Kajic v. Marquez

Full title: Jasmin Kajic v. Victor Marquez et al

Court: Superior Court of Connecticut

Date published: Aug 16, 2017

HHDCV166065320S (Conn. Super. Ct. Aug. 16, 2017)

Opinion

HHDCV166065320S

08-16-2017

Jasmin Kajic v. Victor Marquez et al

Cesar A. Noble, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

Cesar A. Noble, J.

The defendants, Victor Marquez and the City of Hartford, assert in the motion for summary judgment, presently before the court, that governmental and qualified immunity shield them from claims of negligence related to Marquez' operation of a police vehicle in an " emergency vehicle" mode during a response to a call of a dispute involving a possible firearm. The court grants summary judgment because the actions complained of reflect discretionary, rather than ministerial, acts and further because the plaintiff, Jasmin Kajic, has failed to plead an exception to governmental immunity.

Facts and Procedural History

The operative complaint is the second amended complaint (complaint) dated June 2, 2016. Kajic alleges in the first count of the complaint that on August 12, 2014, Marquez drove through the intersection of Franklin Avenue and South Street in Hartford, Connecticut, with his lights and sirens on. Kajic alleges that Marquez' negligence in operating his vehicle south bound on Franklin Avenue resulted in the vehicle striking an automobile operated by the co-defendant, Curtis McGhie, ¹ who was traveling west bound on South Street, and then colliding with Kajic's vehicle which was being operated easterly on South Street. Marquez' actions are alleged by Kajic to have been negligent and careless because he violated certain motor vehicle statutes and failed to exercise the due care required by the common law. The second count asserts liability, pursuant to General Statutes § 52-183, ² against the City on the basis that it was the owner of the vehicle, its agent, Marquez, was driving. The remaining counts are directed to the McPhie defendants. In response to the amended complaint the defendants filed separate answers and special defenses in which they both pleaded the doctrine of governmental immunity, pursuant to both common law and General Statutes § 52-557n, ³ as a bar to liability. Kajic filed replies to both special defenses, which consisted of general denials.

1 While the complaint and many of the pleadings, including counsel's appearance for Curtis McGhie, spell his last name as McPhie, the later pleadings refer to him and the other co-defendant, the owner of the vehicle he was driving, Agnes, as McGhie. The court uses the later spelling. Curtis McPhie and Agnes McPhie, will be jointly referred to as the McPhie defendants. The movants in the present motion, Marquez and the City of Hartford, will for convenience be referred to as the defendants.

2 General Statutes § 52-183 provides: " In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."

3 General Statutes § 52-557n(a) provides in pertinent part: " (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 . . . (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."

The defendants filed the present motion asserting that the negligence claim against Marquez fails as a matter of law as he is entitled to governmental immunity and consequently, the derivative liability claim for indemnification as to the City must also fail. The plaintiff and the McPhie defendants objected to the motion and the defendants filed a reply to each. The following undisputed material facts⁴ are relevant to this decision.

4 The facts are derived from the exhibits attached to the defendants' motion and the objections thereto, including the relevant police report, selected portions of Marquez' deposition transcript, an affidavit from Detective Omayra Martinez-Baidy, a video recording taken from a dashboard video camera system (ICOP) installed in Marquez' police vehicle, excerpts of Kajic's deposition transcript, a video obtained from the surveillance camera of a local convenience store, executed discovery responses of the City and the City's investigative report related to this accident. The court takes judicial notice of General Order No. 7-24 of the City's Policy and Procedures " Operation of Police Vehicles" attached to the plaintiff's objection to summary judgment. The court has reviewed all of the documents including the videos.

On August 12, 2014, Marquez was employed as a police officer with the City. While responding to a routine service call, on Franklin Avenue, he was called by dispatch to respond to a possible assault with a firearm. Marquez turned on the vehicle's emergency lights and headed south on Franklin Avenue. The speed of Marquez' vehicle, as evidenced by the ICOP video, reached 70 mph. As he traveled south, Marquez generally traveled with his lights on but his siren off. The latter was so " the bad guys don't know you're coming down the street." Marquez periodically turned his siren on as he approached intersections for which he had a red light. He followed this protocol as he approached South Street, in that he turned his sirens on three seconds before entering the intersection. At the moment he turned his siren on he was traveling 70 mph. As he approached the intersection of Franklin Avenue and South Street, he made eye contact with the plaintiff, Kajic, whose vehicle was stopped ahead of Marquez in the south bound lane of Franklin Avenue at its intersection with South Street after having come eastbound out of South Street. Marquez moved to his left in order to maneuver around Kajic. At this time, the co-defendant Curtis McPhie entered the intersection from South Street heading west, on Marquez' left, and was struck by Marquez who then rebounded into the Kajic vehicle.

Prior to having turned his siren on three seconds before impact, Marquez had traveled approximately 19 seconds with only his lights engaged. He last had both lights and siren engaged while clearing a previous intersection for which he had a red light. Thereafter, his speed increased from 28 mph to 70 mph in the moments before the impact with Kajic. During this time, he drove without his sirens, through at least three intersections for which there was either a green light or no stop light.

In the view of the defendants, Marquez is protected from liability by the application of the common-law doctrine of governmental immunity which provides municipal employees with qualified immunity for the performance of discretionary acts. Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The defendants observe that many law enforcement functions are typically discretionary. Soderlund v. Merrigan, 110 Conn.App. 389, 400, 955 A.2d 107 (2008). They assert that the operation of a police vehicle in an " emergency vehicle" mode, pursuant to General Statutes § 14-283, ⁵ has been found to be discretionary by recent Superior Court decisions. See e.g., Parker v. Stadalink, Superior Court, judicial district of Waterbury, Docket No. 13-6020769-S (2016 WL 2935567) (May 4, 2016, Brazzel-Massaro, J.) (62 Conn.L.Rptr. 281, ). Moreover, the qualified immunity for discretionary acts, as codified in § 52-557n and applicable to municipalities, operates to exonerate the City from liability.

5 General Statutes § 14-283 provides in pertinent 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.

The plaintiff, and the McPhie defendants, argue that the mandates of § 14-283, as it relates to emergency vehicles proceeding past a red light, and the City's Police Policy and Procedure, No. 7-24, " Operation of Police Vehicles, " governing the operation of a police vehicle in an emergency response, dictate conduct in a prescribed manner without the exercise of judgment or discretion, which is therefore ministerial in nature. Accordingly, in the view of the plaintiff and co-defendant, the defendant's actions are not cloaked by the doctrine of qualified immunity. Alternatively, they assert that if Marquez' actions were discretionary, an exception to the immunity is present because it was apparent to Marquez that his failure to act would be likely to subject an identifiable person, Kajic, to imminent harm. See e.g., Cotto v. Board of Education, 294 Conn. 265, 276, 984 A.2d 58 (2009). The defendants responded in reply briefs that the plaintiff is not entitled to apply the exception because it has not been pleaded.

Standard

" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).

" 'Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." Id., 379. " The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Fisk v. Redding, 164 Conn.App. 647, 652, 138 A.3d 410 (2016). " The ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court unless there are unresolved factual issues material to the applicability of the defense where the resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 160, 95 A.3d 480 (2014). Anytime a determination of whether official acts are ministerial or discretionary " turns on the interpretation of a municipal ordinance or policy, " a question of law is raised that should be decided by the court. Ventura v. East Haven, 170 Conn.App. 388, 403, 154 A.3d 1020, cert. granted, 325 Conn. 905, 156 A.3d 537 (2017).

Analysis

Governmental and Qualified Immunity

The analysis of the issues presented begins with the familiar, if not always easily applied, rules related to actions in negligence against municipalities and their employees. " 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. A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: first, where 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, second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws, and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted; internal quotations marks omitted.) Cotto v. Board of Education, supra, 294 Conn. 272-73.⁶

6 The only exception claimed by Kajic and the McPhie defendants is that of subjecting an identifiable person to imminent harm.

The initial question is thus whether Marquez' actions, in operating his police cruiser in an emergency response mode, implicates a ministerial or discretionary duty. " The hallmark of a discretionary act is that it requires the exercise of judgment. If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance. Ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion . . . In order to create a ministerial act, there must be a city charter, provision, ordinance, regulation, rule, policy, or any other directive compelling a municipal employee to act in any prescribed manner.

" It is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . 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. Discretionary act immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury." (Citations omitted; emphasis in the original; internal quotation marks omitted.) Texidor v. Thibedeau, 163 Conn.App. 847, 858-59, 137 A.3d 765, cert. denied, 321 Conn. 918, 136 A.3d 1276 (2016).

There is " considerable discretion inherent in law enforcement's response to an infinite array of situations implicating public safety on a daily basis." Coley v. Hartford, supra, 312 Conn. 165. " There is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions." (Internal quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn.App. 638, 656, 127 A.3d 257 (2015).

It bears emphasis that any decision requiring an evaluation of competing factors, variables, priorities, and the consequential selection of a course of action, necessarily involves the exercise of judgment, and therefore implicates discretion. Ministerial acts, conversely, are ones which require a person perform " in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or exercise of his or her own judgment on the propriety of the act being done." Grignano v. Milford, 106 Conn.App. 648, 654, 943 A.2d 507 (2008).

The briefs and arguments of the parties demonstrate their view of the centrality of § 14-283 to resolution of the liability issues in the present case. The defendants and the McPhie defendants frame the question as whether the operation of a police vehicle as " an emergency vehicle, " pursuant to that statute, renders a police officer's actions as ministerial or discretionary. The argument advanced by the plaintiff in opposition to summary judgment peripherally addresses this framework but more clearly asserts that a material question of fact exists. This is so because, in his view, the speed of Marquez' vehicle, the traffic conditions present, the red light ahead and Victor McPhie's objective presence in the intersection raises the question whether Marquez' last second use of his siren is consistent with characterizing his cruiser as an emergency vehicle. In the view of the plaintiff: " Marquez not only failed to act in a manner prescribed by state statute and city policy, but also abused any discretion to which he may have been entitled by not acting at all."

An examination of § 14-283 reveals that the parties misapprehend the manner in which it implicates governmental immunity. The statute pertinently defines an " emergency vehicle" as any local police vehicle operated by a police officer answering an emergency call. General Statutes § 14-283(a).⁷ It then exempts the operator of an emergency vehicle from compliance with certain motor vehicle rules of the road. The two most relevant exemptions permit an emergency vehicle to " proceed past any red light or stop signal or stop sign and exceeding the posted speed limits or other speed limits imposed by or pursuant to section 14-218a⁸ or 14-219." ⁹ Both of these exemptions include important caveats. An " emergency vehicle" may drive through red lights " but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle" and may exceed the posted speed limits or other speed limits " as long as such operator does not endanger life or property by so doing ." (Emphasis added.) General Statutes § 14-283(b)(1)(B) & (C). The statute specifically provides that it does not " relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property ." (Emphasis added.) General Statutes § 14-283(d). The exemptions granted by the statute apply only when " an emergency vehicle is making use of an audible warning signal device, including but not limited to a siren . . . and visible flashing or revolving lights." General Statutes § 14-283(c).

7 See footnote 5 of this opinion.

8 General Statutes § 14-218a provides in relevant part: " (a) No person shall operate a motor vehicle upon any public highway of the state, or road of any specially chartered municipal association . . . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions . . . Any speed in excess of [posted speed] limits, other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable . . ." (Emphasis added.) General Statutes § 14-218a.

9 General Statutes § 14-219 pertinently provides: " (a) No person shall operate any motor vehicle (1) upon any highway [or] road . . . at such a rate of speed as to endanger the life of any occupant of such motor vehicle, but not the life of any other person than such an occupant; (2) at a rate of speed greater than fifty-five miles per hour upon any highway other than a highway specified in subsection (b) of section 14-218a for which a speed limit has been established in accordance with the provisions of said subsection." General Statutes § 14-219. A " highway" is defined as any state or other public highway, road, street, avenue . . . under the control of the state or any political subdivision of the state . . . opened to public travel or other use." General Statutes § 14-1(41).

To the extent that § 14-283 affects governmental immunity it does so only indirectly by relieving the operator of an " emergency vehicle" from the application of certain statutory obligations, only some of which completely exclude the exercise of judgment in the manner of compliance. For example, General Statutes § 14-299(b)(3), ¹⁰ imposes a mandatory, non-discretionary, obligation for operators of motor vehicles to stop at a red light and wait until it turns green before proceeding straight. This statutory obligation falls clearly within the definition of a ministerial act because it imposes " a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Texidor v. Thibedeau, supra, 163 Conn.App. 857. This is so because § 14-299(b)(3) admits of no discretion or judgment in the satisfaction of the duty imposed to stop and not proceed through a red light.¹¹ By contrast, § 14-283(b)(1)(B), exempts the operator of an " emergency vehicle" from " a particular response" (stopping) to a " specific condition" (a red traffic light) imposed by § 14-299(b)(3), contingent on it being done " only after slowing down or stopping to the extent necessary for the safe operation of such vehicle." The " safe operation" of a vehicle is a general non-specific term that involves judgment and discretion.

10 General Statutes § 14-299(b)(3) provides in relevant part: " Vehicular traffic facing a steady red signal alone shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and remain standing until the next indication is shown." General Statutes § 14-299(b)(3).

11 By contrast another portion of § 14-299(b)(1)(3) permits a vehicle to make a right turn on red after " cautiously enter[ing] the intersection." The adverb " cautiously, " which imparts the need to avoid danger or risk, requires the exercise of judgment in the manner in which the intersection is entered.

The other pertinent sub-section of § 14-283 permits the operator of an " emergency vehicle" to " 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." General Statutes § 14-283(b)(1)(C). Again, the statute exempts compliance with statutory rules of the road but only upon the exercise of due care.

" The effect of the statute [§ 14-283] is merely to displace the conclusive presumption of negligence that ordinarily arises from the violation of traffic rules. The statute does not relieve operators of emergency vehicles from their general duty to exercise due care for the safety of others." Tetro v. Stratford, 189 Conn. 601, 609, 458 A.2d 5 (1983).¹² The conclusive presumption of negligence arising from a traffic rules violation referred to in Tetro is of course the predicate for negligence per se. " [T]he violation of a statute designed for the protection of the public is in itself negligence irrespective of whether the conduct which constitutes the violation is that of a reasonably prudent person." Jacobs v. Swift & Co., 141 Conn. 276, 279, 105 A.2d 658 (1954). Although, " § 14-283 may shield an emergency vehicle operator from liability for statutory negligence, it is not an absolute defense to negligence." Nuterangelo v. Scott, Superior Court, judicial district of New Haven, Docket No. 12-6030853-S (2016 WL 1315398, at *5) (March 9, 2016, Burke, J.). The statute merely exempts " emergency vehicle" operators from the application of principles of negligence per se while retaining the common-law duty to exercise due care.

12 The issue of governmental immunity was not before the court in Tetro v. Stratford, supra, 189 Conn. 601.

This court agrees with the well-reasoned analysis of the court in Paternoster v. Paszkowski, Superior Court, judicial district of Fairfield, Docket No. 14-6042098-S (2015 WL 5809623, at *6) (September 1, 2015, Kamp, J.), to the effect that § 14-283 does " not create a separate cause of action which would serve as an exception to governmental immunity." Neither does it impose ministerial duties exposing municipal actors to liability. " [T]he various duties to drive safely stated throughout § 14-283 are not ministerial because they are not defined to be performed in a prescribed manner." Parker v. Stadalink, Superior Court, judicial district of Waterbury, Docket No. 13-6020769-S (2016 WL 2935567) (May 4, 2016, Brazzel-Massaro, J.) (62 Conn.L.Rptr. 281, ).

There exists a body of Superior Court decisions, collected in Paternoster v. Paszkowski, supra, 2015 WL 5809623, at *5, and Williams v. New London, Superior Court, judicial district of New London, Docket No. 12-6012328-S (2014 WL 1814206) (April 7, 2014, Devine, J.) (58 Conn.L.Rptr. 86, ), which generally address whether the manner in which a motor vehicle is operated by a governmental employee is ministerial or discretionary. Many have concluded, as did the Williams court, that " [f]ollowing the rules of road and exercising due care to the public is not optional for municipal employees . . ." Williams v. New London, supra,, 2014 WL 1814206, at *5. While that may be so the manner in which due care is exercised is itself a matter of judgment and discretion. This court is guided by the reasoning of Judge Kamp in Paternoster and the court in Dudley v. Hartford, Superior Court, judicial district of Hartford, Docket No. 09-5033767-S (2013 WL 4056715) (July 24, 2013, Scholl, J.). The critical inquiry must be into the nature of the duties claimed to have been violated. " [T]he proper course [in a ministerial/discretionary analysis] is to examine the statutory and regulatory violations alleged . . ." Paternoster v. Paszkowski, supra, 2015 WL 5809623, at *5.

The focus of this inquiry is informed by two recent decisions Coley v. Hartford, supra, 312 Conn. 150 and Faulkner v. Daddona, 142 Conn.App. 113, 63 A.3d 993 (2013). In Faulkner, the court held that a police officer's decision whether to enforce a traffic statute when a tow truck was at the scene of an automobile accident was a matter of discretion entitling the officer to governmental immunity for claims based on, inter alia, violation of police department protocols and procedures to secure an accident scene. Faulkner v. Daddona, supra, 142 Conn.App. 123-24. The officer was entitled to immunity because the protocols:

do not impose mandatory duties upon police officers to take particular action in all circumstances. 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., 123. The contingent nature of the exercise of " reasonable" care played a pivotal role in the Coley court's rejection of the argument that the word " reasonable" when used as an adjective imposes " an objective standard of reasonableness that creates an issue for the trier of fact." Coley v. Hartford, supra, 312 Conn. 163. The court in Coley reviewed the claim that a police officer's duty under the department's police response procedure for domestic violence complaints was ministerial rather than discretionary. The relevant response procedure provided that an officer " 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." Id. The court held that it " 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' . . . The plaintiff's strained interpretation also disregards the discretion inherent in the determination of what amounts to a " reasonable time" under the police response procedures." (Internal quotation marks omitted.) Id., 165-66. The duration of a " reasonable time" is a " variable contingent." Id., 167 n.12. While the Procedure expressly invoked the officer's judgment the court's rejection of reasonableness as an objective standard is significant.

This court concludes that any duties or acts involving a judgment as to what is " reasonable care, " ¹³ under variable circumstances, is discretionary in nature. Accordingly, while the prescription to stop at, and not proceed through, a red light, is a ministerial rule of the road, see § 14-299(a), the admonition to proceed cautiously into the intersection in anticipation of turning right on red, Id., involves a judgment, discretionary in nature, balancing variables including but not limited to lines of sight, appreciation of the speed of oncoming cars, if any, the presence of pedestrians, whether adult or children, etc.

13 " Due care, reasonable care, and ordinary care are often used as convertible terms." (Internal quotation marks omitted.) Heisinger v. Cleary, 323 Conn. 765, 778, 150 A.3d 1136 (2016).

Similarly, the duty to use reasonable care imposed by our laws of negligence is a quintessentially discretionary duty because it involves the exercise of judgment in evaluating the circumstances requiring action or inaction. The " reasonable care standard . . . is the care that a reasonably prudent person would use under the circumstances." (Internal quotation marks omitted.) Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 776, 83 A.3d 576 (2014). " Reasonable care is care proportionate to the dangers existing in light of the surrounding circumstances." Galligan v. Blais, 170 Conn. 73, 77, 364 A.2d 164 (1976). " [T]he amount of care required to constitute reasonable care varies with the surrounding circumstances and must be proportioned to the dangers reasonably to be anticipated." Hunt v. Clifford, 152 Conn. 540, 545, 209 A.2d 182 (1965).

The court now turns to a review of the undisputed material facts through the filter of the allegations of the complaint which control the claims asserted by the plaintiff The only allegation which implicates a ministerial act is ¶ 11.c. which alleges that Marquez " operated said motor vehicle which was directed to stop by a traffic control signal, in violation of § 14-299." While the duty to stop imposed by § 14-299 is indeed ministerial the undisputed evidence is that Marquez was making use of his lights and siren before he entered the intersection, if only for the immediate prior three seconds, thus triggering the § 14-283 exemption from the application of the duty to stop at a red light. The obligation to slow down or stop " to the extent necessary for the safe operation" of the emergency vehicle is one requiring the exercise of judgment as to what constitutes the " safe operation" of the vehicle and is thus discretionary. For identical reasons, the allegation that Marquez failed to bring his emergency vehicle to a stop when proceeding through an intersection without first determining that the movement could be made with reasonable safety and without interfering with other traffic does not implicate a ministerial duty. The remaining allegations of negligence involve a failure to conform his actions to standards of reasonable care.¹⁴ Accordingly, they constitute discretionary acts for which immunity is present.

14 The complaint alleges that Marquez operated his vehicle " at a rate of speed greater than was reasonable, having regard to the width, traffic and use of the highway . . . in violation of § 14-218a, " ¶ 11.a; he failed to keep his motor vehicle under proper and reasonable control, ¶ 11.d; failed to keep a proper and reasonable lookout for other motor vehicles, ¶ 11.e; failed to apply brakes in time to avoid a collision although by a proper and reasonable exercise of his faculties he could and should have done so, ¶ 11.f; and he failed to turn his vehicle to the left or right although by a proper and reasonable exercise of his faculties he could and should have done so. ¶ 11.g.

The plaintiff argues in his objection that the court should consider as ministerial the obligations imposed by the City of Hartford, Policy and Procedure, General Order No. 7-24 which govern the operation of a City police vehicle in an emergency mode. While it is true that the provision of a city policy may impose a ministerial duty, see Texidor v. Thibedeau, supra, 163 Conn.App. 857; this issue, however, is not properly before the court because the plaintiff's complaint does not allege violations of the City Policy and Procedure. " The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). The court thus declines to address this claim. Accordingly, the court holds that the delicts complained of are discretionary in nature and, unless subject to exception, are discretionary in nature qualifying for immunity.

The court agrees with the defendants that the City is equally entitled to immunity. The theory of liability alleged against the City is via the common-law vicarious liability of a principal for the tortious conduct of its agent and references specifically § 52-183.¹⁵ Absent is any allegation of indemnification, pursuant to General Statutes § 7-465, ¹⁶ requiring municipal indemnification for an employee's liability for negligence, or liability pursuant to § 52-557n, which imposes municipal liability for the ministerial, but not discretionary, negligent torts of its employees. Neither did the plaintiff refer to either statute in his memorandum of law in opposition to the summary judgment motion of Marquez and the City. While the sole reliance on the common law coupled with the failure to advance a statute as a basis for piercing governmental immunity in a suit against a municipality may bar the claim; Williams v. New Haven, 243 Conn. 763, 766, 707 A.2d 1251 (1998); courts will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute. Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). In the present case, it is apparent that the defendants were sufficiently aware of the applicable statute because they addressed § 7-465 in their motion for summary judgment. As the defendants observe, however, a claim for indemnification against a municipality pursuant to this statute is dependent upon establishing liability against a municipal employee. Bonington v. Westport, 297 Conn. 297, 316, 999 A.2d 700 (2010). Thus, unless the plaintiff establishes the existence of an exception to the governmental immunity, applicable to discretionary acts afforded to Marquez, the action against the City must also fail.

15 See footnote 2 of this opinion.

16 General Statutes § 7-465 provides in pertinent part: " (a) Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment." General Statutes § 7-465.

Identifiable Person/Imminent Harm

The plaintiff and the McPhie defendants argue that if the actions of Marquez were discretionary in nature, liability still exists because of the identifiable imminent harm exception to discretionary act immunity. " A municipal employee's immunity for the performance of discretionary governmental acts is . . . qualified by three recognized exceptions: first, where 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, second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws, and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted, internal quotations marks omitted.) Cotto v. Board of Education, supra, 294 Conn. 272-73. The only exception advanced by the plaintiff and the McPhie defendants, in their opposition to summary judgment, is the first, that is, that the circumstances of the present case made it apparent to Marquez that his failure to act would subject Kajic, an identifiable person, to imminent harm.

The defendants object to the plaintiff's assertion of this exception in their reply to the plaintiff's objection to the motion for summary judgment on the basis that it has not been pleaded as a reply to their special defense of governmental immunity. In fact, Kajic replied to the special defenses asserted by Marquez with only a general denial of all of the special defenses including the defense of governmental immunity. Kajic has not moved to amend his reply to assert the identifiable victim imminent harm exception to governmental immunity even after receiving the defendants' objection. The complaint does not allege the exception.

The defendants correctly assert that the Appellate Court's decision in Haynes v. Middletown, 122 Conn.App. 72, 997 A.2d 636 (2010), rev'd on other grounds, 306 Conn. 471, 50 A.3d 880 (2012), provides binding authority for the proposition that a general denial to a defendant's specially pleaded defense of governmental immunity is insufficient to place the identifiable victim, imminent harm issue before the trier of fact. Id., 80. The defendant's timely objection to the procedural deficiency prevents the court from overlooking this violation of the rules of pleading and practice. See e.g., Mills v. Solution, LLC, 138 Conn.App. 40, 54 n.13, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012) (trial courts have the discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as opposing party has not raised timely objection). For this reason, the court does not consider the identifiable victim, imminent harm exception to governmental immunity raised by the plaintiff in his objection to summary judgment.

Conclusion

The court therefore grants the joint motion for summary judgment of Marquez and the City because, for the foregoing reasons, the acts complained of by the plaintiff are discretionary in nature entitling them to governmental immunity and the plaintiff has not, by appropriate pleading, placed in issue the identifiable victim, imminent harm exception to governmental immunity.

(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 . . . (c) The exemptions granted in this section shall apply only when an emergency vehicle is making use of an audible warning signal device, including but not limited to a siren, whistle or bell which meets the requirements of subsection (f) of Section 14-80, and visible flashing or revolving lights which meet the requirements of Sections 14-96p and 14-96q, and to any state or local police vehicle properly and lawfully making use of an audible warning signal device only. (d) The provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property."