In Blonski v. Metropolitan District Commission (SC 18809), released earlier this month, the Connecticut Supreme Court continued to clarify the scope of the "proprietary function" exception to governmental immunity.
The Metropolitan District Commission (MDC) is a political subdivision of the state, specially chartered by the General Assembly for the purpose of water supply, waste management and regional planning. To accomplish its purposes, the MDC maintains several reservoirs and water treatment facilities, including a property in West Hartford consisting of 3,000 acres of land and five reservoirs.
The MDC allows the public to use the property for recreational activities, including walking, running and biking on the many trails that run through the property. In 1976, after experiencing recurring problems on the West Hartford property, the MDC closed the roads on the property to public motor vehicles. The agency installed two gates blocking access to the property's road system from the public parking lot. After the terrorist attacks on September 11, 2001, the MDC made a decision to keep the gates closed at all times to protect the water supply from any attempt to contaminate it.
The plaintiff went to the reservoir property to videotape a segment on mountain biking for a public access cable television program. After taping the segment, the plaintiff went for a bicycle ride. As she headed back to the parking lot at the end of her ride, the plaintiff turned onto one of internal roads, in the direction of the closed gate and against the designated direction for bicycle traffic. The plaintiff was unable to stop when she came to the closed gate and struck her head on it and suffered serious injuries.
The questions before the Blonski Court were: (1) whether the MDC was immune from liability pursuant to General Statutes § 52-557n(a)(2)(B) because the maintenance of the gate to control the recreational use of the property was a governmental function requiring the exercise of discretion or, instead, the MDC was liable under Section 52-557n(a)(1)(B) because its conduct was connected to its proprietary function of operating a water supply company; and (2) if the MDC was not entitled to immunity under Section 52-557n(a)(2)(B), whether it is entitled to immunity pursuant to the Recreational Land Use Act, General Statutes § 52-557f et seq.
The Supreme Court concluded that the gate was inextricably linked to a proprietary function, and that the MDC was not entitled to immunity pursuant to the Recreational Land Use Act. Consequently, the Court affirmed the judgment in the plaintiff's favor. The Court's analysis of the application of the act is not discussed in this article.
General Statutes § 52-557n provides in relevant part: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: … (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit…." The statute does not define the phrases "special corporate profit" and "pecuniary benefit."
The Connecticut Supreme Court has stated that a proprietary function is an act done in the management of a municipal entity's property or rights for its own corporate benefit or profit and that of its inhabitants. The fact that a small fee is charged does not necessarily deprive the municipal entity of the protection of governmental immunity.
As long as a small or nominal fee is charged as a mere incident of the public service rendered and not as a means to derive a profit from the activity, the benefit of the government immunity should be available to the municipal entity. Where a court finds that the fee charged indicates a commercial enterprise entered in for the corporate benefit of the municipal entity, such a fee goes beyond the mere incident of the public service rendered and governmental immunity may not be available to the municipal entity.
Further, a municipal entity is potentially subject to liability pursuant to Section 52-557n(a)(1)(B) only if its allegedly tortious conduct was "inextricably linked" to a proprietary function. The phrase "inextricably linked" is not set forth in the General Statutes and has not been specifically defined by the Connecticut Supreme Court. However, the Court has issued the following three decisions in the last 15 years exploring the "proprietary function" exception and the "inextricably linked" requirement: (1) Considine v. Waterbury, 279 Conn. 830 (2006); (2) Martel v. Metropolitan District Commission, 275 Conn. 38 (2005); and, (3) Elliott v. Waterbury, 245 Conn. 385 (1998).
The Connecticut Supreme Court has previously recognized that the distinction between a municipal entity's governmental and proprietary functions has been criticized as being illusory, elusive, arbitrary, unworkable and a quagmire. However, the Court has noted that, despite this criticism, Connecticut, like a minority of other jurisdictions, has not disavowed the application of the distinction. Other states' appellate courts also have noted the difficulty in defining exactly what constitutes a governmental versus a proprietary function. However, as long as Connecticut continues to recognize the distinction, additional analysis by the Court, such as in Blonski, can only assist municipal entities in ordering their affairs so as to minimize their potential liability.
Further, practitioners in the municipal law field are not wholly without guidance when it comes to the distinction between governmental and proprietary functions. For example, in Considine, the Court concluded that Section 52-557n(a)(1)(B) codifies the common law rule that municipalities are liable for their negligent acts committed in their proprietary capacity. The Considine Court then went on to examine in detail what the common law meant by the phrases "special corporate benefit" and "pecuniary profit." Anyone undertaking an analysis of those phrases as used in Section 52-557n(a)(1)(B) should review Considine's lengthy discussion of the same. In addition, the Considine Court's conclusion that Section 52-557n(a)(1)(B) codifies the common law permits the utilization of decisions decided prior to the enactment of Section 52-557n as both guidance and precedent. (See, for example, the Court's analyses in Blonski and Considine).
In Blonski, the MDC contended that it was entitled to governmental immunity because, although it installed and maintained the gate to protect the water supply, the plaintiff's allegations of negligence related exclusively to the MDC's purported negligence in providing a safe environment for recreational use and, more specifically, for cyclists, not for the MDC's purported negligence in protecting the water supply operation itself.
The state Supreme Court interpreted MDC's contention as arguing that a governmental entity cannot be held liable for its alleged negligent conduct when such conduct was inextricably linked to a governmental function, such as providing free recreational opportunities, even if the conduct also had a proprietary purpose. The Court disagreed with this argument.
As the Blonski Court noted, in Martel and Elliott it recognized a narrow exception in cases where the governmental entity was engaged in both a governmental and a proprietary function and the plaintiff failed to establish any inherent connection between the allegedly tortious conduct and the proprietary function. However, the Blonski Court expressly declined MDC's invitation to expand the exception to include situations in which the alleged tortious conduct was also linked to a proprietary function. According to the Court: "When a governmental entity engages in conduct for its own corporate benefit in a manner that poses an unreasonable risk of harm to others, we can perceive of no reason why it should not be held responsible for all of the consequences of that conduct, just as a private person would be."
The Blonski Court further rejected the MDC's implicit contention that its liability for proprietary activities performed in a negligent manner depended on the nature of the injured person's activity. The Court stated it was unaware of any authority to support the foregoing contention. Instead, the Court noted that Section 52-557n(a)(1)(B) focuses on the nature of the municipal entity-defendant's activity.
Although the additional clarification provided by the Blonski Court is helpful (as is the ability to use common law precedent as recognized in Considine), if Connecticut is going to remain in the minority by continuing to recognize a distinction between governmental and proprietary functions in the context of governmental immunity, then perhaps one or more of the following actions could result in greater clarity concerning the distinctions between the two functions: (1) amend General Statutes § 52-557n to define "special corporate profit" and "pecuniary benefit;" (2) amend General Statutes § 52-557n to include the following terms "governmental function" and "proprietary function," and definitions of the same; and/or (3) amend General Statutes § 52-557n to incorporate and define the Connecticut Supreme Court's "inextricably linked" requirement.•