Governmental Immunity - Municipal
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
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