an identifiable victim; and (3) a public official
to whom it is apparent that his or her conduct is likely to
subject that victim to that harm . . . . We have stated
previously that this exception to the general rule of
governmental immunity for employees engaged in dis-
cretionary activities has received very limited recogni-
tion in this state. . . . If the plaintiffs fail to establish
any one of the three prongs, this failure will be fatal to
their claim that they come within the imminent harm
exception. . . .
‘‘An allegedly identifiable person must be identifiable
as a potential victim of a specific imminent harm. Like-
wise, the alleged imminent harm must be imminent in
terms of its impact on a specific identifiable person.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 435–36.
In a precedential vacuum,20 the dissent’s observation
that, under the elements of the exception, no one would
be more of an identifiable person subject to imminent
harm than the occupant of a car being pursued by the
police makes logical sense. Even assuming, however,
that the plaintiff satisfies all three prongs of the excep-
tion, ‘‘whether a particular plaintiff comes within a cog-
nizable class of foreseeable victims for purposes of this
exception . . . is ultimately a question of policy for
the courts, in that it is in effect a question of duty . . .
[that] involves a mixture of policy considerations and
evolving expectations of a maturing society . . . .’’
(Citation omitted; internal quotation marks omitted.)
Prescott v. Meriden, 273 Conn. 759, 763–64, 873 A.2d
175 (2005); see, e.g., Strycharz v. Cady, 323 Conn. 548,
575, 148 A.3d 1011 (2016), overruled in part on other
grounds by Ventura v. East Haven, 330 Conn. 613, 199
A.3d 1 (2019); Grady v. Somers, supra, 294 Conn. 356;
Durrant v. Board of Education, 284 Conn. 91, 100–101,
931 A.2d 859 (2007). Consistent with the public policy
aspect of this inquiry, I join those courts that have held
that a police officer owes no duty of care to an occupant
of a car that he is pursuing, insofar as—in the absence
of evidence otherwise—that passenger is presumed to
be in cahoots with the person whose actions created
the dangerous situation—namely, the person who led
the officers on a chase in violation of his duty to stop
pursuant to General Statutes § 14-223.21 Cf. Tetro v.
Stratford, supra, 189 Conn. 611 (dictum precluding
‘‘blanket immunity’’ for actions during pursuit limited
to ‘‘liability to an innocent bystander’’).
Given its use of a multifactor duty analysis akin to
Connecticut law; see, e.g., Munn v. Hotchkiss School,
326 Conn. 540, 548–50, 165 A.3d 1167 (2017); I find
particularly instructive the Pennsylvania Supreme
Court’s decision in Sellers v. Abington, 630 Pa. 330, 106
A.3d 679 (2014), in which the decedent was a passenger
who was ejected from a car that crashed while fleeing
from police officers, who had attempted to stop the
driver for suspected drunk driving. Id., 333–35. The
court rejected the plaintiff’s argument that Pennsylva-
nia’s emergency vehicle statute, requiring police offi-
cers engaged in pursuit ‘‘to drive with due regard for
the safety of all persons,’’ created a statutory duty to
‘‘unknown passengers’’ in a fleeing vehicle; (internal
quotation marks omitted) id., 340, 349; defining
‘‘unknown passengers’’ as ‘‘passengers whose presence
in the vehicle or connection to the driver is unknown
to the pursuing officer.’’ (Emphasis added; internal quo-
tation marks omitted.) Id., 336 n.5. Recognizing that
‘‘emergency vehicle drivers still owe a [common-law]
duty to the public at large, [that is] innocent bystand-
ers,’’ the court concluded that the officer had no com-
mon-law duty to the passenger, stating that it viewed
‘‘the relationship between the officers and passengers
in a fleeing vehicle, in the broader context of the rela-
tionship the officer has to the community he or she
serves. . . . An officer’s relationship to the community
he or she serves hinges on the officer’s ability to keep
the members of the community safe from criminals,
including dangerous drivers. Accordingly, where . . .
the officer was unaware of the presence of a passenger
in a fleeing vehicle, this first factor weighs against
imposing a duty.’’ (Citation omitted.) Id., 347–48. The
court further stated that ‘‘the social utility of a police
officer’s attempt to apprehend a person suspected of
violating the law is beyond dispute,’’ which ‘‘is not cur-
tailed by the addition of an unknown passenger in a
fleeing vehicle.’’ (Internal quotation marks omitted.) Id.,
348. The Pennsylvania court emphasized: ‘‘Imposing a
duty on officers to unknown passengers in a fleeing
vehicle would present an unworkable burden on offi-
cers, essentially halting police pursuits. The decision
to pursue a fleeing vehicle is one that must be made
in a matter of seconds. To require officers to not only
establish the presence of passengers, but also discover
the relationship of the passengers to the fleeing driver,
would be unmanageable in the necessarily [fast paced]
environment of law enforcement. Moreover, officers,
fearing the risk of civil liability, would be less likely to
initiate pursuit, which would likely encourage criminals
to flee.’’ Id.
Similarly, in Robinson v. Detroit, supra, 462 Mich.
439, the Michigan Supreme Court observed: ‘‘Out of
concern for public safety, [the] police must sometimes
allow fleeing suspects to get away. However, it would
be absurd to conclude that the police, out of concern
for the safety of a fleeing criminal suspect, must cease
pursuit of the fleeing suspect or risk possible civil liabil-
ity.’’ (Internal quotation marks omitted.) Id., 451. The
court extended this rule to passengers, holding that
‘‘it is irrelevant whether a wrongdoer is a driver or a
passenger or whether an innocent person is inside or
outside the vehicle. . . . [W]hatever their location,
there is a duty to innocent persons, but not to wrongdo-
ers. In other words, the police owe a duty to innocent
persons whether those persons are inside or outside
the vehicle. Conversely, the police owe no duty to a
wrongdoer, whether the wrongdoer is the fleeing driver
or a passenger.’’ Id. The court ‘‘place[d] on the plaintiff
the burden of proving that a passenger was an innocent
person and that the police therefore owed the passenger
a duty.’’ Id., 452; see Fisher v. Miami-Dade County,
883 So. 2d 335, 336–37 (Fla. App. 2004) (no duty of care
to passenger in car being pursued by police, despite
officers’ apparent failure to follow procedures limiting
pursuits to suspected violent felons), review denied,
901 So. 2d 873 (Fla. 2005); Fawcett v. Adreon, Docket
No. M2000-00940-COA-R3-CV, 2001 WL 950159, *4
(Tenn. App. August 21, 2001) (‘‘[I]n the absence of infor-
mation to the contrary, a police officer can reasonably
assume that the passenger in the fleeing vehicle is
engaged in a common criminal activity with the driver
and would therefore be a suspected violator of the law
under [Tennessee’s emergency vehicle statute]. If the
passenger in a fleeing vehicle is a ‘suspected violator’
and not a ‘third party,’ a municipality cannot be held
liable for an injury to such a passenger resulting from
a high speed police chase.’’); see also Ombres v. Palm
Beach Gardens, 788 Fed. Appx. 665, 666, 668–69 (11th
Cir. 2019) (The court followed Fisher and held that the
officer owed no duty of care to the decedent, a passen-
ger in a fleeing vehicle, because, although the evidence
‘‘did not show that [the passenger] encouraged the
unlawful behavior, neither did it establish that the offi-
cer had reason to believe she was an unwilling passen-
ger such as a kidnapping victim. Under those
circumstances, Florida law treats the passenger of a
fleeing car no differently than it does the driver of the
car and does not impose a duty of care upon the pursu-
ing officer.’’). But see Holthusen v. United States, 498
F. Supp. 2d 1236, 1243, 1244 (D. Minn. 2007) (holding
that, under Minnesota law, ‘‘the officers’ duty of care
extends to a passenger in a vehicle being pursued’’ given
‘‘due regard for the safety of persons using the street’’
language in state’s emergency vehicle statute (internal
quotation marks omitted)); Lancaster v. Chambers,
supra, 883 S.W.2d 653 (police officer had duty to passen-
ger on motorcycle that he was pursuing because of
‘‘due regard for the safety of all persons’’ language in
Texas’ emergency vehicle statute (emphasis omitted;
internal quotation marks omitted)). The record indi-
cates that the circumstances of the decedent’s death
were undeniably tragic, with the driver of the Mustang
resisting the entreaties of his front seat passenger to
stop for the police. I nevertheless conclude that, in the
absence of evidence that a pursuing police officer is
aware of an innocent occupant of the vehicle—such as
a kidnapping victim—that officer has no duty of care
to the occupants of the vehicle that he is pursuing,
given the state’s interest in effective law enforcement
and given that § 14-223, as an expression of public pol-
icy, places the responsibility to stop on the driver of
the car being pursued.
I respectfully disagree with the dissent’s reliance on
§ 14-283a, the pursuit statute; see footnote 15 of this
opinion; in support of the proposition that public policy
supports the imposition of a duty of care via a holding
that the decedent was an identifiable person subject to
imminent harm, because the ‘‘fatal accident that led to
this case is precisely the type of tragedy the legislature
was concerned with preventing when it promulgated
and amended § 14-283a,’’ and, ‘‘[i]f the young occupants
of the Mustang convertible being pursued at a high rate
of speed do not qualify as members of an identifiable
class of likely victims, then the doctrine has become
an absurdity.’’ Although I agree with the dissent’s obser-
vation that this ‘‘state has a strong public policy in favor
of encouraging the safe operation of motor vehicles
and discouraging police officers from initiating high
speed chases for minor vehicular infractions,’’ I believe
that it invades the purview of the legislature for this
court to assert, as the dissent does, the judgment that
‘‘[n]othing is to be gained and more lives will be lost if
we grant immunity to officers who engage in such
chases in a negligent manner contrary to the spirit and
purpose of §§ 52-557n, 14-283, 14-283a, and our com-
mon-law history.’’22 Part III of the dissenting opinion;
see Tice v. Cramer, supra, 133 N.J. 381 (observing that
‘‘[the] difficult policy question involved in this legisla-
tive choice between aggressive law enforcement and
the numerous injuries alleged to be unjustified contin-
ues to rage’’ in concluding that absolute immunity was
not inconsistent with legislation requiring adoption of
police standards for initiation and conduct of pursuits
and ‘‘efforts by the [s]tate to minimize the frequency
and dangers of unwarranted or reckless police pur-
suits’’). To me, this spate of legislative activity, including
the recent amendments to § 14-283a highlighted by the
dissent, shows that the legislature is well positioned to
amend our governmental immunity and motor vehicle
statutes to waive immunity and to allow a private right
of action should it deem that remedy necessary to vindi-
cate the public safety interests implicated by high speed
police pursuits.23 See, e.g., Commissioner of Public
Safety v. Freedom of Information Commission, 312
Conn. 513, 550, 93 A.3d 1142 (2014) (‘‘Given the continu-
ing vigorous legislative debate on open government
matters both in 1994 and today, we deem balancing the
various interests and articulating a coherent policy on
this matter to be a uniquely legislative function. The
General Assembly retains the prerogative to modify or
clarify [General Statutes] § 1-215 as it sees fit.’’);
Gerardi v. Bridgeport, 294 Conn. 461, 472–73, 985 A.2d
328 (2010) (comparing electronic monitoring statute,
General Statutes § 31-48d, to other employment statutes
in concluding that legislature did not intend to create
private right of action for violation of that statute).
Accordingly, I conclude that the decedent was not an
identifiable person subject to imminent harm because
public policy does not support extending a legal duty
from the pursuing officer to him.
I concur in and join the majority’s judgment affirming
the judgment of the trial court.
1
The individual police officers are the named defendant, Officer Anthony
Renaldi, Officer Michael Jasmin, and Sergeant William King.
2
As the majority notes, ‘‘[a]lthough § 14-283 has been amended by the
legislature since the events underlying the present case . . . these amend-
ments have no bearing on the merits of this appeal.’’ (Citation omitted.)
Footnote 2 of the majority opinion. Therefore, I also refer to the current
revision of the statute in this opinion.
General Statutes § 14-283 provides in relevant part: ‘‘(a) As used in this
section, ‘emergency vehicle’ means any ambulance or vehicle operated by
a member of an emergency medical service organization responding to an
emergency call, 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, 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 or 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.
‘‘(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
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.
‘‘(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, includ-
ing 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. . . .’’
3
General Statutes § 52-557n provides in relevant part: ‘‘(a) (1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(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.
. . .’’ (Emphasis added.) See also General Statutes § 52-557n (b) (providing
specific immunities for certain acts).
4
Thus, I respectfully disagree with the majority opinion to the extent it
stands for the proposition that the ‘‘due regard’’ language in § 14-283 (d)
renders the operation of an emergency vehicle inherently discretionary for
purposes of immunity. Instead, I agree with the dissent that, although ‘‘the
‘rules of the road’ recognize and operate on the inherently discretionary
nature of the activity we call driving’’ insofar as they ‘‘demand the exercise
of discretion and good judgment,’’ often in the ‘‘split-second’’ context, ‘‘our
cases have never conferred immunity to [municipally employed] drivers in
the ordinary course,’’ ‘‘the legislature [has never] given any indication that
it intend[ed] such a result by statute,’’ and that a ‘‘rule of immunity would
be exceedingly difficult to justify in this context because it would mean that
our municipal employees would be free to drive negligently with impunity.’’
(Emphasis in original.)
The breadth of this proposition was tested by a recent Appellate Court
decision, which considered whether municipal police officers have a ministe-
rial duty to obey all traffic laws in the absence of the emergency and pursuit
situations set forth in § 14-283. See Daley v. Kashmanian, 193 Conn. App.
171, 187–88, 219 A.3d 499 (2019), petition for cert. filed (Conn. October 23,
2019) (No. 190245), and cross petition for cert. filed (Conn. November 1,
2019) (No. 190256); see also id., 185 n.7 (discussing Superior Court split as
to whether operation of motor vehicle by police officers, even in emergency
mode, is ministerial or discretionary activity). In Daley, the Appellate Court
concluded that a police detective who engaged in a surveillance operation,
while driving at high speeds in a ‘‘soft’’ car lacking emergency lights, was
engaged in discretionary activity. Id., 187–88. The plaintiff in Daley has
sought certification to appeal to this court on this issue.
5
I respectfully disagree with the dissent to the extent it casts the decision
to pursue in this case as one occasioned by a minor traffic violation, namely,
the underglow lights on the Mustang. The undisputed facts of this case
indicate that, although Renaldi’s attention was drawn to the Mustang because
of the underglow lights, which led him to prepare to initiate a traffic stop,
his decision to pursue was predicated on the fact that the driver of the
Mustang, the decedent’s friend Eric Ramirez, started to operate the Mustang
recklessly upon spotting Renaldi’s cruiser behind him, including illegally
passing multiple vehicles on Route 67. In my view, ignoring this intervening
act of reckless driving as giving rise to the pursuit in this case risks suggesting
that a police officer should never initiate a traffic stop for a minor traffic
violation because the simple fact of the stop might result in a pursuit sit-
uation.
6
I agree with the dissent’s observation that the complaint contains certain
allegations that pertain to the manner of pursuit, namely, that Renaldi fol-
lowed the Mustang at an unreasonably high rate of speed. That having been
said, none of the arguments on appeal pertains to the operation of the police
vehicle, as the plaintiff repeatedly emphasizes her reliance on what she
characterizes as Renaldi’s failure to engage in a thoughtful analysis before
initiating the pursuit of the Mustang. As she states in her initial brief, the
court is ‘‘not being called upon to dictate how police officers are to engage
in the pursuit of a motor vehicle,’’ but, rather, ‘‘the question before this
court is limited to determining whether the legislature intended to create
a ministerial obligation on officers to first account for the seriousness of
the offense and the dangerousness of the pursuit before engaging in it when
the legislature passed § 14-283. If this court does find such a ministerial
duty, it falls to the jury to decide if that ministerial duty was violated in
this case—that is to say, it falls to the jury to determine if the pursuing officers
failed to take those factors into account . . . when they first engaged in
an extremely dangerous nighttime pursuit [for] a minor traffic infraction.
Looking to those facts, a jury could reason that, because the officers did
engage in a dangerous nighttime pursuit on a narrow and windy road over
a minor infraction, they therefore did so thoughtlessly, without regard to
the strictures of § 14-283.’’ (Emphasis in original.) Accordingly, consistent
with the plaintiff’s claims on appeal, I limit my analysis to the decision to
engage in a pursuit.
7
Another point counseling a narrow application of § 14-283 as an excep-
tion to governmental immunity is that the statute applies to entities beyond
municipalities and their employees. For example, emergency vehicles are
operated by state employees such as state troopers, who are subject to their
own waiver of sovereign immunity with respect to the negligent operation
of a motor vehicle; see General Statutes § 52-556; but § 14-283 also applies
to employees of private entities that perform certain governmental functions,
such as private ambulance companies and volunteer fire associations. See
Voltz v. Orange Volunteer Fire Assn., Inc., supra, 118 Conn. 310.
8
I respectfully disagree with the majority’s observation that Tetro v. Strat-
ford, supra, 189 Conn. 601, is rendered less persuasive by its age and the
fact that it was decided ‘‘prior to the codification of the common law in
§ 52-557n’’ and the evolution in our case law that has taken place since
1986. The legislature’s act of codifying the common law would render Tetro
highly instructive in the application and construction of § 52-557n, to the
extent that it decided anything with respect to governmental immunity.
9
This complete omission is particularly curious, given that one year before
authoring the majority opinion in Tetro, former Chief Justice Peters dissented
in Shore v. Stonington, supra, 187 Conn. 147, a discretionary act immunity
case that has become paradigmatic for its application of the identifiable
person, imminent harm exception. In that dissenting opinion, Justice Peters
cited an Indiana decision for the proposition that, ‘‘[w]here a court relied
on the distinction between discretionary and ministerial acts in determining
the liability of a police officer, the hot pursuit of a suspect was held to be
a ministerial act carrying liability for negligence and permitting a [common-
law] action.’’ Shore v. Stonington, supra, 160–61 (Peters, J., dissenting); see
Seymour National Bank v. State, 384 N.E.2d 1177, 1184–85 (Ind. App. 1979)
(due care language in Indiana’s emergency vehicle statute created duty of
care owed by state trooper to motorist), vacated, 422 N.E.2d 1223 (Ind. 1981).
10
Finally, and as I explain further in part II of this opinion, the public
policy dictum in Tetro does not support the plaintiff in the present case,
insofar as it is limited to ‘‘liability to an innocent bystander’’ rather than an
occupant of the vehicle being pursued. (Emphasis added.) Tetro v. Stratford,
supra, 189 Conn. 611.
11
As is evident from its disparate treatment by the majority and the dissent,
this court’s opinion in Tetro offers a little something for everyone. I suggest
that the ambiguity of Tetro renders it a cautionary tale against the virtues
of the pithy opinion—in the case of Tetro, three appellate issues resolved
in ten pages of the Connecticut Reports—and unnecessary dictum. See Tetro
v. Stratford, supra, 189 Conn. 602–11. Thus, I acknowledge that members
of other state courts have construed Tetro like the dissent. See, e.g., Estate
of Cavanaugh v. Andrade, 202 Wis. 2d 290, 325 and n.3, 550 N.W.2d 103
(1996) (Abrahamson, J., concurring in part and dissenting in part) (citing
Tetro as illustrative of ‘‘a number of state supreme courts interpreting provi-
sions substantially similar to [Wisconsin’s discretionary act immunity statute
that] have concluded that a law enforcement officer is not immune from
liability for a discretionary decision to give or not to give chase and that
the negligence standard is applicable to the officer’s conduct’’).
12
See, e.g., Hatt v. Burlington Coat Factory, 263 Conn. 279, 314, 819
A.2d 260 (2003) (‘‘[I]t is now well settled that testimony before legislative
committees may be considered in determining the particular problem or
issue that the legislature sought to address by the legislation. . . . This is
because legislation is a purposive act . . . and, therefore, identifying the
particular problem that the legislature sought to resolve helps to identify
the purpose or purposes for which the legislature used the language in
question.’’ (Internal quotation marks omitted.)).
13
Subsection (d) of § 11-106 of the 2000 Uniform Vehicle Code provides:
‘‘The foregoing provisions shall not relieve the driver of an authorized emer-
gency vehicle from the duty to drive with due regard for the safety of all
persons, nor shall such provisions protect the driver from the consequences
of the driver’s reckless disregard for the safety of others.’’
As the dissent observes, Connecticut’s version of this provision does not
contain the ‘‘reckless disregard’’ language. Some courts from states that
have adopted this version of the Uniform Vehicle Code have construed
this language ‘‘to require a standard of care higher than mere negligence,
obligating plaintiffs to establish more consequential, material, and wanton
acts to support a breach of the standard of care.’’ Robbins v. Wichita, supra,
285 Kan. 467; see, e.g., State v. Gurich, supra, 238 P.3d 7–8 (decision to use
‘‘reckless disregard’’ standard of care was supported by statutory language
and public policy considerations that reflect ‘‘the split-second life and death
decisions involved in police pursuits’’). But see Pogoso v. Sarae, 138 Haw.
518, 525–26, 382 P.3d 330 (App. 2016) (citing authorities indicating split
among states on this point and adopting negligence standard of care, despite
statute with ‘‘reckless disregard’’ language), cert. dismissed, Docket No.
SCWC-XX-XXXXXXX, 2017 WL 679187 (Haw. February 21, 2017).
14
I note that there is some sister state authority holding to the contrary,
namely, that the decision to engage in a pursuit is not discretionary for
purposes of governmental immunity, but I view those cases as either poorly
reasoned or distinguishable because they arise under immunity or statutory
schemes that differ materially from Connecticut law. Some cases consider
this question under a discretionary immunity scheme that is more constric-
tive than ours, insofar as they afford immunity for policymaking but not
decisions on the operational level. See Tice v. Cramer, supra, 133 N.J.
366–67; State v. Gurich, supra, 238 P.3d 3–4; Lowrimore v. Dimmitt, 310
Or. 291, 296, 797 P.2d 1027 (1990); Day v. State, 980 P.2d 1171, 1180–81
(Utah 1999); Mason v. Bitton, 85 Wn. 2d 321, 328–29, 534 P.2d 1360 (1975);
see also Tetro v. Stratford, supra, 189 Conn. 606–607 (citing Mason v. Bitton,
supra, 326, as example of court holding that application of emergency vehicle
statute is not limited to situation in which police vehicle itself is involved
in accident).
There are similarly distinguishable cases from Maryland and Tennessee
holding that there was no immunity under emergency vehicle statutes that
specifically provided that law enforcement officers could be liable for injur-
ies caused by a fleeing motorist during a pursuit when the ‘‘ ‘conduct of the
law enforcement personnel was negligent . . . .’ ’’ (Emphasis omitted.)
Haynes v. Hamilton, 883 S.W.2d 606, 609 (Tenn. 1994); see Boyer v. State,
323 Md. 558, 574–75, 594 A.2d 121 (1991) (statutory waiver of immunity
for negligent ‘‘operation’’ of emergency vehicle, with ‘‘operation’’ deemed
broader than ‘‘driving’’); Haynes v. Hamilton, supra, 611 (‘‘an officer’s deci-
sion to commence or continue a [high speed] chase is encompassed within
the statutory term ‘conduct’ and may form the basis of liability in an action
brought by a third party who is injured by the fleeing suspect, if the officer’s
decision was unreasonable’’).
This brings me, then, to the Kansas Supreme Court’s decision in Robbins
v. Wichita, supra, 285 Kan. 455, relied on by the dissent, which followed
the Tennessee and Maryland courts, respectively, in Haynes and Boyer. The
Kansas court ‘‘refus[ed] to distinguish between the decision to pursue and
continue the pursuit from the method of pursuing. The language of [the
Kansas emergency vehicle statute] requires the drivers of emergency vehi-
cles to ‘drive with due regard for the safety of all persons.’ [The Kansas
court] believe[d] [that] the act of driving involves both the mental and
physical components.’’ Id., 465. In so holding, the Kansas court overruled
its earlier decision in Thornton v. Shore, 233 Kan. 737, 666 P.2d 655 (1983),
on which the Wisconsin court in Estate of Cavanaugh v. Andrade, supra,
202 Wis. 2d 290, relied, and concluded that it was ‘‘unable to distinguish
between the decision to pursue and the method of pursuing. Thus, [the
Kansas court] overrule[d] that portion of the Thornton decision that exempts
the decision to pursue and continue the pursuit from the duty found in [the
emergency vehicle statute].’’ Robbins v. Wichita, supra, 465–66. I respectfully
disagree with the reasoning in Robbins. First, it does not account for the
distinct statutory language that formed the bases for the Tennessee and
Maryland decisions in Haynes and Boyer, respectively, which considered
liability for negligent ‘‘operation’’ or ‘‘conduct’’ rather than just ‘‘driving.’’
Second, its immunity determination does not account for the complexity
of the decision to pursue or continue pursuit. Accordingly, I decline to
follow Robbins, along with the Oklahoma Supreme Court’s majority opinion
in State v. Gurich, supra, 238 P.3d 5–6, which follows the reasoning of
Robbins on this point. See also Legue v. Racine, supra, 357 Wis. 2d 292–93
(The court criticized the distinction between operation and making the
decision to pursue drawn in Estate of Cavanaugh v. Andrade, supra, 202
Wis. 2d 290, as suffering from ‘‘theoretical and practical difficulties . . . .’’
Nonetheless, the court concluded that Cavanaugh ‘‘retains vitality and is
instructive’’ on the point that, under the emergency vehicle statute, ‘‘an
officer must still treat all persons and vehicles with ‘due regard under the
circumstances,’ notwithstanding the discretionary decision of the officer to
engage in a [high speed] pursuit or respond to an emergency call. Cavanaugh
instructs that the duties of the officer to operate the vehicle are not subsumed
by an initial discretionary decision.’’).
15
General Statutes § 14-283a recently was amended by No. 19-90, § 5, of
the 2019 Public Acts, which made technical changes to the statute that are
not relevant to this appeal. For purposes of clarity, I refer to the current
revision of § 14-283a, which provides in relevant part: ‘‘(a) As used in this
section, ‘police officer’ and ‘law enforcement unit’ have the same meanings
as provided in section 7-294a, and ‘pursuit’ means an attempt by a police
officer in an authorized emergency vehicle to apprehend any occupant of
another moving motor vehicle, when the driver of the fleeing motor vehicle
is attempting to avoid apprehension by maintaining or increasing the speed
of such vehicle or by ignoring the police officer’s attempt to stop such vehicle.
‘‘(b) (1) The Commissioner of Emergency Services and Public Protection,
in conjunction with the Chief State’s Attorney, the Police Officer Standards
and Training Council, the Connecticut Police Chiefs Association and the
Connecticut Coalition of Police and Correctional Officers, shall adopt, in
accordance with the provisions of chapter 54, a uniform, state-wide policy
for handling pursuits by police officers. Such policy shall specify: (A) The
conditions under which a police officer may engage in a pursuit and discon-
tinue a pursuit, (B) alternative measures to be employed by any such police
officer in order to apprehend any occupant of the fleeing motor vehicle or
to impede the movement of such motor vehicle, (C) the coordination and
responsibility, including control over the pursuit, of supervisory personnel
and the police officer engaged in such pursuit, (D) in the case of a pursuit
that may proceed and continue into another municipality, (i) the requirement
to notify and the procedures to be used to notify the police department in
such other municipality or, if there is no organized police department in
such other municipality, the officers responsible for law enforcement in
such other municipality, that there is a pursuit in progress, and (ii) the
coordination and responsibility of supervisory personnel in each such munic-
ipality and the police officer engaged in such pursuit, (E) the type and
amount of training in pursuits, that each police officer shall undergo, which
may include training in vehicle simulators, if vehicle simulator training is
determined to be necessary, and (F) that a police officer immediately notify
supervisory personnel or the officer in charge after the police officer begins
a pursuit. The chief of police or Commissioner of Emergency Services and
Public Protection, as the case may be, shall inform each officer within such
chief’s or said commissioner’s department and each officer responsible for
law enforcement in a municipality in which there is no such department of
the existence of the policy of pursuit to be employed by any such officer
and shall take whatever measures that are necessary to assure that each
such officer understands the pursuit policy established.
‘‘(2) Not later than January 1, 2021, and at least once during each five-
year period thereafter, the Commissioner of Emergency Services and Public
Protection, in conjunction with the Chief State’s Attorney, the Police Officer
Standards and Training Council, the Connecticut Police Chiefs Association
and the Connecticut Coalition of Police and Correctional Officers, shall
adopt regulations in accordance with the provisions of chapter 54, to update
such policy adopted pursuant to subdivision (1) of this subsection.
‘‘(c) No police officer engaged in a pursuit shall discharge any firearm
into or at a fleeing motor vehicle, unless such officer has a reasonable belief
that there is an imminent threat of death to such officer or another person
posed by the fleeing motor vehicle or an occupant of such motor vehicle.
‘‘(d) No police officer shall intentionally position his or her body in front
of a fleeing motor vehicle, unless such action is a tactic approved by the
law enforcement unit that employs such police officer.
‘‘(e) If a pursuit enters the jurisdiction of a law enforcement unit other
than that of the unit which initiated the pursuit, the law enforcement unit
that initiated the pursuit shall immediately notify the law enforcement unit
that has jurisdiction over such area of such pursuit.
‘‘(f) (1) Not later than December 1, 2018, the Police Officer Standards
and Training Council, established under section 7-294b, shall develop and
promulgate a standardized form for (A) reporting pursuits by police officers
pursuant to subdivision (2) of this subsection, and (B) submitting annual
reports pursuant to subdivision (3) of this subsection. . . .’’
16
See footnote 9 of the majority opinion (complete text of relevant
state regulations).
17
Under the statewide pursuit policy, a police supervisor is authorized to
‘‘order the termination of a pursuit at any time and shall order the termination
of a pursuit when the potential danger to the public outweighs the need for
immediate apprehension. Such decision shall be based on information
known to the supervisor at the time of the pursuit.’’ (Emphasis omitted.)
Regs., Conn. State Agencies § 14-283a-4 (e) (3). Similarly, a ‘‘pursuit may
be terminated’’ when communications problems arise among the police
units involved, or ‘‘if the identity of the occupants has been determined,
immediate apprehension is not necessary to protect the public or police
officers, and apprehension at a later time is feasible.’’ Id., § 14-283a-4 (e)
(4) and (5).
18
I note that there are certain portions of the town and statewide policies
governing the manner of pursuit that are phrased in a manner that is suscepti-
ble 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. See Regs., Conn. State Agencies § 14-283a-
4 (b) (2) (‘‘Upon engaging in or entering into a pursuit, the pursuing vehicle
shall activate appropriate warning equipment. An audible warning device
shall be used during all such pursuits.’’); Seymour Police Department Pursuit
Policy § 5.11.12 (B) (1) (‘‘As soon as the operator of a pursued vehicle
increases his speed or drives in such a manner as to endanger safety of
others, the pursuing officer shall immediately activate both siren and emer-
gency dome lights, and shall use both throughout the entire pursuit. The
purpose of the lights and siren is primarily to warn motorists of unusual
vehicular movements.’’); Seymour Police Department Pursuit Policy
§ 5.11.12 (C) (‘‘[u]nits that have prisoners, witnesses, suspects, complainants,
or other non-law enforcement personnel as passengers, shall not become
engaged in pursuit situations’’); Seymour Police Department Pursuit Policy
§ 5.11.12 (D) (1) (‘‘[i]f an officer receives a communication from the dis-
patcher that the chase be terminated, he shall do so immediately, reporting
to the dispatcher the final location and direction of travel of the pursued
vehicle at the time of termination’’).
I leave to another day whether these portions of the policies impose
ministerial duties but recognize that the Minnesota Supreme Court has
rejected the argument that ‘‘all police conduct in emergency situations is
discretionary,’’ stating that ‘‘governmental entities have the authority to
eliminate by policy the discretion of their employees . . . . Moreover, the
existence of such policies reveals a belief that certain situations do not justify
the creation of the risk attendant to police chases.’’ Mumm v. Mornson,
708 N.W.2d 475, 493 (Minn. 2006); see id., 491–92 (officers violated ministerial
duty by failing to discontinue pursuit when language of department policy
mandated termination of pursuit, identity of pursued party was known,
and pursued party was not suspected of certain violent felonies); see also
Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010) (municipal
acts are ‘‘deemed ministerial [only] if a policy or rule limiting discretion in
the completion of such acts exists’’).
19
‘‘Liability for a municipality’s discretionary act is not precluded when
(1) the alleged conduct involves malice, wantonness or intent to injure; (2)
a statute provides for a cause of action against a municipality or municipal
official for failure to enforce certain laws; or (3) the circumstances make
it apparent to the public officer that his or her failure to act would be likely
to subject an identifiable person to imminent harm . . . .’’ (Internal quota-
tion marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 434 n.13, 165
A.3d 148 (2017).
20
The dissent raises some compelling observations about what it considers
to be this court’s unduly restrictive approach to the first prong of the test,
under which ‘‘we [generally] have held that a party is an identifiable person
when he or she is compelled to be somewhere,’’ and ‘‘[t]he only identifiable
class of foreseeable victims that we have recognized . . . is that of school-
children attending public schools during school hours because: they were
intended to be the beneficiaries of particular duties of care imposed by law
on school officials; they [are] legally required to attend school rather than
being there voluntarily; their parents [are] thus statutorily required to relin-
quish their custody to those officials during those hours; and, as a matter
of policy, they traditionally require special consideration in the face of
dangerous conditions.’’ (Internal quotation marks omitted.) St. Pierre v.
Plainfield, supra, 326 Conn. 436; see id., 436–37 and n.15 (discussing Sestito
v. Groton, 178 Conn. 520, 423 A.2d 165 (1979), and noting that, ‘‘[o]utside
of the schoolchildren context, we have recognized an identifiable person
under this exception in only one case that has since been limited to its
facts,’’ and, ‘‘although we have addressed claims that a plaintiff is an identifi-
able person or member of an identifiable class of foreseeable victims in a
number of cases, we have not broadened our definition’’).
A long line of cases illustrates how well established the compulsion aspect
is to the identifiability element of the exception. See, e.g., id., 438 (person
injured while attending aqua therapy session at municipal pool was not
subject to exception); Grady v. Somers, supra, 294 Conn. 356–57 (town
resident using transfer station was not subject to exception); Prescott v.
Meriden, supra, 273 Conn. 759, 764–66, 873 A.2d 175 (2005) (parent attending
high school football game was not subject to exception); Durrant v. Board
of Education, 284 Conn. 91, 109–110, 931 A.2d 859 (2007) (parent picking
up her child from after-school program held at public school was not subject
to exception); see also Shore v. Stonington, supra, 187 Conn. 153–54 (motor-
ist on road was not identifiable person subject to imminent harm, even
when police officer exercised discretion to let apparently drunk driver go
on his way after traffic stop).
21
General Statutes § 14-223 provides in relevant part: ‘‘(a) Whenever the
operator of any motor vehicle fails promptly to bring his motor vehicle to
a full stop upon the signal of any officer in uniform or prominently displaying
the badge of his office, or disobeys the direction of such officer with relation
to the operation of his motor vehicle, he shall be deemed to have committed
an infraction and be fined fifty dollars.
‘‘(b) No person operating a motor vehicle, when signaled to stop by an
officer in a police vehicle using an audible signal device or flashing or
revolving lights, shall increase the speed of the motor vehicle in an attempt
to escape or elude such police officer. Any person who violates this subsec-
tion shall be guilty of a class A misdemeanor, except that, if such violation
causes the death or serious physical injury, as defined in section 53a-3, of
another person, such person shall be guilty of a class C felony, and shall
have such person’s motor vehicle operator’s license suspended for one year
for the first offense . . . .’’
22
I respectfully disagree with the dissent’s assertion that my reading of
the pursuit and immunity statutes amounts to ‘‘substituting [my] own policy
preferences for those policies established by the legislature,’’ despite an
ostensible ‘‘deference to legislative prerogative . . . .’’ In my view, the cor-
rectness of the dissent’s policy analysis with respect to § 14-283a wholly
depends on the validity of its conclusion that the decision to pursue is
inextricable from the conduct of the pursuit for purposes of § 14-283 (d), a
conclusion with which I have stated my disagreement in part I of this opinion.
23
For example, the legislature has specifically waived sovereign immunity
with respect to the negligence of state officials and employees operating
state owned and insured motor vehicles. See General Statutes § 52-556. An
example of a more targeted waiver of governmental immunity in the pursuit
context is Florida’s pursuit statute. See Fla. Stat. Ann. § 768.28 (9) (d) (West
Supp. 2020) (‘‘The employing agency of a law enforcement officer as defined
in [§] 943.10 is not liable for injury, death, or property damage effected or
caused by a person fleeing from a law enforcement officer in a motor vehicle
if: 1. The pursuit is conducted in a manner that does not involve conduct
by the officer which is so reckless or wanting in care as to constitute
disregard of human life, human rights, safety, or the property of another;
2. At the time the law enforcement officer initiates the pursuit, the officer
reasonably believes that the person fleeing has committed a forcible felony
as defined in [§] 776.08; and 3. The pursuit is conducted by the officer
pursuant to a written policy governing high-speed pursuit adopted by the
employing agency. The policy must contain specific procedures concerning
the proper method to initiate and terminate high-speed pursuit. The law
enforcement officer must have received instructional training from the
employing agency on the written policy governing high-speed pursuit.’’).
Similarly, the legislature might consider an amendment to the emergency
vehicle statute to clarify more specifically the scope extent to which it
waives governmental immunity in that area, such as by adapting the ‘‘reckless
disregard’’ language used in other states. See footnote 13 of this opinion.