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SPENCER JAHN v. BOARD OF EDUCATION OF THE
TOWN OF MONROE ET AL.
(AC 35997)
Lavine, Keller and Schaller, Js.
Argued May 14—officially released September 9, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Sommer, J.)
Marc J. Ubaldi, for the appellant (plaintiff).
Mark A. Perkins, for the appellees (defendants).
Opinion
KELLER, J. In this negligence action, the plaintiff,
Spencer Jahn, appeals from the decision of the trial
court granting summary judgment in favor of the defen-
dants, Board of Education of the Town of Monroe
(board) and Thomas Harkins, the head coach of the
swim team at Masuk High School in Monroe. The plain-
tiff claims that the court erred in granting the defen-
dants’ motion for summary judgment on the basis of
governmental immunity. The plaintiff argues that sum-
mary judgment was improperly granted as there was a
genuine issue of material fact as to whether, at the time
of his injury, he was an identifiable person subject to
imminent harm, a recognized exception to governmen-
tal immunity.1 We disagree and affirm the judgment of
the trial court.
The court’s memorandum of decision describes the
undisputed factual background relevant to the plain-
tiff’s appeal. ‘‘On December 19, 2012, the plaintiff . . .
a member of the boys’ swimming team at Masuk High
School in Monroe . . . filed a one count complaint
sounding in negligence against the defendants . . . .
The plaintiff’s central claim [was] that Harkins, by fail-
ing to properly supervise warm-up drills conducted by
the swimming team prior to a swim meet, subjected
the plaintiff to imminent harm.
‘‘In his complaint, the plaintiff allege[d] the following
facts. On December 17, 2010, at approximately 3:30
p.m., the plaintiff was participating in warm-up drills
at the direction of Harkins prior to a swimming competi-
tion at Masuk High School. Specifically, the defendant
had directed the members of the swimming team to
practice their racing starts by diving into the pool and
swimming several lengths. Harkins did not, however,
personally supervise the drills nor did he appoint
another individual to do so. Pursuant to Harkins’ previ-
ous instruction, the plaintiff dove into the pool and
swam several lengths before turning around and head-
ing back to the pool wall. At the same time, another
member of the swimming team2 dove into the pool,
striking the plaintiff and causing him several severe
injuries, including injuries to the plaintiff’s head and
neck.
‘‘The plaintiff allege[d] that at all relevant times Har-
kins was acting as the agent or employee of the [board]
and was responsible for supervising the activities of
the swimming team. The plaintiff allege[d] further that
his injuries were caused by the negligence of Harkins
in that he (1) left the swimming team unsupervised
during the warm-up drill, (2) directed the team to per-
form a drill that was not safe because multiple swim-
mers were permitted to dive into the same lane, and
(3) failed to ensure that a coach was present during
the drill to indicate when it was safe for swimmers to
dive into the pool. The plaintiff also allege[d] that, by
virtue of being a student at Masuk High School, he
was an identifiable person subject to imminent harm.’’
(Footnotes altered.)
On March 27, 2013, the defendants filed an answer
and three special defenses, including the contributory
negligence of the plaintiff; common-law governmental
immunity as to Harkins, a municipal employee; and
governmental immunity as to the board, as provided
by General Statutes § 52-557n.3 The plaintiff did not file
a reply to the defendants’ special defenses.
The defendants filed a motion for summary judgment
on May 1, 2013. Therein, the defendants argued (1)
‘‘there are no genuine issues of material fact . . . as
to the fact that the defendants are immune from liability
under the [doctrine] of governmental immunity,’’ and,
in the alternative, (2) Harkins ‘‘is not a real party at
interest in this lawsuit.’’4 The defendants’ motion was
accompanied by a memorandum of law and three affida-
vits: that of Harkins; that of John DeGennaro, the direc-
tor of athletics at Masuk High School; and that of
Thomas Jurzynski, the assistant coach of the boys’ swim
team.5 On June 17, 2013, the plaintiff filed an objection
to the motion for summary judgment, accompanied by
a memorandum of law and an affidavit by the plaintiff.
The court heard oral argument on June 18, 2013, and
filed a written memorandum of decision granting the
motion for summary judgment on August 2, 2013. The
court concluded that there was no genuine issue of
material fact that the doctrine of governmental immu-
nity was applicable because (1) Harkins’ conduct as a
swim coach and the board’s conduct in supervising him
were public and discretionary, rather than ministerial
acts, and (2) the identifiable person-imminent harm
exception to the doctrine of governmental immunity
did not apply to the plaintiff. On appeal, the plaintiff
challenges only the court’s conclusion that the identifi-
able person-imminent harm exception does not apply
to him.
We begin with the relevant standard of review con-
cerning motions for summary judgment. ‘‘In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The test is whether a party would be
entitled to a directed verdict on the same facts. . . .
A motion for summary judgment is properly granted if
it raises at least one legally sufficient defense that would
bar the plaintiff’s claim and involves no triable issue of
fact. . . . Our review of the trial court’s decision to
grant a motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Thivierge v.
Witham, 150 Conn. App. 769, 773, 93 A.3d 608 (2014).
‘‘[Practice Book § 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
. . . Once the moving party has presented evidence
in support of the motion for summary judgment, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue
. . . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book [§ 17-45].’’ (Internal quotation
marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.
App. 700, 704–705, 807 A.2d 968, cert. denied, 262 Conn.
915, 811 A.2d 1291 (2002).
We briefly review the doctrine of municipal govern-
mental immunity in Connecticut to understand the con-
text of the plaintiff’s claim. ‘‘At common law, a
municipality generally was immune from liability for
its tortious acts, but its agents and employees faced
the same personal tort liability as private individuals.
. . . In the early twentieth century, our courts extended
qualified immunity to municipal employees as well.
. . . Eventually, the personal liability of public officers
acting in the scope of their office came to depend on
whether the acts or omissions in question were discre-
tionary or ministerial in nature. . . . In 1986, our legis-
lature enacted § 52-557n, which allows a municipality
to be held liable for the negligent acts of its employees
under certain circumstances. . . . Under the relevant
statutory provisions, a municipality’s liability in negli-
gence for its employees’ acts hinges on the same minis-
terial-discretionary dichotomy.’’ (Citations omitted.)
Thivierge v. Witham, supra, 150 Conn. App. 774.
‘‘The issue of governmental immunity is simply a
question of the existence of a duty of care, and this
court has approved the practice of deciding the issue
of governmental immunity as a matter of law.’’ (Internal
quotation marks omitted.) Silberstein v. 54 Hillcrest
Park Associates, LLC, 135 Conn. App. 262, 268, 41 A.3d
1147 (2012).
The availability of governmental immunity as a
defense depends on two factors: (1) whether the
employee’s action was public or private in nature, and
(2) whether the employee was engaged in a discretion-
ary or governmental act, versus a ministerial act. See
Violano v. Fernandez, 280 Conn. 310, 334–35, 907 A.2d
1188 (2006). ‘‘[T]he test to discern between a public
and private duty is as follows: [i]f the duty imposed
upon the public official by the statute is of such a nature
that the performance of it will affect an individual in a
manner different in kind from the way it affects the
public at large, the statute is one which imposes upon
the official a duty to the individual, and if the official
is negligent in the performance of that duty he is liable
to the individual.’’ (Emphasis added; internal quotation
marks omitted.) Id., 333. In Couture v. Board of Educa-
tion, 6 Conn. App. 309, 313, 505 A.2d 432 (1986), this
court held that the board of education’s sponsoring of
a football game was a public duty. In reaching this
conclusion, this court opined: ‘‘Pursuant to their duty
to provide public education, the town boards are given
substantial discretion to determine educational policy.
. . . Included in this authority is the power to decide
that sporting events are a necessary or desirable part
of the town’s educational program.’’ (Citation omitted.)
Id., 313.
The second factor to be determined is whether the
official acts or omissions are ministerial or discretion-
ary. This is normally a question of fact, ‘‘although there
are cases in which it is apparent from the complaint that
the alleged negligent actions or omissions necessarily
involved the exercise of judgment and were discretion-
ary as a matter of law.’’ Haynes v. Middletown, 122
Conn. App. 72, 79, 997 A.2d 636 (2010), rev’d on other
grounds, 306 Conn. 471, 50 A.3d 880 (2012). In this case,
the plaintiff concedes that the defendants’ actions were
discretionary in nature. Specifically, the plaintiff’s
objection to the defendants’ motion for summary judg-
ment stated: ‘‘The plaintiff acknowledges . . . that the
conduct he alleges would likely be considered discre-
tionary acts.’’ In the plaintiff’s appellate brief, he reaf-
firmed this position, conceding: ‘‘The statements [made
in the affidavits proffered by the defendants] are also
sufficient, at this stage, to establish that the acts or
omissions complained of were discretionary in nature.’’
In Edgerton v. Clinton, 311 Conn. 217, 86 A.3d 437
(2014), our Supreme Court explained the public policy
rationale for the doctrine of governmental immunity
as it applies today. ‘‘Affording immunity to municipal
officers performing discretionary acts serves the policy
goal of avoiding expansive exposure to liability, which
would cramp the exercise of official discretion beyond
the limits desirable in our society. . . . Discretionary
act immunity reflects a value judgment that—despite
injury to a member of the public—the broader interest
in having government officers and employees free to
exercise judgment and discretion in their official func-
tions, unhampered by fear of second-guessing and retal-
iatory lawsuits, outweighs the benefits to be had from
imposing liability for that injury. . . . In contrast,
municipal officers are not immune from liability for
negligence arising out of their ministerial acts, defined
as acts to be performed in a prescribed manner without
the exercise of judgment or discretion. . . . This is
because society has no analogous interest in permitting
municipal officers to exercise judgment in the perfor-
mance of ministerial acts.’’ (Citation omitted; internal
quotation marks omitted.) Id., 229–30.
In conducting its thorough and well reasoned analysis
of governmental immunity, the trial court first con-
cluded that the negligence alleged by the plaintiff in his
complaint involved discretionary and public acts on
the part of the board and its employees. The court
appropriately relied on the uncontroverted evidence
submitted by the defendants that established that their
actions in running the after school swim program were
not prescribed by any state or school policy and were
designed for the benefit of students in general, and not
the individual plaintiff. The evidence established that
the defendants’ provision for the swim team was public
in nature and that their acts or omissions required the
exercise of personal judgment, rendering them discre-
tionary in nature. See Violano v. Fernandez, supra, 280
Conn. 318. Therefore, absent the applicability of any
exception, the defendants were entitled to governmen-
tal immunity. See id., 335. On appeal, the plaintiff does
not dispute the court’s findings that the acts alleged to
be negligent on the part of the defendants are public
and discretionary. Instead, the focus of the plaintiff’s
argument is that the court erred in finding that there
was no genuine issue of material fact in dispute that
he was not an identifiable person subject to imminent
harm because the defendants failed to meet their bur-
den of showing the nonexistence of any issue of fact
as to this exception. We disagree.
Our Supreme Court has recognized three exceptions
to discretionary act immunity: ‘‘[F]irst, where the cir-
cumstances 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 . . . second,
where a statute specifically provides for a cause of
action against a municipality or municipal official for
failure to enforce certain laws . . . and third, where
the alleged acts involve malice, wantonness or intent
to injure, rather than negligence.’’ (Internal quotation
marks omitted.) Durrant v. Board of Education, 284
Conn. 91, 95 n.4, 931 A.2d 859 (2007). ‘‘Each of these
exceptions represents a situation in which the public
official’s duty to act is [so] clear and unequivocal that
the policy rationale underlying discretionary act immu-
nity—to encourage municipal officers to exercise judg-
ment—has no force.’’ (Internal quotation marks
omitted.) Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d
191 (2006).
The present case concerns only the first exception,
where an act or omission would be likely to subject an
identifiable person to imminent harm. This exception
applies when ‘‘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 . . . .’’ (Internal quotation marks omitted.) Id.,
616. This exception has three elements: ‘‘(1) an immi-
nent 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.’’ Id. ‘‘[T]he
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.’’ (Internal
quotation marks omitted.) Cotto v. Board of Education,
294 Conn. 265, 276, 984 A.2d 58 (2009). This exception
is applicable ‘‘only in the clearest cases.’’ Id.6
The identifiable person contemplated by the excep-
tion, however, need not be a specifically identified indi-
vidual subject to imminent harm if the plaintiff is a
member of a ‘‘narrowly defined identified [class] of
foreseeable victims.’’ Burns v. Board of Education, 228
Conn. 640, 646, 638 A.2d 1 (1994). In Burns, the court
recognized schoolchildren who are on school property
during school hours as one identifiable class of foresee-
able victims. Id., 649–50. This class has been consis-
tently recognized by the courts of our state as
narrowly drawn.7
Our Supreme Court, in determining that school-
children are within an identifiable class of foreseeable
victims, focused on the following facts: ‘‘[school-
children] were intended to be the beneficiaries of partic-
ular duties of care imposed by law on school officials;
they were legally required to attend school rather than
being there voluntarily; their parents were thus statuto-
rily required to relinquish their custody to those officials
during those hours; and, as a matter of policy, they
traditionally require special consideration in the face
of dangerous conditions.’’ Prescott v. Meriden, 273
Conn. 759, 764, 873 A.2d 175 (2005).
In his complaint, the plaintiff alleges that he, ‘‘as a
student at school, was an identifiable person subject
to imminent harm.’’ (Emphasis added.) In its memoran-
dum of decision, the trial court stated: ‘‘The plaintiff
does not explicitly state whether his position is that
he was an identifiable individual or a member of an
identifiable class, but, rather, refers to himself only as
an identifiable ‘victim.’ The plaintiff’s status as either
an individual or a member of a class is an important
distinction because the analysis attendant [in] these two
cases is different. See, e.g., Cotto v. Board of Education,
[supra, 294 Conn. 274–75] (noting distinction in analysis
between whether plaintiff was member of identifiable
class or was identifiable individual; finding error
where trial court ‘blurred’ distinction). Because, here,
the plaintiff relies primarily upon Burns . . . which
recognized for the first time an identifiable class of
foreseeable victims, the complaint bases its claim of
an exception to governmental immunity upon the plain-
tiff’s status as a student at a public school and at oral
argument counsel for the plaintiff only addressed
whether the plaintiff was a member of an identifiable
class, the court construes the ground for the plaintiff’s
objection to be that there is a genuine dispute of mate-
rial fact regarding whether the plaintiff fell within an
identifiable class at the time of the injury.’’ (Emphasis
in original.)
As previously noted, the plaintiff never filed a reply
to the defendants’ special defense of governmental
immunity delineating the nature of the exception to
immunity on which he relies. His complaint bases its
claim of an exception to governmental immunity upon
the plaintiff’s status as a student at a public school. In
his brief to the trial court, to counter the defendants’
argument that he failed to plead that he fell within a
class of identifiable victims subject to imminent harm,
he stated: ‘‘This is not accurate. The plaintiff alleged
that at the time of the aforementioned incident, the
plaintiff, as a student at school, was an identifiable
person subject to imminent harm.’’ During oral argu-
ment before the court on the motion for summary judg-
ment, counsel for the plaintiff indicated that the viability
of the defendants’ motion came down to whether he
fit the exception as a member of a ‘‘foreseeable class
of [identifiable] victims,’’ despite the fact that the school
activity, an extracurricular team sport, was being con-
ducted after mandatory school hours. In addition, the
plaintiff’s memorandum in support of his objection to
the motion for summary judgment also relied on Burns
v. Board of Education, supra, 228 Conn. 646, which
recognized, for the first time, an identifiable class of
foreseeable victims.
‘‘[T]he interpretation of pleadings is always a question
of law for the court . . . . Our review of the trial
court’s interpretation of the pleadings therefore is ple-
nary.’’ (Internal quotation marks omitted.) Nichols v.
The Milford Pediatric Group, P.C., 141 Conn. App. 707,
711, 64 A.3d 770 (2013). On the basis of our plenary
review of the pleadings, affidavits and memoranda of
law submitted, as well as the arguments at the summary
judgment proceeding, we agree with the trial court that
the plaintiff has not raised the applicability of the identi-
fiable individual victim-imminent harm exception to
discretionary act immunity.
The plaintiff failed to provide the court with any
factual or legal analysis as to how he was individually
and specifically ‘‘identifiable as a potential victim of a
specific imminent harm,’’ a harm occurring ‘‘within [a]
framework limited in duration, place and condition’’
and ‘‘imminent in terms of its impact on the plaintiff
as a specific identifiable person.’’ (Internal quotation
marks omitted.) Cotto v. Board of Education, supra,
294 Conn. 276, 279–80. Rather, he based his claim on
his status as a student at school and argues that the
identifiable class of schoolchildren as foreseeable vic-
tims should be expanded to include a schoolchild partic-
ipating in an activity that is required as part of his
extracurricular after school program. ‘‘This court will
not review issues of law that are raised for the first
time on appeal. . . . To allow the [plaintiff] to argue
one theory . . . [before the trial court] and then press
a distinctly different theory on appeal would amount
to an ambuscade of the trial court.’’ (Citations omitted.)
State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563,
cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); see
also Bragdon v. Sweet, 102 Conn. App. 600, 607, 925
A.2d 1226 (2007) (court declined to review plaintiff’s
claim against grant of summary judgment raised for
first time on appeal).8
For the previously stated reasons, therefore, we will
address only whether there is a genuine issue of mate-
rial fact as to whether the plaintiff is entitled to the
governmental immunity exception as a member of a
foreseeable class of identifiable victims subject to immi-
nent harm.
‘‘In delineating the scope of a foreseeable class of
victims exception to governmental immunity, our
courts have considered 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. . . .
Other courts, in carving out similar exceptions to their
respective doctrines of governmental immunity, have
also considered whether the legislature specifically des-
ignated an identifiable subclass as the intended benefi-
ciaries of certain acts . . . whether the relationship
was of a voluntary nature . . . the seriousness of the
injury threatened . . . the duration of the threat of
injury . . . and whether the persons at risk had the
opportunity to protect themselves from harm.’’ Durrant
v. Board of Education, supra, 284 Conn. 101.
Our plenary review of the complaint and the affidavits
submitted in support of and in opposition to the motion
for summary judgment, viewed in the light most favor-
able to the plaintiff, the nonmovant, supports the find-
ings and legal analysis of the trial court that there is
no genuine issue of material fact that the plaintiff does
not qualify as a member of a foreseeable class of school-
children who are identifiable victims subject to immi-
nent harm. The three affidavits submitted by the
defendants in support of their motion for summary judg-
ment establish that the swim team was an extracurricu-
lar, nonmandatory activity, required the payment of a
participation fee, and that the plaintiff’s injury occurred
after normal school hours. We reject the plaintiff’s argu-
ment that the court improperly decided an issue of fact
as to whether his participation in the swim team was
voluntary merely because he attests in his affidavit that
the warm-up drill was mandatory. If participating in the
swim team as a whole was voluntary, a finding which
the plaintiff does not contest, then, by extension, so
was his participation in the warm-up drill.
The plaintiff’s argument misconstrues the meaning
of ‘‘not voluntary’’ within the legal framework set forth
in Burns v. Board of Education, supra, 228 Conn. 649,
which emphasized the fact that the class of school-
children to which the plaintiff belonged was required
by statute to be at school. See also, Durrant v. Board of
Education, supra, 284 Conn. 109 (‘‘there is a significant
distinction . . . between a program in which participa-
tion is encouraged and one in which it is compelled’’).
The plaintiff in Burns had no choice but to be at school.
Here, in contrast, while it may be true that the plaintiff
was ‘‘required’’ to participate in the warm-up drill if he
also desired to participate in the swim meet, the fact
remains that nothing required the plaintiff to participate
in the swim meet or, for that matter, the swim team,
in the first place. The plaintiff chose to participate in
the swim team when he joined it. He has not argued
that any statute or other source of law compelled him
to join the team or to participate in the warm-up drill.
Thus, under the present facts, the plaintiff does not fall
within the class of identifiable schoolchildren recog-
nized by Burns.
The focus of the plaintiff’s claim is that the court
should expand the class of schoolchildren created in
Burns to include students, such as he, under the present
circumstances.9 He contends that the holding in Burns
is not explicitly limited to the exception it created for
children attending public school during regular school
hours because Burns did not specifically hold that other
groups of identifiable individuals in other contexts
could not qualify as a class of identifiable foreseeable
victims. We agree that the explicit language of Burns,
read broadly, does not preclude the possibility of future
expansion of the identifiable class of foreseeable vic-
tims to include schoolchildren in other contexts. Never-
theless, other cases that have addressed arguments
proposing an expansion of this class to parents or chil-
dren engaged in school-sponsored activities outside of
mandatory school hours, including Durrant v. Board
of Education, supra, 284 Conn. 91, have denied such
requests. See also Prescott v. Meriden, supra, 273 Conn.
766; Lowenadler v. Mallard, Superior Court, judicial
district of Danbury, Docket No. CV-08-5004054-S (July
10, 2009) (declining to expand class to students volunta-
rily participating in nonmandatory, after school faculty-
student basketball game). In each of these cases, the
proponent of the expansion failed to convince the court
that the individuals to be added to the class were simi-
larly situated to those that were already within the class
on the basis of factors enunciated in Burns.
The plaintiff has failed to provide us with any basis
upon which we may conclude that we should depart
from prior precedent. There is nothing alleged in the
complaint or found in the plaintiff’s affidavit which
expressly states, or would lead to an inference if liber-
ally read, that the plaintiff was compelled to be at, or
participate in, the warm-up drills before the swim meet.
Importantly, in this case, the plaintiff cannot establish
that his participation in the warm-up drills was manda-
tory, a factor that goes directly to his ability to take
action to protect himself from harm. Accordingly, we
agree with the trial court that there is no genuine issue
of material fact that the plaintiff was not within an
identifiable class of foreseeable victims at the time of
his injury.10
We conclude that the plaintiff in this case cannot
avail himself of the identifiable person-imminent harm
exception to discretionary act immunity afforded to
the board and its employee. In light of the facts and
arguments presented, summary judgment was properly
rendered in favor of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In Grady v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (2009), our Supreme
Court concluded that ‘‘the identifiable person, imminent harm common-law
exception to municipal employees’ qualified immunity also applies in an
action brought directly against municipalities pursuant to [General Statutes]
§ 52-557n (a) (1) (A), regardless of whether an employee or officer of the
municipality also is a named defendant.’’ A town board of education, as
an agent of the municipality, is potentially immune from ‘‘liability for the
performance of [discretionary] governmental acts as distinguished from
ministerial acts.’’ (Internal quotation marks omitted.) Heigl v. Board of
Education, 218 Conn. 1, 4, 587 A.2d 423 (1991).
2
The student who allegedly dove into the pool and struck the plaintiff
was named in the defendants’ apportionment complaint, which was filed
on June 3, 2013.
3
General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties; (B)
negligence in the performance of functions from which the political subdivi-
sion derives a special corporate profit or pecuniary benefit; and (C) acts of
the political subdivision which constitute the creation or participation in
the creation of a nuisance . . . . (2) Except as otherwise provided by law,
a political subdivision of the state shall not be liable for damages to person
or property caused by: (A) Acts or omissions of any employee, officer
or agent which constitute criminal conduct, fraud, actual malice or wilful
misconduct; or (B) negligent acts or omissions which require the exercise
of judgment or discretion as an official function of the authority expressly
or impliedly granted by law.’’
4
The defendants claimed that Harkins is being sued in his official capacity
only, and, therefore, the real party in interest is the board because ‘‘[i]t is
well settled law that an action against a government official in his or her
official capacity is not an action against the official, but, instead, is one
against the official’s office and, thus, is treated as an action against the
entity itself.’’ Kelly v. New Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005).
Whether the doctrine of qualified immunity in the performance of a discre-
tionary governmental act also applies to Harkins is not an issue in this
appeal. It is well established at common law that municipalities and their
employees are immune from liability for actions taken in discharging their
public duties, so long as their actions are discretionary in nature. See Evon
v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
5
Jurzynski’s affidavit contradicts both the plaintiff’s allegation in the com-
plaint that Harkins ‘‘left the team unsupervised during the warm-up drill,’’
and his attestation in his affidavit that ‘‘a senior member of the swim team
. . . rather than a coach, was directing team members when to dive into
the pool for the drill.’’ Jurzynski attested, ‘‘At the time [the plaintiff] claims
he was injured I was present to supervise the swim team drills.’’ The plaintiff
does not take issue with this contradiction on appeal.
6
Outside the public school context, we are aware of only two Connecticut
cases wherein a plaintiff has been held potentially to be an individually
identifiable person for purposes of the exception. One, decided before the
current three-pronged identifiable person-imminent harm exception was
adopted, involved a discrete group of intoxicated men, brawling in a bar
parking lot while a police officer stood by and failed to intervene until he
heard gunshots. See Sestito v. Groton, 178 Conn. 520, 522–23, 527–28, 423
A.2d 165 (1979). Sestito has since been distinctly ‘‘limited to its facts.’’
Thivierge v. Witham, supra, 150 Conn. App. 780 n.8. The other case deter-
mined that summary judgment should not have been granted on the basis
of governmental immunity where the plaintiff, who was attending a parade,
bent down to pet a firefighter’s pet dog and could be observed ‘‘in close
proximity to the dog’s teeth.’’ (Internal quotation marks omitted.) Tryon v.
North Branford, 58 Conn. App. 702, 703–704, 712, 755 A.2d 317 (2000). This
court decided that it was a question of fact whether the firefighter’s failure
to prevent his dog from being in close proximity to the plaintiff created a
situation of imminent harm to an identifiable plaintiff. Id., 716.
7
Compare Durrant v. Board of Education, supra, 284 Conn. 94, 96, 104
(parent who slipped and fell when picking up child from after school day
care program on school grounds conducted under auspices of board of
education not member of identified class of foreseeable victims), and Pres-
cott v. Meriden, 273 Conn. 759, 760–62, 873 A.2d 175 (2005) (identified
class of foreseeable victims did not include parent who slipped and fell on
bleachers while attending high school varsity football game), with Purzycki
v. Fairfield, 244 Conn. 101, 104, 109, 708 A.2d 937 (1998) (second grader
tripped by another student during school recess in unsupervised school
hallway was member of identified class of foreseeable victims as in Burns).
8
Furthermore, on appeal, the plaintiff has inadequately briefed the applica-
bility of the individual identifiable victim exception to the facts alleged in
his complaint and the parties’ affidavits in support of and in opposition to
the motion for summary judgment. Rather, he baldly asserts, without citation
to legal authority, that the defendants failed to meet their burden to offer
sufficient evidence that he was not an ‘‘identifiable person subject to immi-
nent harm.’’ The plaintiff, however, fails to acknowledge that his complaint
only alleges the identifiable class of foreseeable victims exception, that he
failed to file a reply to the special defenses, and that he expressly advised
the court that that was the nature of the exception he was claiming.
‘‘[W]e are not required to review claims that are inadequately briefed.
. . . [A]nalysis, rather than mere abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue properly.’’ (Internal
quotation marks omitted.) Russel v. Russel, 91 Conn. App. 619, 634, 882,
A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). ‘‘The parties
may not merely cite a legal principle without analyzing the relationship
between the facts of the case and the law cited. . . . Where the parties cite
no law and provide no analysis of their claims, we do not review such
claims.’’ (Internal quotation marks omitted.) Id., 635.
9
In support of his argument for expansion of the identifiable class of
foreseeable victims, the plaintiff, in his memorandum of law in opposition
to the motion for summary judgment, cited Furlani v. East Lyme, Superior
Court, judicial district of New London, Docket No. CV-08-5005850-S (January
22, 2010) (49 Conn. L. Rptr. 348, 348–49), and Zaborowski v. New Milford,
Superior Court, judicial district of Litchfield, Docket No. CV-05-4002868-S
(March 24, 2006) (41 Conn. L. Rptr. 80, 82), two cases which address whether
the plaintiff was an identifiable individual, not whether the plaintiff was
within an identifiable class, and neither of which otherwise specifically
analyzed the identifiable class of schoolchildren exception created in Burns.
These two cases are, therefore, inapposite to plaintiff’s expressed position.
10
Because the plaintiff has not established that he was within an identifi-
able class of victims at the time of the injury, we need not address whether
he was subject to an imminent harm.