St. Pierre v. Town of Plainfield ( 2017 )

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7 DAVID L. ST. PIERRE v. TOWN
8 OF PLAINFIELD ET AL.
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10 (SC 19871)
11 Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,
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12 Robinson and D’Auria, Js.
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15 Syllabus
16 The plaintiff sought to recover damages from the defendant town for per-
17 sonal injuries he sustained after falling on wet steps located at the
18 defendant’s municipal pool. The plaintiff fell after participating in an
19 aqua therapy session conducted by the defendant E Co., which had paid
20 the town a nominal hourly fee to reserve the pool two or three times
21 per week. The town provided a lifeguard during the aqua therapy ses-
22 sions and was responsible for the cleaning and general maintenance of
23 the pool. E Co. did not have a formal contract with the town to reserve
24 the pool, but used a one page form letter that provided basic information
25 regarding the reservation. The town filed a motion for summary judg-
26 ment, claiming that municipal immunity precluded the plaintiff’s action
27 because the alleged acts or omissions involved the town’s judgment or
28 discretion, the operation of the pool was a government function, and
29 no exception to municipal discretionary act immunity had been shown.
30 The plaintiff countered that municipal immunity had been abrogated
31 either by the exception under the statute (§ 52-577n [a] [1] [B]) providing
32 that a municipality shall be liable for damages caused by its negligence
33 in the performance of a proprietary function from which it derives a
34 special corporate profit or pecuniary benefit, or by the identifiable per-
35 son, imminent harm exception. The trial court granted the town’s motion
36 for summary judgment on the ground that the town was immune from
37 liability, concluding that the operation of the pool was a government
38 function and that the town had operated the pool at a financial loss.
39 The court also found that the identifiable person, imminent harm excep-
40 tion did not apply because the plaintiff was voluntarily present at the
41 aqua therapy program, and the water on and around the pool surfaces
42 did not qualify as an imminent harm. The plaintiff appealed from the
43 judgment in favor of the town, claiming that the trial court incorrectly
44 concluded that the town was immune from liability because it had
45 derived a special corporate profit or pecuniary benefit from renting the
46 pool to E Co., a for-profit business, for a fee, or because he constituted
47 an identifiable person subject to imminent harm. Held:
48 1. The town’s operation of its municipal pool constituted a governmental
49 function from which it did not derive a special corporate or pecuniary
50 benefit so as to abrogate its discretionary act immunity: the town did
51 not derive a special corporate profit or pecuniary benefit by renting the
52 pool to E Co. for its private use, as the aqua therapy program fit within
53 the general public purposes of a municipal pool because it promoted
54 health and exercise, the fee that the town charged E Co. for use of the
55 pool was nominal, the total fees collected from all parties renting the
56 pool did not cover the annual costs of maintaining the pool, the pool
57 was rented without a formal lease or contract, and the town continued
58 to provide a lifeguard and maintain responsibility for the general mainte-
59 nance of the pool; furthermore, the plaintiff could not prevail on his
60 claim that this court should determine the profitability of the pool by
61 evaluating the fees paid by only E Co. with respect to the period of
62 time that E Co. had reserved the pool, as that argument was not raised
63 before the trial court, and this court has never used that method to
64 determine whether a municipality derived a profit; moreover, extending
65 the abrogation of municipal immunity to situations, such as the one
66 here, in which a town allows the private use of its facilities for a nominal
67 fee, could expose municipalities to great liability and deter them from
68 continuing to allow their facilities to be used by outside parties.
69 2. The identifiable person, imminent harm exception did not abrogate the
70 town’s municipal immunity, as the plaintiff was not an identifiable person
71 or a member of an identifiable class of persons for purposes of that
72 exception; the fact that the plaintiff was not compelled to attend the
73 aqua therapy sessions provided by E Co., but had voluntarily decided
74 to use E Co.’s services, precluded this court from concluding that he
75 was a person or in a group of persons identifiable to the lifeguard on
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77 duty as a potential victim or victims of an imminent harm.
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79 Argued May 1—officially released August 8, 2017
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80 Procedural History
83 Action to recover damages for personal injuries sus-
84 tained as a result of defendants’ alleged negligence,
85 brought to the Superior Court in the judicial district
86 of Windham, where the court, Boland, J., granted the
87 named defendant’s motion to strike and granted the
88 named defendant’s motion for summary judgment and
89 rendered judgment thereon; thereafter, the court,
90 Calmar, J., granted the named defendant’s motion for
91 judgment as to the stricken count of the complaint and
92 rendered judgment thereon, from which the plaintiff
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94 appealed. Affirmed.
Mary M. Puhlick, for the appellant (plaintiff).
96 Thomas R. Gerarde, with whom, on the brief, was
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98 Katherine E. Rule, for the appellee (named defendant).
100
101 Opinion
102 ROGERS, C. J. The issue raised in this appeal is
103 whether municipal immunity is abrogated by either the
104 proprietary function exception of General Statutes § 52-
105 557n1 or the identifiable person, imminent harm excep-
106 tion. Specifically, we must decide whether there is
107 municipal immunity when a town charges a nominal
108 fee to a private group for reserved use of a public
109 pool and an individual group member slips and falls on
110 accumulated water in the vicinity of that pool. The
111 plaintiff, David L. St. Pierre, appeals from the judgment
112 rendered in favor of the named defendant, the town of
113 Plainfield,2 after concluding that no exception to the
114 defendant’s general immunity applied.3 The plaintiff
115 claims that the trial court improperly concluded that
116 the defendant was immune from liability because (1)
117 the defendant derived a special corporate profit or pecu-
118 niary benefit through its operation of the pool, or (2)
119 the plaintiff constituted an identifiable person subject
120 to imminent harm. We disagree with each of these
121 claims and, accordingly, affirm the judgment of the
122 trial court.
123 The following undisputed facts and procedural his-
124 tory are relevant to this appeal. The plaintiff filed this
125 negligence action against the defendant and Eastern
126 Connecticut Rehabilitation Center, Inc. (Eastern); see
127 footnote 2 of this opinion; to recover for injuries he
128 allegedly sustained in an August 26, 2011 fall on wet
129 steps after participating in an aqua therapy session.
130 This session was conducted by Eastern in a pool owned
131 by the defendant, which is located in the defendant’s
132 town hall building. The plaintiff alleged that he slipped
133 and fell on the steps, which were covered with approxi-
134 mately one-quarter inch of water, on his way to the
135 men’s locker room. None of the defendant’s employees
136 witnessed the incident, nor had there been any previous
137 complaints about the condition of the steps.
138 Since 1994, Eastern, through its manager Penny Allyn,
139 had reserved the pool two to three times per week for
140 one hour sessions to provide aqua therapy services to
141 its rehabilitation patients. Since 2006, Eastern has paid
142 the defendant $50 per reserved hour for the exclusive
143 use of the pool during the sessions.4 Participation in
144 the aqua therapy program ranged from two to seven
145 individuals per session. During the reserved times, the
146 defendant provided a lifeguard and remained responsi-
147 ble for the cleaning and general maintenance of the
148 pool. There was no formal contract between the defen-
149 dant and Eastern. Rather, a one page form letter gener-
150 ally used to make reservations provides the rules of
151 pool use, in addition to listing the usage fee, the time
152 of the reservation, and the party making the reservation.
153 Eastern is not the only program that utilizes the pool.
154 Myra Ambrogi, the defendant’s recreation director,
155 stated in her affidavit that the pool is generally open
156 to the public as well as for organizations that pay the
157 usage fee. Activities held at the pool include swim les-
158 sons, open swim periods, and exercise classes.
159 In discussing the pool’s financials, Ambrogi stated in
160 her affidavit that the costs of operating the pool for
161 the fiscal year from July 1, 2011 to July 1, 2012, were
162 $81,315.42 and that total revenue of $75,605.96 was
163 taken in during the same time frame, including the fees
164 from Eastern. Thus, the pool operated at a loss of
165 $5709.46. Ambrogi’s figures included operational costs
166 such as the lifeguards’ salaries, instructor fees, equip-
167 ment, pool chemicals and cleaning supplies, but did not
168 include electricity, heat, water, maintenance employ-
169 ees’ salaries, or consumable supplies.
170 The plaintiff filed this action on August 19, 2013,
171 alleging that the defendant had been negligent in various
172 ways and that the plaintiff had been injured as a result.
173 On January 30, 2015, the defendant filed a motion for
174 summary judgment, claiming that municipal immunity
175 applied to preclude the plaintiff’s action because any
176 acts or omissions alleged by the plaintiff involved judg-
177 ment or discretion, the operation of the pool was a
178 governmental function, and no exception to discretion-
179 ary act immunity had been shown. The plaintiff
180 objected, arguing that municipal immunity did not
181 attach because the defendant’s operation of the pool
182 constituted a proprietary function and, in the alterna-
183 tive, that the identifiable person, imminent harm excep-
184 tion to immunity applied. In an August, 2015
185 memorandum of decision, the trial court agreed with
186 the defendant that it was immune from liability. As
187 to the proprietary function exception, the trial court
188 concluded that the defendant’s operation of a municipal
189 pool was a governmental function and did not create
190 a profit for the defendant. In regard to the identifiable
191 person, imminent harm exception, the trial court con-
192 cluded that the plaintiff was not an identifiable person
193 given his voluntary presence at the aqua therapy pro-
194 gram and that the water on and around the pool surfaces
195 did not qualify as an imminent harm. This appeal
196 followed.5
197 On appeal, the plaintiff does not contest that the
198 allegedly negligent acts of the defendant are discretion-
199 ary in nature and, therefore, are generally entitled to
200 immunity. See Haynes v. Middletown, 314 Conn. 303,
201 312, 101 A.3d 249 (2014). Consequently, we confine our
202 analysis to whether municipal immunity is abrogated
203 by an exception.
204 We begin with the standard of review and applicable
205 law. ‘‘The standard of review of a trial court’s decision
206 granting summary judgment is well established. Prac-
207 tice Book § 17-49 provides that summary judgment shall
208 be rendered forthwith if the pleadings, affidavits and
209 any other proof submitted show that there is no genuine
210 issue as to any material fact and that the moving party
211 is entitled to judgment as a matter of law. In deciding
212 a motion for summary judgment, the trial court must
213 view the evidence in the light most favorable to the
214 nonmoving party. . . . The party moving for summary
215 judgment has the burden of showing the absence of
216 any genuine issue of material fact and that the party
217 is, therefore, entitled to judgment as a matter of law.
218 . . . Our review of the trial court’s decision to grant
219 the defendant’s motion for summary judgment is ple-
220 nary. . . . On appeal, we must determine whether the
221 legal conclusions reached by the trial court are legally
222 and logically correct and whether they find support in
223 the facts set out in the memorandum of decision of the
224 trial court.’’ (Internal quotation marks omitted.) Cefara-
225 tti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016).
226 Specifically, whether municipal immunity applies is a
227 matter of law for the court to decide when there are
228 no unresolved factual questions material to the issue.
229 Edgerton v. Clinton, 311 Conn. 217, 227, 86 A.3d 437
230 (2014).
231 I
232 The plaintiff claims first that the proprietary function
233 exception applies to abrogate the defendant’s immu-
234 nity. The proprietary function exception is codified in
235 § 52-557n (a) (1) (B), which provides in relevant part:
236 ‘‘Except as otherwise provided by law, a political subdi-
237 vision of the state shall be liable for damages to person
238 or property caused by . . . negligence in the perfor-
239 mance of functions from which the political subdivision
240 derives a special corporate profit or pecuniary benefit
241 . . . .’’ (Emphasis added.) The plaintiff contends that
242 the defendant derived a special corporate profit or pecu-
243 niary benefit from the operation of its municipal pool
244 because it rented that pool to Eastern, a for-profit entity,
245 for a fee. We disagree.
246 In Considine v. Waterbury, 279 Conn. 830, 837–48,
247 905 A.2d 70 (2006), we undertook a comprehensive
248 analysis of § 52-557n (a) (1) (B). We concluded that the
249 statutory provision ‘‘codifies the common-law rule that
250 municipalities are liable for their negligent acts commit-
251 ted in their proprietary capacity,’’ as opposed to in their
252 governmental one.6 Id., 844. Liability for proprietary
253 acts means that a municipality ‘‘is liable to the same
254 extent as in the case of private corporations or individu-
255 als . . . .’’7 (Internal quotation marks omitted.) Id., 843.
256 To determine whether the defendant is subject to such
257 liability in the present case, we analyze whether the
258 defendant derives a special corporate profit or pecuni-
259 ary benefit from the function of operating its pool, in
260 other words, whether that function is proprietary.8
261 We previously have concluded that, ‘‘[i]f a municipal-
262 ity is acting only as the ‘agent or representative of the
263 state in carrying out its public purposes’; Winchester
264 v. Cox, [129 Conn. 106, 109, 26 A.2d 592 (1942)]; then
265 it clearly is not deriving a special corporate benefit or
266 pecuniary profit. Two classes of activities fall within
267 the broader category of acting as the agent of the state:
268 ‘[1] those imposed by the [s]tate for the benefit of the
269 general public, and [2] those which arise out of legisla-
270 tion imposed in pursuance of a general policy, mani-
271 fested by legislation affecting similar corporations, for
272 the particular advantage of the inhabitants of the munic-
273 ipality, and only through this, and indirectly, for the
274 benefit of the people at large. . . . For example, the
275 maintenance of the public peace or prevention of dis-
276 ease would fall within the first class; Keefe v. Union,
277 76 Conn. 160, 166, [56 A. 571 (1903)]; while the mainte-
278 nance of a park system would fall within the second
279 class.’ ’’ Considine v. Waterbury, supra, 279 Conn. 845–
280 46. ‘‘[T]he second class of activities encompasses func-
281 tions that appear to be for the sole benefit of a
282 municipality’s inhabitants, but nevertheless provide
283 indirect benefits to the general public because the activ-
284 ities were meant to improve the general health, welfare
285 or education of the municipality’s inhabitants.’’ Id., 846.
286 Historically, we have concluded that operating a
287 municipal pool constitutes a governmental function.
288 Hannon v. Waterbury, 106 Conn. 13, 17–18, 136 A. 876
289 (1927). In Hannon, this court recognized that munici-
290 palities operating swimming pools are performing a
291 governmental function, because the municipality is
292 effecting the ‘‘education of the people of the city in
293 teaching them to swim and thus guarding their lives
294 against the accident of drowning, promoting a most
295 useful and beneficial form of exercise, and teaching
296 cleanliness of habits of living and thus preserving their
297 health.’’ Id., 18.
298 The General Statutes support Hannon’s holding. Gen-
299 eral Statutes § 7-130b authorizes municipalities to cre-
300 ate recreational authorities or departments. Such
301 bodies are ‘‘deemed to be . . . instrumental[ities] exer-
302 cising public and essential government functions to pro-
303 vide for the public health and welfare . . . .’’9 General
304 Statutes § 7-130d. Municipal recreational authorities or
305 departments are statutorily empowered to construct
306 and operate a variety of projects; see General Statutes
307 § 7-130d (c); including, specifically, ‘‘swimming pools.’’
308 General Statutes § 7-130a (d).
309 The plaintiff claims that the nature of the use of the
310 pool in this case is distinguishable from that at issue
311 in Hannon. Specifically, he argues that the defendant
312 here is renting the pool to Eastern for use in its business,
313 but the defendant city in Hannon served children and
314 individuals via swim lessons. In the plaintiff’s view,
315 rental of municipal property to a private party is a
316 proprietary action. To determine whether renting a
317 municipal pool to a business for private use constitutes
318 a change in the nature of the activity sufficient to abro-
319 gate immunity, we must review our case law on the
320 charging of fees for use of a municipal property.
321 We have concluded previously that a ‘‘municipality
322 may . . . charge a nominal fee for participation in a
323 governmental activity and it will not lose its governmen-
324 tal nature as long as the fee is insufficient to meet the
325 activity’s expenses.’’ Considine v. Waterbury, supra,
326 279 Conn. 847. In Hannon, for example, we concluded
327 that charging nominal fees for swimming lessons10 did
328 not alter the governmental nature of running a munici-
329 pal swimming pool. Hannon v. Waterbury, supra, 106
330 Conn. 18–19. We reasoned that the ‘‘money taken in did
331 not pay the entire expense of operating the pool,’’ in
332 particular, by failing to ‘‘pay for the large amount of
333 electricity used in operating the motor, drying the hair
334 and lighting, coal, water, chemicals used in the water,
335 [as well as] the rental value or maintenance of the part
336 of the building used and the equipment . . . .’’ Id., 15.
337 Because the pool actually was operated at a loss, the
338 fees charged did not constitute a ‘‘profit,’’ but, rather,
339 ‘‘the charge was a mere incident of the public service
340 rendered in the performance of a governmental duty.’’
341 Id., 18; see also Carta v. Norwalk, 108 Conn. 697, 702,
342 145 A. 158 (1929) (to qualify as proprietary function
343 ‘‘operation must contemplate and involve revenue of
344 such amount and nature as to signify a profit resulting
345 thereform, as distinguished from the imposition of such
346 a nominal or small fee or charge as may fairly be
347 regarded as a mere incident of the public service
348 rendered’’).
349 In contrast, a ‘‘municipality generally has been deter-
350 mined to be acting for its own special corporate benefit
351 or pecuniary profit where it engages in an activity ‘for
352 the particular benefit of its inhabitants’ . . . or if it
353 derives revenue in excess of its costs from the activ-
354 ity.’’11 (Citations omitted.) Considine v. Waterbury,
355 supra, 279 Conn. 847. Specifically, a municipality may
356 act in its proprietary capacity by ‘‘leas[ing] municipal
357 property to private individuals.’’ Id., 849 (citing cases).
358 Nevertheless, we have cautioned against treating
359 ‘‘actual pecuniary profit’’ alone as determinative of
360 whether a function is proprietary because it could
361 encourage municipalities to skirt tort liability by
362 avoiding ‘‘ ‘implementation of cost-efficient measures
363 [while] encourag[ing] deficit spending’ ’’ to maintain a
364 loss in the financial year. Id., 847 n.11. Still, a proprietary
365 function has been found where the municipality is ‘‘act
366 [ing] ‘very much like private enterprise . . . .’ ’’ Id., 848,
367 quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984)
368 § 131, p. 1053.
369 The following examples are illustrative. In renting
370 out part of its municipal golf course to a single private
371 party for use as a restaurant for approximately $29,000
372 per year, the defendant city in Considine v. Waterbury,
373 supra, 279 Conn. 833, 850–51, was deemed to have acted
374 in a proprietary capacity because such a lease ‘‘stands
375 in stark contrast from those activities in which this
376 court has determined that the municipality was acting
377 as the state’s agent for the direct or indirect benefit of
378 the general public.’’ The city’s collection of ‘‘a substan-
379 tial rent [from] a private party to operate a business
380 . . . very much resembles private enterprise’’ in its
381 ‘‘nature and character.’’ (Emphasis added.) Id., 851. Sim-
382 ilarly, the annual rental of a municipal beach pavilion
383 for a fee of $2500 in 1926 to a private party constituted
384 prima facie evidence of a profit for the defendant city.
385 Carta v. Norwalk, supra, 108 Conn. 701–702; see also
386 Blonski v. Metropolitan District Commission, 309
387 Conn. 282, 284, 71 A.3d 465 (2013) (defendant liable
388 because conduct with respect to gate that injured plain-
389 tiff inextricably linked to defendant’s proprietary water
390 supply operation); Martel v. Metropolitan District
391 Commission, 275 Conn. 38, 55–56, 881 A.2d 194 (2005)
392 (defendant immune from liability, as conduct not con-
393 nected to proprietary operation of for-profit water sup-
394 ply company).
395 Evaluating the plaintiff’s claims against this legal
396 background, we conclude that the defendant’s opera-
397 tion of its municipal pool does not constitute a proprie-
398 tary function so as to abrogate its discretionary act
399 immunity. First, the defendant’s rental of its pool to an
400 aqua therapy program two or three times a week fits
401 within the general public purposes espoused in Han-
402 non. By allowing use of the pool, the defendant is pro-
403 moting health and exercise for those using the pool,
404 purposes that are entirely within Hannon’s framework.
405 See Hannon v. Waterbury, supra, 106 Conn. 18. Second,
406 the fee charged to Eastern is, like the fees charged in
407 Hannon, nominal, and the total fees collected from all
408 parties reserving the pool do not cover the costs of
409 maintaining the pool. Instead, in the year in question,
410 the pool’s expenses exceeded revenues by more than
411 $5000, even without considering such things as electric-
412 ity and water costs. This undercuts the plaintiff’s asser-
413 tion that the municipality is acting like a ‘‘private
414 enterprise.’’ (Internal quotation marks omitted.) Con-
415 sidine v. Waterbury, supra, 279 Conn. 848. Most private
416 enterprises do not operate at a loss, or they will cease
417 to exist. Also, the defendant’s nominal fee of $50 per
418 hour had remained stable for several years, further sug-
419 gesting that profit is not a goal; cf. id., 833 (noting that
420 rent charged to private party increased annually as lease
421 term); but, rather, that the fee ‘‘was a mere incident of
422 the public service rendered in the performance of a
423 governmental duty.’’ Hannon v. Waterbury, supra, 18.
424 Third, unlike in Considine and Carta v. Norwalk, supra,
425 108 Conn. 699, private parties, like Eastern, who reserve
426 the pool do so without a formal lease or contract and
427 for only short periods of time. Aside from the equivalent
428 of a sign-up sheet that Eastern’s manager fills out and
429 the consistency with which Eastern has used the pool,
430 nothing in Eastern’s reservation of the pool resembles a
431 binding commercial lease. As mentioned, the defendant
432 continues to provide a lifeguard during reserved times
433 and to retain responsibility for the general maintenance
434 of the pool.
435 The plaintiff claims that, even if no actual profit was
436 gained by the defendant’s operation of the pool overall,
437 this court should determine profitability by evaluating
438 the fees paid by Eastern with reference to the periods
439 of time that Eastern reserved the pool, and conclude
440 that Eastern’s fee for its use exceeded the costs of
441 operating the pool for those periods of time. Specifi-
442 cally, the plaintiff reasons that, annually, Eastern is
443 contributing $7800 for 156 hours of use, an amount that
444 exceeds the costs attributable to the pool for that period
445 of time. This argument was not raised in the trial court
446 and should not be raised for the first time on appeal,
447 particularly in the absence of an undisputed factual
448 record to support it.12 See, e.g., White v. Mazda Motor
449 of America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079
450 (2014). In any event, we have never before held that,
451 to determine whether a municipality derives a profit, the
452 measure of revenues to expenses should be determined
453 based on the exact proportion of time a private com-
454 pany uses a facility relative to the yearly costs of
455 operating that facility. Because the plaintiff has not
456 provided any authority in support of this inventive
457 approach to evaluating profitability, we decline to
458 adopt it.
459 It bears mentioning that extending the abrogation of
460 municipal immunity to any situation in which a town
461 allows the private use of its facilities for a nominal fee
462 potentially could expose municipalities to great liabil-
463 ity. In the face of such a threat, no rational municipality
464 would continue to allow its municipal facilities to be
465 used by outside parties. This would be detrimental to
466 the enjoyment and use of municipal facilities by any
467 smaller group of the general public that might wish to
468 use these facilities. Under such restrictions, private,
469 nonprofit, and other independent groups would be pre-
470 vented from utilizing public parks, softball fields and,
471 yes, pools. On the basis of the foregoing analysis, we
472 conclude that the defendant’s operation of the munici-
473 pal pool constitutes a governmental function, and, by
474 operating the pool, the defendant does not derive a
475 special corporate profit or pecuniary benefit.
476 II
477 We turn next to whether any other recognized excep-
478 tion to immunity is in play. Three exceptions to discre-
479 tionary act immunity are recognized,13 but only one is
480 relevant here: the identifiable person, imminent harm
481 exception. Pursuant to this exception, liability is not
482 precluded when ‘‘the circumstances make it apparent
483 to the public officer that his or her failure to act would
484 be likely to subject an identifiable person to imminent
485 harm . . . .’’ (Internal quotation marks omitted.) Doe
486 v. Petersen, 279 Conn. 607, 615–16, 903 A.2d 191 (2006).
487 The plaintiff contends that he qualifies as an identifiable
488 person subject to imminent harm by virtue of his pres-
489 ence at the defendant’s pool for the aqua therapy ses-
490 sion provided by Eastern. Specifically, he contends that
491 he was an identifiable individual to the on duty lifeguard
492 employed by the defendant. We disagree that the plain-
493 tiff qualifies as an identifiable person and, therefore,
494 conclude that this exception does not apply to abrogate
495 the defendant’s municipal immunity.
496 ‘‘[T]he identifiable person, imminent harm exception
497 to qualified immunity for an employee’s discretionary
498 acts is applicable in an action brought under § 52-557n
499 (a) to hold a municipality directly liable for those acts.’’
500 Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684
501 (2009). The exception requires three elements: ‘‘(1) an
502 imminent harm; (2) an identifiable victim; and (3) a
503 public official to whom it is apparent that his or her
504 conduct is likely to subject that victim to that harm
505 . . . . We have stated previously that this exception to
506 the general rule of governmental immunity for employ-
507 ees engaged in discretionary activities has received very
508 limited recognition in this state. . . . If the plaintiffs
509 fail to establish any one of the three prongs, this failure
510 will be fatal to their claim that they come within the
511 imminent harm exception.’’ (Internal quotation marks
512 omitted.) Strycharz v. Cady, 323 Conn. 548, 573–74,
513 148 A.3d 1011 (2016).14
514 ‘‘An allegedly identifiable person must be identifiable
515 as a potential victim of a specific imminent harm. Like-
516 wise, the alleged imminent harm must be imminent in
517 terms of its impact on a specific identifiable person.’’
518 (Internal quotation marks omitted.) Cotto v. Board of
519 Education, 294 Conn. 265, 276, 984 A.2d 58 (2009).
520 Generally, we have held that a party is an identifiable
521 person when he or she is compelled to be somewhere.
522 See Strycharz v. Cady, supra, 323 Conn. 575–76 (‘‘[o]ur
523 decisions underscore . . . that whether the plaintiff
524 was compelled to be at the location where the injury
525 occurred remains a paramount consideration in
526 determining whether the plaintiff was an identifiable
527 person or member of a foreseeable class of victims.’’
528 [internal quotation marks omitted]). Accordingly, ‘‘[t]he
529 only identifiable class of foreseeable victims that we
530 have recognized . . . is that of schoolchildren
531 attending public schools during school hours because:
532 they were intended to be the beneficiaries of particular
533 duties of care imposed by law on school officials; they
534 [are] legally required to attend school rather than being
535 there voluntarily; their parents [are] thus statutorily
536 required to relinquish their custody to those officials
537 during those hours; and, as a matter of policy, they
538 traditionally require special consideration in the face
539 of dangerous conditions.’’ (Internal quotation marks
540 omitted.) Id., 576.
541 Outside of the schoolchildren context, we have recog-
542 nized an identifiable person under this exception in
543 only one case that has since been limited to its facts.15
544 Beyond that, although we have addressed claims that
545 a plaintiff is an identifiable person or member of an
546 identifiable class of foreseeable victims in a number of
547 cases, we have not broadened our definition.16 See, e.g.,
548 Cotto v. Board of Education, supra, 294 Conn. 267–68,
549 279 (director of community based summer youth pro-
550 gram located in public school was not identifiable per-
551 son when he slipped in wet bathroom because ‘‘then
552 so was every participant and supervisor in the Latino
553 Youth program who used the bathroom,’’ and anyone
554 ‘‘could have slipped at any time’’ [emphasis in original]);
555 see also Coe v. Board of Education, 301 Conn. 112,
556 119–20, 19 A.3d 640 (2011) (student injured while
557 attending middle school graduation dance occurring off
558 school grounds did not qualify as member of identifiable
559 class of foreseeable victims because she was not
560 required to attend dance); Grady v. Somers, supra, 294
561 Conn. 328, 355–56 (permit holder injured at refuse trans-
562 fer station owned by town did not qualify as identifiable
563 person despite being paid permit holder and resident
564 of town); Durrant v. Board of Education, 284 Conn.
565 91, 96, 104, 108, 931 A.2d 859 (2007) (mother who slipped
566 and fell while picking up her child from optional after-
567 school day care program run in conjunction with public
568 school did not qualify as member of identifiable class
569 of foreseeable victims because program was optional);
570 Prescott v. Meriden, 273 Conn. 759, 761–62, 764–65,
571 873 A.2d 175 (2005) (parent voluntarily attending high
572 school football game to watch his child play was not
573 member of identifiable class of foreseeable victims
574 because he was not compelled to attend, school officials
575 lacked similar duties of care to him as to child given his
576 status as parent, and exception is ‘‘narrowly defined’’
577 [internal quotation marks omitted]); Evon v. Andrews,
578 211 Conn. 501, 508, 559 A.2d 1131 (1989) (‘‘[t]he class
579 of possible victims of an unspecified fire that may occur
580 at some unspecified time in the future is by no means
581 a group of ‘identifiable persons’ ’’).
582 In the present case, the plaintiff was in no way com-
583 pelled to attend the aqua therapy sessions provided by
584 Eastern. Instead, he voluntarily decided to use Eastern’s
585 services. Under established case law, this choice pre-
586 cludes us from holding that the plaintiff was an identifi-
587 able person or a member of an identifiable class of
588 persons. As the identifiable person, imminent harm
589 exception requires conjunctive proof of both, our deter-
590 mination that the plaintiff does not qualify as an identifi-
591 able person ends our analysis, and we need not consider
592 whether an imminent harm existed on these facts.
593 The judgment is affirmed.
595
594 In this opinion the other justices concurred.
1
596 General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as
597 otherwise provided by law, a political subdivision of the state shall be liable
598 for damages to person or property caused by . . . (B) negligence in the
599 performance of functions from which the political subdivision derives a
600 special corporate profit or pecuniary benefit . . . . (2) Except as otherwise
601 provided by law, a political subdivision of the state shall not be liable for
602 damages to person or property caused by . . . (B) negligent acts or omis-
603 sions which require the exercise of judgment or discretion as an official
604 function of the authority expressly or impliedly granted by law.’’
2
605 Eastern Connecticut Rehabilitation Center, Inc., was also named as a
606 defendant in this action. Because the plaintiff appealed after the court
607 disposed of all claims in this action against the town of Plainfield; see
608 Practice Book § 61-3; and Eastern Connecticut Rehabilitation Center, Inc.,
609 is not a party to this appeal, we refer in this opinion to the town of Plainfield
610 as the defendant.
3
611 The plaintiff alleged two counts against the defendant, one pursuant to
612 § 52-557n and the other pursuant to General Statutes § 7-465, a municipal
613 indemnification statute. The trial court struck the § 7-465 count because the
614 plaintiff did not identify a town employee for whom indemnification was
615 sought. See Altfeter v. Naugatuck, 53 Conn. App. 791, 799, 732 A.2d 207
616 (1999). After the plaintiff failed to replead his § 7-465 claim in a viable
617 fashion, the trial court rendered judgment on that claim in the defendant’s
618 favor. Only the § 52-557n count is at issue in this appeal.
4
619 Eastern now pays the defendant $60 for each reserved hour of use.
5
620 The plaintiff appealed to the Appellate Court, and this court transferred
621 the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice
622 Book § 65-1.
6
623 ‘‘[A] municipal government is viewed as having a double function, first,
624 the proprietary or corporate function, and, second, the governmental func-
625 tion as the arm or agent of the state. Sovereign immunity protects sovereign
626 governments, such as states, and municipalities when acting as agents of
627 the state, but not municipal corporations acting on their own behalf.’’ 18
628 E. McQuillin, Municipal Corporations (3d Ed. Rev. 2003) § 53.23, p. 381.
7
629 We have acknowledged that ‘‘[w]hen a governmental entity engages in
630 conduct for its own corporate benefit in a manner that poses an unreasonable
631 risk of harm to others, we can perceive of no reason why it should not be
632 held responsible for all of the consequences of that conduct, just as a private
633 person would be.’’ Blonski v. Metropolitan District Commission, 309 Conn.
634 282, 295–96, 71 A.3d 465 (2013).
8
635 At oral argument, the plaintiff suggested using separate definitions for
636 special corporate profit and pecuniary benefit; however, this court analyzed
637 those two phrases together in Considine, and we see no reason to waver
638 from that analysis today.
9
639 According to Ambrogi’s affidavit, the swimming pool at issue in this case
640 is operated by the defendant and its recreation department.
10
641 The defendant in Hannon charged ten cents per lesson for children and
642 twenty cents for adults. Hannon v. Waterbury, supra, 106 Conn. 14.
11
643 We do not read Considine as suggesting that, simply because an activity
644 is offered only to a municipality’s residents, the municipality necessarily
645 loses its immunity. Rather, even in such circumstances, activities that are
646 meant to improve the general health, welfare or education of the municipali-
647 ty’s inhabitants are deemed to indirectly benefit the general public and,
648 thus, constitute activities performed as an agent of the state. Considine v.
649 Waterbury, supra, 279 Conn. 846. The distinction is not implicated in this
650 case, however, because the defendant permitted private groups to reserve
651 use of the pool without including the residency information of their individ-
652 ual group members.
12
653 For example, the record does not reveal the total number of hours that
654 the pool is available in a year. Moreover, as previously noted, the expenses
655 identified by the defendant for running the pool do not include all expenses
656 pertaining to the pool, but specifically exclude the costs of electricity, heat,
657 water, maintenance employees’ salaries, and consumable supplies.
13
658 Liability for a municipality’s discretionary act is not precluded when
659 (1) ‘‘the alleged conduct involves malice, wantonness or intent to injure’’; (2)
660 ‘‘a statute provides for a cause of action against a municipality or municipal
661 official for failure to enforce certain laws’’; or (3) ‘‘the circumstances make
662 it apparent to the public officer that his or her failure to act would be likely
663 to subject an identifiable person to imminent harm . . . .’’ (Citations omit-
664 ted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607,
665 615–16, 903 A.2d 191 (2006).
14
666 We have previously held that the identifiable person, imminent harm
667 exception ‘‘applies in an action brought directly against [a] municipalit[y]
668 pursuant to § 52-557n (a) (1) (A), regardless of whether an employee or
669 officer of the municipality also is a named defendant.’’ Grady v. Somers,
670 supra, 294 Conn. 348; see Benedict v. Norfolk, 296 Conn. 518, 523, 997
671 A.2d 449 (2010) (citing Grady for proposition that action may name only
672 municipality as defendant and claim identifiable person, imminent harm
673 exception). Thus, we address this issue despite the lack of a claim against
674 a specific municipal employee.
15
675 Specifically, prior to the adoption of the current three-pronged identifi-
676 able person, imminent harm analysis, we concluded that an identifiable
677 person subject to imminent harm existed among a group of intoxicated
678 individuals who were arguing and scuffling in a parking lot when a police
679 officer who spotted them failed to intervene until he heard a gunshot. Sestito
680 v. Groton, 178 Conn. 520, 522–24, 423 A.2d 165 (1979). This holding, however,
681 has been limited to its facts. Edgerton v. Clinton, supra, 311 Conn. 240.
682 Even if its holding was not so limited, Sestito would not apply in the present
683 case because, in contrast to the circumstances in Sestito, no evidence in
684 the record supports the plaintiff’s claim that he was actually identified to
685 a town official in connection with the alleged harm.
16
686 A recent Appellate Court decision, Brooks v. Powers, 165 Conn. App.
687 44, 138 A.3d 1012 (2016), cert. granted, 322 Conn. 907, 143 A.3d 603 (2016),
688 is cited by the plaintiff to support his contention that he is an identifiable
689 victim within the scope of this exception. It was not disputed in Brooks,
690 however, that the decedent was an identifiable person. This court has granted
691 the defendant’s petition for certification to appeal in Brooks, limited to the
692 issue of whether the Appellate Court properly applied the identifiable person,
693 imminent harm standard and concluded that the harm at issue was imminent.
694 Brooks v. Powers, 322 Conn. 907, 143 A.3d 603 (2016). We have examined
695 the opinion of the Appellate Court in that case and conclude that its facts
696 are highly distinguishable from those of the present case. By so observing, we
697 do not intend to express any opinion as to the merits of that pending appeal.
699
698