Perez v. Metropolitan District Commisssion

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VIVIAN PEREZ, ADMINISTRATRIX (ESTATE OF

ANDRES BURGOS) v. METROPOLITAN

DISTRICT COMMISSION

(AC 40610)

DiPentima, C. J., and Lavine and Harper, Js.

Syllabus

The plaintiff administratrix of the estate of the decedent sought to recover

damages from the defendant, a political subdivision of the state, for the

wrongful death of the decedent, who had drowned while swimming

with a group of friends in an undesignated swimming area of a lake

that is located in a recreational area owned and operated by the defen-

dant. The plaintiff alleged that the defendant had certain ministerial

duties that it failed to perform and that this nonfeasance was a direct

and proximate cause of the decedent’s death. The defendant filed a

motion for summary judgment on the ground that the plaintiff’s claim

was barred by the doctrine of governmental immunity pursuant to the

statute (§ 52-557n) that provides immunity for discretionary acts, but

not ministerial acts, of employees of political subdivisions. In her objec-

tion to the motion, the plaintiff claimed, inter alia, that the decedent

was an identifiable person subject to imminent harm and, thus, that an

exception to governmental immunity applied. The trial court granted

the motion for summary judgment on the ground of governmental immu-

nity and rendered judgment in favor of the defendant, from which the

plaintiff appealed to this court. Held:

1. The trial court properly concluded that the plaintiff failed to establish

that a genuine issue of material fact existed as to whether the decedent’s

death was caused by the defendant’s breach of a ministerial duty:

although the plaintiff claimed that certain deposition testimony of M,

who was responsible for safety at the subject lake at the time of the

incident, that she had made a lot of changes to the safety policies at

the lake prior to the incident but that she could not recall the changes

specifically without referencing a state manual from which the changes

had been derived and which the defendant could not produce, raised a

question of fact as to whether M’s policy changes created ministerial

duties or whether they were communicated effectively to the persons

responsible for their implementation, the exhibits submitted by the

defendant in support of its motion for summary judgment clearly estab-

lished that the policies existing at the time of the incident did not create

ministerial duties with respect to preventing or rescuing an individual

from drowning in an undesignated swimming area, and M’s inability to

recall changes she made to the safety policies was not a sufficient basis

alone to conclude that there was a material dispute of fact as to that

issue; moreover, the plaintiff’s claim that, on the basis of the defendant’s

failure to preserve the state manual, she was entitled to an adverse

inference that the defendant violated a ministerial duty, which in turn

established a dispute of material fact, was unavailing, as a plaintiff,

in the context of summary judgment, cannot displace the evidentiary

foundation necessary to raise a genuine issue of material fact with the

mere supposition that an adverse inference will be instructed at trial,

and the plaintiff here failed to adduce any evidence to support the

existence of a ministerial duty in conjunction with her claim for an

adverse inference.

2. The plaintiff could not prevail on her claim that because the decedent

was an identifiable person subject to an imminent risk of harm, there

was a genuine issue of material fact as to whether the defense of govern-

mental immunity was applicable, which was based on her claim that

the decedent was an identifiable victim because he was among a group

of specific individuals swimming in an area of the subject lake where

the defendant, through its employees, arguably knew unpermitted swim-

ming frequently occurred: there was no evidence that any of the defen-

dant’s employees saw the decedent, or any member of his group, in the

undesignated swimming area prior to the incident, and in the absence

of some evidence that a person either was individually identifiable to

a public official or among a class of identifiable victims, which our

precedent limits to school children attending public school during school

hours, the first prong of the exception to governmental immunity could

not be satisfied; accordingly, this court concluded that a group of individ-

uals in an undesignated swimming area, whose presence is unknown

to the defendant, could not be deemed identifiable for the purposes of

the identifiable person, imminent harm exception, and, therefore, there

was no genuine issue of material fact as to whether the plaintiff’s claim

was barred by the doctrine of governmental immunity.

Argued October 9—officially released December 11, 2018

Procedural History

Action to recover damages for the wrongful death of

the plaintiff’s decedent as a result of the defendant’s

alleged negligence, brought to the Superior Court in

the judicial district of Hartford, where the court, Sha-

piro, J., granted the defendant’s motion for summary

judgment and rendered judgment thereon, from which

the plaintiff appealed to this court. Affirmed.

Daniel P. Scholfield, with whom, on the brief, were

Steven J. Errante and Marisa A. Bellair, for the appel-

lant (plaintiff).

Jack G. Steigelfest, with whom was Christopher M.

Harrington, for the appellee (defendant).

Opinion

DiPENTIMA, C. J. This case arises from the untimely

death of Andres Burgos, who drowned while swimming

in Lake McDonough, a recreational area that is owned

and operated by the defendant, the Metropolitan Dis-

trict Commission.1 The plaintiff, Vivian Perez, admin-

istratrix of the estate of Andres Burgos, appeals from

the summary judgment rendered by the trial court in

favor of the defendant on the basis of governmental

immunity. On appeal, the plaintiff claims that the trial

court erred in rendering summary judgment because

there is a genuine issue of material fact with respect

to (1) whether Burgos’ death was caused by the defen-

dant’s breach of one or more of its ministerial duties,

and (2) whether Burgos was an identifiable person sub-

ject to imminent harm. We are not persuaded and,

accordingly, affirm the judgment of the trial court.

Viewed in the light most favorable to the plaintiff as

the nonmoving party, the record reveals the following

facts and procedural history. On July 9, 2011, Burgos

and a group of friends went to Lake McDonough to

swim. The lake is located principally in Barkhamsted,

and its perimeter encompasses approximately 10.5

miles. At approximately 4 p.m., the group arrived at

West Beach, which was one of three beaches on the

lake that the defendant permitted the public to use

during the late spring and summer months. Each of

these beaches was adjacent to a designated swimming

area, the boundaries of which were indicated by a string

of red and white buoys. At each beach, the defendant

also posted signs, in both English and Spanish, dis-

playing the pertinent rules and regulations, including

where swimming was permitted. Additionally, the

defendant’s employees conducted random boat patrols

throughout the lake in order to locate individuals swim-

ming outside of the designated areas.

After arriving at West Beach, Burgos and his friends

followed a trail through the woods to an area of the lake

colloquially known as ‘‘the Point.’’ The group, including

Burgos, entered the water from the Point and swam to

a small island, referred to as First Island, approximately

250 feet from shore.2 After reaching the island, the group

started back to the shore. During the return journey,

Burgos began to struggle before slipping underwater.

Upon realizing that Burgos had disappeared, mem-

bers of the group swam to shore and ran back along

the trail to West Beach to alert the defendant’s life-

guards. Once informed of the incident, several life-

guards ran to the Point, entered the water and began

to search for Burgos. Lifeguards from the other nearby

beaches, notified over the radio of a possible drowning

incident, soon arrived by boat to assist with the ongoing

rescue. Despite the relatively close proximity of the

island to the shore, the location where the group had

been swimming was estimated to be deeper than twenty

feet in some places. The depth of the water impaired

visibility and forced the defendant’s lifeguards to con-

fine their line search to the shallower areas. After

searching and not finding Burgos in the shallow sec-

tions, some of the lifeguards dove down into the deeper

parts of the channel. Approximately fifty-five minutes

after Burgos was last seen, one of the lifeguards, per-

forming a deep water dive, located him lying faceup

on the lakebed. He was retrieved and transported to

Hartford Hospital. Burgos was pronounced dead later

that day at 5:50 p.m. The cause of death was determined

to be asphyxia and drowning.

On May 2, 2013, the plaintiff commenced the present

wrongful death action against the defendant. The opera-

tive complaint alleged a single count against the defen-

dant predicated on General Statutes § 52-557n (a) (1)

(A).3 Specifically, the plaintiff alleged, inter alia, that

the defendant had a ministerial duty (1) to prevent

visitors from accessing and swimming in undesignated

areas, (2) to conduct timely boat patrols, (3) to initiate

a timely search for Burgos, (4) to contact the police,

or call 911, in a timely fashion, and (5) to possess and

maintain appropriate rescue equipment, but had failed

to perform one or more of these responsibilities, and

this nonfeasance was a direct and proximate cause of

Burgos’ death. On December 29, 2016, the defendant

filed a motion for summary judgment on the ground

that the plaintiff’s claim was barred by the doctrine of

governmental immunity pursuant to § 52-557n. In her

objection to the motion, the plaintiff argued that the

defendant had failed to meet its initial burden of negat-

ing the allegations of negligence as framed in the com-

plaint, and, alternatively, that Burgos was an

identifiable person subject to imminent harm, thus, cre-

ating an exception to governmental immunity.

In its memorandum of decision, dated June 16, 2017,

the trial court concluded that the defendant had carried

its burden of establishing that no genuine issue of mate-

rial fact existed and granted the motion for summary

judgment on the ground of governmental immunity. The

court concluded that the plaintiff had failed to adduce

evidence to raise a genuine issue of material fact as to

the existence of a ministerial duty or that Burgos was

an identifiable person subject to an imminent risk of

harm. This appeal followed. Additional facts will be set

forth as necessary.

We begin by setting forth the standard of review with

respect to an appeal from a trial court’s decision to

grant a motion for summary judgment. ‘‘Practice Book

§ [17-49] provides that summary judgment shall be ren-

dered forthwith if the pleadings, affidavits and any other

proof submitted show that there is no genuine issue as

to any material fact and that the moving party is entitled

to judgment as a matter of law. . . . In deciding a

motion for summary judgment, the trial court must view

the evidence in the light most favorable to the nonmov-

ing party. . . . The party seeking summary judgment

has the burden of showing the absence of any genuine

issue [of] material facts which,under applicable princi-

ples of substantive law, entitle him to a judgment as a

matter of law . . . and the party opposing such a

motion must provide an evidentiary foundation to dem-

onstrate the existence of a genuine issue of material

fact. . . . [I]ssue-finding, rather than issue-determina-

tion, is the key to the procedure. . . . [T]he trial court

does not sit as the trier of fact when ruling on a motion

for summary judgment. . . . [Its] function is not to

decide issues of material fact, but rather to determine

whether any such issues exist. . . . Our review of the

decision to grant a motion for summary judgment is

plenary. . . . We therefore must decide whether the

court’s conclusions were legally and logically correct

and find support in the record.’’ (Internal quotation

marks omitted.) DiMiceli v. Cheshire, 162 Conn. App.

216, 221–22, 131 A.3d 771 (2016).

I

The plaintiff’s first claim is that the court erred in

concluding that she had not established a genuine issue

of material fact with regard to whether Burgos’ death

was caused by the defendant’s breach of a ministerial

duty.4 In support of her argument, the plaintiff primarily

relies on the deposition of Marcia Munoz, the individual

responsible for safety at Lake McDonough at the time

of the incident. Munoz testified that she made ‘‘a lot of

changes’’ to the defendant’s lifeguard policies prior to

2011, but that she could not recall these changes specifi-

cally without first referencing a state manual from

which the changes were derived. The defendant, how-

ever, was unable to produce the state manual, as it was

apparently lost at some point after Munoz’ retirement.

The plaintiff contends on appeal that, without knowing

precisely what changes Munoz adopted, a reasonable

jury could conclude that her changes created ministerial

duties or that her changes were not communicated

effectively to those responsible for their implementa-

tion.5 Additionally, the plaintiff argues that the defen-

dant’s failure to preserve the state manual referenced

in Munoz’ testimony created a permissible adverse

inference that the defendant violated a ministerial duty.

As a threshold matter, we acknowledge that the par-

ties do not dispute that the defendant is a political

subdivision and, therefore, entitled to the defense of

governmental immunity. ‘‘With respect to governmental

immunity, under . . . § 52-557n, a [political subdivi-

sion] may be liable for the negligent act or omission of

[its] officer[s] acting within the scope of [their] employ-

ment or official duties. . . . The determining factor is

whether the act or omission was ministerial or discre-

tionary. . . . [Section] 52-557n (a) (2) (B) . . . explic-

itly shields a [political subdivision] from liability for

damages to person or property caused by the negligent

acts or omissions which require the exercise of judg-

ment or discretion as an official function of the author-

ity expressly or impliedly granted by law. . . . In

contrast . . . officers [of a political subdivision] are

not immune from liability for negligence arising out of

their ministerial acts, defined as acts to be performed

in a prescribed manner without the exercise of judg-

ment or discretion.’’ (Citations omitted; internal quota-

tion marks omitted.) Hull v. Newtown, 327 Conn. 402,

407–408, 174 A.3d 174 (2017).

‘‘[O]fficials [of a political subdivision] are immune

from liability for negligence arising out of their discre-

tionary acts in part because of the danger that a more

expansive exposure to liability would cramp the exer-

cise of official discretion beyond the limits desirable

in our society. . . . Discretionary act immunity reflects

a value judgment that—despite injury to a member of

the public—the broader interest in having government

officers and employees free to exercise judgment and

discretion in their official functions, unhampered by

fear of second-guessing and retaliatory lawsuits, out-

weighs the benefits to be had from imposing liability

for that injury. . . . In contrast, [public officials] are

not immune from liability for negligence arising out of

their ministerial acts. . . . This is because society has

no analogous interest in permitting [them] to exercise

judgment in the performance of ministerial acts.’’ (Inter-

nal quotation marks omitted.) Ugrin v. Cheshire, 307

Conn. 364, 390–91, 54 A.3d 532 (2012).

‘‘There is a difference between laws that impose gen-

eral duties on officials and those that mandate a particu-

lar response to specific conditions.’’ Bonington v.

Westport, 297 Conn. 297, 308, 999 A.2d 700 (2010). ‘‘The

hallmark of a discretionary act is that it requires the

exercise of judgment. . . . If by statute or other rule

of law the official’s duty is clearly ministerial rather

than discretionary, a cause of action lies for an individ-

ual injured from allegedly negligent performance. . . .

[M]inisterial refers to a duty which is to be performed

in a prescribed manner without the exercise of judg-

ment or discretion. . . . [E]vidence of a ministerial

duty is provided by an explicit statutory provision, town

charter, rule, ordinance or some other written direc-

tive.’’ (Citation omitted; emphasis in original; internal

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

Conn. App. 388, 401–402, 154 A.3d 1020, cert. granted,

325 Conn. 905, 156 A.3d 537 (2017).

The plaintiff first argues that Munoz’ deposition testi-

mony creates a question of material fact similar to that

which was presented in Strycharz v. Cady, 323 Conn.

548, 148 A.3d 1011 (2016). In Strycharz, the plaintiff, a

high school student, was injured when he was struck by

a car while leaving school grounds to smoke a cigarette

across the street. Id., 556–57. The incident occurred

prior to the start of the school day, when school buses

were arriving to drop off students. Id., 556. In an action

against school officials, the plaintiff alleged, inter alia,

that the defendant vice principals were liable in failing

to execute their ministerial duty to assign school staff

members to bus duty the morning of the incident. Id.

565–66. On appeal, our Supreme Court reversed in part

the judgment of the trial court granting the defendants’

motion for summary judgment. Id. 572–73. Our Supreme

Court determined that the record did not support the

trial court’s decision to grant the motion for summary

judgment with regard to the vice principals’ ministerial

duty to assign school staff to bus duty because an issue

of fact remained as to whether they had distributed to

staff members the roster that identified morning bus

duty assignments. Id., 572. ‘‘After all, a bus duty roster

by itself would be useless if it is not distributed to

those charged with student supervision, informing them

about their respective posts and schedule.’’ Id. 566.

The present case is distinguishable from Strycharz.

In Strycharz, it was undisputed that a ministerial duty

existed; the issue was whether it had been followed.

See id., 554–55, 569–573. Here, the plaintiff asks this

court to speculate that the changes Munoz enacted cre-

ated ministerial duties and that these changes were not

communicated or implemented. ‘‘Although the court

must view the inferences to be drawn from the facts

in the light most favorable to the party opposing the

motion . . . a party may not rely on mere speculation

or conjecture as to the true nature of the facts to over-

come a motion for summary judgment. . . . A party

opposing a motion for summary judgment must sub-

stantiate its adverse claim by showing that there is a

genuine issue of material fact together with the evi-

dence disclosing the existence of such an issue.’’ (Inter-

nal quotation marks omitted.) Tuccio Development, Inc.

v. Neumann, 111 Conn. App. 588, 594, 960 A.2d 1071

(2008). The exhibits submitted in support of the defen-

dant’s motion for summary judgment clearly estab-

lished that the policies existing at the time of the

incident did not create ministerial duties with respect

to preventing or rescuing an individual from drowning

in an undesignated swimming area.6 We are not con-

vinced that Munoz’ inability to recall changes she made

to the safety policies at Lake McDonough is a sufficient

basis alone to conclude that there is a material dispute

of fact as to this issue.

Alternatively, the plaintiff claims that, on the basis

of the defendant’s failure to preserve the state manual

that Munoz used to amend the policies at Lake McDo-

nough, she is entitled to an adverse inference that the

defendant violated a ministerial duty, which in turn

establishes a dispute of material fact as to this issue.

Although the plaintiff does not cite any authority, nor

are we aware of any, for the claim that a permissive

adverse inference predicated on a party’s intentional

spoliation of evidence can serve to raise a genuine issue

of material fact for the purposes of defeating summary

judgment, we will nevertheless address the merits of

this contention.

As first recognized in Beers v. Bayliner Marine Corp.,

236 Conn. 769, 777–79, 675 A.2d 829 (1996), ‘‘[a]n

adverse inference may be drawn against a party who

has destroyed evidence only if the trier of fact is satis-

fied that the party who seeks the adverse inference has

proven the following. First, the spoliation must have

been intentional. . . . [There need not have been] an

intent to perpetrate a fraud by the party or his agent

who destroyed the evidence but, rather . . . the evi-

dence [must have] been disposed of intentionally and

not merely destroyed inadvertently. . . .

‘‘Second, the destroyed evidence must be relevant

to the issue or matter for which the party seeks the

inference. . . . Third, the party who seeks the infer-

ence must have acted with due diligence with respect

to the spoliated evidence. . . . Finally . . . the trier

of fact . . . is not required to draw the inference that

the destroyed evidence would be unfavorable but . . .

it may do so upon being satisfied that the above condi-

tions have been met.’’ (Internal quotation marks omit-

ted.) Surrells v. Belinkie, 95 Conn. App. 764, 770–71,

898 A.2d 232, 236 (2006). ‘‘Pursuant to Beers, a party

suffering from spoliation cannot build an underlying

case on the spoliation inference alone; for an underlying

claim to be actionable, the [party] must also possess

some concrete evidence that will support the underlying

claim.’’ (Internal quotation marks omitted.) Rizzuto v.

Davidson Ladders, Inc., 280 Conn. 225, 238, 905 A.2d

1165 (2006).7 Accordingly, in the context of summary

judgment, a plaintiff cannot displace the evidentiary

foundation necessary to raise a genuine issue of mate-

rial fact with the mere supposition that an adverse infer-

ence will be instructed at trial. Cf. id. (‘‘a plaintiff in a

product liability action cannot rely solely on the spolia-

tion inference to withstand a motion for summary judg-

ment or a motion for a directed verdict; he must also

have some independent concrete evidence of a product

defect’’). As the plaintiff here has failed to adduce any

evidence to support the existence of a ministerial duty

in conjunction with her claim for an adverse inference,

the trial court properly concluded that there was no

dispute of material fact as to this issue.

II

The plaintiff’s second claim is that Burgos was an

identifiable person subject to an imminent risk of harm

and that, therefore, there is a genuine issue of material

fact as to whether the defense of governmental immu-

nity applies. Specifically, the plaintiff argues that

Burgos was an identifiable victim because he was

among a group of specific individuals in an area of Lake

McDonough where the defendant, through its employ-

ees, arguably knew unpermitted swimming frequently

occurred. We disagree.

As we noted previously in this opinion, ‘‘governmen-

tal immunity precludes liability regardless of whether

the duty is public or private as long as the act com-

plained of is discretionary in nature and none of the

three recognized exceptions8 to discretionary act immu-

nity applies.’’ (Footnote added.) Violano v. Fernandez,

280 Conn. 310, 332, 907 A.2d 1188 (2006). One of these

exceptions, which our Supreme Court describes as

‘‘very limited,’’ arises ‘‘when the circumstances make

it apparent to [a public official] that his or her failure

to act would be likely to subject an identifiable person

to imminent harm. . . . By its own terms, this test

requires three things: (1) an imminent harm; (2) an

identifiable victim; and (3) a public official to whom it

is apparent that his or her conduct is likely to subject

that victim to that harm. . . . If the [plaintiff] fail[s] to

establish any one of the three prongs, this failure will

be fatal to [her] claim that [she] come[s] within the

imminent harm exception.’’9 (Internal quotation marks

omitted.) Brooks v. Powers, 328 Conn. 256, 265–66, 178

A.3d 366 (2018). Because we conclude that Burgos was

not an identifiable victim and/or within a class of identi-

fiable victims, we further conclude that the exception

does not apply.

‘‘With respect to the identifiable victim element, we

note that this exception applies not only to identifiable

individuals but also to narrowly defined identified

classes of foreseeable victims. . . . [W]hether a partic-

ular plaintiff comes within a cognizable class of foresee-

able victims for purposes of this narrowly drawn

exception to qualified immunity ultimately is a question

of law for the courts, in that it is in effect a question

of whether to impose a duty of care. . . . In delineating

the scope of a foreseeable class of victims exception

to governmental immunity, our courts have considered

numerous criteria, including the imminency of any

potential harm, the likelihood that harm will result from

a failure to act with reasonable care, and the identifiabil-

ity of the particular victim. . . . Other courts, in carv-

ing out similar exceptions to their respective doctrines

of governmental immunity, have also considered

whether the legislature specifically designated an iden-

tifiable subclass as the intended beneficiaries of certain

acts . . . whether the relationship was of a voluntary

nature . . . the seriousness of the injury threatened

. . . the duration of the threat of injury . . . and

whether the persons at risk had the opportunity to

protect themselves from harm.’’ (Internal quotation

marks omitted.) Grady v. Somers, 294 Conn. 324, 350–

51, 984 A.2d 684 (2009). ‘‘The only identifiable class of

foreseeable victims that we have recognized for these

purposes is that of school children attending public

schools during school hours.’’ Durrant v. Board of Edu-

cation, 284 Conn. 91, 107, 931 A.2d 859, 869 (2007); see

also Jahn v. Board of Education, 152 Conn. App. 652,

668–69, 99 A.3d 1230 (2014) (declining to expand class

of identifiable victims to include students participating

in after school athletic competition).

In support of her argument, the plaintiff relies on

Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165

(1979), ‘‘the case that created the identifiable person,

imminent harm exception as we know it.’’ Haynes v.

Middletown, 314 Conn. 303, 333, 101 A.3d 249 (2014)

(Eveleigh, J., concurring). In Sestito, the plaintiff

brought an action against the defendant municipality

on behalf of the estate of an individual who had been

shot and killed outside a bar. Sestito v. Groton, supra,

521–23. Prior to the shooting, a police officer employed

by the defendant had been patrolling the area in his car

and observed a group of men gathered in a parking lot

near the bar. Id., 522. While observing the men, he

witnessed an altercation begin between two of them

that eventually devolved into a physical fight. Id., 523.

Instead of intervening, the officer waited until one of

the men was shot before he ‘‘drove over and arrested the

assailant.’’ Id. On appeal, our Supreme Court concluded,

without describing the decedent as an identifiable vic-

tim,10 that there was a question of fact as to whether

the defendant’s police officer owed a legal duty to the

decedent to prevent the shooting from occurring. Id.,

527–28.

The plaintiff submits that, just as the decedent in

Sestito was identifiable despite the police officer not

knowing who among the group of men would be shot,

Burgos was identifiable because he was among a group

of people swimming in Lake McDonough, any of whom

could have fatigued suddenly and slipped underwater.

The salient difference between the present case and

Sestito, however, is that there is no evidence that any

of the defendant’s employees saw Burgos, or any mem-

ber of his group, in the undesignated swimming area

prior to the incident.11 In the absence of some evidence

that a person either was individually identifiable to a

public official or among a class of identifiable victims,

which our precedent limits to school children attending

public school during school hours; see Durrant v.

Board of Education, supra, 284 Conn. 107; the first

prong of the exception to governmental immunity can-

not be satisfied.

Indeed, the present case is analogous to Evon v.

Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), in which

our Supreme Court ‘‘concluded that the imminent harm

exception did not apply to the plaintiffs’ decedents who

were killed in an apartment house fire. Specifically,

[the] court determined that [t]he class of possible vic-

tims of an unspecified fire that may occur at some

unspecified time in the future is by no means a group of

identifiable persons . . . .’’ (Internal quotation marks

omitted.) Violano v. Fernandez, supra, 280 Conn. 330.

Similarly, we conclude that a group of individuals in

an undesignated swimming area, whose presence is

unknown to the defendant, cannot be deemed identifi-

able for the purposes of the identifiable person, immi-

nent harm exception. Accordingly, there is no genuine

issue of material fact as to whether the plaintiff’s claim

is barred by the doctrine of governmental immunity.

The judgment is affirmed.

In this opinion the other judges concurred.

1

The defendant ‘‘is a political subdivision of the state, specially chartered

by the Connecticut General Assembly for the purpose of water supply,

waste management and regional planning.’’ Martel v. Metropolitan District

Commission, 275 Conn. 38, 41, 881 A.2d 194 (2005).

2

Although swimming was not permitted in this area, it was not uncommon

for the defendant’s boat patrol to find people swimming to and from the

island.

3

The operative complaint included a second count, which was brought

pursuant to § 52-557n (a) (1) (B), alleging that the defendant was negligent ‘‘in

the performance of functions from which the political subdivision derive[d]

a special corporate profit or pecuniary benefit.’’ The plaintiff conceded at

oral argument before this court that this claim was withdrawn prior to the

trial court’s ruling on the motion for summary judgment. Accordingly, this

appeal addresses only the first count of the plaintiff’s operative complaint.

4

The plaintiff also argued to the trial court and to this court that the

defendant had failed to satisfy its initial burden of showing the absence of

any genuine issue of material fact. At oral argument before this court,

however, the plaintiff’s counsel stated that he understood the trial court’s

conclusion to the contrary and, therefore, was not going ‘‘to waste this

court’s time arguing otherwise.’’ Having reviewed the record and the affida-

vits appended to the defendant’s motion for summary judgment, we agree

with the trial court that the defendant’s showing was sufficient to satisfy

its initial burden.

5

We note that this argument was not addressed in the trial court’s memo-

randum of decision and, in reviewing the plaintiff’s objection to the defen-

dant’s motion for summary judgment, we cannot say that it was clearly

asserted. Nevertheless, given that the defendant has not objected to this

argument being presented on appeal and that this position is, in effect, an

expansion of a claim referenced in the plaintiff’s opposition memorandum

of law, we will address the merits in this particular circumstance. We caution,

however, that it remains our practice not to review claims made for the

first time on appeal. DiMiceli v. Cheshire, supra, 162 Conn. App. 229

6

The materials included affidavits from the defendant’s manager of Lake

McDonough in 2011, the chief of the defendant’s police department, and

several lifeguards involved in the attempted rescue of Burgos. Also attached

were photographs of the signs posted informing visitors of the rules and

regulations at the lake and excerpts of deposition testimony from lifeguards

concerning the events of July 9, 2011.

7

Conversely, in Rizzuto, our Supreme Court recognized, as an indepen-

dent cause of action, the tort of intentional spoliation of evidence. Rizzuto

v. Davidson Ladders, Inc., supra., 280 Conn. 251. ‘‘[T]he tort . . . consists

of the following essential elements: (1) the defendant’s knowledge of a

pending or impending civil action involving the plaintiff; (2) the defendant’s

destruction of evidence; (3) in bad faith, that is, with intent to deprive the

plaintiff of his cause of action; (4) the plaintiff’s inability to establish a prima

facie case without the spoliated evidence; and (5) damages.’’ Id. 244–45.

Unlike the adverse inference acknowledged in Beers, the plaintiff alleging

a claim of intentional spoliation of evidence need not produce evidence

sufficient to establish a prima facie case, provided there is evidence that

the defendant’s intentional spoliation ‘‘rendered the plaintiff unable to estab-

lish a prima facie case in the underlying litigation.’’ Id., 246.

Here, the plaintiff did not plead, as a separate cause of action, intentional

spoliation of evidence. Therefore, even if the defendant’s failure to preserve

the state manual were to satisfy the requirements provided in Beers, the

permitted adverse inference does not relieve the plaintiff of her burden to

establish a prima facie case.

8

The other two exceptions are provided in subdivision (2) of § 52-557n

(a) and are not relevant for the purposes of this appeal.

9

Although the plaintiff’s complaint does not name an individual to whom

the imminent harm should have been apparent, our Supreme Court, in Grady

v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (2009), concluded that the

‘‘identifiable person, imminent harm common-law exception to . . . quali-

fied immunity also applies in an action brought directly against municipali-

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

or officer of the municipality also is a named defendant.’’

10

The term ‘‘identifiable victim’’ was not used until Shore v. Stonington,

187 Conn. 147, 156, 444 A.2d 1379 (1982); nevertheless, our courts have relied

on Sestito in applying the exception. See, e.g., Doe v. Board of Education,

76 Conn. App. 296, 301, 819 A.2d 289 (2003).

11

The affidavits and deposition testimony attached to the parties’ summary

judgment filings established that the area in which Burgos and his group

were swimming was not visible from any of the three beaches where life-

guards were stationed and that although it may have been visible from the

defendant’s boathouse, there was no evidence that anyone saw Burgos or

his group.