PPA v. Heather Miller et al. (2010)

MEMORANDUM OF DECISION

The issue before the court is the Defendants' Motion to Strike.   This negligence action arises out of an incident that allegedly occurred on or about May 6, 2008, while the minor plaintiff was a student in the defendant's Heather Miller's gym class.   While in class, the plaintiff alleges that she was struck in the chest by a plastic bat.   The plaintiffs' revised complaint, dated February 16, 2010, alleges that the plaintiff suffered injuries and losses caused by the negligence of the defendants:  Heather Miller, her gym teacher, Lucia Paoella, the principal of Nathan Hale Elementary School, and the City of New Haven Board of Education.

LEGAL ANALYSIS

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any [complaint] ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998).  “The role of the trial court [is] to examine the [complaint] ․ to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378 (1997).  “A determination regarding the legal sufficiency of a claim is ․ a conclusion of law, not a finding of fact.”  Parsons v. United Technologies Corp., 243 Conn. 66, 68 (1997).  “[A] question that presents issues of fact ․ transcend[s] the legal sufficiency of the complaint ․” Vines v. Orchard Hills, Inc., 181 Conn. 501, 504 (1980).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Gazo v. Stamford, 255 Conn. 245, 260 (2001).  “[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ [The court] assume [s] the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly.”  Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 629 (2002).

The defendants, City of New Haven, et al, move to strike all counts of the Plaintiffs' Revised Complaint dated February 16, 2010 on the grounds (1) that as to the first, second, fifth and sixth counts of the plaintiffs' complaint, relating to Defendants Heather Miller and Lucia Paolella, the defendant are entitled to governmental immunity for their discretionary acts or omissions as the plaintiff is not an identifiable person subject to imminent harm;  and (2) that as to the third, fourth, seventh and eighth counts which sound in indemnification, the defendant, City of New Haven, cannot be held liable because the plaintiff has no cause of action against the Defendants Miller and Paolella.

The plaintiffs respond to the defendants' arguments through their claim that they have alleged sufficient facts which, if proven at trial, would avoid the doctrine of governmental immunity.

“Notwithstanding the procedural posture of a motion to strike, this court has approved the practice of deciding the issue of governmental immunity as a matter of law.”  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988).  “[T]he ultimate determination of whether qualified 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.”  Purzycki v. Fairfield, 244 Conn. 101, 107-08 (1998).

Both the plaintiff and the defendant agree that “[a]lthough municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct ․ The doctrine of government immunity has provided some exceptions to the general rule of tort liability for municipal employees.   Thus, in determining the immunity of the defendants in this case, including the teacher and the principal, the court is guided by the well-established doctrine that determines the tort liability of municipal employees:  [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, as opposed to a discretionary act.”  (Citations omitted;  internal quotation marks omitted.)  Purzycki v. Fairfield, 244 Conn. 101, 107 (1998).  “Whether the act complained of ․ is [discretionary] or ministerial is a factual question which depends upon the nature of the act complained of.”  (Internal quotation marks omitted.)  Romano v. City of Derby, 42 Conn.App. 624, 629 (1996).

“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 exercise of judgment or discretion as to the propriety of the action.”  (Internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628 (2000).  “[T]he determination as to whether governmental immunity may successfully be invoked by a municipality ․ turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint.”  Segreto v. Bristol, 71 Conn.App. 844, 854, cert. denied, 261 Conn. 941 (2002).  “[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․” (Citations omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., supra, 252 Conn. at 628.

It becomes a question of law if the nature of the acts complained of is “apparent from the complaint.”  Id., citing Evon v. Andrews, 211 Conn. 501, 505-07 (1989).   In Connecticut, the supervision of school children has generally been held to be a discretionary act.  Purzycki v. Fairfield, supra, 244 Conn. at 108 (student tripped by fellow student in unsupervised hallway);  Heigl v. Board of Education of New Canaan, 218 Conn. 1, 8 (1991) (student injured in auto accident while off school grounds during open campus period).

In this case, the plaintiff was injured in her gym class, while participating in a game of t-ball.   The complaint does not allege that there were any procedures or guidelines established by the defendant gym teacher, Heather Miller, for the supervision of the children in the gym during the game, which would support an argument that the actions of the defendant were ministerial.   The court concludes that the actions of the defendant Miller were discretionary in that the allegations pleaded in the complaint involve the exercise of judgment or discretion.   The defendant Miller would, therefore, be immune from liability under the doctrine of governmental immunity unless her actions fall within an exception to the rule that a municipality would not be liable for the discretionary acts of its employees.

There are “three exceptions or circumstances under which liability may attach even though the act was discretionary:  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.”   Colon v. New Haven, 60 Conn.App. 178, 180-81 (2000);  Evon v. Andrews, supra, 211 Conn. at 505.

The only exception to the qualified immunity of a municipal employee for discretionary acts that is relevant to the present case is the exception permitting a tort action in circumstances of likely imminent harm to an identifiable person.   See Purzycki v. Fairfield, supra, 108.   In Purzycki v. Fairfield, supra, 244 Conn. at 108-09, our Supreme Court stated:  “We have construed [the imminent harm to an identifiable person] exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims ․ Moreover, we have established specifically that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims.”   In this case, the plaintiffs have alleged in their complaint that the minor plaintiff was a student at Nathan Hale Elementary School and that her injury occurred during a gym class.   Therefore, based on the reasoning set forth in Purzycki v. Fairfield, the plaintiffs' complaint contains sufficient allegations that the minor plaintiff is within an “identifiable class of victims” and is therefore an “identifiable person.”

The next step in the inquiry is to determine whether there is sufficient evidence to find that “imminent harm” existed under the circumstances.   Purzycki v. Fairfield, supra, 244 Conn. at 109.   Since this court is presently entertaining a motion to strike, it must decide whether the plaintiffs' complaint sufficiently alleges circumstances that it made apparent to the defendants that their failure to act was likely to subject the minor plaintiff to imminent harm.  “[W]hile the ultimate determination of whether a plaintiff was subjected to imminent harm is to be decided by a trier of fact, the initial determination of whether a party has sufficiently alleged that the exception applies in the first instance can be decided by a court as a matter of law.”   Elinsky v. Marlene, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0557659 (October 31, 1997, Hale, J.).   Indeed, in Evon v. Andrews, supra, 211 Conn. at 501 and in several Superior Court cases decided since Purzycki v. Fairfield, courts have granted motions to strike based on the failure to sufficiently allege “imminent harm” so as to fall within the exception to governmental immunity.   See e.g., Bruno v. BBC Corp., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 00 00716343 (May 22, 2002, Lager, J.);   Goode v. Wilton, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0180777 (April 16, 2002, Adams, J.) (31 Conn. L. Rptr. 737);  Mann-Byrdsong v. Bloomfield, Superior Court, judicial district of Hartford, Docket No. CV 99 0586162 (March 13, 2002, Wagner, J.);   and Embree-Willis v. Point Properties, Superior Court, judicial district of Litchfield, Docket No. CV 01 00849628 (December 28, 2001, DiPentima, J.).

Factors considered by courts in determining the imminence of potential harm include whether the potential for harm was limited in duration and geographical scope, whether the harm involved a temporary condition and whether the risk of harm was significant and foreseeable.  Purzycki v. Fairfield, supra, 244 Conn. at 110;  Burns v. Board of Education, supra, 228 Conn. at 650.   Therefore, a risk of danger that “implicates a wide range of factors that can occur, if at all, at some unspecified time in the future” is not an imminent harm.  Evon v. Andrews, supra, 211 Conn. at 508.

In Evon v. Andrews, the court granted the defendants' motion to strike upon determining that the harm from faulty wiring was not imminent because it could have caused a fire at any time or never at all.  Id. Conversely, in Burns v. Board of Education, where a schoolchild plaintiff slipped and fell due to icy conditions on a main access-way of the school campus, the court stated:  “Unlike the incident in Evon v. Andrews, supra, 211 Conn. at 501, 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 the ice was significant and foreseeable.”  Burns v. Board of Education, supra, at 650.   In Purzycki v. Fairfield, where a schoolchild plaintiff was tripped by another student in an unsupervised hallway, the court followed the reasoning and outcome of Burns v. Board of Education and found sufficient evidence that imminent harm existed.  Purzycki v. Fairfield, supra, at 109-11.   The court in Purzycki v. Fairfield reasoned that “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.   Finally, the risk of harm was significant and foreseeable ․” Id., at 110.

Following the reasoning set forth in Evon and Purzycki, the imminency and foreseeability of harm based on the facts alleged in this case is not clear.   This incident could have occurred at any time in the future, during any subsequent gym class or never at all.   The mere fact that the students were engaged in a game of t-ball does not give rise to the same imminency of harm that was present in Burns v. Board of Education.   Moreover, it was not foreseeable that a student would be injured in the same manner that the minor plaintiff was.   There was adequate supervision, and there is no proof that the minor child who swung the bat that hit the minor plaintiff was known to have violent or uncontrollable tendencies.   Additionally, there is no reason to believe that Defendants Miller and Paolella were aware that playing t-ball during gym class would subject the minor plaintiff to imminent harm.

Accordingly, the defendants' motion to strike counts one, two, five and six is granted.   As to the third, forth, seventh and eight counts, which sound in indemnification, the Defendant City of New Haven cannot be held liable because the plaintiffs have no cause of action against the Defendants Miller and Paolella.

Ordered this 3rd day of September 2010:

BY THE COURT

JOAN K. ALEXANDER, JUDGE

Alexander, Joan K., J.