Thus, this court has stated that a municipality's immunity from liability for injuries applies only when it "is engaged in the performance of a public duty for the public benefit, and not for its own corporate profit . . . ." Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11 (1921). Accordingly, the distinction between whether the municipality was acting in its governmental capacity, or in its corporate or proprietary capacity, was, under the common law, the litmus test for whether the municipality would be held liable for its negligence.
ts' operation of a water utility” [emphasis in original] ); Elliott v. Waterbury, supra, at 413, 715 A.2d 27 (noting that, in previous cases, governmental entities were held liable when “allegedly tortious conduct ... was inextricably linked to the operation of the water utility for corporate gain”); see also Considine v. Waterbury, supra, 279 Conn. at 852, 905 A.2d 70 (when defendant city leased clubhouse and restaurant to third party for its own corporate profit, defendant was not entitled to immunity for negligence claim by restaurant customer who was injured when he fell through window panel because maintenance of panel was connected to proprietary function); Carta v. Norwalk, 108 Conn. 697, 699, 701–702, 145 A. 158 (1929) (when defendant city rented beach property to third party for its own corporate profit, defendant was not entitled to immunity for claim arising from death of person who was fatally injured when he dove into water and struck his head on submerged concrete pier); Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11 (1921) (defendant city operating water utility was not entitled to immunity for claim by plaintiff who sought recovery for injuries suffered when she was shot by security guard defendant had hired to protect reservoir, which had been closed to public, from saboteurs); Hourigan v. Norwich, 77 Conn. 358, 366–67, 59 A. 487 (1904) (defendant city was not entitled to immunity for claim that it had negligently conducted work on reservoir, resulting in death of workman). In the present case, the jury's finding that the defendant's conduct in installing and maintaining the closed pipe gate that injured the plaintiff was inextricably linked to the defendant's proprietary water supply operation was supported by the evidence that the purpose of the gate was to protect the water supply.
It is well established that a proprietary function is an act done "in the management of [a municipality's] property or rights for its own corporate benefit or profit and that of its inhabitants. . . ." Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11 (1921). The municipal operation of a water utility for corporate profit is 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.
State v. Blake, 157 Conn. 99, 104, 249 A.2d 232; McCormick, Evidence (2d Ed.) 186. Although the second method is not allowed in a number of states, Connecticut adopted it in Richmond v. Norwich, 96 Conn. 582, 594, 115 A. 11, on the rationale that "[p]ersonal observation and personal knowledge are a more trustworthy reliance than general reputation." Both methods are appropriate to prove the character for violence of a homicide victim.
State v. Blake, 157 Conn. 99, 104, 249 A.2d 232. The law in this state also allows proof of character by the testimony of those who have had an opportunity to form, and have formed, an opinion as to whether the accused possessed a particular character trait. State v. Gelinas, 160 Conn. 366, 368, 279 A.2d 552; State v. Blake, supra, 104; see Richmond v. Norwich, 96 Conn. 582, 593, 115 A. 11, for the reasoning behind the rule; see also 7 Wigmore, Evidence (3d Ed.) 1980, 1986. Whether or not the accused produces testimony of reputation or opinion to prove a trait, the prosecution may not use specific acts of misconduct to disprove the trait. Richmond v. Norwich, supra, 597; State v. Gilligan, supra; see Verdi v. Donahue, 91 Conn. 448, 454, 99 A. 1041, for the rationale of this rule.
See 29 Am.Jur.2d, Evidence, 345; McCormick, Evidence 158, p. 334 n. 9. But, "Connecticut, in Richmond v. Norwich, 96 Conn. 582, 593, 115 A. 11, adopted the better, although probably still the minority, rule that character may also be proved by the opinion evidence of those who have been shown to have had an opportunity to form, and who have formed, an opinion as to the character of the . . . [individual] with respect to the trait or traits in issue. This rule is approved in 29 Am.Jur.2d, Evidence, 345; 7 Wigmore, . . . [Evidence (3d Ed.)] 1980, 1981; McCormick, . . . [Evidence] 158, p. 334 n. 9.
Character or disposition is an attribute actually possessed, while reputation represents the community's belief as to the actual character or disposition. 5 Wigmore, op. cit. 1608-1610; 7 id. 1981e, p. 145; 1 id. 52, pp. 446, 447. Connecticut, in Richmond v. Norwich, 96 Conn. 582, 593, 115 A. 11, adopted the better, although probably still the minority, rule that character may also be proved by the opinion evidence of those who have been shown to have had an opportunity to form, and who have formed, an opinion as to the character of the accused with respect to the trait or traits in issue. This rule is approved in 29 Am.Jur.2d, Evidence, 345; 7 Wigmore, op. cit. 1980, 1981; McCormick, op. cit. 158, p. 334 n. 9.
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.
Provision of utilities for profit, such as the operation of a water works, has been ruled proprietary. Abbott v. Bristol, 167 Conn. 143 (1974); Richmond v. City of Norwalk, 96 Conn. 582 (1921); Hourigan v. Norwich, 77 Conn. 358 (1904). A proprietary function is an act "done in the management of [a city's] property or rights for its own corporate benefit or profit and that of its inhabitants."