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          HAYNES v. MIDDLETOWN—CONCURRENCE

   EVELEIGH, J., concurring. I concur in the judgment,
under the unusual circumstance existing in this case,
remanding this case to the trial court for a new trial. I
write separately, however, to express my concern that
our law surrounding the identifiable person, imminent
harm exception to municipal immunity is, to put it
mildly, less than clear. I agree with the majority that it
is necessary to partially overrule our reasoning in Burns
v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1
(1994), and Purzycki v. Fairfield, 244 Conn. 101, 106–
10, 708 A.2d 937 (1998).1 Nevertheless, I would conclude
that in doing so, this court has knocked over a large
storefront in the Potemkin village that is our jurispru-
dence in this area. I agree with the majority that a
reasonable juror could find that ‘‘the ongoing problem
of horseplay in the locker room and the presence of
the broken locker were so likely to cause an injury to
a student that the officials had a clear and unequivocal
duty to act immediately to prevent the harm . . . .’’ I
similarly agree with the majority that whether an action
or circumstance qualifies as an ‘‘imminent harm’’ should
not be determined by looking at whether the risk of
harm was temporary. I write separately because, as a
result of this decision, I cannot now parse any meaning-
ful distinction between the cases in which this court
has held that a jury reasonably could conclude that this
exception to immunity should apply, and cases in which
this court has rejected its potential application as a
matter of law. Further, I am not sure that the new
definition for ‘‘imminent harm’’ will fully clarify the
distinction drawn in the previous cases.
   In order to explain my reasoning, I look first to the
case that heralded the creation of this exception, Sestito
v. Groton, 178 Conn. 520, 423 A.2d 165 (1979). In Sestito,
the plaintiff was the administratrix of the estate of the
decedent, a man who had been shot and killed following
an altercation outside of a bar in Groton. Id., 521–23.
While the altercation that led to the decedent’s death,
which started out as a brawl between at least four men,
was occurring, a municipal police officer was patrolling
the relevant area in a police car. Id., 522–23. As the
officer continued to drive around the area, he observed
a group of seven men, including the decedent, gathering
in the parking lot outside of a restaurant. Id. He then
observed two other men exit the bar and join the group,
one of whom began to argue with the decedent. Id.,
523. As the officer continued to drive, he observed the
argument devolve into a physical fight. Id. The officer
did not approach, but instead proceeded to park his
vehicle in a parking lot across from the restaurant. Id.
While parking his vehicle, he heard gunshots. Id. The
officer notified the police station but, receiving no fur-
ther instructions, stayed in the lot across from the res-
taurant. Id. As the officer testified at trial, over at the
restaurant, ‘‘ ‘[i]t was a melee, everybody was running
in every direction.’ ’’ Id. The officer ‘‘admitted [that] he
could have driven unimpeded into the lot [where the
altercation was occurring]. Instead, he waited until the
decedent was shot by one of the other men, and then
drove over and arrested the assailant.’’ Id. This court
concluded that, ‘‘[t]he facts presented provide sufficient
basis to send the question of [the officer’s] liability, and
hence of the town’s liability, to the jury.’’ Id., 527.
   Although Sestito is recognized as the case that cre-
ated the identifiable person, imminent harm exception
as we know it, this was not expressly recognized by
the court until it decided Shore v. Stonington, 187 Conn.
147, 444 A.2d 1379 (1982). In that case, a municipal
police officer had pulled over a driver who was driving
erratically. Id., 150–51. Although the facts gave rise to
the inference that the driver was intoxicated, the police
officer did not arrest the driver, but instead informed
him that ‘‘if he wanted to keep his driver’s license, he
had better slow down and should let his girlfriend
drive.’’ Id., 150. Approximately one hour later, the driver
struck a car being driven by the plaintiff’s decedent,
which ultimately caused the decedent’s death. Id., 150–
51. The plaintiff brought an action against the town of
Stonington, claiming that its police officer had acted
negligently in failing to enforce the motor vehicle laws
of the state of Connecticut against the driver who
caused the decedent’s death. Id., 148–50. The court
stated: ‘‘There is . . . authority for the proposition that
where the duty of the public official to act is not ministe-
rial but instead involves the exercise of discretion, the
negligent failure to act will not subject the public official
to liability unless the duty to act is clear and unequivo-
cal. . . . We have recognized the existence of such
duty in situations where it would be apparent to the
public officer that his failure to act would be likely to
subject an identifiable person to imminent harm. See
Sestito v. Groton, [supra, 178 Conn. 528].’’ (Citation
omitted.) Shore v. Stonington, supra, 153. The court
in Shore distinguished Sestito, noting that the plaintiff
could not show that the officer ‘‘could have been aware
that [the driver’s] conduct threatened an identifiable
victim with imminent harm.’’ Id., 153–54. The court did
not explain its reasoning on this point.
  In Evon v. Andrews, 211 Conn. 501, 502, 559 A.2d 1131
(1989), the next case in which this court considered the
application of the identifiable person, imminent harm
exception, the court determined that the exception did
not apply in a situation where the city of Waterbury
had allegedly been negligent in enforcing various laws,
regulations, and codes in the maintenance of ‘‘rental
dwellings.’’ As a result, the plaintiff’s claimed, their
decedents had perished in a fire that destroyed a multi-
family rental unit that ‘‘contained numerous conditions
that violated state regulations and state and local build-
ing codes . . . .’’ Id., 505. In deciding that the exception
did not apply, the court acknowledged its earlier deci-
sions in Shore and Sestito, and noted that ‘‘[t]he risk
of fire implicates a wide range of factors that can occur,
if at all, at some unspecified time in the future. The
class of possible victims of an unspecified fire that may
occur at some unspecified time in the future is by no
means a group of ‘identifiable persons’ within the mean-
ing of [Shore]. Furthermore, the plaintiffs’ decedents
were not subject to ‘imminent harm.’ This is clearly not
the situation in which a police officer stood by and
watched a public brawl that resulted in a person being
shot. See Sestito v. Groton, [supra, 178 Conn. 522–23].
The present allegations do not even rise to the level of
the imminence we rejected in [Shore], in which a police
officer permitted a drunk driver to continue on his way,
resulting in the death of the plaintiff’s decedent. In the
present instance, the fire could have occurred at any
future time or not at all. We cannot accept the proposi-
tion that the plaintiffs’ decedents in this case were
readily identifiable victims subject to imminent harm.’’
Evon v. Andrews, supra, 508. Thus, the court in Evon
concluded independently that, for purposes of the iden-
tifiable person, imminent harm exception to municipal
liability, (1) the plaintiffs were not identifiable persons
and (2) the plaintiffs were not subject to imminent
harm. Id.
   These aforementioned cases are the precedents that
were available to this court at the time that it decided
Burns v. Board of Education, supra, 228 Conn. 640. In
that case, ‘‘the plaintiff school child slipped and fell
due to icy conditions on a main accessway of the school
campus, during school hours, while the child was com-
pelled by statute to be on those school grounds.’’ Id.,
650. The court distinguished Evon by noting that ‘‘this
accident could not have occurred at any time in the
future; rather, the danger was limited to the duration
of the temporary icy condition in this particularly
‘treacherous’ area of the campus. Further, the potential
for harm from a fall on ice was significant and foresee-
able.’’ Id. In my view, this language in Burns was clearly
aimed at distinguishing Evon, in which this court con-
cluded that ‘‘the fire could have occurred at any future
time or not at all.’’ Evon v. Andrews, supra, 211 Conn.
508. In Burns, this court also decided that, at least in
certain contexts, an individual person may be consid-
ered an ‘‘identifiable person’’ if he or she falls within a
certain class of victim intended to be the beneficiary
of the relevant duty of care. See Burns v. Board of
Education, supra, 647–48.
   In Purzycki v. Fairfield, supra, 244 Conn. 101, which
was decided several years after Burns, the court primar-
ily relied on Burns, noting that in that case, ‘‘it was
critical to our conclusion that governmental immunity
was not a defense that ‘the danger was limited to the
duration of the temporary . . . condition . . . [and
that] the potential for harm . . . was significant and
foreseeable.’ Burns v. Board of Education, supra, 228
Conn. 650. Similarly, the present case involves a limited
time period and limited geographical area, namely, the
one-half hour interval when second grade students were
dismissed from the lunchroom to traverse an unsuper-
vised hallway on their way to recess. Also, it involves
a temporary condition, in that the principal testified
that every other aspect of the lunch period involved
supervision.’’ Purzycki v. Fairfield, supra, 110.
   The majority now concludes that the distinctions that
this court has previously drawn with regard to the issue
of whether a harm was ‘‘imminent’’ in cases such as
Evon, Burns, and Purzycki were artificial, concluding
that ‘‘the proper standard for determining whether a
harm was imminent is whether it was apparent to the
municipal defendant that the dangerous condition was
so likely to cause harm that the defendant had a clear
and unequivocal duty to act immediately to prevent the
harm.’’ While I agree with the majority that it is folly
to consider a harm ‘‘imminent’’ only if it is limited by
its nature to a certain time and place, in my opinion
the majority’s solution only throws our jurisprudence
regarding this exception into even greater confusion.
In the time since Evon, Burns, and Purzycki were
decided, this court has reframed the exception into one
that contains three distinct elements: ‘‘By its own terms,
this test [for determining whether discretionary immu-
nity is abrogated by the identifiable person, imminent
harm exception] 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 harm.’’ (Internal quotation marks
omitted.) Coley v. Hartford, 312 Conn. 150, 156 n.7, 95
A.3d 480 (2014). In my view, the conclusion adopted by
the majority collapses the apparentness and imminent
prongs into one, and it does so in a way that only further
tangles a doctrine which is already full of snarls.
   For example, under this test, the majority observes
that ‘‘the risk of injury from an unprotected buzz saw
in a classroom occupied by roughhousing fifteen year
old children would clearly be imminent.’’ See footnote
15 of the majority opinion. This suggests, in my mind,
that the majority believes that such a set of circum-
stances would represent an imminent harm as a matter
of law. Yet, it concludes, it is up to a jury to determine
whether keeping an unguarded locker with a jagged
edge in a room full of roughhousing fifteen year old
children presents an imminent harm. I do not see a
meaningful distinction between these two situations.
For that matter, I do not see how either of these two
situations poses more of an imminent harm to an identi-
fiable group of people than does, say, a drunk driver
on the highway to others driving on the road, and yet,
that is what this court decided in Shore v. Stonington,
supra, 187 Conn. 152–54. Similarly, in a recent decision,
Edgerton v. Clinton, 311 Conn. 217, 237–39, 86 A.3d
437 (2014), this court implied that the exception did
not apply because the plaintiff could not pinpoint the
precise moment during an ongoing car chase between
civilians where it became apparent to the town’s dis-
patcher that the plaintiff’s decedent was in imminent
harm, even though the dispatcher testified that she was
aware that civilians should never engage in car chases,
and even though an expert testified that dispatchers
are trained to understand that civilian car chases are
inherently dangerous. See also id., 247–51 and n.10 (Eve-
leigh, J., dissenting). Yet, in the present case, this court
concludes that, even though there is no claim that the
defendant, the city of Middletown, or any of its employ-
ees were aware that, from 9:06 to 9:11 a.m., the named
plaintiff’s minor son, Jasmon Vereen, was being sub-
jected to imminent harm, such risk of harm should have
been apparent to them.
  While I agree with this result, I fail to understand the
principled distinction that can be made between this
set of circumstances and that faced by this court in
cases such as Shore or Edgerton. In my view, the test
for determining whether a harm was imminent should
be whether it was, or should have been, apparent to
the municipal defendant that the dangerous condition
was so likely to cause harm in the near future that the
defendant had a clear and unequivocal duty to act to
prevent the harm. In my view, this test would make it
clear that situations such as those presented in Shore
and Edgerton present issues of fact to be decided by
the jury.
   This test would not present an expansion of liability
beyond the bounds of General Statutes § 52-557n.
Rather, it would conform with the acts of negligence
contained in that statute. Section 52-557n (a) (1) pro-
vides in relevant part: ‘‘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 omission of such political subdivision
or any employee, officer or agent thereof acting within
the scope of his employment or official duties . . . .’’
Thus, the failure to act when a reasonable person would
ordinarily act is covered as part of the exception to
municipal immunity. I would therefore incorporate the
‘‘should have been’’ apparent language to the present
test proposed by the majority since, in my view, it con-
forms with the legislative mandate. It further makes it
clear that issues such as those raised in Shore, Evon
and Edgerton are best left for a jury determination. For
those reasons, I respectfully concur in the judgment of
the court.
  1
    It is my understanding, as I explain in greater detail subsequently in this
opinion, that the majority opinion does not overrule entirely either Burns
or Purzycki, but rather overrules only the treatment given to the definition
of ‘‘imminent harm’’ contained in those opinions.
