This appeal raises the issue ofwhether a municipality must specially pleadgovernmental immunity to merit its considerationas a defense to an action alleging the negligentoperation of a city park.
[187 Conn. 182]
One of the fingers in the plaintiff's dominant handwas broken when a link in a chain supporting aplayground swing on which he was sitting broke.The plaintiff brought an action in negligenceagainst the defendant city, alleging that thedefendant's failure to exercise reasonable care inmaintaining the chain links of the swing, located inLighthouse Park in New Haven, proximately causedhis personal injuries and damages. Specifically theplaintiff alleged that the defendant, its officers,agents, servants and employees, failed to replacerusted chain links, failed to warn the public thatthe swings were unsafe, failed to prevent the publicfrom using the unsafe swing, failed reasonably toinspect the swing for defects, and failed reasonablyto maintain the swing.
In its answer the defendant admitted that it wasa municipal corporation and denied the allegationsrelating to liability in the complaint. As a specialdefense, the defendant alleged that the plaintiff'snegligence was the proximate cause of his personalinjuries and damages. The defendant did not inits pleadings, or at trial, expressly raisegovernmental immunity as a defense.
Two days after the one-day trial, the court askedthe plaintiff's counsel in a letter, with a copy todefendant's counsel, upon what theory of liabilityhe was proceeding. The record does not indicatewhat precipitated the letter. After receiving acopy of the letter, counsel for the defendantrequested counsel for the plaintiff to provide himwith a copy of the plaintiff's response to thecourt's letter so that he would have an opportunityto address the issues raised in the response. Counselfor the plaintiff explained in a letter to the court
[187 Conn. 183]
that the action was brought in negligence, andnoted that governmental immunity should havebeen, but was not, pleaded as a special defense.Counsel for the plaintiff contended that the defenseshould not, therefore, be considered by the court.
Upon receipt of that letter, the court requestedcounsel for the defendant to respond thereto. Incomplying with that request, the defendant for thefirst time expressly claimed that the defendant wasnot liable for any negligence in the operation ofa public park because it is a governmental function.The defendant further claimed that governmentalimmunity need not be raised in a special defense,which claim was countered by counsel for theplaintiff in a subsequent letter to the court.
In its memorandum of decision the trial courtdeclined to consider the governmental immunitydefense because it was not pleaded specially. Toallow the defendant to raise the defense after thetrial had concluded, the court explained, wouldunfairly prejudice the plaintiff. The court furtherreasoned that if the defendant had been negligentin performing a ministerial act, then governmentalimmunity would not relieve it of liability, but thecourt did not expressly address whether the actscomplained of were ministerial in nature. Findingthat the defendant was negligent in not repairingthe swing, or in failing to prevent the public fromusing it, when the defendant had constructive noticethat one of the chain links was rusted and worn,the court awarded the plaintiff $2400 for hispersonal injuries and damages, plus costs. In itsappeal the defendant claims that the court erredin not considering and upholding the defense ofgovernmental immunity.
[187 Conn. 184]
A municipality is immune from liability for theperformance of governmental acts, as distinguishedfrom ministerial acts. Governmental acts areperformed wholly for the direct benefit of the publicand are supervisory or discretionary in nature.See, e.g., Spitzer v. Waterbury, 113 Conn. 84, 87,154 A. 157 (1931); Richmond v. Norwich, 96 Conn. 582,588, 115 A. 11 (1921); Boucher v. Fuhlbruck,26 Conn. Sup. 79, 82, 213 A.2d 455 (1965). On theother hand, ministerial acts are performed in aprescribed manner without the exercise of judgmentor discretion as to the propriety of the action.Tango v. New Haven, 173 Conn. 203, 204-205,377 A.2d 284 (1977); Wright v. Brown, 167 Conn. 464,471, 356 A.2d 176 (1975); Pluhowsky v. New Haven,151 Conn. 337, 347, 197 A.2d 645 (1964); Blake v.Mason, 82 Conn. 324, 327, 73 A. 782 (1909); Boucherv. Fuhlbruck, supra, 81-82.
When governmental immunity is fully litigatedat trial, and evidence material thereto is introducedwithout objection by the plaintiff, this court hasheld that the defense need not be raised as a specialdefense in the pleadings to permit its consideration.O'Donnell v. Groton, 108 Conn. 622, 625, 144 A. 468(1929). Under those circumstances, the plaintiff isdeemed to have waived his objection to the failureto plead a special defense. Cf. Alderman v. HanoverIns. Group, 155 Conn. 585, 590, 236 A.2d 462 (1967),aff'd after remand, 169 Conn. 603, 363 A.2d 1102(1975). Under most other circumstances however,including those present in this case, the defenseis like those that require pleading as a specialdefense under Practice Book 164.1 See
[187 Conn. 185]
Practice Book 165; Wright v. Coe & Anderson,Inc., 156 Conn. 145, 156, 239 A.2d 493 (1968);Trzaska v. Hartford, 12 Conn. Sup. 301, 302 (1943);but see Atwell v. Middletown, 16 Conn. Sup. 395,399 (1949); Young v. Stamford, 15 Conn. Sup. 442,443 (1948). Governmental immunity is essentiallya defense of confession and avoidance similar toother defenses required to be affirmatively pleaded.Compare Pawlinski v. Allstate Ins. Co., 165 Conn. 1,6, 327 A.2d 583 (1973), with Trzaska v. Hartford,Supra, 302. The purpose of requiring affirmativepleading is to apprise the court and the opposingparty of the issues to be tried and to preventconcealment of the issues until the trial is underway.Pawlinski v. Allstate Ins. Co., supra, 6.
But for the post trial events in the presentcase, therefore, the court would not have been boundto consider the governmental immunity defense becauseit was not pleaded as a special defense and nothingin the record indicates that the plaintiff waivedany objection he had to the defendant's failure tocomply with the requirement of pleading. A trialcourt may request counsel to clarify claims afterthe evidence is closed and arguments are completed,and is usually free to exercise its discretion indeciding whether to permit an amendment topleadings submitted by counsel in response. SeeGeneral Statutes 52-128, 52-130; Practice Book108, 176; Evans v. Byrolly Transportation Co.,
[187 Conn. 186]
124 Conn. 10, 12, 197 A. 758 (1938); cf, e.g., Wrightv. Coe & Anderson, Inc., supra, 155. By requestingthe defendant to respond to, the issues addressed inthe plaintiff's letter, however, the court created thepossibility that the defendant would raise thedefense, of governmental immunity. The unusualcorrespondence among the court and counsel for theparties precluded the court from exercising itsusual discretion in considering whether to addressthe defense as an amendment to the defendant'sanswer after the pleadings were closed, despite thefact that the defense was not formally submittedby the defendant.2
Whether the acts complained of in operating acity park were governmental or ministerial is afactual question which depends upon the nature ofthe act complained of. Tango v. New Haven,173 Conn. 203, 205-206, 377 A.2d 284 (1977); Doran v.Waterbury Parking Authority, 35 Conn. Sup. 280,281, 408 A.2d 277 (1979); Boucher v. Fuhlbruck,supra, 81; Cieri v. Hartford, 8 Conn. Sup. 542,542-43 (1940). See generally 18 McQuillin,Municipal Corporations (3d Ed. Rev.) 53.112,53.114. If the acts are considered governmentalin character, then the defendant is not liablebecause the plaintiff has not alleged statutoryliability and the defendant is otherwise immune.Wysocki v. Derby, 140 Conn. 173, 174,98 A.2d 659 (1953).
At trial, the director of the New Haven parks andrecreation department testified as to the operation
[187 Conn. 187]
of city parks generally and Lighthouse Park inparticular, as it related to the maintenance andrepair of the defective swing. This testimonycould have provided an adequate basis for thetrial court to determine whether the actscomplained of were ministerial or governmentaland whether the defense of governmental immunitycould have been sustained.
The case is remanded for further articulation ofthe trial court's finding particularly in respectto whether the negligent acts were ministerial innature and a ruling on the defendant's defense ofgovernmental immunity.
In this opinion the other judges concurred.
1. Practice Book 164 provides: "No facts may be proved undereither a general or special denial except such as show that theplaintiff's statements of fact are untrue. Facts which are consistentwith such statements but show, notwithstanding, that he has nocause of action, must be specially alleged. Thus, accord andsatisfaction, arbitration and award, coverture, duress, fraud,illegality not apparent on the face of the pleadings, infancy, thatthe defendant was non compos mentis, payment (even though nonpaymentis alleged by the plaintiff), release, the statute of limitationsand res adjudicata must be specially pleaded, while advantage may betaken, under a simple denial, of such matters as the statute offrauds, or title in a third person to what the plaintiff sues upon oralleges to be his own."
2. Our holding on the extraordinary circumstances of this casedoes not lessen our disapproval of submission by parties of informalletter requests and pleadings that do not comport with the rulesof practice. See, e.g., Kroop v. Kroop, 186 Conn. 211, 217,440 A.2d 293 (1982); Gould v. Sturman, 186 Conn. 13, 15,438 A.2d 1181 (1982); Bonczkiewicz v. Merberg Wrecking Corporation,148 Conn. 573, 583, 172 A.2d 917 (1961).