Buehler v. Newtown

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ALBERT BUEHLER v. TOWN OF NEWTOWN ET AL.

(AC 43087)

Prescott, Elgo and DiPentima, Js.

Syllabus

The plaintiff sought to recover damages from the defendants, the town

of Newtown and various school employees, for personal injuries he

sustained when he fell from a referee stand while officiating a public

high school volleyball match. The defendants filed a motion for summary

judgment, arguing that they had shown that their allegedly negligent

actions were discretionary, and thus they enjoyed governmental immu-

nity, and that the plaintiff did not fall within the identifiable person-

imminent harm exception to the governmental immunity doctrine. The

trial court granted the defendants’ motion for summary judgment, finding

that the plaintiff, a volleyball referee, was not legally compelled to be

on school premises at the time of his injury, and, accordingly, he was

not an identifiable person to whom the identifiable person-imminent

harm exception applied. On the plaintiff’s appeal to this court, held that

the trial court properly determined that no genuine issue of material

fact existed as to whether the plaintiff was an identifiable victim who

fell within the identifiable person-imminent harm exception to the gov-

ernmental immunity doctrine: the only identifiable class of foreseeable

victims that our Supreme Court has recognized is that of schoolchildren

attending public schools during school hours, and an assignment to

officiate a volleyball game after school hours is nothing like the legal

compulsion imposed by our statutes that require a child’s attendance

at school; moreover, the plaintiff conceded that he had the option to

accept or to deny the refereeing assignment, which made his presence

on the premises voluntary; furthermore, it would have been improper

to extend the identifiable victim classification, particularly because the

student athletes participating in the volleyball game over which the

plaintiff officiated would not themselves enjoy such a designation under

existing law, and there was no doctrinal justification for treating the

plaintiff differently than the schoolchildren.

Argued March 4—officially released August 3, 2021

Procedural History

Action to recover damages for personal injuries sus-

tained as a result of the defendants’ alleged negligence,

brought to the Superior Court in the judicial district

of Fairfield, where the court, Welch, J., granted the

defendants’ motion for summary judgment and ren-

dered judgment thereon, from which the plaintiff

appealed to this court. Affirmed.

Matthew D. Popilowski, with whom, on the brief, was

Richard J. Tropiano, Jr., for the appellant (plaintiff).

John A. Blazi, for the appellees (named defendant

et al.).

Opinion

PRESCOTT, J. This is a premises liability action

brought by the plaintiff, Albert Buehler, against the

defendants, the town of Newtown (town), the Newtown

Board of Education (board), and Gregg Simon, the for-

mer athletic director of Newtown High School, arising

out of injuries he sustained after he fell from a referee

stand while officiating a volleyball match at Newtown

High School.1 The plaintiff appeals from the summary

judgment rendered by the trial court in favor of the

defendants on the ground that they are entitled to gov-

ernmental immunity. The plaintiff claims that the court

improperly rendered summary judgment in favor of the

defendants because there is a genuine issue of material

fact as to whether the plaintiff was an identifiable victim

under the identifiable person-imminent harm exception

to governmental immunity. We disagree and, therefore,

affirm the judgment of the court.

The record before the court, viewed in the light most

favorable to the plaintiff as the nonmoving party,

reveals the following relevant facts and procedural his-

tory. The plaintiff has worked as a volleyball referee

for approximately forty years. The plaintiff received

training and multiple national and state certifications

in connection with his role as a referee. Further, the

plaintiff was a member of the Connecticut Federation

of Volleyball Officials. Although the position was part-

time, the plaintiff frequently officiated matches on each

day of a given week. The plaintiff regularly officiated

college volleyball matches throughout the northeast,

and high school volleyball matches in Connecticut and

New York.

In order for its members to receive assignments for

high school volleyball matches, the Connecticut Federa-

tion of Volleyball Officials utilized an online system

called ArbiterSports. Referees, like the plaintiff, had

access to ArbiterSports. Through the system, an

assigner assigned referees to officiate specific matches,

and the referees would receive notice of their match

assignments via e-mail. The system assigned two refer-

ees to each match. A volleyball match properly could

take place with one official, but such a situation was

‘‘unusual.’’2 Under the rules of one of the governing

agencies of high school volleyball, however, volleyball

matches were not allowed to be played with no referee

in attendance.

Upon receipt of notice of their match assignments,

referees had the option to accept or reject the assign-

ment. There was no rule that a referee must accept a

referee assignment; however, referees generally needed

to accept assignments if they wanted to continue receiv-

ing assignments in the future.

The plaintiff was assigned to officiate a girls volley-

ball match on September 25, 2015, at Newtown High

School. The match was arranged to take place in the

school gymnasium, and one of the two assigned referees

was expected to stand on an officiating stand in the

gymnasium for the duration of the match to provide the

referee with an elevated vantage point. The officiating

stand was covered in padding and secured using a pin.

There was no written policy concerning how the offici-

ating stand was to be set up prior to girls volleyball

matches. The student athletes routinely set up the offici-

ating stand and the volleyball net prior to the arrival

of the referees at the direction of the volleyball coach

and/or athletic director. To set up the officiating stand,

students were instructed to separate the two side rails

of the ladder, rest the platform on top of the ladder,

and secure the stand by inserting an attached pin.

Simon, who ultimately was responsible for equipment

setup in the school gymnasium, supervised setup prior

to the volleyball match at issue.

Prior to the varsity match, a junior varsity match took

place, and the plaintiff served as one of the two referees.

During the junior varsity match, the other referee stood

on the officiating stand. The plaintiff, however, stood

on the officiating stand during the varsity match. Prior

to the commencement of the varsity match, the plaintiff

assured himself that the officiating stand had proper

padding and was stable by ‘‘wiggl[ing] it . . . .’’ Subse-

quently, the plaintiff climbed onto the stand. Approxi-

mately one hour into the match, the officiating stand

collapsed. The plaintiff fell approximately four to five

feet and was injured.

In September, 2017, the plaintiff commenced this

action, alleging that the defendants’ negligent mainte-

nance of the stand, failure to inspect and repair the

stand, and failure to erect or maintain proper safeguards

or warning signs, constituted a defective condition on

the school premises that caused the injuries sustained

by the plaintiff. The plaintiff further alleged that the

defendants knew or, in the exercise of reasonable care,

should have known about the defective stand.

In December, 2017, the defendants requested that

the plaintiff revise several counts of his complaint to

address, inter alia, the alleged basis of the town’s and

the board’s liability. The defendants also requested that

the plaintiff identify whether the individual defendants’

actions were ministerial or discretionary.3 In both

requests, the defendants asserted that each defendant,

either as a municipality or as an agent thereof, enjoyed

qualified immunity from liability for the plaintiff’s injur-

ies.

The plaintiff filed a revised complaint on May 4, 2018,

alleging, inter alia, that (1) the town and the board were

liable to the plaintiff under General Statutes §§ 10-235,4

52-557n,5 and 7-465;6 and (2) the individual defendants

were public officials whose conduct was likely to sub-

ject the plaintiff, an identifiable victim, to imminent

harm. The defendants filed an answer to the revised

complaint and special defenses. By way of special

defenses, the defendants asserted that, because the

actions that each defendant took were discretionary in

nature, each defendant was immune from liability.7

On October 30, 2018, the defendants filed a motion

for summary judgment as to all six counts of the revised

complaint, asserting that there were no genuine issues

of material fact in dispute and the defendants were

entitled to judgment as a matter of law. In support of

their motion, the defendants submitted a memorandum

of law, several affidavits, and excerpts from the plain-

tiff’s deposition transcript.8 The defendants argued that

they had shown through their submissions that their

allegedly negligent actions were discretionary, and thus

they enjoyed governmental immunity unless the plain-

tiff fell within the narrow identifiable person-imminent

harm exception to governmental immunity recognized

by our Supreme Court. The defendants further argued

that the plaintiff was not an identifiable victim, because

the plaintiff voluntarily attended the volleyball match

at which he was injured.9 The defendants asserted that,

because there was no question of fact that the plaintiff

did not fall within the narrow identifiable person-immi-

nent harm exception, the plaintiff could not prevent

the application of governmental immunity, and the trial

court was required to grant summary judgment in

their favor.

In response, the plaintiff objected to the defendants’

motion for summary judgment10 in December, 2018, and,

in support, submitted excerpts from Simon’s and

Czaplinski’s depositions as well as a copy of board

policies concerning the qualifications and duties of the

athletic director for the school. The plaintiff argued that

genuine issues of material fact existed as to whether

(1) the plaintiff was, in fact, an identifiable victim under

the identifiable person-imminent harm exception to

governmental immunity, (2) the plaintiff was subject to

imminent harm under the identifiable person-imminent

harm exception to governmental immunity, and (3) the

remaining defendants’ duties were ministerial, not dis-

cretionary. The remaining defendants reiterated their

arguments in a reply to the plaintiff’s objection.

On December 14, 2018, the plaintiff filed a request

for leave to amend the revised complaint, which was

granted on January 10, 2019, over the objection of the

defendants. The plaintiff amended counts one, two, and

five against the town, the board, and Simon, respec-

tively, by removing certain language concerning reason-

ableness and adding references to the board policy con-

cerning the qualifications and duties of the athletic

director for the school. The defendants filed a supple-

mental motion for summary judgment, noting that no

further argument was necessary because they had

already addressed all relevant issues in their original

motion for summary judgment. The trial court heard

argument on the motion for summary judgment on Feb-

ruary 25, 2019.

The trial court, Welch, J., granted the defendants’

motion for summary judgment. The trial court deter-

mined preliminarily that, because the defendants’

actions were discretionary, rather than ministerial, they

were immune from liability unless the plaintiff fell

within the identifiable person-imminent harm exception

to the governmental immunity doctrine. A party is an

identifiable victim, the trial court explained, when that

person is compelled to be somewhere, outside of lim-

ited circumstances. Thus, the trial court noted that the

class of identifiable persons to which the exception

is generally applicable is usually limited to students

attending public schools during regular school hours

because they are legally compelled to be on the school

premises. The trial court determined that the plaintiff,

a volleyball referee, was not legally compelled to be on

the school premises at the time of his injury. Instead,

his presence on the premises was voluntary. Accord-

ingly, he was not an identifiable person to whom the

identifiable person-imminent harm exception applied.11

This appeal followed.

On appeal, the plaintiff challenges the trial court’s

decision to grant summary judgment in favor of the

town, the board, and Simon. The plaintiff claims that

the trial court improperly determined that no genuine

issue of material fact existed as to whether he was an

identifiable victim and, accordingly, he fell within the

identifiable person-imminent harm exception to the

governmental immunity doctrine. We are not per-

suaded.

We begin by setting forth the applicable standard of

review. ‘‘This court’s standard of review for a motion for

summary judgment is well established. 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.) Kusy v. Norwich, 192 Conn. App. 171,

175–76, 217 A.3d 31, cert. denied, 333 Conn. 931, 218

A.3d 71 (2019).

‘‘The law pertaining to municipal immunity is simi-

larly well settled. [General Statutes §] 52-557n abandons

the common-law principle of municipal sovereign

immunity and establishes the circumstances in which

a municipality may be liable for damages. . . . One

such circumstance is a negligent 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 person or property caused

by the negligent acts or omissions [that] require the

exercise of judgment or discretion as an official func-

tion of the authority expressly or impliedly granted by

law.’’ (Internal quotation marks omitted.) Ventura v.

East Haven, 330 Conn. 613, 629, 199 A.3d 1 (2019).

‘‘Accordingly, a municipality is entitled to immunity for

discretionary acts performed by municipal officers or

employees . . . .’’ Kusy v. Norwich, supra, 192 Conn.

App. 177.

‘‘Municipal officials are immunized from liability for

negligence arising out of their discretionary acts in part

because of the danger that a more expansive exposure

to liability would cramp the exercise of official discre-

tion 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, outweighs the bene-

fits to be had from imposing liability for that injury.’’

(Internal quotation marks omitted.) Borelli v. Renaldi,

336 Conn. 1, 10–11, 243 A.3d 1064 (2020).

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 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. . . . All three must be proven in order

for the exception to apply. . . . [T]he ultimate determi-

nation of whether [governmental] immunity applies is

ordinarily a question of law for the court . . . [unless]

there are unresolved factual issues . . . properly left

to the jury.’’ (Citation omitted; internal quotation marks

omitted.) Martinez v. New Haven, 328 Conn. 1, 8, 176

A.3d 531 (2018). ‘‘[Our Supreme Court has] stated pre-

viously that this exception to the general rule of govern-

mental immunity for employees engaged in discretion-

ary activities has received very limited recognition in

this state.’’ (Internal quotation marks omitted.) Kusy

v. Norwich, supra, 192 Conn. App. 183. ‘‘The exception

is applicable only in the clearest of cases.’’ (Internal

quotation marks omitted.) Texidor v. Thibedeau, 163

Conn. App. 847, 862, 137 A.3d 765, cert. denied, 321

Conn. 918, 136 A.3d 1276 (2016).

‘‘An allegedly identifiable person must be identifiable

as a potential victim of a specific imminent harm. . . .

Although the identifiable person contemplated by the

exception need not be a specific individual, the plaintiff

must fall within a narrowly defined identified [class] of

foreseeable victims.’’ (Internal quotation marks omit-

ted.) Id., 861–62. ‘‘[T]he question of whether a particular

plaintiff comes within a cognizable class of foreseeable

victims for purposes of this exception 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 considerations and

evolving expectations of a maturing society . . . .

[T]his exception applies not only to identifiable individ-

uals but also to narrowly defined identified classes of

foreseeable victims. . . . Our [Supreme Court’s] deci-

sions 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.’’

(Internal quotation marks omitted.) Kusy v. Norwich,

supra, 192 Conn. App. 183; see also Grady v. Somers,

294 Conn. 324, 356, 984 A.2d 684 (2009) (‘‘we have

interpreted the identifiable person element narrowly as

it pertains to an injured party’s compulsion to be in the

place at issue’’).

‘‘Our courts have construed the compulsion to be

somewhere requirement narrowly. . . . [T]his court

[has previously] concluded that a plaintiff did not satisfy

the requirement because [t]he plaintiff [did] not [cite]

any statute, regulation or municipal ordinance that com-

pelled her to drive her car on the stretch of [the] [s]treet

where [an] accident occurred . . . [and] [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. . . . [O]ur Supreme Court

[has] 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. . . . In Grady [v.

Somers, supra, 294 Conn. 355–56], 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. . . . Because the plaintiff . . . had the

option of hiring an independent contractor to dispose

of his refuse, the court did not classify him as an identifi-

able victim for injuries he sustained when he slipped on

an ice patch at the transfer station.’’ (Citations omitted;

internal quotation marks omitted.) Kusy v. Norwich,

supra, 192 Conn. App. 185–86 n.7.

Our Supreme Court has noted that ‘‘[t]he only identifi-

able class of foreseeable victims that [the court has]

recognized . . . is that of schoolchildren attending

public schools during school hours . . . .’’ (Internal

quotation marks omitted.) Id., 183–84;12 see, e.g., Cotto

v. Board of Education, 294 Conn. 265, 267–68, 984 A.2d

58 (2009) (program director for summer youth program

who slipped and fell on school premises was not consid-

ered identifiable class member); Durrant v. Board of

Education, 284 Conn. 91, 107–108, 931 A.2d 859 (2007)

(mother who slipped and fell picking up child from

optional after school day care was not considered iden-

tifiable class member); Prescott v. Meriden, 273 Conn.

759, 761–62, 766, 873 A.2d 175 (2005) (parent who fell

while voluntarily attending high school football game

to watch child was not considered identifiable class

member); Costa v. Board of Education, 175 Conn. App.

402, 409, 167 A.3d 1152 (student voluntarily attending

school picnic who was injured while voluntarily playing

basketball game was not considered identifiable class

member), cert. denied, 327 Conn. 961, 172 A.3d 801

(2017). ‘‘Students attending public school during school

hours are afforded this special designation as identifi-

able victims because they were intended to be the bene-

ficiaries 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.) Kusy v. Norwich, supra, 192

Conn. App. 184–85. Accordingly, this court has consis-

tently held that students who are injured outside of

school hours do not fall within the class of identifiable

victims under the identifiable victim-imminent harm

exception. See Marvin v. Board of Education, 191

Conn. App. 169, 184, 213 A.3d 1155 (2019) (student

athlete injured in locker room after school hours was

not considered identifiable class member); Jahn v.

Board of Education, 152 Conn. App. 652, 668–69, 99

A.3d 1230 (2014) (student athlete injured during swim

practice was not considered identifiable class member).

In Kusy v. Norwich, supra, 192 Conn. App. 185–87,

this court determined that a plaintiff did not fall within

the identifiable class of foreseeable victims to invoke

the identifiable person-imminent harm exception, even

when the plaintiff’s existence on the premises was

required by his employer to complete a work-related

task. The plaintiff in Kusy, a deliveryman, delivered

milk to a local middle school as part of his employment

duties. Id., 173. On one morning, he notified his

employer that he noticed snow and ice on the premises,

but his employer ‘‘ordered him to complete the deliv-

ery.’’ Id. The plaintiff slipped on the ice and fell on the

premises. Id.

This court upheld the trial court’s granting of sum-

mary judgment in favor of the defendants, the city,

the board of education, and city employees. Id., 187.

‘‘[U]nlike 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.’’ Id., 185. Further, the plain-

tiff’s employer could ‘‘meet its contractual obligation

to deliver milk to the school by waiting or returning at

a later time’’ after the ice had been removed from the

premises. Id. Importantly, this court noted that ‘‘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. . . . [E]ven 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.’’ (Cita-

tions omitted; footnote omitted.) Id., 186–87. Thus, this

court determined that the plaintiff failed to raise a genu-

ine issue of material fact as to whether the defendants

were entitled to governmental immunity, and it

‘‘decline[d] 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.’’ Id., 187.

In the present case, the plaintiff claims that he is an

identifiable victim because he was compelled to be on

the premises at the time of his injury. The plaintiff

claims that, as a sports official, he was compelled to

be on the premises and, without his presence, the volley-

ball match would not be permitted to go forward.13

Essentially, the plaintiff asks us to extend the identifi-

able victim classification to encompass a plaintiff who

is present on municipal property to officiate a voluntary

activity outside of school hours. We decline to do so

for the following reasons.

Just as in Kusy, ‘‘unlike schoolchildren, the plaintiff

[in this case] was not required by law to be on school

grounds.’’ Id., 185. An assignment to officiate a volley-

ball game after school hours is nothing like the legal

compulsion imposed by our statutes that require a

child’s attendance at school. Id. Moreover, the plaintiff

conceded that he had the option to accept or to deny the

assignment. The plaintiff’s presence on the premises,

therefore, was voluntary. The possibility that, had he

denied this, or other, officiating assignments, the plain-

tiff might have received fewer future assignments, does

not render his presence on the premises involuntary,

and certainly does not give rise to the same degree of

legal compulsion necessary to fall within the immunity

exception.

It would be improper for this court to extend the

identifiable victim classification in this case, particu-

larly because the student athletes participating in the

volleyball game over which the plaintiff officiated

would not themselves enjoy such a designation under

existing law. See, e.g., Marvin v. Board of Education,

supra, 191 Conn. App. 180–184; Jahn v. Board of Educa-

tion, supra, 152 Conn. App. 668–69. In other words, if

one of the student athletes had fallen from the officiat-

ing stand and sustained injuries, the defendants would

enjoy governmental immunity from a premises liability

claim initiated by the student. There is no doctrinal

justification for treating the plaintiff differently than

the schoolchildren.14

The judgment is affirmed.

In this opinion the other judges concurred.

1

The plaintiff named six defendants in this action: (1) the town; (2) the

board; (3) Joseph V. Erardi, Jr., the former superintendent of Newtown

public schools, and his agents; (4) Lorrie Rodrigue, the principal of Newtown

High School, and her agents; (5) Simon and his agents; and (6) Tom Czaplin-

ski, the coach of the Newtown High School girls volleyball team. In his

objection to a joint motion for summary judgment filed by the defendants,

the plaintiff stated that he did not object to the court rendering summary

judgment as to his claims against Erardi, Rodrigue, and Czaplinski, as set

forth in counts three, four, and six of the operative amended complaint.

The plaintiff also consented to the court rendering summary judgment on

the plaintiff’s claims for indemnification against Erardi, Rodrigue, and

Czaplinski. The trial court confirmed on the record that ‘‘the plaintiff ha[d]

no objection’’ to summary judgment being entered as to all claims against

Erardi, Rodrigue, and Czaplinski. Erardi, Rodrigue, and Czaplinski have

not participated in this appeal. Accordingly, we refer to the participating

defendants—the town, the board, and Simon—individually by name and

collectively as the defendants.

2

In his deposition, the plaintiff was asked whether ‘‘a volleyball match

[with] only one official’’ previously had taken place, and the plaintiff

responded, ‘‘[s]ometimes.’’ The plaintiff clarified that such a situation was

‘‘unusual,’’ and offered that, if available officiating staff was limited, a match

could take place with one referee.

3

The defendants also requested that the plaintiff revise his complaint to

clarify whether the plaintiff was an employee or nonemployee of the town

or board at the time of the alleged injury. The plaintiff revised its complaint

to characterize himself as ‘‘an invitee, customer, patron, and/or guest’’ and

to remove language that characterized him as an ‘‘employee’’ of the town

or board.

4

General Statutes § 10-235 (a) provides in relevant part: ‘‘Each board of

education shall protect and save harmless any . . . employee thereof or

any member of its supervisory or administrative staff . . . from financial

loss and expense, including legal fees and costs, if any, arising out of any

claim, demand, suit or judgment by reason of alleged negligence or other

act resulting in accidental bodily injury to . . . any person . . . provided

such . . . employee, at the time of the acts resulting in such injury . . .

was acting in the discharge of his or her duties or within the scope of

employment or under the direction of such board of education . . . .’’

5

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

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

for damages to person or property caused by: (A) The negligent acts or

omissions of such political subdivision or any employee, officer or agent

thereof acting within the scope of his employment or official duties . . . .

(2) Except as otherwise provided by law, a political subdivision of the state

shall not be liable for damages to person or property caused by: . . . (B)

negligent acts or omissions which require the exercise of judgment or discre-

tion as an official function of the authority expressly or impliedly granted

by law.’’

6

General Statutes § 7-465 (a) provides in relevant part: ‘‘Any town, city

or borough, notwithstanding any inconsistent provision of law . . . shall

pay on behalf of any employee of such municipality . . . all sums which

such employee becomes obligated to pay by reason of the liability imposed

upon such employee by law for damages awarded for . . . physical damages

to person . . . if the employee, at the time of the occurrence, accident,

physical injury or damages complained of, was acting in the performance

of his duties and within the scope of his employment, and if such occurrence,

accident, physical injury or damage was not the result of any wilful or

wanton act of such employee in the discharge of such duty. . . . Govern-

mental immunity shall not be a defense in any action brought under this

section. . . .’’

7

‘‘A ministerial act is one which a person performs in a given state of

facts, in a prescribed manner, in obedience to the mandate of legal authority,

without regard to or the exercise of his own judgment [or discretion] upon

the propriety of the act being done. . . . In contrast, when an official has

a general duty to perform a certain act, but there is no city charter provision,

ordinance, regulation, rule, policy, or any other directive [requiring the

government official to act in a] prescribed manner, the duty is deemed

discretionary.’’ (Citations omitted; footnote omitted; internal quotation

marks omitted.) Northrup v. Witkowski, 332 Conn. 158, 169–70, 210 A.3d

29 (2019).

8

On February 25, 2019, the defendants submitted a substitute exhibit to

be considered with their motion for summary judgment, which included

additional pages of the plaintiff’s deposition transcript that the defendants

erroneously omitted from their memorandum in support of their motion for

summary judgment.

9

The defendants argued, in the alternative, that the plaintiff did not fall

within the identifiable person-imminent harm exception because the harm

he suffered was not sufficiently imminent. The defendants also argued that

§ 10-235 did not create a cause of action that a plaintiff could bring against

the board. Rather, the defendants argued that the statute provided a medium

through which employees or members of the board could receive indemnity

from the board if a judgment were rendered against them.

10

As previously mentioned, in his objection, the plaintiff stated that he

did not object to summary judgment with respect to his claims against

Erardi, Rodrigue, and Czaplinski, found in counts three, four, and six of the

plaintiff’s revised complaint respectively. See footnote one of this opinion.

11

The trial court also considered whether the town and the board were

liable under §§ 10-235 and 7-465. The court determined that the defendants

were entitled to summary judgment because § 10-235 did not provide the

plaintiff with a cause of action against a board of education, and relief under

§ 7-465 was only available if governmental immunity did not bar recovery.

The plaintiff does not raise any claim on appeal regarding the trial court’s

conclusions that the defendants’ actions were discretionary, rather than

ministerial, or that § 10-235 did not provide for a cause of action against

the board. Accordingly, these issues are not properly before us.

12

In his appellate brief, the plaintiff relies on Tryon v. North Branford,

58 Conn. App. 702, 755 A.2d 317 (2000), to support his assertion that he is

indeed an identifiable victim and that we must give weight to whether the

plaintiff’s harm ‘‘occurred within a limited temporal and geographical zone’’

in our analysis. As this court noted in Kusy, ‘‘Tryon . . . was decided [more

than twenty] 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 compelled to be somewhere. See St. Pierre v. Plainfield, 326

Conn. [420, 436–37, 165 A.3d 148 (2017)]. The court has, therefore, not

extended the classes of identifiable victims beyond schoolchildren who are

statutorily required to attend school during school hours.’’ Kusy v. Norwich,

supra, 192 Conn. App. 186 n.8.

13

The plaintiff claims that ‘‘two referees were required in order for the

volleyball match to go forward and be officially sanctioned.’’ Upon review

of the record, even in the light most favorable to the plaintiff, we cannot

come to the same conclusion. When asked in his deposition whether a

volleyball match could proceed with ‘‘no referees,’’ Czaplinski answered,

‘‘[t]he match would not go forward without an official.’’ Simon, when asked

in his deposition whether the high school governing agency could sanction

a match as official without having any certified referee, answered, ‘‘[n]o,’’

and explained that he could not ‘‘remember’’ whether the local league

required two referees for a volleyball match to be held. Finally, the plaintiff

admitted in his deposition:

‘‘Q. Is there ever a volleyball match where there is only one official?

‘‘A. Sometimes.’’

14

At least three members of our Supreme Court recently have observed

that the court’s application of the identifiable person-imminent harm excep-

tion, particularly with respect to the identifiable person prong of the excep-

tion, may be doctrinally flawed, unduly restrictive, and/or ripe for revisiting

in an appropriate future case. See Borelli v. Renaldi, supra, 336 Conn. 35,

59–60 n.20 (Robinson, C. J., concurring); id., 67 (D’Auria, J., concurring);

id., 67–113, 146–54 (Ecker, J., dissenting). Nevertheless, this court is required

to follow binding Supreme Court precedent unless and until our Supreme

Court sees fit to alter it. See Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d

259 (2010) (‘‘it is manifest to our hierarchical judicial system that [our

Supreme Court] has the final say on matters of Connecticut law and that

the Appellate Court and Superior Court are bound by [Supreme Court]

precedent’’).