Procedural Pitfall in Governmental Immunity Cases

In Governmental Immunity cases, the Appellate Court set forth a new rule of procedure: In the reply to a special defense of governmental immunity, the plaintiff must now plead as a matter in avoidance that he is entitled to an exception to discretionary act immunity under General Statutes § 52-557n (a) (2) (B). Haynes v. Middletown, 122 Conn. App. 72 (2010).

Facts:

1. The plaintiff brought an action against Middletown on behalf of her then minor son, Jasmon Vereen, for personal injuries he suffered as a result of a fellow student pushing him into a locker in the boys’ locker room at Middletown high school.
2. The incident occurred on March 15, 2005, after gym class while the boys were changing back into their street clothes. The boys started to engage in horseplay, swinging each other around and trying to throw each other to the ground. Jasmon was pushed into a broken locker with a jagged, rusty edge that had been in that condition since the fall of 2004.
3. The complaint alleged that the defendant and its agents, servants or employees were negligent and that the action was being brought pursuant to General Statues § 52-557n.
4. The defendant denied the plaintiff’s allegations of negligence and pleaded special defenses of governmental immunity and comparative negligence.
5. The plaintiff replied to the defendant’s special defenses with a general denial.
6. At the close of the plaintiff’s case, the defendant moved for a directed verdict on the basis of governmental immunity. In the course of oral argument on the motion, the plaintiff’s counsel conceded that the defendant’s acts were discretionary, but argued that the identifiable person, imminent harm exception applied. The trial court reserved judgment.
7. The case was then tried to the jury, which rendered a plaintiff’s verdict in the amount of $30,000, reduced by 33% comparative negligence. The trial court’s charge, as well as the jury interrogatories, were silent on both the defense of governmental immunity and the identifiable person, imminent harm exception. Neither party requested these charges, nor were exceptions taken to the charge as given.
8. Thereafter, the trial court granted the defendant’s motion to set aside the verdict and rendered judgment in its favor based on the court’s conclusion that “governmental immunity insulated the [defendant] from the claim and verdict in this case.”
9. The plaintiff appealed from the judgment of the trial court granting the defendant’s motion to set aside the jury verdict.
10. The Appellate Court concluded that the trial court had properly set aside the jury verdict as against the law, albeit for a different reason than that articulated by the trial court. Specifically, the Appellate Court concluded that the plaintiff’s verdict should be set aside because “the defendant specially pleaded and proved that it was entitled to governmental immunity, but the plaintiff[] failed to plead an exception to discretionary act immunity under Section 52-557n (a) (2) (B) in [his] reply to the defendant’s special defense.”

Reasoning:

The general rule is that governments and their agents are immune from liability for acts conducted in the performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statues § 52-557n. The statute sets forth the circumstances under which a municipality will be held liable for damages to a person and also specifies two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal was that found in § 52-557n (a) (2) (B), i.e. for discretionary acts. Because the plaintiff had conceded that the defendant’s actions were discretionary, the doctrine of governmental immunity would have barred the plaintiff’s claims unless an exception to governmental immunity were applicable. The only exception claimed to be applicable was the identifiable victim, imminent harm exception. Accordingly, the Appellate Court held that the plaintiff could prevail on his claim only by pleading and proving the sole relevant exception to discretionary act immunity. However, since the plaintiff filed a general denial (and never moved to amend his reply) to the defendant’s special defense of governmental immunity, the plaintiff “never made the applicability of the identifiable victim, imminent harm exception to discretionary act immunity a legal issue in the case…Without a jury finding that the defendant’s negligence subjected the plaintiff to imminent harm, the plaintiff could not legally prevail on his negligence claim.” A “[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply…..” Practice Book § 10-57. Therefore, the plaintiff was not entitled to judgment in his favor, and the trial court properly set aside the same.

Practice Note:

1. Note that neither the parties, nor the trial court raised the pleading issue that formed the basis of Judge Alvord’s decision.
2. Further note that, in Grady v. Somers, 294 Conn. 324 (2009), the Supreme Court held that the common-law identifiable person, imminent harm exception applies to the discretionary act immunity provided to municipalities in an action brought solely against a municipality pursuant to § 52-557n (a).