Ready v. New Canaan

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Ready v. New Canaan

SCOTT READY ET AL. v. TOWN OF NEW CANAAN
(AC 47140)
Bright, C. J., and Alvord and Seeley, Js.*

Syllabus

The plaintiff homeowners appealed following the trial court’s granting of
the defendant town’s motion for summary judgment in the plaintiffs’ breach
of contract action to recover for damage to their property that allegedly
resulted from the defendant’s failure to maintain its stormwater drainage
system that runs through the plaintiffs’ property. The plaintiffs contended
that the court improperly determined that their claim was barred by the
doctrine of governmental immunity pursuant to statute (§ 52-557n) and the
common law because it sounded in tort rather than in contract. Held:

The trial court improperly granted the defendant’s motion for summary
judgment, as the court erroneously construed the plaintiffs’ claim as alleging
tortious conduct when, instead, it arose directly out of the defendant’s
alleged breach of a specific contractual provision in a right-of-way agreement
it had entered into with the plaintiffs’ predecessor in interest to maintain
the stormwater drainage system that the defendant owned and operated.

Argued January 7—officially released May 6, 2025

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the action was withdrawn in part; thereafter,
the court, Clark, J., granted the defendant’s motion
for summary judgment and rendered judgment thereon,
from which the plaintiffs appealed to this court.
Reversed; further proceedings.

Matthew C. Mason, for the appellants (plaintiffs).
Adam J. DiFulvio, with whom, on the brief, was
Thomas R. Gerarde, for the appellee (defendant).
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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Ready v. New Canaan

Opinion

ALVORD, J. The plaintiffs, Scott Ready and Veronica
Ready, appeal from the judgment of the trial court grant-
ing the motion for summary judgment filed by the defen-
dant, the town of New Canaan, as to the plaintiffs’
complaint alleging breach of contract. On appeal, the
plaintiffs claim that the court improperly rendered sum-
mary judgment in favor of the defendant on the ground
that the plaintiffs’ claim sounded in tort rather than in
breach of contract and, therefore, was barred by the
doctrine of governmental immunity. We reverse the
judgment of the court.
The following procedural history is relevant to our
resolution of this appeal. The plaintiffs commenced the
present action in December, 2019. The plaintiffs subse-
quently withdrew three counts of the complaint, leaving
only one count alleging breach of contract. Therein,
the plaintiffs alleged in relevant part as follows. The
plaintiffs are the owners of two parcels of land located
at 57 and 59 Park Place in New Canaan. In or about
1950, the defendant constructed a stormwater drainage
system as shown on a plan filed in the town clerk’s
office. The defendant both owns and operates the
stormwater drainage system, which ‘‘collects and dis-
charges surface stormwater through a pipe running
from the South School Elementary School at the Gower
School Extension northerly across Gower, Orchard and
Douglas Roads and then down and through the back-
yards of the properties on the westerly side of Park
Place, underneath Old Stamford Road and into the Bris-
tow Bird Sanctuary and then exiting into a box culvert
running into the existing brook system in the sanctuary;
drainage pipes run from the individual lots into the
covered piping as it passes underneath the backyards
of the Park Place lots.’’
By agreement dated March 17, 1950, the plaintiffs’
predecessor in title and others provided the defendant
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Ready v. New Canaan

with a ‘‘Grant of Right of Way for Public Storm Water
Sewer Purpose’’ (right-of-way agreement). The right-of-
way agreement gives the defendant ‘‘the right, privilege
and easement to enter upon the said land of the [g]rant-
ors for the purpose of laying, repairing, maintaining and
replacing the said public storm water sewer . . . .’’ It
also provides that the defendant ‘‘will use due care
in constructing and maintaining the said public storm
sewer . . . .’’ The defendant has had sole responsibility
for maintaining the stormwater drainage system since
1950, and the plaintiffs never have interfered with or
obstructed the stormwater drainage system. Since 1950,
the defendant has approved the development of a large
number of properties in the area served by the stormwa-
ter drainage system, resulting in ‘‘a substantial increase
in the impervious surfaces draining water’’ into the sys-
tem.
During a heavy rainstorm on October 11, 2007, the
stormwater drainage system failed when it backed up.
Two or more feet of water inundated portions of the
plaintiffs’ home, causing extensive damage, and many
other properties sustained damage, including yard and
basement flooding. The plaintiffs and others made
claims against the defendant resulting from the damage
caused by the 2007 rainstorm. The defendant thus was
provided with notice of the stormwater drainage sys-
tem’s inadequacies and the risk of damage to homes
served by the system following the 2007 rainstorm. The
defendant also was on notice that there was a substan-
tial likelihood that damage would occur to properties
owned by the plaintiffs and others during heavy rain-
storms in the event that the defendant failed to address
the deficiencies.
The plaintiffs further alleged that the defendant
caused, created, and/or failed to correct a blockage in
the stormwater drainage system and to ensure that the
system functions properly and is adequate to remove
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Ready v. New Canaan

the volume of stormwater occurring during heavy rain
events. The defendant took the following intentional
and affirmative actions: ‘‘(i) constructing the stormwa-
ter drainage system; (ii) constructing and continuing to
utilize the stormwater drainage system, which is insuffi-
ciently sized and inadequate to handle the volume of
stormwater discharged into the system during signifi-
cant rain events; (iii) deciding not to take necessary
measures to correct the problems and deficiencies in
the stormwater drainage system, including to ensure
that it is reasonably free of trash, debris, excessive
vegetation, sediment, and other obstacles that would
retard the flow of water through the system, notwith-
standing being on notice of the need to address such
problems; (iv) deciding not to make the necessary
changes to or improvements in the stormwater drainage
system to protect the plaintiffs (and others) from harm
that is substantially certain to occur during significant
rain events when the system is unable to handle large
volumes of stormwater; (v) failing to honor its obliga-
tions under the [right-of-way] agreement; and (vi)
approving building in the areas served by the stormwa-
ter drainage system, which served to increase the vol-
ume of stormwater runoff into the stormwater drainage
system to the point where it cannot function as
intended.’’
During a heavy rainstorm on June 28, 2018, the
stormwater drainage system again failed and backed
up, resulting in flooding that caused substantial damage
to the plaintiffs’ home and property. Having knowledge
of the 2007 rainstorm, the defendant affirmatively chose
not to address the system’s deficiencies, including that
the drainage pipe was insufficient in size and needed
to be kept free from obstructions. Thus, the defendant
knowingly caused and directed stormwater onto the
plaintiffs’ property, which was intended to flow through
the system.
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Ready v. New Canaan

The plaintiffs live in fear that the stormwater drainage
system will fail, causing damage to their home and
property. They have spent considerable amounts of
money to install sumps with flood control alarmed
pumps and have taken other steps to try to protect their
property. On the basis of the foregoing, the plaintiffs
claim, the defendant has breached its obligation under
the right-of-way agreement by failing to ‘‘ ‘use due care
in constructing and maintaining the said public storm
sewer,’ ’’ and the plaintiffs have suffered damages.
In their complaint, the plaintiffs requested damages,
costs, attorney’s fees, and ‘‘[a]n order compelling the
defendant to regularly and properly inspect, maintain,
repair, and improve the stormwater drainage system,
consistent with its obligations, including under the
[right-of-way] agreement.’’
On February 18, 2020, the defendant filed an answer
and special defenses. By way of its second special
defense to the breach of contract count, the defendant
alleged that the plaintiffs’ claims are barred by the doc-
trine of governmental immunity pursuant to both com-
mon law and General Statutes § 52-557n.
On January 22, 2021, the defendant filed a motion
for summary judgment. The defendant’s motion was
accompanied by a memorandum of law and attached
exhibits. In addressing the plaintiffs’ breach of contract
claim, the defendant argued that the plaintiffs’ allega-
tions sounded in tort rather than in breach of contract,
and, therefore, their claim was barred by the doctrine of
governmental immunity. On June 15, 2023, the plaintiffs
filed a memorandum of law in opposition to the motion
for summary judgment, in which they argued that their
breach of contract claim arose from the right-of-way
agreement and the defendant’s obligations thereunder.
The plaintiffs also filed an affidavit and attached exhib-
its. On July 12, 2023, the defendant filed a reply brief.
The court heard oral argument on July 31, 2023.
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Ready v. New Canaan

On November 8, 2023, the court, Clark, J., granted the
defendant’s motion for summary judgment. The court
stated: ‘‘[A] plain reading of the plaintiffs’ complaint
reveals there is no genuine dispute of material fact
that the claim is for injuries allegedly sustained to the
plaintiffs’ property as a result of the defendant’s failure
to properly inspect or maintain the stormwater drainage
system. The plaintiffs have simply recast their tort
claims as a contract claim in an attempt to circumvent
well settled Connecticut case law, which provides gov-
ernmental immunity to municipalities and [their]
employees for discretionary acts.’’ The court next deter-
mined that no exception to governmental immunity
applied. Accordingly, the court concluded that the
defendant was entitled to summary judgment. This
appeal followed.
On appeal, the plaintiffs claim that the trial court
improperly determined that their claim was barred by
the doctrine of governmental immunity. Specifically,
they contend that their breach of contract claim arose
directly from the breach of the express provision of the
right-of-way agreement. They further argue that they
sought contract damages, including specific perfor-
mance, rather than tort damages.
Before we turn to the plaintiffs’ claim on appeal, we
begin by setting forth the standard of review applicable
to a trial court’s decision to grant a motion for summary
judgment. ‘‘Practice Book § 17-49 provides that sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law. A party moving for summary judgment is held
to a strict standard. . . . To satisfy his burden the mov-
ant must make a showing that it is quite clear what the
truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact. . . .
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Ready v. New Canaan

Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Cyr v. VKB, LLC, 194 Conn.
App. 871, 877, 222 A.3d 965 (2019).
We next set forth the substantive law regarding the
liability of municipalities. ‘‘Although, at common law,
a municipality generally was immune from liability for
any tortious acts, our Supreme Court has long recog-
nized that governmental immunity may be abrogated
by 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 negli-
gent acts or omissions of such political subdivision or
any employee, officer or agent thereof acting within
the scope of his employment or official duties . . . .
This language clearly and expressly abrogates the tradi-
tional common-law doctrine in this state that municipal-
ities are immune from suit for torts committed by their
employees and agents. . . .
‘‘Subdivision (2) of § 52-557n (a), however, contains
two significant limitations to the statutory abrogation
of governmental immunity. [One exception] provides
as follows: Except as otherwise provided by law, a
political subdivision of the state shall not be liable for
damages to person or property caused by . . . (B) neg-
ligent acts or omissions which require the exercise of
judgment or discretion as an official function of the
authority expressly or impliedly granted by law. General
Statutes § 52-557n (a) (2) (B). The statutory scheme of
§ 52-557n, accordingly, distinguishes between discre-
tionary and ministerial acts, with liability generally
attaching to a municipality only for negligently per-
formed ministerial acts, not for negligently performed
discretionary acts.’’1 (Citations omitted; internal quota-
tion marks omitted.) Washburne v. Madison, 175 Conn.
1
‘‘Even if a municipal defendant’s conduct is discretionary in nature, our
courts have identified three exceptions to discretionary act immunity. Each
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Ready v. New Canaan

App. 613, 622–23, 167 A.3d 1029 (2017), cert. denied,
330 Conn. 971, 200 A.3d 1151 (2019).
In determining whether a claim sounds in tort or in
breach of contract, our Supreme Court has stated that
‘‘[t]he fundamental difference . . . lies in the nature of
the interests protected. . . . The duties of conduct
[that] give rise to [a tort action] are imposed by the
law, and are based primarily [on] social policy, and not
necessarily [on] the will or intention of the parties. . . .
Furthermore, other courts have held that, when a plain-
tiff seeks to recover damages for the breach of a statu-
tory duty, such an action sounds in tort. . . .
‘‘On the other hand, [c]ontract actions are created
to protect the interest in having promises performed.
Contract obligations are imposed because of [the] con-
duct of the parties manifesting consent, and are owed
only to the specific individuals named in the contract.
. . . In short, [a]n action in contract is for the breach
of a duty arising out of a contract; an action in tort is for
a breach of duty imposed by law.’’ (Internal quotation
marks omitted.) Canner v. Governors Ridge Assn., Inc.,
348 Conn. 726, 743, 311 A.3d 173 (2024). ‘‘The elements
of a breach of contract claim are the formation of an
agreement, performance by one party, breach of the
of these exceptions 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. . . . First, liability may be imposed for a discre-
tionary act when the alleged conduct involves malice, wantonness or intent
to injure. . . . Second, liability may be imposed for a discretionary act when
a statute provides for a cause of action against a municipality or municipal
official for failure to enforce certain laws. . . . Third, liability may be
imposed 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.’’ (Internal quotation marks omitted.) Northrup v. Witkow-
ski, 175 Conn. App. 223, 234, 167 A.3d 443 (2017), aff’d, 332 Conn. 158, 210
A.3d 29 (2019). Because we conclude that the doctrine of discretionary
governmental immunity does not bar the plaintiffs’ claim, we need not
address the exceptions thereto.
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Ready v. New Canaan

agreement by the other party, and damages.’’ Meyers
v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.,
311 Conn. 282, 291, 87 A.3d 534 (2014). ‘‘It is true, of
course, that out of a contractual relationship a tort
liability, as in negligence, may arise.’’ (Internal quota-
tion marks omitted.) Gazo v. Stamford, 255 Conn. 245,
263, 765 A.2d 505 (2001).
Finally, in our review of the plaintiffs’ claim, we must
evaluate the allegations set forth in the plaintiffs’ com-
plaint. ‘‘The interpretation of pleadings is always a ques-
tion of law for the court . . . . Our review of the trial
court’s interpretation of the pleadings therefore is ple-
nary. . . . Furthermore, we long have eschewed the
notion that pleadings should be read in a hypertechnical
manner. Rather, [t]he modern trend, which is followed
in Connecticut, is to construe pleadings broadly and
realistically, rather than narrowly and technically. . . .
[T]he complaint must be read in its entirety in such a
way as to give effect to the pleading with reference to
the general theory [on] which it proceeded, and do
substantial justice between the parties. . . . Our read-
ing of pleadings in a manner that advances substantial
justice means that a pleading must be construed reason-
ably, to contain all that it fairly means, but carries with
it the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension.’’ (Emphasis omitted; internal quotation
marks omitted.) Carpenter v. Daar, 346 Conn. 80, 128,
287 A.3d 1027 (2023). ‘‘[I]n determining the nature of a
pleading filed by a party, we are not bound by the
label affixed to that pleading by the party.’’ (Internal
quotation marks omitted.) Manere v. Collins, 200 Conn.
App. 356, 366, 241 A.3d 133 (2020).
Viewing the allegations of the complaint as a whole
and in the light most favorable to the plaintiffs as the
nonmoving parties, we are convinced that the plaintiffs
have alleged a claim for breach of a contractual duty.
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Specifically, the plaintiffs alleged the existence of the
right-of-way agreement, entered into by the plaintiffs’
predecessor in interest and the defendant. Pursuant to
that agreement, the defendant was provided with ‘‘[t]he
right, privilege and easement to enter upon the said land
of the [g]rantors for the purpose of laying, repairing,
maintaining and replacing the said public storm water
sewer . . . .’’ The right-of-way agreement states that
‘‘[i]t is further agreed that the [g]rantors shall not be
assessed for any front foot or other proportionate
charge or for any part of the cost of construction, exten-
sion or maintenance of the public storm water sewer
hereby permitted except such as may be assessed
against them by the [t]own of New Canaan under its
general tax levy; and that the [g]rantee will use due
care in constructing and maintaining the said public
storm water sewer, to restore the surface of the land
where the said drain is located to substantially its same
condition prior to such construction or maintenance
work and without cost to the [g]rantors.’’ The plaintiffs
alleged that they have never interfered with or
obstructed the stormwater drainage system and that
the defendant breached an express provision of the
right-of-way agreement requiring it to use ‘‘ ‘due care
in constructing and maintaining the said public storm
sewer . . . .’ ’’ Specifically, the plaintiffs alleged that
the defendant constructed the stormwater drainage sys-
tem but did not thereafter correct problems and defi-
ciencies within the system, including keeping the sys-
tem clear of debris and sediment, declining to make
improvements to the system, and increasing the volume
of stormwater runoff by approving buildings within the
area served by the system.
The plaintiffs alleged that the defendant’s failure to
maintain the stormwater drainage system resulted in
the system failing and backing up during a heavy rain-
storm, which caused substantial damage to their prop-
erty. The plaintiffs sought damages, costs, attorney’s
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Ready v. New Canaan

fees, and specific performance in the form of ‘‘[a]n order
compelling the defendant to regularly and properly
inspect, maintain, repair, and improve the stormwater
drainage system, consistent with its obligations, includ-
ing under the [right-of-way] agreement.’’
Because the plaintiffs’ claim arises directly out of
the defendant’s alleged breach of a specific contractual
provision contained within the right-of-way agreement,
the plaintiffs’ claim sounds in breach of contract rather
than in tort. More specifically, the duty alleged to have
been breached is found in the right-of-way agreement
and is not a duty imposed by law.
Moreover, we find it persuasive that the plaintiffs
sought specific performance. See, e.g., Gazo v. Stam-
ford, supra, 255 Conn. 265 (considering recovery sought
in analyzing whether claim sounded in contract or in
tort). ‘‘[T]he specific performance remedy is a form of
injunctive decree in which the court orders the defen-
dant to perform the contract.’’ (Internal quotation
marks omitted.) Gager v. Gager & Peterson, LLP, 76
Conn. App. 552, 560, 820 A.2d 1063 (2003); see also 71
Am. Jur. 2d 15, Specific Performance § 1 (2023) (‘‘[t]he
purpose of [specific performance] is to give the one
who seeks it the benefit of the contract by compelling
the other party to the contract to do what he or she
has agreed to do—perform the contract on the precise
terms agreed upon by the parties’’).
The decisions relied on by the defendant and the trial
court, Gazo v. Stamford, supra, 255 Conn. 245, and
Brusby v. Metropolitan District, 160 Conn. App. 638,
127 A.3d 257 (2015), are distinguishable. In Gazo v.
Stamford, supra, 247, the plaintiff claimed injuries aris-
ing out of a slip and fall on icy property and sought to
recover from an independent contractor, who had been
hired to maintain the property in a safe condition. The
plaintiff sought recovery as a third-party beneficiary of
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Ready v. New Canaan

the contract between the possessor of the land and the
independent contractor, and he sought recovery for
physical and mental pain and suffering, lost wages and
medical bills. Id., 265. Our Supreme Court, in consider-
ing whether the trial court had properly struck that
count of the complaint alleging that the plaintiff was a
third-party beneficiary, examined the plaintiff’s allega-
tions of liability and damages and concluded that he
was seeking ‘‘compensation for injuries suffered from
a fall on ice and snow, purportedly because of [the
contractor’s] negligence.’’ Id., 264. The court concluded
that the plaintiff was not seeking damages for breach
of the contract but, rather, damages arising out of the
contractor’s negligence in the performance of the con-
tract. Id. Under these circumstances, the court con-
cluded that ‘‘where . . . the plaintiff’s allegations of
both liability and damages sound in tort, and the only
practical effect of permitting a contract claim to lie
would be to extend the tort statute of limitations, and
common sense strongly counsels otherwise, the plain-
tiff may not be permitted to transform his tort claim
into a contract claim merely by alleging that it is such
a claim.’’ Id., 266.

In Brusby v. Metropolitan District, supra, 160 Conn.
App. 641, the plaintiff homeowner brought an action
against the defendant, a municipal corporation that pro-
vides potable water and sewerage services to its cus-
tomers. The plaintiff alleged that raw sewage had
entered and flooded her basement on two occasions as
a result of the defendant’s negligence, including the
defendant’s failure to properly install backflow safety
features and to properly maintain the sewer system.
Id., 641–42. In her complaint, the plaintiff set forth a
count alleging breach of contract, which she contended
was viable as an independent claim arising from the
fact that she had paid the defendant for its sewerage
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Ready v. New Canaan

services. Id., 644. The court rendered summary judg-
ment in favor of the defendant on the breach of contract
count on the ground that the allegations sounded in
tort and, accordingly, the statute of limitations for tort
actions applied to bar the plaintiff’s claim. See id., 644–
45. On appeal, this court agreed with the trial court that
the plaintiff’s claim sounded in tort because she had
alleged personal injury and sought compensation for
emotional distress and medical conditions that she
claimed were caused by exposure to the raw sewage.
See id., 668–69. This court explained that her tort claim
could not be recast as a contract claim solely to gain the
benefit of the longer statute of limitations. See id., 669.
Gazo and Brusby are distinguishable in that both
cases involved personal injury claims arising out of
negligence, which the plaintiffs attempted to recast into
contract claims. Furthermore, the plaintiffs in both
cases sought to recast their contract claims as a way
to take advantage of the longer statute of limitations
afforded contract claims. Additionally, both plaintiffs
sought tort damages. Gazo is also distinguishable
because the plaintiff in that case sought to impose liabil-
ity on the ground that his status as a business invitee
rendered him a third-party beneficiary of a contract
between a landowner and an independent contractor.
See Gazo v. Stamford, supra, 255 Conn. 266–67. The
court explained that it ‘‘defies common sense and reality
to think that, despite the plaintiff’s allegation, [the pos-
sessor of land and the independent contractor], when
they formed their contract, actually intended that every
passerby on the sidewalk would be a party to that con-
tract.’’ Id., 266.
Our Supreme Court’s recent decision in Canner v.
Governors Ridge Assn., Inc., supra, 348 Conn. 726, is
instructive. In that case, the court considered the plain-
tiff’s allegations that the defendant condominium asso-
ciation had violated a continuing, contractual duty set
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Ready v. New Canaan

forth in the defendant’s bylaws to maintain, repair, or
replace common elements by failing to repair founda-
tions supporting their condominium units. See id., 746–
47. Specifically, the plaintiffs alleged a violation of § 5.2
(b) of the bylaws, which provided in relevant part: ‘‘All
maintenance and repairs of and replacements to [c]om-
mon [e]lements and [l]imited [c]ommon [e]lements
. . . shall be made by the [e]xecutive [b]oard and be
charged to all [u]nit [o]wners as a [c]ommon [e]xpense
. . . .’’ (Internal quotation marks omitted.) Id., 734 n.10.
The Supreme Court concluded that § 5.2 ‘‘imposes a
contractual duty to maintain common elements . . . .’’
Id., 746. The court further stated that ‘‘[t]he fact that
the defendant possesses discretion with respect to the
maintenance of uninsured common elements . . .
does not insulate the exercise of that discretion from
judicial review. . . . To conclude otherwise would
. . . permit the defendant to forgo even reasonable
repairs without recourse to the unit owners, leaving
them without the ability to seek judicial relief in the
event the decision of the defendant exceeds its discre-
tion.’’ (Citations omitted.) Id., 747–48. Accordingly, the
court concluded that the plaintiff’s claims that the
defendant had breached its contractual duty were
timely under the statute of limitations for contract
actions. See id., 746.

In the present case, as in Canner, the defendant’s
liability arises out of a specific contractual obligation.
That the contractual language contemplates some dis-
cretion in fulfilling that obligation does not transform
the plaintiffs’ cause of action alleging breach of that
obligation into a tort action alleging negligently per-
formed discretionary acts.

For the foregoing reasons, we conclude that the plain-
tiffs’ allegations sound in breach of contract rather than
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Ready v. New Canaan

in tort. Accordingly, the court erred in construing the
2

plaintiffs’ claim as alleging tortious conduct, to which
governmental immunity would apply. Therefore, the
court improperly rendered summary judgment in favor
of the defendant.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion for sum-
mary judgment and for further proceedings according
to law.
In this opinion the other judges concurred.

2
We note that, during oral argument before this court, the defendant’s
counsel conceded that, were the defendant a private party rather than a
municipality, the plaintiffs’ claim properly would sound in breach of contract.
We fail to see why the defendant should be relieved of its contractual
commitments simply because it is a municipality.