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GAJEWSKI v. PAVELO12/22/1994
o ensure "public safety" and to "benefit the public" is inconsistent with the charge that the purpose of the code is to benefit the occupants. The plaintiffs do not cite any case law in their brief supporting their contention that these charges were inconsistent. Presumably, their argument is that protecting the safety of the occupants is a narrower purpose than benefiting the public. Since the
occupants are a segment of the population to be benefited, the charge is not inconsistent. If a duty was owed to the public, it must, of necessity, have also been owed to the occupants of the home. Under either purpose, there was a duty to the Gajewskis.
The plaintiffs' next attack on the instructions as to the city employees is the charge on discretionary acts. In Connecticut, "`a municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . he word "ministerial" refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion . . . .'" (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). One exception to this qualified immunity permits tort actions in circumstances where there is perceptible imminent harm to identifiable persons. This exception applies to both identifiable individuals and narrowly defined identified classes of foreseeable victims. Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); see also Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979).
The plaintiffs argue that the court first correctly charged in accordance with Burns, but later contradicted itself. The plaintiffs claim that the court first gave the jury an "objective" standard by which to consider the exception to immunity, by stating that "even if the duties upon the city officials are discretionary, they are liable for breach of these duties if that breach subjects an identifiable group to imminent harm." The plaintiffs argue that a later portion of the charge was inconsistent because it erroneously gave a "subjective" standard by charging that "if you find that any duty the defendants may have had is discretionary, then the only exception [to immunity] would be if it was apparent to [the city employees] that their
failure subjects an identifiable person to an imminent harm, that there was a specific relationship established between [the employees] and the Gajewskis." (Emphasis added.) The plaintiffs argue that here the trial court incorrectly instructed the jury that it had to find a subjective "special relationship" between the city employees and the Gajewskis in order for there to be an exception to immunity.
The trial court's instruction to the jury that it had to find a special relationship was not an instruction to apply a subjective standard. The instruction states a fundamental premise of tort law that before there can be liability, there must be a breach of a duty of care owed by the defendant to the plaintiff, which, in turn, requires that there be a special relationship between the plaintiff and the defendant. See W. Prosser & W. Keeton, supra, ยง 56. In fact, our Supreme Court, in Burns v. Board of Education, supra, 228 Conn. 646, used the special relationship language the plaintiffs complain of here in its discussion of the exception to sovereign immunity permitting tort actions where there is a foreseeable class of victims. In Burns, our Supreme Court noted that " n delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts> have considered numerous criteria, including the imminency of any
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