St. Pierre v. Plainfield ( 2017 )

 DAVID L. ST. PIERRE v. TOWN
OF PLAINFIELD ET AL.
(SC 19871)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,
Robinson and D’Auria, Js.
Syllabus
The plaintiff sought to recover damages from the defendant town for per-
sonal injuries he sustained after falling on wet steps located at the
defendant’s municipal pool. The plaintiff fell after participating in an
aqua therapy session conducted by the defendant E Co., which had paid
the town a nominal hourly fee to reserve the pool two or three times
per week. The town provided a lifeguard during the aqua therapy ses-
sions and was responsible for the cleaning and general maintenance of
the pool. E Co. did not have a formal contract with the town to reserve
the pool, but used a one page form letter that provided basic information
regarding the reservation. The town filed a motion for summary judg-
ment, claiming that municipal immunity precluded the plaintiff’s action
because the alleged acts or omissions involved the town’s judgment or
discretion, the operation of the pool was a government function, and
no exception to municipal discretionary act immunity had been shown.
The plaintiff countered that municipal immunity had been abrogated
either by the exception under the statute (§ 52-577n [a] [1] [B]) providing
that a municipality shall be liable for damages caused by its negligence
in the performance of a proprietary function from which it derives a
special corporate profit or pecuniary benefit, or by the identifiable per-
son, imminent harm exception. The trial court granted the town’s motion
for summary judgment on the ground that the town was immune from
liability, concluding that the operation of the pool was a government
function and that the town had operated the pool at a financial loss.
The court also found that the identifiable person, imminent harm excep-
tion did not apply because the plaintiff was voluntarily present at the
aqua therapy program, and the water on and around the pool surfaces
did not qualify as an imminent harm. The plaintiff appealed from the
judgment in favor of the town, claiming that the trial court incorrectly
concluded that the town was immune from liability because it had
derived a special corporate profit or pecuniary benefit from renting the
pool to E Co., a for-profit business, for a fee, or because he constituted
an identifiable person subject to imminent harm. Held:
1. The town’s operation of its municipal pool constituted a governmental
function from which it did not derive a special corporate or pecuniary
benefit so as to abrogate its discretionary act immunity: the town did
not derive a special corporate profit or pecuniary benefit by renting the
pool to E Co. for its private use, as the aqua therapy program fit within
the general public purposes of a municipal pool because it promoted
health and exercise, the fee that the town charged E Co. for use of the
pool was nominal, the total fees collected from all parties renting the
pool did not cover the annual costs of maintaining the pool, the pool
was rented without a formal lease or contract, and the town continued
to provide a lifeguard and maintain responsibility for the general mainte-
nance of the pool; furthermore, the plaintiff could not prevail on his
claim that this court should determine the profitability of the pool by
evaluating the fees paid by only E Co. with respect to the period of
time that E Co. had reserved the pool, as that argument was not raised
before the trial court, and this court has never used that method to
determine whether a municipality derived a profit; moreover, extending
the abrogation of municipal immunity to situations, such as the one
here, in which a town allows the private use of its facilities for a nominal
fee, could expose municipalities to great liability and deter them from
continuing to allow their facilities to be used by outside parties.
2. The identifiable person, imminent harm exception did not abrogate the
town’s municipal immunity, as the plaintiff was not an identifiable person
or a member of an identifiable class of persons for purposes of that
exception; the fact that the plaintiff was not compelled to attend the
aqua therapy sessions provided by E Co., but had voluntarily decided
to use E Co.’s services, precluded this court from concluding that he
was a person or in a group of persons identifiable to the lifeguard on
duty as a potential victim or victims of an imminent harm.
Argued May 1—officially released August 8, 2017
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of defendants’ alleged negligence,
brought to the Superior Court in the judicial district
of Windham, where the court, Boland, J., granted the
named defendant’s motion to strike and granted the
named defendant’s motion for summary judgment and
rendered judgment thereon; thereafter, the court,
Calmar, J., granted the named defendant’s motion for
judgment as to the stricken count of the complaint and
rendered judgment thereon, from which the plaintiff
appealed. Affirmed.
Mary M. Puhlick, for the appellant (plaintiff).
Thomas R. Gerarde, with whom, on the brief, was
Katherine E. Rule, for the appellee (named defendant).
Opinion
ROGERS, C. J. The issue raised in this appeal is
whether municipal immunity is abrogated by either the
proprietary function exception of General Statutes § 52-
557n1 or the identifiable person, imminent harm excep-
tion. Specifically, we must decide whether there is
municipal immunity when a town charges a nominal
fee to a private group for reserved use of a public
pool and an individual group member slips and falls on
accumulated water in the vicinity of that pool. The
plaintiff, David L. St. Pierre, appeals from the judgment
rendered in favor of the named defendant, the town of
Plainfield,2 after concluding that no exception to the
defendant’s general immunity applied.3 The plaintiff
claims that the trial court improperly concluded that
the defendant was immune from liability because (1)
the defendant derived a special corporate profit or pecu-
niary benefit through its operation of the pool, or (2)
the plaintiff constituted an identifiable person subject
to imminent harm. We disagree with each of these
claims and, accordingly, affirm the judgment of the
trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. The plaintiff filed this
negligence action against the defendant and Eastern
Connecticut Rehabilitation Center, Inc. (Eastern); see
footnote 2 of this opinion; to recover for injuries he
allegedly sustained in an August 26, 2011 fall on wet
steps after participating in an aqua therapy session.
This session was conducted by Eastern in a pool owned
by the defendant, which is located in the defendant’s
town hall building. The plaintiff alleged that he slipped
and fell on the steps, which were covered with approxi-
mately one-quarter inch of water, on his way to the
men’s locker room. None of the defendant’s employees
witnessed the incident, nor had there been any previous
complaints about the condition of the steps.
Since 1994, Eastern, through its manager Penny Allyn,
had reserved the pool two to three times per week for
one hour sessions to provide aqua therapy services to
its rehabilitation patients. Since 2006, Eastern has paid
the defendant $50 per reserved hour for the exclusive
use of the pool during the sessions.4 Participation in
the aqua therapy program ranged from two to seven
individuals per session. During the reserved times, the
defendant provided a lifeguard and remained responsi-
ble for the cleaning and general maintenance of the
pool. There was no formal contract between the defen-
dant and Eastern. Rather, a one page form letter gener-
ally used to make reservations provides the rules of
pool use, in addition to listing the usage fee, the time
of the reservation, and the party making the reservation.
Eastern is not the only program that utilizes the pool.
Myra Ambrogi, the defendant’s recreation director,
stated in her affidavit that the pool is generally open
to the public as well as for organizations that pay the
usage fee. Activities held at the pool include swim les-
sons, open swim periods, and exercise classes.
In discussing the pool’s financials, Ambrogi stated in
her affidavit that the costs of operating the pool for
the fiscal year from July 1, 2011 to July 1, 2012, were
$81,315.42 and that total revenue of $75,605.96 was
taken in during the same time frame, including the fees
from Eastern. Thus, the pool operated at a loss of
$5709.46. Ambrogi’s figures included operational costs
such as the lifeguards’ salaries, instructor fees, equip-
ment, pool chemicals and cleaning supplies, but did not
include electricity, heat, water, maintenance employ-
ees’ salaries, or consumable supplies.
The plaintiff filed this action on August 19, 2013,
alleging that the defendant had been negligent in various
ways and that the plaintiff had been injured as a result.
On January 30, 2015, the defendant filed a motion for
summary judgment, claiming that municipal immunity
applied to preclude the plaintiff’s action because any
acts or omissions alleged by the plaintiff involved judg-
ment or discretion, the operation of the pool was a
governmental function, and no exception to discretion-
ary act immunity had been shown. The plaintiff
objected, arguing that municipal immunity did not
attach because the defendant’s operation of the pool
constituted a proprietary function and, in the alterna-
tive, that the identifiable person, imminent harm excep-
tion to immunity applied. In an August, 2015
memorandum of decision, the trial court agreed with
the defendant that it was immune from liability. As
to the proprietary function exception, the trial court
concluded that the defendant’s operation of a municipal
pool was a governmental function and did not create
a profit for the defendant. In regard to the identifiable
person, imminent harm exception, the trial court con-
cluded that the plaintiff was not an identifiable person
given his voluntary presence at the aqua therapy pro-
gram and that the water on and around the pool surfaces
did not qualify as an imminent harm. This appeal
followed.5
On appeal, the plaintiff does not contest that the
allegedly negligent acts of the defendant are discretion-
ary in nature and, therefore, are generally entitled to
immunity. See Haynes v. Middletown, 314 Conn. 303,
312, 101 A.3d 249 (2014). Consequently, we confine our
analysis to whether municipal immunity is abrogated
by an exception.
We begin with the standard of review and applicable
law. ‘‘The standard of review of a trial court’s decision
granting summary judgment is well established. Prac-
tice Book § 17-49 provides that summary judgment shall
be rendered forthwith if the 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. In deciding
a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party moving for summary
judgment has the burden of showing the absence of
any genuine issue of material fact and that the party
is, therefore, entitled to judgment as a matter of law.
. . . Our review of the trial court’s decision to grant
the defendant’s motion for summary judgment is ple-
nary. . . . On appeal, we must determine whether the
legal conclusions reached by the trial court are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision of the
trial court.’’ (Internal quotation marks omitted.) Cefara-
tti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016).
Specifically, whether municipal immunity applies is a
matter of law for the court to decide when there are
no unresolved factual questions material to the issue.
Edgerton v. Clinton, 311 Conn. 217, 227, 86 A.3d 437(2014).
I
The plaintiff claims first that the proprietary function
exception applies to abrogate the defendant’s immu-
nity. The proprietary function exception is codified in
§ 52-557n (a) (1) (B), which provides in relevant part:
‘‘Except as otherwise provided by law, a political subdi-
vision of the state shall be liable for damages to person
or property caused by . . . negligence in the perfor-
mance of functions from which the political subdivision
derives a special corporate profit or pecuniary benefit
. . . .’’ (Emphasis added.) The plaintiff contends that
the defendant derived a special corporate profit or pecu-
niary benefit from the operation of its municipal pool
because it rented that pool to Eastern, a for-profit entity,
for a fee. We disagree.
In Considine v. Waterbury, 279 Conn. 830, 837–48,
905 A.2d 70 (2006), we undertook a comprehensive
analysis of § 52-557n (a) (1) (B). We concluded that the
statutory provision ‘‘codifies the common-law rule that
municipalities are liable for their negligent acts commit-
ted in their proprietary capacity,’’ as opposed to in their
governmental one.6 Id., 844. Liability for proprietary
acts means that a municipality ‘‘is liable to the same
extent as in the case of private corporations or individu-
als . . . .’’7 (Internal quotation marks omitted.) Id., 843.
To determine whether the defendant is subject to such
liability in the present case, we analyze whether the
defendant derives a special corporate profit or pecuni-
ary benefit from the function of operating its pool, in
other words, whether that function is proprietary.8
We previously have concluded that, ‘‘[i]f a municipal-
ity is acting only as the ‘agent or representative of the
state in carrying out its public purposes’; Winchester
v. Cox, [129 Conn. 106, 109, 26 A.2d 592 (1942)]; then
it clearly is not deriving a special corporate benefit or
pecuniary profit. Two classes of activities fall within
the broader category of acting as the agent of the state:
‘[1] those imposed by the [s]tate for the benefit of the
general public, and [2] those which arise out of legisla-
tion imposed in pursuance of a general policy, mani-
fested by legislation affecting similar corporations, for
the particular advantage of the inhabitants of the munic-
ipality, and only through this, and indirectly, for the
benefit of the people at large. . . . For example, the
maintenance of the public peace or prevention of dis-
ease would fall within the first class; Keefe v. Union,
76 Conn. 160, 166, [56 A. 571 (1903)]; while the mainte-
nance of a park system would fall within the second
class.’ ’’ Considine v. Waterbury, supra, 279 Conn. 845–
46. ‘‘[T]he second class of activities encompasses func-
tions that appear to be for the sole benefit of a
municipality’s inhabitants, but nevertheless provide
indirect benefits to the general public because the activ-
ities were meant to improve the general health, welfare
or education of the municipality’s inhabitants.’’ Id., 846.
Historically, we have concluded that operating a
municipal pool constitutes a governmental function.
Hannon v. Waterbury, 106 Conn. 13, 17–18, 136 A. 876(1927). In Hannon, this court recognized that munici-
palities operating swimming pools are performing a
governmental function, because the municipality is
effecting the ‘‘education of the people of the city in
teaching them to swim and thus guarding their lives
against the accident of drowning, promoting a most
useful and beneficial form of exercise, and teaching
cleanliness of habits of living and thus preserving their
health.’’ Id., 18.
The General Statutes support Hannon’s holding. Gen-
eral Statutes § 7-130b authorizes municipalities to cre-
ate recreational authorities or departments. Such
bodies are ‘‘deemed to be . . . instrumental[ities] exer-
cising public and essential government functions to pro-
vide for the public health and welfare . . . .’’9 General
Statutes § 7-130d. Municipal recreational authorities or
departments are statutorily empowered to construct
and operate a variety of projects; see General Statutes
§ 7-130d (c); including, specifically, ‘‘swimming pools.’’
General Statutes § 7-130a (d).
The plaintiff claims that the nature of the use of the
pool in this case is distinguishable from that at issue
in Hannon. Specifically, he argues that the defendant
here is renting the pool to Eastern for use in its business,
but the defendant city in Hannon served children and
individuals via swim lessons. In the plaintiff’s view,
rental of municipal property to a private party is a
proprietary action. To determine whether renting a
municipal pool to a business for private use constitutes
a change in the nature of the activity sufficient to abro-
gate immunity, we must review our case law on the
charging of fees for use of a municipal property.
We have concluded previously that a ‘‘municipality
may . . . charge a nominal fee for participation in a
governmental activity and it will not lose its governmen-
tal nature as long as the fee is insufficient to meet the
activity’s expenses.’’ Considine v. Waterbury, supra,279 Conn. 847. In Hannon, for example, we concluded
that charging nominal fees for swimming lessons10 did
not alter the governmental nature of running a munici-
pal swimming pool. Hannon v. Waterbury, supra, 106
Conn. 18–19. We reasoned that the ‘‘money taken in did
not pay the entire expense of operating the pool,’’ in
particular, by failing to ‘‘pay for the large amount of
electricity used in operating the motor, drying the hair
and lighting, coal, water, chemicals used in the water,
[as well as] the rental value or maintenance of the part
of the building used and the equipment . . . .’’ Id., 15.
Because the pool actually was operated at a loss, the
fees charged did not constitute a ‘‘profit,’’ but, rather,
‘‘the charge was a mere incident of the public service
rendered in the performance of a governmental duty.’’
Id., 18; see also Carta v. Norwalk, 108 Conn. 697, 702,
145 A. 158 (1929) (to qualify as proprietary function
‘‘operation must contemplate and involve revenue of
such amount and nature as to signify a profit resulting
thereform, as distinguished from the imposition of such
a nominal or small fee or charge as may fairly be
regarded as a mere incident of the public service
rendered’’).
In contrast, a ‘‘municipality generally has been deter-
mined to be acting for its own special corporate benefit
or pecuniary profit where it engages in an activity ‘for
the particular benefit of its inhabitants’ . . . or if it
derives revenue in excess of its costs from the activ-
ity.’’11 (Citations omitted.) Considine v. Waterbury,
supra, 279 Conn. 847. Specifically, a municipality may
act in its proprietary capacity by ‘‘leas[ing] municipal
property to private individuals.’’ Id., 849 (citing cases).
Nevertheless, we have cautioned against treating
‘‘actual pecuniary profit’’ alone as determinative of
whether a function is proprietary because it could
encourage municipalities to skirt tort liability by
avoiding ‘‘ ‘implementation of cost-efficient measures
[while] encourag[ing] deficit spending’ ’’ to maintain a
loss in the financial year. Id., 847 n.11. Still, a proprietary
function has been found where the municipality is ‘‘act
[ing] ‘very much like private enterprise . . . .’ ’’ Id., 848,
quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984)
§ 131, p. 1053.
The following examples are illustrative. In renting
out part of its municipal golf course to a single private
party for use as a restaurant for approximately $29,000
per year, the defendant city in Considine v. Waterbury,
supra, 279 Conn. 833, 850–51, was deemed to have acted
in a proprietary capacity because such a lease ‘‘stands
in stark contrast from those activities in which this
court has determined that the municipality was acting
as the state’s agent for the direct or indirect benefit of
the general public.’’ The city’s collection of ‘‘a substan-
tial rent [from] a private party to operate a business
. . . very much resembles private enterprise’’ in its
‘‘nature and character.’’ (Emphasis added.) Id., 851. Sim-
ilarly, the annual rental of a municipal beach pavilion
for a fee of $2500 in 1926 to a private party constituted
prima facie evidence of a profit for the defendant city.
Carta v. Norwalk, supra, 108 Conn. 701–702; see also
Blonski v. Metropolitan District Commission, 309
Conn. 282, 284, 71 A.3d 465 (2013) (defendant liable
because conduct with respect to gate that injured plain-
tiff inextricably linked to defendant’s proprietary water
supply operation); Martel v. Metropolitan District
Commission, 275 Conn. 38, 55–56, 881 A.2d 194 (2005)
(defendant immune from liability, as conduct not con-
nected to proprietary operation of for-profit water sup-
ply company).
Evaluating the plaintiff’s claims against this legal
background, we conclude that the defendant’s opera-
tion of its municipal pool does not constitute a proprie-
tary function so as to abrogate its discretionary act
immunity. First, the defendant’s rental of its pool to an
aqua therapy program two or three times a week fits
within the general public purposes espoused in Han-
non. By allowing use of the pool, the defendant is pro-
moting health and exercise for those using the pool,
purposes that are entirely within Hannon’s framework.
See Hannon v. Waterbury, supra, 106 Conn. 18. Second,
the fee charged to Eastern is, like the fees charged in
Hannon, nominal, and the total fees collected from all
parties reserving the pool do not cover the costs of
maintaining the pool. Instead, in the year in question,
the pool’s expenses exceeded revenues by more than
$5000, even without considering such things as electric-
ity and water costs. This undercuts the plaintiff’s asser-
tion that the municipality is acting like a ‘‘private
enterprise.’’ (Internal quotation marks omitted.) Con-
sidine v. Waterbury, supra, 279 Conn. 848. Most private
enterprises do not operate at a loss, or they will cease
to exist. Also, the defendant’s nominal fee of $50 per
hour had remained stable for several years, further sug-
gesting that profit is not a goal; cf. id., 833 (noting that
rent charged to private party increased annually as lease
term); but, rather, that the fee ‘‘was a mere incident of
the public service rendered in the performance of a
governmental duty.’’ Hannon v. Waterbury, supra, 18.
Third, unlike in Considine and Carta v. Norwalk, supra,108 Conn. 699, private parties, like Eastern, who reserve
the pool do so without a formal lease or contract and
for only short periods of time. Aside from the equivalent
of a sign-up sheet that Eastern’s manager fills out and
the consistency with which Eastern has used the pool,
nothing in Eastern’s reservation of the pool resembles a
binding commercial lease. As mentioned, the defendant
continues to provide a lifeguard during reserved times
and to retain responsibility for the general maintenance
of the pool.
The plaintiff claims that, even if no actual profit was
gained by the defendant’s operation of the pool overall,
this court should determine profitability by evaluating
the fees paid by Eastern with reference to the periods
of time that Eastern reserved the pool, and conclude
that Eastern’s fee for its use exceeded the costs of
operating the pool for those periods of time. Specifi-
cally, the plaintiff reasons that, annually, Eastern is
contributing $7800 for 156 hours of use, an amount that
exceeds the costs attributable to the pool for that period
of time. This argument was not raised in the trial court
and should not be raised for the first time on appeal,
particularly in the absence of an undisputed factual
record to support it.12 See, e.g., White v. Mazda Motor
of America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079(2014). In any event, we have never before held that,
to determine whether a municipality derives a profit, the
measure of revenues to expenses should be determined
based on the exact proportion of time a private com-
pany uses a facility relative to the yearly costs of
operating that facility. Because the plaintiff has not
provided any authority in support of this inventive
approach to evaluating profitability, we decline to
adopt it.
It bears mentioning that extending the abrogation of
municipal immunity to any situation in which a town
allows the private use of its facilities for a nominal fee
potentially could expose municipalities to great liabil-
ity. In the face of such a threat, no rational municipality
would continue to allow its municipal facilities to be
used by outside parties. This would be detrimental to
the enjoyment and use of municipal facilities by any
smaller group of the general public that might wish to
use these facilities. Under such restrictions, private,
nonprofit, and other independent groups would be pre-
vented from utilizing public parks, softball fields and,
yes, pools. On the basis of the foregoing analysis, we
conclude that the defendant’s operation of the munici-
pal pool constitutes a governmental function, and, by
operating the pool, the defendant does not derive a
special corporate profit or pecuniary benefit.
II
We turn next to whether any other recognized excep-
tion to immunity is in play. Three exceptions to discre-
tionary act immunity are recognized,13 but only one is
relevant here: the identifiable person, imminent harm
exception. Pursuant to this exception, liability is not
precluded 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 . . . .’’ (Internal quotation marks omitted.) Doe
v. Petersen, 279 Conn. 607, 615–16, 903 A.2d 191 (2006).
The plaintiff contends that he qualifies as an identifiable
person subject to imminent harm by virtue of his pres-
ence at the defendant’s pool for the aqua therapy ses-
sion provided by Eastern. Specifically, he contends that
he was an identifiable individual to the on duty lifeguard
employed by the defendant. We disagree that the plain-
tiff qualifies as an identifiable person and, therefore,
conclude that this exception does not apply to abrogate
the defendant’s municipal immunity.
‘‘[T]he identifiable person, imminent harm exception
to qualified immunity for an employee’s discretionary
acts is applicable in an action brought under § 52-557n
(a) to hold a municipality directly liable for those acts.’’
Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684(2009). The exception requires three elements: ‘‘(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
. . . . We have stated previously that this exception to
the general rule of governmental immunity for employ-
ees engaged in discretionary activities has received very
limited recognition in this state. . . . If the plaintiffs
fail to establish any one of the three prongs, this failure
will be fatal to their claim that they come within the
imminent harm exception.’’ (Internal quotation marks
omitted.) Strycharz v. Cady, 323 Conn. 548, 573–74,
148 A.3d 1011 (2016).14
‘‘An allegedly identifiable person must be identifiable
as a potential victim of a specific imminent harm. Like-
wise, the alleged imminent harm must be imminent in
terms of its impact on a specific identifiable person.’’
(Internal quotation marks omitted.) Cotto v. Board of
Education, 294 Conn. 265, 276, 984 A.2d 58 (2009).
Generally, we have held that a party is an identifiable
person when he or she is compelled to be somewhere.
See Strycharz v. Cady, supra, 323 Conn. 575–76 (‘‘[o]ur
decisions underscore . . . that whether the plaintiff
was compelled to be at the location where the injury
occurred remains a paramount consideration in
determining whether the plaintiff was an identifiable
person or member of a foreseeable class of victims.’’
[internal quotation marks omitted]). Accordingly, ‘‘[t]he
only identifiable class of foreseeable victims that we
have recognized . . . is that of schoolchildren
attending public schools during school hours because:
they were intended to be the beneficiaries of particular
duties of care imposed by law on school officials; they
[are] legally required to attend school rather than being
there voluntarily; their parents [are] thus statutorily
required to relinquish their custody to those officials
during those hours; and, as a matter of policy, they
traditionally require special consideration in the face
of dangerous conditions.’’ (Internal quotation marks
omitted.) Id., 576.
Outside of the schoolchildren context, we have recog-
nized an identifiable person under this exception in
only one case that has since been limited to its facts.15
Beyond that, although we have addressed claims that
a plaintiff is an identifiable person or member of an
identifiable class of foreseeable victims in a number of
cases, we have not broadened our definition.16 See, e.g.,
Cotto v. Board of Education, supra, 294 Conn. 267–68,
279 (director of community based summer youth pro-
gram located in public school was not identifiable per-
son when he slipped in wet bathroom because ‘‘then
so was every participant and supervisor in the Latino
Youth program who used the bathroom,’’ and anyone
‘‘could have slipped at any time’’ [emphasis in original]);
see also Coe v. Board of Education, 301 Conn. 112,
119–20, 19 A.3d 640 (2011) (student injured while
attending middle school graduation dance occurring off
school grounds did not qualify as member of identifiable
class of foreseeable victims because she was not
required to attend dance); Grady v. Somers, supra, 294
Conn. 328, 355–56 (permit holder injured at refuse trans-
fer station owned by town did not qualify as identifiable
person despite being paid permit holder and resident
of town); Durrant v. Board of Education, 284 Conn.
91, 96, 104, 108, 931 A.2d 859 (2007) (mother who slipped
and fell while picking up her child from optional after-
school day care program run in conjunction with public
school did not qualify as member of identifiable class
of foreseeable victims because program was optional);
Prescott v. Meriden, 273 Conn. 759, 761–62, 764–65,
873 A.2d 175 (2005) (parent voluntarily attending high
school football game to watch his child play was not
member of identifiable class of foreseeable victims
because he was not compelled to attend, school officials
lacked similar duties of care to him as to child given his
status as parent, and exception is ‘‘narrowly defined’’
[internal quotation marks omitted]); Evon v. Andrews,
211 Conn. 501, 508, 559 A.2d 1131 (1989) (‘‘[t]he class
of possible victims of an unspecified fire that may occur
at some unspecified time in the future is by no means
a group of ‘identifiable persons’ ’’).
In the present case, the plaintiff was in no way com-
pelled to attend the aqua therapy sessions provided by
Eastern. Instead, he voluntarily decided to use Eastern’s
services. Under established case law, this choice pre-
cludes us from holding that the plaintiff was an identifi-
able person or a member of an identifiable class of
persons. As the identifiable person, imminent harm
exception requires conjunctive proof of both, our deter-
mination that the plaintiff does not qualify as an identifi-
able person ends our analysis, and we need not consider
whether an imminent harm existed on these facts.
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 52-557n (a) provides in relevant 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 . . . (B) negligence in the
performance of functions from which the political subdivision derives a
special corporate profit or pecuniary benefit . . . . (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 omis-
sions which require the exercise of judgment or discretion as an official
function of the authority expressly or impliedly granted by law.’’
2
Eastern Connecticut Rehabilitation Center, Inc., was also named as a
defendant in this action. Because the plaintiff appealed after the court
disposed of all claims in this action against the town of Plainfield; see
Practice Book § 61-3; and Eastern Connecticut Rehabilitation Center, Inc.,
is not a party to this appeal, we refer in this opinion to the town of Plainfield
as the defendant.
3
The plaintiff alleged two counts against the defendant, one pursuant to
§ 52-557n and the other pursuant to General Statutes § 7-465, a municipal
indemnification statute. The trial court struck the § 7-465 count because the
plaintiff did not identify a town employee for whom indemnification was
sought. See Altfeter v. Naugatuck, 53 Conn. App. 791, 799, 732 A.2d 207(1999). After the plaintiff failed to replead his § 7-465 claim in a viable
fashion, the trial court rendered judgment on that claim in the defendant’s
favor. Only the § 52-557n count is at issue in this appeal.
4
Eastern now pays the defendant $60 for each reserved hour of use.
5
The plaintiff appealed to the Appellate Court, and this court transferred
the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
6
‘‘[A] municipal government is viewed as having a double function, first,
the proprietary or corporate function, and, second, the governmental func-
tion as the arm or agent of the state. Sovereign immunity protects sovereign
governments, such as states, and municipalities when acting as agents of
the state, but not municipal corporations acting on their own behalf.’’ 18
E. McQuillin, Municipal Corporations (3d Ed. Rev. 2003) § 53.23, p. 381.
7
We have acknowledged that ‘‘[w]hen a governmental entity engages in
conduct for its own corporate benefit in a manner that poses an unreasonable
risk of harm to others, we can perceive of no reason why it should not be
held responsible for all of the consequences of that conduct, just as a private
person would be.’’ Blonski v. Metropolitan District Commission, 309 Conn.
282, 295–96, 71 A.3d 465 (2013).
8
At oral argument, the plaintiff suggested using separate definitions for
special corporate profit and pecuniary benefit; however, this court analyzed
those two phrases together in Considine, and we see no reason to waver
from that analysis today.
9
According to Ambrogi’s affidavit, the swimming pool at issue in this case
is operated by the defendant and its recreation department.
10
The defendant in Hannon charged ten cents per lesson for children and
twenty cents for adults. Hannon v. Waterbury, supra, 106 Conn. 14.
11
We do not read Considine as suggesting that, simply because an activity
is offered only to a municipality’s residents, the municipality necessarily
loses its immunity. Rather, even in such circumstances, activities that are
meant to improve the general health, welfare or education of the municipali-
ty’s inhabitants are deemed to indirectly benefit the general public and,
thus, constitute activities performed as an agent of the state. Considine v.
Waterbury, supra, 279 Conn. 846. The distinction is not implicated in this
case, however, because the defendant permitted private groups to reserve
use of the pool without including the residency information of their individ-
ual group members.
12
For example, the record does not reveal the total number of hours that
the pool is available in a year. Moreover, as previously noted, the expenses
identified by the defendant for running the pool do not include all expenses
pertaining to the pool, but specifically exclude the costs of electricity, heat,
water, maintenance employees’ salaries, and consumable supplies.
13
Liability for a municipality’s discretionary act is not precluded when
(1) ‘‘the alleged conduct involves malice, wantonness or intent to injure’’; (2)
‘‘a statute provides for a cause of action against a municipality or municipal
official for failure to enforce certain laws’’; or (3) ‘‘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 omit-
ted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607,
615–16, 903 A.2d 191 (2006).
14
We have previously held that the identifiable person, imminent harm
exception ‘‘applies in an action brought directly against [a] municipalit[y]
pursuant to § 52-557n (a) (1) (A), regardless of whether an employee or
officer of the municipality also is a named defendant.’’ Grady v. Somers,
supra, 294 Conn. 348; see Benedict v. Norfolk, 296 Conn. 518, 523, 997
A.2d 449 (2010) (citing Grady for proposition that action may name only
municipality as defendant and claim identifiable person, imminent harm
exception). Thus, we address this issue despite the lack of a claim against
a specific municipal employee.
15
Specifically, prior to the adoption of the current three-pronged identifi-
able person, imminent harm analysis, we concluded that an identifiable
person subject to imminent harm existed among a group of intoxicated
individuals who were arguing and scuffling in a parking lot when a police
officer who spotted them failed to intervene until he heard a gunshot. Sestito
v. Groton, 178 Conn. 520, 522–24, 423 A.2d 165 (1979). This holding, however,
has been limited to its facts. Edgerton v. Clinton, supra, 311 Conn. 240.
Even if its holding was not so limited, Sestito would not apply in the present
case because, in contrast to the circumstances in Sestito, no evidence in
the record supports the plaintiff’s claim that he was actually identified to
a town official in connection with the alleged harm.
16
A recent Appellate Court decision, Brooks v. Powers, 165 Conn. App.
44, 138 A.3d 1012 (2016), cert. granted, 322 Conn. 907, 143 A.3d 603 (2016),
is cited by the plaintiff to support his contention that he is an identifiable
victim within the scope of this exception. It was not disputed in Brooks,
however, that the decedent was an identifiable person. This court has granted
the defendant’s petition for certification to appeal in Brooks, limited to the
issue of whether the Appellate Court properly applied the identifiable person,
imminent harm standard and concluded that the harm at issue was imminent.
Brooks v. Powers, 322 Conn. 907, 143 A.3d 603 (2016). We have examined
the opinion of the Appellate Court in that case and conclude that its facts
are highly distinguishable from those of the present case. By so observing, we
do not intend to express any opinion as to the merits of that pending appeal.