At common law, a municipality was, under certain circumstances, immune from liability for the torts it committed. See, e.g., Abbot v. Bristol, 167 Conn. 143, 150 and n. 2, 355 A.2d 68 (1974); Carta v. Norwalk, supra, 108 Conn. 701-702; Hourigan v. Norwich, 77 Conn. 358, 364-65, 59 A. 487 (1904). The source of this municipal immunity was the state's sovereign immunity.
The city of Norwich maintained the Fairview Reservoir as a part of its water supply for the benefit of its inhabitants, and sold its water to them for a profit to it. The facts in relation to this are stated in detail in Hourigan v. Norwich, 77 Conn. 358, 59 A. 487, and need not be here repeated. The charter of the said city (7 Special Laws, pp. 172-204), approved July 5th, 1871, provides as follows: —
In addition, we observe that the defendant appears to have adopted the plaintiff's dual characterization of its functions—those in relation to its supply of water being proprietary and those in relation to its provision of recreational space being governmental—although it disagrees as to which function the plaintiff's allegations of negligence relate. The defendant therefore has neither challenged this court's prior decisions that the supply of water is proprietary whenever revenues are generated thereby; see Martel v. Metropolitan District Commission, supra, 275 Conn. at 53, 881 A.2d 194;Abbott v. Bristol, 167 Conn. 143, 150, 355 A.2d 68 (1974); Hourigan v. Norwich, 77 Conn. 358, 364–66, 59 A. 487 (1904); nor asserted that the allegations in the present case relate to its statutory duty to construct and maintain public roads under the special act that chartered the defendant. See 20 Spec. Acts 1204, No. 511, § 2 (1929).
The municipal operation of a water utility for corporate profit is a proprietary function. See Abbott v. Bristol, 167 Conn. 143, 150, 355 A.2d 68 (1974); Richmond v. Norwich, supra, 588; Hourigan v. Norwich, 77 Conn. 358, 364-66, 59 A. 487 (1904). A municipal entity is subject to liability pursuant to § 52-557n (a) (1) (B), however, only if its allegedly tortious conduct was inextricably linked to a proprietary function.
The plaintiff's claim, rather, is that the alleged conduct did not constitute governmental acts because it concerned a proprietary, as opposed to a public activity, namely, the operation of a water utility. In support of her claim, the plaintiff relies upon three cases involving negligence actions arising out of a municipality's operation of a water utility: Hourigan v. Norwich, 77 Conn. 358, 59 A. 487 (1904); Richmond v. Norwich, 96 Conn. 582, 115 A. 11 (1921); and Abbot v. Bristol, 167 Conn. 143, 355 A.2d 68 (1974). In each of those cases, this court concluded that the municipal defendants could not avail themselves of immunity because the municipalities engaged in the allegedly tortious actions for the sake of corporate gain rather than for the administration of government.
Excepting as the above facts may be evidence thereof, there is no evidence in the record that the city of Pasadena was conducting a garbage business for the purpose of making a profit. [1] However, the respondent takes the position that the foregoing facts show that the defendant city was at the time and under the circumstances delineated conducting the garbage business for a profit and that the defendant city is liable for the negligence of its servants in the performance of the duties cast upon them in gathering together the garbage, and in this behalf respondent cites McQuillin on Municipal Corporations, sections 2625, 2673; Chicago v. Selz-Schwab Co., 104 Ill. App. 376, 381; Hourigan v. Norwich, 77 Conn. 358, 365 [ 59 A. 487]; Judson v. Borough, 80 Conn. 384 [15 L. R. A. (N. S.) 91, 68 A. 999]. As we understand the appellant, its position is that without regard to what may be the rule in other states, the facts of this case do not show that at the time of the accident the city of Pasadena was engaged in the garbage business for profit, and therefore the respondent did not bring himself within any exception to the above rule that cities, as subordinate agencies of the state, are intrusted with the exercise of limited governmental powers for the benefit of the local public in the performance of which, in this state, there being no statutory provision to the contrary, they are not liable for the negligence of their officers, agents, and servants through whom they act.
Our Supreme Court has held that "the supply of water is proprietary whenever revenues are generated thereby ..." (Citations omitted.) Blonski v. Metropolitan District Commission, 309 Conn. 282, 290 n.6, 71 A.3d 465 (2013); see Martel v. Metropolitan District Commission, 275 Conn. 38, 53, 881 A.2d 194 (2005); Abbott v. Bristol, 167 Conn. 143, 150, 355 A.2d 68 (1974); Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11 (1921); Hourigan v. Norwich, 77 Conn. 358, 365-66, 59 A. 487 (1904). The defendant seeks to distinguish itself from the tenets of these cases by submitting the affidavit of Vincent Caterino, the Superintendent of the Water and Sewer Department, who attests that the defendant does not own its own water supply, but rather provides its residents with water it purchases from the City of Waterbury.
Additionally, she argues, the common law also recognizes an exception to the doctrine of governmental immunity where, as here, the municipality is exercising a proprietary or private function, especially where the city is operating for corporate gain. Because the city acknowledges that it charged a fee for the use of the ice arena, Cichon argues, as a matter of law, that the city is liable and cannot claim governmental immunity. To support her contention that the doctrine of governmental immunity is not a proper special defense in this case, Cichon relies upon two cases:Hourigan v. Norwich, 77 Conn. 358, 59 A. 487 (1904), and Richmond v. Norwich, 96 Conn. 582, 115 A. 11 (1921). In both of these cases, the court held that the city does not discharge a public governmental duty when it stores, distributes and sells water to its inhabitants at a profit.
Unlike the present case, in each of those cases, the allegedly tortious conduct of the municipalities was inextricably linked to the operation of the water utility for corporate gain.Elliott, at 413, citing Hourigan v. Norwich, 77 Conn. 358 (1904); Richmond v. Norwich, 96 Conn. 582 (1921); and Abbott v. Bristol, 167 Conn. 143 (1974). There must be a direct link, then, between the municipal authority and the pecuniary benefit.
Other courts have found the relationship between quasi-independent boards and the municipality sufficient to support the municipality's liability for a board's torts. Hourigan vs. Norwich, 59 A. 487 (Conn. 1904); Fine vs. Mayor Council of Wilmington, 94 A.2d 393 (Del. 1953); St. Germain vs. Fall River, 59 N.E. 447 (Mass. 1901); Reed vs Syracuse, 120 N.W. 180 (Neb. 1909); Seeley vs. Amsterdam, 66 N.Y.S. 221 (N Y App. Div. 1900).