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Municipal Liability & Immunity After Considine v. City of Waterbury

BPS is here to serve our clients during this COVID-19 crisis. Pursuant to Governor Lamont’s Executive Order, legal services are essential services. Whether or not we are in our offices, Brown Paindiris & Scott, LLP Lawyers are available by email, phone and video conference. Read More.

January 9, 2007

Municipalities which have relied on governmental immunity may be sleeping less restfully after the Connecticut Supreme Court poked some holes in their security blanket

In Considine v. City of Waterbury,1 a decision released by the Connecticut Supreme Court on September 12, 2006, the Court held that the City of Waterbury (hereinafter “City”) could be held liable under Conn. Gen. Stat. § 52-557n(a)(1)(B),2 and that the governmental immunity as set forth in Conn. Gen. Stat. § 52-557n did not shield the City from liability. The holding of the Court is that the exception to immunity should apply when the municipality acts just as a private corporation would to secure income.

In Considine, the City leased part of a clubhouse on its municipal golf course, the Western Hills Golf Course, to a restaurant, called The Hills.3 Pursuant to the lease, the City was responsible for the common areas that permitted ingress to and egress from the restaurant. While the plaintiff was standing in a common area adjacent to the exit, his legs collapsed, and he fell against a glass window panel.4 The window shattered as the plaintiff fell into it, and he was injured by broken glass. In response to the plaintiff’s negligence action against it, the City asserted the special defenses of governmental immunity and contributory negligence.5

The trial court held the City liable under Conn. Gen. Stat. § 52-557n(a)(1)(B), and the Supreme Court affirmed the trial court judgment. The Supreme Court determined that the phrases “special corporate benefit or pecuniary profit” in § 52-557n(a)(1)(B)6 codified municipal common-law liability for acts performed in a proprietary capacity. The lease was proprietary because it was similar to private enterprise and the city derived a pecuniary benefit. The Court found that there was an inextricable link and close connection between the City’s alleged negligence and the lease. Furthermore, the restaurant’s location on a city golf course did not transform an otherwise commercial function into a governmental one, and the distinction between discretionary and ministerial acts did not apply.

The original basis for municipal immunity arose from the common law.7 However, the legislature codified and, in some respects, extended the immunity in Tort Reform I.8 Conn. Gen. Stat. § 52-557n establishes the modern boundaries of a municipality’s immunity. The statute codified the qualified immunity established by the common law, as well as extends the immunity in certain circumstances. The statute did not create any new liability for municipalities which did not previously exist under the common law.9

Since § 52-557n does not define the phrases “special corporate benefit or pecuniary profit” the Supreme Court looked at dictionary definitions.10 Nevertheless, the Court found that these phrases were susceptible to multiple common meanings, thus resulting in ambiguity. “Accordingly, we conclude that the text of § 52-557n(a)(1) fails to yield a plain and unambiguous answer to the question of whether the defendant derives either a special corporate profit or pecuniary benefit from the lease of a portion of the clubhouse to the restaurant.”11

The Court next looked at the statute’s legislative history, which it found somewhat helpful but not definitive in resolving the meaning of the phrases.12 After reviewing the remarks of various legislators, the Court concluded13 the meaning of the phrases was still unclear from the context and substance of the remarks.14 The Court then turned to the common-law backdrop against which this section was enacted in an effort to determine whether the phrases were meant to draw their meaning from, and codify, preexisting common law.

At common law, a municipality was, under certain circumstances, immune from liability for the torts it committed.15 The source of this municipal immunity was the state’s sovereign immunity.16 The common law also recognized that a municipality was not restricted to just acting as the agent of the state but could engage in acts for its own corporate benefit. “Sovereign immunity protects sovereign governments, such as states, and municipalities when acting as agents of the state, but not municipal corporations acting on their own behalf.”17 Thus, the litmus test for whether the municipality would be held liable for its own negligence was whether the municipality was acting in its governmental capacity, or in its corporate or proprietary capacity.

At the outset, the Court recognized that the distinction between a municipality’s governmental and proprietary functions has long been criticized as being illusory, elusive, arbitrary, unworkable and a quagmire.18 Despite this criticism, Connecticut, like a minority of other jurisdictions, has not disavowed the application of this distinction.

Examples of municipal activities that would not be for a municipality’s special corporate benefit or pecuniary profit would be: (1) maintenance of a park system; (2) construction of storm water sewers (a governmental function because it is a duty imposed by the state on municipalities to maintain highways within its limits); (3) use of municipal property as a public park; (4) traditional governmental functions such as the operation of jails, public libraries, and city garbage services. The distinction tends to blur when the municipality charges a fee for participation in the governmental activity.19 “In the specific context of leasing municipal property, this court and courts of other jurisdictions generally have concluded that a municipality acts in its proprietary capacity when it leases municipal property to private individuals.”20

After conducting its exhaustive analysis, the Court turned to the facts of Considine, and concluded that the City could be held liable for the plaintiff’s injuries because it was acting in its propriety capacity when it leased a portion of the clubhouse to the restaurant. There was an “inextricable link or inherently close connection… between the defendant’s allegedly negligent maintenance of the sidelite21 in the clubhouse’s entryway and the rental of the restaurant.”22 Having determined that the City was not immune from liability, the Court found that the evidence23 was sufficient to support a finding that the City was negligent in allowing the use of glass in the entryway.24


1. 279 Conn. 830 (2006).

2. CGS § 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 … (B) negligence in the performance of functions from which the political subdivision derives a special corporate or pecuniary benefit. (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 discretion as an official function of the authority expressly or impliedly granted by law.”

3. The trial court concluded that the City received a pecuniary benefit from the receipt of more than $29,000 in annual rent from the restaurant. In contrast, the trial court determined that the $1 in annual rent the defendant charged the pro shop was such a small fee that it would not abrogate the defendant’s governmental immunity with regard to pro shop patrons.

4. The glass window panel, sometimes called a “lite” or “sidelite,” was approximately eighteen to twenty-four inches wide and extended from the floor to the top of the door.

5. The trial court found that credible testimony and exhibits supported no contention that might support a finding of contributory negligence, and that the suggestion that the plaintiff walked into the glass at least approached the area of speculation and bordered on fantasy. See Considine v. City of Waterbury, 2005 Conn. Super. LEXIS 562.

6. The Considine decision was the first time a higher court in Connecticut had commented on the definition of the phrase “special corporate benefit or pecuniary profit” in § 52-557n(a)(1)(B).

7. Ryszkiewicz v. New Britain, 193 Conn. 589, 593 (1984); See generally Tort Remedies in Connecticut § 23-1.

8. P.A. 86-338 § 13; Caman v. Stamford, 746 F. Supp. 248, 249 (D. Conn. 1990).

9. Id.

10. In particular, the Court quoted from entries in Webster’s Third New International Dictionary (1993) and Black’s Law Dictionary (7th Ed. 1999).

11. 279 Conn. 830, 838 (2006).

12. “Section 52-557n was enacted as part of § 13 of the Tort Reform Act of 1986, Public Acts 1986, No. 86-338. This court has described the act as being ‘drafted in response to rapidly rising insurance rates, which, some believed, would be curtailed if tort liability could be limited and systematized. As finally enacted, the act represents a complex web of interdependent concessions and bargains struck by hostile interest groups and individuals of opposing philosophical positions.’ ” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185 (1991).

13. “This conclusion is consistent with this court’s prior examination of the legislative history of § 13 of the act, in which we described it as ‘worse than murky; it is contradictory…. The transcripts of legislative hearings on the bill are full of heated debate over § 13 [of the act], dealing with municipal liability, but the legislators seemed not to agree as to its meaning. The record of legislative debate does indicate that § 13 was intended, in a general sense, both to codify and to limit municipal liability, but it also reflects confusion with respect to precisely what part of the existing law was being codified, and what part was being limited.’ Sanzone v. Board of Police Commissioners, 219 Conn. 179, 188 (1991).” Considine v. City of Waterbury, 279 Conn. 830, 841 n.7 (2006).

14. Representative Michael D. Rybak described the section on municipal liability as “an absolute mine field, an attempt to codify 200 years of municipal law and statute in probably two weeks.” 29 H.R. Proc., Pt. 22, 1986 Sess., p. 8108. Senator Anthony V. Avallone remarked on § 13 of the act as “a section on municipal liability that I defy anybody in here to explain to me…. I’ve been trying for two weeks to find municipal lawyers who understand it. And they can’t.” 29 S. Proc., Pt. 10, 1986 Sess., p. 3482.

15. Hourigan v. Norwich, 77 Conn. 358, 364-65 (1904).

16. See 18 E. McQuillin, Municipal Corporations (3d Ed. Rev. 2003) § 53.23, p. 380 (“rule of immunity for governmental acts and liability for corporate or proprietary acts is grounded in common-law sovereign immunity.”)

17. Id, p. 381. See generally W. Williams, Liability of Municipal Corporations for Tort (1901), pp. 8-9.

18. See Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955) (calling governmental-proprietary distinction a quagmire that has long plagued the law of municipal corporations).

19. See Hannon v. Waterbury, 106 Conn. 13 (1927) (City charged small fee to use municipal pool, but fee did not cover maintenance expenses); Martel v. Metropolitan District Commission, 275 Conn. 38 (2005) (operation of water utility for profit is proprietary function).

20. 279 Conn. 830, 849 (2006); See Gonzalez v. Town of Monroe, 2005 U.S. Dist. LEXIS 31089 (D. Conn. Nov. 28 2005) (Town’s motion for summary judgment in action by basketball player injured on basketball court in town park was granted where user fees were collected to offset the park’s operating costs, the park did not generate a profit, and the town’s department of parks and recreation as a whole operated at a substantial loss; accordingly, the victim could not recover against the town under Conn. Gen. Stat. § 52-557n(a)(1)(B) as the town was not deriving a pecuniary benefit from the operation of the park).

21. See footnote 4, re “sidelite.”

22. 279 Conn. 830, 849 (2006).

23. The plaintiff’s expert witness was Michael E. Shanok, a consulting engineer specializing in forensics and safety. Shanok testified that, although not applicable to the clubhouse, the building code, enacted by the office of the state building inspector in approximately 1970, and the regulations of the United States Consumer Product Safety Commission, promulgated in approximately 1980, both regarded the entryway as a highly hazardous location and regulated the type of glass that could be used in this area.

One of the issues the Court wrestled with was whether the building code could be properly admitted into evidence. “Although this court has not dealt directly with this question, the District of Columbia Circuit Court of Appeals … has considered whether such a building code could be used as some evidence of the standard of care. Considine v. City of Waterbury, 279 Conn. 830, 862 (2006) (citation omitted). The Court found that “these safety provisions may appropriately be held competent, not in and of themselves as evidence of negligence, but as evidence of a standard by which the jury must measure the conduct of the defendants in determining whether they exercised that due care the law required in the situation.” Id

After surveying case law from across the country, the Court conclude that “the building code is both relevant and material to the question of the standard of care, in the present case, because it reflects the experience and expertise of what authorities believe to be the safe use of glass in an entryway, albeit for future construction. ” Id. at 864. According, the building code was admitted under the Conn. Code Evidence § 4-1 (evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence).

The issue of the admissibility of the building code was the subject of differing opinions. Justice Zarella wrote a dissent in which he opined that evidence of the inapplicable building code was not relevant to the inquiry into whether the defendant was required to replace the glass in the sidelite in order to render the clubhouse “reasonably safe.” He reasoned that the building code’s prohibition of the use of annealed glass in only new construction reflected a determination that preexisting uses of such glass in entryways were not dangerous enough to warrant remediation. Accordingly, Justice Zarella contended that the fact that the building code prohibited the use of annealed glass in new construction did not reflect any definitive judgment of what was, and what was not, “reasonably safe.” By permitting the inapplicable building code to be admitted as evidence of the standard of care, the Court was usurping the role of the drafters of the building code by requiring the owners of otherwise exempt premises to meet the standards set forth in the building code.

24. Shanok testified that the glass installed in the window panel was very likely annealed glass, and that this type of glass was the most easy to break among the various types of glass. In addition, Shanok testified that there was a substantial risk of injury if one were to fall into annealed glass because it has a tendency to break into large, sharp shards of glass. He also testified that placing a glass window panel next to an entryway door is recognized as an extremely hazardous location because it is a high traffic area.