Opinion
CV156018786
07-05-2017
Rachel White-Reilly v. City of Milford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Theodore R. Tyma, J.
In the operative complaint, the plaintiff, Rachel White-Reilly, alleges the following facts. On January 30, 2014, the plaintiff was at 9 Jepson Drive in Milford as an employee of the Milford Council on Aging. She was transporting seniors in her van, and exited her vehicle to open the door for them. As she reached the back of the van, she slipped on ice covering the ground, causing her injuries.
There is no dispute that the city's senior center is located at that address.
On the date of the incident, the property was owned and maintained by the City of Milford. The plaintiff alleges that the city was negligent in that it failed to safely maintain its property; failed to reasonably inspect its property; failed to warn the plaintiff of the dangerous condition of the parking lot; failed to sand and salt the icy parking lot; failed to maintain a safe pedestrian path; failed to train and instruct its employees on the proper procedure for clearing the parking lot during the winter; and, the city knew, or should have known, of the dangerous condition. The plaintiff brings this action pursuant to General Statutes § 52-557n, which statute provides a waiver of governmental immunity and allows a direct action against a municipality for negligence under prescribed circumstances.
The city moves for summary judgment on the ground that it is immune from liability pursuant to General Statutes § 52-557n(a)(2)(B). The city submitted the following as evidence: (1) affidavit of Joanne Rohrig, clerk for the city; (2) Notice of Intention to Commence Action; and (3) affidavit of Christopher Saley, public works director for the city.
The city argues that it is entitled to summary judgment because the claims alleged by the plaintiff are barred by the doctrine of discretionary act immunity. Specifically, the city claims that clearing snow and ice as part of the process of maintaining a public parking lot during the winter is a public duty as opposed to a private duty. The city further claims that the duty of clearing snow and ice is a discretionary function and not a ministerial act. Finally, the city claims that the identifiable person/imminent harm exception does not apply because the plaintiff was a member of the general public at that time of the alleged occurrence, and has failed to offer any evidence that she was a member of an identifiable class of victims as defined by Connecticut law.
The plaintiff opposes the city's motion. The plaintiff submitted the following as evidence: (1) the plaintiff's affidavit; (2) the transcript of the deposition of Peter Erodici, the director of finance for the city; and (3) the transcript of the deposition of Christopher Saley.
The plaintiff argues that § 52-557n(a)(1)(B) abrogates governmental immunity because the city " is clearly realizing a pecuniary benefit from the Senior Center" in that the senior center receives grants, and members must pay a fee to use the facilities. Additionally, the plaintiff contends that the duty of clearing snow and ice is a ministerial act because Milford Public Works had an oral " directive" or " standard" concerning the procedure for snow removal. Finally, the plaintiff claims that she was an identifiable person subject to imminent harm because she was known as an employee of the city, and the likelihood of getting injured at the senior center on the day of the alleged accident was both significant and foreseeable.
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012); see also Practice Book § 17-49. " Summary judgment in favor of the city is properly granted if the city in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). " Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
I
THE CITY'S LIABILITY FOR ITS ALLEGED NEGLIGENCE IN THE PERFORMANCE OF A FUNCTION FROM WHICH THE CITY RECEIVED A PROFIT OR PECUNIARY BENEFIT
General Statutes § 52-557n(a)(1) states that " 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 profit or pecuniary benefit . . ." " If a municipality is acting only as the agent or representative of the state in carrying out its public purposes . . . then it clearly is not deriving a special corporate benefit or pecuniary profit. Two classes of activities fall within the broader category of acting as the agent of the state: (1) those imposed by the [s]tate for the benefit of the general public, and (2) those which arise out of legislation imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large . . . For example, the maintenance of the public peace or prevention of disease would fall within the first class . . . while the maintenance of a park system would fall within the second class." (Citations omitted; internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 845-46, 905 A.2d 70 (2006); see also Spitzer v. Waterbury, 113 Conn. 84, 87-88, 154 A. 157 (1931) (construction of storm water sewers is governmental function because it is part of duty imposed by state on municipality to maintain highways within its limits); Epstein v. New Haven, 104 Conn. 283, 284, 132 A. 467 (1926) (use of municipal property as public park is governmental function because " control of public parks belongs primarily to the State and municipalities in operating and managing them act as governmental agencies exercising an authority delegated to them by the State"); Pope v. New Haven, 91 Conn. 79, 81, 99 A. 51 (1916) (celebration of Independence Day was governmental function because its aim was to " instruct the people generally and to arouse and stimulate patriotic sentiments and love of country"). The court noted that " [w]hile the distinction remains clear with regard to the first class of activities, it becomes more difficult to discern in the second class of activities. For example, the second class of activities encompasses functions that appear to be for the sole benefit of a municipality's inhabitants, but nevertheless provide indirect benefits to the general public because the activities were meant to improve the general health, welfare or education of the municipality's inhabitants." Considine v. Waterbury, supra, 279 Conn. 846. The Connecticut Supreme Court noted that a municipality may charge a nominal fee for participation in a governmental activity and not lose its governmental nature as long as the fee is incidental to the public service and not for purposes of deriving a profit. See Hannon v. Waterbury, 106 Conn. 13, 17-18, 136 A. 876 (1927) (" [t]he charge of a small fee covering part of the cost of the maintenance of the pool in paying a supervisor, instructors, janitors and the like, while the municipality furnished the building, the swimming pool, the apparatus and equipment in connection therewith, the coal, electricity, water, chemicals, and other necessaries for the maintenance of the pool, did not except the maintenance of the pool from the rule of governmental immunity. The city was not deriving a profit from this small fee, the charge was a mere incident of the public service rendered in the performance of a governmental duty. The maintenance of the pool was not for the purpose of deriving a corporate profit, but for the promotion of the education of the people of the city in teaching them to swim and thus guarding their lives against the accident of drowning, promoting a most useful and beneficial form of exercise, and teaching cleanliness of habits of living, and thus preserving their health"); Couture v. Board of Education, 6 Conn.App. 309, 313, 505 A.2d 432 (1986) (sponsoring high school football game, at which small charge was paid to spectate, was governmental act because part of delegated duty from state is to provide public education).
On the other hand, " a municipality generally has been determined to be acting for its own special corporate benefit or pecuniary profit where it engages in an activity for the particular benefit of its inhabitants . . . or if it derives revenue in excess of its costs from the activity." (Citation omitted; footnote omitted; internal quotation marks omitted.) Considine v. Waterbury, supra, 279 Conn. 847. " When a municipality derives substantial revenue from its commercial use of municipal property, it has been considered nonetheless to be engaged in a proprietary function even if it reinvests that revenue back into the property's maintenance expenses or to pay down debt related to the property. See Carta v. Norwalk, [108 Conn. 697, 702, 145 A. 158 (1929)] (if municipality is deriving revenue or profit from renting its property, fact that it is 'applied to the maintenance of the property and the reduction of the debt incurred in its construction or acquirement, or otherwise ultimately to the benefit of the public, is not sufficient to create the immunity'); Hourigan v. Norwich, [77 Conn. 358, 365, 59 A. 487 (1904)] (municipality 'uses works constructed for the public benefit for its corporate profit, when the profits are to be applied to the maintenance of the works and the reduction of the debt incurred by the corporation in their construction')." Considine v. Waterbury, supra, 848. See also, Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11 (1921) (municipality liable for negligent act committed while " engaged in the performance of acts done in the management of its property or rights for its own corporate benefit or profit and that of its inhabitants"). For example, " a municipality acts in its proprietary capacity when it leases municipal property to private individuals." Considine v. Waterbury, supra, 849.
In the present action, Peter Erodici, director of finance for the city, testified in his deposition that the senior center's operating budget is primarily funded by the city itself, with additional annual grants from the United Way and the Community Development Block Grant Program. The grant funding goes to programs that help educate the elderly population about dementia and Alzheimer's disease, and to provide transportation to and from the senior center to medical appointments. There is also a small membership fee and a fee to pay for lunch at the center. Erodici also testified that there are some other programs at the senior center, such as concerts, exercise programs, and arts and crafts, which require no fees.
There is no evidence that supports a finding that at the time the plaintiff fell, the senior center was performing a function in which it derived a " profit or pecuniary benefit." The activities offered by the city to the seniors are not for the purpose of obtaining a profit or pecuniary benefit, but they promote the health, education and welfare of the senior center members. Any fees collected or grants obtained are used to fund the programs offered and offset costs. Moreover, there is no evidence that the fees or grants result in a profit or pecuniary benefit to the city. Rather, the evidence shows that the fees and grants are incidental to the services provided to the seniors. Thus, there are no genuine issues of material fact that at the time of the alleged incident the senior center was not being used by the city for commercial gain under § 52-557n(a)(1).
II
DISCUSSION OF DISCRETIONARY OR MINISTERIAL ACTS OR OMISSIONS
The city claims that the act of clearing the ice and snow at the senior center is discretionary, and cites to Martel v. Metropolitan District Commission, 275 Conn. 38, 50-51, 881 A.2d 194 (2005), for the proposition that where a plaintiff has failed to offer evidence of a directive or policy limiting the discretionary nature of a municipal employee's duties, a court may properly conclude that the duty was discretionary in nature as a matter of law. The plaintiff responds that whether an act or omission is discretionary or ministerial is a question of fact. Specifically, the plaintiff claims that because the city had an obligation to clean up snow and ice, and established its own rules for inspection and clean up, an issue of fact exists as to whether the city's acts were ministerial.
" Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint [ . . . that the nature of the duty] and, thus, whether governmental immunity may he successfully invoked pursuant to . . . § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint . . . Accordingly, where it is apparent from the complaint that the city's allegedly, negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 162, 95 A.3d 480 (2014). " 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." (Internal quotation marks omitted.) Id., 165. Moreover, " case law demonstrates that the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiff's theory of negligence, but, rather, on the character of the act or omission complained of in the complaint." Segreto v. Bristol, 71 Conn.App. 844, 854, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
In Colon v. City of New Haven, 60 Conn.App. 178, 182-83, 758 A.2d 900 (2000), the court determined that it was apparent from the plaintiff's complaint that the negligent acts of the city alleged in the complaint were discretionary in nature, rather than ministerial, because the complaint contained no allegation that the city or its employees were required to design or maintain a particular stairway where the plaintiff fell. The complaint had merely alleged that a teacher had acted negligently and that the city was liable for the negligence of its employees. Id., 179-80. " It is axiomatic that ministerial acts [are those that) are performed in a prescribed manner without the exercise of judgment." (Internal quotation marks omitted.) Segreto v. Bristol, supra, 71 Conn.App. 856. In Segreto v. Bristol, the court concluded that because the plaintiff's allegations all related to whether the city's design and maintenance of the stairway were reasonable and proper under the circumstances, and determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment, summary judgment for the city was proper. Id., 857.
In Segreto v. Bristol, the allegations in the complaint are similar to those allegations in the present case. The complaint alleged as follows: " The Plaintiff's fall and her consequent injuries were proximately caused by the negligence of the City . . . 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." (Emphasis in original; internal quotation marks omitted.) Segreto v. Bristol, supra, 71 Conn.App. 857. " 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. Additionally, although it was not expressly relied on by the court, the affidavit of the city's claims and loss coordinator stated that the city had no such policy in place for the general maintenance and design of the stairway, and the plaintiff failed to offer an affidavit that would have tended to put that fact in dispute." Id.
" The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity." Id., 849. " Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit and acts which constitute the creation or participation in the creation of a nuisance . . . The section goes on to exclude liability for acts or omissions of any employee or agent which constitute . . . negligent acts that involve the exercise of judgment or discretion." (Citation omitted; footnote added; internal quotation marks omitted.) Id., 850.
" Except 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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149." General Statutes § 52-557n(a)(1).
" It is well settled that municipal employees are immune 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 . . . Therefore, [d]iscretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officials and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits . . . from imposing liability for that injury . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, municipal [employees] are not immune from liability for negligence arising out of their ministerial acts, [which are] defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Strycharz v. Cady, 323 Conn. 548, 564-65, 148 A.3d 1011 (2016).
" 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). " [E]vidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive . . . Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive." (Citation omitted; internal quotation marks omitted.) Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012).
" [W]e conclude that the relevant case law on governmental immunity does not demonstrate that a municipality's failure to maintain its property in a reasonably safe condition is, as a matter of law, a ministerial function. Instead, we conclude that the case law demonstrates that the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint." Segreto v. Bristol, supra, 71 Conn.App. 854.
Here, the city provided an affidavit of Christopher Saley, director of public works, in support of its summary judgment motion. Saley averred that the city " has no set or written policy, practice or directive with regard to when and how the parking lots and sidewalks at 9 Jepson Drive, and the City's other properties, are cleared of snow and or [sic] ice." (Saley Affidavit.) Further, he stated that his employees " use their judgment in determining how and when to clear snow from the sidewalks and parking lots and or (sic] treat ice that might accumulate at 9 Jepson Drive and the City's other properties." (Saley Affidavit.)
In response, the plaintiff offered Saley's deposition testimony which testified to the following. " The only contractors that the City uses are contractors to remove street snow, everything else is done internally with our staff." (Saley Dep., p. 11.) When asked whether there was a policy or procedure in effect describing when or under what circumstances city employees from the department of public works would go and remove snow, Saley replied that " it's my understanding that we didn't have a policy or procedure, we did as-need basis and the foremen made those decisions." (Saley Dep., p. 13.) He further stated that the foreman made the assessment as to the priorities of snow removal and that the senior center and the town clerk's office were the first priorities. (Saley Dep., p. 14.) Saley agreed with the plaintiff's council's characterization of this priority as a " fixed routine, " but that the routine could change " as needed, " such as " if there was a delayed opening or they closed the senior center." (Saley Dep., pp. 17-18.) He also stated that there was no written procedure in effect that would describe the priority or routine. (Saley Dep., p. 19.) When asked why there was nothing in writing about the policy, Saley replied that " I wouldn't classify it as a policy, I'd classify it as just a standard [the foremen] use." (Saley Dep., p. 21.) He testified that the foreman made " rounds around the whole city, they look at streets, parking lots, sidewalks, entranceways" in determining what snow removal services are needed at city properties. (Saley Dep., pp. 21-22.)
In this case, the plaintiff alleges in her complaint that she fell on property controlled and possessed by the city. Nowhere in the complaint does the plaintiff expressly or impliedly allege the existence of a policy or directive relating to clearing snow and ice from the senior center property. Rather, it is apparent from the complaint that the city's alleged negligent acts and omissions involved the exercise of judgment of its employees, and, therefore, whether the negligence is discretionary or ministerial is an issue of law. The court will next consider that issue.
A fair reading of both Saley's affidavit and deposition testimony, in conjunction with the complaint, demonstrates that the city does not have a policy, directive or procedure regarding snow and ice removal. Even though Saley stated that the city considered the senior center and town clerk's office a first priority, it was subject to an assessment made by a city foreman based upon his review of the varying and unique weather-related circumstances.
In his opposition to the city's motion for summary judgment, the plaintiff does not present any evidence demonstrating that such a policy, directive, or procedure existed requiring the city to perform these duties or prescribed the manner in which they were to be completed. Absent such evidence, the city's decision concerning snow removal on its properties was discretionary, and necessarily involved the exercise of judgment. See Martel v. Metropolitan District Commission, supra, 275 Conn. 50-51 (absent evidence of policy or directive, city's determination whether to supervise, inspect and maintain trails and when to mark, close, or barricade trails, if at all, inherently required exercise of judgment); Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (city's acts discretionary in nature because what constitutes reasonable, proper or adequate inspection involves exercise of judgment); Segreto v. Bristol, supra, 71 Conn.App. 857-58 (city's allegedly negligent design and maintenance of stairwell was discretionary because determinations of what is reasonable or proper under particular set of circumstances necessarily involve exercise of judgment). Thus, as a matter of law, the clearing of the ice and snow at the senior center was a discretionary act.
III
IDENTIFIABLE PERSON/IMMINENT HARM EXCEPTION
Because the city's allegedly negligent conduct involved a discretionary act, the court must next determine whether there exists a genuine issue of material fact as to whether the plaintiff falls within an applicable common-law exception to governmental immunity. The only exception that applies to this action is the identifiable victim/imminent harm exception to governmental immunity.
" There are 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 . . .
" [This exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . Our courts have applied the exception 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 . . . The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception . . .
" With respect to the identifiable victim element, our Supreme Court has stated that this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care . . . In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the immanency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim." (Citations omitted; internal quotation marks omitted.) Merritt v. Bethel Police Dept., 120 Conn.App. 806, 811-13, 993 A.2d 1006 (2010).
In the present case, the plaintiff claims that she was a member of a foreseeable class of victims because she was " part of a small group of individuals that used the senior center parking lot" and was " known" to be the one who operated vehicles at the senior center every day. Further, the plaintiff contends that the likelihood of her getting injured was both " significant and foreseeable, " and the issue of whether she was placed in imminent harm is a question of fact.
The plaintiff does not claim that she was an identifiable individual subject to imminent harm.
In Durrant v. Board of Education, 284 Conn. 91, 931 A.2d 859 (2007), our Supreme Court discussed the extremely narrow definition of an identifiable class of foreseeable victims subject to imminent harm for purposes of satisfying that exception to the qualified immunity of a municipal employee for discretionary acts: " In our recent decision in Durrant, we emphasized the narrowness of the class of persons who may be identified as foreseeable victims, and concluded that a six-year-old child present on school grounds to attend an after-school day care program, and by association, his mother, who was injured when she fell on school grounds after she arrived to pick her child up, were not member[s] of an identifiable class of foreseeable victims subject to imminent harm for purposes of satisfying that exception to the qualified immunity of a municipal employee for discretionary acts. Assuming that the imminent harm requirement had been satisfied, we emphasized that [t]he only identifiable class of foreseeable victims that we have 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 statutorily required to relinquish their custody to those officials during those hours; as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Citation omitted; internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 351-52, 984 A.2d 684 (2009).
In Durrant, " the plaintiff was not a member of a narrowly defined class of foreseeable victims because she was not compelled statutorily to relinquish protective custody of her child. No statute or legal doctrine required the plaintiff to enroll her child in the after school program; nor did any law require her to allow her child to remain after school on that particular day . . . The plaintiff's actions were entirely voluntary, and none of her voluntary choices imposes an additional duty of care on school authorities . . . despite the fact that our state statutes condone and even encourage the use of public school facilities for the very purpose for which the plaintiff's child was in attendance at the school on the day of the plaintiff's fall." (Footnote omitted; internal quotation marks omitted.) Id., at 352.
" Our Supreme Court explained in Grady that we have not recognized any additional classes of foreseeable victims outside of the public school context, and, even in such a context, such a class has only been recognized where attendance has been compulsory . . . The plaintiff in Grady had been injured at the town transfer station, and he argued that as a town resident, who had purchased a permit for the transfer station, he was within a class of foreseeable victims . . . Our Supreme Court stated: [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this exception to qualified immunity is ultimately a question of policy for the courts, in that it is in effect a question of duty . . . [that] involves a mixture of policy considerations and evolving expectations of a maturing society . . . Nevertheless, under our case law . . . wherein we have interpreted the identifiable person element narrowly as it pertains to an injured party's compulsion to be in the place at issue, we conclude that the plaintiff is not a member of a class of foreseeable victims because, as he acknowledges, he was not legally required to dispose of his refuse by taking it to the transfer station personally and could have hired an independent contractor to do so." (Citations omitted; internal quotation marks omitted.) Merritt v. Bethel Police Dept., supra, 120 Conn.App. 814-15.
There are no allegations or evidence in the present action that supports the plaintiff's claim that she was a member of a foreseeable class of victims. Specifically, there is no allegation or evidence that the plaintiff was statutorily compelled or mandated to be on the property at issue at the time she was allegedly injured as a result of the city's negligence. Such evidence is required to satisfy membership in a narrowly defined class of victims.
IV
CONCLUSION
For the foregoing reasons, the city's motion for summary judgment on the plaintiff's complaint is granted.