Stango v. Town of Middlebury
Arranging a concert to be held at a town recreation facility constitutes an activity that is part of the traditional government function of furnishing a public park. In 2007, the minor plaintiff allegedly went to a concert held at a Town of Middlebury beach on Lake Quassapaug and broke his leg, when concertgoers who were slam dancing landed on the minor plaintiff. The minor plaintiff sued the town and argued that the town was engaged in a proprietary function and was negligent, because it failed to install a fence or guard rail, to protect spectators, or to prevent people from slam dancing. The municipality moved for summary judgment and argued its conduct was discretionary, and it was entitled to immunity. The court found that the municipality was acting in a "governmental" capacity, as opposed to a "proprietary" capacity. Connecticut General Statutes §7-148(c)(4) provides, "Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the Constitution and general statutes: . . . (C) Provide for entertainment, amusements, concerts, celebrations and cultural activities." In Considine v. Waterbury, a 2006 decision, the Connecticut Supreme Court wrote, "The municipality may . . . charge a nominal fee for participation in a governmental activity and it will not lose its governmental nature as long as the fee is insufficient to meet the activity's expenses." The Considine court added, C.G.S. "[§52-557n(a)(1)(B)] codifies the common-law rule that municipalities are liable for their negligent acts committed in their proprietary capacity." The 2007 concert did not generate a profit to the Town of Middlebury. In fiscal year 2007, the municipality charged residents about $95 per family or $47.50 per individual for a municipal pass. Individuals could also purchase a one-day pass for $5. Residents who used the recreation area in fiscal year 2007 paid $36,142, which was less than operating expenses of $61,196. "The evidence," wrote the court, "[shows] that the defendant was acting in a governmental, not proprietary, capacity in using the [recreation area] for the concert." The court granted the municipality's motion for summary judgment.