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3.3-4  Governmental Immunity - Municipal Employee

New October 8, 2010 

In this case, the <defendant> claims that (he/she/it) cannot be held liable to the plaintiff for any damages the plaintiff may have suffered because (he/she/it) is protected from such liability by governmental immunity. The defendant has the burden of proving this special defense of immunity by a preponderance of the evidence. 

Under our law, a municipal employee, while working on behalf of the public, cannot be found liable for negligent acts or omissions if those acts or omissions were the result of an exercise of the employee’s judgment and discretion rather than the mere execution of a mandatory course of conduct. This immunity, if it applies, protects both the innocent employee and the negligent employee. That is, whether the employee was careless or careful is immaterial to the question of whether the defendant is immune from liability. Every municipal employee, who is required to use discretion in the performance of (his/her/its) job, is covered by this cloak of immunity, unless some exception applies, which exception[s] I will discuss with you shortly. 

The rationale for shielding municipal employees from legal responsibility for injuries they may have caused through negligence, which resulted from the necessary exercise of their discretion, arises because exposure to such liability may have the effect of cramping the exercise of that discretion to the detriment of the public. This immunization reflects a value judgment by society that, despite injury to an individual member of the public, the broader interest in having governmental officers and employees unhampered by the fear of being second-guessed and subjected to lawsuits outweighs the benefits to permitting such liability. 

However, this rationale is inapplicable, of course, in the situation where the municipal employee has no leeway as to how to act. If the employee performs a task which requires no exercise of discretion, then no immunity exists. Such mandatory activities are known as ministerial acts, as opposed to discretionary acts. Ministerial acts are those duties which the public employee must perform in a prescribed manner without the exercise of judgment or discretion. There is no immunity for the employee who negligently deviates from that prescribed path and causes injury. 

In this case, (the parties agree/the court instructs you) that the defendant was a municipal employee engaged in a governmental function at the time of the plaintiff’s alleged injury. The parties disagree, however, as to whether the defendant was free to exercise discretion when acting or failing to act as (he/she/it) did. 

<Discuss specifics of parties’ contentions

The question for you to decide, then, is whether the defendant was performing a discretionary or ministerial act when the plaintiff was allegedly injured by the defendant’s conduct. As I stated earlier, the burden is on the defendant, who desires the benefit of governmental immunity, to persuade you, by a preponderance of the evidence, that (his/her/its) actions or inactions were the result of the exercise of discretion rather than the failure to comport with a mandatory course of conduct. 

If you find that the defendant has failed to meet the burden of establishing this special defense, then no immunity would protect the defendant from liability if you determine that the defendant was negligent and that negligence proximately caused the injuries claimed by the plaintiff. If, however, you find that the defendant has satisfied this burden, then you would (render a verdict for the defendant on the negligence count/proceed to consider whether the plaintiff has proved that an exception to this governmental immunity applies in this case).


Doe v. Petersen, 279 Conn. 607 (2006); General Statutes § 52-557n. 


In most cases, the existence of governmental immunity and any exceptions will be resolved by summary judgment. Doe v. Petersen, supra, 279 Conn 613. Whether the victim is identifiable or a member of an identifiable class is a question of law for the court to decide, Prescott v. Meriden, 273 Conn. 759, 763-64 (2005).


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