Opinion
CV166066430S
08-01-2018
Pamela KRAMER-GIDLEY v. MAB RINK MANAGEMENT, LLC et al.
UNPUBLISHED OPINION
Wilson, J.
I
STATEMENT OF CASE AND PROCEDURAL HISTORY
On February 6, 2018, Pamela Kramer-Gidley, the plaintiff, filed a revised complaint against MAB Rink Management, LLC and the Town of Hamden, the defendant. Count two of the revised complaint alleges the following.
The Town of Hamden is the only moving party for purposes of this motion. All references to the defendant are, therefore, to the Town of Hamden.
The plaintiff was attending her son’s hockey game at an ice rink in Hamden when she tripped and fell over a pothole in the parking lot of the ice rink. The plaintiff was consequently injured. The defendant owned, possessed, controlled, and maintained the ice rink and parking lot (premises). The pothole was caused by the carelessness and negligence of the defendant by and through its agents, servants, and/or employees. As a direct result of the carelessness and negligence of the defendant, the plaintiff sustained personal injuries and losses.
On February 21, 2018, the defendants filed a motion to strike count two of the plaintiff’s revised complaint on the ground that the defendant is entitled to governmental immunity. The defendant filed a supporting memorandum with its motion. On March 23, 2018, the plaintiff filed a memorandum in opposition to the motion to strike. Oral argument was heard on the motion at short calendar on April 9, 2018.
II
DISCUSSION
A. GOVERNMENTAL IMMUNITY
The defendant argues that the court should grant its motion to strike on the ground that it is entitled to governmental immunity because it is apparent on the face of the complaint that the acts and/or omissions complained of are discretionary in nature.
The plaintiff counters that the court should deny the defendant’s motion to strike on the ground that governmental immunity is not applicable because it is not clear from the face of the complaint that the defendant was engaged in a governmental function. The plaintiff further argues that the defendant is not entitled to governmental immunity because it is not apparent that the actions and/or omissions complained of are discretionary in nature. Moreover, the plaintiff argues that even if the court were to find that the conduct is discretionary in nature, the identifiable-person imminent harm exception applies.
At the outset, the court sets forth the appropriate standard for a motion to strike. "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 550, 427 A.2d 822 (1980). Upon deciding a motion to strike, the trial court must construe the "plaintiff’s complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985).
1. GOVERNMENTAL OR PECUNIARY FUNCTION
The defendant argues that its motion to strike is procedurally proper as it is apparent from the face of the complaint that the defendant was engaged in a governmental function, which would permit the defendant to invoke protection under the doctrine of governmental immunity.
The plaintiff counters that the defendant’s motion to strike is procedurally defective because it is unclear whether the defendant was engaged in a governmental function. Specifically, the plaintiff argues that the defendant should not be able to successfully invoke governmental immunity at this stage in the proceeding in part because were the plaintiff successful in proving that the defendant was engaged in a proprietary function, governmental immunity would not apply pursuant to General Statutes § 52-557n(a)(1)(B).
"[Our Supreme Court has] previously determined that governmental immunity must be raised as a special defense in the defendant’s pleadings ... Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] ... The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway ... Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
The proprietary function exception is codified in § 52-557n(a)(1)(B), which provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ... negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit ..."
"[F]unctions of a municipal corporation fall into two classes, those of a governmental nature, where it acts merely as the agent or representative of the state in carrying out its public purposes, and those of a proprietary nature, where it carries on activities for the particular benefit of its inhabitants." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 842, 905 A.2d 70 (2006). "In order to deprive a municipal corporation of the benefit of governmental immunity, the act or function must involve special corporate benefit or pecuniary profit inuring to the municipality ... To remove the benefit of the principle, however, the operation must contemplate and involve revenue of such amount and nature as to signify a profit resulting therefrom, as distinguished from the imposition of such a nominal or small fee or charge as may fairly be regarded as mere incident of the public service rendered ..." (Citations omitted.) Carta v. Norwalk, 108 Conn. 697, 702, 142 A. 158 (1929). "[I]f property is not held and used by the city for municipal purposes exclusively, but in considerable part as a source of revenue, the city is responsible, as a private owner would be, for injury sustained through its negligence." Id., 701.
It must be noted, however, that "[t]he existence of an actual pecuniary profit is a factor in deciding whether the function is proprietary, but reliance on it alone would create problematic incentives and arbitrary results ... If the availability of immunity turned solely upon an examination of the ledgers and budgets of a particular activity, a fiscally responsible governmental agency would be ‘rewarded’ with tort liability for its sound management decisions. Such a rule could discourage implementation of cost-efficient measures and encourage deficit spending. Moreover, the rule would be difficult to implement and inconsistent in its results. If an activity operates at a loss one year, but makes a profit the next year, does the availability of immunity from tort liability also change?" (Citations omitted; internal quotation marks omitted.) Considine v. Waterbury, supra, 279 Conn. 847 n.11.
In order to raise the pecuniary exception, the plaintiff must allege that the defendant derives a pecuniary benefit from operating its facility. In Mancini v. Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6005789-S (November 10, 2011, Jennings, J.T.R.), the plaintiff opposed the defendant’s motion to strike by arguing that the pecuniary exception applied. The plaintiff’s original complaint did not contain an allegation asserting a pecuniary benefit. The court rejected the plaintiff’s argument that she had asserted a pecuniary benefit by implication by alleging that "the defendant [owned] and [operated] the [center]." The court held that allegation alone was "insufficient to raise the pecuniary benefit exception." Id. "A municipality can, and usually does, own and operate facilities which do not generate a profit. The plaintiff’s amended complaint, however, added an allegation asserting that ‘upon information and belief, the [d]efendant [derived] a pecuniary benefit from the owning and operation of the [center].’ Although the nature of the pecuniary benefit [was] not specified, and the allegation [was] made only ‘upon information and belief,’ the court [held] that the allegation of the complaint as amended, construed most favorably to the plaintiff, [alleged] this exception to governmental immunity sufficiently to save the first count from this motion to strike." Id. See also Miller v. South Windsor, Superior Court, judicial district of Tolland, Docket No. CV-9970122-S (October 27, 2000, Sferrazza, J.) (motion to strike denied in case where pecuniary exception specifically pleaded; plaintiff alleged that count was brought pursuant to General Statutes § 52-557n(a)(1)(B) and that city "was involved in a pecuniary activity in that it charged admissions to non-residents to the aforementioned park").
In the present case, the plaintiff has not alleged any facts that would indicate that the defendant was engaged in a pecuniary function. Following Mancini, an allegation that the defendant owned and operated a facility is insufficient to raise the pecuniary exception. In the present case, the plaintiff alleges that the defendant owned, possessed, controlled, and maintained the premises, including the parking lot and associated walkways. See Compl., Count Two, ¶ 1. The plaintiff further alleges that the plaintiff was caused to trip and fall over a pothole located on the defendant’s property as a result of the defendant’s negligence through its agent. See Id., ¶ 3. The defendant’s maintenance of its property in a reasonably safe condition amounts to a governmental function. See Segreto v. Bristol, 71 Conn.App. 844, 854, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002) (concerning whether municipality’s failure to maintain its property in a reasonably safe condition was ministerial or discretionary government function). Accordingly, it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, and the defendant is not required to plead governmental immunity as a special defense. It is therefore appropriate for the court to consider the applicability of governmental immunity in this case in the context of the defendant’s motion to strike. See Kumah v. Brown, 127 Conn.App. 254, 261, 14 A.3d 1012 (2011), aff’d, 307 Conn. 620, 58 A.3d 247 (2013) (Appellate Court held that court appropriately considered the applicability of governmental immunity in context of town’s motion to strike because it was apparent on face of complaint that town, acting through agent, was engaging in governmental function while performing acts and omissions complained of by plaintiffs).
2. PROCEDURAL DEFECT
The defendant argues that the acts and omissions complained of are clearly discretionary in nature. The plaintiff counters that the present case requires consideration of evidence outside of the pleadings to determine whether the defendant’s omissions constituted ministerial or discretionary acts, and that it is possible that the defendant was engaged in a ministerial function such that the defendant would not be entitled to governmental immunity, and that it is unclear whether directives giving rise to a ministerial duty exist because discovery has not yet been completed. The plaintiff further argues that the inquiry invoked by the question of whether the defendant’s conduct is discretionary implicates the adjudication of facts, which is inappropriate in the context of a motion to strike.
Our Supreme Court has rejected the plaintiff’s argument in Violano . In Violano, "[t]he plaintiffs [claimed] that utilizing a motion to strike to determine issues of governmental immunity [was] unfair as it [precluded] discovery of any relevant rules, policies, or directives that would make the complained of acts ministerial in nature. [Our Supreme Court disagreed] because dismissing the plaintiffs’ complaint on a motion to strike did not unfairly preclude them from alleging that the complained of acts were ministerial in nature. First, rules, policies, or directives prescribing the manner in which a municipal employee must perform a certain function generally are accessible to the public prior to initiating a civil action against the municipality. For example, a municipality’s charter, ordinances, and regulations are public records. In addition, other pertinent documents that direct the manner in which a municipal employee must carry out the functions of his or her job can be obtained through a freedom of information request pursuant to General Statutes § 1-210. Second, nothing in the rules of practice [prevent] the plaintiffs from requesting the trial court to stay temporarily the motion to strike pending limited discovery regarding any pertinent rules, policies, or directives ... Third, the plaintiffs [could object] to the motion to strike on the ground that they needed the opportunity to plead additional facts, as they would normally be permitted to do under Practice Book § 10-57, to establish matters in avoidance of the special defense, such as one of the three exceptions to governmental immunity ... [Our Supreme Court] therefore [declined] the plaintiffs’ invitation to abandon our well established practice permitting resolution of the issue of governmental immunity by a motion to strike." (Footnote omitted.) Violano v. Fernandez, supra, 280 Conn. 325-26.
Following the reasoning of our Supreme Court in Violano, this court rejects the plaintiff’s argument that it would be inappropriate for the court to decide on a motion to strike, whether governmental immunity applies because doing so would deny the plaintiff the opportunity to conduct discovery to determine whether the city had any applicable rules, policies, or directives that would have rendered the defendant’s actions ministerial in nature. Accordingly, the determination of whether governmental immunity is applicable in deciding the present motion to strike is appropriate.
3. MINISTERIAL OR DISCRETIONARY
The court turns next to the question of whether the acts or omissions complained of are ministerial or discretionary in nature. See Kumah v. Brown, supra, 127 Conn.App. 261-62 (after Appellate Court decided that trial court properly considered applicability of governmental immunity, turned to whether plaintiff sufficiently pleaded cause of action for violations of ministerial, rather than discretionary, duties). If the court determines that the defendant’s conduct is discretionary, the court must grant the motion to strike, absent the applicability of an exception.
The defendant argues that the alleged conduct on the part of its agents relative to maintaining the parking lot clearly implicates some measure of discretion and/or application of judgment. The plaintiff counters that it is not apparent from the plaintiff’s revised complaint that the defendant was engaged in a discretionary function while performing the negligent acts and omissions complained of by the plaintiff. The plaintiff further argues that even if the court finds that the conduct complained of is discretionary, the court’s inquiry should not stop there, as courts have regularly recognized that a ministerial duty may hinge upon a discretionary determination.
"The [common-law] doctrines that determine the tort liability of municipal employees are well established ... Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ... Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ... The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion ...
"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 discretion 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 governmental officers and employees free to exercise judgment and discretion in their official functions, unhampered by the fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." Kumah v. Brown, supra, 127 Conn.App. 260.
"The tort liability of a municipality has been codified in [General Statutes] § 52-557n." Id., 260. Section 52-557n(a)(1) provides "[e]xcept 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." "[General Statutes § ] 52-557n(a)(2)(B) extends ... the same discretionary act immunity that applies to municipal officials to the municipalities themselves ..." Kumah v. Brown, supra, 127 Conn.App. 260-61. Section 52-557n(a)(2) provides: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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." "The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion ... If the acts or omissions complained of are not imposed in the form of a general legal duty, they must, in order to be characterized as ministerial, be required by [a] ... charter provision, ordinance, regulation, rule, policy, or any other directive ... that prescribe[s] the manner in which [they are to be performed]." (Citations omitted; emphasis in original; internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 271, 41 A.3d 1147 (2012). "Determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions." Violano v. Fernandez, supra, 280 Conn. 322.
In Segreto v. Bristol, supra, 71 Conn.App. 857-58, "the plaintiff alleged as follows: ‘The Plaintiff’s fall and her consequent injuries were proximately caused by the negligence of the Defendant ... in one or more of the following respects: a. They failed to maintain the exit door and stairway in a reasonably safe condition for persons using the same; b. They allowed the exterior stairway to consist of single step-downs or risers in conjunction with sets of multiple risers; c. They failed to paint or otherwise visually mark the edges of risers so as to make them more nearly visible; d. They failed to provide continuous handrails for use by persons using the exterior stairway; e. They failed to post warnings regarding the presence and configuration of the stairs.’ ... The complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply ... Moreover, the plaintiff’s allegations all relate to whether the city’s design and maintenance of the stairway were reasonable and proper under the circumstances. Determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature ... Accordingly, [our Appellate Court concluded] that the court was correct in concluding, as a matter of law, that the complaint alleged that the city negligently failed to perform a discretionary duty." (Citations omitted; emphasis in original; internal quotation marks omitted.)
The allegations in the present case are very similar to those allegations in Segreto . In the present case, the plaintiff alleges that the defendant was negligent in that it (1) failed to provide the plaintiff with a reasonably safe walking surface; (2) allowed said pothole to remain on the premises, where it was a danger to those on the premises, including the plaintiff; (3) failed to fill or otherwise remedy said pothole; (4) knew or should have known of the defective condition created by the pothole and took no measure to remedy it; and (5) allowed or permitted the defective condition to exist for an unreasonable period of time yet took no measure to remedy or correct the same. Similar to the allegations in Segreto, these allegations relate to the defendant’s determination as to what is reasonable or proper to maintain the premises under a particular set of circumstances, which necessarily involve the exercise of judgment. Accordingly, the acts complained of are discretionary.
Allegations that the defendant failed to maintain, repair, or remedy the allegedly hazardous condition are insufficient, without more, to find that a ministerial duty has been sufficiently pleaded. See Duford v. Oxford, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-13-6020466-S (March 31, 2017, Stevens, J.) ("The amended complaint alleges that the defendant’s employees or agents knew or should have known ‘that the sidewalk was not safe ... yet they failed to repair, redesign, fix or otherwise remedy the hazardous conditions upon the sidewalk despite having ample time to do so.’ Assuming the truth of this allegation that the defendant knew or should have known about the hazardous conditions, this claim merely indicates, that municipal officials failed to exercise their judgment in a reasonable way to react to dangerous conditions that they ‘knew or should have known about.’ Again, neither this allegation, nor any other allegation of the amended complaint, point to or rely on any directive mandating that a response to the situation be made in a particular way so that a ministerial duty may be found to exist").
The plaintiff also alleges that the defendant was negligent in that it (1) negligently failed to adequately illuminate the area, although it knew or should have known that the same was reasonable and necessary under the circumstances, and (2) failed to warn the plaintiff of the dangerous and defective condition then and there existing by appropriately marking the area with visual cues or by any other reasonable method. Our courts have held that deciding how to mark, close off, or alert others to a defect is inherently discretionary. See Martel v. Metropolitan District Commission, 275 Conn. 38, 50, 881 A.2d 194 (2005) (concluding that the defendants, in determining whether to supervise, and inspect the trails and when to mark, close or barricade the trails, if at all, were engaged in duties that inherently required the exercise of judgment).
The plaintiff further alleges that the defendant was negligent in that it failed to inspect the premises to determine if there were any dangerous, defective and unsafe conditions then and there existing. Courts have held that "what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 322-23; see also Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989) (defendants’ act was discretionary in nature because what constitutes reasonable, proper or adequate inspection involves exercise of judgment).
Moreover, in the present case, the plaintiff has failed to allege and thereby direct this court to any city ordinance, policy, or any other directive imposing a duty on the defendant to act in a prescribed manner. See Violano v. Fernandez, supra, 280 Conn. 323 (holding that plaintiffs failed to allege that the acts or omissions complained of were ministerial in nature because they did not allege that defendant was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to act in any prescribed manner). In the absence of any such authority compelling the defendant to act in a prescribed manner, the defendant’s conduct cannot be regarded as ministerial in nature. Accordingly, the plaintiff has not sufficiently alleged that the defendant was required to perform in a prescribed manner and failed to do so. See Colon v. Board of Education, 60 Conn.App. 178, 182, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1024 (2000).
The court notes that a party need not necessarily cite a specific rule to sufficiently plead a ministerial duty. See, e.g., Kumah v. Brown, supra, 127 Conn.App. 258 (denying motion to strike negligence count alleging that duties were "ministerial to the extent there exist prescribed standards, regulations, rules and/or procedures requiring that [the defendant] perform [its] duties ... in a prescribed manner without the exercise of judgment or discretion" [internal quotation marks omitted] ). The plaintiff’s revised complaint, however, contains no similar allegation. Additionally, the plaintiff has alleged no duty beyond that imposed by the common law. See Grignano v. City of Milford, 106 Conn.App. 648, 656-57, 943 A.2d 507 (2008). In other words, the plaintiff fails to allege that there was any specific duty imposed on the defendant. In comparison, in Doe v. Madison, Superior Court, judicial district of New Haven, Docket No. CV-09-5032869-S (July 6, 2011, Woods, J.) (52 Conn.L.Rptr. 216, 220), the court denied a motion to strike, concluding that the plaintiff had sufficiently alleged a ministerial duty because the plaintiff had alleged that the town had a duty pursuant to a statute to establish procedures to secure the privacy rights of juveniles like the plaintiff, and the town totally disregarded that duty. Although creating and actually implementing the procedures required by statute involved discretion, the plaintiff had alleged a failure to implement any procedures for protection of information of the plaintiff’s arrest record, as opposed to alleging that defendants adopted inadequate procedures or provided insufficient training and supervision in relation to the privacy rights of juveniles. Id. The present case is dissimilar to Doe because the plaintiff has not alleged that any duty was required beyond that which is required under the common law.
It is true, as the plaintiff contends, that courts have recognized that a ministerial duty may hinge upon a discretionary determination. "A ministerial duty on the part of an official often follows a quasi-judicial determination by that official as to the existence of a state of facts. Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act, the duty of giving effect, by taking appropriate actions, to the determination is often ministerial." (Citations omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 309, 999 A.2d 700 (2010). "Thus, an alleged actor omission can involve both a discretionary duty to make a particular determination and a subsequent ministerial duty to give effect to such a determination." Duford v. Town of Oxford, supra, Superior Court, Docket No. CV-13-6020466-S.
The plaintiff relies on Grignano v. Milford, supra, 106 Conn.App. 658, to support her argument that although it may be within the discretion of a municipality to inspect public areas for defects, there exists a ministerial duty to respond to defects and hazards once discovered. The court’s inquiry, therefore, should not stop at determining whether the act of inspection is discretionary. Grignano is readily distinguishable. In Grignano, a town ordinance prescribed the manner in which the town was to warn of a defect once the defect was known. Id. Our Appellate Court held that the duty to warn was thus ministerial, given its interpretation of the town ordinance. Id. In the present case, the plaintiff has not cited to such town ordinance, or any other directive. Accordingly, the acts and omissions complained of are discretionary in nature.
B. COMMON-LAW EXCEPTIONS
Having concluded that the defendant’s conduct is discretionary in nature, the court turns to whether an exception to governmental immunity applies. The relevant inquiry is, therefore, if proven, would the facts alleged in the complaint support a cause of action irrespective of the doctrine of governmental immunity. See Kumah v. Brown, supra, 261-62.
The defendant argues that none of the recognized exceptions to discretionary governmental immunity are applicable in this case. The plaintiff counters by arguing that were the court to determine that the defendant’s conduct is discretionary, the identifiable person imminent harm exception might apply.
"[Our Supreme Court has] identified three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official’s duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity- to encourage municipal officers to exercise judgment- has no force ... First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure ... Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ... Third, liability may be imposed 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." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006). "Discretionary act immunity is abrogated 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 ... By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Citations omitted; internal quotation marks omitted.) Id., 616.
"An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Like-wise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person ...
"Generally, we have held that a party is an identifiable person when he or she is compelled to be somewhere. See Strycharz v. Cady, [ 323 Conn. 548, 575-76, 148 A.3d 1011 (2016) ] (‘[o]ur decisions underscore ... 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] ). Accordingly, ‘[t]he only identifiable class of foreseeable victims that we have recognized ... is that of schoolchildren attending public schools during school hours 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.’
"Outside of the schoolchildren context, we have recognized an identifiable person under this exception in only one case that has since been limited to its facts. [See Sestito v. Groton, 178 Conn. 520, 522-23, 423 A.2d 165 (1979) (facts presented jury question in case wherein on-duty police officer watched and witnessed ongoing brawl in bar’s parking lot, but did not intervene until after participant had shot and killed plaintiff’s decedent).] Beyond that, although we have addressed claims that a plaintiff is an identifiable person or member of an identifiable class of foreseeable victims in a number of cases, we have not broadened our definition. See, e.g., Cotto v. Board of Education [ 294 Conn. 265, 267-68, 279, 984 A.2d 58 (2009) ] (director of community based summer youth program located in public school was not identifiable person when he slipped in wet bathroom because ‘then so was every participant and supervisor in the Latino Youth program who used the bathroom,’ and anyone ‘could have slipped at any time’ [emphasis in original] ); see also Coe v. Board of Education, 301 Conn. 112, 119-20, 19 A.3d 640 (2011) (student injured while attending middle school graduation dance occurring off school grounds did not qualify as member of identifiable class of foreseeable victims because she was not required to attend dance); Grady v. Somers, [ 294 Conn. 324, 328, 355-56, 984 A.2d 684 (2009) ] (permit holder injured at refuse transfer station owned by town did not qualify as identifiable person despite being paid permit holder and resident of town); Durrant v. Board of Education, 284 Conn. 91, 96, 104, 108, 931 A.2d 859 (2007) (mother who slipped and fell while picking up her child from optional after-school day care program run in conjunction with public school did not qualify as member of identifiable class of foreseeable victims because program was optional); Prescott v. Meriden, 273 Conn. 759, 761-62, 761-65, 873 A.2d 175 (2005) (parent voluntarily attending high school football game to watch his child play was not member of identifiable class of foreseeable victims because he was not compelled to attend, school officials lacked similar duties of care to him as to child given his status as parent, and exception is ‘narrowly defined’ [internal quotation marks omitted] ); Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989) (’[t]he class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of ‘identifiable persons’)." (Citations omitted; footnotes omitted; citations omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 436-38, 165 A.3d 148 (2017).
The court notes that the plaintiff has not alleged this exception in her complaint. See Haynes v. Middletown, 122 Conn.App. 72, 80-81, 997 A.2d 636 (2010), rev’d on other grounds, 306 Conn. 471, 50 A.3d 880 (2012) (our Appellate Court held that it is plaintiff’s burden to plead identifiable person subject to imminent harm exception in complaint). Construing the facts alleged in the complaint broadly, as the court must, the only facts that would support this exception are the following. The plaintiff pleads that she "was lawfully upon said premises for purposes of attending her son’s hockey game, when she was suddenly caused to trip and fall to the ground as a result of a pothole located in the parking lot, thereby causing, losses and damages as hereinafter alleged." Compl., Count Two, ¶ 2. In Prescott v. Meriden, supra, 273 Conn. 765, our Supreme Court held that a parent watching his son’s high school football game was not a member of a class of identifiable persons because his attendance at the game was purely voluntary, and recognized that were the court to deem a parent spectator to be a cognizable class of foreseeable victims, it "would mean that all spectators at a public municipal event would constitute a class of foreseeable victims for these purposes, thus making the exception so broad that it would threaten to swallow the rule." In the present case, the plaintiff has not alleged that she was in any way compelled to attend the hockey game. The plaintiff has not alleged any facts that would distinguish her from being one of many spectators at a public municipal event. In sum, no facts have been alleged upon which this court could determine that the plaintiff was an identifiable person. "As the identifiable person, imminent harm exception requires conjunctive proof of both, our determination that the plaintiff does not qualify as an identifiable person ends our analysis, and we need not consider whether an imminent harm existed on these facts." St. Pierre v. Plainfield, supra, 326 Conn. 438.
III. CONCLUSION
Accordingly, it is apparent from the face of the complaint that the defendant was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, and that the acts and omissions complained of are discretionary in nature. On the basis of the fact that governmental immunity is applicable, and that no exception to governmental immunity applies, the defendant’s motion to strike count two of the plaintiff’s revised complaint is granted.