Raspberry Junction Holding, LLC v. Southeastern Connecticut Water Authority , 331 Conn. 364 ( 2019 )

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RASPBERRY JUNCTION HOLDING, LLC v.
SOUTHEASTERN CONNECTICUT
WATER AUTHORITY
(SC 19974)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff sought to recover damages from the defendant municipal water
authority, S Co., for the loss of revenue resulting from the interruption
of water service at its hotel property. The plaintiff alleged that the
interruption was caused by S Co.’s negligence in its maintenance and
operation of a pumping station. S Co. had been created by a special act
of the General Assembly (33 Spec. Acts 478, No. 381 [1967]) that set
forth S Co.’s powers and duties, including the power to be sued and
the power to make rules for the ‘‘sale of water and the collection of
rents and charges therefor.’’ S Co. thereafter adopted rules governing
its water service, including a rule limiting its liability for its negligence
in supplying water. Citing that rule, S Co. moved for summary judgment
on the ground that it was immune from liability for the plaintiff’s damages
and that the rule was a proper exercise of its authority under the special
act’s grant of power to make rules for the sale of water and the collection
of rents and charges. The plaintiff opposed the motion, claiming that S
Co., as a municipal corporation engaged in a proprietary function, was
not immune from suit and that the special act did not provide any
authority, express or implied, to promulgate rules that waive liability
for negligence. The trial court recognized that, generally, S Co. could
be sued like a private water company but that, as an administrative
agency, it had the power to promulgate regulations having the force
and effect of law. The court, relying on authority from other jurisdictions,
determined that reasonable rates for the provision of water services
depended in part on a rule limiting liability, enforceable only to the
extent that ordinary negligence was involved. The trial court therefore
found that S Co.’s rule limiting liability for service outages was a reason-
able exercise of its rule-making authority, and, because the plaintiff
alleged only ordinary negligence, the rule limiting S Co.’s liability was
enforceable as to the plaintiff’s action. In light of this conclusion, the
court did not address S Co.’s alternative ground for summary judgment,
granted S Co.’s motion for summary judgment, and rendered judgment
thereon, from which the plaintiff appealed. Held that the trial court
improperly granted S Co.’s motion for summary judgment on the ground
that S Co. had the authority to promulgate a rule that limited its liability
for disruptions to water service, and, accordingly, the judgment was
reversed and the case was remanded for consideration of the defendant’s
alternative ground for summary judgment: it was clear, from the text
of the special act, that the legislature did not expressly empower the
defendant to promulgate a rule immunizing itself from liability for the
failure to supply water, and the defendant’s authority to limit its liability
for the negligent disruption of water could not be necessarily implied,
as there was no textual or rational basis in the special act to infer that
such authority was necessary to effectuate any other authority expressly
conferred, the imposition of liability for the disruption of water service
would not impair S Co.’s authority to set rates and sell water, or impair
the ability of S Co. to set rates sufficient to cover costs, and S Co.
was not subject to comprehensive regulation of its rates, services and
facilities by the state’s public utilities regulatory authority and, therefore,
faced no impediment to setting rates sufficient to cover the cost of
insurance or its liability in the absence of insurance; moreover, S Co.’s
reliance on both the special act’s catchall provision granting S Co. the
power to do all things necessary or convenient to carry out the provisions
of the special act and the act’s statement of purpose did not provide S
Co. with authority to limit its liability for the disruption of water service.
Argued November 13, 2018—officially released April 9, 2019
Procedural History
Action to recover damages sustained as a result of
the alleged negligence of the defendant, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New London, where the court, Vacchelli, J.,
granted the defendant’s motion for summary judgment
and rendered judgment thereon, from which the plain-
tiff appealed. Reversed; further proceedings.
Santa Mendoza, for the appellant (plaintiff).
Stephanie S. Berry, with whom were Ryan L.
McLean and, on the brief, Lloyd L. Langhammer, for
the appellee (defendant).
Opinion
McDONALD, J. The dispositive question in this appeal
is whether the special act creating the defendant, South-
eastern Connecticut Water Authority, authorized the
defendant to promulgate a rule immunizing itself from
liability for failures or deficiencies in its supply of water
to its customers. The plaintiff, Raspberry Junction Hold-
ing, LLC, appeals from the trial court’s judgment render-
ing summary judgment in favor of the defendant on the
basis of such a rule. We reverse the judgment of the
trial court.
The record reveals the following undisputed facts
and procedural history. The defendant was created in
1967 by a special act of the General Assembly as a body
politic and corporate of the state, designated to perform
the ‘‘essential government function’’ of planning,
operating, and maintaining a water supply system for
the benefit of the southeastern Connecticut planning
region. 33 Spec. Acts 478, No. 381 (1967) (special act).1
Section 14 of that act sets forth the powers and duties
conferred on the defendant, including ‘‘the power: (a)
to sue and be sued . . . (i) to make . . . rules for the
sale of water and the collection of rents and charges
therefor . . . (m) to fix rates and collect charges . . .
such as to provide revenues sufficient at all times to
pay . . . the princip[al] and interest on the bonds or
notes of the authority together with the maintenance
of proper reserves, in addition to paying . . . the
expense of operating and maintaining the properties of
the authority together with proper reserves for depreci-
ation, maintenance and contingencies and all other obli-
gations and indebtedness of the authority . . . (p) to
do all things necessary or convenient to carry out the
powers expressly given in this act . . . .’’ 33 Spec. Acts
481, 483–84, No. 381, § 14 (1967).
On the basis of the authority purportedly granted to
it by § 14 of the special act, the defendant adopted
‘‘Rules Governing Water Service,’’ including rule 5, enti-
tled ‘‘SUPPLY OF WATER.’’ Rule 5 provides in relevant
part: ‘‘It is expressly agreed that the [defendant] shall
not be liable for a deficiency or failure in the supply of
water or the pressure thereof for any cause whatsoever,
or for any damage caused thereby, or for the bursting
or breaking of any main or service pipe or any attach-
ment to the [defendant’s] property. . . .’’2
In 2016, the plaintiff commenced the present action
against the defendant, seeking damages on the basis of
a loss of water service at The Bellissimo Grande Hotel
in North Stonington, operated by the plaintiff. In its one
count complaint, the plaintiff alleged that the hotel lost
water service for several days in June, 2015, due to
the explosion of a hydropneumatic tank at a pumping
station operated by the defendant as a result of the
defendant’s negligent construction, operation, inspec-
tion or maintenance of the tank and its valves. The
plaintiff further alleged that the water outage caused
the plaintiff to lose revenue due to its inability to rent
rooms and the need to give refunds to hotel guests
during the water outage.
The defendant moved for summary judgment on two
grounds. First, it contended that rule 5 immunized it
from liability for the plaintiff’s damages, and that the
rule was a proper exercise of its authority under the
special act’s grant of power to make ‘‘rules for the
sale of water and the collection of rents and charges
therefor.’’ See 33 Spec. Acts 483, No. 381, § 14 (i) (1967).
Second, it contended that, because the plaintiff was
seeking damages for monetary loss only, the claim is
barred by the common-law economic loss doctrine.3
The plaintiff opposed the motion, arguing that the
defendant, as a municipal corporation engaged in a
proprietary function, is not immune from suit and has
no authority, express or implied, to promulgate rules
that waive liability for negligence. The plaintiff also
argued that the economic loss doctrine does not apply
under the circumstances presented.
The trial court rendered summary judgment in favor
of the defendant. The court recognized that the defen-
dant’s authority to promulgate rule 5 depended on an
express or implied grant in the special act. It further
recognized that, as a general matter, the defendant
could be sued like a private water supply company.
Nonetheless, it reasoned that, unlike a private company,
the defendant is an administrative agency that has the
power to promulgate regulations having the force and
effect of law. On the basis of that conclusion, the court
focused its analysis exclusively on the question of
whether a rule limiting a water company’s liability for
service outages was a reasonable exercise of the defen-
dant’s rule-making authority. Finding no Connecticut
authority on this question, it relied on authority from
other jurisdictions holding that reasonable rates
required for such services depend in part on a rule
limiting liability. It also noted that other jurisdictions
generally have held that such limitations on liability are
enforceable only to the extent of ordinary negligence.
Because the present case alleged only ordinary negli-
gence, the court held that rule 5 was enforceable as to
the present action.4 In light of this conclusion, the court
did not address the applicability of the economic loss
doctrine. The plaintiff appealed from the trial court’s
judgment to the Appellate Court, and, pursuant to Gen-
eral Statutes § 51-199 (c) and Practice Book § 65-1, we
transferred the appeal to this court.
On appeal, the plaintiff renews its claim that rule
5 is unenforceable because the special act does not
expressly or impliedly grant to the defendant the power
to promulgate a rule limiting its liability otherwise
established when it acts in its proprietary capacity. The
plaintiff further asserts that rule 5 would not be a rea-
sonable exercise of authority because the defendant is
not subject to regulation that might otherwise circum-
scribe its ability to set rates to cover liability costs.5 In
response, the defendant contends that rule 5 was validly
promulgated pursuant to the special act’s express grant
of power to set reasonable rates for service and make
rules for the sale of water. Alternatively, the defendant
asserts that such authority is properly implied because
it is necessary to carry into effect its stated purpose
under the special act of benefitting the people of its
region and the state, and for the improvement of their
health, welfare and prosperity. The defendant also
argues that rule 5 is enforceable because it is essential
to its duty to set reasonable rates.
We conclude that the defendant lacked authority to
promulgate a rule, such as rule 5, that immunizes it from
liability for disruptions to water service. Therefore, we
do not reach the issue of whether rule 5 would be a
reasonable exercise of such authority.
‘‘Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Boone v. William W. Backus
Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). Because
the resolution of the issue concerning the defendant’s
authority to promulgate rule 5 presents a question of
statutory interpretation over which we also exercise
plenary review, we are guided by settled principles of
construction. See Hicks v. State, 297 Conn. 798, 800–
801, 1 A.3d 39 (2010) (setting forth process of ascertain-
ing legislative intent pursuant to General Statutes § 1-
2z, and noting that, ‘‘[w]hen construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature’’ [internal quota-
tion marks omitted]).
In considering whether the legislature, through the
special act, conferred on the defendant the authority
to immunize itself from liability for failures or deficienc-
ies in its water supply, we also must be mindful of
certain settled principles that inform the nature and
source of the defendant’s powers. By virtue of the spe-
cial act, the defendant is a municipal corporation. See,
e.g., Monroe v. Middlebury Conservation Commission,
187 Conn. 476, 483, 447 A.2d 1 (1982); Rocky Hill Conva-
lescent Hospital, Inc. v. Metropolitan District, 160
Conn. 446, 450, 280 A.2d 344 (1971); see also Sachem’s
Head Property Owners’ Assn. v. Guilford, 112 Conn.
515, 517–18, 152 A. 877 (1931) (explaining attributes of
municipal corporation). As a creation of the state, a
municipal corporation has no inherent legislative
authority. See, e.g., Monroe v. Middlebury Conserva-
tion Commission, supra, 484. Rather, ‘‘[i]t can exercise
only such powers as are expressly granted or necessar-
ily implied to enable it to carry into effect the objects
and purposes of its creation.’’ Id. ‘‘In determining
whether a municipality has the authority to adopt a
challenged . . . provision, we do not search for a statu-
tory prohibition against such an enactment; rather, we
must search for statutory authority for the enactment.’’
(Internal quotation marks omitted.) Simons v. Canty,
195 Conn. 524, 530–31, 488 A.2d 1267 (1985).
It is clear from the text of the special act that the
legislature did not expressly empower the defendant
to promulgate a rule immunizing itself from liability
for the failure to supply water. To the contrary, § 14
specifically provides that the defendant may ‘‘be sued
. . . .’’ See 33 Spec. Acts 481, No. 381, § 14 (a) (1967).
This provision appears to incorporate long-standing,
common-law principles, since codified in large part,
dictating the contours of a municipality’s liability and
immunities. See Considine v. Waterbury, 279 Conn.
830, 841–44, 905 A.2d 70 (2006) (setting forth common-
law principles of municipal immunity and recognizing
that General Statutes § 52-557n codified common-law
rule and exceptions to immunity). One such principle
provides that a political subdivision is immune from
liability when it is engaged in the performance of a
public duty for the public’s benefit but may be subject to
liability for negligent acts committed in its proprietary
capacity. Id., 842; see General Statutes § 52-557n (a)
(1);6 Martel v. Metropolitan District Commission, 275
Conn. 38, 56, 881 A.2d 194 (2005) (requiring inextricable
link or inherently close connection between specific
allegations of negligence and alleged proprietary func-
tion). ‘‘[I]t is assumed that all legislation is interpreted
in light of the common law at the time of its enactment.’’
(Internal quotation marks omitted.) State v. Courch-
esne, 296 Conn. 622, 669, 998 A.2d 1 (2010); see also
Pacific Ins. Co., Ltd. v. Champion Steel, LLC, 323 Conn.
254, 265, 146 A.3d 975 (2016) (‘‘[i]t is axiomatic that the
legislature is presumed to be aware of the common
law when it enacts statutes’’). Indeed, ‘‘[i]n determining
whether . . . a statute abrogates or modifies a [com-
mon-law] rule the construction must be strict, and the
operation of a statute in derogation of the common law
is to be limited to matters clearly brought within its
scope.’’ (Emphasis added; internal quotation marks
omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn.
259, 265, 757 A.2d 526 (2000); see Kuchta v. Arisian,
329 Conn. 530, 535, 187 A.3d 408 (2018) (because grant
of municipal authority to enact zoning regulations is
in derogation of common law, ‘‘this grant of authority
should receive a strict construction and is not to be
extended, modified, repealed or enlarged in its scope
by the mechanics of [statutory] construction’’ [internal
quotation marks omitted]).
One example of such a clear expression is found
in § 28 of the special act. That section immunizes the
defendant’s members from personal liability for torts
committed while acting within the scope of their author-
ity. See 33 Spec. Acts 492, No. 381, § 28 (1967) (‘‘[n]ei-
ther the members of the authority, nor any person acting
in its behalf, while acting within the scope of their
authority, shall be subject to any personal liabilities
resulting from the erection, construction, reconstruc-
tion, maintenance or operation of the properties or any
of the improvements of the authority or from carrying
out any of the powers expressly given in this act’’).7
There is no other language in the special act expressly
addressing the subject of liability or immunity.
The defendant’s reliance on the special act’s express
grant of power to ‘‘make . . . rules for the sale of
water’’ and to ‘‘fix rates . . . to provide revenues suffi-
cient [to meet its financial obligations]’’; 33 Spec. Acts
483–84, No. 381, § 14 (i) and (m) (1967); reflects a funda-
mental misunderstanding of the clarity required to evi-
dence such an express grant. See Marchesi v. Board
of Selectmen, 309 Conn. 608, 618, 72 A.3d 394 (2013)
(‘‘it is a well settled principle of statutory construction
that the legislature knows how to convey its intent
expressly’’ [internal quotation marks omitted]). The
degree of clarity required to manifest such an express
intent would be especially high given the language of
the special act that unambiguously makes the defendant
amenable to suit. See 33 Spec. Acts 481, No. 381, § 14
(a) (1967).
Moreover, even if we were to assume, without decid-
ing, that the grant of authority to ‘‘make . . . rules for
the sale of water’’ indicates an intent to confer law-
making authority on the defendant,8 providing immunity
to the defendant for its negligent disruption of water
service would not expressly constitute a rule ‘‘for the
sale of water.’’ The relationship between the sale of
water and liability for disruption to water service is too
attenuated. If the defendant’s construction prevailed,
every municipality and municipal corporation author-
ized to regulate a given matter would have express
authority to immunize itself for its negligence in the
performance of those matters. Such an absurd result
would largely obliterate § 52-557n and its common-law
foundation. See footnote 6 of this opinion.
Because there is no explicit authorization in the spe-
cial act, rule 5 can stand only if the defendant’s authority
to immunize itself from negligent disruption of water
supply can be ‘‘necessarily implied to enable it to carry
into effect the objects and purposes of its creation.’’
Monroe v. Middlebury Conservation Commission,
supra, 187 Conn. 484. In considering this question, we
underscore that ‘‘[m]unicipal corporations are more
strictly limited in respect to their implied power than
private corporations. The test of their right by implica-
tion to exercise any particular power is the necessity
of such power, not its convenience.’’ Wallingford v.
Wallingford, 15 Conn. Supp. 344, 347 (1948); see also
City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481
(1980). ‘‘Necessary implication refers to a logical neces-
sity; it means that no other interpretation is permitted
by the words of the [statute] construed; and so has
been defined as an implication which results from so
strong a probability of intention that an intention con-
trary to that imputed cannot be supported.’’ United
States v. Jones, 204 F.2d 745, 754 (7th Cir.), cert. denied,
346 U.S. 854, 74 S. Ct. 67, 98 L. Ed. 368 (1953). ‘‘If there
is reasonable doubt as to the existence of the power,
it does not exist. . . . Any doubt or ambiguity arising
out of the question as to whether or not a municipal
corporation has certain powers by implication must be
resolved in favor of the public.’’ (Citations omitted.)
Wallingford v. Wallingford, supra, 347; see also Pratt
v. Litchfield, 62 Conn. 112, 118, 25 A. 461 (1892).
We find no textual or rational basis to infer that such
authority is necessary to effectuate any other authority
expressly conferred. Liability for the negligent disrup-
tion of water supply services would not impair the
defendant’s authority to set rates and sell water. Nor
is there any basis to conclude that the impact of such
liability would impair the defendant’s ability to set rates
sufficient to cover costs, the sole limitation imposed
under the special act.9 The defendant readily could mini-
mize the impact of such liability by engaging in the
common business practice of procuring insurance,
which would allow the defendant to plan its business
and pass along its costs to the consumer.
Moreover, the defendant is not subject to comprehen-
sive regulation of its rates, services, and facilities by
this state’s public utilities regulatory authority. See 33
Spec. Acts 490, No. 381, § 24 (1967).10 It faces no impedi-
ment to setting rates sufficient to cover the cost of
insurance or its liability in the absence of insurance. It
is not compelled to serve customers regardless of their
ability to pay for services. As such, the case law from
other jurisdictions on which the trial court relied, which
involved water authorities subject to such regulatory
restrictions and thus implicated a corresponding public
policy justification for the right to limit liability, are
inapposite.11 See Los Angeles Cellular Telephone Co. v.
Superior Court, 65 Cal. App. 4th 1013, 1018, 76 Cal.
Rptr. 2d 894 (1998) (‘‘it is an equitable trade-off—the
power to regulate rates and to set them below the
amount an unregulated provider might otherwise
charge requires a concomitant limitation on liability’’);
see also Fax Telecommunicaciones, Inc. v. AT&T, 138
F.3d 479, 489 (2d Cir. 1998) (liability limitation provi-
sions serve two goals—prevention of price discrimina-
tion among rate payers and preservation of regulatory
agencies’ roles in deciding reasonable rates for public
utilities and services); Adams v. Northern Illinois Gas
Co., 211 Ill. 2d 32, 57, 809 N.E.2d 1248 (2004) (‘‘Liability
limitations reflect: the status of public utilities as regu-
lated monopolies whose operations are subject to
extensive restrictions; the requirements of uniform,
nondiscriminatory rates; and the goal of universal ser-
vice, achieved through the preservation of utility prices
that virtually all customers can afford. . . . The under-
lying theory of liability limitations is that, because a
public utility is strictly regulated, its liability should be
defined and limited so that it may be able to provide
service at reasonable rates. A reasonable rate is in part
dependent on a rule limiting liability. . . . The goal is
to secure reasonable and just rates for all without undue
preference or advantage to any. Since that end is attain-
able only by adherence to the approved rate, based
upon an authorized classification, that rate represents
the whole duty and the whole liability of the company.’’
[Citations omitted; internal quotation marks omitted.]).
Finally, the defendant cites both the special act’s
catchall provision, granting it the power to ‘‘do all things
necessary or convenient to carry out the powers
expressly given in this act’’; 33 Spec. Acts 484, No. 381,
§ 14 (p) (1967); and its statement of purpose, creating
the defendant to benefit the people of its region and
the state and to improve their health, welfare and pros-
perity; 33 Spec. Acts 481, No. 381 § 1 (1967); but does
not explain how either provides the requisite authority.
We previously explained why it is not necessary to
immunize the defendant from liability to carry out the
powers granted and that mere convenience is not
enough. Moreover, we previously have required a
clearer relationship between a general statement of pur-
pose and the authority claimed. See Kuchta v. Arisian,
supra, 329 Conn. 544–45 (This court noted the expansive
safety and aesthetic purposes of zoning regulations but
concluded that ‘‘[t]he mere fact that a broader interpre-
tation of advertising might more fully accomplish these
purposes does not permit us to ignore the meaning
of the term compelled under the applicable rules of
construction. We are obliged to construe the grant of
authority narrowly, as it is in derogation of common-
law property rights.’’). Indeed, it is hardly conceivable
that the legislature would have delegated to one of
its creations the wholesale power to establish its own
public policy with regard to its exposure to liability by
virtue of such aspirational terms. See generally Simons
v. Canty, supra, 195 Conn. 532 (‘‘[w]e have consistently
rejected claims that municipalities may exercise
important functions based solely on their power to pro-
mote good government’’). The legislature has estab-
lished the public policy of this state with regard to
municipal liability, and, ‘‘[i]n areas where the legislature
has spoken . . . the primary responsibility for formu-
lating public policy must remain with the legislature.’’
State v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869
(1987).
We conclude that the trial court improperly granted
the defendant’s motion for summary judgment on the
basis of immunity under rule 5. Therefore, the trial court
must consider the defendant’s alternative ground for
summary judgment on the basis of the economic loss
doctrine.
The judgment is reversed and the case is remanded
for further proceedings in accordance with the preced-
ing paragraph.
In this opinion the other justices concurred.
1
The special act has been amended several times since 1967. See, e.g.,
37 Spec. Acts 222, No. 133 (1973); Public Acts 2002, No. 02-76. The changes
effected by those amendments, however, are not relevant to this appeal.
All references herein are to the 1967 special act.
2
The record does not reflect whether rule 5 was adopted when the defen-
dant initially adopted its rules governing service in 1969, or some time
thereafter.
3
The economic loss doctrine or rule, generally characterized, reflects
the principle that a plaintiff cannot sue in tort for purely monetary loss
unaccompanied by physical injury or property damage. See generally Law-
rence v. O & G Industries, Inc., 319 Conn. 641, 661 n.15, 126 A.3d 569 (2015);
Black’s Law Dictionary (9th Ed. 2009) p. 590. We have found it unnecessary
thus far to decide whether ‘‘we should adopt the economic loss doctrine
as a categorical bar to claims of economic loss in negligence cases without
property damage or physical injury.’’ (Internal quotation marks omitted.)
Lawrence v. O & G Industries, Inc., supra, 648 n.8.
4
The trial court recognized that rule 5 purported to limit the defendant’s
liability beyond that caused by ordinary negligence but noted that the fact
that the rule may be unenforceable in other circumstances would not be
dispositive in the present case.
5
The plaintiff also claims that the defendant, as a municipal corporation,
is liable, pursuant to General Statutes § 52-557n (a) (1) (B), for damages
caused by its negligence in the performance of its proprietary function of
selling water. See Martel v. Metropolitan District Commission, 275 Conn.
38, 53, 881 A.2d 194 (2005). We do not reach this issue as governmental
immunity was not a basis for the defendant’s motion for summary judgment.
6
General Statutes § 52-557n (a) (1) provides in relevant part: ‘‘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 . . . .’’ Section 52-557n was
enacted almost two decades after the legislature enacted the special act.
See Public Acts 1986, No. 86-338, § 13.
At oral argument before this court, the defendant asserted that the preface
to subdivision (1), the phrase ‘‘[e]xcept as otherwise provided by law,’’
acknowledges that a municipal corporation with the power to promulgate
rules having the force and effect of law can adopt such rules to bar liability
otherwise imposed by statute. We disagree. Although this savings clause
includes common-law doctrines that implicate the liabilities and immunities
of municipalities; see Grady v. Somers, 294 Conn. 324, 334, 984 A.2d 684
(2009); the statute prescribes the rule, and, therefore, a coequal governmen-
tal body must also prescribe the exception, or at least the legislature must
clearly delegate the power to do so to another body with legislative powers.
7
Such a clear expression would abrogate the common-law rule. See San-
zone v. Board of Police Commissioners, 219 Conn. 179, 193, 592 A.2d 912
(1991) (at common law, ‘‘municipal officers were liable for their own torts’’);
Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185
(1988) (at common law, municipal employees faced ‘‘the same personal tort
liability as private individuals’’).
Insofar as the defendant argues that the plaintiff cannot rely on section
28 because it is limited on appeal to the language in the special act that it
relied on before the trial court, namely, the defendant’s authority to ‘‘be
sued,’’ the defendant confuses a claim with authority or evidence in support
of a claim. Even if a party fails to bring such authority or evidence to an
appellate court’s attention, the court would be free to consider any such
relevant matter.
8
Cf. General Statutes § 7-130d (b) (empowering authority that was created
by municipal ordinance as public body politic and corporate of state under
General Statutes § 7-130b ‘‘to make and, from time to time, amend and repeal
bylaws, rules and regulations not inconsistent with general law to carry
out its purposes’’ [emphasis added]); General Statutes § 7-148 (b) and (c)
(requiring municipality to exercise powers conferred on it by ordinance
when exercise has effect of creating permanent local law of general applica-
bility and conferring power to regulate various matters).
9
The defendant repeatedly mischaracterizes the special act as requiring
it to set ‘‘reasonable’’ rates, but the special act simply requires rates to be
sufficient to cover operating expenses.
10
Section 24 of the special act provides in relevant part that ‘‘[n]either
the public utilities commission nor any other board or commission of like
character shall, unless expressly authorized herein, have jurisdiction over
the authority in the management and control of its properties or operations
or any power over the regulations of the rates fixed or charges collected
by the authority. . . .’’ 33 Spec. Acts 490, No. 381, § 24 (1967). There is
no provision in the special act expressly granting to the public utilities
commission power over the rates fixed or charges collected by the defendant.
Cf. 33 Spec. Acts 482, No. 381, § 14 (d) (1967) (expressly granting public
utilities commission authority to approve any purchase by defendant of
existing water supply systems).
11
Other cases cited by the defendant in support of its position that its
authority to promulgate rule 5 derives from the defendant’s power to set
reasonable rates for service and to make rules for the sale of water are
similarly inapposite. In those cases, the regulated utility was protected by
a liability limiting policy adopted by the regulatory commission pursuant
to its broad supervisory and regulatory powers. See Waters v. Pacific Tele-
phone Co., 12 Cal. 3d 1, 4, 10, 523 P.2d 1161, 114 Cal. Rptr. 753 (1974) (award
of damages against regulated public utility is contrary to policy of limiting
liability that was adopted by regulatory commission); Danisco Ingredients
USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 765–68, 986
P.2d 377 (1999) (determining that regulatory commission had authority to
approve liability limiting tariffs as integral part of its rate-making process);
Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 106–10, 825 P.2d 588 (1992)
(regulated public utility was immune from negligence action on basis of
generally applicable liability limiting tariff promulgated by public service
commission); see also Landrum v. Florida Power & Light Co., 505 So. 2d
552, 553–54 (Fla. App.) (setting forth public policy of Florida that recognizes
validity of liability limiting tariffs approved by that state’s regulatory commis-
sion), review denied, 513 So. 2d 1061 (Fla. 1987).