TRACEY HAYNES et al. v. CITY OF MIDDLETOWN, SC 18665

Judicial District of Middlesex

 Governmental Immunity; Identifiable Person, Imminent Harm Exception; Whether Doctrine of Governmental Immunity Barred Plaintiffs' Action on the Ground that Plaintiffs Failed to Plead the Identifiable Person, Imminent Harm Exception in their Reply to Defendant's Special Defense of Governmental Immunity.  In 2005, a high school student was injured when a fellow student pushed him into a broken locker.  The student and his mother subsequently initiated this action pursuant to General Statutes § 52-557n, claiming that the injuries were caused by the defendant town's negligence.  Under § 52-557n, a municipality may be held liable for its negligent acts that cause injury to an individual, except where those acts require the exercise of discretion.  At trial, the defendant moved for a directed verdict on the ground that its allegedly negligent actions were discretionary and that the doctrine of governmental immunity consequently barred the plaintiffs' action.  The plaintiffs acknowledged that the defendant's acts were discretionary, but they contended that the action should proceed under the identifiable person, imminent harm exception, which overcomes discretionary act immunity 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.  The trial court reserved judgment on the defendant's motion, and the jury subsequently returned a verdict in favor of the student.  Thereafter, the court set aside the verdict on the ground that there was insufficient evidence to establish that the identifiable person, imminent harm exception was applicable.  On appeal, the plaintiffs argued that the court improperly set aside the verdict.  The Appellate Court (122 Conn. App. 72) affirmed the trial court's judgment, albeit on an alternate ground.  It concluded that although the defendant specially pleaded and proved that it was entitled to governmental immunity, the plaintiffs failed to plead an exception to discretionary act immunity in their reply to the defendant's special defense.  The court explained that the plaintiffs merely filed a general denial to the defendant's specially pleaded defense of governmental immunity and that although they maintained at trial that the identifiable person, imminent harm exception was applicable to the facts of this case, they never moved to amend their reply to include the exception.  It also emphasized that when the plaintiffs conceded that the defendant's actions were discretionary, they assumed the burden to plead and to prove that the identifiable person, imminent harm exception applied.  Accordingly, it concluded that the trial court properly set aside the verdict.  In this appeal, the Supreme Court will decide whether the Appellate Court's decision was proper.