St. Pierre v. Town of Plainfield

1

4

56

7 DAVID L. ST. PIERRE v. TOWN

8 OF PLAINFIELD ET AL.

9

10 (SC 19871)

11 Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,

13

12 Robinson and D’Auria, Js.

14

15 Syllabus

16 The plaintiff sought to recover damages from the defendant town for per-

17 sonal injuries he sustained after falling on wet steps located at the

18 defendant’s municipal pool. The plaintiff fell after participating in an

19 aqua therapy session conducted by the defendant E Co., which had paid

20 the town a nominal hourly fee to reserve the pool two or three times

21 per week. The town provided a lifeguard during the aqua therapy ses-

22 sions and was responsible for the cleaning and general maintenance of

23 the pool. E Co. did not have a formal contract with the town to reserve

24 the pool, but used a one page form letter that provided basic information

25 regarding the reservation. The town filed a motion for summary judg-

26 ment, claiming that municipal immunity precluded the plaintiff’s action

27 because the alleged acts or omissions involved the town’s judgment or

28 discretion, the operation of the pool was a government function, and

29 no exception to municipal discretionary act immunity had been shown.

30 The plaintiff countered that municipal immunity had been abrogated

31 either by the exception under the statute (§ 52-577n [a] [1] [B]) providing

32 that a municipality shall be liable for damages caused by its negligence

33 in the performance of a proprietary function from which it derives a

34 special corporate profit or pecuniary benefit, or by the identifiable per-

35 son, imminent harm exception. The trial court granted the town’s motion

36 for summary judgment on the ground that the town was immune from

37 liability, concluding that the operation of the pool was a government

38 function and that the town had operated the pool at a financial loss.

39 The court also found that the identifiable person, imminent harm excep-

40 tion did not apply because the plaintiff was voluntarily present at the

41 aqua therapy program, and the water on and around the pool surfaces

42 did not qualify as an imminent harm. The plaintiff appealed from the

43 judgment in favor of the town, claiming that the trial court incorrectly

44 concluded that the town was immune from liability because it had

45 derived a special corporate profit or pecuniary benefit from renting the

46 pool to E Co., a for-profit business, for a fee, or because he constituted

47 an identifiable person subject to imminent harm. Held:

48 1. The town’s operation of its municipal pool constituted a governmental

49 function from which it did not derive a special corporate or pecuniary

50 benefit so as to abrogate its discretionary act immunity: the town did

51 not derive a special corporate profit or pecuniary benefit by renting the

52 pool to E Co. for its private use, as the aqua therapy program fit within

53 the general public purposes of a municipal pool because it promoted

54 health and exercise, the fee that the town charged E Co. for use of the

55 pool was nominal, the total fees collected from all parties renting the

56 pool did not cover the annual costs of maintaining the pool, the pool

57 was rented without a formal lease or contract, and the town continued

58 to provide a lifeguard and maintain responsibility for the general mainte-

59 nance of the pool; furthermore, the plaintiff could not prevail on his

60 claim that this court should determine the profitability of the pool by

61 evaluating the fees paid by only E Co. with respect to the period of

62 time that E Co. had reserved the pool, as that argument was not raised

63 before the trial court, and this court has never used that method to

64 determine whether a municipality derived a profit; moreover, extending

65 the abrogation of municipal immunity to situations, such as the one

66 here, in which a town allows the private use of its facilities for a nominal

67 fee, could expose municipalities to great liability and deter them from

68 continuing to allow their facilities to be used by outside parties.

69 2. The identifiable person, imminent harm exception did not abrogate the

70 town’s municipal immunity, as the plaintiff was not an identifiable person

71 or a member of an identifiable class of persons for purposes of that

72 exception; the fact that the plaintiff was not compelled to attend the

73 aqua therapy sessions provided by E Co., but had voluntarily decided

74 to use E Co.’s services, precluded this court from concluding that he

75 was a person or in a group of persons identifiable to the lifeguard on

76

77 duty as a potential victim or victims of an imminent harm.

78

79 Argued May 1—officially released August 8, 2017

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81

80 Procedural History

83 Action to recover damages for personal injuries sus-

84 tained as a result of defendants’ alleged negligence,

85 brought to the Superior Court in the judicial district

86 of Windham, where the court, Boland, J., granted the

87 named defendant’s motion to strike and granted the

88 named defendant’s motion for summary judgment and

89 rendered judgment thereon; thereafter, the court,

90 Calmar, J., granted the named defendant’s motion for

91 judgment as to the stricken count of the complaint and

92 rendered judgment thereon, from which the plaintiff

93

94 appealed. Affirmed.

Mary M. Puhlick, for the appellant (plaintiff).

96 Thomas R. Gerarde, with whom, on the brief, was

97

99

98 Katherine E. Rule, for the appellee (named defendant).

100

101 Opinion

102 ROGERS, C. J. The issue raised in this appeal is

103 whether municipal immunity is abrogated by either the

104 proprietary function exception of General Statutes § 52-

105 557n1 or the identifiable person, imminent harm excep-

106 tion. Specifically, we must decide whether there is

107 municipal immunity when a town charges a nominal

108 fee to a private group for reserved use of a public

109 pool and an individual group member slips and falls on

110 accumulated water in the vicinity of that pool. The

111 plaintiff, David L. St. Pierre, appeals from the judgment

112 rendered in favor of the named defendant, the town of

113 Plainfield,2 after concluding that no exception to the

114 defendant’s general immunity applied.3 The plaintiff

115 claims that the trial court improperly concluded that

116 the defendant was immune from liability because (1)

117 the defendant derived a special corporate profit or pecu-

118 niary benefit through its operation of the pool, or (2)

119 the plaintiff constituted an identifiable person subject

120 to imminent harm. We disagree with each of these

121 claims and, accordingly, affirm the judgment of the

122 trial court.

123 The following undisputed facts and procedural his-

124 tory are relevant to this appeal. The plaintiff filed this

125 negligence action against the defendant and Eastern

126 Connecticut Rehabilitation Center, Inc. (Eastern); see

127 footnote 2 of this opinion; to recover for injuries he

128 allegedly sustained in an August 26, 2011 fall on wet

129 steps after participating in an aqua therapy session.

130 This session was conducted by Eastern in a pool owned

131 by the defendant, which is located in the defendant’s

132 town hall building. The plaintiff alleged that he slipped

133 and fell on the steps, which were covered with approxi-

134 mately one-quarter inch of water, on his way to the

135 men’s locker room. None of the defendant’s employees

136 witnessed the incident, nor had there been any previous

137 complaints about the condition of the steps.

138 Since 1994, Eastern, through its manager Penny Allyn,

139 had reserved the pool two to three times per week for

140 one hour sessions to provide aqua therapy services to

141 its rehabilitation patients. Since 2006, Eastern has paid

142 the defendant $50 per reserved hour for the exclusive

143 use of the pool during the sessions.4 Participation in

144 the aqua therapy program ranged from two to seven

145 individuals per session. During the reserved times, the

146 defendant provided a lifeguard and remained responsi-

147 ble for the cleaning and general maintenance of the

148 pool. There was no formal contract between the defen-

149 dant and Eastern. Rather, a one page form letter gener-

150 ally used to make reservations provides the rules of

151 pool use, in addition to listing the usage fee, the time

152 of the reservation, and the party making the reservation.

153 Eastern is not the only program that utilizes the pool.

154 Myra Ambrogi, the defendant’s recreation director,

155 stated in her affidavit that the pool is generally open

156 to the public as well as for organizations that pay the

157 usage fee. Activities held at the pool include swim les-

158 sons, open swim periods, and exercise classes.

159 In discussing the pool’s financials, Ambrogi stated in

160 her affidavit that the costs of operating the pool for

161 the fiscal year from July 1, 2011 to July 1, 2012, were

162 $81,315.42 and that total revenue of $75,605.96 was

163 taken in during the same time frame, including the fees

164 from Eastern. Thus, the pool operated at a loss of

165 $5709.46. Ambrogi’s figures included operational costs

166 such as the lifeguards’ salaries, instructor fees, equip-

167 ment, pool chemicals and cleaning supplies, but did not

168 include electricity, heat, water, maintenance employ-

169 ees’ salaries, or consumable supplies.

170 The plaintiff filed this action on August 19, 2013,

171 alleging that the defendant had been negligent in various

172 ways and that the plaintiff had been injured as a result.

173 On January 30, 2015, the defendant filed a motion for

174 summary judgment, claiming that municipal immunity

175 applied to preclude the plaintiff’s action because any

176 acts or omissions alleged by the plaintiff involved judg-

177 ment or discretion, the operation of the pool was a

178 governmental function, and no exception to discretion-

179 ary act immunity had been shown. The plaintiff

180 objected, arguing that municipal immunity did not

181 attach because the defendant’s operation of the pool

182 constituted a proprietary function and, in the alterna-

183 tive, that the identifiable person, imminent harm excep-

184 tion to immunity applied. In an August, 2015

185 memorandum of decision, the trial court agreed with

186 the defendant that it was immune from liability. As

187 to the proprietary function exception, the trial court

188 concluded that the defendant’s operation of a municipal

189 pool was a governmental function and did not create

190 a profit for the defendant. In regard to the identifiable

191 person, imminent harm exception, the trial court con-

192 cluded that the plaintiff was not an identifiable person

193 given his voluntary presence at the aqua therapy pro-

194 gram and that the water on and around the pool surfaces

195 did not qualify as an imminent harm. This appeal

196 followed.5

197 On appeal, the plaintiff does not contest that the

198 allegedly negligent acts of the defendant are discretion-

199 ary in nature and, therefore, are generally entitled to

200 immunity. See Haynes v. Middletown, 314 Conn. 303,

201 312, 101 A.3d 249 (2014). Consequently, we confine our

202 analysis to whether municipal immunity is abrogated

203 by an exception.

204 We begin with the standard of review and applicable

205 law. ‘‘The standard of review of a trial court’s decision

206 granting summary judgment is well established. Prac-

207 tice Book § 17-49 provides that summary judgment shall

208 be rendered forthwith if the pleadings, affidavits and

209 any other proof submitted show that there is no genuine

210 issue as to any material fact and that the moving party

211 is entitled to judgment as a matter of law. In deciding

212 a motion for summary judgment, the trial court must

213 view the evidence in the light most favorable to the

214 nonmoving party. . . . The party moving for summary

215 judgment has the burden of showing the absence of

216 any genuine issue of material fact and that the party

217 is, therefore, entitled to judgment as a matter of law.

218 . . . Our review of the trial court’s decision to grant

219 the defendant’s motion for summary judgment is ple-

220 nary. . . . On appeal, we must determine whether the

221 legal conclusions reached by the trial court are legally

222 and logically correct and whether they find support in

223 the facts set out in the memorandum of decision of the

224 trial court.’’ (Internal quotation marks omitted.) Cefara-

225 tti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016).

226 Specifically, whether municipal immunity applies is a

227 matter of law for the court to decide when there are

228 no unresolved factual questions material to the issue.

229 Edgerton v. Clinton, 311 Conn. 217, 227, 86 A.3d 437

230 (2014).

231 I

232 The plaintiff claims first that the proprietary function

233 exception applies to abrogate the defendant’s immu-

234 nity. The proprietary function exception is codified in

235 § 52-557n (a) (1) (B), which provides in relevant part:

236 ‘‘Except as otherwise provided by law, a political subdi-

237 vision of the state shall be liable for damages to person

238 or property caused by . . . negligence in the perfor-

239 mance of functions from which the political subdivision

240 derives a special corporate profit or pecuniary benefit

241 . . . .’’ (Emphasis added.) The plaintiff contends that

242 the defendant derived a special corporate profit or pecu-

243 niary benefit from the operation of its municipal pool

244 because it rented that pool to Eastern, a for-profit entity,

245 for a fee. We disagree.

246 In Considine v. Waterbury, 279 Conn. 830, 837–48,

247 905 A.2d 70 (2006), we undertook a comprehensive

248 analysis of § 52-557n (a) (1) (B). We concluded that the

249 statutory provision ‘‘codifies the common-law rule that

250 municipalities are liable for their negligent acts commit-

251 ted in their proprietary capacity,’’ as opposed to in their

252 governmental one.6 Id., 844. Liability for proprietary

253 acts means that a municipality ‘‘is liable to the same

254 extent as in the case of private corporations or individu-

255 als . . . .’’7 (Internal quotation marks omitted.) Id., 843.

256 To determine whether the defendant is subject to such

257 liability in the present case, we analyze whether the

258 defendant derives a special corporate profit or pecuni-

259 ary benefit from the function of operating its pool, in

260 other words, whether that function is proprietary.8

261 We previously have concluded that, ‘‘[i]f a municipal-

262 ity is acting only as the ‘agent or representative of the

263 state in carrying out its public purposes’; Winchester

264 v. Cox, [129 Conn. 106, 109, 26 A.2d 592 (1942)]; then

265 it clearly is not deriving a special corporate benefit or

266 pecuniary profit. Two classes of activities fall within

267 the broader category of acting as the agent of the state:

268 ‘[1] those imposed by the [s]tate for the benefit of the

269 general public, and [2] those which arise out of legisla-

270 tion imposed in pursuance of a general policy, mani-

271 fested by legislation affecting similar corporations, for

272 the particular advantage of the inhabitants of the munic-

273 ipality, and only through this, and indirectly, for the

274 benefit of the people at large. . . . For example, the

275 maintenance of the public peace or prevention of dis-

276 ease would fall within the first class; Keefe v. Union,

277 76 Conn. 160, 166, [56 A. 571 (1903)]; while the mainte-

278 nance of a park system would fall within the second

279 class.’ ’’ Considine v. Waterbury, supra, 279 Conn. 845–

280 46. ‘‘[T]he second class of activities encompasses func-

281 tions that appear to be for the sole benefit of a

282 municipality’s inhabitants, but nevertheless provide

283 indirect benefits to the general public because the activ-

284 ities were meant to improve the general health, welfare

285 or education of the municipality’s inhabitants.’’ Id., 846.

286 Historically, we have concluded that operating a

287 municipal pool constitutes a governmental function.

288 Hannon v. Waterbury, 106 Conn. 13, 17–18, 136 A. 876

289 (1927). In Hannon, this court recognized that munici-

290 palities operating swimming pools are performing a

291 governmental function, because the municipality is

292 effecting the ‘‘education of the people of the city in

293 teaching them to swim and thus guarding their lives

294 against the accident of drowning, promoting a most

295 useful and beneficial form of exercise, and teaching

296 cleanliness of habits of living and thus preserving their

297 health.’’ Id., 18.

298 The General Statutes support Hannon’s holding. Gen-

299 eral Statutes § 7-130b authorizes municipalities to cre-

300 ate recreational authorities or departments. Such

301 bodies are ‘‘deemed to be . . . instrumental[ities] exer-

302 cising public and essential government functions to pro-

303 vide for the public health and welfare . . . .’’9 General

304 Statutes § 7-130d. Municipal recreational authorities or

305 departments are statutorily empowered to construct

306 and operate a variety of projects; see General Statutes

307 § 7-130d (c); including, specifically, ‘‘swimming pools.’’

308 General Statutes § 7-130a (d).

309 The plaintiff claims that the nature of the use of the

310 pool in this case is distinguishable from that at issue

311 in Hannon. Specifically, he argues that the defendant

312 here is renting the pool to Eastern for use in its business,

313 but the defendant city in Hannon served children and

314 individuals via swim lessons. In the plaintiff’s view,

315 rental of municipal property to a private party is a

316 proprietary action. To determine whether renting a

317 municipal pool to a business for private use constitutes

318 a change in the nature of the activity sufficient to abro-

319 gate immunity, we must review our case law on the

320 charging of fees for use of a municipal property.

321 We have concluded previously that a ‘‘municipality

322 may . . . charge a nominal fee for participation in a

323 governmental activity and it will not lose its governmen-

324 tal nature as long as the fee is insufficient to meet the

325 activity’s expenses.’’ Considine v. Waterbury, supra,

326 279 Conn. 847. In Hannon, for example, we concluded

327 that charging nominal fees for swimming lessons10 did

328 not alter the governmental nature of running a munici-

329 pal swimming pool. Hannon v. Waterbury, supra, 106

330 Conn. 18–19. We reasoned that the ‘‘money taken in did

331 not pay the entire expense of operating the pool,’’ in

332 particular, by failing to ‘‘pay for the large amount of

333 electricity used in operating the motor, drying the hair

334 and lighting, coal, water, chemicals used in the water,

335 [as well as] the rental value or maintenance of the part

336 of the building used and the equipment . . . .’’ Id., 15.

337 Because the pool actually was operated at a loss, the

338 fees charged did not constitute a ‘‘profit,’’ but, rather,

339 ‘‘the charge was a mere incident of the public service

340 rendered in the performance of a governmental duty.’’

341 Id., 18; see also Carta v. Norwalk, 108 Conn. 697, 702,

342 145 A. 158 (1929) (to qualify as proprietary function

343 ‘‘operation must contemplate and involve revenue of

344 such amount and nature as to signify a profit resulting

345 thereform, as distinguished from the imposition of such

346 a nominal or small fee or charge as may fairly be

347 regarded as a mere incident of the public service

348 rendered’’).

349 In contrast, a ‘‘municipality generally has been deter-

350 mined to be acting for its own special corporate benefit

351 or pecuniary profit where it engages in an activity ‘for

352 the particular benefit of its inhabitants’ . . . or if it

353 derives revenue in excess of its costs from the activ-

354 ity.’’11 (Citations omitted.) Considine v. Waterbury,

355 supra, 279 Conn. 847. Specifically, a municipality may

356 act in its proprietary capacity by ‘‘leas[ing] municipal

357 property to private individuals.’’ Id., 849 (citing cases).

358 Nevertheless, we have cautioned against treating

359 ‘‘actual pecuniary profit’’ alone as determinative of

360 whether a function is proprietary because it could

361 encourage municipalities to skirt tort liability by

362 avoiding ‘‘ ‘implementation of cost-efficient measures

363 [while] encourag[ing] deficit spending’ ’’ to maintain a

364 loss in the financial year. Id., 847 n.11. Still, a proprietary

365 function has been found where the municipality is ‘‘act

366 [ing] ‘very much like private enterprise . . . .’ ’’ Id., 848,

367 quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984)

368 § 131, p. 1053.

369 The following examples are illustrative. In renting

370 out part of its municipal golf course to a single private

371 party for use as a restaurant for approximately $29,000

372 per year, the defendant city in Considine v. Waterbury,

373 supra, 279 Conn. 833, 850–51, was deemed to have acted

374 in a proprietary capacity because such a lease ‘‘stands

375 in stark contrast from those activities in which this

376 court has determined that the municipality was acting

377 as the state’s agent for the direct or indirect benefit of

378 the general public.’’ The city’s collection of ‘‘a substan-

379 tial rent [from] a private party to operate a business

380 . . . very much resembles private enterprise’’ in its

381 ‘‘nature and character.’’ (Emphasis added.) Id., 851. Sim-

382 ilarly, the annual rental of a municipal beach pavilion

383 for a fee of $2500 in 1926 to a private party constituted

384 prima facie evidence of a profit for the defendant city.

385 Carta v. Norwalk, supra, 108 Conn. 701–702; see also

386 Blonski v. Metropolitan District Commission, 309

387 Conn. 282, 284, 71 A.3d 465 (2013) (defendant liable

388 because conduct with respect to gate that injured plain-

389 tiff inextricably linked to defendant’s proprietary water

390 supply operation); Martel v. Metropolitan District

391 Commission, 275 Conn. 38, 55–56, 881 A.2d 194 (2005)

392 (defendant immune from liability, as conduct not con-

393 nected to proprietary operation of for-profit water sup-

394 ply company).

395 Evaluating the plaintiff’s claims against this legal

396 background, we conclude that the defendant’s opera-

397 tion of its municipal pool does not constitute a proprie-

398 tary function so as to abrogate its discretionary act

399 immunity. First, the defendant’s rental of its pool to an

400 aqua therapy program two or three times a week fits

401 within the general public purposes espoused in Han-

402 non. By allowing use of the pool, the defendant is pro-

403 moting health and exercise for those using the pool,

404 purposes that are entirely within Hannon’s framework.

405 See Hannon v. Waterbury, supra, 106 Conn. 18. Second,

406 the fee charged to Eastern is, like the fees charged in

407 Hannon, nominal, and the total fees collected from all

408 parties reserving the pool do not cover the costs of

409 maintaining the pool. Instead, in the year in question,

410 the pool’s expenses exceeded revenues by more than

411 $5000, even without considering such things as electric-

412 ity and water costs. This undercuts the plaintiff’s asser-

413 tion that the municipality is acting like a ‘‘private

414 enterprise.’’ (Internal quotation marks omitted.) Con-

415 sidine v. Waterbury, supra, 279 Conn. 848. Most private

416 enterprises do not operate at a loss, or they will cease

417 to exist. Also, the defendant’s nominal fee of $50 per

418 hour had remained stable for several years, further sug-

419 gesting that profit is not a goal; cf. id., 833 (noting that

420 rent charged to private party increased annually as lease

421 term); but, rather, that the fee ‘‘was a mere incident of

422 the public service rendered in the performance of a

423 governmental duty.’’ Hannon v. Waterbury, supra, 18.

424 Third, unlike in Considine and Carta v. Norwalk, supra,

425 108 Conn. 699, private parties, like Eastern, who reserve

426 the pool do so without a formal lease or contract and

427 for only short periods of time. Aside from the equivalent

428 of a sign-up sheet that Eastern’s manager fills out and

429 the consistency with which Eastern has used the pool,

430 nothing in Eastern’s reservation of the pool resembles a

431 binding commercial lease. As mentioned, the defendant

432 continues to provide a lifeguard during reserved times

433 and to retain responsibility for the general maintenance

434 of the pool.

435 The plaintiff claims that, even if no actual profit was

436 gained by the defendant’s operation of the pool overall,

437 this court should determine profitability by evaluating

438 the fees paid by Eastern with reference to the periods

439 of time that Eastern reserved the pool, and conclude

440 that Eastern’s fee for its use exceeded the costs of

441 operating the pool for those periods of time. Specifi-

442 cally, the plaintiff reasons that, annually, Eastern is

443 contributing $7800 for 156 hours of use, an amount that

444 exceeds the costs attributable to the pool for that period

445 of time. This argument was not raised in the trial court

446 and should not be raised for the first time on appeal,

447 particularly in the absence of an undisputed factual

448 record to support it.12 See, e.g., White v. Mazda Motor

449 of America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079

450 (2014). In any event, we have never before held that,

451 to determine whether a municipality derives a profit, the

452 measure of revenues to expenses should be determined

453 based on the exact proportion of time a private com-

454 pany uses a facility relative to the yearly costs of

455 operating that facility. Because the plaintiff has not

456 provided any authority in support of this inventive

457 approach to evaluating profitability, we decline to

458 adopt it.

459 It bears mentioning that extending the abrogation of

460 municipal immunity to any situation in which a town

461 allows the private use of its facilities for a nominal fee

462 potentially could expose municipalities to great liabil-

463 ity. In the face of such a threat, no rational municipality

464 would continue to allow its municipal facilities to be

465 used by outside parties. This would be detrimental to

466 the enjoyment and use of municipal facilities by any

467 smaller group of the general public that might wish to

468 use these facilities. Under such restrictions, private,

469 nonprofit, and other independent groups would be pre-

470 vented from utilizing public parks, softball fields and,

471 yes, pools. On the basis of the foregoing analysis, we

472 conclude that the defendant’s operation of the munici-

473 pal pool constitutes a governmental function, and, by

474 operating the pool, the defendant does not derive a

475 special corporate profit or pecuniary benefit.

476 II

477 We turn next to whether any other recognized excep-

478 tion to immunity is in play. Three exceptions to discre-

479 tionary act immunity are recognized,13 but only one is

480 relevant here: the identifiable person, imminent harm

481 exception. Pursuant to this exception, liability is not

482 precluded when ‘‘the circumstances make it apparent

483 to the public officer that his or her failure to act would

484 be likely to subject an identifiable person to imminent

485 harm . . . .’’ (Internal quotation marks omitted.) Doe

486 v. Petersen, 279 Conn. 607, 615–16, 903 A.2d 191 (2006).

487 The plaintiff contends that he qualifies as an identifiable

488 person subject to imminent harm by virtue of his pres-

489 ence at the defendant’s pool for the aqua therapy ses-

490 sion provided by Eastern. Specifically, he contends that

491 he was an identifiable individual to the on duty lifeguard

492 employed by the defendant. We disagree that the plain-

493 tiff qualifies as an identifiable person and, therefore,

494 conclude that this exception does not apply to abrogate

495 the defendant’s municipal immunity.

496 ‘‘[T]he identifiable person, imminent harm exception

497 to qualified immunity for an employee’s discretionary

498 acts is applicable in an action brought under § 52-557n

499 (a) to hold a municipality directly liable for those acts.’’

500 Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684

501 (2009). The exception requires three elements: ‘‘(1) an

502 imminent harm; (2) an identifiable victim; and (3) a

503 public official to whom it is apparent that his or her

504 conduct is likely to subject that victim to that harm

505 . . . . We have stated previously that this exception to

506 the general rule of governmental immunity for employ-

507 ees engaged in discretionary activities has received very

508 limited recognition in this state. . . . If the plaintiffs

509 fail to establish any one of the three prongs, this failure

510 will be fatal to their claim that they come within the

511 imminent harm exception.’’ (Internal quotation marks

512 omitted.) Strycharz v. Cady, 323 Conn. 548, 573–74,

513 148 A.3d 1011 (2016).14

514 ‘‘An allegedly identifiable person must be identifiable

515 as a potential victim of a specific imminent harm. Like-

516 wise, the alleged imminent harm must be imminent in

517 terms of its impact on a specific identifiable person.’’

518 (Internal quotation marks omitted.) Cotto v. Board of

519 Education, 294 Conn. 265, 276, 984 A.2d 58 (2009).

520 Generally, we have held that a party is an identifiable

521 person when he or she is compelled to be somewhere.

522 See Strycharz v. Cady, supra, 323 Conn. 575–76 (‘‘[o]ur

523 decisions underscore . . . that whether the plaintiff

524 was compelled to be at the location where the injury

525 occurred remains a paramount consideration in

526 determining whether the plaintiff was an identifiable

527 person or member of a foreseeable class of victims.’’

528 [internal quotation marks omitted]). Accordingly, ‘‘[t]he

529 only identifiable class of foreseeable victims that we

530 have recognized . . . is that of schoolchildren

531 attending public schools during school hours because:

532 they were intended to be the beneficiaries of particular

533 duties of care imposed by law on school officials; they

534 [are] legally required to attend school rather than being

535 there voluntarily; their parents [are] thus statutorily

536 required to relinquish their custody to those officials

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

538 traditionally require special consideration in the face

539 of dangerous conditions.’’ (Internal quotation marks

540 omitted.) Id., 576.

541 Outside of the schoolchildren context, we have recog-

542 nized an identifiable person under this exception in

543 only one case that has since been limited to its facts.15

544 Beyond that, although we have addressed claims that

545 a plaintiff is an identifiable person or member of an

546 identifiable class of foreseeable victims in a number of

547 cases, we have not broadened our definition.16 See, e.g.,

548 Cotto v. Board of Education, supra, 294 Conn. 267–68,

549 279 (director of community based summer youth pro-

550 gram located in public school was not identifiable per-

551 son when he slipped in wet bathroom because ‘‘then

552 so was every participant and supervisor in the Latino

553 Youth program who used the bathroom,’’ and anyone

554 ‘‘could have slipped at any time’’ [emphasis in original]);

555 see also Coe v. Board of Education, 301 Conn. 112,

556 119–20, 19 A.3d 640 (2011) (student injured while

557 attending middle school graduation dance occurring off

558 school grounds did not qualify as member of identifiable

559 class of foreseeable victims because she was not

560 required to attend dance); Grady v. Somers, supra, 294

561 Conn. 328, 355–56 (permit holder injured at refuse trans-

562 fer station owned by town did not qualify as identifiable

563 person despite being paid permit holder and resident

564 of town); Durrant v. Board of Education, 284 Conn.

565 91, 96, 104, 108, 931 A.2d 859 (2007) (mother who slipped

566 and fell while picking up her child from optional after-

567 school day care program run in conjunction with public

568 school did not qualify as member of identifiable class

569 of foreseeable victims because program was optional);

570 Prescott v. Meriden, 273 Conn. 759, 761–62, 764–65,

571 873 A.2d 175 (2005) (parent voluntarily attending high

572 school football game to watch his child play was not

573 member of identifiable class of foreseeable victims

574 because he was not compelled to attend, school officials

575 lacked similar duties of care to him as to child given his

576 status as parent, and exception is ‘‘narrowly defined’’

577 [internal quotation marks omitted]); Evon v. Andrews,

578 211 Conn. 501, 508, 559 A.2d 1131 (1989) (‘‘[t]he class

579 of possible victims of an unspecified fire that may occur

580 at some unspecified time in the future is by no means

581 a group of ‘identifiable persons’ ’’).

582 In the present case, the plaintiff was in no way com-

583 pelled to attend the aqua therapy sessions provided by

584 Eastern. Instead, he voluntarily decided to use Eastern’s

585 services. Under established case law, this choice pre-

586 cludes us from holding that the plaintiff was an identifi-

587 able person or a member of an identifiable class of

588 persons. As the identifiable person, imminent harm

589 exception requires conjunctive proof of both, our deter-

590 mination that the plaintiff does not qualify as an identifi-

591 able person ends our analysis, and we need not consider

592 whether an imminent harm existed on these facts.

593 The judgment is affirmed.

595

594 In this opinion the other justices concurred.

1

596 General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as

597 otherwise provided by law, a political subdivision of the state shall be liable

598 for damages to person or property caused by . . . (B) negligence in the

599 performance of functions from which the political subdivision derives a

600 special corporate profit or pecuniary benefit . . . . (2) Except as otherwise

601 provided by law, a political subdivision of the state shall not be liable for

602 damages to person or property caused by . . . (B) negligent acts or omis-

603 sions which require the exercise of judgment or discretion as an official

604 function of the authority expressly or impliedly granted by law.’’

2

605 Eastern Connecticut Rehabilitation Center, Inc., was also named as a

606 defendant in this action. Because the plaintiff appealed after the court

607 disposed of all claims in this action against the town of Plainfield; see

608 Practice Book § 61-3; and Eastern Connecticut Rehabilitation Center, Inc.,

609 is not a party to this appeal, we refer in this opinion to the town of Plainfield

610 as the defendant.

3

611 The plaintiff alleged two counts against the defendant, one pursuant to

612 § 52-557n and the other pursuant to General Statutes § 7-465, a municipal

613 indemnification statute. The trial court struck the § 7-465 count because the

614 plaintiff did not identify a town employee for whom indemnification was

615 sought. See Altfeter v. Naugatuck, 53 Conn. App. 791, 799, 732 A.2d 207

616 (1999). After the plaintiff failed to replead his § 7-465 claim in a viable

617 fashion, the trial court rendered judgment on that claim in the defendant’s

618 favor. Only the § 52-557n count is at issue in this appeal.

4

619 Eastern now pays the defendant $60 for each reserved hour of use.

5

620 The plaintiff appealed to the Appellate Court, and this court transferred

621 the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice

622 Book § 65-1.

6

623 ‘‘[A] municipal government is viewed as having a double function, first,

624 the proprietary or corporate function, and, second, the governmental func-

625 tion as the arm or agent of the state. Sovereign immunity protects sovereign

626 governments, such as states, and municipalities when acting as agents of

627 the state, but not municipal corporations acting on their own behalf.’’ 18

628 E. McQuillin, Municipal Corporations (3d Ed. Rev. 2003) § 53.23, p. 381.

7

629 We have acknowledged that ‘‘[w]hen a governmental entity engages in

630 conduct for its own corporate benefit in a manner that poses an unreasonable

631 risk of harm to others, we can perceive of no reason why it should not be

632 held responsible for all of the consequences of that conduct, just as a private

633 person would be.’’ Blonski v. Metropolitan District Commission, 309 Conn.

634 282, 295–96, 71 A.3d 465 (2013).

8

635 At oral argument, the plaintiff suggested using separate definitions for

636 special corporate profit and pecuniary benefit; however, this court analyzed

637 those two phrases together in Considine, and we see no reason to waver

638 from that analysis today.

9

639 According to Ambrogi’s affidavit, the swimming pool at issue in this case

640 is operated by the defendant and its recreation department.

10

641 The defendant in Hannon charged ten cents per lesson for children and

642 twenty cents for adults. Hannon v. Waterbury, supra, 106 Conn. 14.

11

643 We do not read Considine as suggesting that, simply because an activity

644 is offered only to a municipality’s residents, the municipality necessarily

645 loses its immunity. Rather, even in such circumstances, activities that are

646 meant to improve the general health, welfare or education of the municipali-

647 ty’s inhabitants are deemed to indirectly benefit the general public and,

648 thus, constitute activities performed as an agent of the state. Considine v.

649 Waterbury, supra, 279 Conn. 846. The distinction is not implicated in this

650 case, however, because the defendant permitted private groups to reserve

651 use of the pool without including the residency information of their individ-

652 ual group members.

12

653 For example, the record does not reveal the total number of hours that

654 the pool is available in a year. Moreover, as previously noted, the expenses

655 identified by the defendant for running the pool do not include all expenses

656 pertaining to the pool, but specifically exclude the costs of electricity, heat,

657 water, maintenance employees’ salaries, and consumable supplies.

13

658 Liability for a municipality’s discretionary act is not precluded when

659 (1) ‘‘the alleged conduct involves malice, wantonness or intent to injure’’; (2)

660 ‘‘a statute provides for a cause of action against a municipality or municipal

661 official for failure to enforce certain laws’’; or (3) ‘‘the circumstances make

662 it apparent to the public officer that his or her failure to act would be likely

663 to subject an identifiable person to imminent harm . . . .’’ (Citations omit-

664 ted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607,

665 615–16, 903 A.2d 191 (2006).

14

666 We have previously held that the identifiable person, imminent harm

667 exception ‘‘applies in an action brought directly against [a] municipalit[y]

668 pursuant to § 52-557n (a) (1) (A), regardless of whether an employee or

669 officer of the municipality also is a named defendant.’’ Grady v. Somers,

670 supra, 294 Conn. 348; see Benedict v. Norfolk, 296 Conn. 518, 523, 997

671 A.2d 449 (2010) (citing Grady for proposition that action may name only

672 municipality as defendant and claim identifiable person, imminent harm

673 exception). Thus, we address this issue despite the lack of a claim against

674 a specific municipal employee.

15

675 Specifically, prior to the adoption of the current three-pronged identifi-

676 able person, imminent harm analysis, we concluded that an identifiable

677 person subject to imminent harm existed among a group of intoxicated

678 individuals who were arguing and scuffling in a parking lot when a police

679 officer who spotted them failed to intervene until he heard a gunshot. Sestito

680 v. Groton, 178 Conn. 520, 522–24, 423 A.2d 165 (1979). This holding, however,

681 has been limited to its facts. Edgerton v. Clinton, supra, 311 Conn. 240.

682 Even if its holding was not so limited, Sestito would not apply in the present

683 case because, in contrast to the circumstances in Sestito, no evidence in

684 the record supports the plaintiff’s claim that he was actually identified to

685 a town official in connection with the alleged harm.

16

686 A recent Appellate Court decision, Brooks v. Powers, 165 Conn. App.

687 44, 138 A.3d 1012 (2016), cert. granted, 322 Conn. 907, 143 A.3d 603 (2016),

688 is cited by the plaintiff to support his contention that he is an identifiable

689 victim within the scope of this exception. It was not disputed in Brooks,

690 however, that the decedent was an identifiable person. This court has granted

691 the defendant’s petition for certification to appeal in Brooks, limited to the

692 issue of whether the Appellate Court properly applied the identifiable person,

693 imminent harm standard and concluded that the harm at issue was imminent.

694 Brooks v. Powers, 322 Conn. 907, 143 A.3d 603 (2016). We have examined

695 the opinion of the Appellate Court in that case and conclude that its facts

696 are highly distinguishable from those of the present case. By so observing, we

697 do not intend to express any opinion as to the merits of that pending appeal.

699

698