St. Pierre v. Town of Plainfield

1 4 56 7 DAVID L. ST. PIERRE v. TOWN 8 OF PLAINFIELD ET AL. 9 10 (SC 19871) 11 Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, 13 12 Robinson and D’Auria, Js. 14 15 Syllabus 16 The plaintiff sought to recover damages from the defendant town for per- 17 sonal injuries he sustained after falling on wet steps located at the 18 defendant’s municipal pool. The plaintiff fell after participating in an 19 aqua therapy session conducted by the defendant E Co., which had paid 20 the town a nominal hourly fee to reserve the pool two or three times 21 per week. The town provided a lifeguard during the aqua therapy ses- 22 sions and was responsible for the cleaning and general maintenance of 23 the pool. E Co. did not have a formal contract with the town to reserve 24 the pool, but used a one page form letter that provided basic information 25 regarding the reservation. The town filed a motion for summary judg- 26 ment, claiming that municipal immunity precluded the plaintiff’s action 27 because the alleged acts or omissions involved the town’s judgment or 28 discretion, the operation of the pool was a government function, and 29 no exception to municipal discretionary act immunity had been shown. 30 The plaintiff countered that municipal immunity had been abrogated 31 either by the exception under the statute (§ 52-577n [a] [1] [B]) providing 32 that a municipality shall be liable for damages caused by its negligence 33 in the performance of a proprietary function from which it derives a 34 special corporate profit or pecuniary benefit, or by the identifiable per- 35 son, imminent harm exception. The trial court granted the town’s motion 36 for summary judgment on the ground that the town was immune from 37 liability, concluding that the operation of the pool was a government 38 function and that the town had operated the pool at a financial loss. 39 The court also found that the identifiable person, imminent harm excep- 40 tion did not apply because the plaintiff was voluntarily present at the 41 aqua therapy program, and the water on and around the pool surfaces 42 did not qualify as an imminent harm. The plaintiff appealed from the 43 judgment in favor of the town, claiming that the trial court incorrectly 44 concluded that the town was immune from liability because it had 45 derived a special corporate profit or pecuniary benefit from renting the 46 pool to E Co., a for-profit business, for a fee, or because he constituted 47 an identifiable person subject to imminent harm. Held: 48 1. The town’s operation of its municipal pool constituted a governmental 49 function from which it did not derive a special corporate or pecuniary 50 benefit so as to abrogate its discretionary act immunity: the town did 51 not derive a special corporate profit or pecuniary benefit by renting the 52 pool to E Co. for its private use, as the aqua therapy program fit within 53 the general public purposes of a municipal pool because it promoted 54 health and exercise, the fee that the town charged E Co. for use of the 55 pool was nominal, the total fees collected from all parties renting the 56 pool did not cover the annual costs of maintaining the pool, the pool 57 was rented without a formal lease or contract, and the town continued 58 to provide a lifeguard and maintain responsibility for the general mainte- 59 nance of the pool; furthermore, the plaintiff could not prevail on his 60 claim that this court should determine the profitability of the pool by 61 evaluating the fees paid by only E Co. with respect to the period of 62 time that E Co. had reserved the pool, as that argument was not raised 63 before the trial court, and this court has never used that method to 64 determine whether a municipality derived a profit; moreover, extending 65 the abrogation of municipal immunity to situations, such as the one 66 here, in which a town allows the private use of its facilities for a nominal 67 fee, could expose municipalities to great liability and deter them from 68 continuing to allow their facilities to be used by outside parties. 69 2. The identifiable person, imminent harm exception did not abrogate the 70 town’s municipal immunity, as the plaintiff was not an identifiable person 71 or a member of an identifiable class of persons for purposes of that 72 exception; the fact that the plaintiff was not compelled to attend the 73 aqua therapy sessions provided by E Co., but had voluntarily decided 74 to use E Co.’s services, precluded this court from concluding that he 75 was a person or in a group of persons identifiable to the lifeguard on 76 77 duty as a potential victim or victims of an imminent harm. 78 79 Argued May 1—officially released August 8, 2017 82 81 80 Procedural History 83 Action to recover damages for personal injuries sus- 84 tained as a result of defendants’ alleged negligence, 85 brought to the Superior Court in the judicial district 86 of Windham, where the court, Boland, J., granted the 87 named defendant’s motion to strike and granted the 88 named defendant’s motion for summary judgment and 89 rendered judgment thereon; thereafter, the court, 90 Calmar, J., granted the named defendant’s motion for 91 judgment as to the stricken count of the complaint and 92 rendered judgment thereon, from which the plaintiff 93 94 appealed. Affirmed. Mary M. Puhlick, for the appellant (plaintiff). 96 Thomas R. Gerarde, with whom, on the brief, was 97 99 98 Katherine E. Rule, for the appellee (named defendant). 100 101 Opinion 102 ROGERS, C. J. The issue raised in this appeal is 103 whether municipal immunity is abrogated by either the 104 proprietary function exception of General Statutes § 52- 105 557n1 or the identifiable person, imminent harm excep- 106 tion. Specifically, we must decide whether there is 107 municipal immunity when a town charges a nominal 108 fee to a private group for reserved use of a public 109 pool and an individual group member slips and falls on 110 accumulated water in the vicinity of that pool. The 111 plaintiff, David L. St. Pierre, appeals from the judgment 112 rendered in favor of the named defendant, the town of 113 Plainfield,2 after concluding that no exception to the 114 defendant’s general immunity applied.3 The plaintiff 115 claims that the trial court improperly concluded that 116 the defendant was immune from liability because (1) 117 the defendant derived a special corporate profit or pecu- 118 niary benefit through its operation of the pool, or (2) 119 the plaintiff constituted an identifiable person subject 120 to imminent harm. We disagree with each of these 121 claims and, accordingly, affirm the judgment of the 122 trial court. 123 The following undisputed facts and procedural his- 124 tory are relevant to this appeal. The plaintiff filed this 125 negligence action against the defendant and Eastern 126 Connecticut Rehabilitation Center, Inc. (Eastern); see 127 footnote 2 of this opinion; to recover for injuries he 128 allegedly sustained in an August 26, 2011 fall on wet 129 steps after participating in an aqua therapy session. 130 This session was conducted by Eastern in a pool owned 131 by the defendant, which is located in the defendant’s 132 town hall building. The plaintiff alleged that he slipped 133 and fell on the steps, which were covered with approxi- 134 mately one-quarter inch of water, on his way to the 135 men’s locker room. None of the defendant’s employees 136 witnessed the incident, nor had there been any previous 137 complaints about the condition of the steps. 138 Since 1994, Eastern, through its manager Penny Allyn, 139 had reserved the pool two to three times per week for 140 one hour sessions to provide aqua therapy services to 141 its rehabilitation patients. Since 2006, Eastern has paid 142 the defendant $50 per reserved hour for the exclusive 143 use of the pool during the sessions.4 Participation in 144 the aqua therapy program ranged from two to seven 145 individuals per session. During the reserved times, the 146 defendant provided a lifeguard and remained responsi- 147 ble for the cleaning and general maintenance of the 148 pool. There was no formal contract between the defen- 149 dant and Eastern. Rather, a one page form letter gener- 150 ally used to make reservations provides the rules of 151 pool use, in addition to listing the usage fee, the time 152 of the reservation, and the party making the reservation. 153 Eastern is not the only program that utilizes the pool. 154 Myra Ambrogi, the defendant’s recreation director, 155 stated in her affidavit that the pool is generally open 156 to the public as well as for organizations that pay the 157 usage fee. Activities held at the pool include swim les- 158 sons, open swim periods, and exercise classes. 159 In discussing the pool’s financials, Ambrogi stated in 160 her affidavit that the costs of operating the pool for 161 the fiscal year from July 1, 2011 to July 1, 2012, were 162 $81,315.42 and that total revenue of $75,605.96 was 163 taken in during the same time frame, including the fees 164 from Eastern. Thus, the pool operated at a loss of 165 $5709.46. Ambrogi’s figures included operational costs 166 such as the lifeguards’ salaries, instructor fees, equip- 167 ment, pool chemicals and cleaning supplies, but did not 168 include electricity, heat, water, maintenance employ- 169 ees’ salaries, or consumable supplies. 170 The plaintiff filed this action on August 19, 2013, 171 alleging that the defendant had been negligent in various 172 ways and that the plaintiff had been injured as a result. 173 On January 30, 2015, the defendant filed a motion for 174 summary judgment, claiming that municipal immunity 175 applied to preclude the plaintiff’s action because any 176 acts or omissions alleged by the plaintiff involved judg- 177 ment or discretion, the operation of the pool was a 178 governmental function, and no exception to discretion- 179 ary act immunity had been shown. The plaintiff 180 objected, arguing that municipal immunity did not 181 attach because the defendant’s operation of the pool 182 constituted a proprietary function and, in the alterna- 183 tive, that the identifiable person, imminent harm excep- 184 tion to immunity applied. In an August, 2015 185 memorandum of decision, the trial court agreed with 186 the defendant that it was immune from liability. As 187 to the proprietary function exception, the trial court 188 concluded that the defendant’s operation of a municipal 189 pool was a governmental function and did not create 190 a profit for the defendant. In regard to the identifiable 191 person, imminent harm exception, the trial court con- 192 cluded that the plaintiff was not an identifiable person 193 given his voluntary presence at the aqua therapy pro- 194 gram and that the water on and around the pool surfaces 195 did not qualify as an imminent harm. This appeal 196 followed.5 197 On appeal, the plaintiff does not contest that the 198 allegedly negligent acts of the defendant are discretion- 199 ary in nature and, therefore, are generally entitled to 200 immunity. See Haynes v. Middletown, 314 Conn. 303, 201 312, 101 A.3d 249 (2014). Consequently, we confine our 202 analysis to whether municipal immunity is abrogated 203 by an exception. 204 We begin with the standard of review and applicable 205 law. ‘‘The standard of review of a trial court’s decision 206 granting summary judgment is well established. Prac- 207 tice Book § 17-49 provides that summary judgment shall 208 be rendered forthwith if the pleadings, affidavits and 209 any other proof submitted show that there is no genuine 210 issue as to any material fact and that the moving party 211 is entitled to judgment as a matter of law. In deciding 212 a motion for summary judgment, the trial court must 213 view the evidence in the light most favorable to the 214 nonmoving party. . . . The party moving for summary 215 judgment has the burden of showing the absence of 216 any genuine issue of material fact and that the party 217 is, therefore, entitled to judgment as a matter of law. 218 . . . Our review of the trial court’s decision to grant 219 the defendant’s motion for summary judgment is ple- 220 nary. . . . On appeal, we must determine whether the 221 legal conclusions reached by the trial court are legally 222 and logically correct and whether they find support in 223 the facts set out in the memorandum of decision of the 224 trial court.’’ (Internal quotation marks omitted.) Cefara- 225 tti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). 226 Specifically, whether municipal immunity applies is a 227 matter of law for the court to decide when there are 228 no unresolved factual questions material to the issue. 229 Edgerton v. Clinton, 311 Conn. 217, 227, 86 A.3d 437 230 (2014). 231 I 232 The plaintiff claims first that the proprietary function 233 exception applies to abrogate the defendant’s immu- 234 nity. The proprietary function exception is codified in 235 § 52-557n (a) (1) (B), which provides in relevant part: 236 ‘‘Except as otherwise provided by law, a political subdi- 237 vision of the state shall be liable for damages to person 238 or property caused by . . . negligence in the perfor- 239 mance of functions from which the political subdivision 240 derives a special corporate profit or pecuniary benefit 241 . . . .’’ (Emphasis added.) The plaintiff contends that 242 the defendant derived a special corporate profit or pecu- 243 niary benefit from the operation of its municipal pool 244 because it rented that pool to Eastern, a for-profit entity, 245 for a fee. We disagree. 246 In Considine v. Waterbury, 279 Conn. 830, 837–48, 247 905 A.2d 70 (2006), we undertook a comprehensive 248 analysis of § 52-557n (a) (1) (B). We concluded that the 249 statutory provision ‘‘codifies the common-law rule that 250 municipalities are liable for their negligent acts commit- 251 ted in their proprietary capacity,’’ as opposed to in their 252 governmental one.6 Id., 844. Liability for proprietary 253 acts means that a municipality ‘‘is liable to the same 254 extent as in the case of private corporations or individu- 255 als . . . .’’7 (Internal quotation marks omitted.) Id., 843. 256 To determine whether the defendant is subject to such 257 liability in the present case, we analyze whether the 258 defendant derives a special corporate profit or pecuni- 259 ary benefit from the function of operating its pool, in 260 other words, whether that function is proprietary.8 261 We previously have concluded that, ‘‘[i]f a municipal- 262 ity is acting only as the ‘agent or representative of the 263 state in carrying out its public purposes’; Winchester 264 v. Cox, [129 Conn. 106, 109, 26 A.2d 592 (1942)]; then 265 it clearly is not deriving a special corporate benefit or 266 pecuniary profit. Two classes of activities fall within 267 the broader category of acting as the agent of the state: 268 ‘[1] those imposed by the [s]tate for the benefit of the 269 general public, and [2] those which arise out of legisla- 270 tion imposed in pursuance of a general policy, mani- 271 fested by legislation affecting similar corporations, for 272 the particular advantage of the inhabitants of the munic- 273 ipality, and only through this, and indirectly, for the 274 benefit of the people at large. . . . For example, the 275 maintenance of the public peace or prevention of dis- 276 ease would fall within the first class; Keefe v. Union, 277 76 Conn. 160, 166, [56 A. 571 (1903)]; while the mainte- 278 nance of a park system would fall within the second 279 class.’ ’’ Considine v. Waterbury, supra, 279 Conn. 845– 280 46. ‘‘[T]he second class of activities encompasses func- 281 tions that appear to be for the sole benefit of a 282 municipality’s inhabitants, but nevertheless provide 283 indirect benefits to the general public because the activ- 284 ities were meant to improve the general health, welfare 285 or education of the municipality’s inhabitants.’’ Id., 846. 286 Historically, we have concluded that operating a 287 municipal pool constitutes a governmental function. 288 Hannon v. Waterbury, 106 Conn. 13, 17–18, 136 A. 876 289 (1927). In Hannon, this court recognized that munici- 290 palities operating swimming pools are performing a 291 governmental function, because the municipality is 292 effecting the ‘‘education of the people of the city in 293 teaching them to swim and thus guarding their lives 294 against the accident of drowning, promoting a most 295 useful and beneficial form of exercise, and teaching 296 cleanliness of habits of living and thus preserving their 297 health.’’ Id., 18. 298 The General Statutes support Hannon’s holding. Gen- 299 eral Statutes § 7-130b authorizes municipalities to cre- 300 ate recreational authorities or departments. Such 301 bodies are ‘‘deemed to be . . . instrumental[ities] exer- 302 cising public and essential government functions to pro- 303 vide for the public health and welfare . . . .’’9 General 304 Statutes § 7-130d. Municipal recreational authorities or 305 departments are statutorily empowered to construct 306 and operate a variety of projects; see General Statutes 307 § 7-130d (c); including, specifically, ‘‘swimming pools.’’ 308 General Statutes § 7-130a (d). 309 The plaintiff claims that the nature of the use of the 310 pool in this case is distinguishable from that at issue 311 in Hannon. Specifically, he argues that the defendant 312 here is renting the pool to Eastern for use in its business, 313 but the defendant city in Hannon served children and 314 individuals via swim lessons. In the plaintiff’s view, 315 rental of municipal property to a private party is a 316 proprietary action. To determine whether renting a 317 municipal pool to a business for private use constitutes 318 a change in the nature of the activity sufficient to abro- 319 gate immunity, we must review our case law on the 320 charging of fees for use of a municipal property. 321 We have concluded previously that a ‘‘municipality 322 may . . . charge a nominal fee for participation in a 323 governmental activity and it will not lose its governmen- 324 tal nature as long as the fee is insufficient to meet the 325 activity’s expenses.’’ Considine v. Waterbury, supra, 326 279 Conn. 847. In Hannon, for example, we concluded 327 that charging nominal fees for swimming lessons10 did 328 not alter the governmental nature of running a munici- 329 pal swimming pool. Hannon v. Waterbury, supra, 106 330 Conn. 18–19. We reasoned that the ‘‘money taken in did 331 not pay the entire expense of operating the pool,’’ in 332 particular, by failing to ‘‘pay for the large amount of 333 electricity used in operating the motor, drying the hair 334 and lighting, coal, water, chemicals used in the water, 335 [as well as] the rental value or maintenance of the part 336 of the building used and the equipment . . . .’’ Id., 15. 337 Because the pool actually was operated at a loss, the 338 fees charged did not constitute a ‘‘profit,’’ but, rather, 339 ‘‘the charge was a mere incident of the public service 340 rendered in the performance of a governmental duty.’’ 341 Id., 18; see also Carta v. Norwalk, 108 Conn. 697, 702, 342 145 A. 158 (1929) (to qualify as proprietary function 343 ‘‘operation must contemplate and involve revenue of 344 such amount and nature as to signify a profit resulting 345 thereform, as distinguished from the imposition of such 346 a nominal or small fee or charge as may fairly be 347 regarded as a mere incident of the public service 348 rendered’’). 349 In contrast, a ‘‘municipality generally has been deter- 350 mined to be acting for its own special corporate benefit 351 or pecuniary profit where it engages in an activity ‘for 352 the particular benefit of its inhabitants’ . . . or if it 353 derives revenue in excess of its costs from the activ- 354 ity.’’11 (Citations omitted.) Considine v. Waterbury, 355 supra, 279 Conn. 847. Specifically, a municipality may 356 act in its proprietary capacity by ‘‘leas[ing] municipal 357 property to private individuals.’’ Id., 849 (citing cases). 358 Nevertheless, we have cautioned against treating 359 ‘‘actual pecuniary profit’’ alone as determinative of 360 whether a function is proprietary because it could 361 encourage municipalities to skirt tort liability by 362 avoiding ‘‘ ‘implementation of cost-efficient measures 363 [while] encourag[ing] deficit spending’ ’’ to maintain a 364 loss in the financial year. Id., 847 n.11. Still, a proprietary 365 function has been found where the municipality is ‘‘act 366 [ing] ‘very much like private enterprise . . . .’ ’’ Id., 848, 367 quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984) 368 § 131, p. 1053. 369 The following examples are illustrative. In renting 370 out part of its municipal golf course to a single private 371 party for use as a restaurant for approximately $29,000 372 per year, the defendant city in Considine v. Waterbury, 373 supra, 279 Conn. 833, 850–51, was deemed to have acted 374 in a proprietary capacity because such a lease ‘‘stands 375 in stark contrast from those activities in which this 376 court has determined that the municipality was acting 377 as the state’s agent for the direct or indirect benefit of 378 the general public.’’ The city’s collection of ‘‘a substan- 379 tial rent [from] a private party to operate a business 380 . . . very much resembles private enterprise’’ in its 381 ‘‘nature and character.’’ (Emphasis added.) Id., 851. Sim- 382 ilarly, the annual rental of a municipal beach pavilion 383 for a fee of $2500 in 1926 to a private party constituted 384 prima facie evidence of a profit for the defendant city. 385 Carta v. Norwalk, supra, 108 Conn. 701–702; see also 386 Blonski v. Metropolitan District Commission, 309 387 Conn. 282, 284, 71 A.3d 465 (2013) (defendant liable 388 because conduct with respect to gate that injured plain- 389 tiff inextricably linked to defendant’s proprietary water 390 supply operation); Martel v. Metropolitan District 391 Commission, 275 Conn. 38, 55–56, 881 A.2d 194 (2005) 392 (defendant immune from liability, as conduct not con- 393 nected to proprietary operation of for-profit water sup- 394 ply company). 395 Evaluating the plaintiff’s claims against this legal 396 background, we conclude that the defendant’s opera- 397 tion of its municipal pool does not constitute a proprie- 398 tary function so as to abrogate its discretionary act 399 immunity. First, the defendant’s rental of its pool to an 400 aqua therapy program two or three times a week fits 401 within the general public purposes espoused in Han- 402 non. By allowing use of the pool, the defendant is pro- 403 moting health and exercise for those using the pool, 404 purposes that are entirely within Hannon’s framework. 405 See Hannon v. Waterbury, supra, 106 Conn. 18. Second, 406 the fee charged to Eastern is, like the fees charged in 407 Hannon, nominal, and the total fees collected from all 408 parties reserving the pool do not cover the costs of 409 maintaining the pool. Instead, in the year in question, 410 the pool’s expenses exceeded revenues by more than 411 $5000, even without considering such things as electric- 412 ity and water costs. This undercuts the plaintiff’s asser- 413 tion that the municipality is acting like a ‘‘private 414 enterprise.’’ (Internal quotation marks omitted.) Con- 415 sidine v. Waterbury, supra, 279 Conn. 848. Most private 416 enterprises do not operate at a loss, or they will cease 417 to exist. Also, the defendant’s nominal fee of $50 per 418 hour had remained stable for several years, further sug- 419 gesting that profit is not a goal; cf. id., 833 (noting that 420 rent charged to private party increased annually as lease 421 term); but, rather, that the fee ‘‘was a mere incident of 422 the public service rendered in the performance of a 423 governmental duty.’’ Hannon v. Waterbury, supra, 18. 424 Third, unlike in Considine and Carta v. Norwalk, supra, 425 108 Conn. 699, private parties, like Eastern, who reserve 426 the pool do so without a formal lease or contract and 427 for only short periods of time. Aside from the equivalent 428 of a sign-up sheet that Eastern’s manager fills out and 429 the consistency with which Eastern has used the pool, 430 nothing in Eastern’s reservation of the pool resembles a 431 binding commercial lease. As mentioned, the defendant 432 continues to provide a lifeguard during reserved times 433 and to retain responsibility for the general maintenance 434 of the pool. 435 The plaintiff claims that, even if no actual profit was 436 gained by the defendant’s operation of the pool overall, 437 this court should determine profitability by evaluating 438 the fees paid by Eastern with reference to the periods 439 of time that Eastern reserved the pool, and conclude 440 that Eastern’s fee for its use exceeded the costs of 441 operating the pool for those periods of time. Specifi- 442 cally, the plaintiff reasons that, annually, Eastern is 443 contributing $7800 for 156 hours of use, an amount that 444 exceeds the costs attributable to the pool for that period 445 of time. This argument was not raised in the trial court 446 and should not be raised for the first time on appeal, 447 particularly in the absence of an undisputed factual 448 record to support it.12 See, e.g., White v. Mazda Motor 449 of America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079 450 (2014). In any event, we have never before held that, 451 to determine whether a municipality derives a profit, the 452 measure of revenues to expenses should be determined 453 based on the exact proportion of time a private com- 454 pany uses a facility relative to the yearly costs of 455 operating that facility. Because the plaintiff has not 456 provided any authority in support of this inventive 457 approach to evaluating profitability, we decline to 458 adopt it. 459 It bears mentioning that extending the abrogation of 460 municipal immunity to any situation in which a town 461 allows the private use of its facilities for a nominal fee 462 potentially could expose municipalities to great liabil- 463 ity. In the face of such a threat, no rational municipality 464 would continue to allow its municipal facilities to be 465 used by outside parties. This would be detrimental to 466 the enjoyment and use of municipal facilities by any 467 smaller group of the general public that might wish to 468 use these facilities. Under such restrictions, private, 469 nonprofit, and other independent groups would be pre- 470 vented from utilizing public parks, softball fields and, 471 yes, pools. On the basis of the foregoing analysis, we 472 conclude that the defendant’s operation of the munici- 473 pal pool constitutes a governmental function, and, by 474 operating the pool, the defendant does not derive a 475 special corporate profit or pecuniary benefit. 476 II 477 We turn next to whether any other recognized excep- 478 tion to immunity is in play. Three exceptions to discre- 479 tionary act immunity are recognized,13 but only one is 480 relevant here: the identifiable person, imminent harm 481 exception. Pursuant to this exception, liability is not 482 precluded when ‘‘the circumstances make it apparent 483 to the public officer that his or her failure to act would 484 be likely to subject an identifiable person to imminent 485 harm . . . .’’ (Internal quotation marks omitted.) Doe 486 v. Petersen, 279 Conn. 607, 615–16, 903 A.2d 191 (2006). 487 The plaintiff contends that he qualifies as an identifiable 488 person subject to imminent harm by virtue of his pres- 489 ence at the defendant’s pool for the aqua therapy ses- 490 sion provided by Eastern. Specifically, he contends that 491 he was an identifiable individual to the on duty lifeguard 492 employed by the defendant. We disagree that the plain- 493 tiff qualifies as an identifiable person and, therefore, 494 conclude that this exception does not apply to abrogate 495 the defendant’s municipal immunity. 496 ‘‘[T]he identifiable person, imminent harm exception 497 to qualified immunity for an employee’s discretionary 498 acts is applicable in an action brought under § 52-557n 499 (a) to hold a municipality directly liable for those acts.’’ 500 Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684 501 (2009). The exception requires three elements: ‘‘(1) an 502 imminent harm; (2) an identifiable victim; and (3) a 503 public official to whom it is apparent that his or her 504 conduct is likely to subject that victim to that harm 505 . . . . We have stated previously that this exception to 506 the general rule of governmental immunity for employ- 507 ees engaged in discretionary activities has received very 508 limited recognition in this state. . . . If the plaintiffs 509 fail to establish any one of the three prongs, this failure 510 will be fatal to their claim that they come within the 511 imminent harm exception.’’ (Internal quotation marks 512 omitted.) Strycharz v. Cady, 323 Conn. 548, 573–74, 513 148 A.3d 1011 (2016).14 514 ‘‘An allegedly identifiable person must be identifiable 515 as a potential victim of a specific imminent harm. Like- 516 wise, the alleged imminent harm must be imminent in 517 terms of its impact on a specific identifiable person.’’ 518 (Internal quotation marks omitted.) Cotto v. Board of 519 Education, 294 Conn. 265, 276, 984 A.2d 58 (2009). 520 Generally, we have held that a party is an identifiable 521 person when he or she is compelled to be somewhere. 522 See Strycharz v. Cady, supra, 323 Conn. 575–76 (‘‘[o]ur 523 decisions underscore . . . that whether the plaintiff 524 was compelled to be at the location where the injury 525 occurred remains a paramount consideration in 526 determining whether the plaintiff was an identifiable 527 person or member of a foreseeable class of victims.’’ 528 [internal quotation marks omitted]). Accordingly, ‘‘[t]he 529 only identifiable class of foreseeable victims that we 530 have recognized . . . is that of schoolchildren 531 attending public schools during school hours because: 532 they were intended to be the beneficiaries of particular 533 duties of care imposed by law on school officials; they 534 [are] legally required to attend school rather than being 535 there voluntarily; their parents [are] thus statutorily 536 required to relinquish their custody to those officials 537 during those hours; and, as a matter of policy, they 538 traditionally require special consideration in the face 539 of dangerous conditions.’’ (Internal quotation marks 540 omitted.) Id., 576. 541 Outside of the schoolchildren context, we have recog- 542 nized an identifiable person under this exception in 543 only one case that has since been limited to its facts.15 544 Beyond that, although we have addressed claims that 545 a plaintiff is an identifiable person or member of an 546 identifiable class of foreseeable victims in a number of 547 cases, we have not broadened our definition.16 See, e.g., 548 Cotto v. Board of Education, supra, 294 Conn. 267–68, 549 279 (director of community based summer youth pro- 550 gram located in public school was not identifiable per- 551 son when he slipped in wet bathroom because ‘‘then 552 so was every participant and supervisor in the Latino 553 Youth program who used the bathroom,’’ and anyone 554 ‘‘could have slipped at any time’’ [emphasis in original]); 555 see also Coe v. Board of Education, 301 Conn. 112, 556 119–20, 19 A.3d 640 (2011) (student injured while 557 attending middle school graduation dance occurring off 558 school grounds did not qualify as member of identifiable 559 class of foreseeable victims because she was not 560 required to attend dance); Grady v. Somers, supra, 294 561 Conn. 328, 355–56 (permit holder injured at refuse trans- 562 fer station owned by town did not qualify as identifiable 563 person despite being paid permit holder and resident 564 of town); Durrant v. Board of Education, 284 Conn. 565 91, 96, 104, 108, 931 A.2d 859 (2007) (mother who slipped 566 and fell while picking up her child from optional after- 567 school day care program run in conjunction with public 568 school did not qualify as member of identifiable class 569 of foreseeable victims because program was optional); 570 Prescott v. Meriden, 273 Conn. 759, 761–62, 764–65, 571 873 A.2d 175 (2005) (parent voluntarily attending high 572 school football game to watch his child play was not 573 member of identifiable class of foreseeable victims 574 because he was not compelled to attend, school officials 575 lacked similar duties of care to him as to child given his 576 status as parent, and exception is ‘‘narrowly defined’’ 577 [internal quotation marks omitted]); Evon v. Andrews, 578 211 Conn. 501, 508, 559 A.2d 1131 (1989) (‘‘[t]he class 579 of possible victims of an unspecified fire that may occur 580 at some unspecified time in the future is by no means 581 a group of ‘identifiable persons’ ’’). 582 In the present case, the plaintiff was in no way com- 583 pelled to attend the aqua therapy sessions provided by 584 Eastern. Instead, he voluntarily decided to use Eastern’s 585 services. Under established case law, this choice pre- 586 cludes us from holding that the plaintiff was an identifi- 587 able person or a member of an identifiable class of 588 persons. As the identifiable person, imminent harm 589 exception requires conjunctive proof of both, our deter- 590 mination that the plaintiff does not qualify as an identifi- 591 able person ends our analysis, and we need not consider 592 whether an imminent harm existed on these facts. 593 The judgment is affirmed. 595 594 In this opinion the other justices concurred. 1 596 General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as 597 otherwise provided by law, a political subdivision of the state shall be liable 598 for damages to person or property caused by . . . (B) negligence in the 599 performance of functions from which the political subdivision derives a 600 special corporate profit or pecuniary benefit . . . . (2) Except as otherwise 601 provided by law, a political subdivision of the state shall not be liable for 602 damages to person or property caused by . . . (B) negligent acts or omis- 603 sions which require the exercise of judgment or discretion as an official 604 function of the authority expressly or impliedly granted by law.’’ 2 605 Eastern Connecticut Rehabilitation Center, Inc., was also named as a 606 defendant in this action. Because the plaintiff appealed after the court 607 disposed of all claims in this action against the town of Plainfield; see 608 Practice Book § 61-3; and Eastern Connecticut Rehabilitation Center, Inc., 609 is not a party to this appeal, we refer in this opinion to the town of Plainfield 610 as the defendant. 3 611 The plaintiff alleged two counts against the defendant, one pursuant to 612 § 52-557n and the other pursuant to General Statutes § 7-465, a municipal 613 indemnification statute. The trial court struck the § 7-465 count because the 614 plaintiff did not identify a town employee for whom indemnification was 615 sought. See Altfeter v. Naugatuck, 53 Conn. App. 791, 799, 732 A.2d 207 616 (1999). After the plaintiff failed to replead his § 7-465 claim in a viable 617 fashion, the trial court rendered judgment on that claim in the defendant’s 618 favor. Only the § 52-557n count is at issue in this appeal. 4 619 Eastern now pays the defendant $60 for each reserved hour of use. 5 620 The plaintiff appealed to the Appellate Court, and this court transferred 621 the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice 622 Book § 65-1. 6 623 ‘‘[A] municipal government is viewed as having a double function, first, 624 the proprietary or corporate function, and, second, the governmental func- 625 tion as the arm or agent of the state. Sovereign immunity protects sovereign 626 governments, such as states, and municipalities when acting as agents of 627 the state, but not municipal corporations acting on their own behalf.’’ 18 628 E. McQuillin, Municipal Corporations (3d Ed. Rev. 2003) § 53.23, p. 381. 7 629 We have acknowledged that ‘‘[w]hen a governmental entity engages in 630 conduct for its own corporate benefit in a manner that poses an unreasonable 631 risk of harm to others, we can perceive of no reason why it should not be 632 held responsible for all of the consequences of that conduct, just as a private 633 person would be.’’ Blonski v. Metropolitan District Commission, 309 Conn. 634 282, 295–96, 71 A.3d 465 (2013). 8 635 At oral argument, the plaintiff suggested using separate definitions for 636 special corporate profit and pecuniary benefit; however, this court analyzed 637 those two phrases together in Considine, and we see no reason to waver 638 from that analysis today. 9 639 According to Ambrogi’s affidavit, the swimming pool at issue in this case 640 is operated by the defendant and its recreation department. 10 641 The defendant in Hannon charged ten cents per lesson for children and 642 twenty cents for adults. Hannon v. Waterbury, supra, 106 Conn. 14. 11 643 We do not read Considine as suggesting that, simply because an activity 644 is offered only to a municipality’s residents, the municipality necessarily 645 loses its immunity. Rather, even in such circumstances, activities that are 646 meant to improve the general health, welfare or education of the municipali- 647 ty’s inhabitants are deemed to indirectly benefit the general public and, 648 thus, constitute activities performed as an agent of the state. Considine v. 649 Waterbury, supra, 279 Conn. 846. The distinction is not implicated in this 650 case, however, because the defendant permitted private groups to reserve 651 use of the pool without including the residency information of their individ- 652 ual group members. 12 653 For example, the record does not reveal the total number of hours that 654 the pool is available in a year. Moreover, as previously noted, the expenses 655 identified by the defendant for running the pool do not include all expenses 656 pertaining to the pool, but specifically exclude the costs of electricity, heat, 657 water, maintenance employees’ salaries, and consumable supplies. 13 658 Liability for a municipality’s discretionary act is not precluded when 659 (1) ‘‘the alleged conduct involves malice, wantonness or intent to injure’’; (2) 660 ‘‘a statute provides for a cause of action against a municipality or municipal 661 official for failure to enforce certain laws’’; or (3) ‘‘the circumstances make 662 it apparent to the public officer that his or her failure to act would be likely 663 to subject an identifiable person to imminent harm . . . .’’ (Citations omit- 664 ted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 665 615–16, 903 A.2d 191 (2006). 14 666 We have previously held that the identifiable person, imminent harm 667 exception ‘‘applies in an action brought directly against [a] municipalit[y] 668 pursuant to § 52-557n (a) (1) (A), regardless of whether an employee or 669 officer of the municipality also is a named defendant.’’ Grady v. Somers, 670 supra, 294 Conn. 348; see Benedict v. Norfolk, 296 Conn. 518, 523, 997 671 A.2d 449 (2010) (citing Grady for proposition that action may name only 672 municipality as defendant and claim identifiable person, imminent harm 673 exception). Thus, we address this issue despite the lack of a claim against 674 a specific municipal employee. 15 675 Specifically, prior to the adoption of the current three-pronged identifi- 676 able person, imminent harm analysis, we concluded that an identifiable 677 person subject to imminent harm existed among a group of intoxicated 678 individuals who were arguing and scuffling in a parking lot when a police 679 officer who spotted them failed to intervene until he heard a gunshot. Sestito 680 v. Groton, 178 Conn. 520, 522–24, 423 A.2d 165 (1979). This holding, however, 681 has been limited to its facts. Edgerton v. Clinton, supra, 311 Conn. 240. 682 Even if its holding was not so limited, Sestito would not apply in the present 683 case because, in contrast to the circumstances in Sestito, no evidence in 684 the record supports the plaintiff’s claim that he was actually identified to 685 a town official in connection with the alleged harm. 16 686 A recent Appellate Court decision, Brooks v. Powers, 165 Conn. App. 687 44, 138 A.3d 1012 (2016), cert. granted, 322 Conn. 907, 143 A.3d 603 (2016), 688 is cited by the plaintiff to support his contention that he is an identifiable 689 victim within the scope of this exception. It was not disputed in Brooks, 690 however, that the decedent was an identifiable person. This court has granted 691 the defendant’s petition for certification to appeal in Brooks, limited to the 692 issue of whether the Appellate Court properly applied the identifiable person, 693 imminent harm standard and concluded that the harm at issue was imminent. 694 Brooks v. Powers, 322 Conn. 907, 143 A.3d 603 (2016). We have examined 695 the opinion of the Appellate Court in that case and conclude that its facts 696 are highly distinguishable from those of the present case. By so observing, we 697 do not intend to express any opinion as to the merits of that pending appeal. 699 698