Washburne v. Town of Madison ( 2017 )

 BENJAMIN WASHBURNE ET AL. v. TOWN OF
MADISON ET AL.
(AC 38721)
Alvord, Sheldon and Prescott, Js.
Syllabus
The plaintiff W, individually and on behalf of her minor son, B, who had
sustained a broken leg when he was kicked in the shin area by another
student while playing soccer in a third grade physical education class,
sought to recover damages for negligence from the defendants, the
town of Madison, the town’s Board of Education, the principal of the
elementary school where B was injured, and D, a substitute physical
education teacher who was supervising B’s class at the time of his injury.
W alleged that B was not wearing shin guards at the time he was injured
and that the defendants did not provide B or other children with shin
guards, which she alleged violated existing school policies and resulted
in B’s injuries. The trial court granted the defendants’ motion for sum-
mary judgment on the ground of governmental immunity and rendered
judgment thereon, from which W appealed to this court. Held:
1. The trial court properly granted the defendants’ motion for summary
judgment, the court having determined that the acts or omissions under-
lying W’s negligence claims were discretionary in nature and, thus,
subject to governmental immunity; the defendants having presented
evidence to demonstrate that the decision of whether to require shin
guards involved the exercise of judgment and, thus, inherently was
discretionary in nature, and W having failed to meet her burden of
demonstrating the existence of a clear and unequivocal policy or other
written directive mandating the use of shin guards by the town’s third
grade students, W failed to establish her claim that a genuine issue of
material fact existed about whether safety guidelines in the board’s
physical education guide, specifically, a provision indicating that stu-
dents should wear shin guards for additional protection, created a minis-
terial duty the implementation of which was not protected by
governmental immunity, as she did not produce any regulation, rule or
other directive promulgated by the town or the board that required all
students to wear shin guards whenever playing soccer.
2. W could not prevail on her claim that, even if the defendants’ acts or
omissions were discretionary in nature, there remained a genuine issue
of material fact as to whether B had been subject to imminent harm
and, thus, fell within the identifiable person/imminent harm exception
to governmental immunity; W presented no evidence that D or the other
defendants were aware that an injury similar to the one suffered by B
was so likely to happen that they should have acted to prevent it by
requiring the students to wear shin guards, nor did W present any
evidence to dispute certain of the board’s interrogatory answers, which
demonstrated that the probability of soccer related injuries in gym class
was very low, or to show that the number of injuries was low because
students usually wore shin guards when playing soccer, and although
W presented evidence that it was apparent to the defendants that an
injury to a child playing soccer without shin guards could occur, the
foreseeability of such an injury did not translate to imminent harm
without a showing that the probability that the injury would occur
from the lack of shin guards was high enough to necessitate that the
defendants act to prevent it.
Argued March 9—officially released August 15, 2017
Procedural History
Action to recover damages for the defendants’ alleged
negligence, brought to the Superior Court in the judicial
district of New Haven, where the court, Nazzaro, J.,
granted the defendants’ motion for summary judgment
and rendered judgment thereon; thereafter, the court
denied the plaintiffs’ motion to reargue, and the plain-
tiffs appealed to this court. Affirmed.
Hugh D. Hughes, with whom, on the brief, were
Brian Flood and Alexander Bates, for the appellants
(plaintiffs).
Matthew Dallas Gordon, with whom, on the brief,
was Nicholas Norton Ouellette, for the appellees
(defendants).
Opinion
PRESCOTT, J. The plaintiff, Jennifer Washburne,
who brought the underlying action on behalf of her
minor son, the plaintiff Benjamin Washburne (Benja-
min), and herself individually,1 appeals from the sum-
mary judgment rendered by the trial court in favor of the
defendants—the town of Madison (town); the town’s
Board of Education (board); Kelly Spooner, the princi-
pal of Ryerson Elementary School (Ryerson Elemen-
tary); and Erik Delehanty, a substitute physical
education teacher—on the ground that the action was
barred by governmental immunity.2 According to the
complaint, Benjamin’s leg was broken when he was
kicked in the shin or ankle by another student while
playing soccer at school. The incident occurred during
a physical education class at Ryerson Elementary that
Delehanty was supervising. The defendants did not pro-
vide Benjamin or the other children with shin guards,
and Benjamin was not wearing shin guards at the time
he was injured, which the plaintiff alleged violated
existing school policies and resulted in Benjamin’s
injuries.
The plaintiff claims on appeal that the court improp-
erly rendered summary judgment as a matter of law
despite the existence of genuine issues of material fact
regarding (1) whether safety guidelines in a curriculum
guide, which provided that students playing soccer
should ‘‘wear shin guards for additional protection,’’
imposed a ministerial duty on the defendants to require
the use of shin guards by students, and (2) whether,
even if such a duty was discretionary, Benjamin had
been subject to imminent harm and, thus, an exception
to governmental immunity was applicable. We disagree
and, accordingly, affirm the judgment of the trial court.
The record before the court, viewed in the light most
favorable to the plaintiff as the nonmoving party,
reveals the following facts and procedural history. On
March 16, 2010, Benjamin was a third grade student at
Ryerson Elementary. On that day, as part of an orga-
nized activity during a gym class supervised by Deleh-
anty, Benjamin and his classmates were permitted to
play soccer on the school’s athletic field. Before
allowing them to play, Delehanty instructed the children
about safety and the rules of the game, but he did
not require the children to wear shin guards. Several
minutes into the scrimmage, Benjamin was kicked in
the shin or ankle by another student, which resulted in
a fracture to Benjamin’s lower left tibia and fibula.
The plaintiff commenced this action against the
defendants on February 3, 2012. The complaint con-
tained eight counts, each sounding in negligence. Count
one invoked General Statutes § 52-557n and claimed
that Benjamin’s injuries were the result of negligence
by the town. The next three counts of the complaint,
which also were brought on behalf of Benjamin, alleged
negligence on the part of Spooner, Delehanty, and the
board, respectively. The remaining four counts, one
against each of the defendants, were brought by the
plaintiff in her individual capacity to recover funds
spent caring for Benjamin’s injuries and on his recovery.
The gravamen of the plaintiff’s negligence claims was
that rules, policies, or procedures of the school district
required students to wear shin guards when playing
soccer, but no shin guards were provided to Benjamin
on the day he was injured.3
The defendants filed an answer to the complaint on
November 20, 2012, denying the negligence allegations.
They also asserted by way of a special defense that the
town and its agents were immune from liability for
any alleged negligence on the basis of governmental
immunity, citing § 52-557n (a) (2) (B). The plaintiff filed
a reply denying all allegations of the special defense.
On August 1, 2014, the defendants filed a motion for
summary judgment. The defendants claimed that they
were entitled to judgment on all counts of the complaint
as a matter of law because of the discretionary act
immunity afforded by § 52-557n (a) (2) (B), and because
the plaintiff could not show that Benjamin was an identi-
fiable person subject to imminent harm, as required
to fall within the relevant exception to governmental
immunity. In support of the motion for summary judg-
ment, the defendants submitted a memorandum of law
attached to which were excerpts from copies of the
depositions of Spooner and Delehanty.
The plaintiff filed an opposition to the motion for
summary judgment on March 19, 2015. According to
the plaintiff, there were genuine issues of material fact
that should be resolved by the jury concerning whether
the defendants had a ministerial duty, as set forth in a
school policy or directive, to ensure that students wore
shin guards when playing soccer at school. The plaintiff
further argued that, even if the decision to require shin
guards was discretionary in nature, there remained a
genuine issue of material fact as to whether Benjamin
was an identifiable person subject to imminent harm,
and, thus, whether an exception to governmental immu-
nity applied. Attached as exhibits to the opposition were
portions of the town’s responses to interrogatories; a
chart from a curriculum guide titled ‘‘Madison Public
Schools Physical Education Program: A Framework for
Integrated Teaching and Learning’’ (physical education
guide); portions of Madison Public Schools’ ‘‘Student
Welfare/Safety Requirements’’; and additional excerpts
from Spooner’s and Delehanty’s depositions.
The defendants filed a reply memorandum in support
of summary judgment and in response to the plaintiff’s
opposition on July 1, 2015. Attached to the reply was
an affidavit by James Flanagan, a physical education
teacher and physical education coordinator for the
board who was responsible for the drafting of the physi-
cal education guide; additional excerpts from the physi-
cal education guide; and a copy of Benjamin’s ‘‘Medical
Release From Elementary Physical Education,’’ which
indicated that, despite a physical issue regarding his
foot, he could participate in most regular physical edu-
cation activities, including playing soccer. The only
restricted activity noted was participation in the mile
run.
The plaintiff filed a response to the reply memoran-
dum on July 31, 2015, attached to which were excerpts
from a publication titled ‘‘Madison Public Schools
Department of Athletics 2009–2013 Handbook for Stu-
dent-Athletes, Parents and Coaches’’; excerpts from
Flanagan’s deposition testimony; and another copy of
Flanagan’s affidavit. That same day the defendants filed
a short surreply. The court, Nazzaro, J., heard argument
on the motion for summary judgment at a hearing on
August 3, 2015.
On November 5, 2015, the court issued a memoran-
dum of decision rendering judgment on all counts of
the complaint in favor of the defendants. The court
concluded on the basis of the pleadings and evidence
submitted by the parties that the defendants were enti-
tled to governmental immunity as a matter of law. Spe-
cifically, the court determined that the defendants had
established their prima facie entitlement to summary
judgment because the court’s construction of relevant
excerpts from the physical education guide and the
averments of Flanagan established that the use of shin
guards by students was not a mandatory requirement
but, rather, involved a discretionary determination as
to whether the extra protection afforded by shin guards
was warranted under the circumstances. The court also
determined that the evidence submitted by and relied
upon by the plaintiff in opposition to the summary judg-
ment motion failed to raise a genuine issue of material
fact regarding whether the supervision of students play-
ing soccer during a physical education class was a min-
isterial act or that any policy or procedure in place was
intended to limit the discretion of the defendants or
prescribe ‘‘how to instruct on and provide safety equip-
ment for soccer played during physical education
class.’’
The court also determined that the plaintiff had failed
to establish that a genuine issue of material fact existed
regarding the identifiable person/imminent harm excep-
tion to governmental immunity. In particular, the court
stated that the plaintiff’s arguments and evidence could
not support a determination that the harm suffered was
imminent. The court reasoned that although the plaintiff
had established that a potential for injury may have
been apparent to the defendants, she had failed ‘‘to
present evidence to demonstrate that the probability
of injury to students from not wearing shin guards in
gym class was so high that the defendants had a clear
and unequivocal duty to act immediately to prevent
harm, namely, to provide shin guards for students.’’ The
plaintiff filed a motion for reargument and reconsidera-
tion, which the court denied. This appeal followed.
Before turning to the plaintiff’s claims on appeal, we
begin by setting forth the standard of review applicable
to a trial court’s decision to grant a motion for summary
judgment. ‘‘Practice Book § [17-49] provides that sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law. . . . In deciding a motion for summary judg-
ment, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . . The party
seeking summary judgment has the burden of showing
the absence of any genuine issue [of] material facts
which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law . . . and
the party opposing such a motion must provide an evi-
dentiary foundation to demonstrate the existence of a
genuine issue of material fact. . . . [I]ssue-finding,
rather than issue-determination, is the key to the proce-
dure. . . . [T]he trial court does not sit as the trier of
fact when ruling on a motion for summary judgment.
. . . [Its] function is not to decide issues of material
fact, but rather to determine whether any such issues
exist. . . . Our review of the decision to grant a motion
for summary judgment is plenary. . . . We therefore
must decide whether the court’s conclusions were
legally and logically correct and find support in the
record.’’ (Internal quotation marks omitted.) DiMiceli
v. Cheshire, 162 Conn. App. 216, 221–22, 131 A.3d
771 (2016).
I
The plaintiff first claims that the court improperly
rendered summary judgment as a matter of law because
a genuine issue of material fact existed about whether
safety guidelines in the board’s physical education
guide, specifically, a provision indicating that students
should ‘‘wear shin guards for additional protection,’’
created a ministerial duty, the implementation of which
was not protected by governmental immunity. We are
not persuaded.
The following additional facts are relevant to this
claim. In opposing summary judgment, the plaintiff
argued that the defendants had a ministerial duty to
ensure that all children wore shin guards when playing
soccer during physical education classes. In support of
that argument, the plaintiff cited to the physical educa-
tion guide, which included a section titled ‘‘Safety
Guidelines.’’ That section was in chart format, broken
down by sport. Under each sport heading, there were
five columns with the following subheadings: ‘‘equip-
ment,’’ ‘‘clothing/footwear,’’ ‘‘facilities,’’ ‘‘special rules/
instruction,’’ and ‘‘supervision.’’ For soccer, the follow-
ing bullet points were listed under the subheading of
clothing/footwear: ‘‘no metal or molded cleats’’; ‘‘wear
suitable footwear and clothing’’; ‘‘wear shin guards for
additional protection’’; ‘‘wear sun protection’’; and
‘‘no jewelry.’’
In Flanagan’s affidavit, he averred that the use of shin
guards was, as indicated in the safety guidelines, only
for additional or extra protection, and was meant only
as a suggestion to be exercised at the discretion of
the individual teacher, not as an absolute requirement.
Flanagan also explained that one of the reasons that
shin guards were not mandatory equipment was
because cleats were prohibited in gym class. He further
indicated that there were no notes, records, or other
information on file that would have alerted Delehanty
that Benjamin needed the additional protection of shin
guards. The plaintiff submitted no counteraffidavit or
evidence, other than the physical education guide, to
directly contradict Flanagan’s explanation of the
guide.
We next set forth the well settled law in this state
regarding the liability of municipalities and municipal
agents. Although, at common law, a municipality gener-
ally was immune from liability for any tortious acts, our
Supreme Court has long recognized that ‘‘governmental
immunity may be abrogated by statute.’’ Williams v.
New Haven, 243 Conn. 763, 766, 707 A.2d 1251 (1998),
citing Wysocki v. Derby, 140 Conn. 173, 175, 98 A.2d
659 (1953). 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: (A) The negli-
gent acts or omissions of such political subdivision or
any employee, officer or agent thereof acting within
the scope of his employment or official duties . . . .’’
‘‘This language clearly and expressly abrogates the tra-
ditional common-law doctrine in this state that munici-
palities are immune from suit for torts committed by
their employees and agents.’’ Spears v. Garcia, 263
Conn. 22, 29, 818 A.2d 37 (2003).
Subdivision (2) of § 52-557n (a), however, contains
two significant limitations to the statutory abrogation
of governmental immunity. The exception at issue in
the present appeal provides as follows: ‘‘Except as oth-
erwise provided by law, a political subdivision of the
state shall not be liable for damages to person or prop-
erty caused by . . . (B) 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.’’ General Statutes § 52-557n
(a) (2) (B). The statutory scheme of § 52-557n, accord-
ingly, distinguishes between discretionary and ministe-
rial acts, ‘‘with liability generally attaching to a
municipality only for negligently performed ministerial
acts, not for negligently performed discretionary acts.
. . .
‘‘The hallmark of a discretionary act is that it requires
the exercise of judgment. . . . In contrast, [m]inisterial
refers to a duty which is to be performed in a prescribed
manner without the exercise of judgment or discretion.
. . . In order to create a ministerial duty, there must
be a city charter provision, ordinance, regulation, rule,
policy, or any other directive [compelling a municipal
employee] to [act] in any prescribed manner.’’ (Citation
omitted; internal quotation marks omitted.) DiMiceli v.
Cheshire, supra, 162 Conn. App. 224.
It is important to emphasize that ‘‘[e]xceptions to
governmental immunity will be found only if there is a
duty to act that is so clear and unequivocal that the
policy rationale underlying discretionary act immu-
nity—to encourage municipal officers to exercise judg-
ment—has no force.’’ (Emphasis added; internal
quotation marks omitted.) Ventura v. East Haven, 170
Conn. App. 388, 402, 154 A.3d 1020, cert. granted, 325
Conn. 905, 156 A.3d 537 (2017), citing Bonington v.
Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). Thus,
only ‘‘[i]f by statute or other rule of law the official’s
duty is clearly ministerial rather than discretionary’’
will a cause of action then lie for an individual injured as
a result of an official’s allegedly negligent performance.
(Emphasis added.) Shore v. Stonington, 187 Conn. 147,
153, 444 A.2d 1379 (1982).
‘‘Although the determination of whether official acts
or omissions are ministerial or discretionary is normally
a question of fact for the fact finder . . . there are
cases [in which that determination] is apparent from
the complaint. . . . [W]hether an act or omission is
discretionary in nature and, thus, whether governmen-
tal immunity may be successfully invoked pursuant to
§ 52-557n (a) (2) (B), turns on the character of the
act or omission complained of in the complaint. . . .
Accordingly, where it is apparent from the complaint
that the defendants’ allegedly negligent acts or omis-
sions necessarily involved the exercise of judgment, and
thus, necessarily were discretionary in nature, summary
judgment is proper.’’ (Citation omitted; emphasis omit-
ted; internal quotation marks omitted.) DiMiceli v.
Cheshire, supra, 162 Conn. App. 224–25.
Furthermore, as this court explained in Ventura v.
East Haven, supra, 170 Conn. App. 388, anytime a deter-
mination of whether official acts are ministerial or dis-
cretionary ‘‘turns on the interpretation of a municipal
ordinance or policy,’’ this raises a question of law that
‘‘is inappropriate for a jury to decide.’’ Id., 403, citing,
inter alia, Honulik v. Greenwich, 293 Conn. 698, 710,
980 A.2d 880 (2009) (noting principles of statutory con-
struction govern interpretation of town policies), and
General Accident Ins. Co. of America v. Powers, Bolles,
Houlihan & Hartline, Inc., 38 Conn. App. 290, 296–97,
660 A.2d 369 (improper to instruct jury to decide ques-
tion of law requiring statutory interpretation), cert.
denied, 235 Conn. 904, 665 A.2d 901 (1995). The interpre-
tation of policy language is, thus, properly decided by
the court, subject to our plenary review. Ventura v.
East Haven, supra, 403.
As indicated, we construe a municipally created rule,
directive, or policy pursuant to the principles of statu-
tory construction. ‘‘The principles that govern statutory
construction are well established. When construing a
statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature. . . .
In other words, we seek to determine, in a reasoned
manner, the meaning of the statutory language as
applied to the facts of [the] case, including the question
of whether the language actually does apply. . . . In
seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) Id., 404–405.
Turning to the present case, we are unconvinced on
the basis of our review of the evidence submitted in
conjunction with the summary judgment proceedings
that any language in the safety guidelines clearly
imposed a ministerial duty on the defendants to provide
Benjamin and the rest of his classmates with shin guards
or to ensure that shin guards were worn whenever
the children played soccer. The defendants presented
evidence to demonstrate that the decision of whether
to require shin guards involved the exercise of judgment
and, thus, was inherently discretionary in nature, and
the plaintiff simply provided no evidence in rebuttal
that raised a genuine issue of material fact on that issue.
The plaintiff, in arguing that the defendants violated
a ministerial duty, had the burden of demonstrating the
existence of a clear and unequivocal policy or other
written directive mandating the use of shin guards by
the town’s third grade students. In attempting to meet
that burden, the plaintiff primarily relied upon language
found in the soccer section of a chart taken from the
board’s physical education guide. Specifically, the plain-
tiff directs the court’s attention to a single bullet point
stating, ‘‘wear shin guards for additional protection.’’
That language by itself, however, is not the type of clear,
directory language that courts have found to impose on
schools or physical education teachers a ministerial
duty ‘‘to be performed in a prescribed manner without
the exercise of judgment or discretion.’’ (Internal quota-
tion marks omitted.) DiMiceli v. Cheshire, supra, 162
Conn. App. 224. For example, nowhere in the guide is
it stated that gym teachers are ‘‘required to,’’ ‘‘must,’’
or ‘‘shall ensure’’ that all students wear shin guards
whenever playing soccer. The plaintiff has not produced
any regulation, rule, or other directive promulgated by
the town or the board to that effect.
Significantly, the chart relied on by the plaintiff
comes from a section of the physical education guide
titled, ‘‘Materials and Resources,’’ in a subsection titled
‘‘Physical Education Safety Guidelines.’’ The words
‘‘Safety Guidelines’’ are also clearly printed on top of
the chart. The inclusion of the safety guidelines in this
chapter suggests that they were intended to be used by
teachers as a ‘‘resource’’ or information, rather than as
strict policy directives that they were obligated to
adhere to without the exercise of discretion or indepen-
dent judgment. In common parlance, a ‘‘guideline’’ is
generally understood to reflect an informed suggestion
or a best practice. Thus, the use of the term ‘‘guidelines,’’
rather than ‘‘mandates’’ or ‘‘directives,’’ implies that,
except where accompanied by specific and clear direc-
tory language, the bullet points in the safety guideline
charts were informative rather than mandatory in
nature.
Certainly, taken out of context, the phrase ‘‘wear shin
guards’’ might be construed, as a matter of grammar,
as an imperative statement, arguably mandating the use
of shin guards. In the present case, however, that phrase
is followed by the modifier, ‘‘for additional protection,’’
suggesting that some additional judgment or discretion
needed to be exercised to determine whether such addi-
tional protection was needed before the phrase would
become directive. Furthermore, the phrase is but one of
several bullet points addressing clothing and footwear,
and follows a more clearly directive notation, ‘‘no metal
or molded cleats.’’ Because cleats are expressly forbid-
den in gym classes, this logically renders the use of
shin guards relatively less important as a safety concern
and, in fact, renders more significant the latter, ‘‘for
additional protection,’’ language. Moreover, in the sec-
tion of the chart dedicated to ‘‘special rules/instruc-
tions’’ for soccer, there is nothing requiring an
instruction on the use of shin guards, which one would
expect to find if the use of shin guards were, in fact,
mandatory.
To the extent that the phrase ‘‘wear shin guards for
additional protection’’ is ambiguous, and thus suscepti-
ble to different meanings, that fact alone supports a
determination that the language in the physical educa-
tion guide was not intended to be a clear and unequivo-
cal waiver of governmental immunity. That notion finds
further support in Flanagan’s affidavit, in which he
describes the physical education guide as generally rep-
resenting ‘‘an articulation of what students should know
and be able to do and supports teachers in knowing
how to achieve these goals.’’ Flanagan’s understanding
comports with our own construction of the guide as
simply a resource for information, and undermines the
plaintiff’s position that the safety guidelines in the guide
were intended as mandates that the defendants were
obligated to adhere to without the exercise of dis-
cretion.
In short, the sole evidence before us regarding the
intent of the drafters of the physical education guide
and the language in question indicates that it was simply
intended to provide information that shin guards could
be worn for additional protection. As we have already
concluded, whether extra protection was needed and
whether to utilize shin guards in any given situation
required the exercise of judgment and, in the present
case, fell within the discretion exercised by the
defendants.
We are unconvinced that the trial court improperly
determined that the acts or omissions underlying the
plaintiff’s negligence claims were discretionary in
nature and, thus, subject to governmental immunity.
Accordingly, we reject the plaintiff’s claim.
II
We next turn to the plaintiff’s alternative claim that,
even if the defendants’ acts or omissions were discre-
tionary in nature, the court improperly granted the
defendants’ motion for summary judgment because
there remained a genuine issue of material fact as to
whether Benjamin had been subject to imminent harm
and, thus, fell within the identifiable person/imminent
harm exception to governmental immunity.4 We
disagree.
‘‘The imminent harm exception to discretionary act
immunity [for municipalities and their employees]
applies 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 . . . . By its own terms, this test requires three
things: (1) an imminent harm; (2) an identifiable [per-
son]; and (3) a public official to whom it is apparent
that his or her conduct is likely to subject that [person]
to that harm. . . . [Our Supreme Court has] stated pre-
viously that this exception to the general rule of govern-
mental immunity for employees engaged in
discretionary activities has received very limited recog-
nition in this state. . . . [T]he ultimate determination
of whether [governmental] immunity applies is ordi-
narily a question of law for the court . . . [unless] there
are unresolved factual issues material to the applicabil-
ity of the defense . . . [in which case] resolution of
those factual issues is properly left to the jury.’’ (Internal
quotation marks omitted.) Strycharz v. Cady, 323 Conn.
548, 573–74, 148 A.3d 1011 (2016).
In Haynes v. Middletown, 314 Conn. 303, 101 A.3d
249 (2014), our Supreme Court reexamined and clarified
our jurisprudence with respect to the principle of immi-
nent harm. The court overruled in part its prior holding
in Burns v. Board of Education, 228 Conn. 640, 650,
638 A.2d 1 (1994), to the extent that it appeared to
narrow the definition of imminent harm to harms arising
from dangerous conditions that were temporary in
nature. Haynes v. Middletown, supra, 322–23. Instead,
it reemphasized its earlier interpretation of imminent
harm as stated in its decision in Evon v. Andrews, 211
Conn. 501, 559 A.2d 1131 (1989), in which it explained
that a harm is not imminent if it ‘‘could have occurred
at any future time or not at all’’; id., 508; and clarified
that it ‘‘was not focused on the duration of the alleged
dangerous condition, but on the magnitude of the risk
that the condition created.’’ (Emphasis omitted.)
Haynes v. Middletown, supra, 322. ‘‘[W]hen the court
in Haynes spoke of the magnitude of the risk . . . it
specifically associated it with the probability that harm
would occur, not the foreseeability of the harm.’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Williams v. Housing Authority, 159
Conn. App. 679, 704–705, 124 A.3d 537, cert. granted on
other grounds, 319 Conn. 947, 125 A.3d 528 (2015). In
sum, the Supreme Court concluded that ‘‘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.’’ Haynes
v. Middletown, supra, 322–23.
In Williams v. Housing Authority, supra, 159 Conn.
App. 679, this court construed Haynes as setting forth
the following four part test with respect to imminent
harm. ‘‘First, the dangerous condition alleged by the
plaintiff must be ‘apparent to the municipal defendant.’
. . . We interpret this to mean that the dangerous
condition must not be latent or otherwise undis-
coverable by a reasonably objective person in the posi-
tion and with the knowledge of the defendant. Second,
the alleged dangerous condition must be likely to have
caused the harm suffered by the plaintiff. A dangerous
condition that is unrelated to the cause of the harm
is insufficient to satisfy the Haynes test. Third, the
likelihood of the harm must be sufficient to place upon
the municipal defendant a ‘clear and unequivocal duty’
. . . to alleviate the dangerous condition. The court in
Haynes tied the duty to prevent the harm to the likeli-
hood that the dangerous condition would cause harm.
. . . Thus, we consider ‘a clear and unequivocal duty’
. . . to be one that arises when the probability that
harm will occur from the dangerous condition is high
enough to necessitate that the defendant act to alleviate
the defect. Finally, the probability that harm will occur
must be so high as to require the defendant to act
immediately to prevent the harm.’’ (Citations omitted;
emphasis omitted; footnote omitted.) Id., 705–706.
Applying the Haynes standard to the facts of the
present case, the plaintiff’s claim fails as a matter of
law and, thus, was properly rejected by the trial court.
The plaintiff presented no evidence that Delehanty or
the defendants were aware that an injury similar to the
one suffered by Benjamin was so likely to happen that
they should have acted to prevent it by requiring the
students to wear shin guards. The only real evidence
presented at summary judgment regarding the magni-
tude of the risk of a student being injured while playing
soccer in gym class was contained in the answers to
interrogatories provided by the board. The board was
asked to identify the number of times during the three
year period prior to Benjamin’s injury that ‘‘a student
was injured while participating in a Madison public
school gym class.’’ The response was that twenty-eight
incidents had occurred. The next interrogatory asked
the board to ‘‘identify the number of injuries which
occurred during a soccer focused gym class.’’ The
answer was none. Thus, the probability of a soccer
related injury was statistically very low. The plaintiff
presented no evidence to dispute those responses or
to show that the number of injuries was low because
students usually wore shin guards when playing soccer.
Certainly, the plaintiff presented evidence that it was
apparent to the defendants that an injury to a child
playing soccer without shin guards could occur, as evi-
denced by Flanagan’s and Delehanty’s deposition testi-
mony acknowledging the potential for such an injury.
Foreseeability of an injury, however, does not translate
to imminent harm without also showing that the proba-
bility that an injury will occur from the dangerous condi-
tion—here, the lack of shin guards—is high enough to
necessitate that the defendants act to prevent it.
Because we agree with the trial court that the plaintiff
failed to present evidence demonstrating a genuine
issue of material fact regarding the probability of injury
to students from not wearing shin guards in third grade
gym class, we reject the claim that the court improperly
granted summary judgment in favor of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For purposes of clarity and convenience, we refer in this opinion to
Jennifer Washburne as the plaintiff, and Benjamin Washburne as Benjamin.
2
Spooner and Delehanty were sued only in their official capacities.
3
As stated in the court’s memorandum of decision, the plaintiff alleged
that Benjamin’s injuries were the result of the following negligent and care-
less acts and omissions: ‘‘failure to establish rules or guidelines of supervi-
sion and protection of students participating in soccer during school hours;
failure to and/or inadequate supervision of students participating in soccer
during school hours; failure to establish guidance on how to structure soccer
to prevent injury; failure to adopt, instruct, or enforce rules to protect
students and prevent injury to students in physical activities and physical
education; failure to put in place the proper student to teacher ratio for
physical education class and sufficient staff to supervise students; failure
to properly train and screen substitute teachers, administrators, and staff
to prevent harm to students; permitted substitute teachers without proper
training to supervise students; and did not require or provide safety equip-
ment for soccer.’’ In addition, the plaintiff alleged that ‘‘the defendants knew
or should have known that participation in soccer with[out] safety equipment
subjected students to injury; permitting subordinates without proper training
to supervise students posed a risk of harm; and safety procedures were
needed and warranted.’’ In opposing summary judgment, the plaintiff limited
her argument that the alleged negligent acts or omissions of the defendants
were ministerial in nature to those allegations related to the defendants’
failure to follow existing rules requiring students to wear shin guards.
Because that is also the sole issue briefed on appeal, we need not consider
any unrelated specifications of negligence. See Verderame v. Trinity Estates
Development Corp., 92 Conn. App. 230, 232, 883 A.2d 1255 (2005) (claims
not raised and adequately briefed on appeal deemed abandoned).
4
We note that the defendants do not dispute that Benjamin was an ‘‘identi-
fiable person’’ for purposes of the exception, conceding at oral argument
on the motion for summary judgment that, as a schoolchild, ‘‘[h]e belongs,
most likely, to the only set of identifiable persons for purposes of applying
the exception that exists in Connecticut.’’ For purposes of our analysis, we
focus on the disputed issue of imminent harm.