Jahn v. Board of Education

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SPENCER JAHN v. BOARD OF EDUCATION OF THE

TOWN OF MONROE ET AL.

(AC 35997)

Lavine, Keller and Schaller, Js.

Argued May 14—officially released September 9, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Sommer, J.)

Marc J. Ubaldi, for the appellant (plaintiff).

Mark A. Perkins, for the appellees (defendants).

Opinion

KELLER, J. In this negligence action, the plaintiff,

Spencer Jahn, appeals from the decision of the trial

court granting summary judgment in favor of the defen-

dants, Board of Education of the Town of Monroe

(board) and Thomas Harkins, the head coach of the

swim team at Masuk High School in Monroe. The plain-

tiff claims that the court erred in granting the defen-

dants’ motion for summary judgment on the basis of

governmental immunity. The plaintiff argues that sum-

mary judgment was improperly granted as there was a

genuine issue of material fact as to whether, at the time

of his injury, he was an identifiable person subject to

imminent harm, a recognized exception to governmen-

tal immunity.1 We disagree and affirm the judgment of

the trial court.

The court’s memorandum of decision describes the

undisputed factual background relevant to the plain-

tiff’s appeal. ‘‘On December 19, 2012, the plaintiff . . .

a member of the boys’ swimming team at Masuk High

School in Monroe . . . filed a one count complaint

sounding in negligence against the defendants . . . .

The plaintiff’s central claim [was] that Harkins, by fail-

ing to properly supervise warm-up drills conducted by

the swimming team prior to a swim meet, subjected

the plaintiff to imminent harm.

‘‘In his complaint, the plaintiff allege[d] the following

facts. On December 17, 2010, at approximately 3:30

p.m., the plaintiff was participating in warm-up drills

at the direction of Harkins prior to a swimming competi-

tion at Masuk High School. Specifically, the defendant

had directed the members of the swimming team to

practice their racing starts by diving into the pool and

swimming several lengths. Harkins did not, however,

personally supervise the drills nor did he appoint

another individual to do so. Pursuant to Harkins’ previ-

ous instruction, the plaintiff dove into the pool and

swam several lengths before turning around and head-

ing back to the pool wall. At the same time, another

member of the swimming team2 dove into the pool,

striking the plaintiff and causing him several severe

injuries, including injuries to the plaintiff’s head and

neck.

‘‘The plaintiff allege[d] that at all relevant times Har-

kins was acting as the agent or employee of the [board]

and was responsible for supervising the activities of

the swimming team. The plaintiff allege[d] further that

his injuries were caused by the negligence of Harkins

in that he (1) left the swimming team unsupervised

during the warm-up drill, (2) directed the team to per-

form a drill that was not safe because multiple swim-

mers were permitted to dive into the same lane, and

(3) failed to ensure that a coach was present during

the drill to indicate when it was safe for swimmers to

dive into the pool. The plaintiff also allege[d] that, by

virtue of being a student at Masuk High School, he

was an identifiable person subject to imminent harm.’’

(Footnotes altered.)

On March 27, 2013, the defendants filed an answer

and three special defenses, including the contributory

negligence of the plaintiff; common-law governmental

immunity as to Harkins, a municipal employee; and

governmental immunity as to the board, as provided

by General Statutes § 52-557n.3 The plaintiff did not file

a reply to the defendants’ special defenses.

The defendants filed a motion for summary judgment

on May 1, 2013. Therein, the defendants argued (1)

‘‘there are no genuine issues of material fact . . . as

to the fact that the defendants are immune from liability

under the [doctrine] of governmental immunity,’’ and,

in the alternative, (2) Harkins ‘‘is not a real party at

interest in this lawsuit.’’4 The defendants’ motion was

accompanied by a memorandum of law and three affida-

vits: that of Harkins; that of John DeGennaro, the direc-

tor of athletics at Masuk High School; and that of

Thomas Jurzynski, the assistant coach of the boys’ swim

team.5 On June 17, 2013, the plaintiff filed an objection

to the motion for summary judgment, accompanied by

a memorandum of law and an affidavit by the plaintiff.

The court heard oral argument on June 18, 2013, and

filed a written memorandum of decision granting the

motion for summary judgment on August 2, 2013. The

court concluded that there was no genuine issue of

material fact that the doctrine of governmental immu-

nity was applicable because (1) Harkins’ conduct as a

swim coach and the board’s conduct in supervising him

were public and discretionary, rather than ministerial

acts, and (2) the identifiable person-imminent harm

exception to the doctrine of governmental immunity

did not apply to the plaintiff. On appeal, the plaintiff

challenges only the court’s conclusion that the identifi-

able person-imminent harm exception does not apply

to him.

We begin with the relevant standard of review con-

cerning motions for summary judgment. ‘‘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 test is whether a party would be

entitled to a directed verdict on the same facts. . . .

A motion for summary judgment is properly granted if

it raises at least one legally sufficient defense that would

bar the plaintiff’s claim and involves no triable issue of

fact. . . . Our review of the trial court’s decision to

grant a motion for summary judgment is plenary.’’

(Internal quotation marks omitted.) Thivierge v.

Witham, 150 Conn. App. 769, 773, 93 A.3d 608 (2014).

‘‘[Practice Book § 17-49] provides that summary judg-

ment shall be rendered forthwith if the pleadings, affida-

vits 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.

. . . Once the moving party has presented evidence

in support of the motion for summary judgment, the

opposing party must present evidence that demon-

strates the existence of some disputed factual issue

. . . . It is not enough, however, for the opposing party

merely to assert the existence of such a disputed issue.

Mere assertions of fact . . . are insufficient to estab-

lish the existence of a material fact and, therefore, can-

not refute evidence properly presented to the court

under Practice Book [§ 17-45].’’ (Internal quotation

marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.

App. 700, 704–705, 807 A.2d 968, cert. denied, 262 Conn.

915, 811 A.2d 1291 (2002).

We briefly review the doctrine of municipal govern-

mental immunity in Connecticut to understand the con-

text of the plaintiff’s claim. ‘‘At common law, a

municipality generally was immune from liability for

its tortious acts, but its agents and employees faced

the same personal tort liability as private individuals.

. . . In the early twentieth century, our courts extended

qualified immunity to municipal employees as well.

. . . Eventually, the personal liability of public officers

acting in the scope of their office came to depend on

whether the acts or omissions in question were discre-

tionary or ministerial in nature. . . . In 1986, our legis-

lature enacted § 52-557n, which allows a municipality

to be held liable for the negligent acts of its employees

under certain circumstances. . . . Under the relevant

statutory provisions, a municipality’s liability in negli-

gence for its employees’ acts hinges on the same minis-

terial-discretionary dichotomy.’’ (Citations omitted.)

Thivierge v. Witham, supra, 150 Conn. App. 774.

‘‘The issue of governmental immunity is simply a

question of the existence of a duty of care, and this

court has approved the practice of deciding the issue

of governmental immunity as a matter of law.’’ (Internal

quotation marks omitted.) Silberstein v. 54 Hillcrest

Park Associates, LLC, 135 Conn. App. 262, 268, 41 A.3d

1147 (2012).

The availability of governmental immunity as a

defense depends on two factors: (1) whether the

employee’s action was public or private in nature, and

(2) whether the employee was engaged in a discretion-

ary or governmental act, versus a ministerial act. See

Violano v. Fernandez, 280 Conn. 310, 334–35, 907 A.2d

1188 (2006). ‘‘[T]he test to discern between a public

and private duty is as follows: [i]f the duty imposed

upon the public official by the statute is of such a nature

that the performance of it will affect an individual in a

manner different in kind from the way it affects the

public at large, the statute is one which imposes upon

the official a duty to the individual, and if the official

is negligent in the performance of that duty he is liable

to the individual.’’ (Emphasis added; internal quotation

marks omitted.) Id., 333. In Couture v. Board of Educa-

tion, 6 Conn. App. 309, 313, 505 A.2d 432 (1986), this

court held that the board of education’s sponsoring of

a football game was a public duty. In reaching this

conclusion, this court opined: ‘‘Pursuant to their duty

to provide public education, the town boards are given

substantial discretion to determine educational policy.

. . . Included in this authority is the power to decide

that sporting events are a necessary or desirable part

of the town’s educational program.’’ (Citation omitted.)

Id., 313.

The second factor to be determined is whether the

official acts or omissions are ministerial or discretion-

ary. This is normally a question of fact, ‘‘although there

are cases in which it is apparent from the complaint that

the alleged negligent actions or omissions necessarily

involved the exercise of judgment and were discretion-

ary as a matter of law.’’ Haynes v. Middletown, 122

Conn. App. 72, 79, 997 A.2d 636 (2010), rev’d on other

grounds, 306 Conn. 471, 50 A.3d 880 (2012). In this case,

the plaintiff concedes that the defendants’ actions were

discretionary in nature. Specifically, the plaintiff’s

objection to the defendants’ motion for summary judg-

ment stated: ‘‘The plaintiff acknowledges . . . that the

conduct he alleges would likely be considered discre-

tionary acts.’’ In the plaintiff’s appellate brief, he reaf-

firmed this position, conceding: ‘‘The statements [made

in the affidavits proffered by the defendants] are also

sufficient, at this stage, to establish that the acts or

omissions complained of were discretionary in nature.’’

In Edgerton v. Clinton, 311 Conn. 217, 86 A.3d 437

(2014), our Supreme Court explained the public policy

rationale for the doctrine of governmental immunity

as it applies today. ‘‘Affording immunity to municipal

officers performing discretionary acts serves the policy

goal of avoiding expansive exposure to liability, which

would cramp the exercise 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 func-

tions, unhampered by fear of second-guessing and retal-

iatory lawsuits, outweighs the benefits to be had from

imposing liability for that injury. . . . In contrast,

municipal officers 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 judgment or discretion. . . . This is

because society has no analogous interest in permitting

municipal officers to exercise judgment in the perfor-

mance of ministerial acts.’’ (Citation omitted; internal

quotation marks omitted.) Id., 229–30.

In conducting its thorough and well reasoned analysis

of governmental immunity, the trial court first con-

cluded that the negligence alleged by the plaintiff in his

complaint involved discretionary and public acts on

the part of the board and its employees. The court

appropriately relied on the uncontroverted evidence

submitted by the defendants that established that their

actions in running the after school swim program were

not prescribed by any state or school policy and were

designed for the benefit of students in general, and not

the individual plaintiff. The evidence established that

the defendants’ provision for the swim team was public

in nature and that their acts or omissions required the

exercise of personal judgment, rendering them discre-

tionary in nature. See Violano v. Fernandez, supra, 280

Conn. 318. Therefore, absent the applicability of any

exception, the defendants were entitled to governmen-

tal immunity. See id., 335. On appeal, the plaintiff does

not dispute the court’s findings that the acts alleged to

be negligent on the part of the defendants are public

and discretionary. Instead, the focus of the plaintiff’s

argument is that the court erred in finding that there

was no genuine issue of material fact in dispute that

he was not an identifiable person subject to imminent

harm because the defendants failed to meet their bur-

den of showing the nonexistence of any issue of fact

as to this exception. We disagree.

Our Supreme Court has recognized three exceptions

to discretionary act immunity: ‘‘[F]irst, where the cir-

cumstances 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 . . . second,

where a statute specifically provides for a cause of

action against a municipality or municipal official for

failure to enforce certain laws . . . and third, where

the alleged acts involve malice, wantonness or intent

to injure, rather than negligence.’’ (Internal quotation

marks omitted.) Durrant v. Board of Education, 284

Conn. 91, 95 n.4, 931 A.2d 859 (2007). ‘‘Each of these

exceptions represents a situation in which the public

official’s duty to act 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.’’ (Internal quotation marks

omitted.) Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d

191 (2006).

The present case concerns only the first exception,

where an act or omission would be likely to subject an

identifiable person to imminent harm. This exception

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 . . . .’’ (Internal quotation marks omitted.) Id.,

616. This exception has three elements: ‘‘(1) an immi-

nent 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.’’ Id. ‘‘[T]he

criteria of identifiable person and imminent harm must

be evaluated with reference to each other. An allegedly

identifiable person must be identifiable as a potential

victim of a specific imminent harm. Likewise, the

alleged imminent harm must be imminent in terms of

its impact on a specific identifiable person.’’ (Internal

quotation marks omitted.) Cotto v. Board of Education,

294 Conn. 265, 276, 984 A.2d 58 (2009). This exception

is applicable ‘‘only in the clearest cases.’’ Id.6

The identifiable person contemplated by the excep-

tion, however, need not be a specifically identified indi-

vidual subject to imminent harm if the plaintiff is a

member of a ‘‘narrowly defined identified [class] of

foreseeable victims.’’ Burns v. Board of Education, 228

Conn. 640, 646, 638 A.2d 1 (1994). In Burns, the court

recognized schoolchildren who are on school property

during school hours as one identifiable class of foresee-

able victims. Id., 649–50. This class has been consis-

tently recognized by the courts of our state as

narrowly drawn.7

Our Supreme Court, in determining that school-

children are within an identifiable class of foreseeable

victims, focused on the following facts: ‘‘[school-

children] were intended to be the beneficiaries of partic-

ular duties of care imposed by law on school officials;

they were legally required to attend school rather than

being there voluntarily; their parents were thus statuto-

rily required to relinquish their custody to those officials

during those hours; and, as a matter of policy, they

traditionally require special consideration in the face

of dangerous conditions.’’ Prescott v. Meriden, 273

Conn. 759, 764, 873 A.2d 175 (2005).

In his complaint, the plaintiff alleges that he, ‘‘as a

student at school, was an identifiable person subject

to imminent harm.’’ (Emphasis added.) In its memoran-

dum of decision, the trial court stated: ‘‘The plaintiff

does not explicitly state whether his position is that

he was an identifiable individual or a member of an

identifiable class, but, rather, refers to himself only as

an identifiable ‘victim.’ The plaintiff’s status as either

an individual or a member of a class is an important

distinction because the analysis attendant [in] these two

cases is different. See, e.g., Cotto v. Board of Education,

[supra, 294 Conn. 274–75] (noting distinction in analysis

between whether plaintiff was member of identifiable

class or was identifiable individual; finding error

where trial court ‘blurred’ distinction). Because, here,

the plaintiff relies primarily upon Burns . . . which

recognized for the first time an identifiable class of

foreseeable victims, the complaint bases its claim of

an exception to governmental immunity upon the plain-

tiff’s status as a student at a public school and at oral

argument counsel for the plaintiff only addressed

whether the plaintiff was a member of an identifiable

class, the court construes the ground for the plaintiff’s

objection to be that there is a genuine dispute of mate-

rial fact regarding whether the plaintiff fell within an

identifiable class at the time of the injury.’’ (Emphasis

in original.)

As previously noted, the plaintiff never filed a reply

to the defendants’ special defense of governmental

immunity delineating the nature of the exception to

immunity on which he relies. His complaint bases its

claim of an exception to governmental immunity upon

the plaintiff’s status as a student at a public school. In

his brief to the trial court, to counter the defendants’

argument that he failed to plead that he fell within a

class of identifiable victims subject to imminent harm,

he stated: ‘‘This is not accurate. The plaintiff alleged

that at the time of the aforementioned incident, the

plaintiff, as a student at school, was an identifiable

person subject to imminent harm.’’ During oral argu-

ment before the court on the motion for summary judg-

ment, counsel for the plaintiff indicated that the viability

of the defendants’ motion came down to whether he

fit the exception as a member of a ‘‘foreseeable class

of [identifiable] victims,’’ despite the fact that the school

activity, an extracurricular team sport, was being con-

ducted after mandatory school hours. In addition, the

plaintiff’s memorandum in support of his objection to

the motion for summary judgment also relied on Burns

v. Board of Education, supra, 228 Conn. 646, which

recognized, for the first time, an identifiable class of

foreseeable victims.

‘‘[T]he interpretation of pleadings is always a question

of law for the court . . . . Our review of the trial

court’s interpretation of the pleadings therefore is ple-

nary.’’ (Internal quotation marks omitted.) Nichols v.

The Milford Pediatric Group, P.C., 141 Conn. App. 707,

711, 64 A.3d 770 (2013). On the basis of our plenary

review of the pleadings, affidavits and memoranda of

law submitted, as well as the arguments at the summary

judgment proceeding, we agree with the trial court that

the plaintiff has not raised the applicability of the identi-

fiable individual victim-imminent harm exception to

discretionary act immunity.

The plaintiff failed to provide the court with any

factual or legal analysis as to how he was individually

and specifically ‘‘identifiable as a potential victim of a

specific imminent harm,’’ a harm occurring ‘‘within [a]

framework limited in duration, place and condition’’

and ‘‘imminent in terms of its impact on the plaintiff

as a specific identifiable person.’’ (Internal quotation

marks omitted.) Cotto v. Board of Education, supra,

294 Conn. 276, 279–80. Rather, he based his claim on

his status as a student at school and argues that the

identifiable class of schoolchildren as foreseeable vic-

tims should be expanded to include a schoolchild partic-

ipating in an activity that is required as part of his

extracurricular after school program. ‘‘This court will

not review issues of law that are raised for the first

time on appeal. . . . To allow the [plaintiff] to argue

one theory . . . [before the trial court] and then press

a distinctly different theory on appeal would amount

to an ambuscade of the trial court.’’ (Citations omitted.)

State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563,

cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); see

also Bragdon v. Sweet, 102 Conn. App. 600, 607, 925

A.2d 1226 (2007) (court declined to review plaintiff’s

claim against grant of summary judgment raised for

first time on appeal).8

For the previously stated reasons, therefore, we will

address only whether there is a genuine issue of mate-

rial fact as to whether the plaintiff is entitled to the

governmental immunity exception as a member of a

foreseeable class of identifiable victims subject to immi-

nent harm.

‘‘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 identifiability of the particular victim. . . .

Other courts, in carving out similar exceptions to their

respective doctrines of governmental immunity, have

also considered whether the legislature specifically des-

ignated an identifiable subclass as the intended benefi-

ciaries 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.’’ Durrant

v. Board of Education, supra, 284 Conn. 101.

Our plenary review of the complaint and the affidavits

submitted in support of and in opposition to the motion

for summary judgment, viewed in the light most favor-

able to the plaintiff, the nonmovant, supports the find-

ings and legal analysis of the trial court that there is

no genuine issue of material fact that the plaintiff does

not qualify as a member of a foreseeable class of school-

children who are identifiable victims subject to immi-

nent harm. The three affidavits submitted by the

defendants in support of their motion for summary judg-

ment establish that the swim team was an extracurricu-

lar, nonmandatory activity, required the payment of a

participation fee, and that the plaintiff’s injury occurred

after normal school hours. We reject the plaintiff’s argu-

ment that the court improperly decided an issue of fact

as to whether his participation in the swim team was

voluntary merely because he attests in his affidavit that

the warm-up drill was mandatory. If participating in the

swim team as a whole was voluntary, a finding which

the plaintiff does not contest, then, by extension, so

was his participation in the warm-up drill.

The plaintiff’s argument misconstrues the meaning

of ‘‘not voluntary’’ within the legal framework set forth

in Burns v. Board of Education, supra, 228 Conn. 649,

which emphasized the fact that the class of school-

children to which the plaintiff belonged was required

by statute to be at school. See also, Durrant v. Board of

Education, supra, 284 Conn. 109 (‘‘there is a significant

distinction . . . between a program in which participa-

tion is encouraged and one in which it is compelled’’).

The plaintiff in Burns had no choice but to be at school.

Here, in contrast, while it may be true that the plaintiff

was ‘‘required’’ to participate in the warm-up drill if he

also desired to participate in the swim meet, the fact

remains that nothing required the plaintiff to participate

in the swim meet or, for that matter, the swim team,

in the first place. The plaintiff chose to participate in

the swim team when he joined it. He has not argued

that any statute or other source of law compelled him

to join the team or to participate in the warm-up drill.

Thus, under the present facts, the plaintiff does not fall

within the class of identifiable schoolchildren recog-

nized by Burns.

The focus of the plaintiff’s claim is that the court

should expand the class of schoolchildren created in

Burns to include students, such as he, under the present

circumstances.9 He contends that the holding in Burns

is not explicitly limited to the exception it created for

children attending public school during regular school

hours because Burns did not specifically hold that other

groups of identifiable individuals in other contexts

could not qualify as a class of identifiable foreseeable

victims. We agree that the explicit language of Burns,

read broadly, does not preclude the possibility of future

expansion of the identifiable class of foreseeable vic-

tims to include schoolchildren in other contexts. Never-

theless, other cases that have addressed arguments

proposing an expansion of this class to parents or chil-

dren engaged in school-sponsored activities outside of

mandatory school hours, including Durrant v. Board

of Education, supra, 284 Conn. 91, have denied such

requests. See also Prescott v. Meriden, supra, 273 Conn.

766; Lowenadler v. Mallard, Superior Court, judicial

district of Danbury, Docket No. CV-08-5004054-S (July

10, 2009) (declining to expand class to students volunta-

rily participating in nonmandatory, after school faculty-

student basketball game). In each of these cases, the

proponent of the expansion failed to convince the court

that the individuals to be added to the class were simi-

larly situated to those that were already within the class

on the basis of factors enunciated in Burns.

The plaintiff has failed to provide us with any basis

upon which we may conclude that we should depart

from prior precedent. There is nothing alleged in the

complaint or found in the plaintiff’s affidavit which

expressly states, or would lead to an inference if liber-

ally read, that the plaintiff was compelled to be at, or

participate in, the warm-up drills before the swim meet.

Importantly, in this case, the plaintiff cannot establish

that his participation in the warm-up drills was manda-

tory, a factor that goes directly to his ability to take

action to protect himself from harm. Accordingly, we

agree with the trial court that there is no genuine issue

of material fact that the plaintiff was not within an

identifiable class of foreseeable victims at the time of

his injury.10

We conclude that the plaintiff in this case cannot

avail himself of the identifiable person-imminent harm

exception to discretionary act immunity afforded to

the board and its employee. In light of the facts and

arguments presented, summary judgment was properly

rendered in favor of the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In Grady v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (2009), our Supreme

Court concluded that ‘‘the identifiable person, imminent harm common-law

exception to municipal employees’ qualified immunity also applies in an

action brought directly against municipalities pursuant to [General Statutes]

§ 52-557n (a) (1) (A), regardless of whether an employee or officer of the

municipality also is a named defendant.’’ A town board of education, as

an agent of the municipality, is potentially immune from ‘‘liability for the

performance of [discretionary] governmental acts as distinguished from

ministerial acts.’’ (Internal quotation marks omitted.) Heigl v. Board of

Education, 218 Conn. 1, 4, 587 A.2d 423 (1991).

2

The student who allegedly dove into the pool and struck the plaintiff

was named in the defendants’ apportionment complaint, which was filed

on June 3, 2013.

3

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; (B)

negligence in the performance of functions from which the political subdivi-

sion derives a special corporate profit or pecuniary benefit; and (C) acts of

the political subdivision which constitute the creation or participation in

the creation of a nuisance . . . . (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: (A) Acts or omissions of any employee, officer

or agent which constitute criminal conduct, fraud, actual malice or wilful

misconduct; or (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.’’

4

The defendants claimed that Harkins is being sued in his official capacity

only, and, therefore, the real party in interest is the board because ‘‘[i]t is

well settled law that an action against a government official in his or her

official capacity is not an action against the official, but, instead, is one

against the official’s office and, thus, is treated as an action against the

entity itself.’’ Kelly v. New Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005).

Whether the doctrine of qualified immunity in the performance of a discre-

tionary governmental act also applies to Harkins is not an issue in this

appeal. It is well established at common law that municipalities and their

employees are immune from liability for actions taken in discharging their

public duties, so long as their actions are discretionary in nature. See Evon

v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).

5

Jurzynski’s affidavit contradicts both the plaintiff’s allegation in the com-

plaint that Harkins ‘‘left the team unsupervised during the warm-up drill,’’

and his attestation in his affidavit that ‘‘a senior member of the swim team

. . . rather than a coach, was directing team members when to dive into

the pool for the drill.’’ Jurzynski attested, ‘‘At the time [the plaintiff] claims

he was injured I was present to supervise the swim team drills.’’ The plaintiff

does not take issue with this contradiction on appeal.

6

Outside the public school context, we are aware of only two Connecticut

cases wherein a plaintiff has been held potentially to be an individually

identifiable person for purposes of the exception. One, decided before the

current three-pronged identifiable person-imminent harm exception was

adopted, involved a discrete group of intoxicated men, brawling in a bar

parking lot while a police officer stood by and failed to intervene until he

heard gunshots. See Sestito v. Groton, 178 Conn. 520, 522–23, 527–28, 423

A.2d 165 (1979). Sestito has since been distinctly ‘‘limited to its facts.’’

Thivierge v. Witham, supra, 150 Conn. App. 780 n.8. The other case deter-

mined that summary judgment should not have been granted on the basis

of governmental immunity where the plaintiff, who was attending a parade,

bent down to pet a firefighter’s pet dog and could be observed ‘‘in close

proximity to the dog’s teeth.’’ (Internal quotation marks omitted.) Tryon v.

North Branford, 58 Conn. App. 702, 703–704, 712, 755 A.2d 317 (2000). This

court decided that it was a question of fact whether the firefighter’s failure

to prevent his dog from being in close proximity to the plaintiff created a

situation of imminent harm to an identifiable plaintiff. Id., 716.

7

Compare Durrant v. Board of Education, supra, 284 Conn. 94, 96, 104

(parent who slipped and fell when picking up child from after school day

care program on school grounds conducted under auspices of board of

education not member of identified class of foreseeable victims), and Pres-

cott v. Meriden, 273 Conn. 759, 760–62, 873 A.2d 175 (2005) (identified

class of foreseeable victims did not include parent who slipped and fell on

bleachers while attending high school varsity football game), with Purzycki

v. Fairfield, 244 Conn. 101, 104, 109, 708 A.2d 937 (1998) (second grader

tripped by another student during school recess in unsupervised school

hallway was member of identified class of foreseeable victims as in Burns).

8

Furthermore, on appeal, the plaintiff has inadequately briefed the applica-

bility of the individual identifiable victim exception to the facts alleged in

his complaint and the parties’ affidavits in support of and in opposition to

the motion for summary judgment. Rather, he baldly asserts, without citation

to legal authority, that the defendants failed to meet their burden to offer

sufficient evidence that he was not an ‘‘identifiable person subject to immi-

nent harm.’’ The plaintiff, however, fails to acknowledge that his complaint

only alleges the identifiable class of foreseeable victims exception, that he

failed to file a reply to the special defenses, and that he expressly advised

the court that that was the nature of the exception he was claiming.

‘‘[W]e are not required to review claims that are inadequately briefed.

. . . [A]nalysis, rather than mere abstract assertion, is required in order to

avoid abandoning an issue by failure to brief the issue properly.’’ (Internal

quotation marks omitted.) Russel v. Russel, 91 Conn. App. 619, 634, 882,

A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). ‘‘The parties

may not merely cite a legal principle without analyzing the relationship

between the facts of the case and the law cited. . . . Where the parties cite

no law and provide no analysis of their claims, we do not review such

claims.’’ (Internal quotation marks omitted.) Id., 635.

9

In support of his argument for expansion of the identifiable class of

foreseeable victims, the plaintiff, in his memorandum of law in opposition

to the motion for summary judgment, cited Furlani v. East Lyme, Superior

Court, judicial district of New London, Docket No. CV-08-5005850-S (January

22, 2010) (49 Conn. L. Rptr. 348, 348–49), and Zaborowski v. New Milford,

Superior Court, judicial district of Litchfield, Docket No. CV-05-4002868-S

(March 24, 2006) (41 Conn. L. Rptr. 80, 82), two cases which address whether

the plaintiff was an identifiable individual, not whether the plaintiff was

within an identifiable class, and neither of which otherwise specifically

analyzed the identifiable class of schoolchildren exception created in Burns.

These two cases are, therefore, inapposite to plaintiff’s expressed position.

10

Because the plaintiff has not established that he was within an identifi-

able class of victims at the time of the injury, we need not address whether

he was subject to an imminent harm.