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.

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.

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.

The fact that the companies were privately-owned, such as the privately-owned public service water company in Edwards v. Bridgeport Hydraulic Co., supra, is not a distinguishing factor from the case at bar since the court found from the evidence presented that in erecting the water tank, the city of Bristol, through its board of water commissioners, was engaged in a proprietary function. Hourigan v. Norwich, 77 Conn. 358, 363-66, 59 A. 487; Carta v. Norwalk, 108 Conn. 697, 702, 145 A. 158; 18 Mcquillan, Municipal Corporations (3d Ed. Rev.) 53.103, p. 407. Under the circumstances of this case, like obligations and duties are imposed upon a city performing proprietary functions as are imposed upon a company when governed by comparable statutory or charter language. See Taylor v. Roosevelt Irr. Dist., 71 Ariz. 254, 258-59, 226 P.2d 154, aff'd, 72 Ariz. 160, 163, 232 P.2d 107; Cole Drug Co. of Massachusetts v. Boston, 326 Mass. 199, 201, 93 N.E.2d 556; 18 McQuillan, op. cit.

In Abbott v. Bristol, 167 Conn. 143, 147-48, 150, 355 A.2d 68 (1974), our Supreme Court did not disturb a trial court’s holding that, on the evidence admitted at trial, the construction of a water tank under the authority of municipal charter, through city’s board of water commissioners, was a proprietary function, which properly abrogated governmental immunity. In Hourigan v. Norwich, 77 Conn. 358, 363-65, 59 A. 487 (1904), our Supreme Court affirmed a trial court’s overruling of a defendant’s demurrer where the plaintiff alleged that the defendant municipality’s distribution and sale of water to city residents at a profit to itself through the operation of its waterworks reservoir was a proprietary function. Normally, governmental immunity is not a proper ground for a motion to strike, unless it is apparent from the face of the complaint that the municipality engaged in a governmental function while performing the acts and omissions complained of by the plaintiff.

When a municipality derives substantial revenue from its commercial use of municipal property, it has been considered nonetheless to be engaged in a proprietary function even if it reinvests that revenue back into the property's maintenance expenses or to pay down debt related to the property. See Carta v. Norwalk, supra, 108 Conn. at 702, 145 A. 158 (if municipality is deriving revenue or profit from renting its property, fact that it is " applied to the maintenance of the property and the reduction of the debt incurred in its construction or acquirement, or otherwise ultimately to the benefit of the public, is not sufficient to create the immunity"); Hourigan v. Norwich, supra, 77 Conn. at 365, 59 A. 487 (municipality " uses works constructed for the public benefit for its corporate profit, when the profits are to be applied to the maintenance of the works and the reduction of the debt incurred by the corporation in their construction"); but cf. Coleman v. Kootsillas, 456 Mich. 615, 621, 575 N.W.2d 527 (1998) (if revenue generated from activity " is used only to pay current and long-range expenses involved in operating the activity, this could indicate that the primary purpose of the activity was not to produce a pecuniary profit"). Accordingly, it has been stated that a municipality is engaged in a proprietary function when it acts " very much like private enterprise . . ."

Another possible theory of negligent liability under § 52-557n would lie under subsection (a)(1)(B) which provides for liability for "(B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." This codifies a common-law exception to municipal immunity recognized over the years by our case law, see Horrigan v. Norwich, 77 Conn. 358, 365 (1904); Richmond v. Norwich, 96 Conn.App. 582, 588 (1921); Abbot v. Bristol, 167 Conn. 143, 150 (1974); Elliot v. Waterbury, 245 Conn. 385, 413 (1998) and Martel v. Metropolitan District Comm., 275 Conn. 38, 53 (2005) rely on the codification of this common law set forth in subsection (a)(1)(B). The advantage to a plaintiff in being able to rely on negligence in the performance of a proprietary function is that it may prevent the municipality and possiblly its employees from relying on the discretionary activity exception to immunity also set forth in § 52-557n.

At common law in our state ". . . like obligations and duties are imposed upon a city performing proprietary functions as are imposed upon a company when governed by comparable statutory or charter language; Abbott v. Bristol, 167 Conn. 143, 150 (1974); also it has been held that "a town owning property for purposes of gain is liable for the negligence of its servants in dealing with that property." Horrigan v. Norwich, 77 Conn. 358, 365 (1904). As noted, the plaintiff alleges in his complaint and supports by his affidavit that at the time of the accident he worked for an organization that leased space from a school which the defendant Board admits it controlled and managed.