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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:
- that the plaintiff was an identifiable
victim with respect to (his/her/its) claims of negligence against the
defendant;
- 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
- 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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