St. Pierre v. Town of Plainfield

• Decision Date: 08 August 2017
• Docket Number: SC 19871
• Citation: 165 A.3d 148,326 Conn. 420
• Court: Connecticut Supreme Court
• Parties: David L. ST. PIERRE v. TOWN OF PLAINFIELD et al.

326 Conn. 420

165 A.3d 148

David L. ST. PIERRE

v.TOWN OF PLAINFIELD et al.

SC 19871

Supreme Court of Connecticut.

Argued May 1, 2017

Officially released August 8, 2017

Mary M. Puhlick, for the appellant (plaintiff).

Thomas R. Gerarde, with whom, on the brief, was Katherine E. Rule, for the appellee (named defendant).

Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and D'Auria, Js.

ROGERS, C.J.

The issue raised in this appeal is whether municipal immunity is abrogated by either the proprietary function exception of General Statutes § 52– 557n¹ or the identifiable person, imminent harm exception. Specifically, we must decide whether there is municipal immunity when a town charges a nominal fee to a private group for reserved use of a public pool and an individual group member slips and falls on accumulated water in the vicinity of that pool. The plaintiff, David L. St. Pierre, appeals from the judgment rendered in favor of the named defendant, the town of Plainfield,² after concluding that no exception to the defendant's general immunity applied.³ The plaintiff claims that the trial court improperly concluded that the defendant was immune from liability because (1) the defendant derived a special corporate profit or pecuniary benefit through its operation of the pool, or (2) the plaintiff constituted an identifiable person subject to imminent harm. We disagree with each of these claims and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. The plaintiff filed this negligence action against the defendant and Eastern Connecticut Rehabilitation Center, Inc. (Eastern); see footnote 2 of this opinion; to recover for injuries he allegedly sustained in an August 26, 2011 fall on wet steps after participating in an aqua therapy session. This session was conducted by Eastern in a pool owned by the defendant, which is located in the defendant's town hall building. The plaintiff alleged that he slipped and fell on the steps, which were covered with approximately one-quarter inch of water, on his way to the men's locker room. None of the defendant's employees witnessed the incident, nor had there been any previous complaints about the condition of the steps.

Since 1994, Eastern, through its manager Penny Allyn, had reserved the pool two to three times per week for one hour sessions to provide aqua therapy services to its rehabilitation patients. Since 2006, Eastern has paid the defendant $50 per reserved hour for the exclusive use of the pool during the sessions.⁴ Participation in the aqua therapy program ranged from two to seven individuals per session. During the reserved times, the defendant provided a lifeguard and remained responsible for the cleaning and general maintenance of the pool. There was no formal contract between the defendant and Eastern. Rather, a one page form letter generally used to make reservations provides the rules of pool use, in addition to listing the usage fee, the time of the reservation, and the party making the reservation.

Eastern is not the only program that utilizes the pool. Myra Ambrogi, the defendant's recreation director, stated in her affidavit that the pool is generally open to the public as well as for organizations that pay the usage fee. Activities held at the pool include swim lessons, open swim periods, and exercise classes.

In discussing the pool's financials, Ambrogi stated in her affidavit that the costs of operating the pool for the fiscal year from July 1, 2011 to July 1, 2012, were $81,315.42 and that total revenue of $75,605.96 was taken in during the same time frame, including the fees from Eastern. Thus, the pool operated at a loss of $5709.46. Ambrogi's figures included operational costs such as the lifeguards' salaries, instructor fees, equipment, pool chemicals and cleaning supplies, but did not include electricity, heat, water, maintenance employees' salaries, or consumable supplies.

The plaintiff filed this action on August 19, 2013, alleging that the defendant had been negligent in various ways and that the plaintiff had been injured as a result. On January 30, 2015, the defendant filed a motion for summary judgment, claiming that municipal immunity applied to preclude the plaintiff's action because any acts or omissions alleged by the plaintiff involved judgment or discretion, the operation of the pool was a governmental function, and no exception to discretionary act immunity had been shown. The plaintiff objected, arguing that municipal immunity did not attach because the defendant's operation of the pool constituted a proprietary function and, in the alternative, that the identifiable person, imminent harm exception to immunity applied. In an August, 2015 memorandum of decision, the trial court agreed with the defendant that it was immune from liability. As to the proprietary function exception, the trial court concluded that the defendant's operation of a municipal pool was a governmental function and did not create a profit for the defendant. In regard to the identifiable person, imminent harm exception, the trial court concluded that the plaintiff was not an identifiable person given his voluntary presence at the aqua therapy program and that the water on and around the pool surfaces did not qualify as an imminent harm. This appeal followed.⁵

On appeal, the plaintiff does not contest that the allegedly negligent acts of the defendant are discretionary in nature and, therefore, are generally entitled to immunity. See Haynes v. Middletown , 314 Conn. 303, 312, 101 A.3d 249 (2014). Consequently, we confine our analysis to whether municipal immunity is abrogated by an exception.

We begin with the standard of review and applicable law. "The standard of review of a trial court's decision granting summary judgment is well established. Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Internal quotation marks omitted.) Cefaratti v. Aranow , 321 Conn. 637, 645, 138 A.3d 837 (2016). Specifically, whether municipal immunity applies is a matter of law for the court to decide when there are no unresolved factual questions material to the issue. Edgerton v. Clinton , 311 Conn. 217, 227, 86 A.3d 437 (2014).

I

The plaintiff claims first that the proprietary function exception applies to abrogate the defendant's immunity. The proprietary function exception is codified in § 52–557n (a) (1) (B), which provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ... negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit ...." (Emphasis added.) The plaintiff contends that the defendant derived a special corporate profit or pecuniary benefit from the operation of its municipal pool because it rented that pool to Eastern, a for-profit entity, for a fee. We disagree.

In Considine v. Waterbury , 279 Conn. 830, 837–48, 905 A.2d 70 (2006), we undertook a comprehensive analysis of § 52–557n (a) (1) (B). We concluded that the statutory provision "codifies the common-law rule that municipalities are liable for their negligent acts committed in their proprietary capacity," as opposed to in their governmental one.⁶ Id., at 844, 905 A.2d 70. Liability for proprietary acts means that a municipality "is liable to the same extent as in the case of private corporations or individuals ...."⁷ (Internal quotation marks omitted.) Id., at 843, 905 A.2d 70.

To determine whether the defendant is subject to such liability in the present case, we analyze whether the defendant derives a special corporate profit or pecuniary benefit from the function of operating its pool, in other words, whether that function is proprietary.⁸

We previously have concluded that, "[i]f a municipality is acting only as the ‘agent or representative of the state in carrying out its public purposes'; Winchester v. Cox, [129 Conn. 106, 109, 26 A.2d 592 (1942) ] ; then it clearly is not deriving a special corporate benefit or pecuniary profit. Two classes of activities fall within the broader category of acting as the agent of the state: ‘[1] those imposed by the [s]tate for the benefit of the general public, and [2] those which arise out of legislation imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large.... For example, the maintenance of the public peace or prevention of disease would fall within the first class; Keefe v. Union, 76 Conn. 160, 166, [56 A. 571 (1903) ] ; while the maintenance of a park system would fall within the second class.’ " Considine v. Waterbury , supra, 279 Conn. at 845–46, 905 A.2d 70. "[T]he second class of activities encompasses functions that appear to be for the sole benefit of a municipality's inhabitants, but nevertheless provide indirect benefits to the general public...