Haynes v. City of Middletown

• Citation: 283 Ed. Law Rep. 989,306 Conn. 471,50 A.3d 880
• Decision Date: 25 September 2012
• Docket Number: No. 18665.,18665.
• Court: Supreme Court of Connecticut
• Parties: Tracey HAYNES et al. v. CITY OF MIDDLETOWN.

306 Conn. 471

50 A.3d 880

283 Ed. Law Rep. 989

Tracey HAYNES et al.

v.CITY OF MIDDLETOWN.

No. 18665.

Supreme Court of Connecticut.

Argued April 20, 2011.

Decided Sept. 25, 2012.

Hugh D. Hughes, with whom, on the brief, were William F. Gallagher, Michael Oh, New Haven, and Mark A. Balaban, Middletown, for the appellants (plaintiffs).

Matthew Dallas Gordon, with whom were Nicholas N. Ouellette and, on the brief, Ruth Kurien and Deirdre D. Stokes, West Hartford, for the appellee (defendant).

ROGERS, C.J., and PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.^*

PER CURIAM.

The named plaintiff, Tracey Haynes, on her own behalf and on behalf of the plaintiff Jasmon Vereen, her minor son, brought this action against the defendant, the city of Middletown, claiming that Vereen had incurred injuries when a fellow student at Middletown High School pushed him into a broken locker. Responding to the plaintiffs' complaint, the defendant filed its answer and special defense claiming municipal immunity pursuant to General Statutes § 52–557n. Although the plaintiffs filed a reply denying the special defense, the plaintiffs failed to plead that any exception to the defendant's immunity applied to them. See Practice Book § 10–57. After the plaintiffs presented their case, the defendant filed a motion for a directed verdict on which the court heard argument and reserved decision. At the conclusion of the evidence, neither party requested an instruction pertaining to the special defense of municipal immunity or any exceptions thereto. See Practice Book § 16–21. The court instructed the jury on principles of negligence but made no reference to the special defense. After the jury rendered a verdict for Vereen, the defendant filed a motion to set aside the verdict. The trial court heard argument and granted both the motion for a directed verdict and the motion to set aside the verdict on the ground of governmental immunity and rendered judgment for the defendant. The plaintiffs then appealed to the Appellate Court, which affirmed the judgment of the trial court on the alternative ground that “the plaintiffs never made the applicability of the identifiable victim, imminent harm exception to discretionary act immunity a legal issue in the case because they failed to plead it in their complaint or in their reply to the defendant's special defense of governmental immunity.” Haynes v. Middletown, 122 Conn.App. 72, 82, 997 A.2d 636 (2010). We then granted the plaintiffs' petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly affirm the trial court's [order] setting aside the jury's verdict because the plaintiffs failed to plead the imminent harm exception to municipal immunity in their reply?” Haynes v. Middletown, 298 Conn. 907, 3 A.3d 70 (2010).

Because the issue of the plaintiffs' failure to plead the identifiable victim, imminent harm exception to discretionary act immunity in their complaint or in their reply to the defendant's special defense of governmentalimmunity had not been raised or briefed prior to oral argument before the Appellate Court, the plaintiffs argue that the Appellate Court therefore could not decide the case on this basis. “We have long held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide [an appeal] before it on a basis that the parties never have raised or briefed.... To do otherwise would deprive the parties of an opportunity to present arguments regarding...