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Victim Not Sufficiently Identifiable to Avoid Governmental Immunity Defense

The Supreme Court held that the doctrine of governmental immunity applied to shield the defendants from liability for the alleged injuries of the plaintiff. The plaintiff acknowledged that the defendants' conduct was discretionary, so the former could prevail only if he fell within one of the recognized exceptions to the doctrine. The court concluded that the plaintiff in Cotto v. Board of Education, 294 Conn. 265 (2009) was not an identifiable person subject to imminent harm because the potential for harm to him was neither sufficiently immediate nor sufficiently certain. In other words, the risk of specific harm to the plaintiff was not sufficiently immediate because any person using the bathroom could have slipped at any time. Thus, it was not apparent to the defendants that their failure to act would likely subject the plaintiff, as an identifiable person, to imminent harm.

Facts:

  1. In 1999, the plaintiff, Jamell Woods Cotto, was working as the director of a summer youth program at the Roberto Clemente School, one of New Haven's public schools.
  2. On June 16, 1999, at approximately 9:45 am, the plaintiff went into one of the bathrooms in the school to look for two program participants (7 and 8 years old). Upon entering the bathroom, Cotto slipped on water and urine that were on the floor. He fell and sustained injuries.
  3. Cotto filed a complaint against the defendants - the board of education of the city and certain public school officials.
  4. The defendants answered and asserted several special defenses including comparative negligence and common-law and statutory governmental immunity pursuant to General Statutes § 52-557n.
  5. The case was tried to the court, which found in favor of the plaintiff. As to the defense of governmental immunity, the trial court specifically found that "the plaintiff was an identifiable individual subject to imminent harm for purposes of the exception to the governmental immunity doctrine."
  6. The Supreme Court reversed the decision of the trial court.

Reasoning:

The common-law and statutory doctrines that determine the tort liability of municipal employees are well established. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: 1) where 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; 2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and, 3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.

The first exception, by its own terms, 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. Failure to establish any one of the three prongs will be fatal to a plaintiff's claim that he comes within this exception. The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals.

Note that the second prong has been expanded to apply not only to identifiable individuals but also to narrowly defined classes of foreseeable victims. Thus far, the only identifiable class of foreseeable victims that our appellate courts have recognized for these purposes is that of schoolchildren attending public schools during school hours.

An individual may be "identifiable" for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition. For the harm to be deemed imminent, the potential for harm must be sufficiently immediate. In fact, "the criteria of identifiable person and imminent harm must be evaluated with reference to each other. 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....For the purposes of the imminent harm exception...it is impossible to be an identifiable person in the absence of any corresponding imminent harm." Our appellate courts have found imminent harm only in the clearest of cases.

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