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.
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.
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.
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).
At such a proceeding the burden of proof is on the defendant to disprove those allegations of the complaint which he contests. Hourigan v. Norwich, 77 Conn. 358, 367-68, 59 A. 487 (1904). If the defendant simply claims that he is not liable, he assumes the burden of proving that fact. Bernhard v. Curtis, 75 Conn. 476, 481, 54 A. 213 (1903). If the defendant sustains his burden, the plaintiff is entitled to nominal damages only. Cardona v. Valentin, supra, 26." DeBlasio v. Aetna Life Casualty Co., supra, 401-402.
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: —
At such a proceeding the burden of proof is on the defendant to disprove those allegations of the complaint which he contests. Hourigan v. Norwich, 77 Conn. 358, 367-68, 59 A. 487 (1904). If the defendant simply claims that he is not liable, he assumes the burden of proving that fact. Bernhard v. Curtis, 75 Conn. 476, 481, 54 A. 213 (1903) — If the defendant sustains his burden, the plaintiff is entitled to nominal damages only. Cardona v. Valentin, Supra, 26. In the present case, the defendant's notice of defenses met the requirements of Practice Book 367. This being so, the court was correct in allowing the introduction of evidence concerning the issue of liability, despite the earlier entry of a default.
However, if property is not held and used by the city for municipal purposes exclusively, but in considerable part as a source of revenue, the city is responsible, as a private owner would be, for injury sustained through its negligence. Hourigan v. Norwich, 77 Conn. 358, 365, 59 A. 487; Oliver v. Worcester, 102 Mass. 489, 502; Chafor v. Long Beach, 174 Cal. 478, 163 P. 670; 6 McQuillin on Municipal Corporations, p. 5512. It has been held that where such revenue is derived from renting part of the property there is no liability for conditions in no wise connected with or consequent upon the renting but arising quite independently thereof. Bisbing v. AsburyPark, 80 N.J.L. 416, 78 A. 196, 33 L.R.A. (N.S.) 523.
"However, if property is not held and used by the city for municipal purposes exclusively, but in considerable part as a source of revenue, the city is responsible, as a private owner would be, for injury sustained through its negligence. Hourigan v. Norwich, 77 Conn. 358, 365, 59 A. 487; Oliver v. Worcester, 102 Mass. 489, 502, 3 Am.Rep. 485; Chafor v. Long Beach, 174 Cal. 478, 163 P. 670, L.R.A. 1917E, 685, Ann. Cas. 1918D, 106; 6 McQuillin on Municipal Corporations, p. 5512 . . . . In the present-case the amount of annual rental accruing to the city ($2,500) is such as to remove it, at least prima facie, from the category of such incidental income, and to import such a `special corporate benefit or pecuniary profit' as to exclude the application of the rule of governmental immunity. It may be that a further development of facts may alter the situation, but the plaintiff's evidence and the required inferences therefrom were sufficient to protect him from a nonsuit on this ground.
Id., 373. Furthermore, Connecticut courts recognize that if the act engaged in is operated for the corporate benefit or pecuniary profit of the municipality, governmental immunity is not applicable. Hannon v. Waterbury, 106 Conn. 13, 17, 18; Richmond v. Norwich, 96 Conn. 582, 588; Hourigan v. Norwich, 77 Conn. 358, 364, 365. In the present case a fee is charged for the privilege of using the parking facility.