Haynes v. Middletown ( 2014 )

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TRACEY HAYNES ET AL. v. CITY OF MIDDLETOWN
(SC 19175)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued May 19—officially released November 4, 2014
Hugh D. Hughes, with whom, on the brief, were Wil-
liam F. Gallagher and Mark A. Balaban, for the appel-
lants (plaintiffs).
Matthew Dallas Gordon, with whom were Nicholas
N. Ouellette and, on the brief, Ruth A. Kurien, for the
appellee (defendant).
Opinion
ROGERS, C. J. The primary issue that we must resolve
in this certified appeal is whether the Appellate Court
properly affirmed the judgment of the trial court setting
aside the jury verdict in favor of the plaintiffs on the
ground that the plaintiffs failed to prove the imminent
harm to identifiable persons exception to the defense
of governmental immunity. The named plaintiff, Tracey
Haynes, individually and as the parent and next friend
of Jasmon Vereen, her then minor son,1 brought this
action alleging that Vereen had been injured when he
was pushed into the jagged edge of a broken locker at
Middletown High School (school). The defendant, the
city of Middletown, raised the special defense that it
was immune from liability pursuant to General Statutes
§ 52-557n (a) (2) (B).2 The case was tried to a jury. After
the plaintiffs rested their case, the defendant filed a
motion for a directed verdict on the ground of govern-
mental immunity. The plaintiffs opposed the motion on
the ground that the exception to governmental immu-
nity for acts or omissions that subject identifiable per-
sons to imminent harm applied. The trial court deferred
action on the defendant’s motion until after the jury
returned its verdict, but the court did not instruct the
jury on the defendant’s special defense of governmental
immunity or the plaintiffs’ claim that the exception
applied. The jury ultimately returned a verdict in favor
of the plaintiffs. The defendant then filed a motion to
set aside the verdict and to render judgment for the
defendant on the ground of governmental immunity,
which the trial court granted. The plaintiffs appealed
to the Appellate Court, which affirmed the judgment
of the trial court on the alternative ground that the
plaintiffs had not pleaded the imminent harm to identifi-
able persons exception in its reply to the defendant’s
special defense. Haynes v. Middletown, 122 Conn. App.
72, 82, 997 A.2d 636 (2010). The plaintiffs then appealed
to this court, which reversed the judgment of the Appel-
late Court and remanded the case to that court with
direction to allow the parties to brief the issue on which
the Appellate Court had resolved the appeal. Haynes
v. Middletown, 306 Conn. 471, 475, 50 A.3d 880 (2012).
On remand, the Appellate Court ordered the parties to
submit supplemental briefs on that issue, but ultimately
concluded that the trial court properly had concluded
that there was insufficient evidence of imminent harm
to Vereen on the basis of the arguments that the parties
had originally presented on appeal. Haynes v. Middle-
town, 142 Conn. App. 720, 726–27, 66 A.3d 899 (2013).
This court then granted the plaintiffs’ petition for certifi-
cation to appeal on the following issue: ‘‘Did the Appel-
late Court properly determine that the trial court
judgment setting aside the jury verdict in favor of the
plaintiffs should be affirmed on the ground that the
plaintiffs had not satisfied the identifiable person, immi-
nent harm exception to governmental immunity?’’
Haynes v. Middletown, 309 Conn. 919, 919–20, 70 A.3d
1067 (2013). We conclude that, on the basis of the plain-
tiffs’ evidence, a properly instructed jury reasonably
could conclude that the defendant’s conduct had sub-
jected an identifiable person to imminent harm. We
further conclude that, because the jury was not
instructed that it was required to make this finding, the
case must be remanded to the trial court for a new
trial. Accordingly, we reverse the judgment of the Appel-
late Court.
The opinion of the Appellate Court sets forth the
following facts and procedural history. ‘‘On March 15,
2005, following their physical education class, Vereen
and other students were changing their clothes in the
boys’ locker room. Although the school had informed
students in writing that horseplay in the locker room
was not permitted, Vereen and other students were
engaged in horseplay at the time.3 Another student,
Andre Francis, pushed Vereen into a locker with an
exposed jagged and rusted edge. Vereen suffered a cut
on his arm that left a scar. According to Vereen and
Francis, the locker had been in a broken condition since
the beginning of the school year.
‘‘As a result of Vereen’s injury, the plaintiffs com-
menced an action against the defendant seeking mone-
tary damages. The plaintiffs alleged that Vereen was a
student at the school who was in the locker room with
other students on March 15, 2005, for a physical educa-
tion class. They also alleged that there was a broken
locker with an exposed jagged edge in the locker room
and that the locker had been in that condition long
enough for the exposed metal to have become rusty.
Moreover, Vereen was injured when he was pushed into
the broken locker during school hours. The complaint
also alleged that the defendant and its agents, servants
or employees were negligent, and that the action was
being brought pursuant to . . . § 52-557n. The defen-
dant denied the plaintiffs’ allegations of negligence and
asserted the special defenses of governmental immunity
and comparative negligence. The plaintiffs replied to
the defendant’s special defenses with a general denial.
‘‘The case was tried to a jury in November, 2008. At
the conclusion of the plaintiffs’ case, the defendant filed
a written motion for a directed verdict ‘on the ground
that the plaintiffs had presented no evidence to show
that the alleged actions of the defendant were governed
by any policies or procedures, as alleged in their com-
plaint. The defendant argued that the lack of any such
evidence demonstrated that the alleged negligent
actions were discretionary and not ministerial, and that
the doctrine of discretionary governmental immunity
therefore would bar the plaintiffs’ recovery.’ Counsel
for the plaintiffs acknowledged that the alleged negli-
gent acts were discretionary in nature but that the iden-
tifiable person, imminent harm exception to
governmental immunity applied because the condition
of the locker presented an imminent harm to an identifi-
able class of victims, i.e., students in the locker room.4
The court reserved judgment on the defendant’s motion
for a directed verdict, and the defendant presented
its case.
‘‘None of the parties filed a request to charge with
respect to governmental immunity or any exception
thereto, and the [trial] court did not instruct the jury
on those legal principles. On November 25, 2008, the
jury returned a verdict in favor of Vereen, although it
found him to have been 33 percent responsible for his
injury. On December 2, 2008, the defendant filed a
motion to set aside the verdict and to render judgment
in its favor. After the parties had briefed the issue and
presented the court with oral arguments, the court
issued a memorandum of decision on March 31, 2009;
see Practice Book § 16-38; in which the court granted
the defendant’s motion to set aside the verdict and
rendered judgment in its favor.5
‘‘The plaintiffs appealed to [the Appellate Court]
claiming that ‘the [trial] court improperly set aside the
verdict on the ground of governmental immunity
because (1) the defendant waived that defense by failing
to request a charge on municipal immunity and (2)
there was sufficient evidence of imminent harm for the
plaintiffs’ claim to fall within the identifiable person,
imminent harm exception to the immunity generally
afforded municipalities for the negligent performance
of discretionary acts.’ Haynes v. Middletown, supra,122 Conn. App. 73.’’ (Footnotes altered.) Haynes v. Mid-
dletown, supra, 142 Conn. App. 723–25. The Appellate
Court ultimately concluded that ‘‘the defendant did not
waive its special defense of governmental immunity by
failing to request a jury instruction and that the [trial]
court properly determined that the plaintiffs had not
produced sufficient evidence of imminent harm to pre-
vail on the exception to governmental immunity for
discretionary acts.’’ Id., 726–27.
This certified appeal followed. The plaintiffs contend
that the Appellate Court improperly determined that,
as a matter of law, they had failed to prove that the
defendant’s conduct subjected an identifiable person
to imminent harm. The plaintiffs further contend that,
if this court concludes that the Appellate Court’s deter-
mination was incorrect, this court must reinstate the
jury verdict because the defendant waived its right to
a jury determination on the issue when it failed to ask
the trial court for a jury instruction on its governmental
immunity defense. The defendant disputes the plain-
tiffs’ first claim and contends that the second claim is
not reviewable because it was not encompassed by the
certified question. It further claims that, if the second
claim is reviewable, it is meritless because it was the
plaintiffs’ obligation to ask the trial court for a jury
instruction on the imminent harm to identifiable per-
sons exception. We conclude that the Appellate Court
improperly determined that, on the basis of the evi-
dence that the plaintiffs presented at trial, no reason-
able juror could find that the defendant’s conduct had
subjected an identifiable person to imminent harm. We
further conclude that the issue of whether this court
may reinstate the jury verdict or, instead, must remand
the case to the trial court for a new trial is reviewable,
and that the case must be remanded to the trial court
for a new trial so that the fact finder may make the
determination as to whether the defendant’s conduct
subjected identifiable persons to imminent harm.
We first address the question of whether the Appel-
late Court properly determined that the plaintiffs had
failed to meet their burden of proving the imminent
harm to identifiable persons exception to governmental
immunity. The defendant does not dispute that Vereen,
as a student in a public school, was in a class of identifi-
able persons for purposes of the imminent harm to
identifiable persons exception. See Burns v. Board of
Education, 228 Conn. 640, 649, 638 A.2d 1 (1994) (public
schoolchildren are ‘‘an identifiable class of beneficiar-
ies’’ of school system’s duty of care for purposes of
imminent harm to identifiable persons exception).
Accordingly, our focus is on whether the plaintiffs made
out a prima facie case that the defendant’s acts or omis-
sions subjected Vereen to imminent harm.
We begin with the standard of review. ‘‘The standard
of review applied to directed verdicts is clear. A directed
verdict is justified if, on the evidence the jury reasonably
and legally could not have reached any other conclu-
sion. . . . In reviewing the trial court’s decision to
direct a verdict in favor of a defendant we must consider
the evidence in the light most favorable to the plaintiff.
. . . While it is the jury’s right to draw logical deduc-
tions and make reasonable inferences from the facts
proven . . . it may not resort to mere conjecture and
speculation. . . . The standard of review governing a
motion for judgment notwithstanding the verdict is the
same because a motion for judgment notwithstanding
the verdict is not a new motion, but the renewal of
a motion for a directed verdict.’’ (Citations omitted;
internal quotation marks omitted.) Gagne v. Vaccaro,
255 Conn. 390, 400, 766 A.2d 416 (2001).
We next review the law governing governmental
immunity and the imminent harm to identifiable per-
sons exception to governmental immunity. ‘‘[Section]
52-557n abandons the common-law principle of munici-
pal sovereign immunity and establishes the circum-
stances in which a municipality may be liable for
damages. . . . One such circumstance is a negligent
act or omission of a municipal officer acting within the
scope of his or her employment or official duties. . . .
[Section] 52-557n (a) (2) (B), however, explicitly shields
a municipality from liability for damages to person or
property caused by the negligent acts or omissions
which require the exercise of judgment or discretion
as an official function of the authority expressly or
impliedly granted by law.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Edgerton
v. Clinton, 311 Conn. 217, 229, 86 A.3d 437 (2014).
‘‘This court has recognized an exception to discre-
tionary act immunity that allows for liability 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 . . . . This
identifiable person-imminent harm exception has three
requirements: (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. . . . All three must be proven in order
for the exception to apply.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Id., 230–31.
‘‘[T]he ultimate determination of whether [governmen-
tal] immunity applies is ordinarily a question of law for
the court . . . [unless] there are unresolved factual
issues material to the applicability of the defense . . .
[where] resolution of those factual issues is properly
left to the jury.’’ (Internal quotation marks omitted.)
Purzycki v. Fairfield, 244 Conn. 101, 107–108, 708 A.2d
937 (1998).
In the present case, the trial court concluded that
the plaintiffs had failed to establish the imminent harm
to identifiable persons exception for two reasons. First,
the court held that, pursuant to this court’s decision in
Heigl v. Board of Education, 218 Conn. 1, 8, 587 A.2d 423(1991), the defendant had no ‘‘specific duty to supervise
high school students.’’ The trial court further concluded
that the plaintiffs had not pleaded that there was a need
for supervision in the present case because the students
engaged in roughhousing or horseplay in the vicinity
of the defective locker, and they had presented no evi-
dence to support such a claim.
Second, the trial court concluded that the defective
locker, in and of itself, did not constitute an imminent
harm. The court rejected the plaintiffs’ claim that the
locker constituted an imminent harm because the dan-
ger created by the locker could not have occurred at
any time in the future, but was limited both temporally
and geographically. See Burns v. Board of Education,
supra, 228 Conn. 650 (icy conditions on school walkway
constituted imminent harm because ‘‘the accident could
not have occurred at any time in the future; rather, the
danger was limited to the duration of the temporary
icy condition in this particularly treacherous area of
the campus’’ [internal quotation marks omitted]); see
also Purzycki v. Fairfield, supra, 244 Conn. 110 (child’s
unsupervised use of school hallway during recess con-
stituted imminent harm because it involved ‘‘a limited
time period and limited geographical area, namely, the
one-half hour interval when second grade students were
dismissed from the lunchroom to traverse [the hall-
way]’’). The trial court concluded that, instead, because
the locker could have caused an injury at any time, the
present case was governed by Evon v. Andrews, 211
Conn. 501, 508, 559 A.2d 1131 (1989), in which this court
held that a harm that ‘‘could have occurred at any future
time or not at all’’ was not an imminent harm.
With respect to the trial court’s first ground for
rejecting the plaintiffs’ claim that the defendant’s con-
duct subjected identifiable persons to imminent harm,
we conclude that the trial court’s reliance on this court’s
decision in Heigl v. Board of Education, supra, 218
Conn. 1, was misplaced. In Heigl, this court rejected
the plaintiffs’ claim that the defendant had a general
duty ‘‘to supervise the students during the hours for
school attendance . . . .’’ Id., 7; see also id., 8 (this
court has never ‘‘stated that a board of education has
a specific duty to supervise high school students’’). In
Burns v. Board of Education, supra, 228 Conn. 650–51,
however, this court distinguished Heigl on the ground
that Heigl had ‘‘turned on the public/private duty dis-
tinction of the public duty doctrine’’ and did not involve
the ‘‘foreseeable class of victim exception to govern-
mental immunity, which applies irrespective of whether
the official’s duty is technically public or private in
nature.’’ This court held in Burns that school officials
do have a general duty ‘‘to protect the pupils in [their]
custody from dangers that may reasonably be antici-
pated.’’6 Id., 649. Burns did not limit this holding to
grade school students.7 Accordingly, we conclude that
Heigl is inapplicable when the plaintiff has made a
colorable claim that the defendant’s failure to supervise
a high school student has subjected the student to immi-
nent harm.8
We next address the trial court’s conclusion, which
the Appellate Court upheld, that the plaintiffs had failed
to establish that the defective locker posed a risk of
imminent harm because the locker could have caused
an injury ‘‘at any future time or not at all.’’ Evon v.
Andrews, supra, 211 Conn. 508. Although we agree with
the plaintiffs that the facts of the present case are very
similar to the facts in Purzycki, in which this court
concluded that the injured student had been subjected
to imminent harm because the case involved ‘‘a limited
time period and limited geographical area’’; Purzycki
v. Fairfield, supra, 244 Conn. 110; we conclude that
the portion of this court’s decision in Burns, on which
Purzycki relied, holding that a harm is imminent when
the condition causing the risk of harm is temporally
limited and the risk of harm is ‘‘significant and foresee-
able’’ should be overruled.9 Burns v. Board of Educa-
tion, supra, 228 Conn. 650. To explain why, a closer
review of this court’s decisions in Evon, Purzycki and
Burns is required.
In Evon v. Andrews, supra, 211 Conn. 502, the plain-
tiffs alleged that their decedents had been killed when
a fire destroyed their residence. They claimed that the
city of Waterbury and its officers ‘‘had been negligent in
failing properly to enforce various statutes, regulations
and codes concerning the maintenance of rental dwell-
ings’’; id.; and that this negligence had subjected readily
identifiable persons—the decedents—to imminent
harm. Id., 507. This court concluded that ‘‘[t]he risk of
fire implicates a wide range of factors that can occur,
if at all, at some unspecified time in the future. . . .
This is clearly not the situation in which a police officer
stood by and watched a public brawl that resulted in
a person being shot. See Sestito v. Groton, [178 Conn.
520, 523, 423 A.2d 165 (1979)]. The present allegations
do not even rise to the level of the imminence we
rejected in Shore v. Stonington, [187 Conn. 147, 153, 444
A.2d 1379 (1982)], in which a police officer permitted a
drunk driver to continue on his way, resulting in the
death of the plaintiff’s decedent. In the present instance,
the fire could have occurred at any future time or not at
all. We cannot accept the proposition that the plaintiffs’
decedents in this case were readily identifiable victims
subject to imminent harm. As we observed in Shore v.
Stonington, supra, 157, [t]he adoption of a rule of liabil-
ity where some kind of harm may happen to someone
would cramp the exercise of official discretion beyond
the limits desirable in our society.’’ (Citation omitted;
internal quotation marks omitted.) Evon v. Andrews,
supra, 508.
Thus, this court’s decision in Evon implies that, if a
harm is not so likely to happen that it gives rise to a
clear duty to correct the dangerous condition creating
the risk of harm immediately upon discovering it, the
harm is not imminent. See Tryon v. North Branford,
58 Conn. App. 702, 712, 755 A.2d 317 (2000) (under Evon,
imminent harm is ‘‘harm ready to take place within the
immediate future’’). This reading of Evon is consistent
both with the meaning of the word ‘‘imminent’’10 and
with our case law holding that the imminent harm to
identifiable persons exception ‘‘represents a situation
in which the public official’s duty to act is [so] clear
and unequivocal that the policy rationale underlying
discretionary act immunity—to encourage municipal
officers to exercise judgment—has no force.’’ (Internal
quotation marks omitted.) Violano v. Fernandez, 280
Conn. 310, 319, 907 A.2d 1188 (2006); Durrant v. Board
of Education, 284 Conn. 91, 106, 931 A.2d 859 (2007)
(same); Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d
191 (2006) (same); Shore v. Stonington, supra, 187
Conn. 153 (‘‘[W]here the duty of the public official to
act is not ministerial but instead involves the exercise
of discretion, the negligent failure to act will not subject
the public official to liability unless the duty to act is
clear and unequivocal. . . . We have recognized the
existence of such duty in situations where it would be
apparent to the public officer that his failure to act
would be likely to subject an identifiable person to
imminent harm.’’ [Citation omitted.]); see also Boning-
ton v. Westport, 297 Conn. 297, 314, 999 A.2d 700 (2010)
(‘‘Imminent does not simply mean a foreseeable event
at some unspecified point in the not too distant future.
Rather, we have required plaintiffs to identify a discrete
place and time period at which the harm will occur.’’).
This interpretation of Evon is also consistent with our
cases recognizing that ‘‘[t]he discrete person/imminent
harm exception to the general rule of governmental
immunity for employees engaged in discretionary activi-
ties has received very limited recognition in this state.’’
(Internal quotation marks omitted.) Evon v. Andrews,
supra, 211 Conn. 507; see also Durrant v. Board of
Education, supra, 106 (same). This is because ‘‘[t]he
adoption of a rule of liability where some kind of harm
may happen to someone would cramp the exercise of
official discretion beyond the limits desirable in our
society.’’ (Internal quotation marks omitted.) Evon v.
Andrews, supra, 508.
In Burns v. Board of Education, supra, 228 Conn.
650, however, this court interpreted the discussion of
imminent harm in Evon to apply to harms arising from
dangerous conditions that are temporary, if the risk
of harm is significant and foreseeable. In Burns, the
plaintiffs, David Burns and his mother, Darlene Vrend-
burgh, alleged that Burns had been injured in a fall on
an icy high school courtyard during school hours. Id.,
642. The plaintiffs further alleged that the defendant’s
negligent failure to salt and sand the icy conditions had
subjected an identifiable victim—Burns—to imminent
harm. Id., 645. This court concluded that, unlike the
risk of fire that was at issue in Evon v. Andrews, supra,
211 Conn. 501, ‘‘this accident could not have occurred
at any time in the future; rather, the danger was limited
to the duration of the temporary icy condition in this
particularly treacherous area of the campus.11 Further,
the potential for harm from a fall on ice was significant
and foreseeable.’’ (Footnote added; internal quotation
marks omitted.) Burns v. Board of Education, supra,
650; see also id., 649 (municipal defendant had ‘‘the
duty to protect . . . pupils . . . from dangers that
may reasonably be anticipated’’). This court concluded
that, under these circumstances, the defendant’s con-
duct came within the imminent harm to identifiable
persons exception to governmental immunity.12 Id., 650.
Similarly, this court held in Purzycki that the risk of
injury from the unsupervised use of school hallways
during recess was imminent under Burns because the
case involved ‘‘a limited time period and limited geo-
graphical area’’ and ‘‘the risk of harm was significant
and foreseeable . . . .’’ Purzycki v. Fairfield, supra,
244 Conn. 110.
Thus, purporting to apply this court’s holding in Evon
v. Andrews, supra, 211 Conn. 508, that a risk of harm
is not imminent if the harm ‘‘could have occurred at any
future time or not at all,’’ the court in Burns improperly
concluded that imminent harms are harms that cannot
happen in the distant future because the condition
causing the risk of harm is temporary. Contrary to the
holding in Burns, however, this court did not hold in
Evon that imminent harms are harms that can only
happen in the immediate future because they arise from
temporary conditions. Indeed, this interpretation of
Evon defies common sense. If a condition created only
a low risk of harm, the fact that the condition was
temporary would not somehow convert a harm that
might well have never occurred into one that was immi-
nent.13 Moreover, the ‘‘significant and foreseeable’’ stan-
dard—for which the court in Burns provided no citation
of authority—appears to fall somewhere between the
demanding imminent harm standard and the ordinary
negligence standard, under which a person may be held
liable for an injury if there was an ‘‘unreasonable risk’’
that it would occur. Vendrella v. Astriab Family Ltd.
Partnership, 311 Conn. 301, 337–38, 87 A.3d 546 (2014)
(‘‘[T]he test for foreseeability is would the ordinary
[person] in the defendant’s position, knowing what he
knew or should have known, anticipate that harm of
the general nature of that suffered was likely to result
. . . . As used in this context, the phrase likely to result
means that there was an unreasonable risk that the
injury would result.’’ [Citation omitted; internal quota-
tion marks omitted.]). Finally, we note that, because
the holding in Burns that a harm is imminent if it can
only occur in the near future disregards the logic under-
lying this court’s holding in Evon, namely, that a harm
is imminent if it is so likely to happen that the duty to
act immediately is clear and unequivocal, application
of the Burns standard has led to confusion and inconsis-
tent results in cases involving temporary but recurring
dangerous conditions. Compare Colon v. Board of Edu-
cation, 60 Conn. App. 178, 187, 758 A.2d 900 (risk of
harm from opening door into school hallway was immi-
nent because ‘‘danger presented was limited in dura-
tion, as it could happen only when students are in the
hallway in a dangerous spot’’), cert. denied, 255 Conn.
908, 763 A.2d 1034 (2000), with Haynes v. Middletown,
supra, 142 Conn. App. 737 (risk of harm from jagged
edge of broken locker to which students were exposed
when they were in locker room for brief period after
gym class was not imminent because harm could have
happened at any future time or not at all).14
Accordingly, we conclude that this court in Burns
incorrectly held that a foreseeable harm may be deemed
imminent if the condition that created the risk of harm
was only temporary and the risk was significant and
foreseeable. Our statement in Evon v. Andrews, supra,
211 Conn. 508, that a harm is not imminent if it ‘‘could
have occurred at any future time or not at all’’ was
not focused on the duration of the alleged dangerous
condition, but on the magnitude of the risk that the
condition created. Accordingly, the proper standard for
determining whether a harm was imminent is whether
it was apparent to the municipal defendant that the
dangerous condition was so likely to cause harm that
the defendant had a clear and unequivocal duty to act
immediately to prevent the harm.15 We therefore over-
rule Burns and Purzycki to the extent that they adopted
a different standard.16
With this standard in mind, we turn to the evidence
in the present case. The evidence showed that the
school had informed students in writing at the beginning
of the school year that horseplay in the locker room
was prohibited. There was also evidence that school
officials knew that horseplay in the locker rooms was
an ongoing issue. In addition, there was evidence that
the locker was in a dangerous condition and that it had
been in that condition since the beginning of the school
year, seven months before the injury occurred. The jury
reasonably could have inferred from this evidence that
the dangerous condition was apparent to school offi-
cials.17 Although this evidence is far from compelling,
we are unable to conclude that no reasonable juror
could find that it was apparent to school officials that,
in combination, the ongoing problem of horseplay in
the locker room and the presence of the broken locker
were so likely to cause an injury to a student that the
officials had a clear and unequivocal duty to act immedi-
ately to prevent the harm either by supervising the
students while they were in the locker room to prevent
horseplay or by fixing the broken locker.18 Accordingly,
we conclude that the Appellate Court improperly
upheld the ruling of the trial court granting the defen-
dant’s motion to set aside the verdict in favor of the
plaintiffs and to render judgment in favor of the defen-
dant on the ground that no reasonable juror could have
found that the plaintiffs had established the imminent
harm to identifiable persons exception to governmen-
tal immunity.
We next turn to the plaintiffs’ claim that this court
should reinstate the jury verdict in their favor because
the defendant waived its right to a jury determination
on the imminent harm to identifiable persons exception
by failing to request that the jury be instructed on its
governmental immunity defense.19 We conclude that the
case must be remanded to the trial court so that the
fact finder can make a determination on this issue.
The following procedural history, some of which is
previously set forth in this opinion, is relevant to this
claim. After the plaintiffs rested their case at trial, the
defendant filed a motion for a directed verdict, claiming
that the plaintiffs’ claim was barred by governmental
immunity because the plaintiffs had not established that
the defendant’s conduct with regard to the broken
locker was ministerial rather than discretionary. Coun-
sel for the plaintiffs conceded that the defendant’s con-
duct was discretionary, but contended that it fell into
the imminent harm to identifiable persons exception
to governmental immunity. Counsel for the plaintiffs
also indicated that the defendant’s motion was a ‘‘bit
of a surprise’’ at that point in the proceedings because
the defense of governmental immunity is usually raised
in a motion to strike or a motion for summary judgment
and that, if the defendant intended to go ‘‘forward with
the defense, it would have to be decided by the jury.’’
In addition, counsel for the plaintiffs pointed out that,
although the defendant had pleaded the special defense
of governmental immunity, the defense had been ‘‘aban-
doned throughout this litigation’’ and that the defendant
had pursued no discovery on the issue. The defendant
did not contend that there was insufficient evidence
to support the imminent harm to identifiable persons
exception, but contended that that exception applied
only to the conduct of municipal employees, not to
municipalities themselves.20
The trial court did not rule on the defendant’s motion
for a directed verdict immediately, but asked the defen-
dant if it intended to present evidence. The defendant
responded that it did. After the close of the defendant’s
evidence, the case was presented to the jury without any
instruction on the defense of governmental immunity or
the exception to that defense for conduct that subjects
identifiable persons to imminent harm. After the jury
returned a verdict for the plaintiffs, the defendant filed
a motion to set aside the verdict and to render judgment
for the defendant on the ground of governmental immu-
nity, which the trial court granted. At the same time,
the trial court granted the defendant’s original motion
for a directed verdict.
The plaintiffs contend that, because the defendant
did not request a jury instruction on its defense of
governmental immunity, it waived its right to a jury
determination on the issue and, therefore, if this court
determines that there was sufficient evidence to submit
the imminent harm to identifiable persons exception
to the jury, we should reinstate the jury verdict instead
of remanding the case for a new trial. The defendant
contends that this issue was not encompassed by the
certified question. The defendant further contends that,
because the plaintiffs conceded that the defendant’s
conduct with regard to the broken locker was discre-
tionary, the defendant had established the defense of
governmental immunity and there was no reason for it
to ask for a jury charge on that question. Rather, the
defendant contends, it was up to the plaintiffs to ask
the trial court for a jury charge on the imminent harm
to identifiable persons exception.
We conclude that, under the unusual circumstances
of the present case, the fairest course is to proceed as
if the trial court had never submitted the case to the
jury, but had granted the defendant’s original motion
for a directed verdict when it was submitted. The trial
court essentially took two inherently contradictory
positions on the defendant’s motion. On the one hand,
by deferring its ruling on the motion until after the jury
returned its verdict, the court left open the question of
whether the plaintiffs had established the imminent
harm to identifiable persons exception to the defen-
dant’s governmental immunity defense. Cf. Practice
Book § 16-37 (‘‘[w]henever a motion for a directed ver-
dict . . . is denied or for any reason is not granted,
the judicial authority is deemed to have submitted the
action to the jury subject to a later determination of
the legal questions raised by the motion’’). On the other
hand, by failing to submit the issue to the jury, the
court effectively took the position that the evidence
was insufficient to support the exception.21 Indeed, the
defendant contends on appeal to this court that the
trial court properly declined to instruct the jury on the
exception because it was not supported by the evi-
dence. See Stokes v. Norwich Taxi, LLC, 289 Conn.
465, 485, 958 A.2d 1195 (2008) (‘‘If . . . the evidence
would not reasonably support a finding of the particular
issue, the trial court has a duty not to submit it to the
jury. . . . Thus, a trial court should instruct the jury
in accordance with a party’s request to charge [only]
if the proposed instructions are reasonably supported
by the evidence.’’ [Internal quotation marks omitted.]).
If the trial court believed that there was insufficient
evidence to support the imminent harm to identifiable
persons exception as a matter of law, however, it should
not have submitted the case to the jury, because the
plaintiffs could prevail only if they established the
exception.
We recognize that, because the plaintiffs had con-
ceded that the defendant would be immune pursuant
to § 52-557n (a) (2) (B) unless they established the immi-
nent harm to identifiable persons exception, the burden
was arguably on them to request an instruction on the
exception. The defendant has never claimed, however,
that the plaintiffs waived the exception by failing to
request an instruction on it.22 Rather, it has claimed
only that the plaintiffs failed to prove that the exception
applied. Indeed, the bulk of the defendant’s motion to
set aside the verdict and to render judgment in favor
of the defendant—which, obviously, was filed after the
jury returned its verdict in the plaintiffs’ favor—was
devoted to refuting the applicability of the exception
on the merits. By disputing the merits of the plaintiffs’
contention that the exception applied, the defendant
implicitly conceded that the plaintiffs could prevail on
their negligence claim if the trial court denied the
motion to set aside the verdict on the merits. Thus, this
is not a case in which a party has simply failed to raise
a claim in the trial court. The plaintiffs expressly raised
the imminent harm to identifiable persons exception
and both the defendant and the trial court proceeded
as if the merits of that claim were before the court,
even after the case was submitted to the jury without
any instruction on the exception.
Although we agree with the plaintiffs that, under
these unique circumstances, the trial court and the
defendant bear some responsibility for the failure to
submit the exception to the jury, we reject the plaintiffs’
claim that they are entitled to reinstatement of the jury
verdict. Rather, because both parties—as well as the
trial court—bear some blame for the confusion, we
conclude that the fairest course is to proceed as if the
trial court failed to instruct the jury on the exception
because it had concluded that the exception was not
supported by the evidence. In other words, we treat
the case as if the trial court had granted the defendant’s
original motion for a directed verdict and the case was
never submitted to the jury. Accordingly, we conclude
that we should remand the case to the trial court so that
the fact finder may make a finding on the defendant’s
special defense of governmental immunity and the
imminent harm to identifiable persons exception to
that defense.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court for a new trial.
In this opinion PALMER, ZARELLA, McDONALD and
ESPINOSA, Js., concurred.
1
We refer herein to Haynes and Vereen collectively as the plaintiffs and
to Vereen individually by name, where appropriate.
2
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: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(2) Except as otherwise provided by law, a political subdivision of the state
shall not be liable for damages to person or property caused by . . . (B)
negligent acts or omissions which require the exercise of judgment or discre-
tion as an official function of the authority expressly or impliedly granted
by law.’’
3
The opinion of the Appellate Court in Haynes v. Middletown, supra, 122
Conn. App. 74, sets forth the following additional facts: ‘‘[Vereen and the
other students] had approximately five minutes to change out of their gym
clothes before they were required to leave for their next scheduled class.’’
In addition, ‘‘Robert Smernoff, one of the school’s physical education
teachers at the time of the incident, testified that there were seven periods
during the school day. When [Vereen’s] physical education class had ended,
Smernoff unlocked the doors to the two locker rooms and monitored the
locker rooms while the students were changing their clothes. He testified
that horseplay was an issue at the school and that he tried to move the
students along so the incoming class would not mix with the outgoing class.
He also testified that sometimes the students would stay in the locker room
past the allotted time in order to visit with the incoming students.’’ Id., 74 n.4.
4
‘‘Despite having argued the applicability of the identifiable person, immi-
nent harm exception in response to the defendant’s motion for a directed
verdict, the plaintiffs never amended their general denial of the defendant’s
governmental immunity special defense.’’ Haynes v. Middletown, supra, 142
Conn. App. 724 n.3.
5
At the same time, the trial court also granted the defendant’s original
motion for a directed verdict.
6
We conclude later in this opinion that Burns improperly broadened the
imminent harm standard, and that to constitute imminent harm, it is not
enough to establish that a harm ‘‘may reasonably be anticipated.’’ Burns v.
Board of Education, supra, 228 Conn. 649. Rather, the risk of harm must
be so great that the municipal defendant had a clear and unequivocal duty
to act immediately to prevent it. Nevertheless, we agree with Burns to the
extent that it held that schools have a duty to protect students from imminent
harm. Id., 650.
7
This court stated in Purzycki v. Fairfield, supra, 244 Conn. 114, that
Heigl did not apply when a grade school student has been subjected to
imminent harm. Relying on this statement in Purzycki, the defendant in the
present case contends that ‘‘[t]he imposition of liability on the defendent
for failing to supervise Vereen, who was in high school, would be contrary
to existing law.’’ Thus, the defendant suggests that, because this court held
in Purzycki that Heigl does not bar municipal liability when a grade school
student has been subjected to imminent harm, Heigl does bar municipal
liability when a high school student has been subjected to imminent harm.
The latter issue, however, was not before this court in Purzycki.
Although we conclude that Heigl does not apply when the plaintiff has
raised the imminent harm to identifiable persons exception, we emphasize
that, in determining whether a harm was imminent, the fact finder may
consider all of the facts and circumstances surrounding the dangerous condi-
tion, including the characteristics of the persons who are likely to be exposed
to it. A condition that is not an imminent harm in one context may be an
imminent harm in another context. For example, a reasonable person might
conclude that, while an open fire does not pose a risk of imminent harm
to unsupervised high school students, it does pose a risk of imminent harm
to unsupervised nursery school students.
8
With respect to the trial court’s conclusion that the plaintiffs could not
prevail as a matter of law because they had not specifically alleged that
supervision of the students was required because they were known to engage
in horseplay, we disagree. The plaintiffs alleged that the defendant had been
negligent in failing to supervise the students and there was evidence that
the school knew that students engaged in horseplay in the locker room. In
addition, during closing arguments, counsel for the plaintiffs argued that it
should have been apparent to the defendant that horseplay in the locker
room created a ‘‘problem.’’ As we discuss more fully later in this opinion,
we conclude that, under these circumstances, a juror reasonably could
conclude that the defendant’s failure to supervise the students in the locker
room was negligent.
9
After oral argument in this court, we ordered the parties to submit
supplemental briefs on the question of ‘‘whether this court should overrule
its decisions in Burns v. Board of Education, [supra, 228 Conn. 640], and
Purzycki v. Fairfield, [supra, 244 Conn. 101], to the extent that they held
that the imminent harm to identifiable persons exception to governmental
immunity applies when the condition creating the risk of harm was tempo-
rary and the potential for harm was significant and foreseeable; see Burns
v. Board of Education, supra, 650; Purzycki v. Fairfield, supra, 110; and
whether this court should reaffirm the line of cases holding that, to be
deemed imminent, the risk of harm must be so likely to occur in the near
future that the municipal official’s duty to act is clear and unequivocal; see
Violano v. Fernandez, 280 Conn. 310, 319, 907 A.2d 1188 (2006) (imminent
harm to identifiable persons exception ‘represents a situation in which the
public official’s duty to act is [so] clear and unequivocal that the policy
rationale underlying discretionary act immunity—to encourage municipal
officers to exercise judgment—has no force’ . . .); Durrant v. Board of
Education, 284 Conn. 91, 106, 931 A.2d 859 (2007) (same); Doe v. Petersen,
279 Conn. 607, 615, 903 A.2d 191 (2006) (same); Shore v. Stonington, 187
Conn. 147, 153, 444 A.2d 1379 (1982) (‘[W]here the duty of the public official
to act is not ministerial but instead involves the exercise of discretion, the
negligent failure to act will not subject the public official to liability unless
the duty to act is clear and unequivocal. . . . We have recognized the exis-
tence of such duty in situations where it would be apparent to the public
officer that his failure to act would be likely to subject an identifiable person
to imminent harm.’ . . .); Tryon v. North Branford, 58 Conn. App. 702, 712,
755 A.2d 317 (2000) (imminent harm is ‘harm ready to take place within the
immediate future’).’’
10
See, e.g., The American Heritage Dictionary of the English Language
(1992) (defining ‘‘imminent’’ to mean ‘‘[a]bout to occur; impending’’); Mer-
riam-Webster’s Collegiate Dictionary (10th Ed. 1995) (defining ‘‘imminent’’
as ‘‘ready to take place; esp[ecially]: hanging threateningly over one’s head’’).
11
The court in Burns noted that ‘‘[o]ther courts, in carving out . . . excep-
tions to their respective doctrines of governmental immunity, have . . .
considered . . . the duration of the threat of injury; [Irwin v. Ware, 392
Mass. 745, 756, 467 N.E.2d 1292 (1984)] . . . .’’ (Citations omitted.) Burns
v. Board of Education, supra, 228 Conn. 647. Irwin, however, did not involve
the imminent harm to identifiable persons exception to governmental immu-
nity. Rather, that case involved the ‘‘special relationship’’ exception to the
public duty doctrine. Irwin v. Ware, supra, 762.
12
There is no suggestion in Burns or its progeny that this court intended
or had the authority to exercise its common-law authority to modify the
class of harms that would be deemed imminent for purposes of the imminent
harm to identifiable persons exception as applied to cases involving injuries
suffered by children while attending a public school. To the contrary, ‘‘[s]ince
the codification of the common law under § 52-557n, this court has recog-
nized that it is not free to expand or alter the scope of governmental immunity
therein.’’ Durrant v. Board of Education, supra, 284 Conn. 107; id. (‘‘Burns
. . . implicitly proceeded from the assumption that [§ 52-557n] had codified
the common law’’).
13
In this regard, if a condition causing a risk of harm is of short duration
and the harm actually occurs, this fact, in and of itself, does not conclusively
establish a high likelihood of harm, especially if the condition is of a recurring
nature, as it was in Burns and Purzycki. In other words, if an icy patch
forms and melts on a school walkway numerous times over the course of
the winter, every year, or a group of students walks from the lunchroom
to the recess yard once a day, every day, over the course of the school year,
and does so every year, the fact that, during the existence of one of those
temporary conditions, an injury occurred, does not necessarily imply that
the harm was imminent. Indeed, a reasonable juror could conclude that the
fact that thousands of students had walked on the icy walkway and from
the lunchroom to the recess yard over the course of the years without being
injured supports the conclusion that the harm was not imminent.
14
See also Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.
App. 262, 275, 41 A.3d 1147 (2012) (when plaintiffs alleged that municipal
defendants’ failure to properly maintain roads and drainage systems in
neighborhood resulted in repeated flooding of their property during periods
of heavy rainfall over period of years, risk of harm was not imminent because
it was not ‘‘temporary and of short duration’’ under Purzycki, but could
occur ‘‘at any time in the future, or not at all’’ under Evon); Doe v. Board
of Education, 76 Conn. App. 296, 305, 819 A.2d 289 (2003) (when plaintiff,
who was twelve year old student, alleged that she was sexually assaulted
by three other students in vacant classroom, risk of harm was not imminent
because, unlike in Burns and Purzycki, ‘‘the alleged danger . . . was not
limited to a particular area of the school and a particular time period’’). In
both of these cases, instead of holding that the harm was not imminent
because it was not temporally or geographically limited, it would have made
more sense to hold that the risk of harm was not imminent because it was
not apparent to the municipal defendant that the risk of harm was so great
that the defendant’s duty to act immediately to prevent the harm was clear
and unequivocal. See Bonington v. Westport, supra, 297 Conn. 315 (when
plaintiffs alleged that municipal defendant’s failure to enforce zoning viola-
tions had resulted in flooding of their property, harm was not imminent
because, although ‘‘rainfall inevitably would occur at that site at some point
in the future, a significant rainfall causing excessive surface runoff necessar-
ily would occur at an indefinite point in time’’).
15
For example, the risk of injury from an unprotected buzz saw in a
classroom occupied by roughhousing fifteen year old children would clearly
be imminent.
Justice Eveleigh disagrees with the imminent harm standard that we have
adopted and contends that the standard should be ‘‘whether it was, or should
have been, apparent to the municipal defendant that the dangerous condition
was so likely to cause harm in the near future that the defendant had a
clear and unequivocal duty to act to prevent the harm.’’ (Emphasis added.)
Thus, he appears to contend that the imminent harm to identifiable persons
exception should apply not only when it was actually apparent to the munici-
pal defendant that an identifiable person was subject to imminent harm,
but also when the municipal defendant was not aware of the danger, but
reasonably should have been. The question of whether the imminent harm
to identifiable persons standard should be subjective or objective has not
been raised, however, in the present case. In other words, the plaintiffs
make no claim that, if the defendant actually did not know about the broken
locker until Vereen was injured, it should still be held liable. Rather, the
plaintiffs presented evidence that the defendant knew about the broken
locker because it had been broken for many months and school officials
frequently were present in the locker room. Because the question of whether
the standard is subjective or objective is not before us, we express no
opinion on it. Moreover, it is unclear to us whether, as Justice Eveleigh
contends, the outcomes in cases such as Edgerton v. Clinton, supra, 311
Conn. 217, and Shore v. Stonington, supra, 187 Conn. 147, would have been
different if this court had applied an objective standard and, if so, why,
questions that we also need not resolve here.
16
The plaintiffs contend that, when a case involves children in a school
setting, there is no requirement that the harm be so likely to occur that the
duty to act is clear and unequivocal because, under Burns, schoolchildren
are identifiable victims as a matter of law, and this circumstance satisfies,
at least partially, the requirement that the duty to act be clear and unequivo-
cal. In addition, they contend that Burns stands for the proposition that,
‘‘[i]n school cases, children sometimes get hurt in nonurgent situations, but
the degree of control over the children and the fact that the state takes
away children from their parents who have a right to protect [them], means
that the governmental authorities should be liable for more.’’ Thus, the
plaintiffs effectively contend that Burns did not really involve the ‘‘identifi-
able persons subject to imminent harm’’ exception to governmental immu-
nity, but recognized an exception for harms to schoolchildren that are
foreseeable. (Emphasis added.) We disagree. This court in Burns stated
expressly that ‘‘[t]he only exception to the qualified immunity of a municipal
employee for discretionary acts that is of relevance to the present case
is the exception permitting a tort action in circumstances of perceptible
imminent harm to an identifiable person.’’ Burns v. Board of Education,
supra, 228 Conn. 645–46. To the extent that this court in Burns adopted a
special rule for schoolchildren, that rule was limited to the ‘‘identifiable
person’’ prong of the exception. See id., 649 (‘‘the superintendent of schools
bears the responsibility for failing to act to prevent the risk of imminent
harm to [schoolchildren] as an identifiable class of beneficiaries of his
statutory duty of care’’ [emphasis added]). In attempting to determine the
meaning of the ‘‘imminent harm’’ prong, the court relied on this court’s
statement in Evon v. Andrews, supra, 221 Conn. 508, that a harm is not
imminent if it can occur ‘‘at any future time or not at all,’’ thereby recognizing
that the ordinary imminent harm standard applied. We further note that,
the ‘‘temporary risk’’ standard that this court adopted in Burns has not been
interpreted as being limited to cases involving children in a school setting.
See Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn. App. 262,
275, 41 A.3d 1147 (2012). As we have explained, this court’s statement in
Evon means that a harm is imminent if the risk of harm is very high, not
that a harm is imminent if the condition causing the risk of harm is temporary.
Because the court in Burns misinterpreted Evon, we conclude that Burns
must be overruled.
We recognize that, in Murdock v. Croughwell, 268 Conn. 559, 574, 848
A.2d 363 (2004), this court suggested that the defendant was held liable in
Purzycki, which relied on Burns, because of ‘‘the special relationship
between a school board and the minor students under its care.’’ In Murdock,
the plaintiff, an officer with the Hartford Police Department, claimed that
his supervisor, the Hartford Chief of Police, was liable for injuries that he
suffered in a fight with another Hartford police officer while off duty, and
the city of Hartford was vicariously liable for those injuries. Id., 560–61. In
support of this claim, he relied on § 315 (a) of the Restatement (Second)
of Torts, which provides that a person has ‘‘no duty so to control the conduct
of a third person as to prevent him from causing physical harm to another
unless (a) a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third person’s conduct
. . . .’’ (Internal quotation marks omitted.) Murdock v. Croughwell, supra,
567–68. The defendant contended that this principle was embodied in this
court’s decision in Purzycki v. Fairfield, supra, 244 Conn. 111, holding that
school officials were not immune from liability to a child injured in an
unsupervised school hallway. Murdock v. Croughwell, supra, 572. This court
concluded in Murdock that Purzycki was distinguishable because: (1) ‘‘chil-
dren outside the supervision of their parents require special protection’’;
id.; and (2) Purzycki ‘‘involved the special relationship between a school
board and the minor students under its care.’’ Id., 574. We now clarify that,
although, loosely speaking, this court’s decision in Burns, on which Purzycki
relied, may be characterized as recognizing a ‘‘special relationship’’ between
school officials and schoolchildren to the extent that it held that, in a school
setting, children are deemed identifiable victims as a matter of law, Burns
and Purzycki did not hold that schoolchildren fall into the ‘‘special relation-
ship’’ exception to the common-law rule that there is no duty to protect a
person from the negligent conduct of a third person. See footnote 11 of this
opinion. Rather, as we have explained, Burns and Purzycki merely held
that, for purposes of abrogating governmental immunity, children in a school
setting are automatically deemed to be identifiable victims when they are
subject to imminent harm.
17
Although evidence that the locker had been in a dangerous condition
for a significant length of time could support a finding that the condition
did not constitute a risk of imminent harm; see footnote 13 of this opinion;
it would not compel such a finding. The jury reasonably could conclude
that the fact that an injury had not previously occurred was simply a matter
of luck, especially if students were exposed to the danger only for brief
periods during the school day.
18
Justice Eveleigh states that we have concluded that, ‘‘even though there
is no claim that the [defendant] . . . [was] aware that, from 9:06 to 9:11
a.m. [Vereen] was being subjected to imminent harm, such risk should have
been apparent to [it].’’ This characterization of our holding is incorrect.
First, we have not determined that the defendant was or should have been
aware of any imminent harm to Vereen, but have concluded only that the
evidence was sufficient for a reasonable juror to find that the defendant
was aware that Vereen was subject to imminent harm. Second, Justice
Eveleigh seems to suggest that an objective standard is somehow implicit
in our conclusion that a reasonable juror could find that the defendant was
aware that Vereen was exposed to imminent harm. See footnote 15 of this
opinion. We disagree. As we have explained, the plaintiffs can prevail if
they prove that the defendant was aware of a condition that created such
a high risk of harm to students that the defendant’s duty to correct the
condition was clear and unequivocal. Under Burns, the plaintiffs do not
have to prove that the defendant was aware that there was a risk to Vereen
for the imminent harm exception to apply. Burns v. Board of Education,
supra, 228 Conn. 649 (‘‘the superintendent of schools bears the responsibility
for failing to act to prevent the risk of imminent harm to [schoolchildren]
as an identifiable class of beneficiaries of his statutory duty of care’’). In
other words, when a condition in a school creates a risk of imminent harm,
all students are deemed to be identifiable persons subject to the risk
under Burns.
Finally, we disagree with Justice Eveleigh’s contention that there is no
difference between an unprotected buzz saw and the sharp edge of a broken
locker for purposes of an imminent harm analysis. No reasonable person
could fail to conclude that sending children into a room containing an
unprotected, operating buzz saw poses such a high risk of injury that the
municipal defendant had a clear and unequivocal duty to act immediately
to prevent the harm by removing the buzz saw or keeping children away from
it. In contrast, a reasonable person might conclude that sending children into
a room containing a broken locker with a jagged edge does not pose such
a risk.
19
The plaintiffs raised a slightly different claim on appeal to the Appellate
Court. In that appeal, they claimed that, by failing to ask for a jury instruction
on governmental immunity, the defendant had waived that defense. Haynes
v. Middletown, supra, 142 Conn. App. 731. The Appellate Court rejected
that claim; id., 734; and the plaintiffs have not challenged that ruling in
this appeal.
20
The trial court rejected this claim, and the defendant does not challenge
the court’s ruling on appeal. See Grady v. Somers, 294 Conn. 324, 349,
984 A.2d 684 (2009) (‘‘the identifiable person, imminent harm exception to
employees’ qualified immunity applies to the immunity afforded to munici-
palities for the negligent performance of discretionary acts’’).
21
We emphasize that we do not suggest that the trial court cannot defer
ruling on a motion for a directed verdict until after the jury has returned
its verdict. We conclude only that, if the trial court defers its ruling and
submits the case to the jury, it should instruct the jury as necessary on the
legal issues raised in the motion.
22
The time to raise such a claim would have been before the trial court
submitted the case to the jury. Similarly, if the trial court believed before
the case was submitted to the jury that the plaintiffs did not intend to pursue
the exception because they failed to ask for a jury instruction on it, the
court should have indicated at that time that there were no issues for
the jury to decide because the defendant had established its governmental
immunity defense as a matter of law. If it had done so, the plaintiffs presum-
ably would have immediately asked for an instruction on the exception. In
any event, it is clear that the trial court did not believe that the plaintiffs
had waived the exception because, if it had, there would have been no need
for the court to address the merits of the defendant’s motion for a directed
verdict and its motion to set aside the verdict and to render judgment for
the defendant.