In 2005, Middletown High School student Jasmon Vereen was injured while roughhousing in a locker room at the school. He cut his arm on a locker he claimed was damaged. His family filed a lawsuit and a jury awarded a $30,000 plaintiff’s verdict. Because Vereen was found 33 percent to blame, his share would be $20,100.

But what appeared to be a small potatoes personal injury case has turned into a long-running legal battle which recently resulted in an Appellate Court decision that, at least one lawyer says, seems to muddle Connecticut law regarding municipal liability.

"The law of municipal liability in this state is a mess," says New Haven attorney William F. Gallagher, whose firm represented Vereen and his mother.

At issue is a key element of municipal liability law. In general, municipalities are immune from lawsuits related to actions of elected officials or public employees. There are several exceptions. One of them is if the plaintiff can prove that negligence on the part of a public employee exposed an identifiable person to imminent harm. In this instance, Gallagher’s firm thought they proved that element — and still lost at the trial and Appellate Court level.

During the initial trial, Gallagher argued that Vereen’s arm was cut on a school locker that, according to witnesses, had been damaged—and had gone unrepaired — for about six months. Under plain logic and standard concepts of negligence, proving a dangerous condition was left untouched for so long would help the plaintiff’s case.

Hartford lawyer Matthew Dallas Gordon, representing the school board, tried to convince the jury that the locker’s sharp and jagged condition had only existed for five minutes before the injury, which left Vereen scarred. But the jury, answering a series of written questions, concluded that the locker had been left unrepaired for many months. Though this conclusion agreed with the plaintiff’s arguments, it ultimately led to a directed verdict for the defense.

Then-Superior Court Judge Clarance Jones, following a motion from Middletown after the jury’s verdict, ruled that Vereen had not made a case for the identifiable person/imminent harm exception.

The plaintiff’s arguments had passed muster on the identifiable person portion of the exception. Students in school are the one class of people routinely considered identifiable victims, Gordon said. "That’s because they’re required to go to school. They’re in a circumscribed environment. The state has certain obligations to protect them. There is no other class in society that is recognized as identifiable victims," he noted. For that reason, Middletown readily conceded that Vereen was an "identifiable victim."

It was the second portion of the exception — the part about imminent harm — that had tripped up the plaintiff’s case. Judge Jones noted the jury’s findings that the broken locker was a long-neglected condition. If the condition lingered for so long that it might harm someone at any time in the future, Jones concluded, it could not be considered an "imminent" threat.

In their arguments to the state Appellate Court, Vereen’s lawyers attempted to argue that the five-minute period in which students had to change their clothes was the short time period warranting application of the "imminent harm" exception.

But a unanimous Appellate Court panel in Tracey Haynes v. Middletown, officially released May 21, ruled that the jury made its factual findings properly — and the court applied the law correctly. Judge Douglas Lavine, writing for the panel, found that Jones properly concluded "the plaintiffs had not met their burden of proof because they had not proved imminent harm. To meet the imminent harm prong, the risk must be temporary and of short duration. The imminent harm prong is not met if the harm can occur, if at all, at some unspecified time in the future."

The plaintiffs wanted to prove a long-standing defective condition, and did, but it came back to bite them. As Lavine explained: "The risk created by the broken locker had existed for approximately one half of the school year and therefore was not temporary in nature." Thus, the panel concluded, the trial court "properly set aside the verdict and rendered judgment in favor of the defendant."

Gallagher says he will appeal to the Supreme Court. "This area of the law is highly counter-intuitive, and defies logic," he said.

Gordon, Middletown’s defense lawyer, did not disagree. "The longer the condition remains in existence, the more difficult it becomes for a plaintiff [to invoke the imminent harm exception], because the more time goes by, the less ‘imminent’ it is," Gordon said, in summarizing the Appellate Court ruling. "Honestly, I confess, this is something I struggled with for a long time, because it seems so counter-intuitive," Gordon admitted.

In other words, if a plaintiff can win by proving that a condition is dangerous for three hours, why should he lose if the same condition is dangerous for six months? "That just doesn’t make sense," Gordon said.

But caselaw regarding municipal immunity is often a study in nuances. For example, in the 1984 Connecticut Supreme Court case of Burns v. Board of Education, the justices said a student faced "imminent harm" when he fell and was injured on an icy walkway that had not been properly treated at a Stamford school. But that exception did not apply in the 1989 case of Evon v. Andrews, in which Waterbury fire inspection officials were sued for failing to find and enforce apartment fire safety violations.

The Appellate Court agreed with trial judge Jones that the risk posed by the damaged locker "was not temporary in nature and was not imminent in that the risk might occur, if at all, at some unspecified time in the future." As such it was more like Evon v. Andrews slippery ice case than Burns v. Board of Education fire safety case.

In the case of the jagged locker, Lavine wrote, "We agree that the risk was not imminent."•