You asked whether municipalities are liable for injuries people sustain in a town park. Our office is not authorized to give legal opinions and this report should not be considered one.

SUMMARY

State law makes municipalities liable for damages to people or property caused by (1) the negligent acts or omissions of the municipality or its officers or agents acting within the scope of their employment or official duties, (2) negligence in the performance of functions from which the municipality derives a special corporate profit or financial benefit, or (3) acts that constitute the creation or participation in the creation of a nuisance (CGS § 52-557n).

While we cannot anticipate all possible fact patterns, the most likely legal theories that could make a municipality liable for injuries people sustain in a town park are negligence and nuisance.

In order to make a municipality liable under a negligence theory, the injured party could allege (1) the park was in a dangerous or defective condition; (2) the municipality breached its duty to inspect and remove the dangerous or defective condition, or otherwise make the area safe; and (3) because of this failure the person was injured.

But, because municipalities and their officials and employees have statutory and common law immunity for acts requiring judgment or discretion, the injured person would also have to allege and prove that he was an identifiable victim in danger of imminent harm in order to win a lawsuit based on this theory.

The landowner recreation immunity law (CGS § 52-557g) protects municipalities from negligence lawsuits under certain circumstances. Under this law, landowners who make all or any part of their land available to the public without charge, rent, fee, or other commercial service for recreational purposes owe no duty to keep the land safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on the land to those entering for recreational purposes. Further, any landowner who invites or permits any person to use his land for recreational purposes without charge, rent, fee, or other commercial service, does not thereby:

1. make any representation that the land is safe for any purpose,

2. confer upon the person using the land for recreational purposes a legal status entitling him to a duty of care by the owner, or

3. assume responsibility for or incur liability for any injury caused by the owner's act or omission. But, this statutory immunity law does not apply to (1) willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity or (2) injuries suffered in any case where the landowner charges people who use the land for recreational purposes (CGS § 52-557h).

In Manning v. Barenz, 221 Conn. 256 (1992), the Connecticut Supreme Court unanimously held that CGS § 52-227g applies to municipalities. The court noted that a municipality clearly comes within the definition of owner contained in CGS § 52-557f and it rejected arguments that the court should construe CGS § 52-557f in such a way as to exclude municipalities.

In order to make a municipality liable under a nuisance theory, an injured party could allege that the park was in such bad shape that it constituted a nuisance. To recover under this theory, the injured party would also have to allege and prove that the municipality had created the nuisance by some positive act, such as digging a trench or beginning some other building project, and not merely by inaction such as the failure to inspect.

Whether an injured person would succeed with either the negligence or nuisance theories, and whether the landowner immunity law would apply, ultimately would depend on the precise facts involved.

LIABILITY OF MUNICIPALITIES AND THEIR EMPLOYEES AND AGENTS

Except as otherwise provided by law, a municipality is liable for damages to people or property caused by (1) the negligent acts or omissions of the municipality or any of its employees, officers, or agents acting within the scope of their employment or official duties; (2) negligence in the performance of functions from which the municipality derives a special corporate profit or pecuniary benefit; and (3) municipal acts that constitute the creation or participation in the creation of a nuisance (CGS § 52-557n). But, a lawsuit for damages resulting from injury to a person or property because of a defective road or bridge must be filed only under the defective highway statute (CGS § 13a-149).

Except as otherwise provided by law, a municipality is not liable for damages caused by (1) acts or omissions of any employee, officer, or agent which constitute criminal conduct, fraud, actual malice, or willful misconduct or (2) negligent acts or omissions that require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.

Neither a municipality nor any of its officers or agents acting within the scope of their employment or official duties are liable for damages resulting from (1) the condition of natural land or unimproved property or (2) the failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to the municipality, to determine whether it complies with or violates any law or contains a health or safety hazard, unless (1) the municipality had notice of the violation or hazard or (2) the failure to inspect or the inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances.

NEGLIGENCE AND IMMUNITY

In order to recover under a negligence theory, an injured person must prove (1) the defendant owed him a duty of care, (2) the defendant breached this duty, and (3) he was injured because of the breach.

Public Verses Private Duty

However, negligence lawsuits against a municipality are more difficult to win because municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion (Elliott v. Waterbury, 245 Conn. 385, 411(1998)).

In defining what is a governmental act, the court usually begins with the "public duty doctrine" which distinguishes public duties from so-called private duties. (Shore v. Stonington, 187 Conn. 147, 152 (1982); Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988)). If the duty is to the public, a failure to perform it, or an inadequate or erroneous performance, is a public and not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is to the individual, then a failure to perform it or to perform it properly, is an individual wrong and may support an individual action for damages (Leger v. Kelley, 142 Conn. 585, 589-90 (1955)). If the duty imposed on the public official is of such a nature that its performance will affect an individual differently from the way it affects the public at large and if the official is negligent in the performance of that duty, he is liable to that person (Roman v. Stamford, 211 Conn. 396, (1989)).

If a private duty is involved, an individual can bring a private action against the municipal employee. If a public duty is involved, however, further analysis of the type of public duty is necessary to determine whether a municipality could be liable.

Ministerial, Proprietary, or Discretionary Acts

If a public duty is involved, the issue of municipal liability may depend upon whether the specific act in issue was ministerial, proprietary, or discretionary. When municipalities are engaged in proprietary (profit-making) or ministerial activities, their actions are not considered governmental and, accordingly, they do not enjoy immunity from negligence resulting from such activities (Roman v. Stamford, supra, 16 Conn. App. 221; Elliott v. Waterbury, supra, 245 Conn. 411).

The hallmark of a discretionary act is that it requires the exercise of judgment. "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action" (Gauvin v. New Haven, 187 Conn. 180, 184 (1982) (Colon v. City of New Haven, 60 Conn. App. cert. den. 255 Conn. 908 (2000); Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 167-68).

Exceptions to Immunity for Discretionary Acts

There are three exceptions or circumstances under which liability may attach even though a municipal employee's act was discretionary: (1) where the circumstances make it apparent to the public officer that a failure to act would be likely to subject an identifiable person to imminent harm; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence (Colon v. City of New Haven, supra, 60 Conn. App. 178, 180-81; Evon v. Andrews, 211 Conn. 505).

For the "identifiable person/imminent harm" exception to apply, the injured person must allege facts sufficient to support a finding both that he is an identifiable person and that he was subject to imminent harm. (Shore v. Stonington, supra, 187 Conn. 156). The term "identifiable person" applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims (Burns v. Board of Education, 228 Conn. 640, 646 (1994)).

In grappling with this difficult issue, the state Supreme Court has held that the class of possible victims of an unspecified fire that may occur at some unspecified time in the future is not a group of identifiable people (Evon v. Andrews, 211 Conn. 507, 508). It also held that a person killed by an intoxicated driver 50 minutes after the driver was stopped and warned by a police officer was not an identifiable victim (Shore v. Stonington, 187 Conn. 156 (1982)).

Under the "imminent harm" aspect of this exception, any dangerous condition must be more than something that could have occurred at any future time or not at all and must not depend on a "wide range of factors" before the harm occurs. (Evon v. Andrews, 211 Conn. 508). The prospect of harm must be significant, foreseeable, and limited in duration and geographical area (Pruzycki v. Fairfield, 224 Conn. 101, (1998)).

NUISANCE

To establish a nuisance claim, an injured person must prove that the condition he is complaining of has the natural tendency to create danger and inflict injury, that the danger was a continuing one, that the use of the land was unreasonable or unlawful, and that existence of the nuisance caused the injuries (Tomasso Bros. Inc. v. October Twenty-Four, Inc. , 221 Conn. 194, affirmed, 230 Conn. 641). A nuisance describes an inherently dangerous condition that has a natural tendency to injure people or property (Quinett v. Newman, 213 Conn. 343).

The defense of governmental immunity is not available to a municipality in a lawsuit where the plaintiff alleges the municipality created and maintained a nuisance. Thus it is possible to recover damages from a municipality in the exercise of its governmental function if the injuries arise out of a nuisance the municipality creates (Dingwell v. Town of Litchfield, 4 Conn. App. 621 (1985); Connecticut Law of Torts, § 133 Liability of Municipality Under Theory of Nuisance).

In one case, a person injured while diving off a diving board over four feet of water maintained in a public swimming pool was allowed to recover from the city that had created and maintained the swimming pool (Hoffman v. City of Bristol, 13 Conn. 386). In another case, a town-

maintained a public dump 200 feet from a row of public buildings on a public highway that had frequently been the site of smoldering fires and had been condemned as a fire hazard by the town fire marshal (Marchitto v. West Haven, 150 Conn. 432).

To maintain a lawsuit based on nuisance against a municipality, a plaintiff must prove that the municipality, by some positive act, intentionally created and maintained the conditions alleged to constitute a nuisance (Elliott v. Waterbury, at 421; Dasilva v. Town of Wallingford, 00436015, (2001); Wolfe v. Town of Branford, 22 Conn. 239).

Thus, to sue a municipality for a nuisance, a plaintiff must prove that the municipality intentionally created the conditions alleged to constitute a nuisance.

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