DAVID L. ST. PIERRE v. TOWN

OF PLAINFIELD ET AL.

(SC 19871)

Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,

Robinson and D’Auria, Js.

Syllabus

The plaintiff sought to recover damages from the defendant town for personal injuries he sustained after falling on wet steps located at the

defendant’s municipal pool. The plaintiff fell after participating in an

aqua therapy session conducted by the defendant E Co., which had paid

the town a nominal hourly fee to reserve the pool two or three times

per week. The town provided a lifeguard during the aqua therapy sessions and was responsible for the cleaning and general maintenance of

the pool. E Co. did not have a formal contract with the town to reserve

the pool, but used a one page form letter that provided basic information

regarding the reservation. The town filed a motion for summary judgment, claiming that municipal immunity precluded the plaintiff’s action

because the alleged acts or omissions involved the town’s judgment or

discretion, the operation of the pool was a government function, and

no exception to municipal discretionary act immunity had been shown.

The plaintiff countered that municipal immunity had been abrogated

either by the exception under the statute (§ 52-577n [a] [1] [B]) providing

that a municipality shall be liable for damages caused by its negligence

in the performance of a proprietary function from which it derives a

special corporate profit or pecuniary benefit, or by the identifiable person, imminent harm exception. The trial court granted the town’s motion

for summary judgment on the ground that the town was immune from

liability, concluding that the operation of the pool was a government

function and that the town had operated the pool at a financial loss.

The court also found that the identifiable person, imminent harm exception did not apply because the plaintiff was voluntarily present at the

aqua therapy program, and the water on and around the pool surfaces

did not qualify as an imminent harm. The plaintiff appealed from the

judgment in favor of the town, claiming that the trial court incorrectly

concluded that the town was immune from liability because it had

derived a special corporate profit or pecuniary benefit from renting the

pool to E Co., a for-profit business, for a fee, or because he constituted

an identifiable person subject to imminent harm. Held:

1. The town’s operation of its municipal pool constituted a governmental

function from which it did not derive a special corporate or pecuniary

benefit so as to abrogate its discretionary act immunity: the town did

not derive a special corporate profit or pecuniary benefit by renting the

pool to E Co. for its private use, as the aqua therapy program fit within

the general public purposes of a municipal pool because it promoted

health and exercise, the fee that the town charged E Co. for use of the

pool was nominal, the total fees collected from all parties renting the

pool did not cover the annual costs of maintaining the pool, the pool

was rented without a formal lease or contract, and the town continued

to provide a lifeguard and maintain responsibility for the general maintenance of the pool; furthermore, the plaintiff could not prevail on his

claim that this court should determine the profitability of the pool by

evaluating the fees paid by only E Co. with respect to the period of

time that E Co. had reserved the pool, as that argument was not raised

before the trial court, and this court has never used that method to

determine whether a municipality derived a profit; moreover, extending

the abrogation of municipal immunity to situations, such as the one

here, in which a town allows the private use of its facilities for a nominal

fee, could expose municipalities to great liability and deter them from

continuing to allow their facilities to be used by outside parties.

2. The identifiable person, imminent harm exception did not abrogate the

town’s municipal immunity, as the plaintiff was not an identifiable person

or a member of an identifiable class of persons for purposes of that

exception; the fact that the plaintiff was not compelled to attend the
aqua therapy sessions provided by E Co., but had voluntarily decided

to use E Co.’s services, precluded this court from concluding that he

was a person or in a group of persons identifiable to the lifeguard on

duty as a potential victim or victims of an imminent harm.

Argued May 1—officially released August 8, 2017

Procedural History

Action to recover damages for personal injuries sustained as a result of defendants’ alleged negligence,

brought to the Superior Court in the judicial district

of Windham, where the court, Boland, J., granted the

named defendant’s motion to strike and granted the

named defendant’s motion for summary judgment and

rendered judgment thereon; thereafter, the court,

Calmar, J., granted the named defendant’s motion for

judgment as to the stricken count of the complaint and

rendered judgment thereon, from which the plaintiff

appealed. Affirmed.

Mary M. Puhlick, for the appellant (plaintiff).

Thomas R. Gerarde, with whom, on the brief, was

Katherine E. Rule, for the appellee (named defendant).
Opinion

ROGERS, C. J. The issue raised in this appeal is

whether municipal immunity is abrogated by either the

proprietary function exception of General Statutes § 52-

557n1 or the identifiable person, imminent harm exception. Specifically, we must decide whether there is

municipal immunity when a town charges a nominal

fee to a private group for reserved use of a public

pool and an individual group member slips and falls on

accumulated water in the vicinity of that pool. The

plaintiff, David L. St. Pierre, appeals from the judgment

rendered in favor of the named defendant, the town of

Plainfield,2 after concluding that no exception to the

defendant’s general immunity applied.3 The plaintiff

claims that the trial court improperly concluded that

the defendant was immune from liability because (1)

the defendant derived a special corporate profit or pecuniary benefit through its operation of the pool, or (2)

the plaintiff constituted an identifiable person subject

to imminent harm. We disagree with each of these

claims and, accordingly, affirm the judgment of the

trial court.

The following undisputed facts and procedural history are relevant to this appeal. The plaintiff filed this

negligence action against the defendant and Eastern

Connecticut Rehabilitation Center, Inc. (Eastern); see

footnote 2 of this opinion; to recover for injuries he

allegedly sustained in an August 26, 2011 fall on wet

steps after participating in an aqua therapy session.

This session was conducted by Eastern in a pool owned

by the defendant, which is located in the defendant’s

town hall building. The plaintiff alleged that he slipped

and fell on the steps, which were covered with approximately one-quarter inch of water, on his way to the

men’s locker room. None of the defendant’s employees

witnessed the incident, nor had there been any previous

complaints about the condition of the steps.

Since 1994,Eastern, through its manager Penny Allyn,

had reserved the pool two to three times per week for

one hour sessions to provide aqua therapy services to

its rehabilitation patients. Since 2006, Eastern has paid

the defendant $50 per reserved hour for the exclusive

use of the pool during the sessions.4 Participation in

the aqua therapy program ranged from two to seven

individuals per session. During the reserved times, the

defendant provided a lifeguard and remained responsible for the cleaning and general maintenance of the

pool. There was no formal contract between the defendant and Eastern. Rather, a one page form letter generally used to make reservations provides the rules of

pool use, in addition to listing the usage fee, the time

of the reservation, and the party making the reservation.

Eastern is not the only program that utilizes the pool.

Myra Ambrogi, the defendant’s recreation director,
stated in her affidavit that the pool is generally open

to the public as well as for organizations that pay the

usage fee. Activities held at the pool include swim lessons, open swim periods, and exercise classes.

In discussing the pool’s financials, Ambrogi stated in

her affidavit that the costs of operating the pool for

the fiscal year from July 1, 2011 to July 1, 2012, were

$81,315.42 and that total revenue of $75,605.96 was

taken in during the same time frame, including the fees

from Eastern. Thus, the pool operated at a loss of

$5709.46. Ambrogi’s figures included operational costs

such as the lifeguards’ salaries, instructor fees, equipment, pool chemicals and cleaning supplies, but did not

include electricity, heat, water, maintenance employees’ salaries, or consumable supplies.

The plaintiff filed this action on August 19, 2013,

alleging thatthe defendant had been negligent in various

ways and that the plaintiff had been injured as a result.

On January 30, 2015, the defendant filed a motion for

summary judgment, claiming that municipal immunity

applied to preclude the plaintiff’s action because any

acts or omissions alleged by the plaintiff involved judgment or discretion, the operation of the pool was a

governmental function, and no exception to discretionary act immunity had been shown. The plaintiff

objected, arguing that municipal immunity did not

attach because the defendant’s operation of the pool

constituted a proprietary function and, in the alternative, that the identifiable person, imminent harm exception to immunity applied. In an August, 2015

memorandum of decision, the trial court agreed with

the defendant that it was immune from liability. As

to the proprietary function exception, the trial court

concluded that the defendant’s operation of a municipal

pool was a governmental function and did not create

a profit for the defendant. In regard to the identifiable

person, imminent harm exception, the trial court concluded that the plaintiff was not an identifiable person

given his voluntary presence at the aqua therapy program and thatthe water on and around the pool surfaces

did not qualify as an imminent harm. This appeal

followed.5

On appeal, the plaintiff does not contest that the

allegedly negligent acts of the defendant are discretionary in nature and, therefore, are generally entitled to

immunity. See Haynes v. Middletown, 314 Conn. 303,

312, 101 A.3d 249 (2014). Consequently, we confine our

analysis to whether municipal immunity is abrogated

by an exception.

We begin with the standard of review and applicable

law. ‘‘The standard of review of a trial court’s decision

granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall

be rendered forthwith if the pleadings, affidavits and

any other proof submitted show that there is no genuine
issue as to any material fact and that the moving party

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

a motion for summary judgment, the trial court must

view the evidence in the light most favorable to the

nonmoving party. . . . The party 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.

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

the defendant’s motion for summary judgment is plenary. . . . 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.’’(Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016).

Specifically, whether municipal immunity applies is a

matter of law for the court to decide when there are

no unresolved factual questions material to the issue.

Edgerton v. Clinton, 311 Conn. 217, 227, 86 A.3d 437

(2014).

I

The plaintiff claims first that the proprietary function

exception applies to abrogate the defendant’s immunity. The proprietary function exception is codified in

§ 52-557n (a) (1) (B), which provides in relevant part:

‘‘Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person

or property caused by . . . negligence in the performance of functions from which the political subdivision

derives a special corporate profit or pecuniary benefit

. . . .’’ (Emphasis added.) The plaintiff contends that

the defendant derived a special corporate profit or pecuniary benefit from the operation of its municipal pool

because itrented that poolto Eastern, a for-profit entity,

for a fee. We disagree.

In Considine v. Waterbury, 279 Conn. 830, 837–48,

905 A.2d 70 (2006), we undertook a comprehensive

analysis of § 52-557n (a) (1) (B). We concluded that the

statutory provision ‘‘codifies the common-law rule that

municipalities are liable fortheir negligent acts committed in their proprietary capacity,’’ as opposed to in their

governmental one.6

Id., 844. Liability for proprietary

acts means that a municipality ‘‘is liable to the same

extent as in the case of private corporations orindividuals . . . .’’7

(Internal quotation marks omitted.) Id., 843.

To determine whether the defendant is subject to such

liability in the present case, we analyze whether the

defendant derives a special corporate profit or pecuniary benefit from the function of operating its pool, in

other words, whether that function is proprietary.8

We previously have concluded that, ‘‘[i]f a municipality is acting only as the ‘agent or representative of the

state in carrying out its public purposes’; Winchester

v. Cox, [129 Conn. 106, 109, 26 A.2d 592 (1942)]; then
it clearly is not deriving a special corporate benefit or

pecuniary profit. Two classes of activities fall within

the broader category of acting as the agent of the state:

‘[1] those imposed by the [s]tate for the benefit of the

general public, and [2] those which arise out of legislation imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for

the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the

benefit of the people at large. . . . For example, the

maintenance of the public peace or prevention of disease would fall within the first class; Keefe v. Union,

76 Conn. 160, 166, [56 A. 571 (1903)]; while the maintenance of a park system would fall within the second

class.’ ’’ Considine v. Waterbury, supra, 279 Conn. 845–

46. ‘‘[T]he second class of activities encompasses functions that appear to be for the sole benefit of a

municipality’s inhabitants, but nevertheless provide

indirect benefits to the general public because the activities were meant to improve the general health, welfare

or education of the municipality’s inhabitants.’’ Id., 846.

Historically, we have concluded that operating a

municipal pool constitutes a governmental function.

Hannon v. Waterbury, 106 Conn. 13, 17–18, 136 A. 876

(1927). In Hannon, this court recognized that municipalities operating swimming pools are performing a

governmental function, because the municipality is

effecting the ‘‘education of the people of the city in

teaching them to swim and thus guarding their lives

against the accident of drowning, promoting a most

useful and beneficial form of exercise, and teaching

cleanliness of habits of living and thus preserving their

health.’’ Id., 18.

The General Statutes support Hannon’s holding. General Statutes § 7-130b authorizes municipalities to create recreational authorities or departments. Such

bodies are ‘‘deemed to be . . . instrumental[ities] exercising public and essential government functions to provide for the public health and welfare . . . .’’9 General

Statutes § 7-130d. Municipal recreational authorities or

departments are statutorily empowered to construct

and operate a variety of projects; see General Statutes

§ 7-130d (c); including, specifically, ‘‘swimming pools.’’

General Statutes § 7-130a (d).

The plaintiff claims that the nature of the use of the

pool in this case is distinguishable from that at issue

in Hannon. Specifically, he argues that the defendant

here is renting the pool to Eastern for use in its business,

but the defendant city in Hannon served children and

individuals via swim lessons. In the plaintiff’s view,

rental of municipal property to a private party is a

proprietary action. To determine whether renting a

municipal pool to a business for private use constitutes

a change in the nature of the activity sufficient to abrogate immunity, we must review our case law on the
charging of fees for use of a municipal property.

We have concluded previously that a ‘‘municipality

may . . . charge a nominal fee for participation in a

governmental activity and it will not lose its governmental nature as long as the fee is insufficient to meet the

activity’s expenses.’’ Considine v. Waterbury, supra,

279 Conn. 847. In Hannon, for example, we concluded

that charging nominal fees for swimming lessons10 did

not alter the governmental nature of running a municipal swimming pool. Hannon v. Waterbury, supra, 106

Conn. 18–19. We reasoned that the ‘‘money taken in did

not pay the entire expense of operating the pool,’’ in

particular, by failing to ‘‘pay for the large amount of

electricity used in operating the motor, drying the hair

and lighting, coal, water, chemicals used in the water,

[as well as] the rental value or maintenance of the part

of the building used and the equipment . . . .’’ Id., 15.

Because the pool actually was operated at a loss, the

fees charged did not constitute a ‘‘profit,’’ but, rather,

‘‘the charge was a mere incident of the public service

rendered in the performance of a governmental duty.’’

Id., 18; see also Carta v. Norwalk, 108 Conn. 697, 702,

145 A. 158 (1929) (to qualify as proprietary function

‘‘operation must contemplate and involve revenue of

such amount and nature as to signify a profit resulting

thereform, as distinguished from the imposition of such

a nominal or small fee or charge as may fairly be

regarded as a mere incident of the public service

rendered’’).

In contrast, a ‘‘municipality generally has been determined to be acting for its own special corporate benefit

or pecuniary profit where it engages in an activity ‘for

the particular benefit of its inhabitants’ . . . or if it

derives revenue in excess of its costs from the activity.’’11 (Citations omitted.) Considine v. Waterbury,

supra, 279 Conn. 847. Specifically, a municipality may

act in its proprietary capacity by ‘‘leas[ing] municipal

property to private individuals.’’ Id., 849 (citing cases).

Nevertheless, we have cautioned against treating

‘‘actual pecuniary profit’’ alone as determinative of

whether a function is proprietary because it could

encourage municipalities to skirt tort liability by

avoiding ‘‘ ‘implementation of cost-efficient measures

[while] encourag[ing] deficit spending’ ’’ to maintain a

loss in the financial year. Id., 847 n.11. Still, a proprietary

function has been found where the municipality is ‘‘act

[ing] ‘very much like private enterprise . . . .’ ’’ Id., 848,

quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984)

§ 131, p. 1053.

The following examples are illustrative. In renting

out part of its municipal golf course to a single private

party for use as a restaurant for approximately $29,000

per year, the defendant city in Considine v. Waterbury,

supra, 279 Conn. 833, 850–51, was deemed to have acted

in a proprietary capacity because such a lease ‘‘stands
in stark contrast from those activities in which this

court has determined that the municipality was acting

as the state’s agent for the direct or indirect benefit of

the general public.’’ The city’s collection of ‘‘a substantial rent [from] a private party to operate a business

. . . very much resembles private enterprise’’ in its

‘‘nature and character.’’(Emphasis added.)Id., 851. Similarly, the annual rental of a municipal beach pavilion

for a fee of $2500 in 1926 to a private party constituted

prima facie evidence of a profit for the defendant city.

Carta v. Norwalk, supra, 108 Conn. 701–702; see also

Blonski v. Metropolitan District Commission, 309

Conn. 282, 284, 71 A.3d 465 (2013) (defendant liable

because conduct with respect to gate that injured plaintiff inextricably linked to defendant’s proprietary water

supply operation); Martel v. Metropolitan District

Commission, 275 Conn. 38, 55–56, 881 A.2d 194 (2005)

(defendant immune from liability, as conduct not connected to proprietary operation of for-profit water supply company).

Evaluating the plaintiff’s claims against this legal

background, we conclude that the defendant’s operation of its municipal pool does not constitute a proprietary function so as to abrogate its discretionary act

immunity. First, the defendant’s rental of its pool to an

aqua therapy program two or three times a week fits

within the general public purposes espoused in Hannon. By allowing use of the pool, the defendant is promoting health and exercise for those using the pool,

purposes that are entirely within Hannon’s framework.

See Hannon v. Waterbury, supra, 106 Conn. 18. Second,

the fee charged to Eastern is, like the fees charged in

Hannon, nominal, and the total fees collected from all

parties reserving the pool do not cover the costs of

maintaining the pool. Instead, in the year in question,

the pool’s expenses exceeded revenues by more than

$5000, even without considering such things as electricity and water costs. This undercuts the plaintiff’s assertion that the municipality is acting like a ‘‘private

enterprise.’’ (Internal quotation marks omitted.) Considine v. Waterbury, supra, 279 Conn. 848. Most private

enterprises do not operate at a loss, or they will cease

to exist. Also, the defendant’s nominal fee of $50 per

hour had remained stable for several years, further suggesting that profit is not a goal; cf. id., 833 (noting that

rent charged to private party increased annually as lease

term); but, rather, that the fee ‘‘was a mere incident of

the public service rendered in the performance of a

governmental duty.’’ Hannon v. Waterbury, supra, 18.

Third, unlike in Considine and Carta v. Norwalk, supra,

108 Conn. 699, private parties, like Eastern, who reserve

the pool do so without a formal lease or contract and

for only short periods of time. Aside from the equivalent

of a sign-up sheet that Eastern’s manager fills out and

the consistency with which Eastern has used the pool,

nothing in Eastern’s reservation of the pool resembles a
binding commercial lease. As mentioned, the defendant

continues to provide a lifeguard during reserved times

and to retain responsibility for the general maintenance

of the pool.

The plaintiff claims that, even if no actual profit was

gained by the defendant’s operation of the pool overall,

this court should determine profitability by evaluating

the fees paid by Eastern with reference to the periods

of time that Eastern reserved the pool, and conclude

that Eastern’s fee for its use exceeded the costs of

operating the pool for those periods of time. Specifically, the plaintiff reasons that, annually, Eastern is

contributing $7800 for 156 hours of use, an amount that

exceeds the costs attributable to the pool forthat period

of time. This argument was not raised in the trial court

and should not be raised for the first time on appeal,

particularly in the absence of an undisputed factual

record to support it.12 See, e.g., White v. Mazda Motor

of America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079

(2014). In any event, we have never before held that,

to determine whether a municipality derives a profit, the

measure of revenues to expenses should be determined

based on the exact proportion of time a private company uses a facility relative to the yearly costs of

operating that facility. Because the plaintiff has not

provided any authority in support of this inventive

approach to evaluating profitability, we decline to

adopt it.

It bears mentioning that extending the abrogation of

municipal immunity to any situation in which a town

allows the private use of its facilities for a nominal fee

potentially could expose municipalities to great liability. In the face of such a threat, no rational municipality

would continue to allow its municipal facilities to be

used by outside parties. This would be detrimental to

the enjoyment and use of municipal facilities by any

smaller group of the general public that might wish to

use these facilities. Under such restrictions, private,

nonprofit, and other independent groups would be prevented from utilizing public parks, softball fields and,

yes, pools. On the basis of the foregoing analysis, we

conclude that the defendant’s operation of the municipal pool constitutes a governmental function, and, by

operating the pool, the defendant does not derive a

special corporate profit or pecuniary benefit.

II

We turn next to whether any other recognized exception to immunity is in play. Three exceptions to discretionary act immunity are recognized,13 but only one is

relevant here: the identifiable person, imminent harm

exception. Pursuant to this exception, liability is not

precluded 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 . . . .’’ (Internal quotation marks omitted.) Doe
v. Petersen, 279 Conn. 607, 615–16, 903 A.2d 191 (2006).

The plaintiff contends that he qualifies as an identifiable

person subject to imminent harm by virtue of his presence at the defendant’s pool for the aqua therapy session provided by Eastern. Specifically, he contends that

he was an identifiable individual to the on duty lifeguard

employed by the defendant. We disagree that the plaintiff qualifies as an identifiable person and, therefore,

conclude that this exception does not apply to abrogate

the defendant’s municipal immunity.

‘‘[T]he identifiable person, imminent harm exception

to qualified immunity for an employee’s discretionary

acts is applicable in an action brought under § 52-557n

(a) to hold a municipality directly liable for those acts.’’

Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684

(2009). The exception requires three elements: ‘‘(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

. . . . We have stated previously that this exception to

the general rule of governmental immunity for employees engaged in discretionary activities has received very

limited recognition in this state. . . . If the plaintiffs

fail to establish any one of the three prongs, this failure

will be fatal to their claim that they come within the

imminent harm exception.’’ (Internal quotation marks

omitted.) Strycharz v. Cady, 323 Conn. 548, 573–74,

148 A.3d 1011 (2016).14

‘‘An allegedly identifiable person must be identifiable

as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in

terms of its impact on a specific identifiable person.’’

(Internal quotation marks omitted.) Cotto v. Board of

Education, 294 Conn. 265, 276, 984 A.2d 58 (2009).

Generally, we have held that a party is an identifiable

person when he or she is compelled to be somewhere.

See Strycharz v. Cady, supra, 323 Conn. 575–76 (‘‘[o]ur

decisions underscore . . . 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]). Accordingly, ‘‘[t]he

only identifiable class of foreseeable victims that we

have recognized . . . is that of schoolchildren

attending public schools during school hours because:

they were intended to be the beneficiaries 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 consideration in the face

of dangerous conditions.’’ (Internal quotation marks

omitted.) Id., 576.
Outside ofthe schoolchildren context, we have recognized an identifiable person under this exception in

only one case that has since been limited to its facts.15

Beyond that, although we have addressed claims that

a plaintiff is an identifiable person or member of an

identifiable class of foreseeable victims in a number of

cases, we have not broadened our definition.16 See, e.g.,

Cotto v. Board of Education, supra, 294 Conn. 267–68,

279 (director of community based summer youth program located in public school was not identifiable person when he slipped in wet bathroom because ‘‘then

so was every participant and supervisor in the Latino

Youth program who used the bathroom,’’ and anyone

‘‘could have slipped at any time’’ [emphasis in original]);

see also Coe v. Board of Education, 301 Conn. 112,

119–20, 19 A.3d 640 (2011) (student injured while

attending middle school graduation dance occurring off

school grounds did not qualify as member of identifiable

class of foreseeable victims because she was not

required to attend dance); Grady v. Somers, supra, 294

Conn. 328, 355–56 (permit holderinjured atrefuse transfer station owned by town did not qualify as identifiable

person despite being paid permit holder and resident

of town); Durrant v. Board of Education, 284 Conn.

91, 96, 104, 108, 931A.2d 859 (2007)(mother who slipped

and fell while picking up her child from optional afterschool day care program run in conjunction with public

school did not qualify as member of identifiable class

of foreseeable victims because program was optional);

Prescott v. Meriden, 273 Conn. 759, 761–62, 764–65,

873 A.2d 175 (2005) (parent voluntarily attending high

school football game to watch his child play was not

member of identifiable class of foreseeable victims

because he was not compelled to attend, school officials

lacked similar duties of care to him as to child given his

status as parent, and exception is ‘‘narrowly defined’’

[internal quotation marks omitted]); Evon v. Andrews,

211 Conn. 501, 508, 559 A.2d 1131 (1989) (‘‘[t]he class

of possible victims of an unspecified fire that may occur

at some unspecified time in the future is by no means

a group of ‘identifiable persons’ ’’).

In the present case, the plaintiff was in no way compelled to attend the aqua therapy sessions provided by

Eastern. Instead, he voluntarily decided to use Eastern’s

services. Under established case law, this choice precludes us from holding that the plaintiff was an identifiable person or a member of an identifiable class of

persons. As the identifiable person, imminent harm

exception requires conjunctive proof of both, our determination that the plaintiff does not qualify as an identifiable person ends our analysis, and we need not consider

whether an imminent harm existed on these facts.

The judgment is affirmed.

In this opinion the other justices concurred.

1 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 . . . (B) negligence in the

performance of functions from which the political subdivision derives a

special corporate profit or pecuniary benefit . . . . (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.’’

2 Eastern Connecticut Rehabilitation Center, Inc., was also named as a

defendant in this action. Because the plaintiff appealed after the court

disposed of all claims in this action against the town of Plainfield; see

Practice Book § 61-3; and Eastern Connecticut Rehabilitation Center, Inc.,

is not a party to this appeal, we refer in this opinion to the town of Plainfield

as the defendant.

3 The plaintiff alleged two counts against the defendant, one pursuant to

§ 52-557n and the other pursuant to General Statutes § 7-465, a municipal

indemnification statute. The trial court struck the § 7-465 count because the

plaintiff did not identify a town employee for whom indemnification was

sought. See Altfeter v. Naugatuck, 53 Conn. App. 791, 799, 732 A.2d 207

(1999). After the plaintiff failed to replead his § 7-465 claim in a viable

fashion, the trial court rendered judgment on that claim in the defendant’s

favor. Only the § 52-557n count is at issue in this appeal.

4 Eastern now pays the defendant $60 for each reserved hour of use.

5 The plaintiff appealed to the Appellate Court, and this court transferred

the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-1.

6

‘‘[A] municipal government is viewed as having a double function, first,

the proprietary or corporate function, and, second, the governmental function as the arm or agent of the state. Sovereign immunity protects sovereign

governments, such as states, and municipalities when acting as agents of

the state, but not municipal corporations acting on their own behalf.’’ 18

E. McQuillin, Municipal Corporations (3d Ed. Rev. 2003) § 53.23, p. 381.

7 We have acknowledged that ‘‘[w]hen a governmental entity engages in

conduct forits own corporate benefitin a mannerthat poses an unreasonable

risk of harm to others, we can perceive of no reason why it should not be

held responsible for all of the consequences of that conduct, just as a private

person would be.’’ Blonski v. Metropolitan District Commission, 309 Conn.

282, 295–96, 71 A.3d 465 (2013).

8 At oral argument, the plaintiff suggested using separate definitions for

special corporate profit and pecuniary benefit; however, this court analyzed

those two phrases together in Considine, and we see no reason to waver

from that analysis today.

9 According to Ambrogi’s affidavit, the swimming pool at issue in this case

is operated by the defendant and its recreation department.

10 The defendant in Hannon charged ten cents per lesson for children and

twenty cents for adults. Hannon v. Waterbury, supra, 106 Conn. 14.

11 We do not read Considine as suggesting that, simply because an activity

is offered only to a municipality’s residents, the municipality necessarily

loses its immunity. Rather, even in such circumstances, activities that are

meant to improve the general health, welfare or education of the municipality’s inhabitants are deemed to indirectly benefit the general public and,

thus, constitute activities performed as an agent of the state. Considine v.

Waterbury, supra, 279 Conn. 846. The distinction is not implicated in this

case, however, because the defendant permitted private groups to reserve

use of the pool without including the residency information of their individual group members.

12 For example, the record does not reveal the total number of hours that

the pool is available in a year. Moreover, as previously noted, the expenses

identified by the defendant for running the pool do not include all expenses

pertaining to the pool, but specifically exclude the costs of electricity, heat,

water, maintenance employees’ salaries, and consumable supplies.

13 Liability for a municipality’s discretionary act is not precluded when

(1) ‘‘the alleged conduct involves malice, wantonness or intent to injure’’; (2)

‘‘a statute provides for a cause of action against a municipality or municipal

official for failure to enforce certain laws’’; or (3) ‘‘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 . . . .’’ (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607,

615–16, 903 A.2d 191 (2006).

14 We have previously held that the identifiable person, imminent harm
exception ‘‘applies in an action brought directly against [a] municipalit[y]

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

officer of the municipality also is a named defendant.’’ Grady v. Somers,

supra, 294 Conn. 348; see Benedict v. Norfolk, 296 Conn. 518, 523, 997

A.2d 449 (2010) (citing Grady for proposition that action may name only

municipality as defendant and claim identifiable person, imminent harm

exception). Thus, we address this issue despite the lack of a claim against

a specific municipal employee.

15 Specifically, prior to the adoption of the current three-pronged identifiable person, imminent harm analysis, we concluded that an identifiable

person subject to imminent harm existed among a group of intoxicated

individuals who were arguing and scuffling in a parking lot when a police

officer who spotted them failed to intervene until he heard a gunshot. Sestito

v. Groton, 178 Conn. 520, 522–24, 423 A.2d 165 (1979). This holding, however,

has been limited to its facts. Edgerton v. Clinton, supra, 311 Conn. 240.

Even if its holding was not so limited, Sestito would not apply in the present

case because, in contrast to the circumstances in Sestito, no evidence in

the record supports the plaintiff’s claim that he was actually identified to

a town official in connection with the alleged harm.

16 A recent Appellate Court decision, Brooks v. Powers, 165 Conn. App.

44, 138 A.3d 1012 (2016), cert. granted, 322 Conn. 907, 143 A.3d 603 (2016),

is cited by the plaintiff to support his contention that he is an identifiable

victim within the scope of this exception. It was not disputed in Brooks,

however,that the decedent was an identifiable person. This court has granted

the defendant’s petition for certification to appeal in Brooks, limited to the

issue of whetherthe AppellateCourt properly applied the identifiable person,

imminent harm standard and concluded that the harm at issue was imminent.

Brooks v. Powers, 322 Conn. 907, 143 A.3d 603 (2016). We have examined

the opinion of the Appellate Court in that case and conclude that its facts

are highly distinguishable from those of the present case. By so observing, we

do not intend to express any opinion as to the merits of that pending appeal.