******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
TWILA WILLIAMS, ADMINISTRATRIX (ESTATE
OF TIANA N.A. BLACK) ET AL. v. HOUSING
AUTHORITY OF THE CITY
OF BRIDGEPORT ET AL.
(AC 36176)
Lavine, Mullins and Borden, Js.
Argued March 16—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Sommer, J.)
John T. Bochanis, with whom, on the brief, was
Thomas J. Weihing, for the appellant (plaintiff).
Betsy Ingraham, associate city attorney, for the
appellees (defendant city of Bridgeport et al.).
Opinion
BORDEN, J. The plaintiff Twila Williams, administra-
trix of the estates of Tiana N.A. Black, Nyaisja Williams,
Tyaisja Williams, and Nyshon Williams (decedents),
appeals from the trial court’s summary judgment ren-
dered in favor of the defendants.1 The plaintiff claims
that: (1) there is an issue of material fact as to whether
the defendants are immune from liability pursuant to
General Statutes § 52-557n (b) (8)2 for failing to inspect
the decedents’ property; (2) the trial court improperly
determined that other acts of negligence alleged against
the defendants involved the exercise of a discretionary
duty; and (3) even if such acts did involve a discretion-
ary duty, the defendants’ alleged negligence subjected
the decedents to imminent harm. We affirm the judg-
ment of the trial court as to the second claim. On the
first and third claims, however, we reverse the judgment
and remand the case to the trial court for further pro-
ceedings.3
This case stems from an apartment fire that took the
lives of the decedents. The following undisputed facts
and procedural history are relevant to this appeal. The
decedents resided in the P.T. Barnum Apartments, a
group of affordable housing units owned and main-
tained by the Housing Authority of the City of Bridge-
port. The decedents’ apartment was part of a
multifamily residential unit,4 located on the second and
third floors of a three-story building. It had only a single
point of ingress and egress, namely, a door that opened
onto a porch and an external staircase attached to the
building’s second floor. Because the building lacked
fire escapes, the only means of leaving the apartment
was through the door. An individual seeking to leave
from the bedrooms on the third floor of the apartment
had to travel down the internal staircase, then traverse
the apartment to access the door.
The Bridgeport fire marshal’s office is required to
conduct annual inspections of multifamily residential
units within Bridgeport pursuant to General Statutes
§ 29-305 (b).5 The office maintains eight full-time fire
investigators, along with a deputy fire marshal and fire
marshal, who together are responsible for inspecting
more than four thousand multifamily homes in Bridge-
port, in addition to inspecting commercial businesses
and investigating the circumstances surrounding fires
within the city. The Bridgeport tax assessor’s office
annually provides the fire marshal with a list of those
multifamily units to be inspected. At the time of the
incident in the present case, the list provided to the
fire marshal’s office did not include multifamily units
considered affordable housing units because such hous-
ing is not included on Bridgeport’s tax rolls.6 The dece-
dents’ apartment qualified as affordable housing, and
as a consequence, the fire marshal did not conduct a
yearly inspection of the apartment.
On November 13, 2009, at approximately 1 a.m., a fire
broke out in the oven in the kitchen of the decedents’
apartment. The decedents perished in the conflagration.
Both the state police and the Bridgeport Fire Depart-
ment investigated the circumstances surrounding the
fire and determined the cause to be accidental. During
the course of their investigations, the state police also
determined that, although all five smoke detectors
within the apartment were functioning normally, the
detectors were not interconnected in the sense that all
five would be activated when one of them activated.
Subsection 907.2.10.1.2.2 of the State Fire Safety Code,
Regulations of Connecticut State Agencies § 29-292-17e,
required the installation of interconnected smoke detec-
tors when the apartment was last renovated in 1992.7
Both agencies concluded that, given the locations of
the decedents’ bodies found within the apartment, it
was likely that all four of the decedents were alerted
to the fire and were attempting to leave.
The plaintiff commenced this suit against the defen-
dants. In her amended complaint, the plaintiff alleged
that the defendants failed to ensure that the decedents’
apartment complied with the state building and fire
safety codes, failed to remedy numerous defects in the
premises, and failed to conduct a yearly fire safety
inspection of the apartment. The plaintiff specifically
alleged that the defendants knew or should have known
about and remedied a number of asserted defects in
the decedents’ apartment, including the absence of fire
escapes, fire suppression systems, photo-electric
smoke detectors, fire alarm systems, fire sprinklers, fire
extinguishers, and fire safety or prevention plans.
The defendants moved for summary judgment, claim-
ing that as a matter of law they were immune from
liability under § 52-557n. Specifically, the defendants
argued that they were immune from liability for failing
to inspect the decedents’ apartment under § 52-557n (b)
(8), and that the plaintiff could not identify a disputed
material fact that would demonstrate any exception to
the statutory immunity. Additionally, the defendants
argued that the other acts of negligence alleged involved
breaches of their discretionary duties. The defendants
argued that as a consequence, they were immune from
liability pursuant to § 52-557n (a) (2) (B).
As part of their motion for summary judgment, the
defendants included affidavits from the defendants Wil-
liam Finch, the mayor of the city of Bridgeport; Brian
Rooney, chief of the Bridgeport Fire Department; Wil-
liam Cosgrove, fire marshal for the city of Bridgeport;
Dennis Buckley, zoning administrator for the city of
Bridgeport; and Peter Pajaanen, building official for
the city of Bridgeport. Each affiant, except Cosgrove,
attested to a belief that he owed no duty to inspect the
decedents’ apartment.8 Rooney and Cosgrove asserted
in their affidavits that, as the fire chief and fire marshal
of Bridgeport, respectively, they were aware of and
familiar with all the responsibilities and duties of the
fire marshal’s office.
Rooney, however, further stated that, to the best of
his knowledge as the fire chief of Bridgeport, no statu-
tory authority mandated that the decedents’ apartment
be inspected.9 Thus, these two assertions in Rooney’s
affidavit—namely, that he was aware of and familiar
with all of his duties and responsibilities as fire chief,
and that no statutory authority mandated that he inspect
the decedents’ apartment—conflicted with each other.
Similarly, Cosgrove, as fire marshal, stated that he was
aware of and familiar with all the duties and responsibil-
ities of his office, yet did not claim familiarity with
the duty to inspect the decedents’ apartment. In the
plaintiff’s opposition to the motion for summary judg-
ment, she argued that § 52-557n (a) (2) (B) did not apply
to the defendants’ alleged negligence. The plaintiff spe-
cifically included the affidavit of Mark W. Tebbets, an
expert on the state building code, alleging that there
were numerous specific defects in the decedents’ apart-
ment and that the defendants were responsible for
enforcing the building code.
While the defendants’ motion for summary judgment
was pending, Rooney was deposed by the plaintiff. At
his deposition, Rooney testified that prior to making
the affidavit he was not aware that his office was obli-
gated by statute to inspect affordable housing. He had
discovered subsequently, however, that § 29-305 (b)
applied to affordable housing as well as to multifamily
homes on the tax rolls, and therefore his office was
supposed to inspect the decedents’ apartment
annually.10
The trial court granted the defendants’ motion for
summary judgment on July 19, 2013. In its memorandum
of decision, the trial court agreed with the defendants,
and concluded that the defendants were immune from
liability under § 52-557n (b) (8) for their failure to
inspect the decedents’ property. The trial court specifi-
cally noted that the plaintiff did not adduce evidence
that would raise a question of material fact as to
whether the defendants’ failure to inspect came within
the ‘‘recklessness’’ exception to the statutory provision.
It further concluded that the other claims alleged by
the plaintiff involved negligent performance of discre-
tionary duties, and the defendants were therefore
immune under § 52-557n (a) (2) (B).
The plaintiff then filed a motion to reargue the motion
for summary judgment. The plaintiff included a full copy
of Rooney’s deposition with her motion, and argued
that it raised issues of fact as to whether the defendants’
acts constituted recklessness under § 52-557n (b) (8).
The trial court denied that motion on September 25,
2013. This appeal followed.
‘‘The standard of review of motions for summary
judgment is well settled. 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.’’ (Internal quotation marks omitted.)
Smigelski v. Dubois, 153 Conn. App. 186, 197, 100 A.3d
954, cert. denied, 314 Conn. 948, 103 A.3d 975 (2014).
‘‘[O]nce [the] defendant’s burden in establishing his
entitlement to summary judgment is met . . . the bur-
den shifts to [the] plaintiff to show that a genuine issue
of fact exists justifying a trial.’’ (Internal quotation
marks omitted.) Rockwell v. Quintner, 96 Conn. App.
221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917,
908 A.2d 538 (2006). ‘‘[A] party opposing a summary
judgment motion must provide an evidentiary founda-
tion to demonstrate the existence of a genuine issue of
material fact. . . . [I]t is not enough for the party
opposing summary judgment merely to assert the exis-
tence of a disputed issue. . . . Such assertions are
insufficient regardless of whether they are contained
in a complaint or a brief. . . . Further, unadmitted alle-
gations in the pleadings do not constitute proof of the
existence of a genuine issue as to any material fact.’’
(Citations omitted; internal quotation marks omitted).
Id., 228–29.
‘‘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. . . . Our review of the trial court’s decision
to grant [a moving party’s] motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Smigelski v. Dubois, supra, 153 Conn. App. 197.
I
The plaintiff first claims that there is a genuine issue
of material fact as to whether the defendants’ failure
to inspect the decedents’ apartment pursuant to § 29-
305 (b) constituted a ‘‘reckless disregard for health and
safety’’ under § 52-557n (b) (8). The plaintiff argues
that consequently the defendants are not entitled to
summary judgment. We agree with the plaintiff.
The parties agree, as do we, that this case presents, in
the first instance, a question of statutory interpretation.
‘‘[I]ssues of statutory construction raise questions of
law, over which we exercise plenary review. . . . The
process of statutory interpretation involves the determi-
nation of the meaning of the statutory language as
applied to the facts of the case, including the question
of whether the language does so apply. . . . When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
Urgin v. Cheshire, 307 Conn. 364, 379–80, 54 A.3d
532 (2012).
More specifically, the parties agree that this case is
controlled by two provisions of § 52-557n, namely, § 52-
557n (a) (2) (B) and (b) (8). Section 52-557n waives the
traditional general immunity extended to municipalities
for their tortious acts at common law. Martel v. Metro-
politan District Commission, 275 Conn. 38, 47, 881
A.2d 194 (2005). Section 52-557n (a) (2), however, pro-
vides in relevant part: ‘‘Except as otherwise provided
by law, a political subdivision of the state shall not be
liable for damages to person or property caused by
. . . (B) negligent acts or omissions which require the
exercise of judgment or discretion as an official func-
tion of the authority expressly or impliedly granted by
law.’’ This provision incorporates our prior common-
law jurisprudence extending immunity to those acts
requiring the exercise of judgment on the part of the
municipal actor. Discretionary acts are distinct from
those that are ministerial; a ministerial act involves
prescribed conduct that does not afford the actor the
ability to use his own judgment. Pursuant to § 52-557n
(a) (2) (B), a municipality is extended immunity from
liability for discretionary acts but not for ministerial
acts. See Durrant v. Board of Education, 284 Conn.
91, 105–106, 931 A.2d 859 (2007).
Section 52-557n (b) sets forth a list of discrete situa-
tions in which immunity from liability shall be extended
to municipal actors. Ugrin v. Cheshire, supra, 307 Conn.
381. Section 52-557n (b) specifically provides in relevant
part: ‘‘Notwithstanding the provisions of subsection (a)
of this section, a political subdivision of the state or
any employee, officer or agent acting within the scope
of his employment or official duties shall not be liable
for damages to person or property resulting from . . .
(8) failure to make an inspection or making an inade-
quate or negligent inspection of any property . . . to
determine whether the property complies with or vio-
lates any law or contains a hazard to health or safety,
unless the political subdivision had notice of such a
violation of law or such a hazard or unless such failure
to inspect or such inadequate or negligent inspection
constitutes a reckless disregard for health or safety
under all the relevant circumstances . . . .’’
Thus, briefly stated, even if the conduct is ministerial
under § 52-557n (a), if the claimed conduct constitutes
a failure to inspect property, then the municipality is
not liable for a failure to inspect unless the municipality
had notice of a violation of law,11 or the failure to inspect
constituted a reckless disregard for health and safety
under the circumstances. See Urgin v. Cheshire, supra,
307 Conn. 380–81. Put another way, as applied to this
case, under § 52-557n (a) (2) (B), the defendants are
immune from liability for tortious violations of a discre-
tionary duty, but are not extended immunity for tortious
violations of a ministerial duty. Under § 52-557n (b)
(8), however, with respect to a duty to inspect, the
defendants are immune from liability even if the failure
to inspect is a ministerial duty, unless that failure to
inspect constitutes a reckless disregard for health and
safety, in which case they would not be immune
from liability.
The parties disagree over the meaning of what consti-
tutes a ‘‘reckless disregard for health or safety’’ under
§ 52-557n (b) (8). The plaintiff asserts that recklessness
for the purpose of § 52-557n (b) (8) is a question of
fact, and argues that Rooney’s deposition and the statu-
tory duty under § 29-305 (b) create a disputed issue of
material fact as to whether the defendants were acting
recklessly. The defendants argue that recklessness
under § 52-557n (b) (8) is a question of law, and that
as a matter of law they were not acting recklessly.
We conclude, however, that both parties miss the
mark. What the term ‘‘reckless’’ means in § 52-557n (b)
(8) is a question of statutory interpretation and, there-
fore, a question of law. Whether the defendants’ conduct
was ‘‘reckless’’ within that statutory meaning is a factual
question and, for purposes of rendering summary judg-
ment, the question is whether the facts of that conduct
were egregious enough to permit a factual finding of
recklessness.
Although our Supreme Court has not had the opportu-
nity to consider the meaning of the particular exception
at issue in the present case, the court has noted that
§ 52-557n (a) as a whole is ambiguous, and that its
meaning is ‘‘far from plain.’’12 Sanzone v. Board of Police
Commissioners, 219 Conn. 179, 188, 592 A.2d 912
(1991). The history and language of § 52-557n stems
from a ‘‘complicated web of legislative compromises
that shaped the Tort Reform Act of 1986 . . . .’’ (Inter-
nal quotation marks omitted.) Elliott v. Waterbury, 245
Conn. 385, 408, 715 A.2d 27 (1998). What constitutes a
‘‘reckless disregard for health and safety’’ is particularly
unclear, as the phrase is not defined within § 52-557n,
nor is the phrase found anywhere else within our Gen-
eral Statutes. Without any plain indicia of what this
exception means for the purposes of a failure to inspect,
we act in accordance with our Supreme Court’s conclu-
sion that the statute is ambiguous, and seek extratextual
evidence as to the exception’s meaning.
We look first at the legislative history of § 52-557n
for guidance. Our Supreme Court has commented that
the ‘‘legislative history of § 52-557n is worse than murky;
it is contradictory. . . . The transcripts of legislative
hearings on the bill are full of heated debate over [§ 52-
557n], dealing with municipal liability, but the legisla-
tors seemed not to agree as to its meaning. The record
of legislative debate does indicate that [§ 52-557n] was
intended, in a general sense, both to codify and to limit
municipal liability, but it also reflects confusion with
respect to precisely what part of the preexisting law
was being codified, and what part was being limited.’’
(Footnote omitted.) Sanzone v. Board of Police Com-
missioners, supra, 219 Conn. 188. As a consequence,
the legislative history does not provide adequate guid-
ance as to the meaning of a ‘‘reckless disregard for
health and safety.’’
We therefore turn to our common-law jurisprudence
for guidance. Under Connecticut common law, ‘‘[r]eck-
lessness requires a conscious choice of a course of
action either with knowledge of the serious danger to
others involved in it or with knowledge of facts which
would disclose this danger to any reasonable [person],
and the actor must recognize that his conduct involves
a risk substantially greater . . . than that which is nec-
essary to make his conduct negligent. . . . More
recently, we have described recklessness as a state of
consciousness with reference to the consequences of
one’s acts. . . . It is more than negligence, more than
gross negligence. . . . The state of mind amounting to
recklessness may be inferred from conduct. But, in
order to infer it, there must be something more than a
failure to exercise a reasonable degree of watchfulness
to avoid danger to others or to take reasonable precau-
tions to avoid injury to them. . . . The result is that
. . . reckless conduct tends to take on the aspect of
highly unreasonable conduct, involving an extreme
departure from ordinary care, in a situation where a
high degree of danger is apparent.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Matthiessen v. Vanech, 266 Conn. 822, 832–33, 836 A.2d
394 (2003).
We consider the common-law definition of reckless-
ness instructive for purposes of interpreting the excep-
tion for recklessness in § 52-557n (b) (8). An individual’s
‘‘conscious choice’’ separates recklessness from negli-
gence. Id., 832. To achieve the distinction, it is not
merely enough to fail to conduct an adequate inspec-
tion. A negligent inspection or failure to inspect occurs
when one knew or should have known that there was
a duty to inspect, but failed to do so or did so below
the standard of care. A failure to inspect that constitutes
a reckless disregard for health or safety under § 52-
557n (b) (8), however, must therefore be one in which
an individual is aware of the duty to inspect, recognizes
the possible impact on public or individual health or
safety, and makes the conscious decision not to per-
form that duty.13
In applying this definition to the present case, we
conclude that the failure of the defendants to inspect the
decedents’ apartment could, under the factual record
presented in this case, reasonably be considered reck-
less.14 Although all of the defendants, except Cosgrove,
attested that they had no duty to inspect the decedents’
apartment, both Rooney and Cosgrove also asserted
their familiarity with the legal rules regarding the
inspection of the apartment. Rooney explicitly claimed
that he was familiar with ‘‘all duties and responsibilities
that any agent, servant, and/or employee of the [Bridge-
port] Fire Department had with respect to [the dece-
dents’] apartment prior to November 13, 2009.’’
Cosgrove made an essentially identical claim. From
these assertions, a reasonable fact finder could infer
that both Rooney and Cosgrove had read and made
themselves familiar with those legal rules, including the
legal obligation of an annual inspection mandated by
§ 29-305 (b); see footnote 5 of this opinion; and, there-
fore, that they were aware of that obligation. And,
because of Rooney’s conflicting assertion that there was
no such obligation, the fact finder would be confronted
with a factual question: were Rooney and Cosgrove
aware or not of the legal obligation to inspect the dece-
dents’ apartment? Put another way, the fact finder
would be presented with the question of whether to
believe the assertion of familiarity and awareness prior
to the fire, or the assertion that the awareness and
familiarity did not arise until the time of the deposition,
when Rooney explained how he had learned that he
was so obligated.
Furthermore, it is undisputed that the defendants
did not inspect the decedents’ apartment. A reasonable
juror could further conclude that given the defendants’
familiarity with § 29-305 (b), the reason for that failure
to inspect was due to a conscious disregard of the
prescriptions in § 29-305 (b). Accordingly, the defen-
dants’ familiarity or not with the obligation to inspect
under § 29-305 (b), and the reason for the defendants’
failure to follow its mandate, gives rise to questions of
material fact appropriately left to the fact finder, and
are sufficiently raised so as to surmount the defendants’
motion for summary judgment.
The defendants argue that regardless of how cogni-
zant they were of the duty to inspect, the plaintiff has
not provided any evidence upon which a juror could
reasonably conclude that the defendants recognized the
possible impact of their failure to inspect on the health
or safety of the decedents. We are not persuaded by
this argument. It is counterintuitive to an average per-
son that a purported expert, familiar with the duties
and procedures of his own office, cannot appreciate
the consequences when such duties are not carried out,
especially when those duties involve the prevention of
life-threatening fires. Thus, a reasonable juror could
conclude that they would appreciate the natural conse-
quences of their actions. We leave such determinations
to the finder of fact.15
The degree of awareness the defendants had of the
statutory requirement to inspect the decedents’ apart-
ment and the reason for the failure to inspect are ques-
tions of material fact that must be established to
determine whether the defendants’ actions were reck-
less. We therefore reverse the judgment of the trial
court on this issue and remand the case with direction
to deny the defendants’ motion for summary judgment
on the § 52-557n (b) (8) issue.
II
The plaintiff also claims that the trial court improp-
erly concluded, pursuant to § 52-557n (a) (2) (B),16 that
the defendants were immune from liability for their
alleged negligence because the duty to act was discre-
tionary, not ministerial, in nature. We disagree with
the plaintiff, and conclude that the alleged negligence
involved the exercise of the defendants’ discretionary
duties.
Because the present claim is governed by § 52-557n
(a), it is useful at the outset to review our previous
discussion of the statute in advance of addressing the
plaintiff’s claim. Under § 52-557n (a) (2) (B), a munici-
pality and its agents are not liable for violations of
discretionary duties, but are liable for violations of min-
isterial duties. This is because this subsection codifies
the common-law doctrine of distinguishing between dis-
cretionary and ministerial acts. See Coley v. Hartford,
312 Conn. 150, 161–62, 95 A.3d 480 (2014).
With this standard in mind, we now return to our
analysis of the plaintiff’s claim under § 52-557n (a) (2)
(B). In her amended complaint, the plaintiff alleged
that, in addition to the defendants’ failure to inspect
the apartment pursuant to § 29-305 (b), the defendants
were negligent for a variety of reasons, including a
broad failure on the part of the defendants to enforce
the state building and fire safety codes, and allegations
that the defendants knew or should have known about
and remedied the alleged defects in the decedents’
apartment.17 In their motion for summary judgment, the
defendants claimed that they were immune from the
plaintiff’s claims pursuant to § 52-557n (a) (2) (B). The
trial court concluded that the allegations of negligence
involved the exercise of only discretionary duties, and
thus the defendants were immune under the statute.18
As noted previously, § 52-557n (a) (2) (B) ‘‘explicitly
shields a municipality from liability for damages to per-
son or property caused by the negligent acts or omis-
sions which require the exercise of judgment or
discretion as an official function of the authority
expressly or impliedly granted by law. . . . Municipal
officials are immune from liability for negligence arising
out of their discretionary acts in part because of the
danger that a more expansive exposure to liability
would cramp the exercise of official discretion beyond
the limits desirable in our society. . . . The hallmark
of a discretionary act is that it requires the exercise of
judgment. . . . In contrast, municipal officials 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. . . .
‘‘Although the determination of whether official acts
or omissions are ministerial or discretionary is normally
a question of fact for the fact finder . . . there are
cases where it is apparent from the complaint . . .
[that the nature of the duty] and, thus, whether govern-
mental immunity may be successfully invoked pursuant
to . . . § 52-557n (a) (2) (B), turns on the character of
the act or omission complained of in the complaint.
. . . Accordingly, where it is apparent from the com-
plaint that the defendants’ allegedly negligent acts or
omissions necessarily involved the exercise of judg-
ment, and thus, necessarily were discretionary in
nature, summary judgment is proper.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Coley v. Hartford, supra, 312 Conn. 161–62. ‘‘The
issue of governmental immunity is simply a question
of the existence of a duty of care, and [our Supreme
Court] has approved the practice of deciding the issue
of governmental immunity as a matter of law.’’ (Internal
quotation marks omitted.) Thivierge v. Witham, 150
Conn. App. 769, 773–74, 93 A.3d 608 (2014).
We therefore turn to the plaintiff’s claim that the trial
court improperly concluded that the defendants’ alleged
negligence involved a discretionary duty to act. The
plaintiff first argues that the alleged negligent enforce-
ment of the fire safety and building codes constitutes
a breach of a ministerial duty. We disagree. To enforce
the fire safety code, a local fire marshal must determine
whether there is a violation under the code and pre-
scribe the necessary remedial measure. The General
Statutes provide an appeal process for residents or
developers who are unsatisfied with the assessment of
the local fire marshal’s enforcement of the code, or
when they believe the code has been misinterpreted.
See General Statutes § 29-291d. The interpretive pro-
cess used by local fire marshals in analyzing the fire
safety code and applying it to a building under inspec-
tion bears the traditional hallmarks of an exercise of
judgment, and as a consequence, is discretionary.19 See
Segreto v. Bristol, 71 Conn. App. 844, 851, 804 A.2d 928,
cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
The plaintiff additionally argues that due to the pre-
scriptions found within the fire code, it was the defen-
dants’ ministerial duty to remedy the alleged defects.
We are unconvinced. The plaintiff has not pointed to
any portion of the fire safety code that mandates that
the defendants provide a specific, prescribed, nondis-
cretionary remedy for the claimed defects. To the extent
that a remedy is needed, the nature, form, and adequacy
of that remedy under the fire safety code implicate ‘‘the
exercise of judgment, and thus are discretionary acts.’’
Violano v. Fernandez, 88 Conn. App. 1, 10, 868 A.2d 69
(2005), aff’d, 280 Conn. 310, 907 A.2d 1188 (2006); see
also Segreto v. Bristol, supra, 71 Conn. App. 857. We
therefore conclude that the defendants’ alleged negli-
gence involved discretionary acts.
III
Because we have concluded that the defendants’
alleged negligence implicates only their discretionary
duties, the plaintiff can surmount § 52-557n (a) (2) (B)
only if her claim falls within a delineated exception to
discretionary act immunity articulated by our Supreme
Court. See Grady v. Somers, 294 Conn. 324, 334–36,
984 A.2d 684 (2009). In this appeal, the only relevant
exception is the identifiable person-imminent harm
exception.20 The plaintiff argues that all of the defen-
dants’ alleged acts of negligence involve discretionary
duties that are subject to the exception. Because of
recent changes in our jurisprudence to the identifiable
person-imminent harm test, however; see Haynes v.
Middletown, 314 Conn. 303, 101 A.3d 249 (2014); we
reverse and remand the case to the trial court for reargu-
ment on this issue.
The identifiable person-imminent harm exception
applies when circumstances make it apparent to a pub-
lic officer that his or her failure to act would be likely
to subject an identifiable person to imminent harm.
Cotto v. Board of Education, 294 Conn. 265, 273, 984
A.2d 58 (2009). ‘‘By its own terms, this test 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.’’ (Internal quotation marks omitted.) Id.
Failure to establish any of the three prongs is fatal to
the plaintiff’s claim that the defendants’ conduct falls
within the exception. Id.
In the present case, the trial court concluded that,
because the plaintiff did not identify ‘‘a discrete time
and place period at which the harm would occur’’ that
was foreseeable to the defendants; see Bonington v.
Westport, 297 Conn. 297, 314, 999 A.2d 700 (2010); the
defendants’ acts did not fall within the identifiable per-
son-imminent harm exception to discretionary act
immunity. The court reached this conclusion through
application of the ‘‘foreseeability test’’ model for
determining imminent harm first articulated in Burns
v. Board of Education, 228 Conn. 640, 648–50, 638 A.2d
1 (1994), overruled in part by Haynes v. Middletown,
314 Conn. 303, 322–23, 101 A.3d 249 (2014).
Our Supreme Court, however, has recently modified
its approach to the imminent harm analysis, and this
court is the first to analyze the change in detail. In
Haynes v. Middletown, supra, 314 Conn. 303, which
was decided after the summary judgment proceedings
in the trial court in the present case, our Supreme Court
revisited the issue of what creates an ‘‘imminent risk
of harm’’ and established a new test that is different
from the foreseeability test utilized by the trial court
in the present case. We therefore turn our analysis to
an examination of the new test in Haynes.
In Haynes, the minor plaintiff was injured while
changing in the locker room at Middletown High School.
The plaintiff and a number of other students engaged
in horseplay, and the plaintiff was pushed into a locker
with an exposed jagged and rusted edge. The locker
had been in a broken condition since the beginning of
that school year. In the ensuing action, the defendant
municipality asserted as a special defense that mainte-
nance of the locker was a discretionary duty not gov-
erned by any municipal policy or procedure, and
therefore the municipality was immune from liability
under § 52-557n (a) (2) (B). The plaintiff conceded that
the duty to maintain the locker was ultimately discre-
tionary, but asserted that under the circumstances the
duty fell within the identifiable person-imminent harm
exception. Haynes v. Middletown, supra, 314 Conn.
305–10. The trial court issued a directed verdict in favor
of the defendants, which this court affirmed. See
Haynes v. Middletown, 142 Conn. App. 720, 724–25, 66
A.3d 899 (2013), rev’d, 314 Conn. 303, 101 A.3d 249
(2014). Our Supreme Court, on certified appeal,
reversed this court’s judgment, and took the opportu-
nity to reexamine the prevailing jurisprudence regard-
ing imminent harm. See Haynes v. Middletown, supra,
314 Conn. 307.
The court in Haynes looked initially at the reasoning
of Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131
(1989), and concluded that the court had implied in
Evon that the imminence of harm was intrinsically
related to the probability that the harm would occur
due to the dangerous condition. Haynes v. Middletown,
supra, 314 Conn. 317–18. This conclusion stood in con-
trast with the court’s previous ‘‘foreseeability’’ analysis
deriving from Burns, in which our Supreme Court had
articulated a test that was based on the temporal nature
of the harm; essentially, that an imminent harm was
one that emerged out of the existence of a temporarily
dangerous condition limited in geographic scope that
combined to identify a ‘‘foreseeable’’ class of victims.
Burns v. Board of Education, supra, 228 Conn. 640,
648–50; see also Purzycki v. Fairfield, 244 Conn. 101,
108–10, 708 A.2d 937 (1998) (reiterating same foresee-
ability test), overruled in part by Haynes v. Middletown,
314 Conn. 303, 322–23, 101 A.3d 249 (2014). The court
in Haynes noted that the test articulated by Burns was
flawed, because the mere fact that a dangerous condi-
tion was temporary did not increase the probability
that the condition would result in harm. Haynes v.
Middletown, supra, 320. As the court in Haynes stated,
‘‘[i]f a condition created only a low risk of harm, the fact
that the condition was temporary would not somehow
convert a harm that might well have never occurred
into one that was imminent.’’ Id., 320–21.
Our Supreme Court in Haynes then stated the follow-
ing: ‘‘we conclude that [the Supreme Court] in Burns
incorrectly held that a foreseeable harm may be deemed
imminent if the condition that created the risk of harm
was only temporary and the risk was significant and
foreseeable. Our statement in Evon v. Andrews, supra,
211 Conn. 508, that a harm is not imminent if it could
have occurred at any future time or not at all was
not focused on the duration of the alleged dangerous
condition, but on the magnitude of the risk that the
condition created. Accordingly, the proper standard
for determining whether a harm was imminent is
whether it was apparent to the municipal defendant
that the dangerous condition was so likely to cause
harm that the defendant had a clear and unequivocal
duty to act immediately to prevent the harm.’’ (Empha-
sis altered; internal quotation marks omitted.) Haynes
v. Middletown, supra, 314 Conn. 322–23. And when the
court in Haynes spoke of the ‘‘ ‘magnitude of the risk’ ’’;
(emphasis omitted) id., 322; it specifically associated it
with the probability that harm would occur, not the
foreseeability of the harm. Id., 322–23. In articulating
this revised standard, the court in Haynes sought to
return to the implicit standard originally found in Evon.
Id., 321. It rejected the foreseeability standard articu-
lated in Burns and Purzycki, and overruled those cases
to the extent that they had promulgated that standard.
Id., 323. We therefore seek to apply the new test estab-
lished by our Supreme Court.21
Thus, as we view Haynes, in order to qualify under
the imminent harm exception, a plaintiff must satisfy
a four-pronged test. First, the dangerous condition
alleged by the plaintiff must be ‘‘apparent to the munici-
pal defendant.’’ Id. We interpret this to mean that the
dangerous condition must not be latent or otherwise
undiscoverable by a reasonably objective person in the
position and with the knowledge of the defendant.22
Second, the alleged dangerous condition must be likely
to have caused the harm suffered by the plaintiff. A
dangerous condition that is unrelated to the cause of
the harm is insufficient to satisfy the Haynes test. Third,
the likelihood of the harm must be sufficient to place
upon the municipal defendant a ‘‘clear and unequivocal
duty’’; id.; to alleviate the dangerous condition. The
court in Haynes tied the duty to prevent the harm to
the likelihood that the dangerous condition would cause
harm. Id., 321. Thus, we consider ‘‘a clear and unequivo-
cal duty’’; id., 323; to be one that arises when the proba-
bility that harm will occur from the dangerous condition
is high enough to necessitate that the defendant act to
alleviate the defect. Finally, the probability that harm
will occur must be so high as to require the defendant
to act immediately to prevent the harm.
All four of these prongs must be met to satisfy the
Haynes test, and our Supreme Court concluded that the
test presents a question of law. Id., 313. If no reasonable
juror could find that even any one of the prongs could
be met, then the imminent harm exception is unavailing.
See id., 326. We therefore consider this new test as
applied to the facts of the present case.
The test articulated by the court in Haynes is highly
fact specific. When analyzing the plaintiff’s claims to see
whether they fell within the imminent harm exception,
however, the trial court specifically considered the fore-
seeability test articulated in Burns. The trial court
applied this reasoning because the memorandum of
decision was released before Haynes. The parties in
this case argued the applicability of the identifiable
person-imminent harm exception before this court on
the bases of the record they made in the trial court,
which was crafted in light of the exception under the
law existing at that time. Because the trial court only
considered the imminent harm portion of the identifi-
able person-imminent harm test and rejected the plain-
tiff’s claims as unforeseeable under Burns, the parties
obviously did not have an opportunity to address the
new, broader, and more flexible standard articulated
by our Supreme Court in Haynes.
Because the Haynes test is a significant departure
from the foreseeability test previously considered for
imminent harm, we think that the trial court should
be given an opportunity to reconsider its decision on
summary judgment, taking into account the Haynes
test, specifically considering whether the identifiable
person-imminent harm exception applies to any of the
plaintiff’s allegations under this new standard. Further-
more, the parties should be given the opportunity to
present their submissions—factual and legal—in the
summary judgment proceedings to conform to the new
Haynes test. We therefore conclude that the appro-
priate action is to remand the case to the trial court for
reargument only on the applicability of the identifiable
person-imminent harm test to the alleged negligent dis-
cretionary acts of the defendants in accordance with
the Haynes test.
The judgment is reversed only as to the issues of
recklessness under § 52-557n (b) (8) and the applicabil-
ity of the identifiable person-imminent harm exception
to the doctrine of immunity for violations of a discre-
tionary duty, and the case is remanded with direction to
deny the motion for summary judgment and for further
proceedings according to law on those issues.
In this opinion the other judges concurred.
1
The plaintiff commenced suit against seven defendants, among whom
were the following: the Bridgeport Fire Department; Brian Rooney, chief
of the Bridgeport Fire Department; William Cosgrove, fire marshal for the
city of Bridgeport; William Finch, mayor of the city of Bridgeport; Dennis
Buckley, zoning administrator for the city of Bridgeport; and Peter Paajanen,
building official for the city of Bridgeport. We refer to these six parties as
the defendants for clarity. The seventh defendant, the Housing Authority of
the City of Bridgeport, is not a party to this appeal.
2
General Statutes § 52-557n (b) provides in relevant part: ‘‘[A] political
subdivision of the state or any employee, officer, or agent acting within the
scope of his employment or official duties shall not be liable for damages
to person or property resulting from . . . (8) failure to make an inspection
or making an inadequate or negligent inspection of any property . . . to
determine whether the property complies with or violates any law or con-
tains a hazard to health or safety, unless the political subdivision had notice
of such a violation of law or such a hazard or unless such failure to inspect
or such inadequate or negligent inspection constitutes a reckless disregard
for health or safety under all the relevant circumstances . . . .’’
3
We note that although the defendants relevant to this appeal may have
quite different responsibilities and duties relative to the decedents, they
have been treated by both sides and the trial court as essentially a single
entity with the same statutory responsibilities. As a consequence, we do
the same; however, as the parties and the trial court have not addressed
what, if any, distinctions may exist among the defendants, we suggest that
the issue be addressed on remand.
4
Pursuant to the zoning and subdivision regulations for the city of Bridge-
port, a ‘‘multifamily’’ unit is a structure containing more than three residential
units each capable of supporting a single family. See Bridgeport Zoning
Regs., art. II, § 2-2.
5
General Statutes § 29-305 (b) provides in relevant part: ‘‘Each local fire
marshal shall inspect or cause to be inspected, at least once each calendar
year . . . in the interests of public safety, all buildings and facilities of
public service and all occupancies regulated by the Fire Safety Code within
the local fire marshal’s jurisdiction . . . .’’ (Emphasis added.)
6
General Statutes § 8-58 provides in relevant part: ‘‘The property of [a
housing] authority or of any agency or instrumentality designated or
appointed by an authority shall be exempt from all local and municipal
taxes . . . .’’
7
Subsection 907.2.10.1.2.2 of § 29-292-17e of the Regulations of Connecti-
cut State Agencies provides in relevant part: ‘‘When alterations or additions
requiring a permit occur in . . . [multifamily] occupancies . . . the entire
dwelling unit shall be provided with smoke alarms located as required for
new dwellings. Such smoke alarms within existing spaces may be battery
operated and are not required to be . . . interconnected unless other remod-
eling considerations require removal of wall and ceiling coverings which
would facilitate concealed interconnected wiring.’’
It is undisputed that in the 1992 renovation of the P.T. Barnum apartments,
the plans called for the installation of interconnected smoke detectors.
8
Cosgrove’s affidavit did not express an opinion as to whether he owed
a duty to inspect the decedents’ apartment.
9
In his affidavit, Rooney stated the following:
‘‘2. With respect to the PT Barnum Apartment, specifically Building 12,
Apartment 205 (hereinafter ‘the apartment’), I am aware of and familiar
with all duties and responsibilities that any agent, servant and/or employee
of the [Bridgeport] Fire Department had with respect to that apartment at
any time prior to November 13, 2009. . . .
‘‘6. At all relevant times prior to November 13, 2009, no agent, servant
and/or employee of the Fire Department (not including members of the Fire
Marshal’s Office) was required, prescribed or directed by any rule, ordinance,
policy, procedure, statute, regulation, law, or any other type of directive,
to ever inspect the apartment at any prescribed time intervals, or to inspect
the apartment at any specific time for the presence or absence of any hazard
or condition . . . .’’
Similarly, Cosgrove attested to the following in his affidavit:
‘‘3. With respect to the PT Barnum Apartment, specifically Building 12,
Apartment 205 (hereinafter ‘the apartment’), I am aware of and familiar
with all duties and responsibilities that any agent, servant and/or employee
of the [Bridgeport] Fire Marshal’s Office had with respect to that apartment
at any time prior to November 13, 2009.’’
10
Rooney testified in relevant part during his deposition:
‘‘[The Plaintiff’s Counsel]: Chief Rooney, my question to you is, you now
realize that the fire, that the apartment in this case, apartment 205, at the
P.T. Barnum Apartments, should have been inspected annually?
‘‘[Rooney]: According to the statute, yeah.
‘‘[The Plaintiff’s Counsel]: Okay. And it is not only on the basis of inspec-
tion that, or a complaint, that the apartment is to be inspected but it’s to
be inspected annually? Regardless as to whether there is a complaint or not?
‘‘[Rooney]: Correct.
‘‘[The Plaintiff’s Counsel]: And that this knowledge came to you between
April 25, 2013, when you signed this, to today’s deposition on July 11, 2013?
‘‘[Rooney]: Yes.
‘‘[The Plaintiff’s Counsel]: And how did that information come to your
knowledge?
‘‘[The Defendants’ Counsel]: Objection to the extent it involves any discus-
sions where counsel was present.
‘‘[The Plaintiff’s Counsel]: Go ahead. I’m not asking about conversations
you had with any attorney representing the city of Bridgeport, but how did
you get the knowledge?
‘‘[Rooney]: Through the attorney.’’
11
The plaintiff concedes that this exception does not apply to the present
case, as there is no evidence that the defendants had any actual notice of
a violation before the fire.
12
Our Supreme Court has considered the specific meaning of § 52-557n
(b) (8) in a single case, Ugrin v. Cheshire, supra, 307 Conn. 364. In Urgin
the court only interpreted the plain meaning of the word ‘‘unless’’ in § 52-
557n (b) (8) to create clear exceptions to the blanket immunity for negligent
or nonexistent inspections. Ugrin v. Cheshire, supra, 381–83. Similarly, in
Smart v. Corbitt, 126 Conn. App. 788, 814–15, 14 A.3d 368, cert. denied, 301
Conn. 907, 19 A.3d 177 (2011), this court concluded that a jury reasonably
could have determined that the failure to inspect a building pursuant to § 29-
305 (b) was not reckless under the facts of that case. This court, however, did
not address what constitutes a ‘‘reckless disregard’’ under § 52-557n (b) (8).
13
This distinction maintains the separation between the recklessness and
notice exceptions under § 52-557n (b) (8). The notice exception addresses
actual notice of a defect that would violate legal standards or threaten
health or safety. The recklessness exception as defined in the present case
addresses awareness of a duty to inspect.
14
The plaintiff argues that, as ‘‘everyone is presumed to know the law,’’
the defendants were presumptively aware of their duty to inspect under
§ 29-305, and thus the failure to do so constituted reckless conduct. See
State v. Knybel, 281 Conn. 707, 713, 916 A.2d 816 (2007). We note that the
plaintiff’s broad interpretation of that presumption essentially undermines
the basic premise of § 52-557n (b) (8). Were we to adopt the plaintiff’s
interpretation of awareness, we would essentially create a form of per se
recklessness, in which any time a municipality had a duty to follow statutory
guidelines, failure to do so would constitute a reckless act. No such legal
construct exists, nor has it ever existed to the best of our knowledge, within
our jurisprudence. We therefore decline to adopt this interpretation.
15
We note that the lack of resources provided to the fire marshal’s office
may make carrying out such a duty difficult, and have at least once implied
the opposite of recklessness. See, e.g., Smart v. Corbitt, 126 Conn. App.
788, 808 and n.15, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177
(2011). The reasonableness or recklessness of that inability to act, however,
is a question that is best left, as it was in Smart, with the fact finder.
16
General Statutes § 52-557n (a) provides in relevant part: ‘‘(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 . . . (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.’’
17
Specifically, the plaintiff alleged that the proximate cause of the dece-
dents’ deaths was that the defendants:
‘‘a. Knew or should have known that the above described apartment and
building did not have a safe, reasonable and/or adequate means of egress
provided to the decedents to exit the above described apartment/building;
‘‘b. Knew or should have known that the above described apartment and/
or building did not have a safe, reasonable and/or adequate means of egress
provided to the decedents to exit the above described apartment/building
particularly during a fire;
‘‘c. Knew or should have known that the above described apartment and
building in which the decedents died did not comply with applicable federal,
state and local law, codes and/or regulations, including fire and building
safety regulations, codes and laws and/or zoning laws, codes and/or regu-
lations;
‘‘d. Knew or should have known that the above described building and
apartment was not consistent with and in conformity with recognized stan-
dards for building safety, fire safety and building and zoning laws;
‘‘e. Knew or should have known that the above described apartment and
building was previously renovated, redesigned and/or remodeled and a fire
escape and/or other reasonable means of egress from the apartment and/
or building was not provided for use of the decedents;
‘‘f. Knew or should have known that the above described apartment and
building did not have adequate, sufficient and/or proper fire suppression
and fire/smoke detection devices, including the failure to have proper smoke
detectors in the apartment and building;
‘‘g. Knew or should have known that the above described apartment and/
or building did not have adequate and/or proper fire suppression and/or fire
detection devices;
‘‘h. Failed to provide and/or install photo-electric smoke detectors in the
above described apartment and building where the decedents were caused
to die and/or ensure such devices were installed;
‘‘i. Knew or should have known that the above described apartment or
building did not have a reasonable and/or proper fire alarm system;
‘‘j. Failed to ensure that the above described apartment and/or building
had a reasonable and/or proper fire alarm system;
‘‘k. Knew or should have known that the above described apartment or
building did not have a fire sprinkler system to ensure the safety of the
residents, including the decedents;
‘‘l. Failed to ensure that the above described apartment and/or building
had a fire sprinkler system to ensure the safety of the residents of said
apartment and/or building, including the decedents;
‘‘m. Knew or should have known that a fire extinguisher was not provided
for use of tenants in the above described building or apartment, including
the decedents;
‘‘n. Knew or should have known that the above described apartment and/
or building was not safe for use by tenants, including the decedents and /
or contained hazards making it not safe for use by tenants, including the
decedents;
‘‘o. Failed to provide fire safety training including fire drill/escape training
for residents of buildings and apartments in the city of Bridgeport, including
the decedents;
‘‘p. Failed to formulate and implement or ensure implementation of fire
safety/prevention strategies and plans for residents of buildings and apart-
ments in the city of Bridgeport, including the decedents;
‘‘q. Knew or should have known that the fire and/or building inspections
of the above described apartment and/or building in which the decedents
were caused to die were not conducted although such inspections were
required to be performed, including requirements pursuant to . . . [§ 29-
305 (b)].’’
We note, of course, that we are not concerned at this stage of the proceed-
ings with the legal adequacy of any or all of these allegations, or with any
question of causation.
18
Because both parties agree that the defendants’ failure to inspect the
apartment pursuant to § 29-305 (b) constitutes a ministerial act and thus is
not immunized under § 52-557n (a) (2) (B), we confine our analysis in this
section to those remaining allegations of negligence by the defendants that
the plaintiff made in her compliant. See footnote 17 of this opinion.
19
The same process of judgment and appeal is utilized when enforcing
the state building code, and thus enforcement of that code also constitutes
a discretionary act. See General Statutes § 29-252 (d); cf. Segreto v. Bristol,
supra, 71 Conn. App. 857 (‘‘[d]eterminations as to what is reasonable or
proper under a particular set of circumstances necessarily involve the exer-
cise of judgment and are, therefore, discretionary in nature’’).
20
The plaintiff does not allege either of the two other recognized excep-
tions to discretionary act immunity, namely, that the act involved wanton-
ness or intent to injure, or that a statute specifically provides for a cause
of action against the defendants due to their negligence. Doe v. Petersen,
279 Conn. 607, 615–16, 903 A.2d 191 (2006).
21
We note briefly that retroactive application of Haynes is appropriate
in this case. ‘‘[A]s a general rule, judicial decisions apply retroactively. . . .
A decision will not be applied retroactively only if (1) it establishes a new
principle of law, either by overruling past precedent on which the litigants
have relied . . . or by deciding an issue of first impression whose resolution
was not clearly foreshadowed . . . (2) given its prior history, purpose and
effect, retroactive application of the rule would retard its operation; and
(3) retroactive application would produce substantial inequitable results,
injustice or hardship.’’ (Internal quotation marks omitted.) Avolletta v. State,
152 Conn. App. 177, 186 n.2, 98 A.3d 839, cert. denied, 314 Conn. 944, 102
A.3d 1116 (2014). As we are remanding this case to the trial court for proper
consideration under Haynes, none of these considerations is at issue in the
present matter.
22
The majority in Haynes explicitly took no position on whether a defect
that is ‘‘apparent’’ to a municipal defendant required actual knowledge of
the defective condition; see Haynes v. Middletown, supra, 314 Conn. 323
n.15; although Justice Eveleigh’s concurrence stressed his belief that the
language of § 52-557n (a) (1) implied that a form of constructive knowledge
would be sufficient given the circumstances of that case. Id., 338–39 (Eve-
leigh, J., concurring). It is not clear in Haynes whether the test is subjective—
that the defect was actually apparent to the defendant—or objective—that
the defect would be apparent to a reasonable person in the position of the
municipal defendant.
We note that our Supreme Court, in one of its earliest cases, considered
an apparent defect one that an individual would have been presumed to
have observed based on the nature of the defect, implying that a defect that
is apparent does not need to be actually observed. See Sherwood v. Salmon,
5 Day 439, 449–50 (1813). It is the same definition of an ‘‘apparent defect’’
provided for in Black’s Law Dictionary. See Black’s Law Dictionary (9th
Ed. 2009). We surmise, therefore, that the test is an objective one; that so
long as a reasonable person in the position of the municipal defendant
would be able to observe the defect, it is understood that the defect would
be apparent to a municipal defendant. This conclusion also maintains consis-
tency between the apparentness criteria used for determining imminent
harm, and the apparentness criteria used in the third prong of the identifiable
person-imminent harm exception to determine whether an official’s conduct
is likely to subject the identifiable person to that imminent harm. See Edger-
ton v. Clinton, 311 Conn. 217, 231–32, 86 A.3d 437 (2014) (apparentness
test for third prong of identifiable person-imminent harm exception is objec-
tive test).