Haynes v. MiddletownHaynes v. Middletown
In order to explain my reasoning, I look first to the case that heralded the creation of this exception, Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979). In Sestito, the plaintiff was the administratrix of the estate of the decedent, a man who had been shot and killed following an altercation outside of a bar in Groton. Id., 521–23. While the altercation that led to the decedent‘s death, which started out as a brawl between at least four men, was occurring, a municipal police officer was patrolling the relevant area in a police car. Id., 522–23. As the officer continued to drive around the area, he observed a group of seven men, including the decedent, gathering in the parking lot outside of a restaurant. Id. He then observed two other men exit the bar and join the group, one of whom began to argue with the decedent. Id., 523. As the officer continued to drive, he observed the argument devolve into a physical fight. Id. The officer did not approach, but instead proceeded to park his vehicle in a parking lot across from the restaurant. Id. While parking his vehicle, he heard gunshots. Id. The officer notified the police station but, receiving no further instructions, stayed in the lot across from the res
Although Sestito is recognized as the case that created the identifiable person, imminent harm exception as we know it, this was not expressly recognized by the court until it decided Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982). In that case, a municipal police officer had pulled over a driver who was driving erratically. Id., 150–51. Although the facts gave rise to the inference that the driver was intoxicated, the police officer did not arrest the driver, but instead informed him that “if he wanted to keep his driver‘s license, he had better slow down and should let his girlfriend drive.” Id., 150. Approximately one hour later, the driver struck a car being driven by the plaintiff‘s decedent, which ultimately caused the decedent‘s death. Id., 150–51. The plaintiff brought an action against the town of Stonington, claiming that its police officer had acted negligently in failing to enforce the motor vehicle laws of the state of Connecticut against the driver who caused the decedent‘s death. Id., 148–50. The court stated: “There is . . . authority for the proposition that where the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal. . . . We have recognized the existence of such duty in situations where it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm. See Sestito v. Groton, [supra, 178 Conn. 528].” (Citation omitted.) Shore v. Stonington, supra, 153. The court in Shore distinguished Sestito, noting that the plaintiff could not show that the officer “could have been aware that [the driver‘s] conduct threatened an identifiable victim with imminent harm.” Id., 153–54. The court did not explain its reasoning on this point.
In Evon v. Andrews, 211 Conn. 501, 502, 559 A.2d 1131 (1989), the next case in which this court considered the application of the identifiable person, imminent harm exception, the court determined that the exception did not apply in a situation where the city of Waterbury had allegedly been negligent in enforcing various laws, regulations, and codes in the maintenance of “rental dwellings.” As a result, the plaintiff‘s claimed, their decedents had perished in a fire that destroyed a multi-family rental unit that “contained numerous conditions that violated state regulations and state and local build
These aforementioned cases are the precedents that were available to this court at the time that it decided Burns v. Board of Education, supra, 228 Conn. 640. In that case, “the plaintiff school child slipped and fell due to icy conditions on a main accessway of the school campus, during school hours, while the child was compelled by statute to be on those school grounds.” Id., 650. The court distinguished Evon by noting that “this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly ‘treacherous’ area of the campus. Further, the potential for harm from a fall on ice was significant and foreseeable.” Id. In my view, this language in Burns was clearly aimed at distinguishing Evon, in which this court concluded that “the fire could have occurred at any future time or not at all.” Evon v. Andrews, supra, 211 Conn. 508. In Burns, this court also decided that, at least in certain contexts, an individual person may be considered an “identifiable person” if he or she falls within a certain class of victim intended to be the beneficiary of the relevant duty of care. See Burns v. Board of Education, supra, 647–48.
In Purzycki v. Fairfield, supra, 244 Conn. 101, which was decided several years after Burns, the court primarily relied on Burns, noting that in that case, “it was critical to our conclusion that governmental immunity was not a defense that ‘the danger was limited to the duration of the temporary . . . condition . . . [and
The majority now concludes that the distinctions that this court has previously drawn with regard to the issue of whether a harm was “imminent” in cases such as Evon, Burns, and Purzycki were artificial, concluding that “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.” While I agree with the majority that it is folly to consider a harm “imminent” only if it is limited by its nature to a certain time and place, in my opinion the majority‘s solution only throws our jurisprudence regarding this exception into even greater confusion. In the time since Evon, Burns, and Purzycki were decided, this court has reframed the exception into one that contains three distinct elements: “By its own terms, this test [for determining whether discretionary immunity is abrogated by the identifiable person, imminent harm exception] 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 harm.” (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 156 n.7, 95 A.3d 480 (2014). In my view, the conclusion adopted by the majority collapses the apparentness and imminent prongs into one, and it does so in a way that only further tangles a doctrine which is already full of snarls.
For example, under this test, the majority observes that “the risk of injury from an unprotected buzz saw in a classroom occupied by roughhousing fifteen year old children would clearly be imminent.” See footnote 15 of the majority opinion. This suggests, in my mind, that the majority believes that such a set of circumstances would represent an imminent harm as a matter of law. Yet, it concludes, it is up to a jury to determine whether keeping an unguarded locker with a jagged edge in a room full of roughhousing fifteen year old children presents an imminent harm. I do not see a meaningful distinction between these two situations. For that matter, I do not see how either of these two situations poses more of an imminent harm to an identifiable group of people than does, say, a drunk driver on the highway to others driving on the road, and yet, that is what this court decided in Shore v. Stonington, supra, 187 Conn. 152–54. Similarly, in a recent decision,
While I agree with this result, I fail to understand the principled distinction that can be made between this set of circumstances and that faced by this court in cases such as Shore or Edgerton. In my view, the test for determining whether a harm was imminent should be whether it was, or should have been, apparent to the municipal defendant that the dangerous condition was so likely to cause harm in the near future that the defendant had a clear and unequivocal duty to act to prevent the harm. In my view, this test would make it clear that situations such as those presented in Shore and Edgerton present issues of fact to be decided by the jury.
This test would not present an expansion of liability beyond the bounds of