Conn. Civ. Jury Instr. 3.3-5

The plaintiff claims that there is an exception to governmental immunity which allows (him/her)

to hold the defendant liable for injuries caused by the negligent acts or omissions of its

employee. Ordinarily, a municipal employee has immunity from liability. However, a

municipal employee is not immune from liability if the harm likely to be caused by (his/her)

actions or inactions was imminent and that imminent harm was apparent to the municipal

employee.

<Discuss plaintiff’s claims; use identifiable victim or identifiable class of victims as

appropriate:>

IDENTIFIABLE VICTIM

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) claims of

negligence against the defendant;

2. that the harm which (he/she) claims befell (him/her/it) on <date> was imminent

when the municipal employee acted or failed to act; and

3. that it was apparent to the employee that (his/her) conduct was likely to subject

the plaintiff to the particular harm alleged.

Identifiable victim

You must first determine whether the plaintiff was an identifiable victim. The plaintiff alleges

that (he/she) was <state assertions as to identifiability> at the time of the incident. If you find

that the plaintiff was an identifiable victim, you will proceed to the next component. If you do

not find that the plaintiff was an identifiable victim, you will return a verdict in favor of the

defendant.

Imminent

The second component of this exception requires you to determine whether the plaintiff has

proven that the harm to which (he/she) 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. The plaintiff must prove what the surrounding circumstances were and that the need

for the employee to act to prevent imminent harm to the plaintiff was clear and unequivocal.

Apparentness

The third component that the plaintiff must prove is that the particular, imminent danger to

which (he/she) claims (he/she) was exposed, as an identifiable victim, <identify claim> was

apparent to a reasonable person in the defendant’s position. The risk has to have been

sufficiently great that it must have been apparent to the employee that there was a clear and

unequivocal need to act promptly. “Apparent” means easily observed and understood. The

circumstances surrounding the incident must have been such that it would have been apparent to

the employee that (his/her) failure to act would likely place the plaintiff in imminent danger.

You must refrain from resorting to the clarity of hindsight when evaluating the situation of the

employee. Also, you must use only the information that was available to the employee when

assessing whether it was apparent that injury of the sort sustained by the plaintiff was imminent

unless the employee acted to prevent it.

Although the components have been identified separately, they are interconnected. The criteria

of identifiable person and imminent harm must be evaluated with reference to each other. An

allegedly identifiable person must be identifiable as a potential victim of a specific imminent

harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a

specific identifiable person. For the purposes of the imminent harm exception, it is impossible to

be an identifiable person in the absence of any corresponding imminent harm.

Unless you find that the plaintiff has proved both imminency and apparentness components as I

have explained them to you, the defendant retains immunity from responsibility for the plaintiff's

injuries, and you must return a verdict for the defendant. If you find that the plaintiff has proven

both imminency and apparentness by a preponderance of the evidence, the defendant has no

immunity, and you will proceed to determine whether the plaintiff has proven (his/her)

allegations of negligence against the defendant in accordance with the principles I will now

discuss with you.

OR

IDENTIFIABLE CLASS OF VICTIMS

The imminent harm exception to immunity has three distinct 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 a member of an identifiable class of victims with respect to

(his/her) claims of negligence against the defendant;

2. that the harm which (he/she) claims befell (him/her) on <date> was imminent

when the employee acted or failed to act; and

3. that it was apparent to the employee that the employee’s conduct was likely to

subject the plaintiff to the particular harm alleged.

Member of identifiable class of victims

As to being a member of an identifiable class of victims, there is no dispute in this case that the

plaintiff was a student at a public school, during the time (he/she) was required to be at school

and was exposed to a risk that was encountered in connection with (his/her) required presence at

school or participation in a required school activity, at the time of the alleged accident.

Therefore, you will regard (him/her) as a member of an identifiable class of potential victims in

satisfaction of the first component described above.

Imminent

The second component of this exception requires you to determine whether the plaintiff has

proven that the harm to which (he/she) 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. The plaintiff must prove what the surrounding circumstances were and that the need

for the employee to act to prevent imminent harm to the plaintiff was clear and unequivocal.

The determination of whether a harm is imminent should include an examination of all facts and

circumstances surrounding the dangerous condition, including the characteristics of the persons

who are likely to be exposed to it including a child’s age and the child’s relationship to

understanding and appreciation of danger.

Apparentness

The third component which the plaintiff must prove that the particular, imminent danger to

which (he/she) claims (he/she) was exposed, as a member of an identifiable class of victims,

<identify claim> was apparent to a reasonable person in the employee’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 employee that (his/her) failure to act would

likely place the plaintiff in imminent danger.

You must refrain from resorting to the clarity of hindsight when evaluating the situation of the

employee. 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 employee acted to prevent it. A plaintiff seeking to invoke the exception must

demonstrate that the employee was aware of the specific danger alleged to have caused the

plaintiff’s injuries.

Unless you find that the plaintiff has proved both imminency and apparentness components as I

have explained them to you, the defendant retains immunity from responsibility for the plaintiff's

injuries, and you must return a verdict for the defendant. If you find that the plaintiff has proven

both imminency and apparentness by a preponderance of the evidence, the defendant has no

immunity, and you will proceed to determine whether the plaintiff has proven (his/her)

allegations of negligence against the defendant in accordance with the principles I will now

discuss with you.

1 Cotto v. Board of Education, 294 Conn. 265, 276 (2009) (Citation omitted; internal quotation

marks omitted.)

2 This generally is not in dispute and most often will be resolved as a matter of law. Although

the possibility of other classes being recognized has not been precluded, the only class of

imminent victims that has been recognized explicitly is students at school during regular school

hours or otherwise engaged in a compulsory school activity. See Durrant v. Board of Education,

284 Conn. 91, 102 (2007); see also Jahn v. Board of Education, 152 Conn. App. 652, 662 n.6

(2014).

3 Strycharz v. Cady, 323 Conn. 548, 587 n.35 (2016).

4 Strycharz v. Cady, 323 Conn. 548, 586 n.33 (2016).