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Governmental Immunity Made Easy

Working one's way through the morass of governmental immunity law is a daunting task. In Merritt v. Bethel Police Department, 120 Conn. App. 806, (2010), although the Appellate Court comes down on the side of the municipality because the plaintiff did not sufficiently allege that her son, the decedent, was either a member of an identifiable class of foreseeable victims or an identifiable person subject to imminent harm, the case provides the opportunity to review this area of law.

In an action brought against a municipality pursuant to General Statutes § 52-572n alleging negligence, the town often files a motion to strike on the ground of governmental immunity. The following decision tree demonstrates the analysis that must be applied in these situations:

    1. Common-law: A municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.
    2. General Statutes § 52-557n embodies the common law and provides that: A municipality shall be liable for damages caused by the negligence of the municipality, its agents, officers and employees, except when the negligent act or omission requires "the exercise of judgment or discretion..."
    1. Liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.
    2. Liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or its official for failure to enforce certain laws.
    3. Liability may be imposed when the circumstances make it apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm.
    1. The identifiable person/imminent harm exception has been applied only when the following three elements are all established:
      1. An imminent harm;
      2. An identifiable victim;
      3. A public official to whom it is apparent that his conduct is likely to subject that victim to that harm.
    2. Note that, with respect to the "identifiable victim" element, this element is fulfilled if the plaintiff can prove either
      1. That he was an identifiable individual, or
      2. That he came within a narrowly defined identifiable class of foreseeable victims. In delineating the scope of a foreseeable class of victims exception to governmental immunity, the courts consider numerous criteria including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim.
        1. Note that the only identifiable class of foreseeable victims the Supreme Court has ever recognized was that of schoolchildren attending public schools during school hours.
        2. Whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this exception is ultimately a question of policy.

In Merritt, the decedent was shot and killed by gang members around 1:40 am in the parking lot of the Masonic Temple in Bethel, after they all had attended a party there. The Bethel police department had been previously alerted to the fact that criminal activity had taken place that evening, that a scuffle had broken out at the party and that gang members were present. At the time of the shooting, two Bethel police officers were stationed in the parking lot adjacent to the temple where they were monitoring the activities taking place at the party. After hearing gunshots, the officers responded and found the decedent severely injured. He later died as a result of those injuries.

Because the plaintiff did not allege that the decedent was statutorily mandated or compelled to attend the party at the Masonic Temple, the decedent was not a member of a narrowly defined class of foreseeable victims. Nor was the decedent himself an identifiable person subject to imminent harm. The only case in which our courts have recognized that a plaintiff was potentially an identifiable victim subject to imminent harm was a case in which a police officer watched an ongoing brawl in bar parking lot but did not intervene until one participant had shot and killed the plaintiff. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. The court held that nothing in Merritt demonstrated that the police knew the decedent, knew he was present at the party or that they had any prescient knowledge that he would be shot.