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3.3-5  Governmental Immunity - Imminent Harm Exception

New October 8, 2010 

In this case, the plaintiff claims that an exception to governmental immunity applies which allows (him/her/it) to hold the defendant liable for negligent acts or omissions which caused (him/her/it) injury. Our law withholds immunity from municipal employees who negligently injure identifiable persons when the harm likely to be caused by the employee’s actions or inactions was imminent and that imminent harm was apparent to the municipal employee. 

<Discuss plaintiff’s claims

This exception to immunity has three components, each of which the plaintiff must satisfy you, by a preponderance of the evidence, existed at the time of the plaintiff’s alleged injury. These components are: 

  1. that the plaintiff was an identifiable victim with respect to (his/her/its) claims of negligence against the defendant;
  2. that the harm which (he/she/it) claims befell (him/her/it) on <date> was imminent when the defendant acted or failed to act; and
  3. that it was apparent to the defendant that the defendant’s conduct was likely to subject the plaintiff to the particular harm alleged. 

Identifiable victim

As to being an identifiable victim, there is no dispute in this case that the plaintiff was <state facts> at the time of the alleged accident. You will regard (him/her/it), therefore, as identifiable in satisfaction of the first component described above. 

Imminent

The second component of this exception is disputed and requires you to determine whether the plaintiff has proven that the harm to which (he/she/it) was subjected, if any, was “imminent.” In this context, “imminent” means “about to occur at any moment”; “close to happening”; or “on the verge of happening”. It is insufficient for the plaintiff to prove that the harm to which (he/she/it) was exposed might have occurred, if at all, at some unspecified time or location in the future when compared to the alleged negligent action of the defendant. Imminent harm is a temporary danger, confined in both time and space. It is a potential threat which is limited in duration and restricted in area. [Omit “space” if not an issue] 

Apparentness

The third component is also disputed and obligates the plaintiff to prove that the particular, imminent danger to which (he/she/it) claims (he/she/it) was exposed, as an identifiable victim, <identify claim> was apparent to a reasonable person in the defendant’s position. “Apparent” means “easily observed and understood.” The circumstances surrounding the incident must have been such that it would have been apparent to the defendant that (his/her/its) failure to act would likely place the plaintiff in imminent danger. 

The plaintiff must prove what the surrounding circumstances were and that the need for the defendant to act to prevent imminent harm to the plaintiff was clear and unequivocal. You must refrain from resorting to the clarity of hindsight when evaluating the situation of the defendant. Also, you must use only the information that was available to the defendant when assessing whether it was apparent that injury of the sort sustained by the plaintiff was imminent unless the defendant acted to prevent it. 

If you find that the plaintiff has failed to prove either the imminency or apparentness component as I have explained them to you, then you must find that the defendant retains immunity from responsibility for the plaintiff’s injuries, and you would return a defendant’s verdict on the form provided to you for that purpose. If, on the other hand, you find that the plaintiff has proven to you, by a preponderance of the evidence, both the imminency and apparentness components of this exception, then the defendant has no immunity, and you would proceed to determine whether the plaintiff has proven (his/her/its) allegations of negligence against the defendant in accordance with the principles I will now discuss with you. 

Authority 

Doe v. Petersen, 279 Conn. 607 (2006).

Notes

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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