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The
'initiation' of a Vehicular Pursuit is a Discretionary Duty as is the
'continuation' of the Pursuit a discretionary duty. A peace officer is required
to continually 'assess' and 're-evaluate' the need to pursue the reckless
vehicular ( CGS 14-222
& CGS
14-223b) violator against the 'due care' standard of harm.
The
choice to pursue a violator driving with 'criminal negligence'
occurs in a context of chance uncertainty. Whatever did happen during the
police pursuit, something else could have happened with retrospective
predictability. Understanding how to act with incomplete information is the
police task during a high speed pursuit. The duty of care standard requires
an officer to know with certainty what is 'wrong' as well as what is
'right', knowing that the 'likely' is as likely not to be as
it is likely to be.
Both
reckless
and criminal negligence are defined as follows:
(CGS 53a-3 (13) A person acts
"recklessly" with respect to a result or to a circumstance
described by a statute defining an offense when he is aware of and
consciously disregards a substantial and unjustifiable risk that such
result will occur or that such circumstance exists. The risk must be of
such nature and degree that disregarding it constitutes a gross deviation
from the standard of conduct that a reasonable person would observe in the
situation;
CGS 53a-3 (14) A person acts with "criminal negligence" with
respect to a result or to a circumstance described by a statute defining an
offense when he fails to perceive a substantial and unjustifiable risk that
such result will occur or that such circumstance exists. The risk must be
of such nature and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that a reasonable person would
observe in the situation;
The
below case excerpts are presented to assist Connecticut Police Officers to
engage a Vehicular Pursuit in conformity with Connecticut
General Statute 14-283 and C.G.S.
14-283a.
Connecticut
also has a Uniform
Model Pursuit Policy. The case language in State
of Connecticut v Browne is also instructive...". A
reasonable person could foresee that during a high speed chase, a police
officer, another motorist on the
highway,
an innocent bystander or the defendant himself
could be
injured....".
‘‘[T]he
existence of a duty of care is an essential element of negligence. . . . A
duty to use care may arise from a contract, from a statute, or from circumstances under which a
reasonable person, knowing what he knew or should have known, would
anticipate that harm of the general nature of that suffered was likely to
result from his act or failure to act.’’ Pelletier v.
Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388
(2008). ‘‘Negligence per se operates to engraft a particular
legislative standard onto the general standard of care imposed by
traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct.
To establish
negligence, the jury in a negligence per se case need not decide whether the
defendant acted as an ordinarily prudent person would have acted under the
circumstances. [It] merely decide[s] whether the relevant statute or
regulation has been violated. If it has, the defendant was
negligent as a matter of law.’’ Considine v. Waterbury,
279 Conn. 830, 860–61 n.16, 905 A.2d 70 (2006).
Generally,
our courts have
treated a statutory violation as negligence per se ‘‘in situations in which
the statutes or city ordinances at issue have been enacted for the
purpose
of ensuring the health and safety of members of the general public.’’
Pickering v. Aspen Dental Management, Inc., 100 Conn. App.
793, 800, 919 A.2d 520 (2007). ‘‘The majority of cases concluding that a
statutory provision implicates the doctrine of negligence per se have
arisen in the context of motor vehicle regulation. See, e.g., Velardi
v. Selwitz, 165 Conn. 635, 639, 345 A.2d 527 (1974); Busko v.
DeFilippo, 162 Conn. 462, 466, 294 A.2d 510 (1972); Bailey v.
Bruneau’s Truck Service, Inc., 149 Conn. 46, 54, 175 A.2d 372
(1961). Such a history,
however, should not be read to suggest that the negligence per se doctrine
is relevant only in the context of statutes pertaining to motor vehicles.’’
Gore v. People’s Savings Bank, 235 Conn. 360, 378, 665 A.2d
1341 (1995).
The
two-pronged test applied to establish negligence
per se is: (1) that the plaintiff was within the class of persons protected
by the statute; and (2) that the injury suffered is of the
type that the statute was intended to prevent. Id.,
368–69. ‘‘In deciding whether the legislature intended to provide for such
statutory liability, we look to the language of the statute and to the
legislative history and purposes underlying the provision’s enactment.’’
Id., 380
Under
Connecticut law, the violation of a valid administrative regulation constitutes
negligence per se. See, e.g., Citerella v. United
Illuminating Co., 158 Conn. 600, 608, 266 A.2d 382 (1969); Hyde v.
Connecticut Co., 122 Conn. 236, 240, 188 A. 266 (1936); Heritage
Village MasterAssn., Inc. v. Heritage Village Water Co., 30
Conn. App.693, 705, 622 A.2d 578 (1993).
‘‘To prove negligence per
se, a plaintiff must show that the
defendant breached a duty owed to her and that the breach
proximately caused the plaintiff’s injury.’’ Pickering
v. Aspen Dental Management, Inc., supra, 100 Conn. App. 802.
‘‘[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.’’
Burton v. Stamford, 115 Conn. App. 47, 75 n.18, 971 A.2d 739,
cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).
Editor's
Comment:
The question needing clarification is: Is the Pursuit 'Negligence
Per Se'?
Rear-view mirror speculation of the post incident pursuit
judgments result in hindsight 'possibilities' known as 'should of, could
of, and if only which lie outside of the context of the pursuit itself.
This is an example of 'learning backwards'. Suffice it to say that any
pursuit can have an infinity of possible causes and possible results. Given
that pursuit judgment lies between the 'possible' and the 'reasonably
likely', I provide the following guidance written by Pierre-Daniel Huet in
1690... "Don't cross the street blindfolded, but do cross the
street".
The reader is encouraged to provide this information to their
agency's Legal Advisor for clarification and understanding as it relates to
their respective Constitutional and Statutory law as filtered through their
respective agency Use of Force Policy.
DISCLAIMER: This message is not intended to be legal
advice, and it should not be construed to be legal advice. Any specific fact patterns as they relate
to State laws and/or Regulations should be directed to an appropriate
attorney for legal clarification and opinion. This mesage is not intended as the giving
or tendering to another person for consideration, direct or indirect, of
any advice or counsel pertaining to a law question or a court action or
judicial proceeding brought or about to be brought; or the undertaking or
acting as a representative or on behalf of another person to commence,
settle, compromise, adjust, or dispose of any civil or criminal case or
cause of action.
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