Williams v. New Haven
In Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), the plaintiffs sought to recover damages against the defendant city of New Haven for injuries that the minor plaintiff sustained when he was struck by a high pressure stream of water flowing from a fire hydrant, which had been opened by an unauthorized person. 243 Conn. at 764.
In their complaint, the plaintiffs alleged common-law negligence against the defendant, but failed to cite therein any authority abrogating the defendant's governmental immunity. 243 Conn. at 766. The case proceeded to the jury, and it found in favor of the plaintiffs. 243 Conn. at 764.
Subsequently, the defendant appealed, claiming that the doctrine of governmental immunity applied and that the plaintiffs did not cite any statute abrogating that immunity. Id. Our Supreme Court noted that "it is clear that a municipality enjoys governmental immunity for common-law negligence unless a statute has limited or abrogated that immunity . . . ." 243 Conn. at 769.
It held that the plaintiffs' action must fail because "they did not rely on any such statute . . . ." Id.
In so holding, the Supreme Court emphasized that "throughout the entire course of this litigation, including the allegations of the complaint, the trial and this appeal, the plaintiffs have relied solely on their claim of common-law negligence on the part of the defendant. At no time have they advanced any statute as a basis for the liability of the defendant in this case." 243 Conn. at 766.
The Court reversed a jury verdict for the plaintiffs, stating:
"Because it is clear that a municipality enjoys governmental immunity for common-law negligence unless a statute has limited or abrogated that immunity, the plaintiffs cannot prevail. The plaintiffs do not rely on any such statute, and they have failed to name an agent, officer or employee of the municipality and to invoke indemnification pursuant to General Statutes 7-465. The doctrine of governmental immunity, therefore, is fatal to their cause of action against the defendant." Williams v. New Haven, supra, 243 Conn. at 769.
The Williams court, however, did not expressly state at what procedural stage of prosecuting an action a plaintiff must identify the statutory basis upon which it relies to abrogate a municipality's governmental immunity.
General Statutes 7-465 (a) provides in relevant part: "Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for . . . physical damages to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . . Governmental immunity shall not be a defense in any action brought under this section. . . . As used in this section, 'employee' shall include (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board . . . ."
Section 7-465 provides that a municipality must indemnify its officers, agents and employees under certain circumstances. The court was correct that the plaintiffs' action fails to invoke 7-465 as abrogating governmental immunity because the plaintiffs made a claim only against the board of education. A claim under 7-465 should contain two counts, one against the agent, and the second against the municipality in indemnification. See Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). Accordingly, as the defendant states in its brief to this court, "regardless of whether the plaintiffs identify the board of education as the negligent agent or as the political subdivision responsible for indemnification," the plaintiffs have failed to properly plead a cause of action under 7-465.