Washburne v. Town of Madison

BENJAMIN WASHBURNE ET AL. v. TOWN OF

MADISON ET AL.

(AC 38721)

Alvord, Sheldon and Prescott, Js.

Syllabus

The plaintiff W, individually and on behalf of her minor son, B, who had

sustained a broken leg when he was kicked in the shin area by another

student while playing soccer in a third grade physical education class,

sought to recover damages for negligence from the defendants, the

town of Madison, the town’s Board of Education, the principal of the

elementary school where B was injured, and D, a substitute physical

education teacher who was supervising B’s class at the time of his injury.

W alleged that B was not wearing shin guards at the time he was injured

and that the defendants did not provide B or other children with shin

guards, which she alleged violated existing school policies and resulted

in B’s injuries. The trial court granted the defendants’ motion for sum-

mary judgment on the ground of governmental immunity and rendered

judgment thereon, from which W appealed to this court. Held:

1. The trial court properly granted the defendants’ motion for summary

judgment, the court having determined that the acts or omissions under-

lying W’s negligence claims were discretionary in nature and, thus,

subject to governmental immunity; the defendants having presented

evidence to demonstrate that the decision of whether to require shin

guards involved the exercise of judgment and, thus, inherently was

discretionary in nature, and W having failed to meet her burden of

demonstrating the existence of a clear and unequivocal policy or other

written directive mandating the use of shin guards by the town’s third

grade students, W failed to establish her claim that a genuine issue of

material fact existed about whether safety guidelines in the board’s

physical education guide, specifically, a provision indicating that stu-

dents should wear shin guards for additional protection, created a minis-

terial duty the implementation of which was not protected by

governmental immunity, as she did not produce any regulation, rule or

other directive promulgated by the town or the board that required all

students to wear shin guards whenever playing soccer.

2. W could not prevail on her claim that, even if the defendants’ acts or

omissions were discretionary in nature, there remained a genuine issue

of material fact as to whether B had been subject to imminent harm

and, thus, fell within the identifiable person/imminent harm exception

to governmental immunity; W presented no evidence that D or the other

defendants were aware that an injury similar to the one suffered by B

was so likely to happen that they should have acted to prevent it by

requiring the students to wear shin guards, nor did W present any

evidence to dispute certain of the board’s interrogatory answers, which

demonstrated that the probability of soccer related injuries in gym class

was very low, or to show that the number of injuries was low because

students usually wore shin guards when playing soccer, and although

W presented evidence that it was apparent to the defendants that an

injury to a child playing soccer without shin guards could occur, the

foreseeability of such an injury did not translate to imminent harm

without a showing that the probability that the injury would occur

from the lack of shin guards was high enough to necessitate that the

defendants act to prevent it.

Argued March 9—officially released August 15, 2017

Procedural History

Action to recover damages for the defendants’ alleged

negligence, brought to the Superior Court in the judicial

district of New Haven, where the court, Nazzaro, J.,

granted the defendants’ motion for summary judgment

and rendered judgment thereon; thereafter, the court

denied the plaintiffs’ motion to reargue, and the plain-

tiffs appealed to this court. Affirmed.

Hugh D. Hughes, with whom, on the brief, were

Brian Flood and Alexander Bates, for the appellants

(plaintiffs).

Matthew Dallas Gordon, with whom, on the brief,

was Nicholas Norton Ouellette, for the appellees

(defendants).

Opinion

PRESCOTT, J. The plaintiff, Jennifer Washburne,

who brought the underlying action on behalf of her

minor son, the plaintiff Benjamin Washburne (Benja-

min), and herself individually,1 appeals from the sum-

mary judgment rendered by the trial court in favor of the

defendants—the town of Madison (town); the town’s

Board of Education (board); Kelly Spooner, the princi-

pal of Ryerson Elementary School (Ryerson Elemen-

tary); and Erik Delehanty, a substitute physical

education teacher—on the ground that the action was

barred by governmental immunity.2 According to the

complaint, Benjamin’s leg was broken when he was

kicked in the shin or ankle by another student while

playing soccer at school. The incident occurred during

a physical education class at Ryerson Elementary that

Delehanty was supervising. The defendants did not pro-

vide Benjamin or the other children with shin guards,

and Benjamin was not wearing shin guards at the time

he was injured, which the plaintiff alleged violated

existing school policies and resulted in Benjamin’s

injuries.

The plaintiff claims on appeal that the court improp-

erly rendered summary judgment as a matter of law

despite the existence of genuine issues of material fact

regarding (1) whether safety guidelines in a curriculum

guide, which provided that students playing soccer

should ‘‘wear shin guards for additional protection,’’

imposed a ministerial duty on the defendants to require

the use of shin guards by students, and (2) whether,

even if such a duty was discretionary, Benjamin had

been subject to imminent harm and, thus, an exception

to governmental immunity was applicable. We disagree

and, accordingly, affirm the judgment of the trial court.

The record before the court, viewed in the light most

favorable to the plaintiff as the nonmoving party,

reveals the following facts and procedural history. On

March 16, 2010, Benjamin was a third grade student at

Ryerson Elementary. On that day, as part of an orga-

nized activity during a gym class supervised by Deleh-

anty, Benjamin and his classmates were permitted to

play soccer on the school’s athletic field. Before

allowing them to play, Delehanty instructed the children

about safety and the rules of the game, but he did

not require the children to wear shin guards. Several

minutes into the scrimmage, Benjamin was kicked in

the shin or ankle by another student, which resulted in

a fracture to Benjamin’s lower left tibia and fibula.

The plaintiff commenced this action against the

defendants on February 3, 2012. The complaint con-

tained eight counts, each sounding in negligence. Count

one invoked General Statutes § 52-557n and claimed

that Benjamin’s injuries were the result of negligence

by the town. The next three counts of the complaint,

which also were brought on behalf of Benjamin, alleged

negligence on the part of Spooner, Delehanty, and the

board, respectively. The remaining four counts, one

against each of the defendants, were brought by the

plaintiff in her individual capacity to recover funds

spent caring for Benjamin’s injuries and on his recovery.

The gravamen of the plaintiff’s negligence claims was

that rules, policies, or procedures of the school district

required students to wear shin guards when playing

soccer, but no shin guards were provided to Benjamin

on the day he was injured.3

The defendants filed an answer to the complaint on

November 20, 2012, denying the negligence allegations.

They also asserted by way of a special defense that the

town and its agents were immune from liability for

any alleged negligence on the basis of governmental

immunity, citing § 52-557n (a) (2) (B). The plaintiff filed

a reply denying all allegations of the special defense.

On August 1, 2014, the defendants filed a motion for

summary judgment. The defendants claimed that they

were entitled to judgment on all counts of the complaint

as a matter of law because of the discretionary act

immunity afforded by § 52-557n (a) (2) (B), and because

the plaintiff could not show that Benjamin was an identi-

fiable person subject to imminent harm, as required

to fall within the relevant exception to governmental

immunity. In support of the motion for summary judg-

ment, the defendants submitted a memorandum of law

attached to which were excerpts from copies of the

depositions of Spooner and Delehanty.

The plaintiff filed an opposition to the motion for

summary judgment on March 19, 2015. According to

the plaintiff, there were genuine issues of material fact

that should be resolved by the jury concerning whether

the defendants had a ministerial duty, as set forth in a

school policy or directive, to ensure that students wore

shin guards when playing soccer at school. The plaintiff

further argued that, even if the decision to require shin

guards was discretionary in nature, there remained a

genuine issue of material fact as to whether Benjamin

was an identifiable person subject to imminent harm,

and, thus, whether an exception to governmental immu-

nity applied. Attached as exhibits to the opposition were

portions of the town’s responses to interrogatories; a

chart from a curriculum guide titled ‘‘Madison Public

Schools Physical Education Program: A Framework for

Integrated Teaching and Learning’’ (physical education

guide); portions of Madison Public Schools’ ‘‘Student

Welfare/Safety Requirements’’; and additional excerpts

from Spooner’s and Delehanty’s depositions.

The defendants filed a reply memorandum in support

of summary judgment and in response to the plaintiff’s

opposition on July 1, 2015. Attached to the reply was

an affidavit by James Flanagan, a physical education

teacher and physical education coordinator for the

board who was responsible for the drafting of the physi-

cal education guide; additional excerpts from the physi-

cal education guide; and a copy of Benjamin’s ‘‘Medical

Release From Elementary Physical Education,’’ which

indicated that, despite a physical issue regarding his

foot, he could participate in most regular physical edu-

cation activities, including playing soccer. The only

restricted activity noted was participation in the mile

run.

The plaintiff filed a response to the reply memoran-

dum on July 31, 2015, attached to which were excerpts

from a publication titled ‘‘Madison Public Schools

Department of Athletics 2009–2013 Handbook for Stu-

dent-Athletes, Parents and Coaches’’; excerpts from

Flanagan’s deposition testimony; and another copy of

Flanagan’s affidavit. That same day the defendants filed

a short surreply. The court, Nazzaro, J., heard argument

on the motion for summary judgment at a hearing on

August 3, 2015.

On November 5, 2015, the court issued a memoran-

dum of decision rendering judgment on all counts of

the complaint in favor of the defendants. The court

concluded on the basis of the pleadings and evidence

submitted by the parties that the defendants were enti-

tled to governmental immunity as a matter of law. Spe-

cifically, the court determined that the defendants had

established their prima facie entitlement to summary

judgment because the court’s construction of relevant

excerpts from the physical education guide and the

averments of Flanagan established that the use of shin

guards by students was not a mandatory requirement

but, rather, involved a discretionary determination as

to whether the extra protection afforded by shin guards

was warranted under the circumstances. The court also

determined that the evidence submitted by and relied

upon by the plaintiff in opposition to the summary judg-

ment motion failed to raise a genuine issue of material

fact regarding whether the supervision of students play-

ing soccer during a physical education class was a min-

isterial act or that any policy or procedure in place was

intended to limit the discretion of the defendants or

prescribe ‘‘how to instruct on and provide safety equip-

ment for soccer played during physical education

class.’’

The court also determined that the plaintiff had failed

to establish that a genuine issue of material fact existed

regarding the identifiable person/imminent harm excep-

tion to governmental immunity. In particular, the court

stated that the plaintiff’s arguments and evidence could

not support a determination that the harm suffered was

imminent. The court reasoned that although the plaintiff

had established that a potential for injury may have

been apparent to the defendants, she had failed ‘‘to

present evidence to demonstrate that the probability

of injury to students from not wearing shin guards in

gym class was so high that the defendants had a clear

and unequivocal duty to act immediately to prevent

harm, namely, to provide shin guards for students.’’ The

plaintiff filed a motion for reargument and reconsidera-

tion, which the court denied. This appeal followed.

Before turning to the plaintiff’s claims on appeal, we

begin by setting forth the standard of review applicable

to a trial court’s decision to grant a motion for summary

judgment. ‘‘Practice Book § [17-49] provides that sum-

mary judgment shall be rendered forthwith if the plead-

ings, affidavits and any other proof submitted show that

there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter

of law. . . . In deciding a motion for summary judg-

ment, the trial court must view the evidence in the light

most favorable to the nonmoving party. . . . The party

seeking summary judgment has the burden of showing

the absence of any genuine issue [of] material facts

which, under applicable principles of substantive law,

entitle him to a judgment as a matter of law . . . and

the party opposing such a motion must provide an evi-

dentiary foundation to demonstrate the existence of a

genuine issue of material fact. . . . [I]ssue-finding,

rather than issue-determination, is the key to the proce-

dure. . . . [T]he trial court does not sit as the trier of

fact when ruling on a motion for summary judgment.

. . . [Its] function is not to decide issues of material

fact, but rather to determine whether any such issues

exist. . . . Our review of the decision to grant a motion

for summary judgment is plenary. . . . We therefore

must decide whether the court’s conclusions were

legally and logically correct and find support in the

record.’’ (Internal quotation marks omitted.) DiMiceli

v. Cheshire, 162 Conn. App. 216, 221–22, 131 A.3d

771 (2016).

I

The plaintiff first claims that the court improperly

rendered summary judgment as a matter of law because

a genuine issue of material fact existed about whether

safety guidelines in the board’s physical education

guide, specifically, a provision indicating that students

should ‘‘wear shin guards for additional protection,’’

created a ministerial duty, the implementation of which

was not protected by governmental immunity. We are

not persuaded.

The following additional facts are relevant to this

claim. In opposing summary judgment, the plaintiff

argued that the defendants had a ministerial duty to

ensure that all children wore shin guards when playing

soccer during physical education classes. In support of

that argument, the plaintiff cited to the physical educa-

tion guide, which included a section titled ‘‘Safety

Guidelines.’’ That section was in chart format, broken

down by sport. Under each sport heading, there were

five columns with the following subheadings: ‘‘equip-

ment,’’ ‘‘clothing/footwear,’’ ‘‘facilities,’’ ‘‘special rules/

instruction,’’ and ‘‘supervision.’’ For soccer, the follow-

ing bullet points were listed under the subheading of

clothing/footwear: ‘‘no metal or molded cleats’’; ‘‘wear

suitable footwear and clothing’’; ‘‘wear shin guards for

additional protection’’; ‘‘wear sun protection’’; and

‘‘no jewelry.’’

In Flanagan’s affidavit, he averred that the use of shin

guards was, as indicated in the safety guidelines, only

for additional or extra protection, and was meant only

as a suggestion to be exercised at the discretion of

the individual teacher, not as an absolute requirement.

Flanagan also explained that one of the reasons that

shin guards were not mandatory equipment was

because cleats were prohibited in gym class. He further

indicated that there were no notes, records, or other

information on file that would have alerted Delehanty

that Benjamin needed the additional protection of shin

guards. The plaintiff submitted no counteraffidavit or

evidence, other than the physical education guide, to

directly contradict Flanagan’s explanation of the

guide.

We next set forth the well settled law in this state

regarding the liability of municipalities and municipal

agents. Although, at common law, a municipality gener-

ally was immune from liability for any tortious acts, our

Supreme Court has long recognized that ‘‘governmental

immunity may be abrogated by statute.’’ Williams v.

New Haven, 243 Conn. 763, 766, 707 A.2d 1251 (1998),

citing Wysocki v. Derby, 140 Conn. 173, 175, 98 A.2d

659 (1953). General Statutes § 52-557n (a) (1) provides

in relevant part: ‘‘Except as otherwise provided by law,

a political subdivision of the state shall be liable for

damages to person or property caused by: (A) The negli-

gent acts or omissions of such political subdivision or

any employee, officer or agent thereof acting within

the scope of his employment or official duties . . . .’’

‘‘This language clearly and expressly abrogates the tra-

ditional common-law doctrine in this state that munici-

palities are immune from suit for torts committed by

their employees and agents.’’ Spears v. Garcia, 263

Conn. 22, 29, 818 A.2d 37 (2003).

Subdivision (2) of § 52-557n (a), however, contains

two significant limitations to the statutory abrogation

of governmental immunity. The exception at issue in

the present appeal provides as follows: ‘‘Except as oth-

erwise provided by law, a political subdivision of the

state shall not be liable for damages to person or prop-

erty caused by . . . (B) negligent acts or omissions

which require the exercise of judgment or discretion

as an official function of the authority expressly or

impliedly granted by law.’’ General Statutes § 52-557n

(a) (2) (B). The statutory scheme of § 52-557n, accord-

ingly, distinguishes between discretionary and ministe-

rial acts, ‘‘with liability generally attaching to a

municipality only for negligently performed ministerial

acts, not for negligently performed discretionary acts.

. . .

‘‘The hallmark of a discretionary act is that it requires

the exercise of judgment. . . . In contrast, [m]inisterial

refers to a duty which is to be performed in a prescribed

manner without the exercise of judgment or discretion.

. . . In order to create a ministerial duty, there must

be a city charter provision, ordinance, regulation, rule,

policy, or any other directive [compelling a municipal

employee] to [act] in any prescribed manner.’’ (Citation

omitted; internal quotation marks omitted.) DiMiceli v.

Cheshire, supra, 162 Conn. App. 224.

It is important to emphasize that ‘‘[e]xceptions to

governmental immunity will be found only if there is a

duty to act that is so clear and unequivocal that the

policy rationale underlying discretionary act immu-

nity—to encourage municipal officers to exercise judg-

ment—has no force.’’ (Emphasis added; internal

quotation marks omitted.) Ventura v. East Haven, 170

Conn. App. 388, 402, 154 A.3d 1020, cert. granted, 325

Conn. 905, 156 A.3d 537 (2017), citing Bonington v.

Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). Thus,

only ‘‘[i]f by statute or other rule of law the official’s

duty is clearly ministerial rather than discretionary’’

will a cause of action then lie for an individual injured as

a result of an official’s allegedly negligent performance.

(Emphasis added.) Shore v. Stonington, 187 Conn. 147,

153, 444 A.2d 1379 (1982).

‘‘Although the determination of whether official acts

or omissions are ministerial or discretionary is normally

a question of fact for the fact finder . . . there are

cases [in which that determination] is apparent from

the complaint. . . . [W]hether an act or omission is

discretionary in nature and, thus, whether governmen-

tal immunity may be successfully invoked pursuant to

§ 52-557n (a) (2) (B), turns on the character of the

act or omission complained of in the complaint. . . .

Accordingly, where it is apparent from the complaint

that the defendants’ allegedly negligent acts or omis-

sions necessarily involved the exercise of judgment, and

thus, necessarily were discretionary in nature, summary

judgment is proper.’’ (Citation omitted; emphasis omit-

ted; internal quotation marks omitted.) DiMiceli v.

Cheshire, supra, 162 Conn. App. 224–25.

Furthermore, as this court explained in Ventura v.

East Haven, supra, 170 Conn. App. 388, anytime a deter-

mination of whether official acts are ministerial or dis-

cretionary ‘‘turns on the interpretation of a municipal

ordinance or policy,’’ this raises a question of law that

‘‘is inappropriate for a jury to decide.’’ Id., 403, citing,

inter alia, Honulik v. Greenwich, 293 Conn. 698, 710,

980 A.2d 880 (2009) (noting principles of statutory con-

struction govern interpretation of town policies), and

General Accident Ins. Co. of America v. Powers, Bolles,

Houlihan & Hartline, Inc., 38 Conn. App. 290, 296–97,

660 A.2d 369 (improper to instruct jury to decide ques-

tion of law requiring statutory interpretation), cert.

denied, 235 Conn. 904, 665 A.2d 901 (1995). The interpre-

tation of policy language is, thus, properly decided by

the court, subject to our plenary review. Ventura v.

East Haven, supra, 403.

As indicated, we construe a municipally created rule,

directive, or policy pursuant to the principles of statu-

tory construction. ‘‘The principles that govern statutory

construction are well established. When construing a

statute, [o]ur fundamental objective is to ascertain and

give effect to the apparent intent of the legislature. . . .

In other words, we seek to determine, in a reasoned

manner, the meaning of the statutory language as

applied to the facts of [the] case, including the question

of whether the language actually does apply. . . . In

seeking to determine that meaning, General Statutes

§ 1-2z directs us first to consider the text of the statute

itself and its relationship to other statutes. If, after

examining such text and considering such relationship,

the meaning of such text is plain and unambiguous and

does not yield absurd or unworkable results, extratex-

tual evidence of the meaning of the statute shall not

be considered. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance

to the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and common law principles governing the same general

subject matter . . . .’’ (Internal quotation marks omit-

ted.) Id., 404–405.

Turning to the present case, we are unconvinced on

the basis of our review of the evidence submitted in

conjunction with the summary judgment proceedings

that any language in the safety guidelines clearly

imposed a ministerial duty on the defendants to provide

Benjamin and the rest of his classmates with shin guards

or to ensure that shin guards were worn whenever

the children played soccer. The defendants presented

evidence to demonstrate that the decision of whether

to require shin guards involved the exercise of judgment

and, thus, was inherently discretionary in nature, and

the plaintiff simply provided no evidence in rebuttal

that raised a genuine issue of material fact on that issue.

The plaintiff, in arguing that the defendants violated

a ministerial duty, had the burden of demonstrating the

existence of a clear and unequivocal policy or other

written directive mandating the use of shin guards by

the town’s third grade students. In attempting to meet

that burden, the plaintiff primarily relied upon language

found in the soccer section of a chart taken from the

board’s physical education guide. Specifically, the plain-

tiff directs the court’s attention to a single bullet point

stating, ‘‘wear shin guards for additional protection.’’

That language by itself, however, is not the type of clear,

directory language that courts have found to impose on

schools or physical education teachers a ministerial

duty ‘‘to be performed in a prescribed manner without

the exercise of judgment or discretion.’’ (Internal quota-

tion marks omitted.) DiMiceli v. Cheshire, supra, 162

Conn. App. 224. For example, nowhere in the guide is

it stated that gym teachers are ‘‘required to,’’ ‘‘must,’’

or ‘‘shall ensure’’ that all students wear shin guards

whenever playing soccer. The plaintiff has not produced

any regulation, rule, or other directive promulgated by

the town or the board to that effect.

Significantly, the chart relied on by the plaintiff

comes from a section of the physical education guide

titled, ‘‘Materials and Resources,’’ in a subsection titled

‘‘Physical Education Safety Guidelines.’’ The words

‘‘Safety Guidelines’’ are also clearly printed on top of

the chart. The inclusion of the safety guidelines in this

chapter suggests that they were intended to be used by

teachers as a ‘‘resource’’ or information, rather than as

strict policy directives that they were obligated to

adhere to without the exercise of discretion or indepen-

dent judgment. In common parlance, a ‘‘guideline’’ is

generally understood to reflect an informed suggestion

or a best practice. Thus, the use of the term ‘‘guidelines,’’

rather than ‘‘mandates’’ or ‘‘directives,’’ implies that,

except where accompanied by specific and clear direc-

tory language, the bullet points in the safety guideline

charts were informative rather than mandatory in

nature.

Certainly, taken out of context, the phrase ‘‘wear shin

guards’’ might be construed, as a matter of grammar,

as an imperative statement, arguably mandating the use

of shin guards. In the present case, however, that phrase

is followed by the modifier, ‘‘for additional protection,’’

suggesting that some additional judgment or discretion

needed to be exercised to determine whether such addi-

tional protection was needed before the phrase would

become directive. Furthermore, the phrase is but one of

several bullet points addressing clothing and footwear,

and follows a more clearly directive notation, ‘‘no metal

or molded cleats.’’ Because cleats are expressly forbid-

den in gym classes, this logically renders the use of

shin guards relatively less important as a safety concern

and, in fact, renders more significant the latter, ‘‘for

additional protection,’’ language. Moreover, in the sec-

tion of the chart dedicated to ‘‘special rules/instruc-

tions’’ for soccer, there is nothing requiring an

instruction on the use of shin guards, which one would

expect to find if the use of shin guards were, in fact,

mandatory.

To the extent that the phrase ‘‘wear shin guards for

additional protection’’ is ambiguous, and thus suscepti-

ble to different meanings, that fact alone supports a

determination that the language in the physical educa-

tion guide was not intended to be a clear and unequivo-

cal waiver of governmental immunity. That notion finds

further support in Flanagan’s affidavit, in which he

describes the physical education guide as generally rep-

resenting ‘‘an articulation of what students should know

and be able to do and supports teachers in knowing

how to achieve these goals.’’ Flanagan’s understanding

comports with our own construction of the guide as

simply a resource for information, and undermines the

plaintiff’s position that the safety guidelines in the guide

were intended as mandates that the defendants were

obligated to adhere to without the exercise of dis-

cretion.

In short, the sole evidence before us regarding the

intent of the drafters of the physical education guide

and the language in question indicates that it was simply

intended to provide information that shin guards could

be worn for additional protection. As we have already

concluded, whether extra protection was needed and

whether to utilize shin guards in any given situation

required the exercise of judgment and, in the present

case, fell within the discretion exercised by the

defendants.

We are unconvinced that the trial court improperly

determined that the acts or omissions underlying the

plaintiff’s negligence claims were discretionary in

nature and, thus, subject to governmental immunity.

Accordingly, we reject the plaintiff’s claim.

II

We next turn to the plaintiff’s alternative claim that,

even if the defendants’ acts or omissions were discre-

tionary in nature, the court improperly granted the

defendants’ motion for summary judgment because

there remained a genuine issue of material fact as to

whether Benjamin had been subject to imminent harm

and, thus, fell within the identifiable person/imminent

harm exception to governmental immunity.4 We

disagree.

‘‘The imminent harm exception to discretionary act

immunity [for municipalities and their employees]

applies when the circumstances make it apparent to

the public officer that his or her failure to act would

be likely to subject an identifiable person to imminent

harm . . . . By its own terms, this test requires three

things: (1) an imminent harm; (2) an identifiable [per-

son]; and (3) a public official to whom it is apparent

that his or her conduct is likely to subject that [person]

to that harm. . . . [Our Supreme Court has] stated pre-

viously that this exception to the general rule of govern-

mental immunity for employees engaged in

discretionary activities has received very limited recog-

nition in this state. . . . [T]he ultimate determination

of whether [governmental] immunity applies is ordi-

narily a question of law for the court . . . [unless] there

are unresolved factual issues material to the applicabil-

ity of the defense . . . [in which case] resolution of

those factual issues is properly left to the jury.’’ (Internal

quotation marks omitted.) Strycharz v. Cady, 323 Conn.

548, 573–74, 148 A.3d 1011 (2016).

In Haynes v. Middletown, 314 Conn. 303, 101 A.3d

249 (2014), our Supreme Court reexamined and clarified

our jurisprudence with respect to the principle of immi-

nent harm. The court overruled in part its prior holding

in Burns v. Board of Education, 228 Conn. 640, 650,

638 A.2d 1 (1994), to the extent that it appeared to

narrow the definition of imminent harm to harms arising

from dangerous conditions that were temporary in

nature. Haynes v. Middletown, supra, 322–23. Instead,

it reemphasized its earlier interpretation of imminent

harm as stated in its decision in Evon v. Andrews, 211

Conn. 501, 559 A.2d 1131 (1989), in which it explained

that a harm is not imminent if it ‘‘could have occurred

at any future time or not at all’’; id., 508; and clarified

that it ‘‘was not focused on the duration of the alleged

dangerous condition, but on the magnitude of the risk

that the condition created.’’ (Emphasis omitted.)

Haynes v. Middletown, supra, 322. ‘‘[W]hen the court

in Haynes spoke of the magnitude of the risk . . . it

specifically associated it with the probability that harm

would occur, not the foreseeability of the harm.’’ (Cita-

tion omitted; emphasis in original; internal quotation

marks omitted.) Williams v. Housing Authority, 159

Conn. App. 679, 704–705, 124 A.3d 537, cert. granted on

other grounds, 319 Conn. 947, 125 A.3d 528 (2015). In

sum, the Supreme Court concluded that ‘‘the proper

standard for determining whether a harm was imminent

is whether it was apparent to the municipal defendant

that the dangerous condition was so likely to cause

harm that the defendant had a clear and unequivocal

duty to act immediately to prevent the harm.’’ Haynes

v. Middletown, supra, 322–23.

In Williams v. Housing Authority, supra, 159 Conn.

App. 679, this court construed Haynes as setting forth

the following four part test with respect to imminent

harm. ‘‘First, the dangerous condition alleged by the

plaintiff must be ‘apparent to the municipal defendant.’

. . . We interpret this to mean that the dangerous

condition must not be latent or otherwise undis-

coverable by a reasonably objective person in the posi-

tion and with the knowledge of the defendant. Second,

the alleged dangerous condition must be likely to have

caused the harm suffered by the plaintiff. A dangerous

condition that is unrelated to the cause of the harm

is insufficient to satisfy the Haynes test. Third, the

likelihood of the harm must be sufficient to place upon

the municipal defendant a ‘clear and unequivocal duty’

. . . to alleviate the dangerous condition. The court in

Haynes tied the duty to prevent the harm to the likeli-

hood that the dangerous condition would cause harm.

. . . Thus, we consider ‘a clear and unequivocal duty’

. . . to be one that arises when the probability that

harm will occur from the dangerous condition is high

enough to necessitate that the defendant act to alleviate

the defect. Finally, the probability that harm will occur

must be so high as to require the defendant to act

immediately to prevent the harm.’’ (Citations omitted;

emphasis omitted; footnote omitted.) Id., 705–706.

Applying the Haynes standard to the facts of the

present case, the plaintiff’s claim fails as a matter of

law and, thus, was properly rejected by the trial court.

The plaintiff presented no evidence that Delehanty or

the defendants were aware that an injury similar to the

one suffered by Benjamin was so likely to happen that

they should have acted to prevent it by requiring the

students to wear shin guards. The only real evidence

presented at summary judgment regarding the magni-

tude of the risk of a student being injured while playing

soccer in gym class was contained in the answers to

interrogatories provided by the board. The board was

asked to identify the number of times during the three

year period prior to Benjamin’s injury that ‘‘a student

was injured while participating in a Madison public

school gym class.’’ The response was that twenty-eight

incidents had occurred. The next interrogatory asked

the board to ‘‘identify the number of injuries which

occurred during a soccer focused gym class.’’ The

answer was none. Thus, the probability of a soccer

related injury was statistically very low. The plaintiff

presented no evidence to dispute those responses or

to show that the number of injuries was low because

students usually wore shin guards when playing soccer.

Certainly, the plaintiff presented evidence that it was

apparent to the defendants that an injury to a child

playing soccer without shin guards could occur, as evi-

denced by Flanagan’s and Delehanty’s deposition testi-

mony acknowledging the potential for such an injury.

Foreseeability of an injury, however, does not translate

to imminent harm without also showing that the proba-

bility that an injury will occur from the dangerous condi-

tion—here, the lack of shin guards—is high enough to

necessitate that the defendants act to prevent it.

Because we agree with the trial court that the plaintiff

failed to present evidence demonstrating a genuine

issue of material fact regarding the probability of injury

to students from not wearing shin guards in third grade

gym class, we reject the claim that the court improperly

granted summary judgment in favor of the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

1

For purposes of clarity and convenience, we refer in this opinion to

Jennifer Washburne as the plaintiff, and Benjamin Washburne as Benjamin.

2

Spooner and Delehanty were sued only in their official capacities.

3

As stated in the court’s memorandum of decision, the plaintiff alleged

that Benjamin’s injuries were the result of the following negligent and care-

less acts and omissions: ‘‘failure to establish rules or guidelines of supervi-

sion and protection of students participating in soccer during school hours;

failure to and/or inadequate supervision of students participating in soccer

during school hours; failure to establish guidance on how to structure soccer

to prevent injury; failure to adopt, instruct, or enforce rules to protect

students and prevent injury to students in physical activities and physical

education; failure to put in place the proper student to teacher ratio for

physical education class and sufficient staff to supervise students; failure

to properly train and screen substitute teachers, administrators, and staff

to prevent harm to students; permitted substitute teachers without proper

training to supervise students; and did not require or provide safety equip-

ment for soccer.’’ In addition, the plaintiff alleged that ‘‘the defendants knew

or should have known that participation in soccer with[out] safety equipment

subjected students to injury; permitting subordinates without proper training

to supervise students posed a risk of harm; and safety procedures were

needed and warranted.’’ In opposing summary judgment, the plaintiff limited

her argument that the alleged negligent acts or omissions of the defendants

were ministerial in nature to those allegations related to the defendants’

failure to follow existing rules requiring students to wear shin guards.

Because that is also the sole issue briefed on appeal, we need not consider

any unrelated specifications of negligence. See Verderame v. Trinity Estates

Development Corp., 92 Conn. App. 230, 232, 883 A.2d 1255 (2005) (claims

not raised and adequately briefed on appeal deemed abandoned).

4

We note that the defendants do not dispute that Benjamin was an ‘‘identi-

fiable person’’ for purposes of the exception, conceding at oral argument

on the motion for summary judgment that, as a schoolchild, ‘‘[h]e belongs,

most likely, to the only set of identifiable persons for purposes of applying

the exception that exists in Connecticut.’’ For purposes of our analysis, we

focus on the disputed issue of imminent harm.