Brittany Bacote v. City of New Haven (2010)

MEMORANDUM OF DECISION

The minor plaintiff, Brittany Bacote, commenced this action against the defendants, Reginald Mayo, Superintendent of Schools for the City of New Haven, the City of New Haven (“City”), and the New Haven Board of Education by way of writ, summons and complaint through her mother and next friend, Sonya Bacote on July 18, 2006 with a return date of September 5, 2006.   Service was completed on July 24, 2006.   Thereafter the plaintiff amended her complaint three times.   The count against the New Haven Board of Education was stricken by the court (Robinson, J.) on November 7, 2008.   The third amended complaint dated May 21, 2009 is the operative complaint.

In her third amended complaint, the plaintiff alleges that on June 13, 2005, she was on the schoolyard of Conte/West Hills Magnet School with her class during school hours playing in an area near the schoolyard directed by her teacher that had pegs coming up out of the ground where temporary bleachers were once located.   The plaintiff further alleges that she tripped and fell over one of the protruding pegs causing severe injuries to her left leg which required eighteen stitches.   The first count of the plaintiff's amended complaint is against the City of New Haven for negligence under General Statutes § 52-557n, alleging that the City, its agents, servants or employees failed to supervise the plaintiff, failed to make a reasonable and proper inspection, failed to remedy the condition, failed to warn the plaintiff, failed to keep and maintain the premises in a reasonably safe condition;  and failed to adhere to a program of routine maintenance to keep the premises upon which the plaintiff fell in a reasonably safe condition.   The second count makes the same allegation against the City of New Haven under General Statutes § 7-465 and the third count makes the same allegation against Superintendent Dr. Reginald Mayo. The plaintiff alleges that the defendants knew or in the exercise of due care should have known that the condition of the school yard was in a dangerous and defective condition that was likely to cause injury or inflict harm upon persons like the plaintiff.

The City denies the allegations in the plaintiff's complaint and claims by way of special defenses contributory negligence and sovereign immunity.

FINDINGS OF FACT

The court makes the following findings of fact by a preponderance of the evidence.   On June 13, 2005, the plaintiff was an eighth grade student at Conte/West Hills Magnet School attending drama and dance class.   Her attendance at school on June 13, 2005 was mandatory.   The defendant, Dr. Reginald Mayo, was the Superintendent of the New Haven Public Schools and was an employee of the defendant City of New Haven, who is responsible for the supervision and maintenance of school facilities.  General Statutes §§ 10-157(a) ¹ and 10-220,² See also, Plaintiff's Third Amended Complaint dated May 21, 2009, par. 2;  Defendants' Answer to Plaintiff's Third Amended Complaint, dated May 29, 2009, par. 2. The plaintiff's class was being conducted in the auditorium and due to the hot weather, the teacher took the children outside to the school playground for a recess.   Adjacent to the playground there is a parking lot where steel posts were protruding from the ground.   The posts were intended to support a bench, however the bench was missing.   The posts were a dangerous and defective condition of which the defendants had sufficient notice.   There were no warning signs nor barriers around the posts, nor did the teacher warn the children to stay away from the posts.   During recess, Brittany was playing and began chasing another student who had been teasing her.   She did not see the posts protruding from the ground and ran into one of them which resulted in a severe deep laceration to her left leg that required approximately 15 sutures.   Brittany admitted that she did not see the post because she was not looking at the post but looking at her classmate who she was chasing and trying to catch.  (TR, 1/8/10, p. 20.)   Brittany also testified and this court finds that the height of the post was below her knee, which was below her line of sight.   Brittany's testimony in this regard is consistent with the location of the scar.   Brittany suffered immediate injury to her left leg upon contact with the post which resulted in bleeding, and caused Brittany pain.   She was immediately transported to Yale New Haven Hospital emergency room where she immediately received sutures to her left leg, given a tetanus shot, placed in a knee immobilizer, given suture wound care instructions and discharged from the hospital the same day.   The hospital recommended follow-up care with her pediatrician and on June 15, 2005, Brittany was evaluated at Chapel Pediatrics.   At this visit she was prescribed medication and wound care instructions were given to her mother.   Brittany was again seen at Chapel Pediatrics on June 24, 2005 at which time her sutures were removed, the wound was treated with an antibiotic and wrapped.   Brittany was released and advised to return if the wound worsened.

On November 13, 2005, Brittany was seen by Dr. Mark Weinstein, a plastic surgeon regarding the scar which resulted from the wound she sustained on June 13, 2005.   Dr. Weinstein noted and this court observed a 8 x 1 cm scar located on Brittany's left leg.   This court observed that the scar is very prominent on the left leg and dark in coloration and approximately five inches in length.   In February 2007, Dr. Weinstein noted that Brittany's scar was quite large and would be present the remainder of her life and is a direct result of the accident on June 13, 2005.   He further noted that scar revision “could possibly improve the appearance but there would be no guarantees of this.”  (Plaintiff's Ex. 2.) Dr. Weinstein estimated the cost of surgery would be approximately $7,500.   To date, Brittany has not had the surgery recommended by Dr. Weinstein in 2007.   However, Brittany is now nineteen years of age, a young woman and she does want to have the surgery.   She was fourteen when she was injured.

Immediately following the accident Brittany was unable to return to school for a week and did not engage in many summer activities due to her injury.   She was also in pain and when she did return to school the following week, she had to use crutches and required special accommodations.   Brittany's scar is on the front of her left leg and, as of the day of trial, remains visible, permanent, swollen and unattractive.   Since the injury, she has been shy and inhibited about the look of the scar, which has kept her from wearing short pants or wearing skirts.   The scar remains painful and itches.   Brittany and her mother have incurred medical expenses in the amount of $1,484.29.   In accordance with Dr. Weinstein's report of February 20, 2007, a scar revision surgery would cost $5,000 for the physician fee and $2,500 for the anesthesia and operating room costs.   Brittany's life expectancy is 61.72 years.

DISCUSSION

ACount I- § 52-557n

Count one of the plaintiff's complaint is a direct negligence action against the City pursuant to General Statutes § 52-557n.³  The plaintiff alleges that the City, “its agents, servants and/or employees knew or in the exercise of due care should have known that the condition of said premises was in a dangerous and defective condition likely to cause injury and inflict harm upon persons, such as the plaintiff, Brittany Bacote.”   The plaintiff further alleges that the City, its agents, servants and/or employees failed to properly supervise the plaintiff, failed to make a reasonable and proper inspection of the premises upon which the plaintiff fell, failed to remedy the condition on which the plaintiff fell, failed to warn the plaintiff, failed to keep and maintain the premises upon which the plaintiff fell in a reasonably safe condition for students whom they knew or in the exercise of reasonable diligence should have known would be present, and failed to adhere to a program of routine maintenance to keep the premises upon which the plaintiff fell in a reasonably safe condition.   The plaintiff in this count alleges negligent conduct on the part of the City, its agents, servants and/or employees but does not name any specific employee of the City who engaged in such negligent conduct.

The defendant City denies that the City, or its agents, servants and/or employees were negligent and asserts special defenses of governmental immunity and contributory negligence.   The plaintiff denies that the she was contributorily negligent and also claims that she falls within the identifiable person, imminent harm exception to governmental immunity in that she falls within that class of identifiable victims subject to imminent harm.

General Statutes § 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 omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ․ (2) 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) 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.”

The common law and statutory doctrines that determine the tort liability of municipal employees are well-established.  Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994);  see also, Grady v. Somers, 294 Conn. 324, 994 A.2d 684;  Cotto v. Board of Education, 294 Conn. 265, 272, (2009);  “Generally, a municipal employee is liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts.” ⁴  Cotto, supra, 294 Conn. 272.  “Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.   A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions:  first, where 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 ․ second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence ․” (Citation omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, supra, 294 Conn. 272-73.   The plaintiff here, acknowledges that any duty owed to her by the defendant, City, its agents, servants and or employees including the superintendent, was discretionary in nature.   Therefore, in order for the plaintiff to succeed in her claim of liability, she must fall within one of the delineated exceptions to governmental immunity.   The only exception to the qualified immunity of a municipal employee for discretionary acts that is of relevance to the present case is the exception permitting a tort action in circumstances of perceptible imminent harm to an identifiable person.   The Supreme Court “[has] construed this exception to apply not only to identifiable individuals but also to narrowly defined identifiable classes of foreseeable victims.”  Burns v. Board of Education, supra, 294 Conn. 646.   The plaintiff contends that she was a member of a foreseeable class of victims to whom the City, its agents, servants and/or employees, including the superintendent owed a special duty of care and, thus, the defense of governmental immunity should not lie.   This court agrees.

“The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals ․ Thus far, the only identifiable class of foreseeable victims that [the Supreme Court has] recognized ․ is that of schoolchildren attending public schools during school hours ․ In determining that such schoolchildren were within such a class, [the court] focused on the following facts:  they were intended to be the beneficiaries of particular duties of care imposed by law on school officials;  they were legally required to attend school rather than being there voluntarily;  their parents were thus statutorily required to relinquish their custody to those officials during those hours;  and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions.”  (Citations omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, supra, 274.

“An individual may be ‘identifiable’ for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.   For the harm to be deemed imminent, the potential for harm must be sufficiently immediate.   In fact, the criteria of identifiable person and imminent harm must be evaluated with reference to each other.   An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm.   Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person.”  Id., 275-76;  See, e.g. Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989) (court held that 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);  see also, Purzyki v. Fairfield, 244 Conn. 101, 111, 708 A.2d 937 (1998) (court found “imminent harm was limited to one-half hour period each day when the second grade students were dismissed to traverse an unsupervised hallway, when school administrators were aware that unsupervised children are more likely to run and engage in horseplay leading to injuries.   Therefore, because school administrators here had reason to foresee the danger that could occur on a daily basis, the harm in the present case was not as remote a possibility as was the harm in Evon ”).

Applying all of the above factors to the circumstances of this case, statutory (see footnotes 1 and 2) and constitutional mandates demonstrate that school children attending public schools during school hours are intended to be the beneficiaries of certain duties of care.   Statutes describe the responsibilities of school boards and superintendents to maintain and care for property used for school purposes.  (See footnotes 1 and 2.) Teaching staff, over whom the superintendent has supervision and control, also owe a duty to school children attending public schools during school hours.   Statutes also describe the responsibilities of school children to attend school.   The presence of Brittany on the school premises where she was injured was not voluntary.   She was on the school playground on a mandated recess during school hours.   As a fifteen-year-old at the time of the accident, she was statutorily compelled to attend school and to obey school rules and discipline formulated and enforced pursuant to statute.⁵  Brittany's “corresponding entitlement to a public education has constitutional underpinnings in this state.” ⁶  “The result of this network of statutory and constitutional provisions is that the superintendent of schools [and teachers] over whom the superintendent has supervision and control, bear the responsibility for failing to act to prevent risk of imminent harm to school children as an identifiable class of beneficiaries of their statutory duty of care.   At least during the school hours on school days, when parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees, the superintendent [and teachers] over whom the superintendent has supervision and control, has the duty to protect the pupils in the board's custody from dangers that may reasonably be anticipated.”  (Citations omitted;  internal quotation marks omitted.)  Burns v. Board of Education, supra, 228 Conn. 649-50.

In this case, Brittany tripped on a steel post which protruded out of the ground in an area near the school playground.   This occurred during school hours, while Brittany was compelled by statute to be on those school grounds.   Unlike the incident in Evon v. Andrews, supra, 211 Conn. 501, this accident could not have occurred at any time in the future;  rather the danger was limited to the duration of the temporary recess period, in a specific location near the school playground that contained a dangerous defective condition.   Further, the potential for harm from a child tripping on this defective condition in the school playground was significant, as evidenced by the horrific scar Brittany sustained, and therefore, foreseeable.   Under these circumstances, this court concludes that the plaintiff was one of a class of foreseeable victims to whom the superintendent and teachers, over whom the superintendent exercised supervision and control, owed a duty of protection in relation to the maintenance and safety of the school grounds, and accordingly, governmental immunity is therefore no defense.   This court therefore finds in favor of the plaintiff on Count I of the complaint and finds the City liable for the injuries the plaintiff sustained on June 13, 2005.

B

Counts II and III- § 7-465

In Counts two and three of her third amended complaint the plaintiff alleges, in accordance with General Statutes § 7-465, that the City is liable based upon the negligent actions of its agents, servants and employees including Superintendent, Dr. Reginald Mayo. Section 7-465(a) provides in relevant part:  “Any town, city or borough, notwithstanding any inconsistent provision of the law ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ․ for physical damages to person ․ if the employee, at the time was acting in the performance of his duties and within the scope of his employment.”

“A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof.   Only then may the plaintiff go on to allege and prove the town's liability by indemnification ․ Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual.”  (Emphasis in original;  internal quotation marks omitted.)  Wei Ping Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).  “While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance.”  (Internal quotation marks omitted.)  Fraser v. Henninger, 173 Conn. 52, 56, 376 Conn. A.2d 406 (1977);  Altfeter v. Naugatuck, 53 Conn.App. 791, 799, 732 A.2d 207 (1999).   Here, the defendants contend that the plaintiff's claim against the City of New Haven under § 7-465 fails because she has not met her burden of proof that a municipal employee owed a duty to the plaintiff and was in breach of that duty.   The defendants claim that there was no proof of any negligence of Dr. Reginald Mayo or a claim against any other municipal employee, and therefore the City is not liable in indemnification.   The defendants further claim that even if this court finds that the plaintiff has met her burden of proof as to Dr. Mayo as a municipal employee, he is entitled to immunity.   The City further claims that the plaintiff was contributorily negligent.   Although the plaintiff concedes that the defendants' acts were discretionary, she claims that she falls into one of the delineated exceptions to governmental immunity.

The preponderance of the evidence demonstrates that Dr. Reginald Mayo was the superintendent of schools on June 13, 2005, and an employee of the City of New Haven.   The preponderance of the evidence further demonstrates that pursuant to §§ 10-157 and 10-220, the Board of Education, and the Superintendent of Schools, have responsibility over the supervision of the school system and is responsible for, inter alia, providing a safe school setting and proper maintenance of school facilities.   The preponderance of the evidence further demonstrates that the plaintiff's attendance at school on June 13, 2005 was mandatory, that she was on recess playing in an area of the schoolyard over which the defendants had control, the evidence further demonstrates that the plaintiff was playing in a limited geographical area, and the recess period was for a limited period of time.   The evidence further demonstrates that there was a dangerous post protruding from the ground and said post was present for a sufficient time so that the defendants had notice of the dangerous condition.   There was no barrier around the post, there were no warning signs to stay clear of the post, there was no evidence that the plaintiff was warned by school personnel to stay clear of the post.   This court finds based upon the preponderance of the evidence that the superintendent of schools had a statutory duty to ensure the safety of the plaintiff who was required to be at school on June 13, 2005 and breached that duty by failing to take safety measures to protect the children from this dangerous object on the school playground.

The court therefore finds that the plaintiff has met her burden of proof that the defendant was an employee of the City that owed a duty to the plaintiff which was breached.   The only question that this court has to determine is whether the defendants are immune from liability.   As the court has addressed this issue, supra, and because the same legal analysis would apply, the court finds that the plaintiff would fall within the imminent harm foreseeable victim exception, and therefore, the defense of qualified immunity is not available to the defendant, superintendent of schools, Dr. Reginald Mayo. The court therefore finds in favor of the plaintiff on Counts two and three of her complaint and therefore finds the superintendent, Dr. Reginald Mayo liable for the injuries Brittany sustained on June 13, 2005 and the City liable pursuant to § 7-465.

The court further finds, based on a preponderance of the evidence, and the applicable standard of care, that Brittany was not negligent when she tripped over the steel post in the school yard.   In considering whether or not a child has been negligent, she is not to be judged by the standard of care you would apply to an adult.  Neal v. Shiels, Inc., 166 Conn. 3, 11, 347 A.2d 102 (1974);  See also, Durrant v. Board of Education, 96 Conn.App. 456, 900 A.2d 608 (2006);  rev'd on other grounds, 284 Conn. 91, 931 A.2d 859 (2007).   “Our cases have attempted to safeguard children of tender years from their propensity to disregard dangerous conditions.   It definitely has been established by frequent repetition of the statement that the degree of care required of children is such care as may reasonably be expected of children of similar age, judgment and experience.”  Neal v. Shiels, Inc., supra 166 Conn. 11.   Because of Brittany's tender years and the circumstances under which she was injured, that is, doing what fifteen-year-olds do when they are out on a playground for recess, namely, they play, this court cannot find her conduct unreasonable.   Brittany was an eighth grade student playing on the playground as school children her age would do.   In addition, the height of the post was below her knee, which is consistent with the location of the wound, and therefore below her line of sight.   This court concludes based upon a preponderance of the evidence that Brittany was acting reasonably given her young age and the circumstances.   The court therefore concludes that she was not negligent at the time she was injured.

C

Damages

The plaintiff is entitled to fair, just and reasonable damages resulting from her injuries which injuries were the result of the defendants' negligence.   Based upon a preponderance of the evidence the court awards $1,484.29 for medical expenses Brittany incurred as a result of her injuries and $7,500 for future medical expenses based upon the recommendation of Dr. Mark Weinstein, for a total award of economic damages of $8,984.29.   This court observed the horrific scar that Brittany sustained, reviewed the medical reports documenting the scar, and listened to Brittany's testimony regarding her self-consciousness and humiliation as a result of the permanent disfigurement she is left with, and finds that she is entitled to an award of $37,500 as a result of the scar.   The court reviewed the medical reports and listened to the testimony of Brittany regarding her past and future pain and suffering and finds that she is entitled to an award of $30,000 for her past and future pain and suffering, for a total award of non-economic damages of $67,500.   The court's total award of fair, just and reasonable compensation is $76,484.29.

CONCLUSION

Accordingly, judgment is entered in favor of the plaintiff against the defendants, City of New Haven and Dr. Reginald Mayo for $76,484.29, together with costs of suit.

Wilson, J.

FOOTNOTES

FN1. General Statutes § 10-157 provides in relevant part:  “(a) Any local or regional board of education shall provide for the supervision of the schools under its control by a superintendent who shall serve as the chief executive officer of the board.   The superintendent shall have executive authority over the school system and the responsibility for its supervision.”  (Emphasis added.).  FN1. General Statutes § 10-157 provides in relevant part:  “(a) Any local or regional board of education shall provide for the supervision of the schools under its control by a superintendent who shall serve as the chief executive officer of the board.   The superintendent shall have executive authority over the school system and the responsibility for its supervision.”  (Emphasis added.)

FN2. General Statutes § 10-220 provides in relevant part:  “(a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state as defined in section 10-4a and provide such other educational activities as in its judgment will best serve the interests of the school district;  provided any board of education may secure such opportunities in another school district in accordance with provisions of the general statutes and shall give all the children of the school district as nearly equal advantages as may be practicable;  shall provide an appropriate learning environment for its students which includes (1) adequate instructional books, supplies, materials, equipment, staffing, facilities and technology, (2) equitable allocation of resources among its schools, (3) proper maintenance of facilities, and (4) a safe school setting ... shall cause each child five years of age and over and under eighteen years of age who is not a high school graduate and is living in the school district to attend school in accordance with the provisions of 10-184, and shall perform all acts required of it by the town or necessary to carry into effect the powers and duties imposed by law.  (Emphasis added.).  FN2. General Statutes § 10-220 provides in relevant part:  “(a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state as defined in section 10-4a and provide such other educational activities as in its judgment will best serve the interests of the school district;  provided any board of education may secure such opportunities in another school district in accordance with provisions of the general statutes and shall give all the children of the school district as nearly equal advantages as may be practicable;  shall provide an appropriate learning environment for its students which includes (1) adequate instructional books, supplies, materials, equipment, staffing, facilities and technology, (2) equitable allocation of resources among its schools, (3) proper maintenance of facilities, and (4) a safe school setting ... shall cause each child five years of age and over and under eighteen years of age who is not a high school graduate and is living in the school district to attend school in accordance with the provisions of 10-184, and shall perform all acts required of it by the town or necessary to carry into effect the powers and duties imposed by law.  (Emphasis added.)

FN3. Although Count I of the plaintiff's complaint is directly against the City, the plaintiff does name one of its employees, Dr. Reginald Mayo as a defendant in Count II. Count II of the complaint is indemnification against the City pursuant to General Statutes § 7-465 for the negligent conduct of its agents, servants and employees, including Dr. Mayo. Thus, there is no question that the common-law exception to a municipal employee's qualified immunity for discretionary acts applies here.   Even if this action were brought solely against the City without naming one of its employees as a defendant, the Supreme Court, in a recent decision, Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684 (2009), held that the identifiable person, imminent harm exception to qualified immunity for an employee's discretionary acts is applicable in an action brought solely against a municipality under § 52-557n(a) to hold that municipality directly liable for those acts..  FN3. Although Count I of the plaintiff's complaint is directly against the City, the plaintiff does name one of its employees, Dr. Reginald Mayo as a defendant in Count II. Count II of the complaint is indemnification against the City pursuant to General Statutes § 7-465 for the negligent conduct of its agents, servants and employees, including Dr. Mayo. Thus, there is no question that the common-law exception to a municipal employee's qualified immunity for discretionary acts applies here.   Even if this action were brought solely against the City without naming one of its employees as a defendant, the Supreme Court, in a recent decision, Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684 (2009), held that the identifiable person, imminent harm exception to qualified immunity for an employee's discretionary acts is applicable in an action brought solely against a municipality under § 52-557n(a) to hold that municipality directly liable for those acts.

FN4. “Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct ․ The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees ․ Governmental immunity in such cases depends on whether the act in question involves a ministerial or discretionary act.  [A] municipal employee ․ has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act ․ The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Citation omitted;  internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 95 n.4, 931 A.2d 859 (2007)..  FN4. “Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct ․ The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees ․ Governmental immunity in such cases depends on whether the act in question involves a ministerial or discretionary act.  [A] municipal employee ․ has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act ․ The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Citation omitted;  internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 95 n.4, 931 A.2d 859 (2007).

FN5. General Statutes § 10-184 provides in relevant part:  “All parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States History and in citizenship, including a study of the town, state and federal governments.   Subject to the provisions of this section and section 10-15c, each parent or other person having control of a child five years of age and over and under eighteen years of age shall cause such child to attend a public school regularly during the hours and terms the public school in the district in which such child resides is in session ․” See also, General Statutes § 10-220, footnote 2..  FN5. General Statutes § 10-184 provides in relevant part:  “All parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States History and in citizenship, including a study of the town, state and federal governments.   Subject to the provisions of this section and section 10-15c, each parent or other person having control of a child five years of age and over and under eighteen years of age shall cause such child to attend a public school regularly during the hours and terms the public school in the district in which such child resides is in session ․” See also, General Statutes § 10-220, footnote 2.

FN6. Article eighth, 1, of the Connecticut constitution provides:  “There shall always be free public elementary and secondary schools in the state.   The general assembly shall implement this principle by appropriate legislation.”.  FN6. Article eighth, 1, of the Connecticut constitution provides:  “There shall always be free public elementary and secondary schools in the state.   The general assembly shall implement this principle by appropriate legislation.”

Wilson, Robin L., J.