MUNICIPAL IMMUNITY: THE BASICS
While municipalities are not protected by the same sovereign immunity awarded to states, there are several limitations and exceptions to municipal liability.
Connecticut General Statutes § 52-557n(b) provides immunity from civil liability to municipalities and their employees, officials, and agents acting within the scope of their employment or official duties, for damages resulting from:
1. the condition of natural land or unimproved property;
2. the condition of a reservoir, dam, canal, conduit, drain, or similar structure when used by a person in a manner that is not reasonably foreseeable;
3. the temporary condition of a road or bridge which results from weather, if the municipality has not received notice and has not had a reasonable opportunity to make the condition safe;
4. the condition of an unpaved road, trail, or footpath, the purpose of which is to provide access to a recreational or scenic area, if the municipality has not received notice and has not had a reasonable opportunity to make the condition safe;
5. starting a judicial or administrative proceeding, unless it was commenced or prosecuted without probable cause or with a malicious intent to vex or trouble;
6. the act or omission of someone other than a municipal employee, office, or agent;
7. the issuance, denial, suspension, or revocation of, or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization, when such authority is a discretionary function by law, unless the action or referral constitutes a reckless disregard for health or safety;
8. failure to inspect or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to the municipality, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the municipality (a) had notice the violation of law or such a hazard or (b) the failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances;
9. failure to detect or prevent pollution of the environment including groundwater, watercourses, and wells, by individuals or entities other than the municipality; or
10. conditions on land sold or transferred to the municipality by the state when such conditions existed at the time the land was sold or transferred to the municipality.
Discretionary Governmental Acts
Municipal officers or employees also have immunity for governmental acts taken within the scope of their authority.“Governmental acts” in this context are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. In order to qualify as a “discretionary act” the act must involve the exercise of judgment. In contrast, a “ministerial acts” is performed in a prescribed manner without the exercise of judgment or discretion. Bailey v. Town of West Hartford, 100 Conn. App. 805 (2007).
A municipal official’s immunity for performing discretionary governmental functions is qualified by three recognized exceptions: 1. the circumstances make it apparent to the public official that his or her failure to act would be likely to subject an identifiable person to imminent harm; 2. a statute that authorizes a person to sue a municipality or municipal official for failure to enforce certain laws; or 3. the alleged acts involve malice, wantonness, or intent to injure, rather than negligence. Spears v Garcia, 263 Conn. 22 (2003).
Indemnification & Reimbursement
In certain instances where an employee acted in the discharge of his or her duties, municipalities are statutorily mandated to indemnify or reimburse the employee for financial loss arising out of legal proceedings. For instance, under Connecticut General Statutes § 7-101a a municipality must indemnify any elected or appointed municipal official, or any municipal employee from financial loss and expense, including legal fees and costs, arising out of any claim, demand, suit, or judgment for negligence or infringement of civil rights by the official or employee while acting in the discharge of his or her duties.
Municipalities may purchase insurance to protect themselves and municipal officials who are sued based on actions taken in their official capacity. CGS § 7-101 a(c).