Peril of Puddles, Municipal Liability

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September 20, 2006

If a parent slips and falls on a puddle of water that has accumulated at the bottom of a back door stairway when she is at the school to pick up her children, can the school's superintendent of education, the school principle, the school maintenance director, and the city board of education be held liable when injuries result? The answer is, it depends a number of factors. Is maintenance of the stairway a discretionary function, and thus providing for governmental immunity to the school and city? Are there any exceptions that apply to the defense of governmental immunity?[1]

The common law doctrines that determine the tort liability of municipal employees are well established. Although historically a municipality itself was generally immune from liability for its tortious acts at common law, municipal employees faced the same personal tort liability as private individuals. Over the years, however, the doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of "governmental acts." The issue of governmental immunity is a matter of law decided by the Court.

"Governmental acts" are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. The general rule is that a determination as to whether the actions or omissions of a municipality are discretionary or ministerial is a question of fact for the jury, although where it is apparent from the complaint, the Court will decide the issue.

Sanding or salting an icy outdoor courtyard has been held by Appellate Courts to be a discretionary duty and thus fell within the ambit of the doctrine of governmental immunity. See Burns v. Board of Education, 30 Conn. App. 594 (1994). The Supreme Court subsequently held that because students are statutorily compelled to be at school, they can be a foreseeable class of victims of harm resulting from negligent school maintenance. See Burns v. Board of Education, 228 Conn. 640 (1994).

A municipal employee's immunity for the performance of discretionary governmental acts is qualified by three recognized exceptions: first, where 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; second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. Thus, the presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.

Thus far, the only identifiable class of foreseeable victims that our Supreme Court has recognized for these purposes 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 were legally required to attend school rather than being there voluntarily; their parents were thus 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. See Prescott v. Meriden, 273 Conn. 759 (2005).

Our Supreme Court has specifically declined to extend the exception to a parent who fell in the stands while attending his son's high school football game, because his presence was purely voluntary.

[1] Governmental immunity is provided both by statute and common law. C.G.S. § 52-557n, which provides for immunity to political subdivisions for negligent acts or omissions which require the exercise of judgment or discretion, was enacted to codify the common law and to limit governmental immunity.