ROGERS, C.J.

The primary issue that we must resolve in this certified appeal is whether the Appellate Court properly affirmed the judgment of the trial court setting aside the jury verdict in favor of the plaintiffs on the ground that the plaintiffs failed to prove the imminent harm to identifiable persons exception to the defense of governmental immunity. The named plaintiff, Tracey Haynes, individually and as the parent and next friend of Jasmon Vereen, her then minor son,1 brought this action alleging that Vereen had been injured when he was pushed into the jagged edge of a broken locker at Middletown High School (school). The defendant, the city of Middletown, raised the special defense that it was immune from liability pursuant to General Statutes § 52-557n (a)(2)(B).2 The case was tried to a jury. After the plaintiffs rested their case, the defendant filed a motion for a directed verdict on the ground of governmental immunity. The plaintiffs opposed the motion on the ground that the exception to governmental immunity for acts or omissions that subject identifiable persons to imminent harm applied. The trial court deferred action on the defendant's motion until after the jury returned its verdict, but the court did not instruct the jury on the defendant's special defense of governmental immunity or the plaintiffs' claim that the exception applied. The jury ultimately returned a verdict in favor of the plaintiffs. The defendant then filed a motion to set aside the verdict and to render judgment for the defendant on the ground of governmental immunity, which the trial court granted. The plaintiffs appealed to the Appellate Court, which affirmed the judgment of the trial court on the alternative ground that the plaintiffs had not pleaded the imminent harm to identifiable persons exception in its reply to the defendant's special defense. Haynes v. Middletown, 122 Conn.App. 72, 82, 997 A.2d 636 (2010). The plaintiffs then appealed to this court, which reversed the judgment of the Appellate Court and remanded the case to that court with direction to allow the parties to brief the issue on which the Appellate Court had resolved the appeal. Haynes v. Middletown, 306 Conn. 471, 475, 50 A.3d 880 (2012). On remand, the Appellate Court ordered the parties to submit supplemental briefs on that issue, but ultimately concluded that the trial court properly had concluded that there was insufficient evidence of imminent harm to Vereen on the basis of the arguments that the parties had originally presented on appeal. Haynes v. Middletown, 142 Conn.App. 720, 726-27, 66 A.3d 899 (2013). This court then granted the plaintiffs' petition for certification to appeal on the following issue: "Did the Appellate Court properly determine that the trial court judgment setting aside the jury verdict in favor of the plaintiffs should be affirmed on the ground that the plaintiffs had not satisfied the identifiable person, imminent harm exception to governmental immunity?" Haynes v. Middletown, 309 Conn. 919, 919-20, 70 A.3d 1067 (2013). We conclude that, on the basis of the plaintiffs' evidence, a properly instructed jury reasonably could conclude that the defendant's conduct had subjected an identifiable person to imminent harm. We further conclude that, because the jury was not instructed that it was required to make this finding, the case must be remanded to the trial court for a new trial. Accordingly, we reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. "On March 15, 2005, following their physical education class, Vereen and other students were changing their clothes in the boys' locker room. Although the school had informed students in writing that horseplay in the locker room was not permitted, Vereen and other students were engaged in horseplay at the time.3 Another student, Andre Francis, pushed Vereen into a locker with an exposed jagged and rusted edge. Vereen suffered a cut on his arm that left a scar. According to Vereen and Francis, the locker had been in a broken condition since the beginning of the school year.

"As a result of Vereen's injury, the plaintiffs commenced an action against the defendant seeking monetary damages. The plaintiffs alleged that Vereen was a student at the school who was in the locker room with other students on March 15, 2005, for a physical education class. They also alleged that there was a broken locker with an exposed jagged edge in the locker room and that the locker had been in that condition long enough for the exposed metal to have become rusty. Moreover, Vereen was injured when he was pushed into the broken locker during school hours. The complaint also alleged that the defendant and its agents, servants or employees were negligent, and that the action was being brought pursuant to ... § 52-557n. The defendant denied the plaintiffs' allegations of negligence and asserted the special defenses of governmental immunity and comparative negligence. The plaintiffs replied to the defendant's special defenses with a general denial.

"The case was tried to a jury in November, 2008. At the conclusion of the plaintiffs' case, the defendant filed a written motion for a directed verdict `on the ground that the plaintiffs had presented no evidence to show that the alleged actions of the defendant were governed by any policies or procedures, as alleged in their complaint. The defendant argued that the lack of any such evidence demonstrated that the alleged negligent actions were discretionary and not ministerial, and that the doctrine of discretionary governmental immunity therefore would bar the plaintiffs' recovery.' Counsel for the plaintiffs acknowledged that the alleged negligent acts were discretionary in nature but that the identifiable person, imminent harm exception to governmental immunity applied because the condition of the locker presented an imminent harm to an identifiable class of victims, i.e., students in the locker room.4 The court reserved judgment on the defendant's motion for a directed verdict, and the defendant presented its case.

"None of the parties filed a request to charge with respect to governmental immunity or any exception thereto, and the [trial] court did not instruct the jury on those legal principles. On November 25, 2008, the jury returned a verdict in favor of Vereen, although it found him to have been 33 percent responsible for his injury. On December 2, 2008, the defendant filed a motion to set aside the verdict and to render judgment in its favor. After the parties had briefed the issue and presented the court with oral arguments, the court issued a memorandum of decision on March 31, 2009; see Practice Book § 16-38; in which the court granted the defendant's motion to set aside the verdict and rendered judgment in its favor.5

"The plaintiffs appealed to [the Appellate Court] claiming that `the [trial] court improperly set aside the verdict on the ground of governmental immunity because (1) the defendant waived that defense by failing to request a charge on municipal immunity and (2) there was sufficient evidence of imminent harm for the plaintiffs' claim to fall within the identifiable person, imminent harm exception to the immunity generally afforded municipalities for the negligent performance of discretionary acts.' Haynes v. Middletown, supra, 122 Conn.App. at 73, 997 A.2d 636." (Footnotes altered.) Haynes v. Middletown, supra, 142 Conn.App. at 723-25, 66 A.3d 899. The Appellate Court ultimately concluded that "the defendant did not waive its special defense of governmental immunity by failing to request a jury instruction and that the [trial] court properly determined that the plaintiffs had not produced sufficient evidence of imminent harm to prevail on the exception to governmental immunity for discretionary acts." Id. at 726-27, 66 A.3d 899.

This certified appeal followed. The plaintiffs contend that the Appellate Court improperly determined that, as a matter of law, they had failed to prove that the defendant's conduct subjected an identifiable person to imminent harm. The plaintiffs further contend that, if this court concludes that the Appellate Court's determination was incorrect, this court must reinstate the jury verdict because the defendant waived its right to a jury determination on the issue when it failed to ask the trial court for a jury instruction on its governmental immunity defense. The defendant disputes the plaintiffs' first claim and contends that the second claim is not reviewable because it was not encompassed by the certified question. It further claims that, if the second claim is reviewable, it is meritless because it was the plaintiffs' obligation to ask the trial court for a jury instruction on the imminent harm to identifiable persons exception. We conclude that the Appellate Court improperly determined that, on the basis of the evidence that the plaintiffs presented at trial, no reasonable juror could find that the defendant's conduct had subjected an identifiable person to imminent harm. We further conclude that the issue of whether this court may reinstate the jury verdict or, instead, must remand the case to the trial court for a new trial is reviewable, and that the case must be remanded to the trial court for a new trial so that the fact finder may make the determination as to whether the defendant's conduct subjected identifiable persons to imminent harm.

We first address the question of whether the Appellate Court properly determined that the plaintiffs had failed to meet their burden of proving the imminent harm to identifiable persons exception to governmental immunity. The defendant does not dispute that Vereen, as a student in a public school, was in a class of identifiable persons for purposes of the imminent harm to identifiable persons exception. See Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1(1994) (public schoolchildren are "an identifiable class of beneficiaries" of school system's duty of care for purposes of imminent harm to identifiable persons exception). Accordingly, our focus is on whether the plaintiffs made out a prima facie case that the defendant's acts or omissions subjected Vereen to imminent harm.

We begin with the standard of review. "The standard of review applied to directed verdicts is clear. A directed verdict is justified if, on the evidence the jury reasonably and legally could not have reached any other conclusion.... In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff.... While it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.... The standard of review governing a motion for judgment notwithstanding the verdict is the same because a motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict." (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001).

We next review the law governing governmental immunity and the imminent harm to identifiable persons exception to governmental immunity. "[Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages.... One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.... [Section] 52-557n (a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." (Citation omitted; footnote omitted; internal quotation marks omitted.) Edgerton v. Clinton, 311 Conn. 217, 229, 86 A.3d 437 (2014).

"This court has recognized an exception to discretionary act immunity that allows for liability when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.... This identifiable person-imminent harm exception has three requirements: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.... All three must be proven in order for the exception to apply." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id. at 230-31, 86 A.3d 437. "[T]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court ... [unless] there are unresolved factual issues material to the applicability of the defense ... [where] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107-108, 708 A.2d 937 (1998).

In the present case, the trial court concluded that the plaintiffs had failed to establish the imminent harm to identifiable persons exception for two reasons. First, the court held that, pursuant to this court's decision in Heigl v. Board of Education, 218 Conn. 1, 8, 587 A.2d 423 (1991), the defendant had no "specific duty to supervise high school students." The trial court further concluded that the plaintiffs had not pleaded that there was a need for supervision in the present case because the students engaged in roughhousing or horseplay in the vicinity of the defective locker, and they had presented no evidence to support such a claim.

Second, the trial court concluded that the defective locker, in and of itself, did not constitute an imminent harm. The court rejected the plaintiffs' claim that the locker constituted an imminent harm because the danger created by the locker could not have occurred at any time in the future, but was limited both temporally and geographically. See Burns v. Board of Education, supra, 228 Conn. at 650, 638 A.2d 1 (icy conditions on school walkway constituted imminent harm because "the accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly treacherous area of the campus" [internal quotation marks omitted]); see also Purzycki v. Fairfield, supra, 244 Conn. at 110, 708 A.2d 937 (child's unsupervised use of school hallway during recess constituted imminent harm because it involved "a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse [the hallway]"). The trial court concluded that, instead, because the locker could have caused an injury at any time, the present case was governed by Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989), in which this court held that a harm that "could have occurred at any future time or not at all" was not an imminent harm.

With respect to the trial court's first ground for rejecting the plaintiffs' claim that the defendant's conduct subjected identifiable persons to imminent harm, we conclude that the trial court's reliance on this court's decision in Heigl v. Board of Education, supra, 218 Conn. at 1, 587 A.2d 423, was misplaced. In Heigl, this court rejected the plaintiffs' claim that the defendant had a general duty "to supervise the students during the hours for school attendance...." Id. at 7, 587 A.2d 423; see also id. at 8, 587 A.2d 423 (this court has never "stated that a board of education has a specific duty to supervise high school students"). In Burns v. Board of Education, supra, 228 Conn. at 650-51, 638 A.2d 1, however, this court distinguished Heigl on the ground that Heigl had "turned on the public/private duty distinction of the public duty doctrine" and did not involve the "foreseeable class of victim exception to governmental immunity, which applies irrespective of whether the official's duty is technically public or private in nature." This court held in Burns that school officials do have a general duty "to protect the pupils in [their] custody from dangers that may reasonably be anticipated."6 Id. at 649, 638 A.2d 1. Burns did not limit this holding to grade school students.7 Accordingly, we conclude that Heigl is inapplicable when the plaintiff has made a colorable claim that the defendant's failure to supervise a high school student has subjected the student to imminent harm.8

We next address the trial court's conclusion, which the Appellate Court upheld, that the plaintiffs had failed to establish that the defective locker posed a risk of imminent harm because the locker could have caused an injury "at any future time or not at all." Evon v. Andrews, supra, 211 Conn. at 508, 559 A.2d 1131. Although we agree with the plaintiffs that the facts of the present case are very similar to the facts in Purzycki, in which this court concluded that the injured student had been subjected to imminent harm because the case involved "a limited time period and limited geographical area"; Purzycki v. Fairfield, supra, 244 Conn. at 110, 708 A.2d 937; we conclude that the portion of this court's decision in Burns, on which Purzycki relied, holding that a harm is imminent when the condition causing the risk of harm is temporally limited and the risk of harm is "significant and foreseeable" should be overruled.9 Burns v. Board of Education, supra, 228 Conn. at 650, 638 A.2d 1. To explain why, a closer review of this court's decisions in Evon, Purzycki and Burns is required.

In Evon v. Andrews, supra, 211 Conn. at 502, 559 A.2d 1131, the plaintiffs alleged that their decedents had been killed when a fire destroyed their residence. They claimed that the city of Waterbury and its officers "had been negligent in failing properly to enforce various statutes, regulations and codes concerning the maintenance of rental dwellings"; id.; and that this negligence had subjected readily identifiable persons — the decedents — to imminent harm. Id. at 507, 559 A.2d 1131. This court concluded that "[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future.... This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v. Groton, [178 Conn. 520, 523, 423 A.2d 165 (1979) ]. The present allegations do not even rise to the level of the imminence we rejected in Shore v. Stonington, [187 Conn. 147, 153, 444 A.2d 1379 (1982) ], in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiff's decedent. In the present instance, the fire could have occurred at any future time or not at all. We cannot accept the proposition that the plaintiffs' decedents in this case were readily identifiable victims subject to imminent harm. As we observed in Shore v. Stonington, supra, at 157, 444 A.2d 1379, [t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Citation omitted; internal quotation marks omitted.) Evon v. Andrews, supra, at 508, 559 A.2d 1131.

Thus, this court's decision in Evon implies that, if a harm is not so likely to happen that it gives rise to a clear duty to correct the dangerous condition creating the risk of harm immediately upon discovering it, the harm is not imminent. See Tryon v. North Branford, 58 Conn.App. 702, 712, 755 A.2d 317 (2000) (under Evon, imminent harm is "harm ready to take place within the immediate future"). This reading of Evon is consistent both with the meaning of the word "imminent"10 and with our case law holding that the imminent harm to identifiable persons exception "represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319, 907 A.2d 1188 (2006); Durrant v. Board of Education, 284 Conn. 91, 106, 931 A.2d 859 (2007) (same); Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006) (same); Shore v. Stonington, supra, 187 Conn. at 153, 444 A.2d 1379 ("[W]here the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal.... We have recognized the existence of such duty in situations where it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm." [Citation omitted.]); see also Bonington v. Westport, 297 Conn. 297, 314, 999 A.2d 700 (2010) ("Imminent does not simply mean a foreseeable event at some unspecified point in the not too distant future. Rather, we have required plaintiffs to identify a discrete place and time period at which the harm will occur."). This interpretation of Evon is also consistent with our cases recognizing that "[t]he discrete person/imminent harm exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." (Internal quotation marks omitted.) Evon v. Andrews, supra, 211 Conn. at 507, 559 A.2d 1131; see also Durrant v. Board of Education, supra, at 106, 931 A.2d 859 (same). This is because "[t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Internal quotation marks omitted.) Evon v. Andrews, supra, at 508, 559 A.2d 1131.

In Burns v. Board of Education, supra, 228 Conn. at 650, 638 A.2d 1, however, this court interpreted the discussion of imminent harm in Evon to apply to harms arising from dangerous conditions that are temporary, if the risk of harm is significant and foreseeable. In Burns, the plaintiffs, David Burns and his mother, Darlene Vrendburgh, alleged that Burns had been injured in a fall on an icy high school courtyard during school hours. Id. at 642, 638 A.2d 1. The plaintiffs further alleged that the defendant's negligent failure to salt and sand the icy conditions had subjected an identifiable victim — Burns — to imminent harm. Id. at 645, 638 A.2d 1. This court concluded that, unlike the risk of fire that was at issue in Evon v. Andrews, supra, 211 Conn. at 501, 559 A.2d 1131, "this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly treacherous area of the campus.11 Further, the potential for harm from a fall on ice was significant and foreseeable." (Footnote added; internal quotation marks omitted.) Burns v. Board of Education, supra, at 650, 638 A.2d 1; see also id. at 649, 638 A.2d 1 (municipal defendant had "the duty to protect ... pupils ... from dangers that may reasonably be anticipated"). This court concluded that, under these circumstances, the defendant's conduct came within the imminent harm to identifiable persons exception to governmental immunity.12 Id. at 650, 638 A.2d 1. Similarly, this court held in Purzycki that the risk of injury from the unsupervised use of school hallways during recess was imminent under Burns because the case involved "a limited time period and limited geographical area" and "the risk of harm was significant and foreseeable...." Purzycki v. Fairfield, supra, 244 Conn. at 110, 708 A.2d 937.

Thus, purporting to apply this court's holding in Evon v. Andrews, supra, 211 Conn. at 508, 559 A.2d 1131, that a risk of harm is not imminent if the harm "could have occurred at any future time or not at all," the court in Burns improperly concluded that imminent harms are harms that cannot happen in the distant future because the condition causing the risk of harm is temporary. Contrary to the holding in Burns, however, this court did not hold in Evon that imminent harms are harms that can only happen in the immediate future because they arise from temporary conditions. Indeed, this interpretation of Evon defies common sense. If a condition created only a low risk of harm, the fact that the condition was temporary would not somehow convert a harm that might well have never occurred into one that was imminent.13 Moreover, the "significant and foreseeable" standard — for which the court in Burns provided no citation of authority — appears to fall somewhere between the demanding imminent harm standard and the ordinary negligence standard, under which a person may be held liable for an injury if there was an "unreasonable risk" that it would occur. Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 337-38, 87 A.3d 546 (2014) ("[T]he test for foreseeability is would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result.... As used in this context, the phrase likely to result means that there was an unreasonable risk that the injury would result." [Citation omitted; internal quotation marks omitted.]). Finally, we note that, because the holding in Burns that a harm is imminent if it can only occur in the near future disregards the logic underlying this court's holding in Evon, namely, that a harm is imminent if it is so likely to happen that the duty to act immediately is clear and unequivocal, application of the Burns standard has led to confusion and inconsistent results in cases involving temporary but recurring dangerous conditions. Compare Colon v. Board of Education, 60 Conn.App. 178, 187, 758 A.2d 900 (risk of harm from opening door into school hallway was imminent because "danger presented was limited in duration, as it could happen only when students are in the hallway in a dangerous spot"), cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), with Haynes v. Middletown, supra, 142 Conn.App. at 737, 66 A.3d 899 (risk of harm from jagged edge of broken locker to which students were exposed when they were in locker room for brief period after gym class was not imminent because harm could have happened at any future time or not at all).14

Accordingly, we conclude that this court in Burns incorrectly held that a foreseeable harm may be deemed imminent if the condition that created the risk of harm was only temporary and the risk was significant and foreseeable. Our statement in Evon v. Andrews, supra, 211 Conn. at 508, 559 A.2d 1131, that a harm is not imminent if it "could have occurred at any future time or not at all" was not focused on the duration of the alleged dangerous condition, but on the magnitude of the risk that the condition created. Accordingly, the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.15 We therefore overrule Burns and Purzycki to the extent that they adopted a different standard.16

With this standard in mind, we turn to the evidence in the present case. The evidence showed that the school had informed students in writing at the beginning of the school year that horseplay in the locker room was prohibited. There was also evidence that school officials knew that horseplay in the locker rooms was an ongoing issue. In addition, there was evidence that the locker was in a dangerous condition and that it had been in that condition since the beginning of the school year, seven months before the injury occurred. The jury reasonably could have inferred from this evidence that the dangerous condition was apparent to school officials.17 Although this evidence is far from compelling, we are unable to conclude that no reasonable juror could find that it was apparent to school officials that, in combination, the ongoing problem of horseplay in the locker room and the presence of the broken locker were so likely to cause an injury to a student that the officials had a clear and unequivocal duty to act immediately to prevent the harm either by supervising the students while they were in the locker room to prevent horseplay or by fixing the broken locker.18 Accordingly, we conclude that the Appellate Court improperly upheld the ruling of the trial court granting the defendant's motion to set aside the verdict in favor of the plaintiffs and to render judgment in favor of the defendant on the ground that no reasonable juror could have found that the plaintiffs had established the imminent harm to identifiable persons exception to governmental immunity.

We next turn to the plaintiffs' claim that this court should reinstate the jury verdict in their favor because the defendant waived its right to a jury determination on the imminent harm to identifiable persons exception by failing to request that the jury be instructed on its governmental immunity defense.19 We conclude that the case must be remanded to the trial court so that the fact finder can make a determination on this issue.

The following procedural history, some of which is previously set forth in this opinion, is relevant to this claim. After the plaintiffs rested their case at trial, the defendant filed a motion for a directed verdict, claiming that the plaintiffs' claim was barred by governmental immunity because the plaintiffs had not established that the defendant's conduct with regard to the broken locker was ministerial rather than discretionary. Counsel for the plaintiffs conceded that the defendant's conduct was discretionary, but contended that it fell into the imminent harm to identifiable persons exception to governmental immunity. Counsel for the plaintiffs also indicated that the defendant's motion was a "bit of a surprise" at that point in the proceedings because the defense of governmental immunity is usually raised in a motion to strike or a motion for summary judgment and that, if the defendant intended to go "forward with the defense, it would have to be decided by the jury." In addition, counsel for the plaintiffs pointed out that, although the defendant had pleaded the special defense of governmental immunity, the defense had been "abandoned throughout this litigation" and that the defendant had pursued no discovery on the issue. The defendant did not contend that there was insufficient evidence to support the imminent harm to identifiable persons exception, but contended that that exception applied only to the conduct of municipal employees, not to municipalities themselves.20

The trial court did not rule on the defendant's motion for a directed verdict immediately, but asked the defendant if it intended to present evidence. The defendant responded that it did. After the close of the defendant's evidence, the case was presented to the jury without any instruction on the defense of governmental immunity or the exception to that defense for conduct that subjects identifiable persons to imminent harm. After the jury returned a verdict for the plaintiffs, the defendant filed a motion to set aside the verdict and to render judgment for the defendant on the ground of governmental immunity, which the trial court granted. At the same time, the trial court granted the defendant's original motion for a directed verdict.

The plaintiffs contend that, because the defendant did not request a jury instruction on its defense of governmental immunity, it waived its right to a jury determination on the issue and, therefore, if this court determines that there was sufficient evidence to submit the imminent harm to identifiable persons exception to the jury, we should reinstate the jury verdict instead of remanding the case for a new trial. The defendant contends that this issue was not encompassed by the certified question. The defendant further contends that, because the plaintiffs conceded that the defendant's conduct with regard to the broken locker was discretionary, the defendant had established the defense of governmental immunity and there was no reason for it to ask for a jury charge on that question. Rather, the defendant contends, it was up to the plaintiffs to ask the trial court for a jury charge on the imminent harm to identifiable persons exception.

We conclude that, under the unusual circumstances of the present case, the fairest course is to proceed as if the trial court had never submitted the case to the jury, but had granted the defendant's original motion for a directed verdict when it was submitted. The trial court essentially took two inherently contradictory positions on the defendant's motion. On the one hand, by deferring its ruling on the motion until after the jury returned its verdict, the court left open the question of whether the plaintiffs had established the imminent harm to identifiable persons exception to the defendant's governmental immunity defense. Cf. Practice Book § 16-37 ("[w]henever a motion for a directed verdict ... is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion"). On the other hand, by failing to submit the issue to the jury, the court effectively took the position that the evidence was insufficient to support the exception.21 Indeed, the defendant contends on appeal to this court that the trial court properly declined to instruct the jury on the exception because it was not supported by the evidence. See Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 485, 958 A.2d 1195 (2008) ("If ... the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.... Thus, a trial court should instruct the jury in accordance with a party's request to charge [only] if the proposed instructions are reasonably supported by the evidence." [Internal quotation marks omitted.]). If the trial court believed that there was insufficient evidence to support the imminent harm to identifiable persons exception as a matter of law, however, it should not have submitted the case to the jury, because the plaintiffs could prevail only if they established the exception.

We recognize that, because the plaintiffs had conceded that the defendant would be immune pursuant to § 52-557n (a)(2)(B) unless they established the imminent harm to identifiable persons exception, the burden was arguably on them to request an instruction on the exception. The defendant has never claimed, however, that the plaintiffs waived the exception by failing to request an instruction on it.22 Rather, it has claimed only that the plaintiffs failed to prove that the exception applied. Indeed, the bulk of the defendant's motion to set aside the verdict and to render judgment in favor of the defendant — which, obviously, was filed after the jury returned its verdict in the plaintiffs' favor — was devoted to refuting the applicability of the exception on the merits. By disputing the merits of the plaintiffs' contention that the exception applied, the defendant implicitly conceded that the plaintiffs could prevail on their negligence claim if the trial court denied the motion to set aside the verdict on the merits. Thus, this is not a case in which a party has simply failed to raise a claim in the trial court. The plaintiffs expressly raised the imminent harm to identifiable persons exception and both the defendant and the trial court proceeded as if the merits of that claim were before the court, even after the case was submitted to the jury without any instruction on the exception.

Although we agree with the plaintiffs that, under these unique circumstances, the trial court and the defendant bear some responsibility for the failure to submit the exception to the jury, we reject the plaintiffs' claim that they are entitled to reinstatement of the jury verdict. Rather, because both parties — as well as the trial court — bear some blame for the confusion, we conclude that the fairest course is to proceed as if the trial court failed to instruct the jury on the exception because it had concluded that the exception was not supported by the evidence. In other words, we treat the case as if the trial court had granted the defendant's original motion for a directed verdict and the case was never submitted to the jury. Accordingly, we conclude that we should remand the case to the trial court so that the fact finder may make a finding on the defendant's special defense of governmental immunity and the imminent harm to identifiable persons exception to that defense.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial.

In this opinion PALMER, ZARELLA, McDONALD and ESPINOSA, Js., concurred.

EVELEIGH, J., concurring.

I concur in the judgment, under the unusual circumstance existing in this case, remanding this case to the trial court for a new trial. I write separately, however, to express my concern that our law surrounding the identifiable person, imminent harm exception to municipal immunity is, to put it mildly, less than clear. I agree with the majority that it is necessary to partially overrule our reasoning in Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1 (1994), and Purzycki v. Fairfield, 244 Conn. 101, 106-10, 708 A.2d 937 (1998).1 Nevertheless, I would conclude that in doing so, this court has knocked over a large storefront in the Potemkin village that is our jurisprudence in this area. I agree with the majority that a reasonable juror could find that "the ongoing problem of horseplay in the locker room and the presence of the broken locker were so likely to cause an injury to a student that the officials had a clear and unequivocal duty to act immediately to prevent the harm...." I similarly agree with the majority that whether an action or circumstance qualifies as an "imminent harm" should not be determined by looking at whether the risk of harm was temporary. I write separately because, as a result of this decision, I cannot now parse any meaningful distinction between the cases in which this court has held that a jury reasonably could conclude that this exception to immunity should apply, and cases in which this court has rejected its potential application as a matter of law. Further, I am not sure that the new definition for "imminent harm" will fully clarify the distinction drawn in the previous cases.

In order to explain my reasoning, I look first to the case that heralded the creation of this exception, Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979). In Sestito, the plaintiff was the administratrix of the estate of the decedent, a man who had been shot and killed following an altercation outside of a bar in Groton. Id. at 521-23, 423 A.2d 165. While the altercation that led to the decedent's death, which started out as a brawl between at least four men, was occurring, a municipal police officer was patrolling the relevant area in a police car. Id. at 522-23, 423 A.2d 165. As the officer continued to drive around the area, he observed a group of seven men, including the decedent, gathering in the parking lot outside of a restaurant. Id. He then observed two other men exit the bar and join the group, one of whom began to argue with the decedent. Id. at 523, 423 A.2d 165. As the officer continued to drive, he observed the argument devolve into a physical fight. Id. The officer did not approach, but instead proceeded to park his vehicle in a parking lot across from the restaurant. Id. While parking his vehicle, he heard gunshots. Id. The officer notified the police station but, receiving no further instructions, stayed in the lot across from the restaurant. Id. As the officer testified at trial, over at the restaurant, "`[i]t was a melee, everybody was running in every direction.'" Id. The officer "admitted [that] he could have driven unimpeded into the lot [where the altercation was occurring]. Instead, he waited until the decedent was shot by one of the other men, and then drove over and arrested the assailant." Id. This court concluded that, "[t]he facts presented provide sufficient basis to send the question of [the officer's] liability, and hence of the town's liability, to the jury." Id. at 527, 423 A.2d 165.

Although Sestito is recognized as the case that created the identifiable person, imminent harm exception as we know it, this was not expressly recognized by the court until it decided Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982). In that case, a municipal police officer had pulled over a driver who was driving erratically. Id. at 150-51, 444 A.2d 1379. Although the facts gave rise to the inference that the driver was intoxicated, the police officer did not arrest the driver, but instead informed him that "if he wanted to keep his driver's license, he had better slow down and should let his girlfriend drive." Id. at 150, 444 A.2d 1379. Approximately one hour later, the driver struck a car being driven by the plaintiff's decedent, which ultimately caused the decedent's death. Id. at 150-51, 444 A.2d 1379. The plaintiff brought an action against the town of Stonington, claiming that its police officer had acted negligently in failing to enforce the motor vehicle laws of the state of Connecticut against the driver who caused the decedent's death. Id. at 148-50, 444 A.2d 1379. The court stated: "There is ... authority for the proposition that where the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal.... We have recognized the existence of such duty in situations where it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm. See Sestito v. Groton, [supra, 178 Conn. at 528, 423 A.2d 165]." (Citation omitted.) Shore v. Stonington, supra, at 153, 444 A.2d 1379. The court in Shore distinguished Sestito, noting that the plaintiff could not show that the officer "could have been aware that [the driver's] conduct threatened an identifiable victim with imminent harm." Id. at 153-54, 423 A.2d 165. The court did not explain its reasoning on this point.

In Evon v. Andrews, 211 Conn. 501, 502, 559 A.2d 1131 (1989), the next case in which this court considered the application of the identifiable person, imminent harm exception, the court determined that the exception did not apply in a situation where the city of Waterbury had allegedly been negligent in enforcing various laws, regulations, and codes in the maintenance of "rental dwellings." As a result, the plaintiff's claimed, their decedents had perished in a fire that destroyed a multifamily rental unit that "contained numerous conditions that violated state regulations and state and local building codes...." Id. at 505, 559 A.2d 1131. In deciding that the exception did not apply, the court acknowledged its earlier decisions in Shore and Sestito, and noted that "[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. The class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of `identifiable persons' within the meaning of [Shore]. Furthermore, the plaintiffs' decedents were not subject to `imminent harm.' This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v. Groton, [supra, 178 Conn. at 522-23, 423 A.2d 165]. The present allegations do not even rise to the level of the imminence we rejected in [Shore], in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiff's decedent. In the present instance, the fire could have occurred at any future time or not at all. We cannot accept the proposition that the plaintiffs' decedents in this case were readily identifiable victims subject to imminent harm." Evon v. Andrews, supra, at 508, 559 A.2d 1131. Thus, the court in Evon concluded independently that, for purposes of the identifiable person, imminent harm exception to municipal liability, (1) the plaintiffs were not identifiable persons and (2) the plaintiffs were not subject to imminent harm. Id.

These aforementioned cases are the precedents that were available to this court at the time that it decided Burns v. Board of Education, supra, 228 Conn. at 640, 638 A.2d 1. In that case, "the plaintiff school child slipped and fell due to icy conditions on a main accessway of the school campus, during school hours, while the child was compelled by statute to be on those school grounds." Id. at 650, 638 A.2d 1. The court distinguished Evon by noting that "this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus. Further, the potential for harm from a fall on ice was significant and foreseeable." Id. In my view, this language in Burns was clearly aimed at distinguishing Evon, in which this court concluded that "the fire could have occurred at any future time or not at all." Evon v. Andrews, supra, 211 Conn. at 508, 559 A.2d 1131. In Burns, this court also decided that, at least in certain contexts, an individual person may be considered an "identifiable person" if he or she falls within a certain class of victim intended to be the beneficiary of the relevant duty of care. See Burns v. Board of Education, supra, at 647-48, 638 A.2d 1.

In Purzycki v. Fairfield, supra, 244 Conn. at 101, 708 A.2d 937, which was decided several years after Burns, the court primarily relied on Burns, noting that in that case, "it was critical to our conclusion that governmental immunity was not a defense that `the danger was limited to the duration of the temporary... condition ... [and that] the potential for harm ... was significant and foreseeable.' Burns v. Board of Education, supra, 228 Conn. at 650, 638 A.2d 1. Similarly, the present case involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision." Purzycki v. Fairfield, supra, at 110, 708 A.2d 937.

The majority now concludes that the distinctions that this court has previously drawn with regard to the issue of whether a harm was "imminent" in cases such as Evon, Burns, and Purzycki were artificial, concluding that "the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." While I agree with the majority that it is folly to consider a harm "imminent" only if it is limited by its nature to a certain time and place, in my opinion the majority's solution only throws our jurisprudence regarding this exception into even greater confusion. In the time since Evon, Burns, and Purzycki were decided, this court has reframed the exception into one that contains three distinct elements: "By its own terms, this test [for determining whether discretionary immunity is abrogated by the identifiable person, imminent harm exception] requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to harm." (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 156 n. 7, 95 A.3d 480 (2014). In my view, the conclusion adopted by the majority collapses the apparentness and imminent prongs into one, and it does so in a way that only further tangles a doctrine which is already full of snarls.

For example, under this test, the majority observes that "the risk of injury from an unprotected buzz saw in a classroom occupied by roughhousing fifteen year old children would clearly be imminent." See footnote 15 of the majority opinion. This suggests, in my mind, that the majority believes that such a set of circumstances would represent an imminent harm as a matter of law. Yet, it concludes, it is up to a jury to determine whether keeping an unguarded locker with a jagged edge in a room full of roughhousing fifteen year old children presents an imminent harm. I do not see a meaningful distinction between these two situations. For that matter, I do not see how either of these two situations poses more of an imminent harm to an identifiable group of people than does, say, a drunk driver on the highway to others driving on the road, and yet, that is what this court decided in Shore v. Stonington, supra, 187 Conn. at 152-54, 444 A.2d 1379. Similarly, in a recent decision, Edgerton v. Clinton, 311 Conn. 217, 237-39, 86 A.3d 437 (2014), this court implied that the exception did not apply because the plaintiff could not pinpoint the precise moment during an ongoing car chase between civilians where it became apparent to the town's dispatcher that the plaintiff's decedent was in imminent harm, even though the dispatcher testified that she was aware that civilians should never engage in car chases, and even though an expert testified that dispatchers are trained to understand that civilian car chases are inherently dangerous. See also id. at 247-51 and n. 10, 86 A.3d 437 (Eveleigh, J., dissenting). Yet, in the present case, this court concludes that, even though there is no claim that the defendant, the city of Middletown, or any of its employees were aware that, from 9:06 to 9:11 a.m., the named plaintiff's minor son, Jasmon Vereen, was being subjected to imminent harm, such risk of harm should have been apparent to them.

While I agree with this result, I fail to understand the principled distinction that can be made between this set of circumstances and that faced by this court in cases such as Shore or Edgerton. In my view, the test for determining whether a harm was imminent should be whether it was, or should have been, apparent to the municipal defendant that the dangerous condition was so likely to cause harm in the near future that the defendant had a clear and unequivocal duty to act to prevent the harm. In my view, this test would make it clear that situations such as those presented in Shore and Edgerton present issues of fact to be decided by the jury.

This test would not present an expansion of liability beyond the bounds of General Statutes § 52-557n. Rather, it would conform with the acts of negligence contained in that statute. Section 52-557n (a)(1) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omission of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties...." Thus, the failure to act when a reasonable person would ordinarily act is covered as part of the exception to municipal immunity. I would therefore incorporate the "should have been" apparent language to the present test proposed by the majority since, in my view, it conforms with the legislative mandate. It further makes it clear that issues such as those raised in Shore, Evon and Edgerton are best left for a jury determination. For those reasons, I respectfully concur in the judgment of the court.