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 ...