Mahon v. Town of Cromwell
A minor plaintiff who voluntarily participates in a municipal program that is open to all municipal residents may not qualify as an identifiable victim subject to imminent harm. In July 2010, the minor plaintiff allegedly participated in a municipal program and was injured after a fall from the monkey bars at an intermediate school. The minor plaintiff, by his father, sued the Town of Cromwell and the board of education, alleging that the monkey bars were inappropriate for the plaintiff's age and that the municipal defendants were negligent, failed to inspect and failed to supervise. The municipal defendants moved for summary judgment. The court found that Connecticut General Statutes §10-241, which requires that municipalities construct, equip, renovate and partially finance schools, did not provide the minor plaintiff with a cause of action against the board of education. The court granted summary judgment on the plaintiff's C.G.S. §10-241 count. Municipal officials alleged in affidavits, and the plaintiff failed to dispute, that there were no written requirements that municipal workers inspect or maintain the area near the monkey bars during the summer. The court found that the plaintiff's complaint alleged acts or omissions in conduct that were discretionary. The plaintiff failed to qualify for an exception to discretionary act immunity that exists for identifiable victims who are subject to imminent harm. To qualify, the plaintiff was required to prove: 1.) an imminent harm; 2.) an identifiable victim; and 3.) a public official to whom it is apparent that his or her conduct is likely to subject the victim to harm. The minor plaintiff participated voluntarily in a municipal program that was available to all municipal residents. The plaintiff did not belong to a class of foreseeable victims or qualify as an identifiable victim subject to imminent harm. "Although it may have been foreseeable that the plaintiff would fall from the monkey bars," wrote the court, "the risk of specific harm . . . was not sufficiently immediate because any person playing on the monkey bars could have fallen at any time." The court granted the municipal defendants' motion for summary judgment.