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Daley v. Kashmanian

Court of Appeals of Connecticut

October 1, 2019

DEVONTE DALEY
v.
ZACHARY KASHMANIAN ET AL.

          Argued May 13, 2019

         Procedural History

         Action to recover damages for the alleged negligence and recklessness of the named defendant et al., and for other relief, brought in the Superior Court in the judicial district of Hartford and tried to the jury before Scholl, J.; thereafter, the court granted the named defendant’s motion for a directed verdict on the plaintiff’s recklessness claim; verdict for the plaintiff on his negligence claim; subsequently, the court set aside the verdict and rendered judgment for the defendants, from which the plaintiff appealed to this court. Reversed in part; new trial.

          Martin McQuillan, for the appellant (plaintiff).

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

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

          James J. Healy and Karen K. Clark filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

          Keller, Bright and Harper, Js.

          OPINION

          BRIGHT, J.

         This appeal stems from a personal injury action brought by the plaintiff, Devonte Daley, against the defendants, Zachary Kashmanian and the city of Hartford (city), seeking damages for the injuries he sustained when Kashmanian, a detective with the Hartford Police Department who had been surveilling the plaintiff in an unmarked police car, allegedly, negligently and recklessly caused the plaintiff to be ejected from his motorcycle. The plaintiff appeals, following a jury trial, from the judgment of the trial court directing a verdict in favor of Kashmanian on the plaintiff’s recklessness claim, and from the judgment of the trial court setting aside the jury’s verdict on the plaintiff’s negligence claim. On appeal, the plaintiff claims that the court improperly (1) directed a verdict because there was sufficient evidence for the jury to find that Kash-manian engaged in reckless conduct, and (2) set aside the verdict with respect to the negligence claim on the ground that the defendants were entitled to governmental immunity because Kashmanian was engaged in ministerial, not discretionary, conduct. We agree with the plaintiff’s first claim only, and, accordingly, we reverse the judgment of the trial court directing a verdict on the recklessness claim and affirm the judgment of the trial court setting aside the verdict on the negligence claim.

         The relevant facts, viewed in a light most favorable to the plaintiff, and procedural history, are as follows. On June 1, 2013, at approximately 12 a.m., the plaintiff was riding his yellow Suzuki motorcycle on Asylum Avenue in Hartford with a group of eight to ten other people who were riding ‘‘dirt bikes’’ and ‘‘quads.’’ The plaintiff’s motorcycle was neither ‘‘street legal’’ nor ‘‘roadworthy’’ because it did not have headlights and was equipped with off-road tires: a black tire on the front and a yellow tire on the back. Also at that time, Kashmanian was operating an unmarked gray Acura TL, which the police characterize as a ‘‘soft car.’’ A soft car is a vehicle that is not equipped with flashing or revolving lights, sirens, or police markings so that it is indiscernible from ordinary civilian cars.

         At or around that same time, a confidential informant provided an anonymous tip to the police that a man riding a yellow motorcycle with a yellow tire had a gun. Kashmanian was instructed by other officers to perform surveillance[1] on the group of motorcycles and quads, including the yellow motorcycle, which was operated by the plaintiff. When Kashmanian arrived at Asylum Avenue, he observed the yellow motorcycle and the group of motorcycles and quads, and proceeded to follow them westbound on Asylum Avenue. All of the motorcycles and quads then turned right and proceeded northbound on Sumner Street, which is a two lane road with a speed limit of twenty-five miles per hour. At the intersection of Asylum and Sumner, Kashmanian’s vehicle ‘‘sideswip[ed]’’ another motor vehicle driven by Brontain Stringer, which had been proceeding in the same direction. Kashmanian paused for a brief second, but he was directed by the police on the radio to ‘‘just keep going’’ and that they would ‘‘take care of the accident; just keep going.’’

         Kashmanian then proceeded north in the northbound lane of Sumner Street, to continue to surveil the plaintiff. Kashmanian was traveling between forty and fifty miles per hour, well over the twenty-five miles per hour speed limit. Kashmanian then crossed the center line to travel north in the southbound lane in an effort to avoid two quads in the group that fishtailed and side-swiped his vehicle. Although he could have returned to the northbound lane of traffic after passing the two quads, Kashmanian continued to travel north in the southbound lane, closing the distance between his car and the plaintiff’s motorcycle until he struck the back tire of the plaintiff’s motorcycle with the front left panel of his vehicle, which caused the plaintiff to crash his motorcycle into a parked car in the southbound lane of Sumner Street. The plaintiff was ejected from his motorcycle and landed approximately ninety-five feet down Sumner Street, causing him significant injuries. As evinced by the lack of skid marks on Sumner Street, Kashmanian neither suddenly slowed his vehicle nor applied his brakes before striking the plaintiff’s motorcycle.

         On February 26, 2015, the plaintiff filed this personal injury action against the defendants. The plaintiff’s operative fifth amended complaint contains two relevant counts.[2] In count one, the plaintiff asserted a common-law negligence claim against Kashmanian in his official capacity and the city, alleging that Kashmanian negligently caused the plaintiff’s injuries. In count two, the plaintiff asserted a common-law recklessness claim against Kashmanian, alleging that he recklessly, wilfully, and wantonly caused the plaintiff’s injuries.

         In response, the defendants filed answers denying the essential allegations of the plaintiff’s complaint and alleging two relevant special defenses. The defendants alleged that the plaintiff’s injuries were caused by his own comparative negligence, and that the plaintiff’s claims are barred by common-law and statutory governmental immunity, pursuant to General Statutes § 52-557n, [3] because Kashmanian was engaged in discretionary acts.[4] Prior to the submission of the case to the jury, the parties stipulated that the issue of whether the defendants were entitled to governmental immunity would be decided by the court if the jury returned a verdict in favor of the plaintiff on his negligence claim.

         The case was tried to a jury over the course of five days. At the close of evidence, Kashmanian made an oral motion for a directed verdict as to count two, the common-law recklessness count. In particular, Kashmanian argued that count two should not be submitted to the jury because there was no evidence that Kashmanian engaged in reckless conduct. After hearing the plaintiff’s counterargument, the court orally granted Kashmanian’s motion for a directed verdict as to count two. Accordingly, the jury was charged and the case was submitted to the jury only as to count one, the negligence count, and the defendants’ comparative negligence special defense. On that same day, the jury returned a verdict ...


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