Ortiz v. Pereira

Full title: Oscar Ortiz v. Raul Pereira et al

Court: Superior Court of Connecticut

Date published: Aug 24, 2017

CV156057677S (Conn. Super. Ct. Aug. 24, 2017)

Opinion

CV156057677S

08-24-2017

Oscar Ortiz v. Raul Pereira et al

Robin L. Wilson, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Robin L. Wilson, J.

I

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, Oscar Ortiz commenced this action by service of writ, summons and complaint against the defendants on or about September 21, 2015, naming the city of New Haven and three of its police officers, Raul Pereira, Diego Quintero and Richard Cotto, as defendants (collectively defendants). The return date was October 20, 2015, and the case was returned to court on October 9, 2015. The operative complaint is dated August 23, 2015, and alleges the following facts. Officers Pereira, Quintero and Cotto, acting on behalf of the city of New Haven, negligently caused injuries to the plaintiff when they " pursued" him and " forced" his scooter off the street on Lloyd Street in New Haven. Specifically, the plaintiff alleged that the officers were negligent: " (a) in that they operated their vehicles at an unreasonable rate of speed, having due regard for the traffic, width and use of the highway and intersection of streets; (b) in that they failed to keep and maintain the motor vehicles they were operating under reasonable and proper control; (c) in that they were inattentive and failed to keep a reasonable and proper lookout for other motor vehicles upon the highway; (d) in that they failed to apply their brakes in time to avoid a collision, although by a reasonable and proper exercise of their faculties they could have and should have done so; (e) in that they failed to operate their motor vehicles so as to avoid causing a collision, although by a reasonable and proper exercise of their faculties, they could and should have done so; and/or (f) in that they initiated and maintained a pursuit of the plaintiff, in violation of the City of New Haven's pursuit policy." Pl. Compl., count one, pars. 5(a)-(f), pp. 2-3.

In their answer, the defendants denied some of the allegations contained in the complaint and specially pled that the plaintiff's own negligence caused his injuries in that: " a. He failed to bring the scooter that he was riding to a stop when signaled to do so by the police officer in violation of § 14-223(a) of the Connecticut General Statutes, as made applicable to the riders of scooters by § 14-286a of the Connecticut General Statutes; b) After being signaled to stop by a police officer, who was using his flashing and/or revolving lights and/or audible signal device, the plaintiff increased the speed and direction of the scooter he was riding in an attempt to escape or elude the defendant police officers, in violation of § 14-223(b) of the Connecticut General Statutes, as made applicable to the riders of scooters by § 14-286a of the Connecticut General Statutes; c) He operated the scooter recklessly, in violation of § 14-222 of the Connecticut General Statutes; d) He failed to keep the scooter he was riding as near to the right side of the roadway as practicable in violation of § 14-286a of the Connecticut General Statutes; e) He operated his scooter on a sidewalk in violation of § 14-286(b) of the Connecticut General Statutes; f) He failed to keep the scooter that he was riding under reasonable and proper control; g) He failed to keep a proper and reasonable lookout for other vehicles upon the highway; h) He failed to apply the brakes on the scooter he was riding in time to avoid a collision with the sidewalk curb, although by a proper and reasonable exercise of his faculties, he could and should have done so; and i) He failed to turn the scooter he was riding to the left or to the right so as to avoid a collision with the sidewalk curb, although by a proper and reasonable exercise of his faculties he could and should have done so." Def. Ans., First Spec. Def, pars 1(a)-(i), pp. 2-3.

The defendants also claim they are entitled to governmental immunity, as the police officer defendants were performing a governmental function that required the exercise of judgment and discretion, on behalf of the city of New Haven. This matter was tried to the court on April 11, 2017. After the plaintiff rested his case, the defendants moved for a dismissal pursuant to Practice Book § 15-8 on the ground that the plaintiff failed to make out a prima facie case. The court granted the defendants' motion as to the allegations of negligence contained in paragraphs 5(a) and (d), and denied the motion as to all other allegations. The court ordered the parties to submit proposed findings of fact and conclusions of law on or before May 11, 2017.

II

STANDARD OF REVIEW

" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).

" It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). " The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).

" The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct." Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " [T]he trier of fact's assessment of the credibility of . . . witnesses . . . is made on the basis of its firsthand observation of their conduct, demeanor and attitude . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what--all, none, or some--of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

III

BURDEN OF PROOF/STANDARD OF PROOF

The burden of proof is on the plaintiff to prove all of the essential allegations of his complaint.

See Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). " While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant[s] need not present any evidence to contradict it . . . The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of his cause of action by a fair preponderance of the evidence." Gulycz v. Stop and Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id.

IV

FINDINGS OF FACT

There are a number of facts alleged in the plaintiff's complaint which have been admitted by the defendants. They are: " [That the plaintiff was riding a scooter on August 24, 2013 shortly after 2:10 p.m., " Def. Ans. par. 1; and that on that date, shortly after 2:10 p.m. " defendant Raul [Pereira], defendant Diego Quintero, and defendant Richard Cotto were operating motor vehicles owned by their employer, defendant City of New Haven." Id., par. 2. That " at all times relevant hereto, [the] defendants were operating the motor vehicles owned by the defendant City of New Haven as the agents, servants, and/or employees of the defendant City of New Haven, and within the scope of their employment." Id., par. 3. The defendant further admitted that " the plaintiff was riding his scooter on Lloyd Street." Id., par. 4.

In addition to the facts admitted by the defendants, the court finds the following facts by a fair preponderance of the evidence presented. The city of New Haven, as required by statute, General Statutes § 14-283a¹ has a pursuit policy which is set forth in general order 302² and which governs all police pursuits in the city of New Haven.

1 General Statutes § 14-283a provides:

2 General order 302 provides in relevant part:

On Saturday, August 24, 2013, at approximately 2:10 p.m., the defendant, officer Diego Quintero responded to 7 Wolcott Street in New Haven, Connecticut for an anonymous call of residents on the second floor involved in a domestic dispute. August 24, 2013, was a clear, sunny day. Traffic in the area was medium, depending upon which streets you were on. When Quintero first approached 7 Wolcott Street, he observed that the plaintiff had just exited the front entrance door of the house, going down the steps and getting onto a red scooter. As Quintero exited his cruiser he observed Ortiz moving " at a fast pace" and he " seemed nervous." FTR, 4/11/2017. Quintero yelled out to Ortiz to stop and come back, however, Ortiz looked back over his right shoulder and ignored Quintero's command to stop and said to him " I had nothing to do with it" and proceeded to ride away on his scooter from the scene. Because the call was a domestic violence call, and based upon Quintero's observations of Ortiz, moving at a fast pace and appearing nervous, it was Quintero's judgment that Ortiz was involved in the domestic dispute, which is why he commanded him to stop. Based upon Quintero's observations, he believed Ortiz was running away and attempting to evade the police.

Quintero first observed the scooter on the sidewalk, and then Ortiz proceeded down Wolcott Street, and then made a right onto Ferry Street. Quintero immediately got back into his cruiser, proceeded after Ortiz, and notified the police dispatcher that a male subject had just exited the residence and was not obeying his command to stop. By the time Quintero made it from Wolcott Street to Ferry Street, and made a right turn, there were vehicles in front of Quintero's cruiser and behind Ortiz. Quintero activated his lights and sirens to alert the vehicles in front of him to get out of his way. Once Quintero caught up to Ortiz, and fell behind him, Ortiz made a right turn onto Saltonstall Street, heading westbound on Saltonstall, at which point Quintero deactivated his sirens and told Ortiz to stop through the police cruiser's loudspeaker.

Ortiz testified that he was on his way to Branford to pick up his paycheck. However, based upon Quintero's observations of the direction in which the plaintiff was traveling on the scooter, the plaintiff was not going in the direction of Branford.

During the pursuit, Quintero remained approximately fifteen to twenty feet behind Ortiz' scooter. After Ortiz turned right onto Saltonstall, he then made a left turn into a one-way street onto Poplar Street which concerned Quintero. Ortiz then took a right turn onto Chapel Street at which time Quintero observed Ortiz who he described was nervous, weaving from side to side and not consistently operating his scooter in a straight line. Ortiz continued to ignore Quintero's verbal commands through the cruiser's loudspeaker to stop and pull over. Initially when on Saltonstall, when Quintero commanded Ortiz to pull over, Ortiz said " fuck you, I didn't do anything." Quintero commanded Ortiz multiple times to pull over, however he continuously refused to do so. Ortiz continued to look over his shoulder at Quintero, however he refused to stop. Quintero also observed Ortiz, just prior to Ortiz' collision, driving back and forth from the street onto the sidewalk.

Quintero described his speed at a " decent" speed when he was leaving Wolcott and going onto Ferry, and when he was able to catch up to Ortiz, he continued his pursuit at a " very slow pace." He never overtook Ortiz. When Quintero was acknowledged by Officers Pereira and Cotto that they were coming upon Ortiz at the intersection of James and Chapel, Quintero then turned around and proceeded back to Wolcott Street in the event Ortiz turned around to head back to Wolcott Street. Quintero at that point lost sight of Ortiz when Ortiz turned left from James onto Chapel, at which point Pereira and Cotto came upon Ortiz. Quintero observed Pereira's and Cotto's cruisers. Once Quintero proceeded back to Wolcott Street, he remained stationary and paid attention to radio transmissions given by Pereira who stated that Ortiz was coming back to turn left onto Lloyd Street. At this point Quintero was right at the intersection of Wolcott and Lloyd, waiting to see what movement Ortiz was going to make. Quintero was at the intersection blocking traffic, in the event Ortiz tried to go pass the traffic. Quintero's vehicle never made contact with Ortiz' scooter as he was following Ortiz. The closest Quintero's vehicle came to Ortiz' vehicle was approximately fifteen feet. Quintero never moved his vehicle close enough to Ortiz' scooter to cause him to force Ortiz off the road.

Officer Pereira first observed Ortiz on Chapel Street near Lloyd Street. Officer Pereira described the pursuit as a police pursuit which would fall under general order 302. Pereira acknowledged that general order 302.4(B) states that emergency warning lights and sirens shall be used in all pursuits. Pereira's police report does not indicate whether the sirens or warning lights were on or off. Pereira also acknowledged that general order 302 states that a pursuit shall consist of no more than two vehicles and that there were three vehicles in pursuit of Ortiz. According to Officer Pereira, when he caught up to Quintero and Cotto, on Chapel Street by Lloyd Street he was behind Ortiz heading west onto Chapel Street, when Ortiz suddenly made a U-turn in the middle of Chapel Street and was then heading east down Chapel Street. Ortiz went around two vehicles at the intersection of Chapel and Lloyd Streets, almost causing an accident. Ortiz turned left onto Lloyd Street heading north and then began to turn left onto Saltonstall, however, he instead swerved around a van, causing the van to have to slam onto its brakes, and then drove onto the sidewalk staying on Lloyd Street. Ortiz continued to travel north on the sidewalk on Lloyd Street and then drove back onto the road and was traveling parallel to Pereira's cruiser. Ortiz attempted to drive back onto the sidewalk, but lost control hitting the curb, and then into a utility pole in front of 152 Lloyd Street which caused Ortiz to fall forward off of the scooter landing face first onto the sidewalk. Ortiz then got up off of the ground, onto his feet, and took off running on foot nearly running into a pedestrian, who had to jump out of Ortiz' way. Ortiz ran north on foot down Lloyd Street at which point Pereira exited his cruiser and proceeded to run after Ortiz. Pereira yelled to Ortiz to stop, but he did not listen to Pereira's commands and continued running. Pereira was able to catch up to Ortiz on the side yard at 154 Lloyd Street where he apprehended Ortiz without incident.

Officer Pereira asked Ortiz why he ran away from police and refused to stop. Ortiz explained that he had heard a fight on the floor above him at 7 Wolcott Street and knew that the police would be called. Ortiz stated that he left to avoid being accused of being involved in the dispute. He further told Pereira that when he saw a police cruiser approaching the house, he got onto his scooter and drove off. When he saw the police cruiser following him with lights activated, Ortiz stated that he panicked and attempted to elude the police. Ortiz was transported to Yale New Haven Hospital (YNHH) by ambulance. Pereira met Ortiz at the hospital. Ortiz was very apologetic stating that he was " dumb" and it was a " stupid decision."

While at YNHH, the plaintiff was treated for facial lacerations sustained in a head on collision between his scooter and a pole when he was ejected from the scooter. The plaintiff was diagnosed as having facial lacerations and was treated with sutures. Radiological studies revealed no fractures or dislocation or spinal abnormality. The plaintiff was discharged that same day with instructions to apply antibiotic ointment to his facial lacerations and to take Tylenol or ibuprofen for pain. He was also instructed that his sutures would dissolve and did not need to be removed, and that he should seek follow up care in two days.

On August 28, 2013, four days later, the plaintiff sought treatment with Dr. Alfred Ranieri. The plaintiff gave a history to Dr. Ranieri, which Dr. Ranieri characterized as " a rather bizarre incident" of having been chased down and forced off the road by the police. He stated to Dr. Ranieri that the police " chased me down and forced me off the road. They came at me and caused me to hit the sidewalk. And then I hit this pole. Then they dragged me off the scooter and beat me. They dragged me all over the sidewalk and beat me down thinking I had something to do with it." Pl. Ex. 1. The court notes that the evidence adduced at trial as to what occurred during the pursuit of the plaintiff, is vastly different from the description the plaintiff gave to Dr. Ranieri. Dr. Ranieri's physical exam revealed an " [a]nxious man in no acute distress. Low grade instabilities of gait were noted because of discomfort with respect to full weight bearing about the low back, lower extremities and right knee." Id. Dr. Ranieri's diagnoses were: " 1) Lacerations/Abrasive wounds; 2) Musculoligamentous Cervical/Lumbosacral Spine and Underlying Supporting Structure Sprain/Strains/Sprains; 3) Bilateral Shoulder Sprains, with Probable Contusion/Tendonitis Components; 4) Contusion with Sprain/Strain and Probable Tendonitis Components, Right Elbow/Forearm; 5) Strain with Contusion Components, Right Hip, S1 Joint and Proximal Leg; 6) Post Traumatic Headaches, with Labyrinthine Dysfunction." Id.

Dr. Ranieri recommended home application of moist heat and conservative sterile wound care to the abraded areas. He recommended motrin and muscle relaxants for pain and that lifting and bending musculoskeletal manuevers were to be minimized. It was not Dr. Ranieri's impression that surgery was indicated and a short-term follow up was set both as a medication check and to further assess the plaintiff's musculoskeletal/physiological status, at which time he would assess whether other treatment options were indicated.

The plaintiff next saw Dr. Ranieri on September 3, 2013. Dr. Ranieri's exam revealed unstable gait, compromised range of motion about the neck and low back and persistent paracervical/paralumbar muscle spasm with associated marked soft tissue tenderness. He also noted deep tenderness about the right hip. Abrasive wounds appeared less unsightly and infection/cellulitis had not evolved. He noted that the plaintiff's right knee bony prominence was as before; soft tissue swelling lessened and ligamentous knee structures remained stable. Leg strength was normal and neurologically the plaintiff was intact. Dr. Ranieri recommended that the plaintiff pay meticulous attention to wound care and evening leg elevation was stressed. Regarding the plaintiff's neck, shoulder and low back and associated musculoskeletal issues, he recommended a physical therapy treatment regimen of passive radiant physiotherapy.

On September 5, and 6, 2013, the plaintiff underwent passive radiant physiotherapy. The plaintiff was next seen by Dr. Ranieri on September 9, 2013. Clinically, the plaintiff's wounds were healing without evidence of infection. The plaintiff was having ongoing musculoskeletal/musculoligamentous issues about the neck, right hip/knee and low back. Dr. Ranieri opined that from a musculoskeletal perspective, the plaintiff was showing some objective improvement. Dr. Ranieri further noted that while muscle spasms remained problematic, enhanced ROM efforts about both the cervical/lumbosacral vertebral columns were noted. Neurologically, the plaintiff remained stable. Again, surgery was not indicated and Dr. Ranieri recommended that conservative wound care/physiotherapy treatment continue. He also recommended that the plaintiff engage in home based stretching/ROM/flexibility exercises. Plaintiff received passive radiant energy physiotherapy at this visit.

The plaintiff received physiotherapy on September 12, 2013, and was next evaluated by Dr. Ranieri on September 18, 2013. The plaintiff was still complaining of lingering musculoskeletal discomfort/pain in his neck, low back and right hip/knee. His abrasive wounds were progressively healing. Dr. Ranieri noted that the plaintiff would probably be left with some permanent scarring, but that it was too soon to tell. Paracervical/paralumbar soft tissue tenderness remained problematic. Associated muscle spasm was lessening in intensity and ROM efforts about the cervico-lumbar column still had distinct limitation components. The plaintiff still remained intact neurologically. Dr. Ranieri recommended that conservative wound care and physiotherapy continue.

On September 20, 23, 2013, the plaintiff underwent passive radiant energy physiotherapy. On September 27, 30, 2013 and October 7, 2013, the plaintiff did not show for his physiotherapy treatment. The plaintiff was evaluated by Dr. Ranieri on December 19, 2013, three months after his last evaluation. Dr. Ranieri noted at this time that while the plaintiff noted some ongoing painful issues about his lower back, from a clinical/musculoskeletal perspective, he appeared to be doing reasonably well. The plaintiff's ambulation and gait were fully intact, motion efforts of the head, neck, shoulders and low back were reasonably accomplished in all planes. Clinically, Dr. Ranieri could appreciate no muscle spasm of significance, evolving extremity atrophy, neuropathy, radiculopathy or neuromuscular/neurosensory impairments. The plaintiff's abrasive wounds had resolved and Dr. Ranieri further noted that a permanent 3 cm fibrous scar was present at the buccal cheek area, just inferior to the left orbit. There was also eyebrow, hand and leg scarring. Dr. Ranieri opined that the need for in-depth neurodiagnostic workup or additional formal treatment was not indicated, and at that time he discharged the plaintiff from his care to reconsult in the future on an as needed basis. Dr. Ranieri opined that the care and treatment rendered to the plaintiff " does, by history and physical examination, causally relate to injuries sustained in the August 24, 2013 traumatic incident . . . [I]t was not [his] working impression that appreciable neuromuscular residuals would evolve." Pl. Ex. 1. Dr. Ranieri did not assess any permanent partial impairment that resulted from the plaintiff's injuries.

The court will make additional findings of facts as necessary in determining the merits.

V

LIABILITY

A

Immunity of Municipal Employees and Municipalities

The defendants in this case are a municipality and its employees. " The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion . . . Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by the fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts . . . The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides that [e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law . . ." (Internal quotation marks omitted.) Faulkner v. Daddona, 142 Conn.App. 113, 119-20, 63 A.3d 993 (2013).

" Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer . . . The policy behind discretionary act immunity for police officers is based on the desire to encourage police officers to use their discretion in the performance of their typical duties." (Internal quotation marks and citation omitted.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011).

The defendants in the present case claim that the defendant police officers and the city of New Haven are entitled to immunity from liability on the plaintiff's claims of negligence pursuant to General Statutes § 52-557n, because all of the officers' conduct involved the exercise of discretion in the performance of their duties on behalf of the city. The plaintiff argues that the defendants violated general order 302 which sets forth the prescribed manner in which the officers were to initiate, engage and enter a police pursuit, and said violations caused the plaintiff to " hit the curb on his scooter, then hit a pole, and then strike the ground" which resulted in his injuries. Pl. Prop. Findings of Fact, p. 3. More specifically, the plaintiff claims that " the individual defendant officers did not follow the city's pursuit policy, in the following critical ways: The police cruisers' sirens were never turned on; The police cruisers' flashing lights were not activated; Too many vehicles (3 cruisers) engaged in this pursuit; The officers never notified Communications that they were engaged in a pursuit; No supervisor oversaw or monitored the pursuit; and No after-pursuit report was prepared." Id., p. 5.

The court finds the recent decision of Coley v. Hartford, 312 Conn. 150, 95 A.3d 480 (2014) instructive. In Coley, the Supreme Court considered the applicability of governmental and qualified immunity to a wrongful death action arising out of the police response to a domestic disturbance. Id., at 154-55. Officers were called to the decedent's house by the decedent's daughter, who informed them that the father of her child, Chapdelaine, against whom she had a restraining order, had demanded entry and when she refused, brandished a revolver and threatened to kill her. Id. After determining that Chapdelaine was no longer present, the police returned to the police station to obtain an arrest warrant for him. Id. They were called back to the home three hours later to find the decedent had been shot by Chapdelaine. Id.

In Coley, the court considered whether the police response manual created a ministerial duty for officers to remain at the scene following an emergency call with the statement that " [i]n the event that an arrest is not made . . . officers shall remain at the scene for a reasonable time until, in the reasonable judgment of the officer, the likelihood of further imminent violence has been eliminated." (Emphasis added; internal quotation marks omitted.) Coley v. Hartford, supra, 312 Conn. 163. The plaintiff claimed that the use of " shall" indicated that the manual created a ministerial duty. Id. The court held otherwise, first noting " the broad scope of governmental immunity that is traditionally afforded to the actions of municipal police departments" and " the considerable discretion inherent in law enforcement's response to an infinite array of situations implicating public safety on a daily basis." Id., at 164-65. It then held that " [i[t is difficult to conceive of policy language that could more clearly contemplate the exercise of judgment by a municipal employee than is contemplated by the police response procedures in the present case. At a minimum, the plaintiff would have this court ignore the police response procedures' explicit reference to the 'reasonable judgment of the officer . . .'" Id., at 165. " Thus, the police response procedures in the present case explicitly require the police officer's judgment in evaluating the circumstances in a given situation of domestic violence. Because the policy language makes the manner of performance expressly contingent upon the police officer's discretion, it cannot be said that the alleged acts were to be 'performed in a prescribed manner without the exercise of judgment . . .'" Id., at 166.

The Appellate Court also recently addressed the issue of when police procedure directives give rise to ministerial duties, in Faulkner v. Daddona, supra, 142 Conn.App. 113. In Faulkner, the Appellate Court considered whether a police officer had any ministerial duties when securing an accident scene to prevent further accidents. Id., at 115-16. The plaintiff specifically pleaded a violation of a number of state statutes and regulations and, in addition, as in the present case, a violation of the town of Watertown's police department general orders. The court noted: " thirteen of the plaintiff's twenty allegations against Conard involved his alleged failure to enforce state statutes; and five involved his alleged failure to comply with provisions of the Watertown police department general orders." (Footnotes omitted.) Id., at 121-22. The Appellate Court stated that " [t]he fact that a claim is based upon a defendant's alleged failure to enforce a statute, however, does not, in and of itself, make enforcement of that statute a ministerial duty. See Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982). Rather, a police officer's decision whether and how to enforce a statute necessarily requires an examination of the surrounding circumstances and a determination as to what enforcement action, if any, is necessary and appropriate in those circumstances. Such a decision thus invariably involves the exercise of judgment and discretion. Indeed, even if the command of a statute is mandatory, it is well settled that a police officer's decision whether or not to enforce the statute in particular circumstances is a matter that requires the exercise of judgment and discretion." Faulkner v. Daddona, supra, at 122-23. Regarding the Watertown police department general orders, the Appellate Court further stated: " No such provision prescribes the particular manner in which an officer must always secure an accident scene. This, of course, is because all accident scenes are different from one another, and in fact are so different as to require that different measures be taken to secure them. Consistent with this reality, even the general orders which the plaintiff claims to have been violated are replete with directives to officers to take 'appropriate' action, as 'necessary' or 'reasonable' in the attending circumstances, rather than prescribing a single, unalterable method for securing the scene. Such directives describe duties whose performance requires the exercise of judgment and discretion, for which the officer is entitled to governmental immunity." (Footnote omitted.) Id., at 123.

The court now turns to whether the provisions of general order 302 imposes a ministerial duty upon police officers when initiating and engaged in a police pursuit. This court notes that, " because § 52-557n(a)(1) constitutes an abrogation of common-law governmental immunity, it must be strictly construed. Segreto v. Bristol, 71 Conn.App. 844, 849, 804 A.2d 928 (2002). Our Supreme Court has concluded that 'for the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.' Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010). Moreover, as stated, a plaintiff seeking to avoid the immunity typically afforded to police officers must demonstrate that 'by statute or other rule of law the official's duty is clearly ministerial rather than discretionary . . .' (Emphasis added; internal quotation marks omitted.) Mills v. Solution, LLC, supra, 138 Conn.App. at 48, 50 A.3d 381; see also Grignano v. Milford, supra, 106 Conn.App. at 654, 943 A.2d 507. The standard calls for a statute, rule, or ordinance to 'clearly' impose a ministerial standard so as to eliminate the possibility that the municipality waived immunity inadvertently, inconsistently, or ambiguously." Ventura v. Town of East Haven, 170 Conn.App. 388, 406, 154 A.3d 1020, cert. granted, 325 Conn. 905, 156 A.3d 537 (2017).

First, the language of general order 302.1 which sets forth the purpose of the order states that " [t]he purpose of this General Order is to provide officers guidance in balancing the safety of the public and themselves against law enforcement's duty to apprehend violators of the law. Pursuits of suspected or known violators of the law expose innocent citizens, police officers, and fleeing suspects to serious injury or death. Vehicle pursuits require officers to exhibit a high degree of common sense and sound judgment ." (Emphasis added.) Pl. Ex. 4. General order 302.2 which sets forth the policy of the police department states that " a pursuit shall be based on the 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 occupant(s) of such vehicle remain at large. Deciding whether to pursue a motor vehicle is a critical decision that must be made quickly and under difficult and unpredictable circumstances. In recognizing the potential risk to public safety created by vehicular pursuits, no officer or supervisor shall be criticized or disciplined for deciding not to engage in a vehicle pursuit because of the risk involved. It is recognized that vehicle pursuit situations are not always predictable and decisions made pursuant to this General Order will be evaluated according to the totality of the circumstances reasonably available at the time of the pursuit."

General order 302.4(A) sets forth the procedures for initiating a pursuit and provides that " [t]he decision to initiate a pursuit shall be based on the 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. In deciding whether to initiate a pursuit, the police officer shall take the following factors into consideration: a. Road, weather, and environmental conditions; b. Population density and vehicular pedestrian traffic; c. Whether 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; d. The relative performance capabilities of the pursuit vehicle and the vehicle being pursued; e. The seriousness of the offense; and f. The presence of other persons in the police vehicle." Id. It is clear that pursuant to general order 304.4(A), the determination of whether a police officer should initiate a pursuit requires an exercise of judgment.

" The determination by a police officer whether to commence a . . . pursuit of a fleeing law violator is unquestionably a matter of judgment. It depends on a multitude of factors including the seriousness of the offense, the potential danger to the public of engaging in pursuit, the potential danger to the public of the suspects remaining at large and the surrounding conditions, including weather conditions, traffic conditions, road conditions and the condition of the vehicles. See, e.g., Uniform Statewide Pursuit Policy, Regs., Conn. State Agencies § 14-283a-4(a) . . . Accordingly, it is a decision that is discretionary and for which governmental immunity applies. See Docchio v. Bender, Superior Court, judicial district of Waterbury, Docket No. CV98-01460145 (Aug. 15, 2002, Holzberg, J.) [32 Conn.L.Rptr. 689, ]; Nunez v. VPSI, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0347902 (February 20, 2001, Melville, J.) [29 Conn.L.Rptr. 371, ]; and Boone v. Mills, Superior Court, judicial district of Litchfield, Docket No. 0051318 (October 17, 1990, McDonald, J.) [2 Conn.L.Rptr. 636, ]. See also County of Sacramento v. Lewis, 523 U.S. 833, 853, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ('A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders') (Footnote omitted.)." Dudley v. City of Hartford et al., Superior Court, judicial district of Hartford, Docket No. CV0950337678, (July 24, 2013, Scholl, J.). This court does not disagree with this analysis and cannot conclude that the initiation of a pursuit is a ministerial duty. Therefore, as to the decision to initiate the pursuit in the present case, the defendants are entitled to qualified immunity.

General order 302.3 defines " pursuit" as " [a]ny event in which a police officer in an authorized emergency vehicle attempts to apprehend an occupant of another moving motor vehicle, when the driver of the fleeing vehicle is attempting to avoid apprehension by operating a motor vehicle by using high speed driving, driving in an evasive manner, or otherwise ignoring the police officer's attempt to stop the vehicle. **The mere fact that an officer has activated his/her lights and siren does not constitute a pursuit ." See also, General Statutes § 14-283a(a); Regs. Conn. State Agencies § 14-283a-3(1).³ General order 302.3 defines an " Authorized Emergency Vehicle" as " [a] police vehicle equipped with operable emergency equipment, including audible siren and red or blue flashing lights, while such vehicle is being operated by a police officer that assumes control of the pursuit." General Statutes § 14-283a(a); Regs. Conn. State Agencies § 14-283a-3(2).⁴

3 Regs. Conn. State Agencies § 14-283a-3(1) provides: " '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 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."

4 Regs. Conn. State Agencies § 14-283a-3(2) provides: " 'Authorized emergency vehicle' means a police vehicle equipped with operable emergency equipment, including audible siren and red or blue flashing lights, while such vehicle is being operated by a police officer."

There is no question, based upon the evidence submitted at trial, that the defendants were in pursuit of the plaintiff. Based upon the information Quintero received, that there was a domestic dispute at 7 Wolcott Street, and upon arriving at that residence, observing the plaintiff exiting that residence walking fast, appearing nervous, ignoring Quintero's command to stop and jumping on his scooter and driving off, Quintero had reason to believe that the plaintiff was involved in, or was a witness to, a potentially violent incident and therefore decided to engage the plaintiff in pursuit. Quintero upon deciding to engage in the pursuit, immediately got back into his cruiser, and notified the police dispatcher that a male subject had just exited the residence and was not obeying his command to stop. Quintero proceeded to pursue the plaintiff on Ferry Street and observed there were vehicles in front of his cruiser and behind the plaintiff, so he activated his police cruiser's flashing lights and siren, to alert the vehicles to get out of his way, as he pursued Ortiz down Ferry Street. Once Quintero was able to catch up to the plaintiff and fall behind him, he deactivated his lights, but continued to pursue him at a slower pace. Although the plaintiff was not going at a high rate of speed, the evidence demonstrates that as Quintero was pursuing the plaintiff, the plaintiff was weaving from side to side on the scooter, going on and off the road onto the sidewalk with the scooter, traveled down a one-way street, and ignored Quintero's multiple commands to stop, in a clear attempt to avoid apprehension. Further, Quintero acknowledged in his testimony that he was engaged in a pursuit of the plaintiff, and that the pursuit of the plaintiff was covered by general order 302. The totality of the evidence demonstrates that Quintero's pursuit of the plaintiff clearly falls within the definition of a vehicle pursuit as defined in general order 302, General Statutes § 14-283a(a), Regs. Conn. State Agencies § 14-283a-3(1).

Likewise, the evidence demonstrates that Pereira and Cotto were also in pursuit of the plaintiff as defined in the general order. Pereira caught up to Quintero and Cotto on Chapel Street by Lloyd Street. At this point Pereira was behind the plaintiff heading west on Chapel. The plaintiff suddenly made a U-turn in the middle of Chapel Street and then started traveling east on Chapel Street, went around two vehicles at the intersection of Chapel, almost causing an accident, turned left onto Lloyd heading north, then he began to turn left onto Saltonstall, but instead swerved around a van, causing the van to have to slam on its brakes. The plaintiff drove on and off the sidewalk, and when he attempted to drive back onto the sidewalk from the road, lost control of the vehicle. During his pursuit of the plaintiff, Pereira also commanded the plaintiff to stop, but again, the plaintiff ignored Pereira's commands in an attempt to avoid apprehension. Officer Pereira in his testimony also acknowledged the pursuit as a police pursuit that would fall under general order 302. This court therefore finds, that the defendants were in pursuit of the plaintiff as defined in general order 302, § 14-283a(a) and Regs. Conn. State Agencies § 14-283a-3(1).

Regarding the manner in which a pursuit should be conducted, general order 302.4(B) sets forth several provisions which prescribe how a vehicle pursuit should be conducted, (C) sets forth the supervisory responsibilities during a police pursuit, and (H) sets forth the after-pursuit procedures that should be followed. The plaintiff claims that the above provisions of the general order impose ministerial duties upon the defendants which do not require the exercise of judgment. The plaintiff claims that pursuit of him was conducted in violation of these provisions in that " [t]he police cruisers' sirens were never turned on; [t]he police cruiser's flashing lights were not activated; [t]oo many vehicles [3 cruisers] engaged in this pursuit; [t]he officers never notified Communications that they were engaged in a pursuit; [n]o supervisor oversaw or monitored the pursuit; and [n]o after-pursuit report was prepared." Pl. Prop. Findings of Fact and Concl. of Law, p. 5; See also, Pl. Compl., p. 3.

General order 302.4(B) provides that " [u]pon engaging in or entering into a pursuit, the pursuing vehicle shall activate appropriate emergency warning lights. A siren shall be used during all pursuits." Although this provision uses the word " shall, " the provision does not prescribe, when, during a pursuit, an officer should activate his cruiser's emergency warning lights and siren or that the officer's warning lights and sirens should be on continuously throughout all pursuits. When to do so, requires the exercise of judgment by the officer. In the present case, when Quintero was pursuing the plaintiff on Ferry Street, he activated his lights and siren in order to alert vehicles in front of him to move out of the way, so that he could catch up to the plaintiff, and command him to stop. Once Quintero caught up to the plaintiff and fell behind the plaintiff, he deactivated his warning lights and sirens to utilize the cruiser's PA to command the plaintiff to stop. Likewise, although Pereira and Cotto did not activate their lights and sirens while in pursuit of the plaintiff, it was in their judgment whether at the particular time that they were in pursuit of the plaintiff, it was necessary to do so. There is no indication that there were cars blocking Pereira or Cotto's ability to pursue the plaintiff, as was the case when Quintero was pursuing the plaintiff down Ferry Street, which would require them to alert the vehicles to get out of the way, thus requiring the need to utilize the warning lights and sirens. Like in the Faulkner case, this provision does not prescribe the particular manner in which an officer must always secure a pursuit. This, of course, is because all pursuits are different from one another, and in fact are so different as to require that different measures be taken when an officer is engaged in them. Consistent with this reality, even the general order requiring that the officer activate his warning lights and sirens, which the plaintiff here claims to have been violated, states that the officer " shall activate 'appropriate' emergency lights" in the attending circumstances, rather than prescribing a single, unalterable method for engaging in a pursuit. (Emphasis added.) Pl. Ex. 4. Thus, the activation of the officers' emergency warning lights and sirens requires an exercise of judgment.

General order 302.4(B) further provides that " upon entering in a pursuit, the pursuing officer shall immediately notify Communications of the location, direction, and speed of the pursuit, the description of the pursued vehicle and the initial purpose for the stop. The officer shall keep Communications updated on the pursuit. Communications personnel shall immediately notify the supervisor of the officer involved in the pursuit, or in that supervisor's absence, the closest available supervisor to the pursuit and the Shift Commander, clear the radio channel of non-emergency traffic and relay necessary information to other officers and other law enforcement agencies as appropriate. When engaged in a pursuit, all officers shall drive with regard for the safety of persons and property. Unless circumstances dictate otherwise, a pursuit shall consist of no more than two police vehicles, one of which shall be designated as the primary unit, and a police supervisory vehicle. No other personnel shall join the pursuit unless instructed to participate by a supervisor. The primary unit involved in the pursuit shall become secondary when another unit has been assigned primary responsibility." General order 302.4(C) provides in relevant part that " [i]t is the policy of this department that available supervisory and management control will be exercised over all vehicle pursuits involving department officers . . ." (Emphasis added.) Pl. Ex. 4. General order 302.4(C) also sets forth the supervisory responsibilities of the supervisor overseeing the pursuit, and General order 302.4(H) provides in relevant part that " [t]he supervisor overseeing the pursuit shall complete a post-pursuit memorandum . . ." Pl. Ex. 4.

The policy of general order 302 clearly makes the manner of performance contingent upon the police officer's discretion. It is stated in the policy that " a pursuit shall be based on the 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 occupant(s) of such vehicle remain at large. Deciding whether to pursue a motor vehicle is a critical decision that must be made quickly and under difficult and unpredictable circumstances . . . In recognizing the potential risk to public safety created by vehicular pursuits, no officer or supervisor shall be criticized or disciplined for deciding not to engage in a vehicle pursuit because of the risk involved. It is recognized that vehicle pursuit situations are not always predictable and decisions made pursuant to this General Order will be evaluated according to the totality of the circumstances reasonably available at the time of the pursuit . . ." Pl. Ex 4. Again, although the provisions in general order 302.4(B) use the word " shall, " " [b]ecause the policy language [set forth in general order 302.2] makes the manner of performance expressly contingent upon the police officer's discretion, it cannot be said that the alleged acts were to be 'performed in a prescribed manner without the exercise of judgment . . .'" Coley v. Hartford, supra, 166.⁵ The provisions set forth in 302.4(C) which govern supervisory responsibilities, all use language which require the exercise of judgment on the part of the supervisor exercising control over the pursuit.

5 The language in general order 302.4(B) which provides that " [w]hen engaged in a pursuit, all officers shall drive with regard for the safety of persons and property" clearly implies the use of judgment. " [T]he phrases 'due care' [and] 'due regard' . . . strongly suggest that the officer must make a difficult discretionary determination. He must balance the need to proceed at a fast speed in order to apprehend the suspect and thereby protect citizens with the need to proceed at a safe speed so that he or the suspect does not cause injury to citizens. Moreover, based on Coley and Faulkner the court believes that the question is not whether the statutes are clearly discretionary, but rather whether they clearly create a ministerial duty. Due care is a highly subjective standard dependent on the conditions in which the police officer finds himself . . ." Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield, Docket No. FBTCV-146042098, (September 1, 2015, Kamp, J.). Likewise, the language in general order 302.4(B) which limits the number of vehicles that can be engaged in a pursuit, states: " [u]nless circumstances dictate otherwise, a pursuit shall consist of no more than two vehicles . . ." requires the exercise of judgment. (Emphasis added).

The requirement in general orders 302.4(B) that the pursuing officer shall notify communications of the pursuit; shall update communications on the pursuit; that communications personnel shall notify a supervisor of the pursuit; and in (H), that a post-memorandum report shall be filed by the supervisor in control of the pursuit; are the only duties which could arguably be characterized as ministerial. These are very specific actions which can be objectively observed; there is no middle ground between notifying or not notifying communications or a supervisor of the pursuit. The exercise of judgment is not required. Upon engaging in a pursuit, the pursuing officer has to notify communications and keep communications updated on the pursuit; communications must notify a supervisor of the pursuit; and the supervisor who has management and control over the pursuit, must prepare a post-memorandum report. The evidence in the present case indicates that Quintero did notify dispatch that he observed a male suspect exiting 7 Wolcott Street. However, it is not clear whether Quintero notified communications of the location, direction and speed of the pursuit, or that he kept communications updated as he was pursuing the plaintiff. There is no evidence that Pereira or Cotto notified communications of the location, direction and speed of the pursuit or updated communications as they were pursuing the plaintiff. There is no evidence that a supervisor was notified of the pursuit or that a post-pursuit memorandum was prepared. However, even if this court were to find that the officers were in violation of these general orders, the plaintiff has failed to prove that these violations were the cause of his injuries. In other words, the plaintiff has failed to prove causation, a critical element that is necessary to prove negligence.

The " 'essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.' (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004). `To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . The second component of legal cause is proximate cause . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise.' (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999). 'An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm . . . The finding of actual cause is thus a requisite for any finding of proximate cause.' (Citations omitted; internal quotation marks omitted.) Boehm v. Kish, 201 Conn. 385, 391-92, 517 A.2d 624 (1986)." Winn v. Posades, 281 Conn. 50, 56-57, 913 A.2d 407 (2007).

Although Quintero, Pereira and Cotto failed to comply with certain provisions of the general orders that prescribe the manner in which their pursuit of the plaintiff should have been conducted, the plaintiff has failed to demonstrate by a preponderance of the evidence that these violations caused his injuries. The plaintiff has failed to show how the failure to notify communications of the direction, location and speed of the pursuit; failure to update communications on the pursuit; failure to notify a supervisor of the pursuit; and failure to prepare a post-pursuit memorandum, caused his injuries. The officers pursued the plaintiff, who was driving erractically through the streets of Fair Haven in an attempt to evade the police. The officers on numerous occasions commanded the plaintiff to stop, and the plaintiff, despite the officers' commands, refused to do so and continued to drive erratically and recklessly throughout Fair Haven endangering the public and himself. It was the plaintiff's failure to heed to the officers' commands to stop, and his erratic and reckless driving that resulted in his injuries.

The plaintiff has also alleged that the officers were negligent in their pursuit of him in that they failed to keep and maintain the motor vehicles they were operating under reasonable and proper control; failed to keep a proper lookout; and failed to operate their vehicles so as to avoid causing a collision. ⁶ The plaintiff failed to prove that any of the three police officer defendants were negligent in the operation of their vehicles, or that the manner of operation caused his injuries. The court agrees with the defendant that the plaintiff failed to present evidence as to which of the three officers failed to control their vehicles, or the specific conduct that constituted a failure to control a vehicle, or the location in which the claimed loss of control occurred. Moreover, to the extent that the plaintiff testified that a police vehicle made contact with his scooter, he never identified which officer's vehicle made the claimed contact, or where and when the claimed contact took place. Accordingly, there is no evidence that the operation of any of the police vehicles caused the plaintiff's injuries. Even if the court were to find that the defendant police officers were negligent, the plaintiff's injuries were caused by his own negligent and reckless driving as alleged by the defendants. More specifically, the overwhelming evidence proves that the plaintiff was negligent in that after being signaled to stop by a police officer, who was using his flashing and/or revolving light and/or audible signal device, increased the speed and direction of the scooter he was riding in an attempt to escape or elude the defendant police officers, in violation of General Statutes § 14-223(b), ⁷ as made applicable to the riders of scooters by General Statutes § 14-286a; ⁸ failed to keep the scooter he was riding under reasonable and proper control; and failed to keep a proper and reasonable lookout for other vehicles upon the highway. Accordingly, it was the plaintiff's own negligence that caused his injuries. Moreover, the evidence further demonstrates that the plaintiff operated his scooter recklessly in violation of General Statutes § 14-222, ⁹ as he drove erratically throughout the streets of Fair Haven, by going down a one-way street, weaving on and off the sidewalk, making a U-Turn in the middle of the street, and making evasive moves which nearly caused an accident. It was the plaintiff's reckless operation of his scooter that caused his injuries, and not any negligence which could be attributable to the defendants.

6 The plaintiff's allegations of negligence against the officers all involve the exercise of reasonable care which would require the exercise of judgment by the police officers in pursuit of the plaintiff for which governmental immunity would apply. As such, even if the plaintiff had proven that the officers were negligent, the plaintiff would be required to plead and prove an exception to discretionary act immunity. There are " three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity--to encourage municipal officers to exercise judgment--has no force . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when 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 . . ." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006). The imminent harm exception requires " (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." Id., at 616, 903 A.2d 191. The plaintiff failed to plead the exception in his complaint. See Texidor v. Thibedeau, 163 Conn.App. 847, 863, 137 A.3d 765 (2016) (" We agree with the trial court that the plaintiff did not allege facts demonstrating that he was a member of an identifiable class of foreseeable victims whom a police officer would know were likely to be subjected to imminent harm . . .").

7 General Statutes § 14-223(b) provides in relevant part: " (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."

8 General Statutes § 14-286a provides:

9 General Statutes § 14-222(a) provides in relevant part: " No person shall operate any motor vehicle upon any public highway of the state recklessly, having regard to the width, traffic and use of such highway . . . the intersection of streets and the weather conditions." " To sustain a claim for the [plaintiff's] violation of § 14-222 for the more general reckless operation of a motor vehicle and not one of the specific prohibitions of § 14-222, the [defendants] must show that the [plaintiff's] conduct meets the common-law standard for recklessness. See Bolmer v. McKulsky, 74 Conn.App. 499, 502-04, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003) (applying common-law recklessness standard in upholding Superior Court's directed verdict for defendant on statutory recklessness claim based on § 14-222).

VI

CONCLUSION

Accordingly, for the foregoing reasons, the court finds in favor of the defendants on all counts of the complaint as to liability and damages.

(a) As used in this section, " police officer" means a sworn member of an organized local police department or a state police officer, which member or officer is assigned to patrol duties on public streets or highways, 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 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) 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 chapter 541 a uniform, state-wide policy for handling pursuits by police officers. Such policy shall specify: (1) The conditions under which a police officer may engage in a pursuit and discontinue a pursuit, (2) 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, (3) the coordination and responsibility, including control over the pursuit, of supervisory personnel and the police officer engaged in such pursuit, (4) in the case of a pursuit that may proceed and continue into another municipality, (A) 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 (B) the coordination and responsibility of supervisory personnel in each such municipality and the police officer engaged in such pursuit, (5) 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 (6) 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.

302.1 PURPOSEThe purpose of this General Order is to provide officers with guidance in balancing the safety of the public and themselves against law enforcement's duty to apprehend violators of the law. Pursuits of suspected or known violators of the law expose innocent citizens, police officers, and fleeing suspects to serious injury or death. Vehicle pursuits require officers to exhibit a high degree of common sense and sound judgment.

302.2 POLICY

It is the policy of this Department that a pursuit shall be based on the 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 occupant(s) of such vehicle remain at large. Deciding whether to pursue a motor vehicle is a critical decision that must be made quickly and under difficult and unpredictable circumstances. In recognizing the potential risk to public safety created by vehicular pursuits, no officer or supervisor shall be criticized or disciplined for deciding not to engage in a vehicle pursuit because of the risk involved. It is recognized that vehicle pursuit situations are not always predictable and decisions made pursuant to this General Order will be evaluated according to the totality of the circumstances reasonably available at the time of the pursuit . . .

302.3 DEFINITIONS

PURSUIT: Any event in which a police officer in an authorized emergency vehicle attempts to apprehend an occupant of another moving motor vehicle, when the driver of the fleeing vehicle is attempting to avoid apprehension by operating a motor vehicle by using high speed driving, driving in an evasive manner, or otherwise ignoring the police officer's attempt to stop the vehicle. **The mere fact that an officer has activated his/her lights and siren does not constitute a pursuit FAILURE TO YIELD: Refers to the actions of a vehicle operator who fails to stop or respond to the emergency light(s) and siren of a law enforcement vehicle. Generally, the vehicle operator continues to travel forward at or below the speed limit, observes applicable rules of the road and does not change direction of travel in an evasive manner. AUTHORIZED EMERGENCY VEHICLE A police vehicle equipped with operable emergency equipment, including audible siren and red or blue flashing lights, while such vehicle is being operated by a police officer.302.4 PROCEDURES

A. INITIATION OF PURSUIT

The decision to initiate a pursuit shall be based on the 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.

In deciding whether to initiate a pursuit, the police officer shall take the following factors into consideration:

a. Road, weather, and environmental conditions; b. Population density and vehicular and pedestrian traffic; c. Whether 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; d. The relative performance capabilities of the pursuit vehicle and the vehicle being pursued; e. The seriousness of the offense; and f. The presence of other persons in the police vehicle.

B. PURSUIT OPERATIONS

Upon engaging in or entering into a pursuit, the pursuing vehicle shall activate appropriate emergency warning lights. A siren shall be used during all pursuits. Upon engaging in a pursuit, the pursuing officer shall immediately notify Communications of the location, direction, and speed of the pursuit, the description of the pursued vehicle and the initial purpose for the stop. The officer shall keep Communications updated on the pursuit. Communications personnel shall immediately notify the supervisor of the officer involved in the pursuit, or in that supervisor's absence, the closest available supervisor to the pursuit and the Shift Commander, clear the radio channel of non-emergency traffic and relay necessary information to other officers and other law enforcement agencies as appropriate. When engaged in a pursuit, all officers shall drive with regard for the safety of persons and property. Unless circumstances dictate otherwise, a pursuit shall consist of no more than two police vehicles, one of which shall be designated as the primary unit, and a police supervisory vehicle. No other personnel shall join the pursuit unless instructed to participate by a supervisor. The primary unit involved in the pursuit shall become secondary when another unit has been assigned primary responsibility.H. AFTER PURSUIT REPORTING 1. The primary officer shall complete the appropriate crime/arrest reports. 2. The supervisor overseeing the pursuit shall complete a post-pursuit memorandum to be reviewed by the Shift Commander and forwarded to the Patrol Commander . . . Pl. Ex. 4.

(a) Every person riding a bicycle, as defined by section 14-286, upon the traveled portion of a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of any vehicle subject to the requirements of the statutes relating to motor vehicles, except as to those provisions which by their nature can have no application and except that each town, city or borough and the Office of the State Traffic Administration within its jurisdiction as provided in section 14-298 shall have authority to regulate bicycles as provided in section 14-289 and said section 14-298, and except as provided by section 14-286c. No parent of any child and no guardian of any ward shall authorize or knowingly permit any such child or ward to violate any provision of the general statutes or ordinances enacted under section 14-289 relating to bicycles. (b) Every person operating a bicycle solely by hand or foot power upon and along any sidewalk or across any roadway upon and along any crosswalk shall be granted all of the rights and shall be subject to all of the duties applicable to pedestrians walking in such areas as provided by the general statutes, except as provided otherwise by any ordinance of any city, town or borough or any regulation of the Office of the State Traffic Administration, issued or adopted pursuant to the provisions of section 14-289.

" 'Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent.' (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003). Recklessness is thus 'a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . [R]eckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.' (Internal quotation marks omitted.) Id. at 832-33, 836 A.2d 394." Yankus v. Dwyer, Superior Court, judicial district of Waterbury, Docket No. CV-126016026S, (February 15, 2013, Roche, J.). There is no question that the plaintiff violated § 14-222. The plaintiff had every opportunity to heed the police officers' commands to stop, however he ignored the commands and consciously chose to evade the police by driving erractially throughout the streets of Fair Haven. The plaintiff made a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, clearly recognizing that his conduct involved a risk substantially greater than that which is necessary to make his conduct negligent.