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Pierre v. Town of Plainfield

Supreme Court of Connecticut

August 8, 2017

DAVID L. ST. PIERRE
v.
TOWN OF PLAINFIELD ET AL.

          Argued May 1, 2017

          Mary M. Puhlick, for the appellant (plaintiff).

          Thomas R. Gerarde, with whom, on the brief, was Katherine E. Rule, for the appellee (named defendant).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and D'Auria, Js.

         Syllabus

         The plaintiff sought to recover damages from the defendant town for personal injuries he sustained after falling on wet steps located at the defendant's municipal pool. The plaintiff fell after participating in an aqua therapy session conducted by the defendant E Co., which had paid the town a nominal hourly fee to reserve the pool two or three times per week. The town provided a lifeguard during the aqua therapy sessions and was responsible for the cleaning and general maintenance of the pool. E Co. did not have a formal contract with the town to reserve the pool, but used a one page form letter that provided basic information regarding the reservation. The town filed a motion for summary judgment, claiming that municipal immunity precluded the plaintiff's action because the alleged acts or omissions involved the town's judgment or discretion, the operation of the pool was a government function, and no exception to municipal discretionary act immunity had been shown. The plaintiff countered that municipal immunity had been abrogated either by the exception under the statute (§ 52-577n [a] [1] [B]) providing that a municipality shall be liable for damages caused by its negligence in the performance of a proprietary function from which it derives a special corporate profit or pecuniary benefit, or by the identifiable person, imminent harm exception. The trial court granted the town's motion for summary judgment on the ground that the town was immune from liability, concluding that the operation of the pool was a government function and that the town had operated the pool at a financial loss. The court also found that the identifiable person, imminent harm exception did not apply because the plaintiff was voluntarily present at the aqua therapy program, and the water on and around the pool surfaces did not qualify as an imminent harm. The plaintiff appealed from the judgment in favor of the town, claiming that the trial court incorrectly concluded that the town was immune from liability because it had derived a special corporate profit or pecuniary benefit from renting the pool to E Co., a for-profit business, for a fee, or because he constituted an identifiable person subject to imminent harm.

Held:

         1. The town's operation of its municipal pool constituted a governmental function from which it did not derive a special corporate or pecuniary benefit so as to abrogate its discretionary act immunity: the town did not derive a special corporate profit or pecuniary benefit by renting the pool to E Co. for its private use, as the aqua therapy program fit within the general public purposes of a municipal pool because it promoted health and exercise, the fee that the town charged E Co. for use of the pool was nominal, the total fees collected from all parties renting the pool did not cover the annual costs of maintaining the pool, the pool was rented without a formal lease or contract, and the town continued to provide a lifeguard and maintain responsibility for the general maintenance of the pool; furthermore, the plaintiff could not prevail on his claim that this court should determine the profitability of the pool by evaluating the fees paid by only E Co. with respect to the period of time that E Co. had reserved the pool, as that argument was not raised before the trial court, and this court has never used that method to determine whether a municipality derived a profit; moreover, extending the abrogation of municipal immunity to situations, such as the one here, in which a town allows the private use of its facilities for a nominal fee, could expose municipalities to great liability and deter them from continuing to allow their facilities to be used by outside parties.

         2. The identifiable person, imminent harm exception did not abrogate the town's municipal immunity, as the plaintiff was not an identifiable person or a member of an identifiable class of persons for purposes of that exception; the fact that the plaintiff was not compelled to attend the aqua therapy sessions provided by E Co., but had voluntarily decided to use E Co.'s services, precluded this court from concluding that he was a person or in a group of persons identifiable to the lifeguard on duty as a potential victim or victims of an imminent harm.

         Procedural History

         Action to recover damages for personal injuries sustained as a result of defendants' alleged negligence, brought to the Superior Court in the judicial district of Windham, where the court, Boland, J., granted the named defendant's motion to strike and granted the named defendant's motion for summary judgment and rendered judgment thereon; thereafter, the court, Calmar, J., granted the named defendant's motion for judgment as to the stricken count of the complaint and rendered judgment thereon, from which the plaintiff appealed. Affirmed.

          OPINION

          ROGERS, C. J.

         The issue raised in this appeal is whether municipal immunity is abrogated by either the proprietary function exception of General Statutes § 52-557n[1] or the identifiable person, imminent harm exception. Specifically, we must decide whether there is municipal immunity when a town charges a nominal fee to a private group for reserved use of a public pool and an individual group member slips and falls on accumulated water in the vicinity of that pool. The plaintiff, David L. St. Pierre, appeals from the judgment rendered in favor of the named defendant, the town of Plainfield, [2] after concluding that no exception to the defendant's general immunity applied.[3] The plaintiff claims that the trial court improperly concluded that the defendant was immune from liability because (1) the defendant derived a special corporate profit or pecuniary benefit through its operation of the pool, or (2) the plaintiff constituted an identifiable person subject to imminent harm. We disagree with each of these claims and, accordingly, affirm the judgment of the trial court.

         The following undisputed facts and procedural history are relevant to this appeal. The plaintiff filed this negligence action against the defendant and Eastern Connecticut Rehabilitation Center, Inc. (Eastern); see footnote 2 of this opinion; to recover for injuries he allegedly sustained in an August 26, 2011 fall on wet steps after participating in an aqua therapy session. This session was conducted by Eastern in a pool owned by the defendant, which is located in the defendant's town hall building. The plaintiff alleged that he slipped and fell on the steps, which were covered with approximately one-quarter inch of water, on his way to the men's locker room. None of the defendant's employees witnessed the incident, nor had there been any previous complaints about the condition of the steps.

         Since 1994, Eastern, through its manager Penny Allyn, had reserved the pool two to three times per week for one hour sessions to provide aqua therapy services to its rehabilitation patients. Since 2006, Eastern has paid the defendant $50 per reserved hour for the exclusive use of the pool during the sessions.[4] Participation in the aqua therapy program ranged from two to seven individuals per session. During the reserved times, the defendant provided a lifeguard and remained responsible for the cleaning and general maintenance of the pool. There was no formal contract between the defendant and Eastern. Rather, a one page form letter generally used to make reservations provides the rules of pool use, in addition to listing the usage fee, the time of the reservation, and the party making the reservation.

         Eastern is not the only program that utilizes the pool. Myra Ambrogi, the defendant's recreation director, stated in her affidavit that the pool is generally open to the public as well as for organizations that pay the usage fee. Activities held at the pool include swim lessons, open swim periods, and exercise classes.

         In discussing the pool's financials, Ambrogi stated in her affidavit that the costs of operating the pool for the fiscal year from July 1, 2011 to July 1, 2012, were $81, 315.42 and that total revenue of $75, 605.96 was taken in during the same time frame, including the fees from Eastern. Thus, the pool operated at a loss of $5709.46. Ambrogi's figures included operational costs such as the lifeguards' salaries, instructor fees, equipment, pool chemicals and cleaning supplies, but did not include electricity, heat, water, maintenance employees' salaries, or consumable supplies.

         The plaintiff filed this action on August 19, 2013, alleging that the defendant had been negligent in various ways and that the plaintiff had been injured as a result. On January 30, 2015, the defendant filed a motion for summary judgment, claiming that municipal immunity applied to preclude the plaintiff's action because any acts or omissions alleged by the plaintiff involved judgment or discretion, the operation of the pool was a governmental function, and no exception to discretionary act immunity had been shown. The plaintiff objected, arguing that municipal immunity did not attach because the defendant's operation of the pool constituted a proprietary function and, in the alternative, that the identifiable person, imminent harm exception to immunity applied. In an August, 2015 memorandum of decision, the trial court agreed with the defendant that it was immune from liability. As to the proprietary function exception, the trial court concluded that the defendant's operation of a municipal pool was a governmental function and did not create a profit for the defendant. In regard to the ...


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