Louis Melesko v. Board of Education (2010)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

In this three-count complaint against the defendants, the Board of Education of the City of Hartford and David Zell, the plaintiff Louis Melesko alleges that on November 20, 2007, while attending a dinner sponsored by his employer, Catholic Charities, at Hartford Public High School, he slipped and fell on slush, melted snow and water on an interior stairwell at the school's main entrance.   He claims both the Board of Education and Zell, the school's supervisory custodian, negligently caused the injury, and that the Board of Education is liable under General Statutes § 10-235 for the personal injuries he sustained.

Catholic Charities has filed an intervening complaint, claiming that any damages recovered should be apportioned so that it will be reimbursed for the amounts it has paid and become obligated to pay under the Workers' Compensation Act.

On March 10, 2010, the defendants filed this motion to strike Melesko's complaint as well as Catholic Charities' intervening complaint.

In the first count, Melesko alleges that the Board of Education was negligent under General Statutes § 52-557n because it failed to inspect and discover the dangerous and slippery conditions to the stairs, failed to adequately remedy or remove those conditions from the stairs, and failed to provide notice or otherwise warn visitors to the school of the dangerous conditions existing on the stairs.   In the second count, Melesko alleges that David Zell, the supervisory custodian at the school, was negligent for the same reasons.   The defendants counter that they did not owe any duty to the plaintiff.

-I-

Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct.

“The common-law statutory doctrines that determine the tort liability of municipal employees are well established ․ Generally, a municipal employee is liable for the misperformance of ministerial acts ․ 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.”  Cotto v. Board of Education, 294 Conn. 265, 272 n.8, 984 A.2d 58 (2009).

In Cotto, our Supreme Court held that a school board, superintendent, and principal had qualified immunity from liability when a youth director of an organization that ran a summer youth program at the public school slipped and fell on a wet bathroom floor.

Our Supreme Court has further stated:

The hallmark of a discretionary act is that it requires the exercise of judgment.   On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action ․ Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases where it is apparent from the complaint.  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749n A.2d 630 (2000).

The plaintiffs rely on Kolaniak v. Board of Education, supra, 28 Conn.App. 277, to argue, that the duty to clear ice and snow is ministerial rather than discretionary.   In that case, however, there was an explicit policy regarding such removal.   Here, the plaintiff has failed to allege that the defendants failed to perform any function as required by any regulation, policy or other directive.   Accordingly, the activity here, the removal of slush, melted snow and water form a stairwell, is concluded to be discretionary.   See also, Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994).

Because the action or lack of action involved here was discretionary, the only exception to the qualified immunity for the performance of discretionary governmental acts which might apply is whether the circumstances made it apparent that the defendants' failure to act would be likely to subject an identifiable person to imminent harm “By its own terms, this test 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 that harm ․ Failure to establish any one of the three prongs will be fatal to a plaintiff's claim that he comes within this exception.”  Cotto v. Board of Education, supra, 294 Conn. 273.

Melesko does not fall within this identifiable class of victims, nor is he identifiable for purposes of the exception.  “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.   Indeed, [the Supreme Court has] found imminent harm only in the clearest cases.”  Cotto, supra Id. 275-76.

-II-

In the third count, the plaintiffs bring an indemnification claim against the Board of Education pursuant to General Statutes § 10-235, but the plaintiffs acknowledge that this claim is derivative of the second count which makes the third count insufficient.

-III-

Again, since employer's rights under General Statutes § 21-293 are derivative of the employee's rights.  Stavola v. Palmer, 136 Conn. 670, 677, 73 A.2d 831 (1950), the insufficiency of the complaint renders Catholic Charities' intervening complaint also insufficient.

CONCLUSION

Defendants' motion to strike the entirety of both Melesko's and Catholic Charities' complaints is granted.

Wagner, J. JTR

Wagner, Jerry, J.T.R.