Perez v. Metropolitan District Commisssion , 186 Conn. App. 466 ( 2018 )

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VIVIAN PEREZ, ADMINISTRATRIX (ESTATE OF
ANDRES BURGOS) v. METROPOLITAN
DISTRICT COMMISSION
(AC 40610)
DiPentima, C. J., and Lavine and Harper, Js.
Syllabus
The plaintiff administratrix of the estate of the decedent sought to recover
damages from the defendant, a political subdivision of the state, for the
wrongful death of the decedent, who had drowned while swimming
with a group of friends in an undesignated swimming area of a lake
that is located in a recreational area owned and operated by the defen-
dant. The plaintiff alleged that the defendant had certain ministerial
duties that it failed to perform and that this nonfeasance was a direct
and proximate cause of the decedent’s death. The defendant filed a
motion for summary judgment on the ground that the plaintiff’s claim
was barred by the doctrine of governmental immunity pursuant to the
statute (§ 52-557n) that provides immunity for discretionary acts, but
not ministerial acts, of employees of political subdivisions. In her objec-
tion to the motion, the plaintiff claimed, inter alia, that the decedent
was an identifiable person subject to imminent harm and, thus, that an
exception to governmental immunity applied. The trial court granted
the motion for summary judgment on the ground of governmental immu-
nity and rendered judgment in favor of the defendant, from which the
plaintiff appealed to this court. Held:
1. The trial court properly concluded that the plaintiff failed to establish
that a genuine issue of material fact existed as to whether the decedent’s
death was caused by the defendant’s breach of a ministerial duty:
although the plaintiff claimed that certain deposition testimony of M,
who was responsible for safety at the subject lake at the time of the
incident, that she had made a lot of changes to the safety policies at
the lake prior to the incident but that she could not recall the changes
specifically without referencing a state manual from which the changes
had been derived and which the defendant could not produce, raised a
question of fact as to whether M’s policy changes created ministerial
duties or whether they were communicated effectively to the persons
responsible for their implementation, the exhibits submitted by the
defendant in support of its motion for summary judgment clearly estab-
lished that the policies existing at the time of the incident did not create
ministerial duties with respect to preventing or rescuing an individual
from drowning in an undesignated swimming area, and M’s inability to
recall changes she made to the safety policies was not a sufficient basis
alone to conclude that there was a material dispute of fact as to that
issue; moreover, the plaintiff’s claim that, on the basis of the defendant’s
failure to preserve the state manual, she was entitled to an adverse
inference that the defendant violated a ministerial duty, which in turn
established a dispute of material fact, was unavailing, as a plaintiff,
in the context of summary judgment, cannot displace the evidentiary
foundation necessary to raise a genuine issue of material fact with the
mere supposition that an adverse inference will be instructed at trial,
and the plaintiff here failed to adduce any evidence to support the
existence of a ministerial duty in conjunction with her claim for an
adverse inference.
2. The plaintiff could not prevail on her claim that because the decedent
was an identifiable person subject to an imminent risk of harm, there
was a genuine issue of material fact as to whether the defense of govern-
mental immunity was applicable, which was based on her claim that
the decedent was an identifiable victim because he was among a group
of specific individuals swimming in an area of the subject lake where
the defendant, through its employees, arguably knew unpermitted swim-
ming frequently occurred: there was no evidence that any of the defen-
dant’s employees saw the decedent, or any member of his group, in the
undesignated swimming area prior to the incident, and in the absence
of some evidence that a person either was individually identifiable to
a public official or among a class of identifiable victims, which our
precedent limits to school children attending public school during school
hours, the first prong of the exception to governmental immunity could
not be satisfied; accordingly, this court concluded that a group of individ-
uals in an undesignated swimming area, whose presence is unknown
to the defendant, could not be deemed identifiable for the purposes of
the identifiable person, imminent harm exception, and, therefore, there
was no genuine issue of material fact as to whether the plaintiff’s claim
was barred by the doctrine of governmental immunity.
Argued October 9—officially released December 11, 2018
Procedural History
Action to recover damages for the wrongful death of
the plaintiff’s decedent as a result of the defendant’s
alleged negligence, brought to the Superior Court in
the judicial district of Hartford, where the court, Sha-
piro, J., granted the defendant’s motion for summary
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Daniel P. Scholfield, with whom, on the brief, were
Steven J. Errante and Marisa A. Bellair, for the appel-
lant (plaintiff).
Jack G. Steigelfest, with whom was Christopher M.
Harrington, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. This case arises from the untimely
death of Andres Burgos, who drowned while swimming
in Lake McDonough, a recreational area that is owned
and operated by the defendant, the Metropolitan Dis-
trict Commission.1 The plaintiff, Vivian Perez, admin-
istratrix of the estate of Andres Burgos, appeals from
the summary judgment rendered by the trial court in
favor of the defendant on the basis of governmental
immunity. On appeal, the plaintiff claims that the trial
court erred in rendering summary judgment because
there is a genuine issue of material fact with respect
to (1) whether Burgos’ death was caused by the defen-
dant’s breach of one or more of its ministerial duties,
and (2) whether Burgos was an identifiable person sub-
ject to imminent harm. We are not persuaded and,
accordingly, affirm the judgment of the trial court.
Viewed in the light most favorable to the plaintiff as
the nonmoving party, the record reveals the following
facts and procedural history. On July 9, 2011, Burgos
and a group of friends went to Lake McDonough to
swim. The lake is located principally in Barkhamsted,
and its perimeter encompasses approximately 10.5
miles. At approximately 4 p.m., the group arrived at
West Beach, which was one of three beaches on the
lake that the defendant permitted the public to use
during the late spring and summer months. Each of
these beaches was adjacent to a designated swimming
area, the boundaries of which were indicated by a string
of red and white buoys. At each beach, the defendant
also posted signs, in both English and Spanish, dis-
playing the pertinent rules and regulations, including
where swimming was permitted. Additionally, the
defendant’s employees conducted random boat patrols
throughout the lake in order to locate individuals swim-
ming outside of the designated areas.
After arriving at West Beach, Burgos and his friends
followed a trail through the woods to an area of the lake
colloquially known as ‘‘the Point.’’ The group, including
Burgos, entered the water from the Point and swam to
a small island, referred to as First Island, approximately
250 feet from shore.2 After reaching the island, the group
started back to the shore. During the return journey,
Burgos began to struggle before slipping underwater.
Upon realizing that Burgos had disappeared, mem-
bers of the group swam to shore and ran back along
the trail to West Beach to alert the defendant’s life-
guards. Once informed of the incident, several life-
guards ran to the Point, entered the water and began
to search for Burgos. Lifeguards from the other nearby
beaches, notified over the radio of a possible drowning
incident, soon arrived by boat to assist with the ongoing
rescue. Despite the relatively close proximity of the
island to the shore, the location where the group had
been swimming was estimated to be deeper than twenty
feet in some places. The depth of the water impaired
visibility and forced the defendant’s lifeguards to con-
fine their line search to the shallower areas. After
searching and not finding Burgos in the shallow sec-
tions, some of the lifeguards dove down into the deeper
parts of the channel. Approximately fifty-five minutes
after Burgos was last seen, one of the lifeguards, per-
forming a deep water dive, located him lying faceup
on the lakebed. He was retrieved and transported to
Hartford Hospital. Burgos was pronounced dead later
that day at 5:50 p.m. The cause of death was determined
to be asphyxia and drowning.
On May 2, 2013, the plaintiff commenced the present
wrongful death action against the defendant. The opera-
tive complaint alleged a single count against the defen-
dant predicated on General Statutes § 52-557n (a) (1)
(A).3 Specifically, the plaintiff alleged, inter alia, that
the defendant had a ministerial duty (1) to prevent
visitors from accessing and swimming in undesignated
areas, (2) to conduct timely boat patrols, (3) to initiate
a timely search for Burgos, (4) to contact the police,
or call 911, in a timely fashion, and (5) to possess and
maintain appropriate rescue equipment, but had failed
to perform one or more of these responsibilities, and
this nonfeasance was a direct and proximate cause of
Burgos’ death. On December 29, 2016, the defendant
filed a motion for summary judgment on the ground
that the plaintiff’s claim was barred by the doctrine of
governmental immunity pursuant to § 52-557n. In her
objection to the motion, the plaintiff argued that the
defendant had failed to meet its initial burden of negat-
ing the allegations of negligence as framed in the com-
plaint, and, alternatively, that Burgos was an
identifiable person subject to imminent harm, thus, cre-
ating an exception to governmental immunity.
In its memorandum of decision, dated June 16, 2017,
the trial court concluded that the defendant had carried
its burden of establishing that no genuine issue of mate-
rial fact existed and granted the motion for summary
judgment on the ground of governmental immunity. The
court concluded that the plaintiff had failed to adduce
evidence to raise a genuine issue of material fact as to
the existence of a ministerial duty or that Burgos was
an identifiable person subject to an imminent risk of
harm. This appeal followed. Additional facts will be set
forth as necessary.
We begin by setting forth the standard of review with
respect to an appeal from a trial court’s decision to
grant a motion for summary judgment. ‘‘Practice Book
§ [17-49] provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. . . . In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which,under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . [I]ssue-finding, rather than issue-determina-
tion, is the key to the procedure. . . . [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’s first claim is that the court erred in
concluding that she had not established a genuine issue
of material fact with regard to whether Burgos’ death
was caused by the defendant’s breach of a ministerial
duty.4 In support of her argument, the plaintiff primarily
relies on the deposition of Marcia Munoz, the individual
responsible for safety at Lake McDonough at the time
of the incident. Munoz testified that she made ‘‘a lot of
changes’’ to the defendant’s lifeguard policies prior to
2011, but that she could not recall these changes specifi-
cally without first referencing a state manual from
which the changes were derived. The defendant, how-
ever, was unable to produce the state manual, as it was
apparently lost at some point after Munoz’ retirement.
The plaintiff contends on appeal that, without knowing
precisely what changes Munoz adopted, a reasonable
jury could conclude that her changes created ministerial
duties or that her changes were not communicated
effectively to those responsible for their implementa-
tion.5 Additionally, the plaintiff argues that the defen-
dant’s failure to preserve the state manual referenced
in Munoz’ testimony created a permissible adverse
inference that the defendant violated a ministerial duty.
As a threshold matter, we acknowledge that the par-
ties do not dispute that the defendant is a political
subdivision and, therefore, entitled to the defense of
governmental immunity. ‘‘With respect to governmental
immunity, under . . . § 52-557n, a [political subdivi-
sion] may be liable for the negligent act or omission of
[its] officer[s] acting within the scope of [their] employ-
ment or official duties. . . . The determining factor is
whether the act or omission was ministerial or discre-
tionary. . . . [Section] 52-557n (a) (2) (B) . . . explic-
itly shields a [political subdivision] from liability for
damages to person or property caused by the negligent
acts or omissions which require the exercise of judg-
ment or discretion as an official function of the author-
ity expressly or impliedly granted by law. . . . In
contrast . . . officers [of a political subdivision] are
not immune from liability for negligence arising out of
their ministerial acts, defined as acts to be performed
in a prescribed manner without the exercise of judg-
ment or discretion.’’ (Citations omitted; internal quota-
tion marks omitted.) Hull v. Newtown, 327 Conn. 402,
407–408, 174 A.3d 174 (2017).
‘‘[O]fficials [of a political subdivision] are immune
from liability for negligence arising out of their discre-
tionary acts in part because of the danger that a more
expansive exposure to liability would cramp the exer-
cise of official discretion beyond the limits desirable
in our society. . . . Discretionary act immunity reflects
a value judgment that—despite injury to a member of
the public—the broader interest in having government
officers and employees free to exercise judgment and
discretion in their official functions, unhampered by
fear of second-guessing and retaliatory lawsuits, out-
weighs the benefits to be had from imposing liability
for that injury. . . . In contrast, [public officials] are
not immune from liability for negligence arising out of
their ministerial acts. . . . This is because society has
no analogous interest in permitting [them] to exercise
judgment in the performance of ministerial acts.’’ (Inter-
nal quotation marks omitted.) Ugrin v. Cheshire, 307
Conn. 364, 390–91, 54 A.3d 532 (2012).
‘‘There is a difference between laws that impose gen-
eral duties on officials and those that mandate a particu-
lar response to specific conditions.’’ Bonington v.
Westport, 297 Conn. 297, 308, 999 A.2d 700 (2010). ‘‘The
hallmark of a discretionary act is that it requires the
exercise of judgment. . . . If by statute or other rule
of law the official’s duty is clearly ministerial rather
than discretionary, a cause of action lies for an individ-
ual injured from allegedly negligent performance. . . .
[M]inisterial refers to a duty which is to be performed
in a prescribed manner without the exercise of judg-
ment or discretion. . . . [E]vidence of a ministerial
duty is provided by an explicit statutory provision, town
charter, rule, ordinance or some other written direc-
tive.’’ (Citation omitted; emphasis in original; internal
quotation marks omitted.) Ventura v. East Haven, 170
Conn. App. 388, 401–402, 154 A.3d 1020, cert. granted,
325 Conn. 905, 156 A.3d 537 (2017).
The plaintiff first argues that Munoz’ deposition testi-
mony creates a question of material fact similar to that
which was presented in Strycharz v. Cady, 323 Conn.
548, 148 A.3d 1011 (2016). In Strycharz, the plaintiff, a
high school student, was injured when he was struck by
a car while leaving school grounds to smoke a cigarette
across the street. Id., 556–57. The incident occurred
prior to the start of the school day, when school buses
were arriving to drop off students. Id., 556. In an action
against school officials, the plaintiff alleged, inter alia,
that the defendant vice principals were liable in failing
to execute their ministerial duty to assign school staff
members to bus duty the morning of the incident. Id.
565–66. On appeal, our Supreme Court reversed in part
the judgment of the trial court granting the defendants’
motion for summary judgment. Id. 572–73. Our Supreme
Court determined that the record did not support the
trial court’s decision to grant the motion for summary
judgment with regard to the vice principals’ ministerial
duty to assign school staff to bus duty because an issue
of fact remained as to whether they had distributed to
staff members the roster that identified morning bus
duty assignments. Id., 572. ‘‘After all, a bus duty roster
by itself would be useless if it is not distributed to
those charged with student supervision, informing them
about their respective posts and schedule.’’ Id. 566.
The present case is distinguishable from Strycharz.
In Strycharz, it was undisputed that a ministerial duty
existed; the issue was whether it had been followed.
See id., 554–55, 569–573. Here, the plaintiff asks this
court to speculate that the changes Munoz enacted cre-
ated ministerial duties and that these changes were not
communicated or implemented. ‘‘Although the court
must view the inferences to be drawn from the facts
in the light most favorable to the party opposing the
motion . . . a party may not rely on mere speculation
or conjecture as to the true nature of the facts to over-
come a motion for summary judgment. . . . A party
opposing a motion for summary judgment must sub-
stantiate its adverse claim by showing that there is a
genuine issue of material fact together with the evi-
dence disclosing the existence of such an issue.’’ (Inter-
nal quotation marks omitted.) Tuccio Development, Inc.
v. Neumann, 111 Conn. App. 588, 594, 960 A.2d 1071
(2008). The exhibits submitted in support of the defen-
dant’s motion for summary judgment clearly estab-
lished that the policies existing at the time of the
incident did not create ministerial duties with respect
to preventing or rescuing an individual from drowning
in an undesignated swimming area.6 We are not con-
vinced that Munoz’ inability to recall changes she made
to the safety policies at Lake McDonough is a sufficient
basis alone to conclude that there is a material dispute
of fact as to this issue.
Alternatively, the plaintiff claims that, on the basis
of the defendant’s failure to preserve the state manual
that Munoz used to amend the policies at Lake McDo-
nough, she is entitled to an adverse inference that the
defendant violated a ministerial duty, which in turn
establishes a dispute of material fact as to this issue.
Although the plaintiff does not cite any authority, nor
are we aware of any, for the claim that a permissive
adverse inference predicated on a party’s intentional
spoliation of evidence can serve to raise a genuine issue
of material fact for the purposes of defeating summary
judgment, we will nevertheless address the merits of
this contention.
As first recognized in Beers v. Bayliner Marine Corp.,
236 Conn. 769, 777–79, 675 A.2d 829 (1996), ‘‘[a]n
adverse inference may be drawn against a party who
has destroyed evidence only if the trier of fact is satis-
fied that the party who seeks the adverse inference has
proven the following. First, the spoliation must have
been intentional. . . . [There need not have been] an
intent to perpetrate a fraud by the party or his agent
who destroyed the evidence but, rather . . . the evi-
dence [must have] been disposed of intentionally and
not merely destroyed inadvertently. . . .
‘‘Second, the destroyed evidence must be relevant
to the issue or matter for which the party seeks the
inference. . . . Third, the party who seeks the infer-
ence must have acted with due diligence with respect
to the spoliated evidence. . . . Finally . . . the trier
of fact . . . is not required to draw the inference that
the destroyed evidence would be unfavorable but . . .
it may do so upon being satisfied that the above condi-
tions have been met.’’ (Internal quotation marks omit-
ted.) Surrells v. Belinkie, 95 Conn. App. 764, 770–71,
898 A.2d 232, 236 (2006). ‘‘Pursuant to Beers, a party
suffering from spoliation cannot build an underlying
case on the spoliation inference alone; for an underlying
claim to be actionable, the [party] must also possess
some concrete evidence that will support the underlying
claim.’’ (Internal quotation marks omitted.) Rizzuto v.
Davidson Ladders, Inc., 280 Conn. 225, 238, 905 A.2d
1165 (2006).7 Accordingly, in the context of summary
judgment, a plaintiff cannot displace the evidentiary
foundation necessary to raise a genuine issue of mate-
rial fact with the mere supposition that an adverse infer-
ence will be instructed at trial. Cf. id. (‘‘a plaintiff in a
product liability action cannot rely solely on the spolia-
tion inference to withstand a motion for summary judg-
ment or a motion for a directed verdict; he must also
have some independent concrete evidence of a product
defect’’). As the plaintiff here has failed to adduce any
evidence to support the existence of a ministerial duty
in conjunction with her claim for an adverse inference,
the trial court properly concluded that there was no
dispute of material fact as to this issue.
II
The plaintiff’s second claim is that Burgos was an
identifiable person subject to an imminent risk of harm
and that, therefore, there is a genuine issue of material
fact as to whether the defense of governmental immu-
nity applies. Specifically, the plaintiff argues that
Burgos was an identifiable victim because he was
among a group of specific individuals in an area of Lake
McDonough where the defendant, through its employ-
ees, arguably knew unpermitted swimming frequently
occurred. We disagree.
As we noted previously in this opinion, ‘‘governmen-
tal immunity precludes liability regardless of whether
the duty is public or private as long as the act com-
plained of is discretionary in nature and none of the
three recognized exceptions8 to discretionary act immu-
nity applies.’’ (Footnote added.) Violano v. Fernandez,
280 Conn. 310, 332, 907 A.2d 1188 (2006). One of these
exceptions, which our Supreme Court describes as
‘‘very limited,’’ arises ‘‘when the circumstances make
it apparent to [a public official] 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 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. . . . If the [plaintiff] fail[s] to
establish any one of the three prongs, this failure will
be fatal to [her] claim that [she] come[s] within the
imminent harm exception.’’9 (Internal quotation marks
omitted.) Brooks v. Powers, 328 Conn. 256, 265–66, 178
A.3d 366 (2018). Because we conclude that Burgos was
not an identifiable victim and/or within a class of identi-
fiable victims, we further conclude that the exception
does not apply.
‘‘With respect to the identifiable victim element, we
note that this exception applies not only to identifiable
individuals but also to narrowly defined identified
classes of foreseeable victims. . . . [W]hether a partic-
ular plaintiff comes within a cognizable class of foresee-
able victims for purposes of this narrowly drawn
exception to qualified immunity ultimately is a question
of law for the courts, in that it is in effect a question
of whether to impose a duty of care. . . . In delineating
the scope of a foreseeable class of victims exception
to governmental immunity, our courts have considered
numerous criteria, including the imminency of any
potential harm, the likelihood that harm will result from
a failure to act with reasonable care, and the identifiabil-
ity of the particular victim. . . . Other courts, in carv-
ing out similar exceptions to their respective doctrines
of governmental immunity, have also considered
whether the legislature specifically designated an iden-
tifiable subclass as the intended beneficiaries of certain
acts . . . whether the relationship was of a voluntary
nature . . . the seriousness of the injury threatened
. . . the duration of the threat of injury . . . and
whether the persons at risk had the opportunity to
protect themselves from harm.’’ (Internal quotation
marks omitted.) Grady v. Somers, 294 Conn. 324, 350–
51, 984 A.2d 684 (2009). ‘‘The only identifiable class of
foreseeable victims that we have recognized for these
purposes is that of school children attending public
schools during school hours.’’ Durrant v. Board of Edu-
cation, 284 Conn. 91, 107, 931 A.2d 859, 869 (2007); see
also Jahn v. Board of Education, 152 Conn. App. 652,
668–69, 99 A.3d 1230 (2014) (declining to expand class
of identifiable victims to include students participating
in after school athletic competition).
In support of her argument, the plaintiff relies on
Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165
(1979), ‘‘the case that created the identifiable person,
imminent harm exception as we know it.’’ Haynes v.
Middletown, 314 Conn. 303, 333, 101 A.3d 249 (2014)
(Eveleigh, J., concurring). In Sestito, the plaintiff
brought an action against the defendant municipality
on behalf of the estate of an individual who had been
shot and killed outside a bar. Sestito v. Groton, supra,
521–23. Prior to the shooting, a police officer employed
by the defendant had been patrolling the area in his car
and observed a group of men gathered in a parking lot
near the bar. Id., 522. While observing the men, he
witnessed an altercation begin between two of them
that eventually devolved into a physical fight. Id., 523.
Instead of intervening, the officer waited until one of
the men was shot before he ‘‘drove over and arrested the
assailant.’’ Id. On appeal, our Supreme Court concluded,
without describing the decedent as an identifiable vic-
tim,10 that there was a question of fact as to whether
the defendant’s police officer owed a legal duty to the
decedent to prevent the shooting from occurring. Id.,
527–28.
The plaintiff submits that, just as the decedent in
Sestito was identifiable despite the police officer not
knowing who among the group of men would be shot,
Burgos was identifiable because he was among a group
of people swimming in Lake McDonough, any of whom
could have fatigued suddenly and slipped underwater.
The salient difference between the present case and
Sestito, however, is that there is no evidence that any
of the defendant’s employees saw Burgos, or any mem-
ber of his group, in the undesignated swimming area
prior to the incident.11 In the absence of some evidence
that a person either was individually identifiable to a
public official or among a class of identifiable victims,
which our precedent limits to school children attending
public school during school hours; see Durrant v.
Board of Education, supra, 284 Conn. 107; the first
prong of the exception to governmental immunity can-
not be satisfied.
Indeed, the present case is analogous to Evon v.
Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), in which
our Supreme Court ‘‘concluded that the imminent harm
exception did not apply to the plaintiffs’ decedents who
were killed in an apartment house fire. Specifically,
[the] court determined that [t]he class of possible vic-
tims of an unspecified fire that may occur at some
unspecified time in the future is by no means a group of
identifiable persons . . . .’’ (Internal quotation marks
omitted.) Violano v. Fernandez, supra, 280 Conn. 330.
Similarly, we conclude that a group of individuals in
an undesignated swimming area, whose presence is
unknown to the defendant, cannot be deemed identifi-
able for the purposes of the identifiable person, immi-
nent harm exception. Accordingly, there is no genuine
issue of material fact as to whether the plaintiff’s claim
is barred by the doctrine of governmental immunity.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant ‘‘is a political subdivision of the state, specially chartered
by the Connecticut General Assembly for the purpose of water supply,
waste management and regional planning.’’ Martel v. Metropolitan District
Commission, 275 Conn. 38, 41, 881 A.2d 194 (2005).
2
Although swimming was not permitted in this area, it was not uncommon
for the defendant’s boat patrol to find people swimming to and from the
island.
3
The operative complaint included a second count, which was brought
pursuant to § 52-557n (a) (1) (B), alleging that the defendant was negligent ‘‘in
the performance of functions from which the political subdivision derive[d]
a special corporate profit or pecuniary benefit.’’ The plaintiff conceded at
oral argument before this court that this claim was withdrawn prior to the
trial court’s ruling on the motion for summary judgment. Accordingly, this
appeal addresses only the first count of the plaintiff’s operative complaint.
4
The plaintiff also argued to the trial court and to this court that the
defendant had failed to satisfy its initial burden of showing the absence of
any genuine issue of material fact. At oral argument before this court,
however, the plaintiff’s counsel stated that he understood the trial court’s
conclusion to the contrary and, therefore, was not going ‘‘to waste this
court’s time arguing otherwise.’’ Having reviewed the record and the affida-
vits appended to the defendant’s motion for summary judgment, we agree
with the trial court that the defendant’s showing was sufficient to satisfy
its initial burden.
5
We note that this argument was not addressed in the trial court’s memo-
randum of decision and, in reviewing the plaintiff’s objection to the defen-
dant’s motion for summary judgment, we cannot say that it was clearly
asserted. Nevertheless, given that the defendant has not objected to this
argument being presented on appeal and that this position is, in effect, an
expansion of a claim referenced in the plaintiff’s opposition memorandum
of law, we will address the merits in this particular circumstance. We caution,
however, that it remains our practice not to review claims made for the
first time on appeal. DiMiceli v. Cheshire, supra, 162 Conn. App. 229
6
The materials included affidavits from the defendant’s manager of Lake
McDonough in 2011, the chief of the defendant’s police department, and
several lifeguards involved in the attempted rescue of Burgos. Also attached
were photographs of the signs posted informing visitors of the rules and
regulations at the lake and excerpts of deposition testimony from lifeguards
concerning the events of July 9, 2011.
7
Conversely, in Rizzuto, our Supreme Court recognized, as an indepen-
dent cause of action, the tort of intentional spoliation of evidence. Rizzuto
v. Davidson Ladders, Inc., supra., 280 Conn. 251. ‘‘[T]he tort . . . consists
of the following essential elements: (1) the defendant’s knowledge of a
pending or impending civil action involving the plaintiff; (2) the defendant’s
destruction of evidence; (3) in bad faith, that is, with intent to deprive the
plaintiff of his cause of action; (4) the plaintiff’s inability to establish a prima
facie case without the spoliated evidence; and (5) damages.’’ Id. 244–45.
Unlike the adverse inference acknowledged in Beers, the plaintiff alleging
a claim of intentional spoliation of evidence need not produce evidence
sufficient to establish a prima facie case, provided there is evidence that
the defendant’s intentional spoliation ‘‘rendered the plaintiff unable to estab-
lish a prima facie case in the underlying litigation.’’ Id., 246.
Here, the plaintiff did not plead, as a separate cause of action, intentional
spoliation of evidence. Therefore, even if the defendant’s failure to preserve
the state manual were to satisfy the requirements provided in Beers, the
permitted adverse inference does not relieve the plaintiff of her burden to
establish a prima facie case.
8
The other two exceptions are provided in subdivision (2) of § 52-557n
(a) and are not relevant for the purposes of this appeal.
9
Although the plaintiff’s complaint does not name an individual to whom
the imminent harm should have been apparent, our Supreme Court, in Grady
v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (2009), concluded that the
‘‘identifiable person, imminent harm common-law exception to . . . quali-
fied immunity also applies in an action brought directly against municipali-
ties pursuant to § 52-557n (a) (1) (A), regardless of whether an employee
or officer of the municipality also is a named defendant.’’
10
The term ‘‘identifiable victim’’ was not used until Shore v. Stonington,
187 Conn. 147, 156, 444 A.2d 1379 (1982); nevertheless, our courts have relied
on Sestito in applying the exception. See, e.g., Doe v. Board of Education,
76 Conn. App. 296, 301, 819 A.2d 289 (2003).
11
The affidavits and deposition testimony attached to the parties’ summary
judgment filings established that the area in which Burgos and his group
were swimming was not visible from any of the three beaches where life-
guards were stationed and that although it may have been visible from the
defendant’s boathouse, there was no evidence that anyone saw Burgos or
his group.