204 Conn. 435 | Conn. | 1987
Following the drowning of a fifteen year old girl, Janet Wu, the plaintiff, administrator of her estate, brought this wrongful death action under General Statutes § 7-465
On appeal, the plaintiff contends that: (1) the trial court’s charge to the jury erroneously perpetuated a distinction between ministerial and discretionary governmental functions when the legislature had abrogated such a distinction by the enactment of General Statutes § 7-465; (2) even if such a distinction survives, the trial court’s charge as to that issue was erroneous, unclear and incomplete; and (3) the trial court incorrectly assigned to the plaintiff the burden of disproving the defense of governmental immunity. The defendants advance on appeal two alternate grounds upon which the judgment may be affirmed; see Practice Book
The jury could reasonably have found the following facts. On August 6,1977, the plaintiff’s decedent, Janet Wu, went to Lake Mohegan with her mother and two brothers for an afternoon of swimming. Lake Mohegan is a fresh water lake and beach owned and operated by the town of Fairfield as a recreational swimming facility.
On the day of the decedent’s death, twenty to thirty swimmers were in the water and four lifeguards were on duty. A buoy line, positioned where the water was approximately three and one-half to four and one-half feet deep, marked the shallow water area. Farther out, a series of unconnected buoys formed the outer limit of the permitted swimming area.
The defendants in this appeal are two municipal employees, lifeguard Aurelie LaPoint and beach captain Gary Burdett. They observed the decedent as a poor swimmer and twice on the day in question warned her to return to the shallow water area after she had ventured beyond the inner buoy line. The last time the defendants saw the decedent, she was standing just inside the inner buoy line in waist-deep water. Shortly thereafter, an approaching storm prompted the lifeguards to ask the swimmers to clear the water. When the decedent did not appear on shore, the lifeguards launched a search of the water. One lifeguard found the body near the base of an underwater slope beyond the shallow water buoy line but within the permitted
The plaintiff instituted this negligence action pursuant to General Statutes § 7-465, which establishes municipal liability for certain acts of employees. “A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee’s duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town’s liability by indemnification.” (Emphasis in original.) Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979). “This is a personal liability requirement that calls for an inquiry independent of the statute itself, an inquiry into the factual matter of individual negligence. ” (Emphasis added.) Id., 528. Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality’s employment relationship with that individual.
An essential element of any negligence action is the establishment of the defendant’s conduct as a proximate cause of the plaintiffs injury. Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982); W. Prosser & W. Keeton, Torts (5th Ed.) § 41, p. 263. “The causal relation between the defendant’s wrongful conduct and the plaintiff’s injuries must be established in order for the plaintiff to recover damages.” Vetre v. Keene, 181 Conn. 136, 139, 434 A.2d 327 (1980). “In Connecticut, the test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries.” Nelson v. Steffens, 170 Conn. 356, 363, 365 A.2d 1174 (1976) (Bogdanski, J., dissenting); see also Hearl v. Waterbury YMCA, supra. Further, it is the plaintiff who bears the burden “to prove an
In the present case, the trial court submitted interrogatories to the jury which were to accompany their verdict. According to the jury’s answers to these interrogatories, the jury found that three of the four non-lifeguard defendants had breached their duties of care but that such breach was not the proximate cause of the decedent’s death.
At trial, the plaintiff introduced no evidence to show what caused the decedent to slip below the water’s surface. When the defendant lifeguards last saw the decedent, she was standing safely within the inner buoy line
Here, the plaintiff presented no evidence other than that the victim perished in an unwitnessed drowning. The plaintiff failed to establish an unbroken sequence of events causally flowing from the defendant lifeguards’ arguably negligent supervision to the decedent’s drowning. We therefore conclude that the jury’s verdict was one they could fairly and reasonably have reached. “On review of an allegedly inadequate verdict the Supreme Court decides only whether, on evidence presented, the jury could fairly reach the conclusion they did . . . .” Vetre v. Keene, supra, 141. In light of our view of the jury’s verdict we decline to set it aside.
There is no error.
In this opinion the other justices concurred.
General Statutes § 7-465 provides in pertinent part: “(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . .”
The four nonlifeguard defendants were the town’s acting director of health, director of recreation, shoreline director, and assistant shoreline director.