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TWILA WILLIAMS, ADMINISTRATRIX (ESTATE

OF TIANA N.A. BLACK) ET AL. v. HOUSING

AUTHORITY OF THE CITY

OF BRIDGEPORT ET AL.

(AC 36176)

Lavine, Mullins and Borden, Js.

Argued March 16—officially released September 15, 2015

(Appeal from Superior Court, judicial district of

Fairfield, Sommer, J.)

John T. Bochanis, with whom, on the brief, was

Thomas J. Weihing, for the appellant (plaintiff).

Betsy Ingraham, associate city attorney, for the

appellees (defendant city of Bridgeport et al.).
Opinion

BORDEN, J. The plaintiff Twila Williams, administratrix of the estates of Tiana N.A. Black, Nyaisja Williams,

Tyaisja Williams, and Nyshon Williams (decedents),

appeals from the trial court’s summary judgment rendered in favor of the defendants.1 The plaintiff claims

that: (1) there is an issue of material fact as to whether

the defendants are immune from liability pursuant to

General Statutes § 52-557n (b) (8)2

for failing to inspect

the decedents’ property; (2) the trial court improperly

determined that other acts of negligence alleged against

the defendants involved the exercise of a discretionary

duty; and (3) even if such acts did involve a discretionary duty, the defendants’ alleged negligence subjected

the decedents to imminent harm. We affirm the judgment of the trial court as to the second claim. On the

first and third claims, however, we reverse the judgment

and remand the case to the trial court for further proceedings.3

This case stems from an apartment fire that took the

lives of the decedents. The following undisputed facts

and procedural history are relevant to this appeal. The

decedents resided in the P.T. Barnum Apartments, a

group of affordable housing units owned and maintained by the Housing Authority of the City of Bridgeport. The decedents’ apartment was part of a

multifamily residential unit,4

located on the second and

third floors of a three-story building. It had only a single

point of ingress and egress, namely, a door that opened

onto a porch and an external staircase attached to the

building’s second floor. Because the building lacked

fire escapes, the only means of leaving the apartment

was through the door. An individual seeking to leave

from the bedrooms on the third floor of the apartment

had to travel down the internal staircase, then traverse

the apartment to access the door.

The Bridgeport fire marshal’s office is required to

conduct annual inspections of multifamily residential

units within Bridgeport pursuant to General Statutes

§ 29-305 (b).5 The office maintains eight full-time fire

investigators, along with a deputy fire marshal and fire

marshal, who together are responsible for inspecting

more than four thousand multifamily homes in Bridgeport, in addition to inspecting commercial businesses

and investigating the circumstances surrounding fires

within the city. The Bridgeport tax assessor’s office

annually provides the fire marshal with a list of those

multifamily units to be inspected. At the time of the

incident in the present case, the list provided to the

fire marshal’s office did not include multifamily units

considered affordable housing units because such housing is not included on Bridgeport’s tax rolls.6 The decedents’ apartment qualified as affordable housing, and

as a consequence, the fire marshal did not conduct a

yearly inspection of the apartment.
On November 13, 2009, at approximately 1 a.m., a fire

broke out in the oven in the kitchen of the decedents’

apartment. The decedents perished in the conflagration.

Both the state police and the Bridgeport Fire Department investigated the circumstances surrounding the

fire and determined the cause to be accidental. During

the course of their investigations, the state police also

determined that, although all five smoke detectors

within the apartment were functioning normally, the

detectors were not interconnected in the sense that all

five would be activated when one of them activated.

Subsection 907.2.10.1.2.2 of the State Fire Safety Code,

Regulations of Connecticut State Agencies § 29-292-17e,

required the installation ofinterconnected smoke detectors when the apartment was last renovated in 1992.7

Both agencies concluded that, given the locations of

the decedents’ bodies found within the apartment, it

was likely that all four of the decedents were alerted

to the fire and were attempting to leave.

The plaintiff commenced this suit against the defendants. In her amended complaint, the plaintiff alleged

that the defendants failed to ensure that the decedents’

apartment complied with the state building and fire

safety codes, failed to remedy numerous defects in the

premises, and failed to conduct a yearly fire safety

inspection of the apartment. The plaintiff specifically

alleged that the defendants knew or should have known

about and remedied a number of asserted defects in

the decedents’ apartment, including the absence of fire

escapes, fire suppression systems, photo-electric

smoke detectors, fire alarm systems, fire sprinklers, fire

extinguishers, and fire safety or prevention plans.

The defendants moved for summary judgment, claiming that as a matter of law they were immune from

liability under § 52-557n. Specifically, the defendants

argued that they were immune from liability for failing

to inspect the decedents’ apartment under § 52-557n (b)

(8), and that the plaintiff could not identify a disputed

material fact that would demonstrate any exception to

the statutory immunity. Additionally, the defendants

argued that the other acts of negligence alleged involved

breaches of their discretionary duties. The defendants

argued that as a consequence, they were immune from

liability pursuant to § 52-557n (a) (2) (B).

As part of their motion for summary judgment, the

defendants included affidavits from the defendants William Finch, the mayor of the city of Bridgeport; Brian

Rooney, chief of the Bridgeport Fire Department; William Cosgrove, fire marshal for the city of Bridgeport;

Dennis Buckley, zoning administrator for the city of

Bridgeport; and Peter Pajaanen, building official for

the city of Bridgeport. Each affiant, except Cosgrove,

attested to a belief that he owed no duty to inspect the

decedents’ apartment.8 Rooney and Cosgrove asserted

in their affidavits that, as the fire chief and fire marshal
of Bridgeport, respectively, they were aware of and

familiar with all the responsibilities and duties of the

fire marshal’s office.

Rooney, however, further stated that, to the best of

his knowledge as the fire chief of Bridgeport, no statutory authority mandated that the decedents’ apartment

be inspected.9 Thus, these two assertions in Rooney’s

affidavit—namely, that he was aware of and familiar

with all of his duties and responsibilities as fire chief,

and that no statutory authority mandated that he inspect

the decedents’ apartment—conflicted with each other.

Similarly, Cosgrove, as fire marshal, stated that he was

aware of and familiar with all the duties and responsibilities of his office, yet did not claim familiarity with

the duty to inspect the decedents’ apartment. In the

plaintiff’s opposition to the motion for summary judgment, she argued that § 52-557n (a) (2) (B) did not apply

to the defendants’ alleged negligence. The plaintiff specifically included the affidavit of Mark W. Tebbets, an

expert on the state building code, alleging that there

were numerous specific defects in the decedents’ apartment and that the defendants were responsible for

enforcing the building code.

While the defendants’ motion for summary judgment

was pending, Rooney was deposed by the plaintiff. At

his deposition, Rooney testified that prior to making

the affidavit he was not aware that his office was obligated by statute to inspect affordable housing. He had

discovered subsequently, however, that § 29-305 (b)

applied to affordable housing as well as to multifamily

homes on the tax rolls, and therefore his office was

supposed to inspect the decedents’ apartment

annually.10

The trial court granted the defendants’ motion for

summary judgment on July 19, 2013. In its memorandum

of decision, the trial court agreed with the defendants,

and concluded that the defendants were immune from

liability under § 52-557n (b) (8) for their failure to

inspect the decedents’ property. The trial court specifically noted that the plaintiff did not adduce evidence

that would raise a question of material fact as to

whether the defendants’ failure to inspect came within

the ‘‘recklessness’’ exception to the statutory provision.

It further concluded that the other claims alleged by

the plaintiff involved negligent performance of discretionary duties, and the defendants were therefore

immune under § 52-557n (a) (2) (B).

The plaintiff then filed a motion to reargue the motion

for summary judgment. The plaintiff included a full copy

of Rooney’s deposition with her motion, and argued

that itraised issues of fact as to whetherthe defendants’

acts constituted recklessness under § 52-557n (b) (8).

The trial court denied that motion on September 25,

2013. This appeal followed.
‘‘The standard of review of motions for summary

judgment is well settled. 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 moving for summary judgment has the burden of

showing the absence of any genuine issue of material

fact and that the party is, therefore, entitled to judgment

as a matter of law.’’ (Internal quotation marks omitted.)

Smigelski v. Dubois, 153 Conn. App. 186, 197, 100 A.3d

954, cert. denied, 314 Conn. 948, 103 A.3d 975 (2014).

‘‘[O]nce [the] defendant’s burden in establishing his

entitlement to summary judgment is met . . . the burden shifts to [the] plaintiff to show that a genuine issue

of fact exists justifying a trial.’’ (Internal quotation

marks omitted.) Rockwell v. Quintner, 96 Conn. App.

221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917,

908 A.2d 538 (2006). ‘‘[A] party opposing a summary

judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of

material fact. . . . [I]t is not enough for the party

opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are

insufficient regardless of whether they are contained

in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the

existence of a genuine issue as to any material fact.’’

(Citations omitted; internal quotation marks omitted).

Id., 228–29.

‘‘On appeal, we must determine whether the legal

conclusions reached by the trial court are legally and

logically correct and whether they find support in the

facts set out in the memorandum of decision of the

trial court. . . . Our review of the trial court’s decision

to grant [a moving party’s] motion for summary judgment is plenary.’’ (Internal quotation marks omitted.)

Smigelski v. Dubois, supra, 153 Conn. App. 197.

I

The plaintiff first claims that there is a genuine issue

of material fact as to whether the defendants’ failure

to inspect the decedents’ apartment pursuant to § 29-

305 (b) constituted a ‘‘reckless disregard for health and

safety’’ under § 52-557n (b) (8). The plaintiff argues

that consequently the defendants are not entitled to

summary judgment. We agree with the plaintiff.

The parties agree, as do we, that this case presents, in

the first instance, a question of statutory interpretation.

‘‘[I]ssues of statutory construction raise questions of

law, over which we exercise plenary review. . . . The

process of statutory interpretation involves the determi-
nation of the meaning of the statutory language as

applied to the facts of the case, including the question

of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to

ascertain and give effect to the apparent intent of the

legislature. . . . In other words, we seek to determine,

in a reasoned manner, the meaning of the statutory

language as applied to the facts of [the] case, including

the question of whether the language actually does

apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text

of the statute itself and its relationship to other statutes.

If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results,

extratextual evidence of the meaning of the statute shall

not be considered.’’ (Internal quotation marks omitted.)

Urgin v. Cheshire, 307 Conn. 364, 379–80, 54 A.3d

532 (2012).

More specifically, the parties agree that this case is

controlled by two provisions of § 52-557n, namely, § 52-

557n (a) (2) (B) and (b) (8). Section 52-557n waives the

traditional general immunity extended to municipalities

for their tortious acts at common law. Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881

A.2d 194 (2005). Section 52-557n (a) (2), however, provides in relevant part: ‘‘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 discretion as an official function of the authority expressly or impliedly granted by

law.’’ This provision incorporates our prior commonlaw jurisprudence extending immunity to those acts

requiring the exercise of judgment on the part of the

municipal actor. Discretionary acts are distinct from

those that are ministerial; a ministerial act involves

prescribed conduct that does not afford the actor the

ability to use his own judgment. Pursuant to § 52-557n

(a) (2) (B), a municipality is extended immunity from

liability for discretionary acts but not for ministerial

acts. See Durrant v. Board of Education, 284 Conn.

91, 105–106, 931 A.2d 859 (2007).

Section 52-557n (b) sets forth a list of discrete situations in which immunity from liability shall be extended

to municipal actors. Ugrin v. Cheshire, supra, 307 Conn.

381. Section 52-557n (b) specifically provides in relevant

part: ‘‘Notwithstanding the provisions of subsection (a)

of this section, a political subdivision of the state or

any employee, officer or agent acting within the scope

of his employment or official duties shall not be liable

for damages to person or property resulting from . . .

(8) failure to make an inspection or making an inadequate or negligent inspection of any property . . . to

determine whether the property complies with or violates any law or contains a hazard to health or safety,
unless the political subdivision had notice of such a

violation of law or such a hazard or unless such failure

to inspect or such inadequate or negligent inspection

constitutes a reckless disregard for health or safety

under all the relevant circumstances . . . .’’

Thus, briefly stated, even if the conduct is ministerial

under § 52-557n (a), if the claimed conduct constitutes

a failure to inspect property, then the municipality is

not liable for a failure to inspect unless the municipality

had notice of a violation of law,11 orthe failure to inspect

constituted a reckless disregard for health and safety

under the circumstances. See Urgin v. Cheshire, supra,

307 Conn. 380–81. Put another way, as applied to this

case, under § 52-557n (a) (2) (B), the defendants are

immune from liability for tortious violations of a discretionary duty, but are not extended immunity fortortious

violations of a ministerial duty. Under § 52-557n (b)

(8), however, with respect to a duty to inspect, the

defendants are immune from liability even if the failure

to inspect is a ministerial duty, unless that failure to

inspect constitutes a reckless disregard for health and

safety, in which case they would not be immune

from liability.

The parties disagree over the meaning of what constitutes a ‘‘reckless disregard for health or safety’’ under

§ 52-557n (b) (8). The plaintiff asserts that recklessness

for the purpose of § 52-557n (b) (8) is a question of

fact, and argues that Rooney’s deposition and the statutory duty under § 29-305 (b) create a disputed issue of

material fact as to whether the defendants were acting

recklessly. The defendants argue that recklessness

under § 52-557n (b) (8) is a question of law, and that

as a matter of law they were not acting recklessly.

We conclude, however, that both parties miss the

mark. What the term ‘‘reckless’’ means in § 52-557n (b)

(8) is a question of statutory interpretation and, therefore, a question oflaw. Whetherthe defendants’ conduct

was ‘‘reckless’’ within that statutory meaning is a factual

question and, for purposes of rendering summary judgment, the question is whether the facts of that conduct

were egregious enough to permit a factual finding of

recklessness.

Although our Supreme Court has not had the opportunity to consider the meaning of the particular exception

at issue in the present case, the court has noted that

§ 52-557n (a) as a whole is ambiguous, and that its

meaning is ‘‘farfrom plain.’’12 Sanzone v. Board of Police

Commissioners, 219 Conn. 179, 188, 592 A.2d 912

(1991). The history and language of § 52-557n stems

from a ‘‘complicated web of legislative compromises

that shaped the Tort Reform Act of 1986 . . . .’’ (Internal quotation marks omitted.) Elliott v. Waterbury, 245

Conn. 385, 408, 715 A.2d 27 (1998). What constitutes a

‘‘reckless disregard for health and safety’’ is particularly

unclear, as the phrase is not defined within § 52-557n,
nor is the phrase found anywhere else within our General Statutes. Without any plain indicia of what this

exception means forthe purposes of a failure to inspect,

we act in accordance with our Supreme Court’s conclusion thatthe statute is ambiguous, and seek extratextual

evidence as to the exception’s meaning.

We look first at the legislative history of § 52-557n

for guidance. Our Supreme Court has commented that

the ‘‘legislative history of § 52-557n is worse than murky;

it is contradictory. . . . The transcripts of legislative

hearings on the bill are full of heated debate over [§ 52-

557n], dealing with municipal liability, but the legislators seemed not to agree as to its meaning. The record

of legislative debate does indicate that [§ 52-557n] was

intended, in a general sense, both to codify and to limit

municipal liability, but it also reflects confusion with

respect to precisely what part of the preexisting law

was being codified, and what part was being limited.’’

(Footnote omitted.) Sanzone v. Board of Police Commissioners, supra, 219 Conn. 188. As a consequence,

the legislative history does not provide adequate guidance as to the meaning of a ‘‘reckless disregard for

health and safety.’’

We therefore turn to our common-law jurisprudence

for guidance. Under Connecticut common law, ‘‘[r]ecklessness requires a conscious choice of a course of

action either with knowledge of the serious danger to

others involved in it or with knowledge of facts which

would disclose this danger to any reasonable [person],

and the actor must recognize that his conduct involves

a risk substantially greater . . . than that which is necessary to make his conduct negligent. . . . More

recently, we have described recklessness as a state of

consciousness with reference to the consequences of

one’s acts. . . . It is more than negligence, more than

gross negligence. . . . The state of mind amounting to

recklessness may be inferred from conduct. But, in

order to infer it, there must be something more than a

failure to exercise a reasonable degree of watchfulness

to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . The result is that

. . . reckless conduct tends to take on the aspect of

highly unreasonable conduct, involving an extreme

departure from ordinary care, in a situation where a

high degree of danger is apparent.’’ (Citations omitted;

emphasis added; internal quotation marks omitted.)

Matthiessen v. Vanech, 266 Conn. 822, 832–33, 836 A.2d

394 (2003).

We consider the common-law definition of recklessness instructive for purposes of interpreting the exception forrecklessness in § 52-557n (b)(8). An individual’s

‘‘conscious choice’’ separates recklessness from negligence. Id., 832. To achieve the distinction, it is not

merely enough to fail to conduct an adequate inspection. A negligent inspection or failure to inspect occurs
when one knew or should have known that there was

a duty to inspect, but failed to do so or did so below

the standard of care. A failure to inspect that constitutes

a reckless disregard for health or safety under § 52-

557n (b) (8), however, must therefore be one in which

an individual is aware of the duty to inspect, recognizes

the possible impact on public or individual health or

safety, and makes the conscious decision not to perform that duty.13

In applying this definition to the present case, we

conclude thatthe failure ofthe defendants to inspectthe

decedents’ apartment could, under the factual record

presented in this case, reasonably be considered reckless.14 Although all of the defendants, except Cosgrove,

attested that they had no duty to inspect the decedents’

apartment, both Rooney and Cosgrove also asserted

their familiarity with the legal rules regarding the

inspection of the apartment. Rooney explicitly claimed

that he was familiar with ‘‘all duties and responsibilities

that any agent, servant, and/or employee of the [Bridgeport] Fire Department had with respect to [the decedents’] apartment prior to November 13, 2009.’’

Cosgrove made an essentially identical claim. From

these assertions, a reasonable fact finder could infer

that both Rooney and Cosgrove had read and made

themselves familiar with those legal rules, including the

legal obligation of an annual inspection mandated by

§ 29-305 (b); see footnote 5 of this opinion; and, therefore, that they were aware of that obligation. And,

because of Rooney’s conflicting assertion that there was

no such obligation, the fact finder would be confronted

with a factual question: were Rooney and Cosgrove

aware or not of the legal obligation to inspect the decedents’ apartment? Put another way, the fact finder

would be presented with the question of whether to

believe the assertion of familiarity and awareness prior

to the fire, or the assertion that the awareness and

familiarity did not arise until the time of the deposition,

when Rooney explained how he had learned that he

was so obligated.

Furthermore, it is undisputed that the defendants

did not inspect the decedents’ apartment. A reasonable

juror could further conclude that given the defendants’

familiarity with § 29-305 (b), the reason for that failure

to inspect was due to a conscious disregard of the

prescriptions in § 29-305 (b). Accordingly, the defendants’ familiarity or not with the obligation to inspect

under § 29-305 (b), and the reason for the defendants’

failure to follow its mandate, gives rise to questions of

material fact appropriately left to the fact finder, and

are sufficiently raised so as to surmount the defendants’

motion for summary judgment.

The defendants argue that regardless of how cognizant they were of the duty to inspect, the plaintiff has

not provided any evidence upon which a juror could
reasonably conclude that the defendants recognized the

possible impact of their failure to inspect on the health

or safety of the decedents. We are not persuaded by

this argument. It is counterintuitive to an average person that a purported expert, familiar with the duties

and procedures of his own office, cannot appreciate

the consequences when such duties are not carried out,

especially when those duties involve the prevention of

life-threatening fires. Thus, a reasonable juror could

conclude that they would appreciate the natural consequences of their actions. We leave such determinations

to the finder of fact.15

The degree of awareness the defendants had of the

statutory requirement to inspect the decedents’ apartment and the reason for the failure to inspect are questions of material fact that must be established to

determine whether the defendants’ actions were reckless. We therefore reverse the judgment of the trial

court on this issue and remand the case with direction

to deny the defendants’ motion for summary judgment

on the § 52-557n (b) (8) issue.

II

The plaintiff also claims that the trial court improperly concluded, pursuant to § 52-557n (a) (2) (B),16 that

the defendants were immune from liability for their

alleged negligence because the duty to act was discretionary, not ministerial, in nature. We disagree with

the plaintiff, and conclude that the alleged negligence

involved the exercise of the defendants’ discretionary

duties.

Because the present claim is governed by § 52-557n

(a), it is useful at the outset to review our previous

discussion of the statute in advance of addressing the

plaintiff’s claim. Under § 52-557n (a) (2) (B), a municipality and its agents are not liable for violations of

discretionary duties, but are liable for violations of ministerial duties. This is because this subsection codifies

the common-law doctrine of distinguishing between discretionary and ministerial acts. See Coley v. Hartford,

312 Conn. 150, 161–62, 95 A.3d 480 (2014).

With this standard in mind, we now return to our

analysis of the plaintiff’s claim under § 52-557n (a) (2)

(B). In her amended complaint, the plaintiff alleged

that, in addition to the defendants’ failure to inspect

the apartment pursuant to § 29-305 (b), the defendants

were negligent for a variety of reasons, including a

broad failure on the part of the defendants to enforce

the state building and fire safety codes, and allegations

that the defendants knew or should have known about

and remedied the alleged defects in the decedents’

apartment.17 In their motion for summary judgment, the

defendants claimed that they were immune from the

plaintiff’s claims pursuant to § 52-557n (a) (2) (B). The

trial court concluded that the allegations of negligence
involved the exercise of only discretionary duties, and

thus the defendants were immune under the statute.18

As noted previously, § 52-557n (a) (2) (B) ‘‘explicitly

shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or

discretion as an official function of the authority

expressly or impliedly granted by law. . . . Municipal

officials are immune 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 discretion beyond

the limits desirable in our society. . . . The hallmark

of a discretionary act is that it requires the exercise of

judgment. . . . In contrast, municipal officials 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 judgment

or discretion. . . .

‘‘Although the determination of whether official acts

or omissions are ministerial or discretionary is normally

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

cases where it is apparent from the complaint . . .

[that the nature of the duty] and, thus, whether governmental immunity may be successfully invoked pursuant

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

the act or omission complained of in the complaint.

. . . Accordingly, where it is apparent from the complaint that the defendants’ allegedly negligent acts or

omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in

nature, summary judgment is proper.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Coley v. Hartford, supra, 312 Conn. 161–62. ‘‘The

issue of governmental immunity is simply a question

of the existence of a duty of care, and [our Supreme

Court] has approved the practice of deciding the issue

of governmental immunity as a matter of law.’’ (Internal

quotation marks omitted.) Thivierge v. Witham, 150

Conn. App. 769, 773–74, 93 A.3d 608 (2014).

We therefore turn to the plaintiff’s claim that the trial

courtimproperly concluded thatthe defendants’ alleged

negligence involved a discretionary duty to act. The

plaintiff first argues that the alleged negligent enforcement of the fire safety and building codes constitutes

a breach of a ministerial duty. We disagree. To enforce

the fire safety code, a local fire marshal must determine

whether there is a violation under the code and prescribe the necessary remedial measure. The General

Statutes provide an appeal process for residents or

developers who are unsatisfied with the assessment of

the local fire marshal’s enforcement of the code, or

when they believe the code has been misinterpreted.

See General Statutes § 29-291d. The interpretive process used by local fire marshals in analyzing the fire
safety code and applying it to a building under inspection bears the traditional hallmarks of an exercise of

judgment, and as a consequence, is discretionary.19 See

Segreto v. Bristol, 71 Conn. App. 844, 851, 804 A.2d 928,

cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).

The plaintiff additionally argues that due to the prescriptions found within the fire code, it was the defendants’ ministerial duty to remedy the alleged defects.

We are unconvinced. The plaintiff has not pointed to

any portion of the fire safety code that mandates that

the defendants provide a specific, prescribed, nondiscretionary remedy forthe claimed defects. To the extent

that a remedy is needed, the nature, form, and adequacy

of that remedy under the fire safety code implicate ‘‘the

exercise of judgment, and thus are discretionary acts.’’

Violano v. Fernandez, 88 Conn. App. 1, 10, 868 A.2d 69

(2005), aff’d, 280 Conn. 310, 907 A.2d 1188 (2006); see

also Segreto v. Bristol, supra, 71 Conn. App. 857. We

therefore conclude that the defendants’ alleged negligence involved discretionary acts.

III

Because we have concluded that the defendants’

alleged negligence implicates only their discretionary

duties, the plaintiff can surmount § 52-557n (a) (2) (B)

only if her claim falls within a delineated exception to

discretionary act immunity articulated by our Supreme

Court. See Grady v. Somers, 294 Conn. 324, 334–36,

984 A.2d 684 (2009). In this appeal, the only relevant

exception is the identifiable person-imminent harm

exception.20 The plaintiff argues that all of the defendants’ alleged acts of negligence involve discretionary

duties that are subject to the exception. Because of

recent changes in our jurisprudence to the identifiable

person-imminent harm test, however; see Haynes v.

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

reverse and remand the case to the trial court forreargument on this issue.

The identifiable person-imminent harm exception

applies when circumstances make it apparent to a public officer that his or her failure to act would be likely

to subject an identifiable person to imminent harm.

Cotto v. Board of Education, 294 Conn. 265, 273, 984

A.2d 58 (2009). ‘‘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.’’ (Internal quotation marks omitted.) Id.

Failure to establish any of the three prongs is fatal to

the plaintiff’s claim that the defendants’ conduct falls

within the exception. Id.

In the present case, the trial court concluded that,

because the plaintiff did not identify ‘‘a discrete time

and place period at which the harm would occur’’ that

was foreseeable to the defendants; see Bonington v.
Westport, 297 Conn. 297, 314, 999 A.2d 700 (2010); the

defendants’ acts did not fall within the identifiable person-imminent harm exception to discretionary act

immunity. The court reached this conclusion through

application of the ‘‘foreseeability test’’ model for

determining imminent harm first articulated in Burns

v. Board of Education, 228 Conn. 640, 648–50, 638 A.2d

1 (1994), overruled in part by Haynes v. Middletown,

314 Conn. 303, 322–23, 101 A.3d 249 (2014).

Our Supreme Court, however, has recently modified

its approach to the imminent harm analysis, and this

court is the first to analyze the change in detail. In

Haynes v. Middletown, supra, 314 Conn. 303, which

was decided after the summary judgment proceedings

in the trial court in the present case, our Supreme Court

revisited the issue of what creates an ‘‘imminent risk

of harm’’ and established a new test that is different

from the foreseeability test utilized by the trial court

in the present case. We therefore turn our analysis to

an examination of the new test in Haynes.

In Haynes, the minor plaintiff was injured while

changing in the lockerroom at Middletown High School.

The plaintiff and a number of other students engaged

in horseplay, and the plaintiff was pushed into a locker

with an exposed jagged and rusted edge. The locker

had been in a broken condition since the beginning of

that school year. In the ensuing action, the defendant

municipality asserted as a special defense that maintenance of the locker was a discretionary duty not governed by any municipal policy or procedure, and

therefore the municipality was immune from liability

under § 52-557n (a) (2) (B). The plaintiff conceded that

the duty to maintain the locker was ultimately discretionary, but asserted that under the circumstances the

duty fell within the identifiable person-imminent harm

exception. Haynes v. Middletown, supra, 314 Conn.

305–10. The trial court issued a directed verdict in favor

of the defendants, which this court affirmed. See

Haynes v. Middletown, 142 Conn. App. 720, 724–25, 66

A.3d 899 (2013), rev’d, 314 Conn. 303, 101 A.3d 249

(2014). Our Supreme Court, on certified appeal,

reversed this court’s judgment, and took the opportunity to reexamine the prevailing jurisprudence regarding imminent harm. See Haynes v. Middletown, supra,

314 Conn. 307.

The court in Haynes looked initially at the reasoning

of Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131

(1989), and concluded that the court had implied in

Evon that the imminence of harm was intrinsically

related to the probability that the harm would occur

due to the dangerous condition. Haynes v. Middletown,

supra, 314 Conn. 317–18. This conclusion stood in contrast with the court’s previous ‘‘foreseeability’’ analysis

deriving from Burns, in which our Supreme Court had

articulated a test that was based on the temporal nature
of the harm; essentially, that an imminent harm was

one that emerged out of the existence of a temporarily

dangerous condition limited in geographic scope that

combined to identify a ‘‘foreseeable’’ class of victims.

Burns v. Board of Education, supra, 228 Conn. 640,

648–50; see also Purzycki v. Fairfield, 244 Conn. 101,

108–10, 708 A.2d 937 (1998) (reiterating same foreseeability test), overruled in part by Haynes v. Middletown,

314 Conn. 303, 322–23, 101 A.3d 249 (2014). The court

in Haynes noted that the test articulated by Burns was

flawed, because the mere fact that a dangerous condition was temporary did not increase the probability

that the condition would result in harm. Haynes v.

Middletown, supra, 320. As the court in Haynes stated,

‘‘[i]f a condition created only a low risk of harm, the fact

that the condition was temporary would not somehow

convert a harm that might well have never occurred

into one that was imminent.’’ Id., 320–21.

Our Supreme Court in Haynes then stated the following: ‘‘we conclude that [the Supreme Court] in Burns

incorrectly held that a foreseeable harm may be deemed

imminent if the condition that created the risk of harm

was only temporary and the risk was significant and

foreseeable. Our statement in Evon v. Andrews, supra,

211 Conn. 508, that a harm is not imminent if it could

have occurred at any future time or not at all was

not focused on the duration of the alleged dangerous

condition, but on the magnitude of the risk that the

condition created. Accordingly, the proper standard

for determining whether a harm was imminent is

whether it was apparent to the municipal defendant

that the dangerous condition was so likely to cause

harm that the defendant had a clear and unequivocal

duty to act immediately to prevent the harm.’’ (Emphasis altered; internal quotation marks omitted.) Haynes

v. Middletown, supra, 314 Conn. 322–23. And when the

court in Haynes spoke of the ‘‘ ‘magnitude of the risk’ ’’;

(emphasis omitted) id., 322; it specifically associated it

with the probability that harm would occur, not the

foreseeability of the harm. Id., 322–23. In articulating

this revised standard, the court in Haynes sought to

return to the implicit standard originally found in Evon.

Id., 321. It rejected the foreseeability standard articulated in Burns and Purzycki, and overruled those cases

to the extent that they had promulgated that standard.

Id., 323. We therefore seek to apply the new test established by our Supreme Court.21

Thus, as we view Haynes, in order to qualify under

the imminent harm exception, a plaintiff must satisfy

a four-pronged test. First, the dangerous condition

alleged by the plaintiff must be ‘‘apparent to the municipal defendant.’’ Id. We interpret this to mean that the

dangerous condition must not be latent or otherwise

undiscoverable by a reasonably objective person in the

position and with the knowledge of the defendant.22

Second, the alleged dangerous condition must be likely
to have caused the harm suffered by the plaintiff. A

dangerous condition that is unrelated to the cause of

the harm is insufficient to satisfy the Haynes test. Third,

the likelihood of the harm must be sufficient to place

upon the municipal defendant a ‘‘clear and unequivocal

duty’’; id.; to alleviate the dangerous condition. The

court in Haynes tied the duty to prevent the harm to

the likelihood thatthe dangerous condition would cause

harm. Id., 321. Thus, we consider ‘‘a clear and unequivocal duty’’; id., 323; to be one that arises when the probability that harm will occurfrom the dangerous condition

is high enough to necessitate that the defendant act to

alleviate the defect. Finally, the probability that harm

will occur must be so high as to require the defendant

to act immediately to prevent the harm.

All four of these prongs must be met to satisfy the

Haynes test, and our Supreme Court concluded that the

test presents a question of law. Id., 313. If no reasonable

juror could find that even any one of the prongs could

be met, then the imminent harm exception is unavailing.

See id., 326. We therefore consider this new test as

applied to the facts of the present case.

The test articulated by the court in Haynes is highly

fact specific. When analyzing the plaintiff’s claims to see

whether they fell within the imminent harm exception,

however, the trial court specifically considered the foreseeability test articulated in Burns. The trial court

applied this reasoning because the memorandum of

decision was released before Haynes. The parties in

this case argued the applicability of the identifiable

person-imminent harm exception before this court on

the bases of the record they made in the trial court,

which was crafted in light of the exception under the

law existing at that time. Because the trial court only

considered the imminent harm portion of the identifiable person-imminent harm test and rejected the plaintiff’s claims as unforeseeable under Burns, the parties

obviously did not have an opportunity to address the

new, broader, and more flexible standard articulated

by our Supreme Court in Haynes.

Because the Haynes test is a significant departure

from the foreseeability test previously considered for

imminent harm, we think that the trial court should

be given an opportunity to reconsider its decision on

summary judgment, taking into account the Haynes

test, specifically considering whether the identifiable

person-imminent harm exception applies to any of the

plaintiff’s allegations under this new standard. Furthermore, the parties should be given the opportunity to

present their submissions—factual and legal—in the

summary judgment proceedings to conform to the new

Haynes test. We therefore conclude that the appropriate action is to remand the case to the trial court for

reargument only on the applicability of the identifiable

person-imminent harm test to the alleged negligent dis-
cretionary acts of the defendants in accordance with

the Haynes test.

The judgment is reversed only as to the issues of

recklessness under § 52-557n (b) (8) and the applicability of the identifiable person-imminent harm exception

to the doctrine of immunity for violations of a discretionary duty, and the case is remanded with direction to

deny the motion for summary judgment and for further

proceedings according to law on those issues.

In this opinion the other judges concurred.

1 The plaintiff commenced suit against seven defendants, among whom

were the following: the Bridgeport Fire Department; Brian Rooney, chief

of the Bridgeport Fire Department; William Cosgrove, fire marshal for the

city of Bridgeport; William Finch, mayor of the city of Bridgeport; Dennis

Buckley, zoning administrator for the city of Bridgeport; and Peter Paajanen,

building official for the city of Bridgeport. We refer to these six parties as

the defendants for clarity. The seventh defendant, the Housing Authority of

the City of Bridgeport, is not a party to this appeal.

2 General Statutes § 52-557n (b) provides in relevant part: ‘‘[A] political

subdivision of the state or any employee, officer, or agent acting within the

scope of his employment or official duties shall not be liable for damages

to person or property resulting from . . . (8) failure to make an inspection

or making an inadequate or negligent inspection of any property . . . to

determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice

of such a violation of law or such a hazard or unless such failure to inspect

or such inadequate or negligent inspection constitutes a reckless disregard

for health or safety under all the relevant circumstances . . . .’’

3 We note that although the defendants relevant to this appeal may have

quite different responsibilities and duties relative to the decedents, they

have been treated by both sides and the trial court as essentially a single

entity with the same statutory responsibilities. As a consequence, we do

the same; however, as the parties and the trial court have not addressed

what, if any, distinctions may exist among the defendants, we suggest that

the issue be addressed on remand.

4 Pursuant to the zoning and subdivision regulations for the city of Bridgeport, a ‘‘multifamily’’ unit is a structure containing more than three residential

units each capable of supporting a single family. See Bridgeport Zoning

Regs., art. II, § 2-2.

5 General Statutes § 29-305 (b) provides in relevant part: ‘‘Each local fire

marshal shall inspect or cause to be inspected, at least once each calendar

year . . . in the interests of public safety, all buildings and facilities of

public service and all occupancies regulated by the Fire Safety Code within

the local fire marshal’s jurisdiction . . . .’’ (Emphasis added.)

6 General Statutes § 8-58 provides in relevant part: ‘‘The property of [a

housing] authority or of any agency or instrumentality designated or

appointed by an authority shall be exempt from all local and municipal

taxes . . . .’’

7 Subsection 907.2.10.1.2.2 of § 29-292-17e of the Regulations of Connecticut State Agencies provides in relevant part: ‘‘When alterations or additions

requiring a permit occur in . . . [multifamily] occupancies . . . the entire

dwelling unit shall be provided with smoke alarms located as required for

new dwellings. Such smoke alarms within existing spaces may be battery

operated and are not required to be . . . interconnected unless other remodeling considerations require removal of wall and ceiling coverings which

would facilitate concealed interconnected wiring.’’

It is undisputed that in the 1992 renovation of the P.T. Barnum apartments,

the plans called for the installation of interconnected smoke detectors.

8 Cosgrove’s affidavit did not express an opinion as to whether he owed

a duty to inspect the decedents’ apartment.

9

In his affidavit, Rooney stated the following:

‘‘2. With respect to the PT Barnum Apartment, specifically Building 12,

Apartment 205 (hereinafter ‘the apartment’), I am aware of and familiar

with all duties and responsibilities that any agent, servant and/or employee

of the [Bridgeport] Fire Department had with respect to that apartment at

any time prior to November 13, 2009. . . .

‘‘6. At all relevant times prior to November 13, 2009, no agent, servant
and/or employee of the Fire Department (not including members of the Fire

Marshal’s Office) was required, prescribed or directed by any rule, ordinance,

policy, procedure, statute, regulation, law, or any other type of directive,

to ever inspect the apartment at any prescribed time intervals, or to inspect

the apartment at any specific time for the presence or absence of any hazard

or condition . . . .’’

Similarly, Cosgrove attested to the following in his affidavit:

‘‘3. With respect to the PT Barnum Apartment, specifically Building 12,

Apartment 205 (hereinafter ‘the apartment’), I am aware of and familiar

with all duties and responsibilities that any agent, servant and/or employee

of the [Bridgeport] Fire Marshal’s Office had with respect to that apartment

at any time prior to November 13, 2009.’’

10 Rooney testified in relevant part during his deposition:

‘‘[The Plaintiff’s Counsel]: Chief Rooney, my question to you is, you now

realize that the fire, that the apartment in this case, apartment 205, at the

P.T. Barnum Apartments, should have been inspected annually?

‘‘[Rooney]: According to the statute, yeah.

‘‘[The Plaintiff’s Counsel]: Okay. And it is not only on the basis of inspection that, or a complaint, that the apartment is to be inspected but it’s to

be inspected annually? Regardless as to whether there is a complaint or not?

‘‘[Rooney]: Correct.

‘‘[The Plaintiff’s Counsel]: And that this knowledge came to you between

April 25, 2013, when you signed this, to today’s deposition on July 11, 2013?

‘‘[Rooney]: Yes.

‘‘[The Plaintiff’s Counsel]: And how did that information come to your

knowledge?

‘‘[The Defendants’ Counsel]: Objection to the extent it involves any discussions where counsel was present.

‘‘[The Plaintiff’s Counsel]: Go ahead. I’m not asking about conversations

you had with any attorney representing the city of Bridgeport, but how did

you get the knowledge?

‘‘[Rooney]: Through the attorney.’’

11 The plaintiff concedes that this exception does not apply to the present

case, as there is no evidence that the defendants had any actual notice of

a violation before the fire.

12 Our Supreme Court has considered the specific meaning of § 52-557n

(b) (8) in a single case, Ugrin v. Cheshire, supra, 307 Conn. 364. In Urgin

the court only interpreted the plain meaning of the word ‘‘unless’’ in § 52-

557n (b) (8) to create clear exceptions to the blanket immunity for negligent

or nonexistent inspections. Ugrin v. Cheshire, supra, 381–83. Similarly, in

Smart v. Corbitt, 126 Conn. App. 788, 814–15, 14 A.3d 368, cert. denied, 301

Conn. 907, 19 A.3d 177 (2011), this court concluded that a jury reasonably

could have determined that the failure to inspect a building pursuant to § 29-

305 (b) was notreckless underthe facts of that case. This court, however, did

not address what constitutes a ‘‘reckless disregard’’ under § 52-557n (b) (8).

13 This distinction maintains the separation between the recklessness and

notice exceptions under § 52-557n (b) (8). The notice exception addresses

actual notice of a defect that would violate legal standards or threaten

health or safety. The recklessness exception as defined in the present case

addresses awareness of a duty to inspect.

14 The plaintiff argues that, as ‘‘everyone is presumed to know the law,’’

the defendants were presumptively aware of their duty to inspect under

§ 29-305, and thus the failure to do so constituted reckless conduct. See

State v. Knybel, 281 Conn. 707, 713, 916 A.2d 816 (2007). We note that the

plaintiff’s broad interpretation of that presumption essentially undermines

the basic premise of § 52-557n (b) (8). Were we to adopt the plaintiff’s

interpretation of awareness, we would essentially create a form of per se

recklessness, in which any time a municipality had a duty to follow statutory

guidelines, failure to do so would constitute a reckless act. No such legal

construct exists, nor has it ever existed to the best of our knowledge, within

our jurisprudence. We therefore decline to adopt this interpretation.

15 We note that the lack of resources provided to the fire marshal’s office

may make carrying out such a duty difficult, and have at least once implied

the opposite of recklessness. See, e.g., Smart v. Corbitt, 126 Conn. App.

788, 808 and n.15, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177

(2011). The reasonableness or recklessness of that inability to act, however,

is a question that is best left, as it was in Smart, with the fact finder.

16 General Statutes § 52-557n (a) provides in relevant part: ‘‘(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 discretion as an
official function of the authority expressly or impliedly granted by law.’’

17 Specifically, the plaintiff alleged that the proximate cause of the decedents’ deaths was that the defendants:

‘‘a. Knew or should have known that the above described apartment and

building did not have a safe, reasonable and/or adequate means of egress

provided to the decedents to exit the above described apartment/building;

‘‘b. Knew or should have known that the above described apartment and/

or building did not have a safe, reasonable and/or adequate means of egress

provided to the decedents to exit the above described apartment/building

particularly during a fire;

‘‘c. Knew or should have known that the above described apartment and

building in which the decedents died did not comply with applicable federal,

state and local law, codes and/or regulations, including fire and building

safety regulations, codes and laws and/or zoning laws, codes and/or regulations;

‘‘d. Knew or should have known that the above described building and

apartment was not consistent with and in conformity with recognized standards for building safety, fire safety and building and zoning laws;

‘‘e. Knew or should have known that the above described apartment and

building was previously renovated, redesigned and/or remodeled and a fire

escape and/or other reasonable means of egress from the apartment and/

or building was not provided for use of the decedents;

‘‘f. Knew or should have known that the above described apartment and

building did not have adequate, sufficient and/or proper fire suppression

and fire/smoke detection devices, including the failure to have proper smoke

detectors in the apartment and building;

‘‘g. Knew or should have known that the above described apartment and/

or building did not have adequate and/or proper fire suppression and/or fire

detection devices;

‘‘h. Failed to provide and/or install photo-electric smoke detectors in the

above described apartment and building where the decedents were caused

to die and/or ensure such devices were installed;

‘‘i. Knew or should have known that the above described apartment or

building did not have a reasonable and/or proper fire alarm system;

‘‘j. Failed to ensure that the above described apartment and/or building

had a reasonable and/or proper fire alarm system;

‘‘k. Knew or should have known that the above described apartment or

building did not have a fire sprinkler system to ensure the safety of the

residents, including the decedents;

‘‘l. Failed to ensure that the above described apartment and/or building

had a fire sprinkler system to ensure the safety of the residents of said

apartment and/or building, including the decedents;

‘‘m. Knew or should have known that a fire extinguisher was not provided

for use of tenants in the above described building or apartment, including

the decedents;

‘‘n. Knew or should have known that the above described apartment and/

or building was not safe for use by tenants, including the decedents and /

or contained hazards making it not safe for use by tenants, including the

decedents;

‘‘o. Failed to provide fire safety training including fire drill/escape training

for residents of buildings and apartments in the city of Bridgeport, including

the decedents;

‘‘p. Failed to formulate and implement or ensure implementation of fire

safety/prevention strategies and plans for residents of buildings and apartments in the city of Bridgeport, including the decedents;

‘‘q. Knew or should have known that the fire and/or building inspections

of the above described apartment and/or building in which the decedents

were caused to die were not conducted although such inspections were

required to be performed, including requirements pursuant to . . . [§ 29-

305 (b)].’’

We note, of course, that we are not concerned at this stage of the proceedings with the legal adequacy of any or all of these allegations, or with any

question of causation.

18 Because both parties agree that the defendants’ failure to inspect the

apartment pursuant to § 29-305 (b) constitutes a ministerial act and thus is

not immunized under § 52-557n (a) (2) (B), we confine our analysis in this

section to those remaining allegations of negligence by the defendants that

the plaintiff made in her compliant. See footnote 17 of this opinion.

19 The same process of judgment and appeal is utilized when enforcing

the state building code, and thus enforcement of that code also constitutes

a discretionary act. See General Statutes § 29-252 (d); cf. Segreto v. Bristol,

supra, 71 Conn. App. 857 (‘‘[d]eterminations as to what is reasonable or

proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature’’).

20 The plaintiff does not allege either of the two other recognized exceptions to discretionary act immunity, namely, that the act involved wanton-
ness or intent to injure, or that a statute specifically provides for a cause

of action against the defendants due to their negligence. Doe v. Petersen,

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

21 We note briefly that retroactive application of Haynes is appropriate

in this case. ‘‘[A]s a general rule, judicial decisions apply retroactively. . . .

A decision will not be applied retroactively only if (1) it establishes a new

principle of law, either by overruling past precedent on which the litigants

have relied . . . or by deciding an issue of first impression whose resolution

was not clearly foreshadowed . . . (2) given its prior history, purpose and

effect, retroactive application of the rule would retard its operation; and

(3) retroactive application would produce substantial inequitable results,

injustice or hardship.’’ (Internal quotation marks omitted.) Avolletta v. State,

152 Conn. App. 177, 186 n.2, 98 A.3d 839, cert. denied, 314 Conn. 944, 102

A.3d 1116 (2014). As we are remanding this case to the trial court for proper

consideration under Haynes, none of these considerations is at issue in the

present matter.

22 The majority in Haynes explicitly took no position on whether a defect

that is ‘‘apparent’’ to a municipal defendant required actual knowledge of

the defective condition; see Haynes v. Middletown, supra, 314 Conn. 323

n.15; although Justice Eveleigh’s concurrence stressed his belief that the

language of § 52-557n (a) (1) implied that a form of constructive knowledge

would be sufficient given the circumstances of that case. Id., 338–39 (Eveleigh, J., concurring).It is not clearin Haynes whetherthe testis subjective—

that the defect was actually apparent to the defendant—or objective—that

the defect would be apparent to a reasonable person in the position of the

municipal defendant.

We note that our Supreme Court, in one of its earliest cases, considered

an apparent defect one that an individual would have been presumed to

have observed based on the nature of the defect, implying that a defect that

is apparent does not need to be actually observed. See Sherwood v. Salmon,

5 Day 439, 449–50 (1813). It is the same definition of an ‘‘apparent defect’’

provided for in Black’s Law Dictionary. See Black’s Law Dictionary (9th

Ed. 2009). We surmise, therefore, that the test is an objective one; that so

long as a reasonable person in the position of the municipal defendant

would be able to observe the defect, it is understood that the defect would

be apparent to a municipal defendant. This conclusion also maintains consistency between the apparentness criteria used for determining imminent

harm, and the apparentness criteria used in the third prong of the identifiable

person-imminent harm exception to determine whether an official’s conduct

is likely to subject the identifiable person to that imminent harm. See Edgerton v. Clinton, 311 Conn. 217, 231–32, 86 A.3d 437 (2014) (apparentness

test for third prong of identifiable person-imminent harm exception is objective test).