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ANDRZEJ KUSY v. CITY OF NORWICH ET AL.
(AC 41721)
Keller, Prescott and Moll, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, the city of
Norwich, its board of education and several city employees, for, inter
alia, negligence in connection with injuries he sustained when he slipped
and fell on snow or ice while delivering milk for his employer, G Co.,
at a city school. The plaintiff alleged in his complaint that the defendants
acted negligently because the school’s custodial staff had a ministerial
duty to clear the snow and ice from the delivery ramp but failed to do
so. The trial court granted the defendants’ motion for summary judgment
on the ground of government immunity, concluding that snow and ice
removal is discretionary in nature as a matter of law and, thus, that the
plaintiff failed to raise a genuine issue of material fact regarding whether
the removal of snow and ice is a ministerial act for which the city could
be held liable pursuant to statute (§ 52-557n [a] [2] [B]). The court also
determined that the plaintiff was not an identifiable victim for purposes
of the identifiable person-imminent harm exception to governmental
immunity. On the plaintiff’s appeal to this court, held:
1. The plaintiff could not prevail on his claim that the trial court improperly
rendered summary judgment in favor of the defendants on the ground
of governmental immunity, which was based on his claim that snow
and ice removal by a municipality is a ministerial act as a matter of
law: in the absence of a policy or directive prescribing the manner in
which a municipal official is to remove snow and ice, such an act is
discretionary in nature, and, therefore, the trial court properly deter-
mined that the removal of snow and ice at the school was discretionary
in nature, as a city official provided an affidavit in which she averred
that no such policy existed, the plaintiff provided no evidence that a snow
and ice removal policy existed and he conceded in his memorandum
of law in opposition to the defendants’ motion for summary judgment
that the defendants did not have a written snow and ice removal policy;
moreover, contrary the plaintiff’s contention that the issue of whether
the removal of snow and ice is ministerial in nature is a factual question
that is reserved for the jury and may not be decided by the trial court
by way of summary judgment, our Supreme court has established that,
where, as here, the plaintiff failed to raise a genuine issue of material
fact that a policy or directive existed that could render the act ministerial
in nature, the question of whether an act is ministerial in nature is to
be determined by the trial court as a matter of law.
2. The trial court properly determined that the plaintiff failed to raise a
genuine issue of material fact regarding whether he was an identifiable
victim for purposes of the identifiable person-imminent harm exception
to governmental immunity; this court declined the plaintiff’s request to
expand the narrow identifiable class of foreseeable victims to include
not only schoolchildren who are statutorily compelled to be on school
grounds during regular school hours, but also a person, like the plaintiff,
who was present on municipal property because his or her employer
was required by contract to perform a service in that location, as the
plaintiff, unlike schoolchildren, was not required by law to be on the
school’s grounds, G Co. could have met its contractual obligation to
deliver milk to the school by waiting or returning at a later time after
the school had an opportunity to ensure that the delivery ramp was free
of snow and ice, our courts have not treated other classes of individuals,
apart from schoolchildren, who are present on school grounds during
school hours as identifiable victims because there is always an aspect
of voluntariness to their presence on school grounds, and even when
schoolchildren are on school grounds, our courts have not classified
them as identifiable victims if they are on school property as part of
voluntary activities.
Argued April 16—officially released August 27, 2019
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
London, where the court, Calmar, J., granted the defen-
dants’ motion for summary judgment and rendered
judgment thereon, from which the plaintiff appealed to
this court. Affirmed.
Matthew T. Wax-Krell, with whom was Andrew W.
Krevolin, for the appellant (plaintiff).
Jeffrey G. Schwartz, for the appellees (defendants).
Opinion
PRESCOTT, J. This is a personal injury action brought
by the plaintiff, Andrzej Kusy, against the defendants,
the city of Norwich, its board of education, and certain
municipal employees,1 seeking to recover damages for
injuries he sustained after he slipped and fell on snow
or ice while delivering milk for his employer, Guida’s
Dairy (Guida’s), at a Norwich school. The plaintiff
appeals from the trial court’s summary judgment ren-
dered in favor of the defendants on the ground that
they are entitled to governmental immunity.
On appeal, the plaintiff claims that the trial court
improperly rendered summary judgment in favor of the
defendants on the ground of governmental immunity
because he adequately raised a genuine issue of material
fact as to whether (1) the removal of snow and ice at
a school is a ministerial rather than a discretionary act,
and (2) the plaintiff was an identifiable victim because
he had a contractual duty to deliver milk to the school.
We disagree with both claims and, therefore, 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
February 24, 2015, the plaintiff delivered milk to Kelly
Middle School in Norwich for Guida’s. The plaintiff had
been making these deliveries to the school ‘‘[t]wo times
a week for at least seven months.’’ On the day of the
injury, the plaintiff was delivering milk in the area desig-
nated for such deliveries. The weather was ‘‘sunny but
cold’’ during the morning of February 24, 2015, and it
last snowed a few days prior. The plaintiff, nevertheless,
noticed ice on the delivery ramp and notified the super-
visor of the school’s kitchen, who contacted the mainte-
nance person for the school.
The plaintiff also contacted his employer to alert it to
the icy conditions. The plaintiff had a brief conversation
with John Guida at Guida’s and explained the conditions
to him. Despite his report, Guida ordered him to com-
plete the delivery. Approximately twenty-five minutes
after speaking to Guida and traveling up and down the
ramp multiple times, the plaintiff slipped and fell. No
one removed the snow and ice during the period
between the time the plaintiff reported the icy condi-
tions to the school employee and when he fell.
The plaintiff commenced this action on February 21,
2017. The complaint contains three counts: the first two
counts contain allegations of negligence against the
defendants and the third count is against the city of
Norwich (city) for indemnity pursuant to General Stat-
utes § 7-465.2 The plaintiff alleged that the defendants
acted negligently because, inter alia, the school’s custo-
dial staff had a ministerial duty to clear the snow and
ice from the delivery ramp and failed to do so. The
plaintiff also alleged that he was a member of ‘‘a foresee-
able class of identifiable victims’’ and was subjected to
‘‘a risk of imminent harm.’’
On December 6, 2017, the defendants filed a motion
for summary judgment. They asserted that governmen-
tal immunity barred them from being held liable
because the plaintiff could not demonstrate a genuine
issue of material fact regarding any exception to govern-
mental immunity. The trial court granted the motion
for summary judgment on May 21, 2018, and issued a
memorandum of decision setting forth its reasoning.
In its memorandum of decision, the trial court con-
cluded that the defendants were entitled to summary
judgment because General Statutes § 52-557n (a) (2)
(B) prevents a municipality from being held liable for
the discretionary acts of its employees, even if the acts
are performed negligently. The trial court indicated that
an act is discretionary as a matter of law in the absence
of a directive limiting the discretion of a municipal
employee’s performance of the act. The trial court
stated that the defendants presented evidence showing
that they had no policy concerning snow and ice
removal and that the plaintiff provided no evidence
tending to demonstrate the existence of such a policy.
On this record, the trial court concluded that snow and
ice removal is discretionary in nature as a matter of
law, and, thus, the plaintiff failed to raise a genuine
issue of material fact regarding whether the removal
of snow and ice is a ministerial act for which the city
could be held liable.
The trial court also addressed the plaintiff’s con-
tention that, even if snow and ice removal is discretion-
ary in nature, the defendants were not entitled to gov-
ernmental immunity because the identifiable person-
imminent harm exception to discretionary act immunity
applies. The trial court, however, determined that the
plaintiff was not an identifiable victim because ‘‘he was
not a child attending a public school during school
hours.’’ This appeal followed.
This court’s standard of review for a motion for sum-
mary judgment is well established. ‘‘Practice Book § [17-
49] provides that summary judgment shall be rendered
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 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 evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . .
[I]ssue-finding, rather than issue-determination, 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 con-
clusions were legally and logically correct and find sup-
port 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 snow and ice removal
by a municipality is a ministerial act as a matter of law.
In the alternative, the plaintiff contends that whether
the removal of snow and ice is ministerial in nature is
a factual question that is reserved for the jury and may
not be decided by the court by way of summary judg-
ment. We disagree.
In Ventura v. East Haven, 330 Conn. 613, 629, 199
A.3d 1 (2019), our Supreme Court restated the well
established principles that govern the statutory distinc-
tion between ministerial and discretionary acts: ‘‘The
law pertaining to municipal immunity is . . . well set-
tled. [Section] 52-557n abandons the common-law prin-
ciple of municipal sovereign immunity and establishes
the circumstances in which a municipality may be liable
for damages. . . . One such circumstance is a negli-
gent act or omission of a municipal officer acting within
the scope of his or her employment or official duties.
. . . [Section] 52-557n (a) (2) (B), however, explicitly
shields a municipality from liability for damages to per-
son or property caused by the negligent acts or omis-
sions [that] require the exercise of judgment or discre-
tion as an official function of the authority expressly
or impliedly granted by law.’’ (Internal quotation
marks omitted.)
Accordingly, a municipality is entitled to immunity
for discretionary acts performed by municipal officers
or employees but may be held liable for those acts
that are not discretionary but, rather, are ministerial
in nature. ‘‘[O]ur courts consistently have held that to
demonstrate the existence of a ministerial duty on the
part of a municipality and its agents, a plaintiff ordi-
narily must point to some statute, city charter provision,
ordinance, regulation, rule, policy, or other directive
that, by its clear language, compels a municipal
employee to act in a prescribed manner, without the
exercise of judgment or discretion.’’ (Internal quotation
marks omitted.) Id., 631; see also Violano v. Fernandez,
280 Conn. 310, 323, 907 A.2d 1188 (2006) (holding that
‘‘the plaintiffs . . . have failed to allege that the acts
or omissions complained of were ministerial in nature
because . . . the plaintiffs have not alleged that [the
defendant] was required by any city charter provision,
ordinance, regulation, rule, policy, or any other direc-
tive to secure the property in any prescribed manner’’
[citation omitted]). Furthermore, this court held pre-
viously that evidence of a policy that merely states
general responsibilities without ‘‘provisions that man-
date the time or manner in which those responsibilities
are to be executed, leaving such details to the discretion
and judgment of the municipal employees,’’ is insuffi-
cient to show that the act is ministerial. Northrup v.
Witkowski, 175 Conn. App. 223, 238, 167 A.3d 443
(2017), aff’d, 332 Conn. 158, A.3d (2019). There-
fore, if there is no directive setting forth the manner in
which a municipal official is to perform the act, then
the act is not ministerial and is therefore discretionary
in nature.
This court has already concluded that, in the absence
of a directive prescribing the manner in which an official
is to remove snow and ice, such an act is discretionary
in nature. Beach v. Regional School District Number
13, 42 Conn. App. 542, 553–55, 682 A.2d 118, cert.
denied, 239 Conn. 939, 684 A.2d 710 (1996). In Beach,
like in the present case, the plaintiff, whose employment
with a private company required her to be on school
property, slipped and fell on an icy sidewalk on school
grounds. See id., 544–45, 545 n.1.3
Despite our decision in Beach, the plaintiff relies on
Koloniak v. Board of Education, 28 Conn. App. 277,
281–82, 610 A.2d 193 (1992), for the proposition that
the act of removing snow and ice is ministerial in nature.
Koloniak, however, is inapplicable for at least two rea-
sons. In Koloniak, this court relied on a written policy
issued by the board of education that ‘‘all custodians
. . . were to keep the walkways clear of snow and
ice.’’ Id., 281. In the present case, however, neither
the plaintiff nor the defendants produced any statute,
ordinance, policy, or other directive setting forth a clear
snow and ice removal policy.4 Koloniak also has been
superseded by decisions of our Supreme Court, in
which it has held that even a general written policy,
like the one in Koloniak, is insufficient to create a
ministerial duty if the written policy does not prescribe
the manner in which an official is to carry out the act.
See Northrup v. Witkowski, 332 Conn. 158, 169–70,
A.3d (2019); Violano v. Fernandez, supra, 280 Conn.
323–24. Thus, the present case and Koloniak are dis-
similar.
The plaintiff also relies on dicta from a recent trial
court decision as supporting a conclusion that, even
in the absence of a policy, snow and ice removal is
nevertheless a ministerial act. In Finn v. Hamden, Supe-
rior Court, judicial district of New Haven, Docket No.
CV-XX-XXXXXXX-S (September 13, 2017), 2017 WL
5056259, *5, Judge (now Justice) Ecker stated that snow
and ice removal is ministerial in nature because ‘‘[w]hen
it snows, common sense and routine experience tell
us that every landowner must remove snow and ice
from any sidewalk that is likely to be used by a pedes-
trian. . . . At least as a general matter, it seems fair to
posit that no one with responsibility for sidewalk
upkeep should need a written rule, or any explicit direc-
tive at all, to realize that the sidewalks must be cleared
when there is any accumulation of snow, ice, or slush.’’
(Emphasis added; footnotes omitted.) We respectfully
disagree for two reasons.
First, our Supreme Court in Ventura stated that, in
order for an act to be classified as ministerial, there
must be evidence of a directive that ‘‘compels a munici-
pal employee to act in a prescribed manner, without the
exercise of judgment or discretion.’’ (Internal quotation
marks omitted.) Ventura v. East Haven, supra, 330
Conn. 631. Thus, the existing standard is more
demanding than the one articulated in Finn, which
relies simply on ‘‘common sense and routine experi-
ence.’’ See Finn v. Hamden, supra, 2017 WL 5056259,
*5.
Second, the trial court’s statement in Finn that the
act of snow and ice removal is ministerial in nature is
belied by an examination of the act itself. The act of
snow and ice removal, absent a directive strictly impos-
ing the time and manner in which it is to be done, is
inherently a discretionary act because it requires the
exercise of judgment. Clearing walkways of snow and
ice requires the municipal official performing the act
to exercise judgment regarding the amount of snow and
ice that must accumulate before it must be removed;
the frequency with which the official decides to inspect
the walkways to ensure that new patches of ice have
not formed on surfaces previously salted, sanded, or
cleared; the method that the official decides to use to
clear the snow and ice or to eliminate the hazard (i.e.,
whether to use salt, sand, or neither; the amount of salt
or sand that is applied; and the frequency with which
salt or sand is applied); which areas to prioritize, includ-
ing whether to focus on areas of the school grounds
frequented by schoolchildren in attendance; and
whether a walkway is sufficiently clear for use.5
Our analysis accords with Ventura, in which our
Supreme Court resolved confusion in our case law
regarding the question of whether an act is ministerial
should be determined by the trier of fact or by the trial
court as a matter of law. See Ventura v. East Haven,
supra, 330 Conn. 632–37. The court decided that it is the
responsibility of the latter.6 Id., 636–37. ‘‘[T]he ultimate
determination of whether . . . immunity applies is
ordinarily a question of law for the court . . . [unless]
there are unresolved factual issues material to the appli-
cability of the defense . . . [in which case] resolution
of those factual issues is properly left to the jury.’’
(Internal quotation marks omitted.) Id., 632.
In the absence of unresolved issues of fact, a court
may render summary judgment in favor of the defendant
if ‘‘it is apparent from the complaint that the [defen-
dant’s] allegedly negligent acts or omissions necessarily
involved the exercise of judgment, and thus, necessarily
were discretionary in nature . . . .’’ (Internal quotation
marks omitted.) Coley v. Hartford, 312 Conn. 150, 162,
95 A.3d 480 (2014); see also Grignano v. Milford, 106
Conn. App. 648, 655, 943 A.2d 507 (2008). Indeed, this
court has held that it is appropriate for a trial court
to grant a municipal defendant’s motion for summary
judgment if the plaintiff is unable to proffer a directive
that would impose a ministerial duty. See generally
DiMiceli v. Cheshire, supra, 162 Conn. App. 225–29
(holding that none of evidence plaintiff proffered at
summary judgment stage created ministerial duty and,
therefore, trial court properly rendered summary
judgment).
It is true that our Supreme Court and this court have
determined that evidence of an unwritten but otherwise
clear oral mandate that an act be performed in a particu-
lar manner could be sufficient to establish the existence
of a directive that would support a conclusion that the
act was ministerial in nature. See Gauvin v. New Haven,
187 Conn. 180, 186–87, 445 A.2d 1 (1982); Wisniewski
v. Darien, 135 Conn. App. 364, 374, 42 A.3d 436 (2012).
These cases, however, do not excuse a plaintiff from
his or her obligation, upon a proper burden shifting, to
proffer such evidence in opposition to a motion for
summary judgment. As we have held previously, a plain-
tiff must raise a genuine issue of material fact that a
policy or directive exists that could render a particular
act ministerial in nature. See DiMiceli v. Cheshire,
supra, 162 Conn. App. 228.
In the present case, a city official provided an affidavit
in which she averred that no such policy existed. Also,
as the trial court observed, the plaintiff provided no
evidence that a snow and ice removal policy existed.
Furthermore, the plaintiff conceded in his memoran-
dum of law in opposition to the motion for summary
judgment that the defendants do not have a written
snow and ice removal policy. In light of the undisputed
averment by the city official that no snow and ice
removal policy existed, the trial court properly deter-
mined under the circumstances of this case that the
removal of snow and ice at the school was discretionary
in nature.
II
The plaintiff also claims the trial court improperly
determined that he failed to raise a genuine issue of
material fact regarding whether he was an identifiable
victim within the meaning of our governmental immu-
nity jurisprudence. We disagree.
‘‘[Our Supreme Court] has recognized an exception
to discretionary act immunity that allows for liability
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. . . .
This identifiable person-imminent harm exception has
three requirements: (1) an imminent harm; (2) an identi-
fiable 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. . . . All three must be proven in
order for the exception to apply. . . . [T]he ultimate
determination of whether [governmental] immunity
applies is ordinarily a question of law for the court . . .
[unless] there are unresolved factual issues . . . prop-
erly left to the jury.’’ (Citation omitted; internal quota-
tion marks omitted.) Martinez v. New Haven, 328 Conn.
1, 8, 176 A.3d 531 (2018).
‘‘[Our Supreme Court has] stated previously that this
exception to the general rule of governmental immunity
for employees engaged in discretionary activities has
received very limited recognition in this state.’’ (Internal
quotation marks omitted.) Strycharz v. Cady, 323 Conn.
548, 573, 148 A.3d 1011 (2016). ‘‘[T]he question of
whether a particular plaintiff comes within a cognizable
class of foreseeable victims for purposes of this excep-
tion to qualified immunity is ultimately a question of
policy for the courts, in that it is in effect a question
of duty. . . . This involves a mixture of policy consid-
erations and evolving expectations of a maturing soci-
ety . . . . [T]his exception applies not only to identifi-
able individuals but also to narrowly defined identified
classes of foreseeable victims. . . . Our [Supreme
Court’s] decisions underscore, however, that whether
the plaintiff was compelled to be at the location where
the injury occurred remains a paramount consideration
in determining whether the plaintiff was an identifiable
person or member of a foreseeable class of victims.
. . . [The court has] interpreted the identifiable person
element narrowly as it pertains to an injured party’s
compulsion to be in the place at issue . . . . In fact,
[t]he only identifiable class of foreseeable victims that
[the court has] recognized . . . is that of school-
children attending public schools during school hours
. . . .’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Id., 575–76.
The plaintiff claims that he is an identifiable victim
for the following reasons: (1) ‘‘he was contractually
bound to deliver milk to the [s]chool’’; (2) ‘‘[the plain-
tiff], like all other vendors of the school, was using the
access way provided to him by the school to fulfill his
employer’s contractual obligation’’; and (3) ‘‘[a]t the
time of the incident, [he] was making a scheduled deliv-
ery, as he had done twice a week for seven months
prior thereto.’’ The plaintiff argues that the combination
of these factors is sufficient to give rise to a genuine
issue of material fact as to whether he was an identifi-
able victim because, in a recent case, our Supreme
Court stated that ‘‘a party is an identifiable person when
he or she is compelled to be somewhere. . . .
[W]hether the plaintiff was compelled to be at the loca-
tion where the injury occurred remains a paramount
consideration in determining whether the plaintiff was
an identifiable person or member of a foreseeable class
of victims . . . .’’ (Citation omitted; internal quotation
marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420,
436, 165 A.3d 148 (2017).
The plaintiff takes the language in St. Pierre out of
context. In fact, the court in St. Pierre elaborated, ‘‘[with
the exception of] one case that has since been limited
to its facts . . . [our Supreme Court has] addressed
claims that a plaintiff is an identifiable person or mem-
ber of an identifiable class of foreseeable victims in a
number of cases, [and it has] not broadened [its] defini-
tion [beyond schoolchildren attending public schools
during school hours].’’ (Footnote omitted.) Id., 436–37.
Students attending public school during school hours
are afforded this special designation as ‘‘identifiable
victims’’ because ‘‘they were intended to be the benefici-
aries of particular duties of care imposed by law on
school officials; they [are] legally required to attend
school rather than being there voluntarily; their parents
[are] thus statutorily required to relinquish their custody
to those officials during those hours; and, as a matter
of policy, they traditionally require special consider-
ation in the face of dangerous conditions.’’ (Internal
quotation marks omitted.) Id., 436. Our Supreme Court
applied these same factors to determine that a parent,
who attended his son’s high school football game and
was injured on the bleachers, is not a member of an
identifiable class of foreseeable victims. See Prescott
v. Meriden, 273 Conn. 759, 763–65, 873 A.2d 175 (2005).
Nevertheless, the plaintiff asks us to extend the iden-
tifiable victim classification to encompass a plaintiff
who is present on municipal property because his or her
employer is required by contract to perform a service
in that location. We decline to do so for the follow-
ing reasons.
First, unlike schoolchildren, the plaintiff was not
required by law to be on school grounds. A contractual
duty to deliver milk at the school falls far short of the
legal compulsion imposed by our statutes that require
a child’s attendance at school.
Second, Guida’s may meet its contractual obligation
to deliver milk to the school by waiting or returning at
a later time after the school has had an opportunity to
ensure that the delivery ramp is free of hazards.7 Indeed,
it is difficult to imagine that Guida’s would be deemed
to have breached its contract to the defendants by fail-
ing to deliver milk at that precise time and if the school
had not provided a clear and safe means of access for
the delivery.
Third, our courts have not treated other classes of
individuals, apart from schoolchildren, who are present
on school grounds during school hours as identifiable
victims because there is always an aspect of voluntari-
ness to their presence on school grounds.8 See Durrant
v. Board of Education, 284 Conn. 91, 100–108, 931 A.2d
859 (2007) (holding that mother who slipped on puddle
and sustained injuries while picking up her daughter
from after school daycare at city’s elementary school
is not identifiable victim); Prescott v. Meriden, 80 Conn.
App. 697, 698–701, 703, 836 A.2d 1248 (2003) (holding
that parent injured on bleachers during son’s high
school football game is not identifiable victim), aff’d,
273 Conn. 759, 873 A.2d 175 (2005).
Fourth, even when schoolchildren are on school
grounds, our courts have not classified them as identifi-
able victims if they are on school property as part of
voluntary activities. See Coe v. Board of Education, 301
Conn. 112, 118–22, 19 A.3d 640 (2011) (holding that
student, who was injured at school dance that occurred
after school hours and that she voluntarily attended,
was not identifiable victim); Costa v. Board of Educa-
tion, 175 Conn. App. 402, 408–409, 167 A.3d 115 (holding
that student was not identifiable victim for injuries sus-
tained during senior class picnic because ‘‘[he] was
not required to attend the senior picnic, but did so
voluntarily’’ and he ‘‘voluntarily participated in pick-up
basketball game in which he was injured’’), cert. denied,
327 Conn. 961, 172 A.3d 801 (2017).
In sum, we decline to extend the classes of individuals
who may be identifiable victims beyond the narrow
confines of children who are statutorily compelled to
be on school grounds during regular school hours.9
Accordingly, having conducted a plenary review of the
trial court record, we conclude the plaintiff has failed
to raise a genuine issue of material fact regarding the
defendants’ entitlement to governmental immunity.
With regard to both issues—whether snow and ice
removal is ministerial or discretionary and whether the
plaintiff is an identifiable victim—the trial court prop-
erly determined that the defendants were entitled to
judgment as a matter of law.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In addition to the city of Norwich and the Norwich Board of Education,
the defendants are Abby Dolliver, the superintendent of Norwich public
schools; William Peckrul, the principal of Kelly Middle School; and Edward
Gunter, the head custodian of Kelly Middle School.
2
In rendering summary judgment, the trial court did not explicitly address
count three of the plaintiff’s complaint. ‘‘[Our Supreme Court] previously
. . . recognized that [General Statutes] §§ 7-465 and 52-557n are coextensive
. . . and . . . concluded that the availability of indemnification under § 7-
465 (a) for municipal employees’ torts may be constrained by § 52–557n
(a).’’ (Citation omitted; footnote omitted; internal quotation marks omitted.)
Grady v. Somers, 294 Conn. 324, 346–47, 984 A.2d 684 (2009).
‘‘Under § 7-465, the municipality’s duty to indemnify attaches only when
the employee is found to be liable and the employee’s actions do not fall
within the exception for wilful and wanton acts.’’ Myers v. Hartford, 84
Conn. App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d
582 (2004).
Because the city’s obligation to indemnify the other defendants arises
only if the principal tortfeasors are liable for the plaintiff’s injuries, we
construe the trial court’s summary judgment on the negligence counts to
encompass count three. If governmental immunity bars liability on the first
two counts, then there is no underlying liability for which the municipality
must indemnify.
3
Beach predates our Supreme Court’s recent decision in Ventura v. East
Haven, supra, 330 Conn. 629, 632, in which the court reiterated the well
established principles regarding ministerial and discretionary acts and
unequivocally determined that whether an act is discretionary in nature is
a question for the court to decide as a matter of law.
The plaintiff in his appellate brief all but ignores this court’s decision in
Beach. With respect to Beach, he simply contends that it stands for the
proposition that the question of whether the removal of ice and snow is
discretionary belongs to the jury rather than the court. We reject this con-
tention in light of our Supreme Court’s decision in Ventura, in which the
court plainly held that the determination of whether an act is discretionary
is a question of law for the court. Id., 636–37.
4
Furthermore, the defendants submitted an affidavit in support of their
motion for summary judgment from a city official denying the existence of
any snow and ice removal policy. The same city official denied the existence
of a snow and ice removal policy in response to the plaintiff’s request for
production. Moreover, the plaintiff admits that the defendants do not have
a written snow and ice removal policy.
5
Indeed, in a recent case involving whether a municipality’s maintenance
of storm drains is a ministerial act, our Supreme Court stated that ‘‘a munici-
pality necessarily makes discretionary policy decisions with respect to the
timing, frequency, method and extent of inspections, maintenance and
repairs.’’ (Internal quotation marks omitted.) Northrup v. Witkowski, supra,
332 Conn. 170.
6
‘‘[Our Supreme Court], on numerous occasions, has stated unequivocally
that the determination of whether a governmental or ministerial duty exists
gives rise to a question of law for resolution by the court.’’ Ventura v. East
Haven, supra, 330 Conn. 634.
7
Our courts have construed the compulsion to be somewhere requirement
narrowly. In one case, this court concluded that a plaintiff did not satisfy
the requirement because ‘‘[t]he plaintiff [did] not [cite] any statute, regulation
or municipal ordinance that compelled her to drive her car on the stretch
of [the] [s]treet where the accident occurred.’’ DeConti v. McGlone, 88 Conn.
App. 270, 275, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005).
This court also noted that the plaintiff in DeConti failed to satisfy the
requirement because ‘‘[s]he [did] not [show] that her decision to take [the]
particular route was anything but a voluntary decision that was made as a
matter of convenience.’’ Id. In another case, our Supreme Court determined
that a person is not an identifiable victim if he is not legally required to be
somewhere and could have assigned someone else to go to the location to
complete the task in his place. See Grady v. Somers, 294 Conn. 324, 355–57,
984 A.2d 684 (2009). In Grady, the municipality did not provide refuse pickup
service, and residents could either obtain a transfer station permit and
discard their own refuse, or hire private trash haulers to come to their home.
Id., 328 n.4. Because the plaintiff in Grady had the option of hiring an
independent contractor to dispose of his refuse, the court did not classify
him as an identifiable victim for injuries he sustained when he slipped on
an ice patch at the transfer station. Id., 355–56.
8
In his appellate brief, the plaintiff relies on Tryon v. North Branford,
58 Conn. App. 702, 755 A.2d 317 (2000), as support for his assertion that
he is an identifiable victim. Tryon, however, was decided nineteen years
ago, and our Supreme Court has more recently focused its analysis regarding
whether a plaintiff is an identifiable victim on whether the plaintiff is com-
pelled to be somewhere. See St. Pierre v. Plainfield, supra, 326 Conn.
436–37. The court has, therefore, not extended the classes of identifiable
victims beyond schoolchildren who are statutorily required to attend school
during school hours. See id. Thus, Tryon is distinguishable because the
court in that case did not consider whether the plaintiff was required by
statute to be at the parade as part of its analysis concerning whether the
plaintiff was an identifiable victim. See Tryon v. North Branford, supra,
710–11.
9
Because we agree with the trial court’s decision to render summary
judgment on the basis that the plaintiff is not an identifiable victim, we
need not address whether he was subject to imminent harm under the
circumstances. See Martinez v. New Haven, supra, 328 Conn. 8 (holding
that ‘‘[a]ll three [elements] must be proven in order for the exception to
apply’’ [internal quotation marks omitted]).