1


4
56


7                    DAVID L. ST. PIERRE v. TOWN
8                       OF PLAINFIELD ET AL.
9
10                            (SC 19871)
11            Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,
13
12                             Robinson and D’Auria, Js.

14
15                                      Syllabus

16   The plaintiff sought to recover damages from the defendant town for per-
17       sonal injuries he sustained after falling on wet steps located at the
18       defendant’s municipal pool. The plaintiff fell after participating in an
19       aqua therapy session conducted by the defendant E Co., which had paid
20       the town a nominal hourly fee to reserve the pool two or three times
21       per week. The town provided a lifeguard during the aqua therapy ses-
22       sions and was responsible for the cleaning and general maintenance of
23       the pool. E Co. did not have a formal contract with the town to reserve
24       the pool, but used a one page form letter that provided basic information
25       regarding the reservation. The town filed a motion for summary judg-
26       ment, claiming that municipal immunity precluded the plaintiff’s action
27       because the alleged acts or omissions involved the town’s judgment or
28       discretion, the operation of the pool was a government function, and
29       no exception to municipal discretionary act immunity had been shown.
30       The plaintiff countered that municipal immunity had been abrogated
31       either by the exception under the statute (§ 52-577n [a] [1] [B]) providing
32       that a municipality shall be liable for damages caused by its negligence
33       in the performance of a proprietary function from which it derives a
34       special corporate profit or pecuniary benefit, or by the identifiable per-
35       son, imminent harm exception. The trial court granted the town’s motion
36       for summary judgment on the ground that the town was immune from
37       liability, concluding that the operation of the pool was a government
38       function and that the town had operated the pool at a financial loss.
39       The court also found that the identifiable person, imminent harm excep-
40       tion did not apply because the plaintiff was voluntarily present at the
41       aqua therapy program, and the water on and around the pool surfaces
42       did not qualify as an imminent harm. The plaintiff appealed from the
43       judgment in favor of the town, claiming that the trial court incorrectly
44       concluded that the town was immune from liability because it had
45       derived a special corporate profit or pecuniary benefit from renting the
46       pool to E Co., a for-profit business, for a fee, or because he constituted
47       an identifiable person subject to imminent harm. Held:
48   1. The town’s operation of its municipal pool constituted a governmental
49       function from which it did not derive a special corporate or pecuniary
50       benefit so as to abrogate its discretionary act immunity: the town did
51       not derive a special corporate profit or pecuniary benefit by renting the
52       pool to E Co. for its private use, as the aqua therapy program fit within
53       the general public purposes of a municipal pool because it promoted
54       health and exercise, the fee that the town charged E Co. for use of the
55       pool was nominal, the total fees collected from all parties renting the
56       pool did not cover the annual costs of maintaining the pool, the pool
57       was rented without a formal lease or contract, and the town continued
58       to provide a lifeguard and maintain responsibility for the general mainte-
59       nance of the pool; furthermore, the plaintiff could not prevail on his
60       claim that this court should determine the profitability of the pool by
61       evaluating the fees paid by only E Co. with respect to the period of
62       time that E Co. had reserved the pool, as that argument was not raised
63       before the trial court, and this court has never used that method to
64       determine whether a municipality derived a profit; moreover, extending
65       the abrogation of municipal immunity to situations, such as the one
66       here, in which a town allows the private use of its facilities for a nominal
67       fee, could expose municipalities to great liability and deter them from
68       continuing to allow their facilities to be used by outside parties.
69   2. The identifiable person, imminent harm exception did not abrogate the
70       town’s municipal immunity, as the plaintiff was not an identifiable person
71       or a member of an identifiable class of persons for purposes of that
72       exception; the fact that the plaintiff was not compelled to attend the
73     aqua therapy sessions provided by E Co., but had voluntarily decided
74     to use E Co.’s services, precluded this court from concluding that he
75     was a person or in a group of persons identifiable to the lifeguard on
76
77     duty as a potential victim or victims of an imminent harm.
78
79             Argued May 1—officially released August 8, 2017

82
81
80                            Procedural History

83      Action to recover damages for personal injuries sus-
84   tained as a result of defendants’ alleged negligence,
85   brought to the Superior Court in the judicial district
86   of Windham, where the court, Boland, J., granted the
87   named defendant’s motion to strike and granted the
88   named defendant’s motion for summary judgment and
89   rendered judgment thereon; thereafter, the court,
90   Calmar, J., granted the named defendant’s motion for
91   judgment as to the stricken count of the complaint and
92   rendered judgment thereon, from which the plaintiff
93
94   appealed. Affirmed.
       Mary M. Puhlick, for the appellant (plaintiff).
96     Thomas R. Gerarde, with whom, on the brief, was
97
99
98   Katherine E. Rule, for the appellee (named defendant).
100
101                            Opinion

102      ROGERS, C. J. The issue raised in this appeal is
103   whether municipal immunity is abrogated by either the
104   proprietary function exception of General Statutes § 52-
105   557n1 or the identifiable person, imminent harm excep-
106   tion. Specifically, we must decide whether there is
107   municipal immunity when a town charges a nominal
108   fee to a private group for reserved use of a public
109   pool and an individual group member slips and falls on
110   accumulated water in the vicinity of that pool. The
111   plaintiff, David L. St. Pierre, appeals from the judgment
112   rendered in favor of the named defendant, the town of
113   Plainfield,2 after concluding that no exception to the
114   defendant’s general immunity applied.3 The plaintiff
115   claims that the trial court improperly concluded that
116   the defendant was immune from liability because (1)
117   the defendant derived a special corporate profit or pecu-
118   niary benefit through its operation of the pool, or (2)
119   the plaintiff constituted an identifiable person subject
120   to imminent harm. We disagree with each of these
121   claims and, accordingly, affirm the judgment of the
122   trial court.
123      The following undisputed facts and procedural his-
124   tory are relevant to this appeal. The plaintiff filed this
125   negligence action against the defendant and Eastern
126   Connecticut Rehabilitation Center, Inc. (Eastern); see
127   footnote 2 of this opinion; to recover for injuries he
128   allegedly sustained in an August 26, 2011 fall on wet
129   steps after participating in an aqua therapy session.
130   This session was conducted by Eastern in a pool owned
131   by the defendant, which is located in the defendant’s
132   town hall building. The plaintiff alleged that he slipped
133   and fell on the steps, which were covered with approxi-
134   mately one-quarter inch of water, on his way to the
135   men’s locker room. None of the defendant’s employees
136   witnessed the incident, nor had there been any previous
137   complaints about the condition of the steps.
138      Since 1994, Eastern, through its manager Penny Allyn,
139   had reserved the pool two to three times per week for
140   one hour sessions to provide aqua therapy services to
141   its rehabilitation patients. Since 2006, Eastern has paid
142   the defendant $50 per reserved hour for the exclusive
143   use of the pool during the sessions.4 Participation in
144   the aqua therapy program ranged from two to seven
145   individuals per session. During the reserved times, the
146   defendant provided a lifeguard and remained responsi-
147   ble for the cleaning and general maintenance of the
148   pool. There was no formal contract between the defen-
149   dant and Eastern. Rather, a one page form letter gener-
150   ally used to make reservations provides the rules of
151   pool use, in addition to listing the usage fee, the time
152   of the reservation, and the party making the reservation.
153    Eastern is not the only program that utilizes the pool.
154   Myra Ambrogi, the defendant’s recreation director,
155   stated in her affidavit that the pool is generally open
156   to the public as well as for organizations that pay the
157   usage fee. Activities held at the pool include swim les-
158   sons, open swim periods, and exercise classes.
159      In discussing the pool’s financials, Ambrogi stated in
160   her affidavit that the costs of operating the pool for
161   the fiscal year from July 1, 2011 to July 1, 2012, were
162   $81,315.42 and that total revenue of $75,605.96 was
163   taken in during the same time frame, including the fees
164   from Eastern. Thus, the pool operated at a loss of
165   $5709.46. Ambrogi’s figures included operational costs
166   such as the lifeguards’ salaries, instructor fees, equip-
167   ment, pool chemicals and cleaning supplies, but did not
168   include electricity, heat, water, maintenance employ-
169   ees’ salaries, or consumable supplies.
170      The plaintiff filed this action on August 19, 2013,
171   alleging that the defendant had been negligent in various
172   ways and that the plaintiff had been injured as a result.
173   On January 30, 2015, the defendant filed a motion for
174   summary judgment, claiming that municipal immunity
175   applied to preclude the plaintiff’s action because any
176   acts or omissions alleged by the plaintiff involved judg-
177   ment or discretion, the operation of the pool was a
178   governmental function, and no exception to discretion-
179   ary act immunity had been shown. The plaintiff
180   objected, arguing that municipal immunity did not
181   attach because the defendant’s operation of the pool
182   constituted a proprietary function and, in the alterna-
183   tive, that the identifiable person, imminent harm excep-
184   tion to immunity applied. In an August, 2015
185   memorandum of decision, the trial court agreed with
186   the defendant that it was immune from liability. As
187   to the proprietary function exception, the trial court
188   concluded that the defendant’s operation of a municipal
189   pool was a governmental function and did not create
190   a profit for the defendant. In regard to the identifiable
191   person, imminent harm exception, the trial court con-
192   cluded that the plaintiff was not an identifiable person
193   given his voluntary presence at the aqua therapy pro-
194   gram and that the water on and around the pool surfaces
195   did not qualify as an imminent harm. This appeal
196   followed.5
197      On appeal, the plaintiff does not contest that the
198   allegedly negligent acts of the defendant are discretion-
199   ary in nature and, therefore, are generally entitled to
200   immunity. See Haynes v. Middletown, 314 Conn. 303,
201   312, 101 A.3d 249 (2014). Consequently, we confine our
202   analysis to whether municipal immunity is abrogated
203   by an exception.
204      We begin with the standard of review and applicable
205   law. ‘‘The standard of review of a trial court’s decision
206   granting summary judgment is well established. Prac-
207   tice Book § 17-49 provides that summary judgment shall
208   be rendered forthwith if the pleadings, affidavits and
209   any other proof submitted show that there is no genuine
210   issue as to any material fact and that the moving party
211   is entitled to judgment as a matter of law. In deciding
212   a motion for summary judgment, the trial court must
213   view the evidence in the light most favorable to the
214   nonmoving party. . . . The party moving for summary
215   judgment has the burden of showing the absence of
216   any genuine issue of material fact and that the party
217   is, therefore, entitled to judgment as a matter of law.
218   . . . Our review of the trial court’s decision to grant
219   the defendant’s motion for summary judgment is ple-
220   nary. . . . On appeal, we must determine whether the
221   legal conclusions reached by the trial court are legally
222   and logically correct and whether they find support in
223   the facts set out in the memorandum of decision of the
224   trial court.’’ (Internal quotation marks omitted.) Cefara-
225   tti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016).
226   Specifically, whether municipal immunity applies is a
227   matter of law for the court to decide when there are
228   no unresolved factual questions material to the issue.
229   Edgerton v. Clinton, 311 Conn. 217, 227, 86 A.3d 437
230   (2014).
231                                I
232      The plaintiff claims first that the proprietary function
233   exception applies to abrogate the defendant’s immu-
234   nity. The proprietary function exception is codified in
235   § 52-557n (a) (1) (B), which provides in relevant part:
236   ‘‘Except as otherwise provided by law, a political subdi-
237   vision of the state shall be liable for damages to person
238   or property caused by . . . negligence in the perfor-
239   mance of functions from which the political subdivision
240   derives a special corporate profit or pecuniary benefit
241   . . . .’’ (Emphasis added.) The plaintiff contends that
242   the defendant derived a special corporate profit or pecu-
243   niary benefit from the operation of its municipal pool
244   because it rented that pool to Eastern, a for-profit entity,
245   for a fee. We disagree.
246      In Considine v. Waterbury, 279 Conn. 830, 837–48,
247   905 A.2d 70 (2006), we undertook a comprehensive
248   analysis of § 52-557n (a) (1) (B). We concluded that the
249   statutory provision ‘‘codifies the common-law rule that
250   municipalities are liable for their negligent acts commit-
251   ted in their proprietary capacity,’’ as opposed to in their
252   governmental one.6 Id., 844. Liability for proprietary
253   acts means that a municipality ‘‘is liable to the same
254   extent as in the case of private corporations or individu-
255   als . . . .’’7 (Internal quotation marks omitted.) Id., 843.
256   To determine whether the defendant is subject to such
257   liability in the present case, we analyze whether the
258   defendant derives a special corporate profit or pecuni-
259   ary benefit from the function of operating its pool, in
260   other words, whether that function is proprietary.8
261      We previously have concluded that, ‘‘[i]f a municipal-
262   ity is acting only as the ‘agent or representative of the
263   state in carrying out its public purposes’; Winchester
264   v. Cox, [129 Conn. 106, 109, 26 A.2d 592 (1942)]; then
265   it clearly is not deriving a special corporate benefit or
266   pecuniary profit. Two classes of activities fall within
267   the broader category of acting as the agent of the state:
268   ‘[1] those imposed by the [s]tate for the benefit of the
269   general public, and [2] those which arise out of legisla-
270   tion imposed in pursuance of a general policy, mani-
271   fested by legislation affecting similar corporations, for
272   the particular advantage of the inhabitants of the munic-
273   ipality, and only through this, and indirectly, for the
274   benefit of the people at large. . . . For example, the
275   maintenance of the public peace or prevention of dis-
276   ease would fall within the first class; Keefe v. Union,
277   76 Conn. 160, 166, [56 A. 571 (1903)]; while the mainte-
278   nance of a park system would fall within the second
279   class.’ ’’ Considine v. Waterbury, supra, 279 Conn. 845–
280   46. ‘‘[T]he second class of activities encompasses func-
281   tions that appear to be for the sole benefit of a
282   municipality’s inhabitants, but nevertheless provide
283   indirect benefits to the general public because the activ-
284   ities were meant to improve the general health, welfare
285   or education of the municipality’s inhabitants.’’ Id., 846.
286      Historically, we have concluded that operating a
287   municipal pool constitutes a governmental function.
288   Hannon v. Waterbury, 106 Conn. 13, 17–18, 136 A. 876
289   (1927). In Hannon, this court recognized that munici-
290   palities operating swimming pools are performing a
291   governmental function, because the municipality is
292   effecting the ‘‘education of the people of the city in
293   teaching them to swim and thus guarding their lives
294   against the accident of drowning, promoting a most
295   useful and beneficial form of exercise, and teaching
296   cleanliness of habits of living and thus preserving their
297   health.’’ Id., 18.
298      The General Statutes support Hannon’s holding. Gen-
299   eral Statutes § 7-130b authorizes municipalities to cre-
300   ate recreational authorities or departments. Such
301   bodies are ‘‘deemed to be . . . instrumental[ities] exer-
302   cising public and essential government functions to pro-
303   vide for the public health and welfare . . . .’’9 General
304   Statutes § 7-130d. Municipal recreational authorities or
305   departments are statutorily empowered to construct
306   and operate a variety of projects; see General Statutes
307   § 7-130d (c); including, specifically, ‘‘swimming pools.’’
308   General Statutes § 7-130a (d).
309     The plaintiff claims that the nature of the use of the
310   pool in this case is distinguishable from that at issue
311   in Hannon. Specifically, he argues that the defendant
312   here is renting the pool to Eastern for use in its business,
313   but the defendant city in Hannon served children and
314   individuals via swim lessons. In the plaintiff’s view,
315   rental of municipal property to a private party is a
316   proprietary action. To determine whether renting a
317   municipal pool to a business for private use constitutes
318   a change in the nature of the activity sufficient to abro-
319   gate immunity, we must review our case law on the
320   charging of fees for use of a municipal property.
321      We have concluded previously that a ‘‘municipality
322   may . . . charge a nominal fee for participation in a
323   governmental activity and it will not lose its governmen-
324   tal nature as long as the fee is insufficient to meet the
325   activity’s expenses.’’ Considine v. Waterbury, supra,
326   279 Conn. 847. In Hannon, for example, we concluded
327   that charging nominal fees for swimming lessons10 did
328   not alter the governmental nature of running a munici-
329   pal swimming pool. Hannon v. Waterbury, supra, 106
330   Conn. 18–19. We reasoned that the ‘‘money taken in did
331   not pay the entire expense of operating the pool,’’ in
332   particular, by failing to ‘‘pay for the large amount of
333   electricity used in operating the motor, drying the hair
334   and lighting, coal, water, chemicals used in the water,
335   [as well as] the rental value or maintenance of the part
336   of the building used and the equipment . . . .’’ Id., 15.
337   Because the pool actually was operated at a loss, the
338   fees charged did not constitute a ‘‘profit,’’ but, rather,
339   ‘‘the charge was a mere incident of the public service
340   rendered in the performance of a governmental duty.’’
341   Id., 18; see also Carta v. Norwalk, 108 Conn. 697, 702,
342   145 A. 158 (1929) (to qualify as proprietary function
343   ‘‘operation must contemplate and involve revenue of
344   such amount and nature as to signify a profit resulting
345   thereform, as distinguished from the imposition of such
346   a nominal or small fee or charge as may fairly be
347   regarded as a mere incident of the public service
348   rendered’’).
349      In contrast, a ‘‘municipality generally has been deter-
350   mined to be acting for its own special corporate benefit
351   or pecuniary profit where it engages in an activity ‘for
352   the particular benefit of its inhabitants’ . . . or if it
353   derives revenue in excess of its costs from the activ-
354   ity.’’11 (Citations omitted.) Considine v. Waterbury,
355   supra, 279 Conn. 847. Specifically, a municipality may
356   act in its proprietary capacity by ‘‘leas[ing] municipal
357   property to private individuals.’’ Id., 849 (citing cases).
358   Nevertheless, we have cautioned against treating
359   ‘‘actual pecuniary profit’’ alone as determinative of
360   whether a function is proprietary because it could
361   encourage municipalities to skirt tort liability by
362   avoiding ‘‘ ‘implementation of cost-efficient measures
363   [while] encourag[ing] deficit spending’ ’’ to maintain a
364   loss in the financial year. Id., 847 n.11. Still, a proprietary
365   function has been found where the municipality is ‘‘act
366   [ing] ‘very much like private enterprise . . . .’ ’’ Id., 848,
367   quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984)
368   § 131, p. 1053.
369      The following examples are illustrative. In renting
370   out part of its municipal golf course to a single private
371   party for use as a restaurant for approximately $29,000
372   per year, the defendant city in Considine v. Waterbury,
373   supra, 279 Conn. 833, 850–51, was deemed to have acted
374   in a proprietary capacity because such a lease ‘‘stands
375   in stark contrast from those activities in which this
376   court has determined that the municipality was acting
377   as the state’s agent for the direct or indirect benefit of
378   the general public.’’ The city’s collection of ‘‘a substan-
379   tial rent [from] a private party to operate a business
380   . . . very much resembles private enterprise’’ in its
381   ‘‘nature and character.’’ (Emphasis added.) Id., 851. Sim-
382   ilarly, the annual rental of a municipal beach pavilion
383   for a fee of $2500 in 1926 to a private party constituted
384   prima facie evidence of a profit for the defendant city.
385   Carta v. Norwalk, supra, 108 Conn. 701–702; see also
386   Blonski v. Metropolitan District Commission, 309
387   Conn. 282, 284, 71 A.3d 465 (2013) (defendant liable
388   because conduct with respect to gate that injured plain-
389   tiff inextricably linked to defendant’s proprietary water
390   supply operation); Martel v. Metropolitan District
391   Commission, 275 Conn. 38, 55–56, 881 A.2d 194 (2005)
392   (defendant immune from liability, as conduct not con-
393   nected to proprietary operation of for-profit water sup-
394   ply company).
395      Evaluating the plaintiff’s claims against this legal
396   background, we conclude that the defendant’s opera-
397   tion of its municipal pool does not constitute a proprie-
398   tary function so as to abrogate its discretionary act
399   immunity. First, the defendant’s rental of its pool to an
400   aqua therapy program two or three times a week fits
401   within the general public purposes espoused in Han-
402   non. By allowing use of the pool, the defendant is pro-
403   moting health and exercise for those using the pool,
404   purposes that are entirely within Hannon’s framework.
405   See Hannon v. Waterbury, supra, 106 Conn. 18. Second,
406   the fee charged to Eastern is, like the fees charged in
407   Hannon, nominal, and the total fees collected from all
408   parties reserving the pool do not cover the costs of
409   maintaining the pool. Instead, in the year in question,
410   the pool’s expenses exceeded revenues by more than
411   $5000, even without considering such things as electric-
412   ity and water costs. This undercuts the plaintiff’s asser-
413   tion that the municipality is acting like a ‘‘private
414   enterprise.’’ (Internal quotation marks omitted.) Con-
415   sidine v. Waterbury, supra, 279 Conn. 848. Most private
416   enterprises do not operate at a loss, or they will cease
417   to exist. Also, the defendant’s nominal fee of $50 per
418   hour had remained stable for several years, further sug-
419   gesting that profit is not a goal; cf. id., 833 (noting that
420   rent charged to private party increased annually as lease
421   term); but, rather, that the fee ‘‘was a mere incident of
422   the public service rendered in the performance of a
423   governmental duty.’’ Hannon v. Waterbury, supra, 18.
424   Third, unlike in Considine and Carta v. Norwalk, supra,
425   108 Conn. 699, private parties, like Eastern, who reserve
426   the pool do so without a formal lease or contract and
427   for only short periods of time. Aside from the equivalent
428   of a sign-up sheet that Eastern’s manager fills out and
429   the consistency with which Eastern has used the pool,
430   nothing in Eastern’s reservation of the pool resembles a
431   binding commercial lease. As mentioned, the defendant
432   continues to provide a lifeguard during reserved times
433   and to retain responsibility for the general maintenance
434   of the pool.
435      The plaintiff claims that, even if no actual profit was
436   gained by the defendant’s operation of the pool overall,
437   this court should determine profitability by evaluating
438   the fees paid by Eastern with reference to the periods
439   of time that Eastern reserved the pool, and conclude
440   that Eastern’s fee for its use exceeded the costs of
441   operating the pool for those periods of time. Specifi-
442   cally, the plaintiff reasons that, annually, Eastern is
443   contributing $7800 for 156 hours of use, an amount that
444   exceeds the costs attributable to the pool for that period
445   of time. This argument was not raised in the trial court
446   and should not be raised for the first time on appeal,
447   particularly in the absence of an undisputed factual
448   record to support it.12 See, e.g., White v. Mazda Motor
449   of America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079
450   (2014). In any event, we have never before held that,
451   to determine whether a municipality derives a profit, the
452   measure of revenues to expenses should be determined
453   based on the exact proportion of time a private com-
454   pany uses a facility relative to the yearly costs of
455   operating that facility. Because the plaintiff has not
456   provided any authority in support of this inventive
457   approach to evaluating profitability, we decline to
458   adopt it.
459      It bears mentioning that extending the abrogation of
460   municipal immunity to any situation in which a town
461   allows the private use of its facilities for a nominal fee
462   potentially could expose municipalities to great liabil-
463   ity. In the face of such a threat, no rational municipality
464   would continue to allow its municipal facilities to be
465   used by outside parties. This would be detrimental to
466   the enjoyment and use of municipal facilities by any
467   smaller group of the general public that might wish to
468   use these facilities. Under such restrictions, private,
469   nonprofit, and other independent groups would be pre-
470   vented from utilizing public parks, softball fields and,
471   yes, pools. On the basis of the foregoing analysis, we
472   conclude that the defendant’s operation of the munici-
473   pal pool constitutes a governmental function, and, by
474   operating the pool, the defendant does not derive a
475   special corporate profit or pecuniary benefit.
476                               II
477      We turn next to whether any other recognized excep-
478   tion to immunity is in play. Three exceptions to discre-
479   tionary act immunity are recognized,13 but only one is
480   relevant here: the identifiable person, imminent harm
481   exception. Pursuant to this exception, liability is not
482   precluded when ‘‘the circumstances make it apparent
483   to the public officer that his or her failure to act would
484   be likely to subject an identifiable person to imminent
485   harm . . . .’’ (Internal quotation marks omitted.) Doe
486   v. Petersen, 279 Conn. 607, 615–16, 903 A.2d 191 (2006).
487   The plaintiff contends that he qualifies as an identifiable
488   person subject to imminent harm by virtue of his pres-
489   ence at the defendant’s pool for the aqua therapy ses-
490   sion provided by Eastern. Specifically, he contends that
491   he was an identifiable individual to the on duty lifeguard
492   employed by the defendant. We disagree that the plain-
493   tiff qualifies as an identifiable person and, therefore,
494   conclude that this exception does not apply to abrogate
495   the defendant’s municipal immunity.
496      ‘‘[T]he identifiable person, imminent harm exception
497   to qualified immunity for an employee’s discretionary
498   acts is applicable in an action brought under § 52-557n
499   (a) to hold a municipality directly liable for those acts.’’
500   Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684
501   (2009). The exception requires three elements: ‘‘(1) an
502   imminent harm; (2) an identifiable victim; and (3) a
503   public official to whom it is apparent that his or her
504   conduct is likely to subject that victim to that harm
505   . . . . We have stated previously that this exception to
506   the general rule of governmental immunity for employ-
507   ees engaged in discretionary activities has received very
508   limited recognition in this state. . . . If the plaintiffs
509   fail to establish any one of the three prongs, this failure
510   will be fatal to their claim that they come within the
511   imminent harm exception.’’ (Internal quotation marks
512   omitted.) Strycharz v. Cady, 323 Conn. 548, 573–74,
513   148 A.3d 1011 (2016).14
514      ‘‘An allegedly identifiable person must be identifiable
515   as a potential victim of a specific imminent harm. Like-
516   wise, the alleged imminent harm must be imminent in
517   terms of its impact on a specific identifiable person.’’
518   (Internal quotation marks omitted.) Cotto v. Board of
519   Education, 294 Conn. 265, 276, 984 A.2d 58 (2009).
520      Generally, we have held that a party is an identifiable
521   person when he or she is compelled to be somewhere.
522   See Strycharz v. Cady, supra, 323 Conn. 575–76 (‘‘[o]ur
523   decisions underscore . . . that whether the plaintiff
524   was compelled to be at the location where the injury
525   occurred remains a paramount consideration in
526   determining whether the plaintiff was an identifiable
527   person or member of a foreseeable class of victims.’’
528   [internal quotation marks omitted]). Accordingly, ‘‘[t]he
529   only identifiable class of foreseeable victims that we
530   have recognized . . . is that of schoolchildren
531   attending public schools during school hours because:
532   they were intended to be the beneficiaries of particular
533   duties of care imposed by law on school officials; they
534   [are] legally required to attend school rather than being
535   there voluntarily; their parents [are] thus statutorily
536   required to relinquish their custody to those officials
537   during those hours; and, as a matter of policy, they
538   traditionally require special consideration in the face
539   of dangerous conditions.’’ (Internal quotation marks
540   omitted.) Id., 576.
541      Outside of the schoolchildren context, we have recog-
542   nized an identifiable person under this exception in
543   only one case that has since been limited to its facts.15
544   Beyond that, although we have addressed claims that
545   a plaintiff is an identifiable person or member of an
546   identifiable class of foreseeable victims in a number of
547   cases, we have not broadened our definition.16 See, e.g.,
548   Cotto v. Board of Education, supra, 294 Conn. 267–68,
549   279 (director of community based summer youth pro-
550   gram located in public school was not identifiable per-
551   son when he slipped in wet bathroom because ‘‘then
552   so was every participant and supervisor in the Latino
553   Youth program who used the bathroom,’’ and anyone
554   ‘‘could have slipped at any time’’ [emphasis in original]);
555   see also Coe v. Board of Education, 301 Conn. 112,
556   119–20, 19 A.3d 640 (2011) (student injured while
557   attending middle school graduation dance occurring off
558   school grounds did not qualify as member of identifiable
559   class of foreseeable victims because she was not
560   required to attend dance); Grady v. Somers, supra, 294
561   Conn. 328, 355–56 (permit holder injured at refuse trans-
562   fer station owned by town did not qualify as identifiable
563   person despite being paid permit holder and resident
564   of town); Durrant v. Board of Education, 284 Conn.
565   91, 96, 104, 108, 931 A.2d 859 (2007) (mother who slipped
566   and fell while picking up her child from optional after-
567   school day care program run in conjunction with public
568   school did not qualify as member of identifiable class
569   of foreseeable victims because program was optional);
570   Prescott v. Meriden, 273 Conn. 759, 761–62, 764–65,
571   873 A.2d 175 (2005) (parent voluntarily attending high
572   school football game to watch his child play was not
573   member of identifiable class of foreseeable victims
574   because he was not compelled to attend, school officials
575   lacked similar duties of care to him as to child given his
576   status as parent, and exception is ‘‘narrowly defined’’
577   [internal quotation marks omitted]); Evon v. Andrews,
578   211 Conn. 501, 508, 559 A.2d 1131 (1989) (‘‘[t]he class
579   of possible victims of an unspecified fire that may occur
580   at some unspecified time in the future is by no means
581   a group of ‘identifiable persons’ ’’).
582     In the present case, the plaintiff was in no way com-
583   pelled to attend the aqua therapy sessions provided by
584   Eastern. Instead, he voluntarily decided to use Eastern’s
585   services. Under established case law, this choice pre-
586   cludes us from holding that the plaintiff was an identifi-
587   able person or a member of an identifiable class of
588   persons. As the identifiable person, imminent harm
589   exception requires conjunctive proof of both, our deter-
590   mination that the plaintiff does not qualify as an identifi-
591   able person ends our analysis, and we need not consider
592   whether an imminent harm existed on these facts.
593        The judgment is affirmed.
595
594        In this opinion the other justices concurred.
       1
596        General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as
597   otherwise provided by law, a political subdivision of the state shall be liable
598   for damages to person or property caused by . . . (B) negligence in the
599   performance of functions from which the political subdivision derives a
600   special corporate profit or pecuniary benefit . . . . (2) Except as otherwise
601   provided by law, a political subdivision of the state shall not be liable for
602   damages to person or property caused by . . . (B) negligent acts or omis-
603   sions which require the exercise of judgment or discretion as an official
604   function of the authority expressly or impliedly granted by law.’’
         2
605        Eastern Connecticut Rehabilitation Center, Inc., was also named as a
606   defendant in this action. Because the plaintiff appealed after the court
607   disposed of all claims in this action against the town of Plainfield; see
608   Practice Book § 61-3; and Eastern Connecticut Rehabilitation Center, Inc.,
609   is not a party to this appeal, we refer in this opinion to the town of Plainfield
610   as the defendant.
         3
611        The plaintiff alleged two counts against the defendant, one pursuant to
612   § 52-557n and the other pursuant to General Statutes § 7-465, a municipal
613   indemnification statute. The trial court struck the § 7-465 count because the
614   plaintiff did not identify a town employee for whom indemnification was
615   sought. See Altfeter v. Naugatuck, 53 Conn. App. 791, 799, 732 A.2d 207
616   (1999). After the plaintiff failed to replead his § 7-465 claim in a viable
617   fashion, the trial court rendered judgment on that claim in the defendant’s
618   favor. Only the § 52-557n count is at issue in this appeal.
         4
619        Eastern now pays the defendant $60 for each reserved hour of use.
         5
620        The plaintiff appealed to the Appellate Court, and this court transferred
621   the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice
622   Book § 65-1.
         6
623        ‘‘[A] municipal government is viewed as having a double function, first,
624   the proprietary or corporate function, and, second, the governmental func-
625   tion as the arm or agent of the state. Sovereign immunity protects sovereign
626   governments, such as states, and municipalities when acting as agents of
627   the state, but not municipal corporations acting on their own behalf.’’ 18
628   E. McQuillin, Municipal Corporations (3d Ed. Rev. 2003) § 53.23, p. 381.
         7
629        We have acknowledged that ‘‘[w]hen a governmental entity engages in
630   conduct for its own corporate benefit in a manner that poses an unreasonable
631   risk of harm to others, we can perceive of no reason why it should not be
632   held responsible for all of the consequences of that conduct, just as a private
633   person would be.’’ Blonski v. Metropolitan District Commission, 309 Conn.
634   282, 295–96, 71 A.3d 465 (2013).
         8
635        At oral argument, the plaintiff suggested using separate definitions for
636   special corporate profit and pecuniary benefit; however, this court analyzed
637   those two phrases together in Considine, and we see no reason to waver
638   from that analysis today.
         9
639        According to Ambrogi’s affidavit, the swimming pool at issue in this case
640   is operated by the defendant and its recreation department.
         10
641         The defendant in Hannon charged ten cents per lesson for children and
642   twenty cents for adults. Hannon v. Waterbury, supra, 106 Conn. 14.
         11
643         We do not read Considine as suggesting that, simply because an activity
644   is offered only to a municipality’s residents, the municipality necessarily
645   loses its immunity. Rather, even in such circumstances, activities that are
646   meant to improve the general health, welfare or education of the municipali-
647   ty’s inhabitants are deemed to indirectly benefit the general public and,
648   thus, constitute activities performed as an agent of the state. Considine v.
649   Waterbury, supra, 279 Conn. 846. The distinction is not implicated in this
650   case, however, because the defendant permitted private groups to reserve
651   use of the pool without including the residency information of their individ-
652   ual group members.
         12
653         For example, the record does not reveal the total number of hours that
654   the pool is available in a year. Moreover, as previously noted, the expenses
655   identified by the defendant for running the pool do not include all expenses
656   pertaining to the pool, but specifically exclude the costs of electricity, heat,
657   water, maintenance employees’ salaries, and consumable supplies.
         13
658         Liability for a municipality’s discretionary act is not precluded when
659   (1) ‘‘the alleged conduct involves malice, wantonness or intent to injure’’; (2)
660   ‘‘a statute provides for a cause of action against a municipality or municipal
661   official for failure to enforce certain laws’’; or (3) ‘‘the circumstances make
662   it apparent to the public officer that his or her failure to act would be likely
663   to subject an identifiable person to imminent harm . . . .’’ (Citations omit-
664   ted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607,
665   615–16, 903 A.2d 191 (2006).
         14
666         We have previously held that the identifiable person, imminent harm
667   exception ‘‘applies in an action brought directly against [a] municipalit[y]
668   pursuant to § 52-557n (a) (1) (A), regardless of whether an employee or
669   officer of the municipality also is a named defendant.’’ Grady v. Somers,
670   supra, 294 Conn. 348; see Benedict v. Norfolk, 296 Conn. 518, 523, 997
671   A.2d 449 (2010) (citing Grady for proposition that action may name only
672   municipality as defendant and claim identifiable person, imminent harm
673   exception). Thus, we address this issue despite the lack of a claim against
674   a specific municipal employee.
         15
675         Specifically, prior to the adoption of the current three-pronged identifi-
676   able person, imminent harm analysis, we concluded that an identifiable
677   person subject to imminent harm existed among a group of intoxicated
678   individuals who were arguing and scuffling in a parking lot when a police
679   officer who spotted them failed to intervene until he heard a gunshot. Sestito
680   v. Groton, 178 Conn. 520, 522–24, 423 A.2d 165 (1979). This holding, however,
681   has been limited to its facts. Edgerton v. Clinton, supra, 311 Conn. 240.
682   Even if its holding was not so limited, Sestito would not apply in the present
683   case because, in contrast to the circumstances in Sestito, no evidence in
684   the record supports the plaintiff’s claim that he was actually identified to
685   a town official in connection with the alleged harm.
         16
686         A recent Appellate Court decision, Brooks v. Powers, 165 Conn. App.
687   44, 138 A.3d 1012 (2016), cert. granted, 322 Conn. 907, 143 A.3d 603 (2016),
688   is cited by the plaintiff to support his contention that he is an identifiable
689   victim within the scope of this exception. It was not disputed in Brooks,
690   however, that the decedent was an identifiable person. This court has granted
691   the defendant’s petition for certification to appeal in Brooks, limited to the
692   issue of whether the Appellate Court properly applied the identifiable person,
693   imminent harm standard and concluded that the harm at issue was imminent.
694   Brooks v. Powers, 322 Conn. 907, 143 A.3d 603 (2016). We have examined
695   the opinion of the Appellate Court in that case and conclude that its facts
696   are highly distinguishable from those of the present case. By so observing, we
697   do not intend to express any opinion as to the merits of that pending appeal.
699
698
