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ALBERT BUEHLER v. TOWN OF NEWTOWN ET AL.
(AC 43087)
Prescott, Elgo and DiPentima, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, the town
of Newtown and various school employees, for personal injuries he
sustained when he fell from a referee stand while officiating a public
high school volleyball match. The defendants filed a motion for summary
judgment, arguing that they had shown that their allegedly negligent
actions were discretionary, and thus they enjoyed governmental immu-
nity, and that the plaintiff did not fall within the identifiable person-
imminent harm exception to the governmental immunity doctrine. The
trial court granted the defendants’ motion for summary judgment, finding
that the plaintiff, a volleyball referee, was not legally compelled to be
on school premises at the time of his injury, and, accordingly, he was
not an identifiable person to whom the identifiable person-imminent
harm exception applied. On the plaintiff’s appeal to this court, held that
the trial court properly determined that no genuine issue of material
fact existed as to whether the plaintiff was an identifiable victim who
fell within the identifiable person-imminent harm exception to the gov-
ernmental immunity doctrine: the only identifiable class of foreseeable
victims that our Supreme Court has recognized is that of schoolchildren
attending public schools during school hours, and an assignment to
officiate a volleyball game after school hours is nothing like the legal
compulsion imposed by our statutes that require a child’s attendance
at school; moreover, the plaintiff conceded that he had the option to
accept or to deny the refereeing assignment, which made his presence
on the premises voluntary; furthermore, it would have been improper
to extend the identifiable victim classification, particularly because the
student athletes participating in the volleyball game over which the
plaintiff officiated would not themselves enjoy such a designation under
existing law, and there was no doctrinal justification for treating the
plaintiff differently than the schoolchildren.
Argued March 4—officially released August 3, 2021
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendants’ alleged negligence,
brought to the Superior Court in the judicial district
of Fairfield, where the court, Welch, J., granted the
defendants’ motion for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Matthew D. Popilowski, with whom, on the brief, was
Richard J. Tropiano, Jr., for the appellant (plaintiff).
John A. Blazi, for the appellees (named defendant
et al.).
Opinion
PRESCOTT, J. This is a premises liability action
brought by the plaintiff, Albert Buehler, against the
defendants, the town of Newtown (town), the Newtown
Board of Education (board), and Gregg Simon, the for-
mer athletic director of Newtown High School, arising
out of injuries he sustained after he fell from a referee
stand while officiating a volleyball match at Newtown
High School.1 The plaintiff appeals from the summary
judgment rendered by the trial court in favor of the
defendants on the ground that they are entitled to gov-
ernmental immunity. The plaintiff claims that the court
improperly rendered summary judgment in favor of the
defendants because there is a genuine issue of material
fact as to whether the plaintiff was an identifiable victim
under the identifiable person-imminent harm exception
to governmental immunity. We disagree and, therefore,
affirm the judgment of the court.
The record before the court, viewed in the light most
favorable to the plaintiff as the nonmoving party,
reveals the following relevant facts and procedural his-
tory. The plaintiff has worked as a volleyball referee
for approximately forty years. The plaintiff received
training and multiple national and state certifications
in connection with his role as a referee. Further, the
plaintiff was a member of the Connecticut Federation
of Volleyball Officials. Although the position was part-
time, the plaintiff frequently officiated matches on each
day of a given week. The plaintiff regularly officiated
college volleyball matches throughout the northeast,
and high school volleyball matches in Connecticut and
New York.
In order for its members to receive assignments for
high school volleyball matches, the Connecticut Federa-
tion of Volleyball Officials utilized an online system
called ArbiterSports. Referees, like the plaintiff, had
access to ArbiterSports. Through the system, an
assigner assigned referees to officiate specific matches,
and the referees would receive notice of their match
assignments via e-mail. The system assigned two refer-
ees to each match. A volleyball match properly could
take place with one official, but such a situation was
‘‘unusual.’’2 Under the rules of one of the governing
agencies of high school volleyball, however, volleyball
matches were not allowed to be played with no referee
in attendance.
Upon receipt of notice of their match assignments,
referees had the option to accept or reject the assign-
ment. There was no rule that a referee must accept a
referee assignment; however, referees generally needed
to accept assignments if they wanted to continue receiv-
ing assignments in the future.
The plaintiff was assigned to officiate a girls volley-
ball match on September 25, 2015, at Newtown High
School. The match was arranged to take place in the
school gymnasium, and one of the two assigned referees
was expected to stand on an officiating stand in the
gymnasium for the duration of the match to provide the
referee with an elevated vantage point. The officiating
stand was covered in padding and secured using a pin.
There was no written policy concerning how the offici-
ating stand was to be set up prior to girls volleyball
matches. The student athletes routinely set up the offici-
ating stand and the volleyball net prior to the arrival
of the referees at the direction of the volleyball coach
and/or athletic director. To set up the officiating stand,
students were instructed to separate the two side rails
of the ladder, rest the platform on top of the ladder,
and secure the stand by inserting an attached pin.
Simon, who ultimately was responsible for equipment
setup in the school gymnasium, supervised setup prior
to the volleyball match at issue.
Prior to the varsity match, a junior varsity match took
place, and the plaintiff served as one of the two referees.
During the junior varsity match, the other referee stood
on the officiating stand. The plaintiff, however, stood
on the officiating stand during the varsity match. Prior
to the commencement of the varsity match, the plaintiff
assured himself that the officiating stand had proper
padding and was stable by ‘‘wiggl[ing] it . . . .’’ Subse-
quently, the plaintiff climbed onto the stand. Approxi-
mately one hour into the match, the officiating stand
collapsed. The plaintiff fell approximately four to five
feet and was injured.
In September, 2017, the plaintiff commenced this
action, alleging that the defendants’ negligent mainte-
nance of the stand, failure to inspect and repair the
stand, and failure to erect or maintain proper safeguards
or warning signs, constituted a defective condition on
the school premises that caused the injuries sustained
by the plaintiff. The plaintiff further alleged that the
defendants knew or, in the exercise of reasonable care,
should have known about the defective stand.
In December, 2017, the defendants requested that
the plaintiff revise several counts of his complaint to
address, inter alia, the alleged basis of the town’s and
the board’s liability. The defendants also requested that
the plaintiff identify whether the individual defendants’
actions were ministerial or discretionary.3 In both
requests, the defendants asserted that each defendant,
either as a municipality or as an agent thereof, enjoyed
qualified immunity from liability for the plaintiff’s injur-
ies.
The plaintiff filed a revised complaint on May 4, 2018,
alleging, inter alia, that (1) the town and the board were
liable to the plaintiff under General Statutes §§ 10-235,4
52-557n,5 and 7-465;6 and (2) the individual defendants
were public officials whose conduct was likely to sub-
ject the plaintiff, an identifiable victim, to imminent
harm. The defendants filed an answer to the revised
complaint and special defenses. By way of special
defenses, the defendants asserted that, because the
actions that each defendant took were discretionary in
nature, each defendant was immune from liability.7
On October 30, 2018, the defendants filed a motion
for summary judgment as to all six counts of the revised
complaint, asserting that there were no genuine issues
of material fact in dispute and the defendants were
entitled to judgment as a matter of law. In support of
their motion, the defendants submitted a memorandum
of law, several affidavits, and excerpts from the plain-
tiff’s deposition transcript.8 The defendants argued that
they had shown through their submissions that their
allegedly negligent actions were discretionary, and thus
they enjoyed governmental immunity unless the plain-
tiff fell within the narrow identifiable person-imminent
harm exception to governmental immunity recognized
by our Supreme Court. The defendants further argued
that the plaintiff was not an identifiable victim, because
the plaintiff voluntarily attended the volleyball match
at which he was injured.9 The defendants asserted that,
because there was no question of fact that the plaintiff
did not fall within the narrow identifiable person-immi-
nent harm exception, the plaintiff could not prevent
the application of governmental immunity, and the trial
court was required to grant summary judgment in
their favor.
In response, the plaintiff objected to the defendants’
motion for summary judgment10 in December, 2018, and,
in support, submitted excerpts from Simon’s and
Czaplinski’s depositions as well as a copy of board
policies concerning the qualifications and duties of the
athletic director for the school. The plaintiff argued that
genuine issues of material fact existed as to whether
(1) the plaintiff was, in fact, an identifiable victim under
the identifiable person-imminent harm exception to
governmental immunity, (2) the plaintiff was subject to
imminent harm under the identifiable person-imminent
harm exception to governmental immunity, and (3) the
remaining defendants’ duties were ministerial, not dis-
cretionary. The remaining defendants reiterated their
arguments in a reply to the plaintiff’s objection.
On December 14, 2018, the plaintiff filed a request
for leave to amend the revised complaint, which was
granted on January 10, 2019, over the objection of the
defendants. The plaintiff amended counts one, two, and
five against the town, the board, and Simon, respec-
tively, by removing certain language concerning reason-
ableness and adding references to the board policy con-
cerning the qualifications and duties of the athletic
director for the school. The defendants filed a supple-
mental motion for summary judgment, noting that no
further argument was necessary because they had
already addressed all relevant issues in their original
motion for summary judgment. The trial court heard
argument on the motion for summary judgment on Feb-
ruary 25, 2019.
The trial court, Welch, J., granted the defendants’
motion for summary judgment. The trial court deter-
mined preliminarily that, because the defendants’
actions were discretionary, rather than ministerial, they
were immune from liability unless the plaintiff fell
within the identifiable person-imminent harm exception
to the governmental immunity doctrine. A party is an
identifiable victim, the trial court explained, when that
person is compelled to be somewhere, outside of lim-
ited circumstances. Thus, the trial court noted that the
class of identifiable persons to which the exception
is generally applicable is usually limited to students
attending public schools during regular school hours
because they are legally compelled to be on the school
premises. The trial court determined that the plaintiff,
a volleyball referee, was not legally compelled to be on
the school premises at the time of his injury. Instead,
his presence on the premises was voluntary. Accord-
ingly, he was not an identifiable person to whom the
identifiable person-imminent harm exception applied.11
This appeal followed.
On appeal, the plaintiff challenges the trial court’s
decision to grant summary judgment in favor of the
town, the board, and Simon. The plaintiff claims that
the trial court improperly determined that no genuine
issue of material fact existed as to whether he was an
identifiable victim and, accordingly, he fell within the
identifiable person-imminent harm exception to the
governmental immunity doctrine. We are not per-
suaded.
We begin by setting forth the applicable standard of
review. ‘‘This court’s standard of review for a motion for
summary judgment is well established. Practice Book
§ [17-49] provides that summary judgment shall be ren-
dered 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 nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . [I]ssue-finding, rather than issue-determina-
tion, is the key to the procedure. . . . [T]he trial court
does not sit as the trier of fact when ruling on a motion
for summary judgment. . . . [Its] function is not to
decide issues of material fact, but rather to determine
whether any such issues exist. . . . Our review of the
decision to grant a motion for summary judgment is
plenary. . . . We therefore must decide whether the
court’s conclusions were legally and logically correct
and find support in the record.’’ (Internal quotation
marks omitted.) Kusy v. Norwich, 192 Conn. App. 171,
175–76, 217 A.3d 31, cert. denied, 333 Conn. 931, 218
A.3d 71 (2019).
‘‘The law pertaining to municipal immunity is simi-
larly well settled. [General Statutes §] 52-557n abandons
the common-law principle of municipal sovereign
immunity and establishes the circumstances in which
a municipality may be liable for damages. . . . One
such circumstance is a negligent act or omission of a
municipal officer acting within the scope of his or her
employment or official duties. . . . [Section] 52-557n
(a) (2) (B), however, explicitly shields a municipality
from liability for damages to person or property caused
by the negligent acts or omissions [that] require the
exercise of judgment or discretion as an official func-
tion of the authority expressly or impliedly granted by
law.’’ (Internal quotation marks omitted.) Ventura v.
East Haven, 330 Conn. 613, 629, 199 A.3d 1 (2019).
‘‘Accordingly, a municipality is entitled to immunity for
discretionary acts performed by municipal officers or
employees . . . .’’ Kusy v. Norwich, supra, 192 Conn.
App. 177.
‘‘Municipal officials are immunized 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 discre-
tion beyond the limits desirable in our society. . . .
Discretionary act immunity reflects a value judgment
that—despite injury to a member of the public—the
broader interest in having government officers and
employees free to exercise judgment and discretion in
their official functions, unhampered by fear of second-
guessing and retaliatory lawsuits, outweighs the bene-
fits to be had from imposing liability for that injury.’’
(Internal quotation marks omitted.) Borelli v. Renaldi,
336 Conn. 1, 10–11, 243 A.3d 1064 (2020).
Our Supreme Court ‘‘has recognized an exception to
discretionary act immunity that allows for liability when
the circumstances make it apparent to the public officer
that his or her failure to act would be likely to subject
an identifiable person to imminent harm . . . . This
identifiable person-imminent harm exception has three
requirements: (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. . . . All three must be proven in order
for the exception to apply. . . . [T]he ultimate determi-
nation of whether [governmental] immunity applies is
ordinarily a question of law for the court . . . [unless]
there are unresolved factual issues . . . properly left
to the jury.’’ (Citation omitted; internal quotation marks
omitted.) Martinez v. New Haven, 328 Conn. 1, 8, 176
A.3d 531 (2018). ‘‘[Our Supreme Court has] stated pre-
viously that this exception to the general rule of govern-
mental immunity for employees engaged in discretion-
ary activities has received very limited recognition in
this state.’’ (Internal quotation marks omitted.) Kusy
v. Norwich, supra, 192 Conn. App. 183. ‘‘The exception
is applicable only in the clearest of cases.’’ (Internal
quotation marks omitted.) Texidor v. Thibedeau, 163
Conn. App. 847, 862, 137 A.3d 765, cert. denied, 321
Conn. 918, 136 A.3d 1276 (2016).
‘‘An allegedly identifiable person must be identifiable
as a potential victim of a specific imminent harm. . . .
Although the identifiable person contemplated by the
exception need not be a specific individual, the plaintiff
must fall within a narrowly defined identified [class] of
foreseeable victims.’’ (Internal quotation marks omit-
ted.) Id., 861–62. ‘‘[T]he question of whether a particular
plaintiff comes within a cognizable class of foreseeable
victims for purposes of this exception to qualified
immunity is ultimately a question of policy for the
courts, in that it is in effect a question of duty. . . .
This involves a mixture of policy considerations and
evolving expectations of a maturing society . . . .
[T]his exception applies not only to identifiable individ-
uals but also to narrowly defined identified classes of
foreseeable victims. . . . Our [Supreme Court’s] deci-
sions underscore, however, that whether the plaintiff
was compelled to be at the location where the injury
occurred remains a paramount consideration in
determining whether the plaintiff was an identifiable
person or member of a foreseeable class of victims.’’
(Internal quotation marks omitted.) Kusy v. Norwich,
supra, 192 Conn. App. 183; see also Grady v. Somers,
294 Conn. 324, 356, 984 A.2d 684 (2009) (‘‘we have
interpreted the identifiable person element narrowly as
it pertains to an injured party’s compulsion to be in the
place at issue’’).
‘‘Our courts have construed the compulsion to be
somewhere requirement narrowly. . . . [T]his court
[has previously] concluded that a plaintiff did not satisfy
the requirement because [t]he plaintiff [did] not [cite]
any statute, regulation or municipal ordinance that com-
pelled her to drive her car on the stretch of [the] [s]treet
where [an] accident occurred . . . [and] [did] not
[show] that her decision to take [the] particular route
was anything but a voluntary decision that was made
as a matter of convenience. . . . [O]ur Supreme Court
[has] determined that a person is not an identifiable
victim if he is not legally required to be somewhere and
could have assigned someone else to go to the location
to complete the task in his place. . . . In Grady [v.
Somers, supra, 294 Conn. 355–56], the municipality did
not provide refuse pickup service, and residents could
either obtain a transfer station permit and discard their
own refuse, or hire private trash haulers to come to
their home. . . . Because the plaintiff . . . had the
option of hiring an independent contractor to dispose
of his refuse, the court did not classify him as an identifi-
able victim for injuries he sustained when he slipped on
an ice patch at the transfer station.’’ (Citations omitted;
internal quotation marks omitted.) Kusy v. Norwich,
supra, 192 Conn. App. 185–86 n.7.
Our Supreme Court has noted that ‘‘[t]he only identifi-
able class of foreseeable victims that [the court has]
recognized . . . is that of schoolchildren attending
public schools during school hours . . . .’’ (Internal
quotation marks omitted.) Id., 183–84;12 see, e.g., Cotto
v. Board of Education, 294 Conn. 265, 267–68, 984 A.2d
58 (2009) (program director for summer youth program
who slipped and fell on school premises was not consid-
ered identifiable class member); Durrant v. Board of
Education, 284 Conn. 91, 107–108, 931 A.2d 859 (2007)
(mother who slipped and fell picking up child from
optional after school day care was not considered iden-
tifiable class member); Prescott v. Meriden, 273 Conn.
759, 761–62, 766, 873 A.2d 175 (2005) (parent who fell
while voluntarily attending high school football game
to watch child was not considered identifiable class
member); Costa v. Board of Education, 175 Conn. App.
402, 409, 167 A.3d 1152 (student voluntarily attending
school picnic who was injured while voluntarily playing
basketball game was not considered identifiable class
member), cert. denied, 327 Conn. 961, 172 A.3d 801
(2017). ‘‘Students attending public school during school
hours are afforded this special designation as identifi-
able victims because they were intended to be the bene-
ficiaries of particular duties of care imposed by law on
school officials; they [are] legally required to attend
school rather than being there voluntarily; their parents
[are] thus statutorily required to relinquish their custody
to those officials during those hours; and, as a matter
of policy, they traditionally require special consider-
ation in the face of dangerous conditions.’’ (Internal
quotation marks omitted.) Kusy v. Norwich, supra, 192
Conn. App. 184–85. Accordingly, this court has consis-
tently held that students who are injured outside of
school hours do not fall within the class of identifiable
victims under the identifiable victim-imminent harm
exception. See Marvin v. Board of Education, 191
Conn. App. 169, 184, 213 A.3d 1155 (2019) (student
athlete injured in locker room after school hours was
not considered identifiable class member); Jahn v.
Board of Education, 152 Conn. App. 652, 668–69, 99
A.3d 1230 (2014) (student athlete injured during swim
practice was not considered identifiable class member).
In Kusy v. Norwich, supra, 192 Conn. App. 185–87,
this court determined that a plaintiff did not fall within
the identifiable class of foreseeable victims to invoke
the identifiable person-imminent harm exception, even
when the plaintiff’s existence on the premises was
required by his employer to complete a work-related
task. The plaintiff in Kusy, a deliveryman, delivered
milk to a local middle school as part of his employment
duties. Id., 173. On one morning, he notified his
employer that he noticed snow and ice on the premises,
but his employer ‘‘ordered him to complete the deliv-
ery.’’ Id. The plaintiff slipped on the ice and fell on the
premises. Id.
This court upheld the trial court’s granting of sum-
mary judgment in favor of the defendants, the city,
the board of education, and city employees. Id., 187.
‘‘[U]nlike schoolchildren, the plaintiff was not required
by law to be on school grounds. A contractual duty to
deliver milk at the school falls far short of the legal
compulsion imposed by our statutes that require a
child’s attendance at school.’’ Id., 185. Further, the plain-
tiff’s employer could ‘‘meet its contractual obligation
to deliver milk to the school by waiting or returning at
a later time’’ after the ice had been removed from the
premises. Id. Importantly, this court noted that ‘‘our
courts have not treated other classes of individuals,
apart from schoolchildren, who are present on school
grounds during school hours as identifiable victims
because there is always an aspect of voluntariness to
their presence on school grounds. . . . [E]ven when
schoolchildren are on school grounds, our courts have
not classified them as identifiable victims if they are
on school property as part of voluntary activities.’’ (Cita-
tions omitted; footnote omitted.) Id., 186–87. Thus, this
court determined that the plaintiff failed to raise a genu-
ine issue of material fact as to whether the defendants
were entitled to governmental immunity, and it
‘‘decline[d] to extend the classes of individuals who
may be identifiable victims beyond the narrow confines
of children who are statutorily compelled to be on
school grounds during regular school hours.’’ Id., 187.
In the present case, the plaintiff claims that he is an
identifiable victim because he was compelled to be on
the premises at the time of his injury. The plaintiff
claims that, as a sports official, he was compelled to
be on the premises and, without his presence, the volley-
ball match would not be permitted to go forward.13
Essentially, the plaintiff asks us to extend the identifi-
able victim classification to encompass a plaintiff who
is present on municipal property to officiate a voluntary
activity outside of school hours. We decline to do so
for the following reasons.
Just as in Kusy, ‘‘unlike schoolchildren, the plaintiff
[in this case] was not required by law to be on school
grounds.’’ Id., 185. An assignment to officiate a volley-
ball game after school hours is nothing like the legal
compulsion imposed by our statutes that require a
child’s attendance at school. Id. Moreover, the plaintiff
conceded that he had the option to accept or to deny the
assignment. The plaintiff’s presence on the premises,
therefore, was voluntary. The possibility that, had he
denied this, or other, officiating assignments, the plain-
tiff might have received fewer future assignments, does
not render his presence on the premises involuntary,
and certainly does not give rise to the same degree of
legal compulsion necessary to fall within the immunity
exception.
It would be improper for this court to extend the
identifiable victim classification in this case, particu-
larly because the student athletes participating in the
volleyball game over which the plaintiff officiated
would not themselves enjoy such a designation under
existing law. See, e.g., Marvin v. Board of Education,
supra, 191 Conn. App. 180–184; Jahn v. Board of Educa-
tion, supra, 152 Conn. App. 668–69. In other words, if
one of the student athletes had fallen from the officiat-
ing stand and sustained injuries, the defendants would
enjoy governmental immunity from a premises liability
claim initiated by the student. There is no doctrinal
justification for treating the plaintiff differently than
the schoolchildren.14
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff named six defendants in this action: (1) the town; (2) the
board; (3) Joseph V. Erardi, Jr., the former superintendent of Newtown
public schools, and his agents; (4) Lorrie Rodrigue, the principal of Newtown
High School, and her agents; (5) Simon and his agents; and (6) Tom Czaplin-
ski, the coach of the Newtown High School girls volleyball team. In his
objection to a joint motion for summary judgment filed by the defendants,
the plaintiff stated that he did not object to the court rendering summary
judgment as to his claims against Erardi, Rodrigue, and Czaplinski, as set
forth in counts three, four, and six of the operative amended complaint.
The plaintiff also consented to the court rendering summary judgment on
the plaintiff’s claims for indemnification against Erardi, Rodrigue, and
Czaplinski. The trial court confirmed on the record that ‘‘the plaintiff ha[d]
no objection’’ to summary judgment being entered as to all claims against
Erardi, Rodrigue, and Czaplinski. Erardi, Rodrigue, and Czaplinski have
not participated in this appeal. Accordingly, we refer to the participating
defendants—the town, the board, and Simon—individually by name and
collectively as the defendants.
2
In his deposition, the plaintiff was asked whether ‘‘a volleyball match
[with] only one official’’ previously had taken place, and the plaintiff
responded, ‘‘[s]ometimes.’’ The plaintiff clarified that such a situation was
‘‘unusual,’’ and offered that, if available officiating staff was limited, a match
could take place with one referee.
3
The defendants also requested that the plaintiff revise his complaint to
clarify whether the plaintiff was an employee or nonemployee of the town
or board at the time of the alleged injury. The plaintiff revised its complaint
to characterize himself as ‘‘an invitee, customer, patron, and/or guest’’ and
to remove language that characterized him as an ‘‘employee’’ of the town
or board.
4
General Statutes § 10-235 (a) provides in relevant part: ‘‘Each board of
education shall protect and save harmless any . . . employee thereof or
any member of its supervisory or administrative staff . . . from financial
loss and expense, including legal fees and costs, if any, arising out of any
claim, demand, suit or judgment by reason of alleged negligence or other
act resulting in accidental bodily injury to . . . any person . . . provided
such . . . employee, at the time of the acts resulting in such injury . . .
was acting in the discharge of his or her duties or within the scope of
employment or under the direction of such board of education . . . .’’
5
General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(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 discre-
tion as an official function of the authority expressly or impliedly granted
by law.’’
6
General Statutes § 7-465 (a) provides in relevant part: ‘‘Any town, city
or borough, notwithstanding any inconsistent provision of law . . . shall
pay on behalf of any employee of such municipality . . . all sums which
such employee becomes obligated to pay by reason of the liability imposed
upon such employee by law for damages awarded for . . . physical damages
to person . . . if the employee, at the time of the occurrence, accident,
physical injury or damages complained of, was acting in the performance
of his duties and within the scope of his employment, and if such occurrence,
accident, physical injury or damage was not the result of any wilful or
wanton act of such employee in the discharge of such duty. . . . Govern-
mental immunity shall not be a defense in any action brought under this
section. . . .’’
7
‘‘A ministerial act is one which a person performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of legal authority,
without regard to or the exercise of his own judgment [or discretion] upon
the propriety of the act being done. . . . In contrast, when an official has
a general duty to perform a certain act, but there is no city charter provision,
ordinance, regulation, rule, policy, or any other directive [requiring the
government official to act in a] prescribed manner, the duty is deemed
discretionary.’’ (Citations omitted; footnote omitted; internal quotation
marks omitted.) Northrup v. Witkowski, 332 Conn. 158, 169–70, 210 A.3d
29 (2019).
8
On February 25, 2019, the defendants submitted a substitute exhibit to
be considered with their motion for summary judgment, which included
additional pages of the plaintiff’s deposition transcript that the defendants
erroneously omitted from their memorandum in support of their motion for
summary judgment.
9
The defendants argued, in the alternative, that the plaintiff did not fall
within the identifiable person-imminent harm exception because the harm
he suffered was not sufficiently imminent. The defendants also argued that
§ 10-235 did not create a cause of action that a plaintiff could bring against
the board. Rather, the defendants argued that the statute provided a medium
through which employees or members of the board could receive indemnity
from the board if a judgment were rendered against them.
10
As previously mentioned, in his objection, the plaintiff stated that he
did not object to summary judgment with respect to his claims against
Erardi, Rodrigue, and Czaplinski, found in counts three, four, and six of the
plaintiff’s revised complaint respectively. See footnote one of this opinion.
11
The trial court also considered whether the town and the board were
liable under §§ 10-235 and 7-465. The court determined that the defendants
were entitled to summary judgment because § 10-235 did not provide the
plaintiff with a cause of action against a board of education, and relief under
§ 7-465 was only available if governmental immunity did not bar recovery.
The plaintiff does not raise any claim on appeal regarding the trial court’s
conclusions that the defendants’ actions were discretionary, rather than
ministerial, or that § 10-235 did not provide for a cause of action against
the board. Accordingly, these issues are not properly before us.
12
In his appellate brief, the plaintiff relies on Tryon v. North Branford,
58 Conn. App. 702, 755 A.2d 317 (2000), to support his assertion that he is
indeed an identifiable victim and that we must give weight to whether the
plaintiff’s harm ‘‘occurred within a limited temporal and geographical zone’’
in our analysis. As this court noted in Kusy, ‘‘Tryon . . . was decided [more
than twenty] years ago, and our Supreme Court has more recently focused
its analysis regarding whether a plaintiff is an identifiable victim on whether
the plaintiff is compelled to be somewhere. See St. Pierre v. Plainfield, 326
Conn. [420, 436–37, 165 A.3d 148 (2017)]. The court has, therefore, not
extended the classes of identifiable victims beyond schoolchildren who are
statutorily required to attend school during school hours.’’ Kusy v. Norwich,
supra, 192 Conn. App. 186 n.8.
13
The plaintiff claims that ‘‘two referees were required in order for the
volleyball match to go forward and be officially sanctioned.’’ Upon review
of the record, even in the light most favorable to the plaintiff, we cannot
come to the same conclusion. When asked in his deposition whether a
volleyball match could proceed with ‘‘no referees,’’ Czaplinski answered,
‘‘[t]he match would not go forward without an official.’’ Simon, when asked
in his deposition whether the high school governing agency could sanction
a match as official without having any certified referee, answered, ‘‘[n]o,’’
and explained that he could not ‘‘remember’’ whether the local league
required two referees for a volleyball match to be held. Finally, the plaintiff
admitted in his deposition:
‘‘Q. Is there ever a volleyball match where there is only one official?
‘‘A. Sometimes.’’
14
At least three members of our Supreme Court recently have observed
that the court’s application of the identifiable person-imminent harm excep-
tion, particularly with respect to the identifiable person prong of the excep-
tion, may be doctrinally flawed, unduly restrictive, and/or ripe for revisiting
in an appropriate future case. See Borelli v. Renaldi, supra, 336 Conn. 35,
59–60 n.20 (Robinson, C. J., concurring); id., 67 (D’Auria, J., concurring);
id., 67–113, 146–54 (Ecker, J., dissenting). Nevertheless, this court is required
to follow binding Supreme Court precedent unless and until our Supreme
Court sees fit to alter it. See Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d
259 (2010) (‘‘it is manifest to our hierarchical judicial system that [our
Supreme Court] has the final say on matters of Connecticut law and that
the Appellate Court and Superior Court are bound by [Supreme Court]
precedent’’).