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CRISTINA GONZALEZ v. CITY OF
NEW BRITAIN ET AL.
(AC 44749)
Bright, C. J., and Prescott and Moll, Js.
Syllabus
The plaintiff sought to recover damages from the defendant city of New
Britain and its animal control officer, D, for injuries she allegedly sus-
tained as a result of the defendants’ negligence. D had responded to
reported dog attacks in January and June, 2016, involving two pit bulls
that occurred at certain real property in New Britain. The plaintiff sus-
tained injuries during a 2018 attack by the same pit bulls and, at the
time, was a tenant at the property. The plaintiff alleged that D was
negligent for, inter alia, failing to remove the pit bulls from the property,
and alleged claims for indemnification and statutory negligence against
the city. The plaintiff filed an amended complaint alleging that, based
on the 2016 attacks, D knew or should have known that, as a tenant on
the property, the plaintiff would have been attacked by the pit bulls. The
court granted the defendants’ motion to strike the plaintiff’s amended
complaint on the basis of governmental immunity, and the plaintiff
appealed to this court. On appeal, the plaintiff did not dispute that
governmental immunity applied to her claims against the defendants in
light of the discretionary nature of D’s alleged conduct but, instead,
alleged that the identifiable person-imminent harm exception to govern-
mental immunity applied. Held that the trial court correctly concluded
that the plaintiff’s amended complaint was legally insufficient because
she did not plead facts demonstrating that she was an identifiable victim
for purposes of the identifiable person-imminent harm exception to
governmental immunity: that complaint did not contain allegations dem-
onstrating that she was legally compelled to be at the property when
the pit bulls attacked her or that her tenancy was required by law,
rather, the only logical reading of the amended complaint was that her
residence at the property was purely voluntary; moreover, the only
identifiable class of foreseeable victims that our case law has recognized
in connection with this exception to governmental immunity has been
that of schoolchildren attending public schools during school hours, the
plaintiff did not fall within that class, and this court declined to recognize
any additional classes of individuals who may be identifiable victims
beyond that demarcated limit.
Argued October 3—officially released November 8, 2022
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
Britain, where the plaintiff filed an amended complaint;
thereafter, the court, Wiese, J., granted the defendants’
motion to strike the amended complaint; subsequently,
the court, Wiese, J., granted the defendants’ motion for
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Lucas M. Watson, for the appellant (plaintiff).
John F. Diakun, corporation counsel, for the appel-
lees (defendants).
Opinion
MOLL, J. The plaintiff, Cristina Gonzalez, appeals
from the judgment of the trial court rendered in favor
of the defendants, the city of New Britain (city) and
James Davis, following the granting of the defendants’
motion to strike the plaintiff’s amended complaint on
the basis of governmental immunity. On appeal, the
plaintiff asserts that the court incorrectly concluded
that her amended complaint was legally insufficient
because she did not plead facts demonstrating that she
was an identifiable victim for purposes of the identifi-
able person-imminent harm exception to governmental
immunity. We disagree and, accordingly, affirm the
judgment of the trial court.
The following facts, as alleged in the plaintiff’s
amended complaint, and procedural history are rele-
vant to our resolution of this appeal. On or before Janu-
ary 9, 2016, Davis was employed by the city as an animal
control officer. Davis’ responsibilities ‘‘included, but
[were] not limited to, identifying dangerous dogs in the
city . . . and removing them and/or quarantining them
. . . .’’ Between January 9, 2016, and March 17, 2018,
Davis responded to three separate reported dog attacks
by two pit bulls that had occurred at 167 Oak Street in
New Britain (property). On January 9, 2016, the pit bulls
attacked a Chihuahua on the property. In response to
the January 9, 2016 incident, Davis ordered the pit bulls’
owner, who was the landlord of the property, to quaran-
tine the pit bulls on the property for fourteen days. On
June 21, 2016, the pit bulls attacked a tenant on the
property, which resulted in the transport of the tenant
to a hospital with severe bodily injuries. During his
investigation of the June 21, 2016 incident, Davis
learned that, on several prior occasions, the pit bulls
had chased the tenant and the tenant’s friends on the
property. Following the June 21, 2016 incident, the pit
bulls’ owners1 informed Davis that they intended to
euthanize one of the pit bulls because of its ‘‘aggressive
temperament . . . .’’ On March 17, 2018, the pit bulls
attacked the plaintiff on the property, where she lived as
a tenant. The plaintiff sustained severe and permanent
injuries as a result of the March 17, 2018 incident.2
On March 16, 2020, the plaintiff commenced the pres-
ent action against the defendants. The plaintiff’s original
complaint set forth three counts. Count one alleged a
common-law negligence claim against Davis. Count two
alleged a claim for indemnification against the city pur-
suant to General Statutes § 7-465. Count three alleged
a statutory negligence claim against the city pursuant
to General Statutes § 52-557n. The crux of the plaintiff’s
claims was that Davis ‘‘knew or should have known of
the dangerous propensity of the pit bulls . . . and [he
should have] removed them from the [property] after
the second dog attack, [which occurred on June 21,
2016].’’ On May 1, 2020, the defendants filed a motion
to strike the original complaint in its entirety on the
basis of governmental immunity. On October 13, 2020,
the trial court, Wiese, J., over the plaintiff’s objection,
granted the motion to strike the original complaint,
concluding that (1) the parties did not dispute that
governmental immunity applied to the plaintiff’s claims,
and (2) the plaintiff failed to allege facts satisfying the
identifiable person element of the identifiable person-
imminent harm exception to governmental immunity,
such that the exception was inapplicable.
On November 16, 2020, the plaintiff requested permis-
sion to file an amended complaint, which the court
granted, over the defendants’ objection, on December
7, 2020. The plaintiff’s amended three count complaint
substantively tracked her original complaint, except
that she added an allegation that, ‘‘[b]ased on the previ-
ous attacks that occurred on January 9, 2016 and June
21, 2016 . . . Davis knew or should have known that,
as a tenant on the [property], the plaintiff would have
been attacked by the pit bulls . . . .’’
On January 6, 2021, the defendants filed a motion to
strike the plaintiff’s amended complaint in toto on the
basis of governmental immunity. First, the defendants
asserted that the plaintiff failed to allege that Davis had
violated a duty, arising from a statute, an ordinance, a
rule, or a procedure, requiring him to seize the pit bulls
following the June 21, 2016 incident. Even if Davis had
such a duty, the defendants posited, that duty was dis-
cretionary in nature and, therefore, subject to govern-
mental immunity. Second, the defendants contended
that none of the three recognized exceptions to govern-
mental immunity was implicated under the facts
pleaded by the plaintiff. With respect to the identifiable
person-imminent harm exception, the defendants
claimed that the plaintiff failed to plead facts qualifying
her as an identifiable person because she did not allege
that she was legally compelled to be on the property
at the time of the March 17, 2018 incident.
On February 22, 2021, the plaintiff filed an objection
to the defendants’ motion to strike her amended com-
plaint. The plaintiff conceded that governmental immu-
nity applied to her claims against the defendants, but
she argued that she had pleaded facts establishing that
she was an identifiable victim for purposes of the identi-
fiable person-imminent harm exception to governmen-
tal immunity. The plaintiff contended that Davis ‘‘could
have foreseen imminent injury’’ to her, as anyone who
came onto the property and who did not own, care for,
or have a relationship with the pit bulls was ‘‘highly
likely’’ to be attacked by them. The plaintiff further
argued that, as a tenant of the property, she was legally
compelled to be on the property at the time of the
March 17, 2018 incident. On February 24, 2021, the
defendants filed a reply brief, inter alia, iterating that
the plaintiff was not legally compelled to be on the
property at the time of the March 17, 2018 incident
and, therefore, the identifiable person-imminent harm
exception did not apply.
On April 9, 2021, following a hearing, the court issued
a memorandum of decision granting the defendants’
motion to strike the plaintiff’s amended complaint. Cit-
ing Borelli v. Renaldi, 336 Conn. 1, 243 A.3d 1064 (2020),
and Kusy v. Norwich, 192 Conn. App. 171, 217 A.3d 31,
cert. denied, 333 Conn. 931, 218 A.3d 71 (2019), the
court stated that, to determine whether the plaintiff had
pleaded facts satisfying the identifiable victim element
of the identifiable person-imminent harm exception to
governmental immunity, it had to consider whether the
plaintiff was legally compelled to be present on the
property when the pit bulls attacked her.3 The court
determined that the plaintiff was not legally compelled
to be on the property, notwithstanding her status as a
tenant of the property. Accordingly, the court con-
cluded that the plaintiff had failed to allege facts demon-
strating the applicability of the identifiable person-
imminent harm exception and, therefore, her amended
complaint was legally insufficient. Thereafter, pursuant
to Practice Book § 10-44, the defendants filed a motion
for judgment on the stricken amended complaint, which
the court granted on May 10, 2021. This appeal followed.
On appeal, the plaintiff does not dispute that the
claims in her amended complaint directed to the defen-
dants were subject to governmental immunity in light
of the discretionary nature of Davis’ alleged conduct.4
See General Statutes § 52-557n (a) (2) (B).5 The plaintiff
maintains, however, that the court incorrectly con-
cluded that her amended complaint was legally insuffi-
cient on the basis that she failed to plead facts satisfying
the identifiable victim element of the identifiable per-
son-imminent harm exception to governmental immu-
nity. The plaintiff argues that, contrary to the court’s
determination, she was legally compelled to be on the
property at the time of the March 17, 2018 incident
because she was a tenant of the property. We disagree.
We begin by setting forth the following standard of
review and legal principles governing our review of the
plaintiff’s claim. ‘‘Because a motion to strike challenges
the legal sufficiency of a pleading and, consequently,
requires no factual findings by the trial court, our review
of the court’s ruling on the [defendants’ motion] is ple-
nary. . . . We take the facts to be those alleged in the
complaint that has been stricken and we construe the
complaint in the manner most favorable to sustaining
its legal sufficiency. . . . Thus, [i]f facts provable in
the complaint would support a cause of action, the
motion to strike must be denied. . . . Moreover, we
note that [w]hat is necessarily implied [in an allegation]
need not be expressly alleged. . . . It is fundamental
that in determining the sufficiency of a complaint chal-
lenged by a [defendant’s] motion to strike, all well-
pleaded facts and those facts necessarily implied from
the allegations are taken as admitted. . . . Indeed,
pleadings must be construed broadly and realistically,
rather than narrowly and technically.’’ (Internal quota-
tion marks omitted.) Wine v. Mulligan, 213 Conn. App.
298, 302–303, 277 A.3d 912 (2022).
The plaintiff’s claim implicates the identifiable per-
son-imminent harm exception to governmental immu-
nity, which is one of three recognized exceptions to
that doctrine.6 Borelli v. Renaldi, supra, 336 Conn. 28.
‘‘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. . . . [Our Supreme Court
has] stated previously that this exception to the general
rule of governmental immunity for employees engaged
in discretionary activities has received very limited rec-
ognition in this state. . . . The exception is applicable
only in the clearest of cases. . . .
‘‘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. . . . [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.
. . .
‘‘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. [See DeConti v. McGlone,
88 Conn. App. 270, 275, 869 A.2d 271, cert. denied, 273
Conn. 940, 875 A.2d 42 (2005).] . . . [O]ur Supreme
Court [has] determined that a person is not an identifi-
able 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, 294 Conn. 324, 355–56, 984 A.2d 684
(2009)], 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 identifiable victim for
injuries he sustained when he slipped on an ice patch
at the transfer station.’’ (Citations omitted; internal quo-
tation marks omitted.) Buehler v. Newtown, 206 Conn.
App. 472, 482–84, 262 A.3d 170 (2021); see Borelli v.
Renaldi, supra, 336 Conn. 29 (no legal compulsion for
decedent to be passenger in motor vehicle); Buehler v.
Newtown, supra, 487 (no legal compulsion for plaintiff
to officiate volleyball match at school); Kusy v. Nor-
wich, supra, 192 Conn. App. 185 (no legal compulsion
for plaintiff to be at school when carrying out contrac-
tual duty to deliver milk); see also St. Pierre v.
Plainfield, 326 Conn. 420, 424, 438, 165 A.3d 148 (2017)
(plaintiff ‘‘was in no way compelled to attend’’ aqua
therapy sessions at municipal pool).
‘‘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 . . . . Students
attending public school during school hours are
afforded this special designation as identifiable victims
because they were intended to be the beneficiaries 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 consideration
in the face of dangerous conditions. . . . Accordingly,
this court has consistently held that students who are
injured outside of school hours do not fall within the
class of identifiable victims under the identifiable vic-
tim-imminent harm exception.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Buehler v. Newtown, supra, 206 Conn. App. 484–85.
Applying the aforementioned binding legal principles,
we conclude that the plaintiff did not plead facts in
her amended complaint demonstrating that she was an
identifiable victim or a member of an identifiable class
of foreseeable victims for purposes of the identifiable
person-imminent harm exception to governmental
immunity.7 The plaintiff’s amended complaint did not
contain allegations demonstrating that she was legally
compelled to be at the property when the pit bulls
attacked her. The plaintiff did not allege that her ten-
ancy was required by law; indeed, the only logical read-
ing of the amended complaint is that the plaintiff’s resi-
dence at the property as a tenant was purely voluntary.
In addition, the only identifiable class of foreseeable
victims that our case law has recognized in connection
with this exception is that of schoolchildren attending
public schools during school hours. See id. The plaintiff
does not fall within that class, and we decline to recog-
nize any additional classes of individuals who may be
identifiable victims beyond that demarcated limit. See
Kusy v. Norwich, supra, 192 Conn. App. 187 (declining
‘‘to extend the classes of individuals who may be identi-
fiable victims beyond the narrow confines of children
who are statutorily compelled to be on school grounds
during regular school hours’’). For these reasons, we
conclude that the court did not commit error in striking
the plaintiff’s amended complaint as legally insuffi-
cient.8
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s amended complaint refers to a single owner of the pit
bulls when discussing the incident of January 9, 2016, as well as the subse-
quent incident of March 17, 2018, and to multiple owners of the pit bulls
vis-à-vis the June 21, 2016 incident.
2
The plaintiff’s amended complaint is silent as to whether Davis took any
actions in response to the incidents of June 21, 2016, and March 17, 2018.
3
The court did not expressly address whether the plaintiff’s claims in her
amended complaint were subject to governmental immunity. In granting
the defendants’ motion to strike the plaintiff’s amended complaint, however,
the court indicated that it was incorporating by reference its October 13,
2020 decision granting the defendants’ motion to strike the plaintiff’s original
complaint. In its October 13, 2020 decision, the court stated that the plaintiff
had conceded that governmental immunity applied to her claims. Moreover,
the record reflects that the parties did not dispute that the plaintiff’s claims
were subject to governmental immunity.
4
In her amended complaint, the plaintiff alleged that, as an animal control
officer employed by the city, Davis’ responsibilities ‘‘included, but [were]
not limited to, identifying dangerous dogs in the city . . . and removing
them and/or quarantining them,’’ and that, following the June 21, 2016 inci-
dent, Davis should have removed the pit bulls from the property. The parties
do not address in their respective appellate briefs whether the plaintiff
sufficiently alleged that Davis owed her a duty of care vis-à-vis the pit bulls.
For purposes of our analysis, we assume that the plaintiff adequately alleged
that a duty of care existed.
5
General Statutes § 52-557n (a) (2) provides 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 function of the authority expressly or impliedly granted by law.’’
‘‘[Section] 52-557n abandons the common-law principle of municipal sov-
ereign 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 function of the authority expressly
or impliedly granted by law. . . . Accordingly, a municipality is entitled to
immunity for discretionary acts performed by municipal officers or employ-
‘‘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 immu-
nity 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, unham-
pered by fear of second-guessing and retaliatory lawsuits, outweighs the
benefits to be had from imposing liability for that injury.’’ (Citations omitted;
internal quotation marks omitted.) Buehler v. Newtown, 206 Conn. App.
472, 481–82, 262 A.3d 170 (2021).
6
‘‘The other two exceptions are: where a statute specifically provides for
a cause of action against a municipality or municipal official for failure to
enforce certain laws; and . . . where the alleged acts involve malice, wan-
tonness or intent to injure, rather than negligence.’’ (Internal quotation marks
omitted.) Borelli v. Renaldi, supra, 336 Conn. 28 n.14. Only the identifiable
person-imminent harm exception is germane to this appeal.
7
As this court noted in a recent decision, ‘‘[a]t least three members of
our Supreme Court recently have observed that the court’s application of
the identifiable person-imminent harm exception, particularly with respect
to the identifiable person prong of the exception, may be doctrinally flawed,
unduly restrictive, and/or ripe for revisiting in an appropriate future case.
See Borelli v. Renaldi, supra, 336 Conn. 34, 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.’’
Buehler v. Newtown, supra, 206 Conn. App. 488 n.14.
8
As an alternative ground for affirmance, the defendants argue that the
plaintiff failed to allege that she was subject to imminent harm for purposes
of the identifiable person-imminent harm exception to governmental immu-
nity. It is not necessary for us to address this issue in light of our conclusion
that the plaintiff failed to plead facts satisfying the identifiable victim element
of the exception. See Kusy v. Norwich, supra, 192 Conn. App. 187 n.9
(declining to address whether plaintiff was subject to imminent harm after
concluding that plaintiff was not identifiable victim, as ‘‘[a]ll three [elements]
must be proven in order for the exception to apply’’ (internal quotation
marks omitted)). Nevertheless, we note that, following the June 21, 2016
incident, there were no reported dog attacks by the pit bulls on the property
until nearly two years later, on March 17, 2018, when the pit bulls allegedly
attacked the plaintiff. Thus, the facts pleaded by the plaintiff did not establish
that there was a sufficiently high probability that she would be harmed by
the two pit bulls on the property. See Williams v. Housing Authority, 159
Conn. App. 679, 705–706, 124 A.3d 537 (2015) (setting forth four part test
to satisfy imminent harm element of identifiable person-imminent harm
exception, including that (1) ‘‘the likelihood of the harm must be sufficient
to place upon the municipal defendant a clear and unequivocal duty . . .
to alleviate the dangerous condition’’ and (2) ‘‘the probability that harm will
occur must be so high as to require the defendant to act immediately to
prevent the harm’’ (citation omitted; emphasis omitted; internal quotation
marks omitted)), aff’d, 327 Conn. 338, 174 A.3d 137 (2017).