PPA v. Berlin Board of Education et al. (2010)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

FACTS:

In this action, the plaintiffs, a high school student and his parents, claim the defendants, the principal, athletic director and head football coach of a high school were reckless and wanton in their conduct as to the safety and wellbeing of the plaintiff student, who alleges bullying by fellow students.¹  Initially, several theories of liability were asserted.   A motion to strike several counts and defendants from the action was granted on September 26, 2008 [46 Conn. L. Rptr. 706].

This is the sole remaining count, now contained the plaintiffs' second amended complaint (131.00) dated March 13, 2009.   The defendants seek summary judgment on this remaining count, raising three grounds:  (1) characterizing the “reckless and wanton” claim as an allegation of “reckless supervision,” the defendants argue that Connecticut law does not recognize such a claim;  (2) there is no statutory authority for a claim of “reckless supervision;” and (3) the defendants acted appropriately.

The plaintiffs claim that they have stated a viable cause of action and that issues of fact remain which preclude summary judgment.

LEGAL STANDARD:

Summary judgment “․ shall be rendered forthwith if the pleadings, 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.”  Practice Book § 17-49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law. and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact that will make a difference in the result of the case ․” (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2 777 (2006).

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Internal quotation marks omitted.)  Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “[T]he ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.”  (Internal quotation marks omitted.)  Id., 378-79.  “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  Id.

ANALYSIS:

In deciding this motion for summary judgment, the history of the case must be taken into consideration.   This action initially had five counts.   The defendants moved to strike four of the five counts.   That motion (119.00) was granted by the court, Trombley, J., on September 26, 2008.   The remaining second count was restated as the plaintiffs' second amended complaint (131.00) dated March 13, 2009.

In attacking this remaining allegation, the defendants are claiming both that (1) the remaining claim is legally insufficient, which is normally the subject of a motion to strike, rather than a motion for summary judgment, and (2) there is no factual dispute and that they are entitled to judgment as a matter of law.

The defendants' claims will be addressed in order.   First, the court will address the legal sufficiency issues.   Secondly, the court will determine whether there are factual issues which preclude summary judgment.

I.

The defendants' first two grounds for summary judgment are that there is neither common law nor statutory authority for a claim of “reckless supervision.”

“A motion to strike is the proper procedural vehicle ․ to test whether Connecticut is ready to recognize some newly emerging ground of liability.”   (Internal quotation marks omitted.)   Rich v. Foye, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 06 5003443 (August 28, 2006, Cremins, J.), 44 Conn. L. Rptr. 184, 186 (2006).   Unlike a motion to strike, which provides an opportunity for a party to replead, the motion for summary judgment affords no such opportunity and puts the nonmoving party out of court.  Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).   However, “the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”  Id. As the plaintiffs would be precluded from asserting these claims if the motion was granted, the court will consider these two grounds asserted by the defendants, using the criteria of a motion to strike, rather than a motion for summary judgment.  Carrasquillo v. Carlson, 90 Conn.App. 705, 714, 880 A.2d 904 (2005).

“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.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   When ruling on a motion in strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id.

The role of the trial court in ruling on a motion to strike is “to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”   (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

The defendants, in their motion, state, “The remaining count of the complaint purports to allege ‘reckless misconduct.’  “ The defendants use that quoted term on several occasions as if it is quoted from the complaint.   It is not.   The plaintiffs do not use that term.   Neither does the complaint sounds in “reckless supervision” as claimed by the defendants.   It is a common-law claim of recklessness.

The plaintiffs are claiming that the conduct of the defendants was “reckless and wanton in nature, exhibiting a blatant and utter disregard for [the minor child's] safety and wellbeing ․” While the defendants would seek to redefine the plaintiffs' allegations, the allegations must be reviewed as plead.   The complaint alleges more than mere “reckless supervision.”   The plaintiffs allege, inter alia, that the defendants had actual knowledge of bullying and failed to act, resulting in further escalation of bullying and knowing that a failure to act would result in further harm to the minor plaintiff.   As to a statutory cause of action, it does not appear that such a cause of action is alleged here.   Any claim made in a complaint grounded upon a statute must specify the statute.  P.B. § 10-3.   If the plaintiffs had alleged statutory recklessness, the defendants may have a valid argument.   However, there is no such allegation here.

The defendants have offered legal argument as to why a claim of “reckless supervision” may not be cognizable.   They have offered no argument as to why a claim of common-law recklessness is not cognizable here.   Under the standards of a motion to strike, the defendants' motion must fail.

II.

A motion for summary judgment requires that there be no genuine issues of material fact.  Practice Book § 17-49.   The defendants claim there is a “dearth of facts” supporting the plaintiffs' factual allegations.   The plaintiffs dispute this claim in their memorandum in opposition (142), which they have entitled “Reply.”   The plaintiffs allege that there were more than the five instances of alleged bullying as addressed by the defendants.²  What the defendants knew and when they knew are also claimed to be in dispute.

Summary judgment should not be used in cases that concern important public issues or questions of inference as to motive or intent;  Nolan v. Borkowski, 206 Conn. 495, 505, 538 A.2d 1031 (1988);  see Picataggio v. Romeo, 36 Conn.App. 791, 793-94, 654 A.2d 382 (1995);  or in ones that involve subjective feelings and reactions.  Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990);  United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 375;  see E. Stephenson, Connecticut Civil Procedure, supra, § 100(c), pp. 295-96.”  Gould v. Mellick and Sexton, 66 Conn.App. 542, 556, 785 A.2d 265 (2001).

In this matter, the facts are suffused with subjective impressions, intent, motive and public issues which do not easily conform to the standards for summary judgment.   There is a dispute as to whether there was an exchange between the minor child and the defendant coach concerning the bullying issue.   There is a dispute as to the frequency, nature and intensity of the alleged bullying.   There is a dispute as to whether others informed the defendants of the alleged incidents and of what alleged bullying the defendant coach had actual knowledge.   There is a dispute as to the extent and effectiveness of the resultant investigation.   There is a dispute as to the degree and nature of duty owed to the minor child.

In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.  Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).   There are issues of material fact and, therefore, summary judgment is not appropriate.

CONCLUSION:

The defendant's motion for summary judgment is denied.

Young, J.

FOOTNOTES

FN1. An additional defendant is the Bristol Board of Education, pursuant to the indemnification requirements of C.G.S. Sec. 10-235.   The board's liability as a defendant rests upon the viability of claims against the other defendants..  FN1. An additional defendant is the Bristol Board of Education, pursuant to the indemnification requirements of C.G.S. Sec. 10-235.   The board's liability as a defendant rests upon the viability of claims against the other defendants.

FN2. Both sides have submitted attachments to their respective pleadings which include uncertified deposition excerpts and unauthenticated documents such as email correspondence.   As neither side has indicated a lack of veracity as to the transcripts, the court will consider these for the purposes of the motion for summary judgment, together with properly submitted affidavits.   However, the court does not consider the other documents as the veracity of these is unknown.   See P.B. § 17-45, 46..  FN2. Both sides have submitted attachments to their respective pleadings which include uncertified deposition excerpts and unauthenticated documents such as email correspondence.   As neither side has indicated a lack of veracity as to the transcripts, the court will consider these for the purposes of the motion for summary judgment, together with properly submitted affidavits.   However, the court does not consider the other documents as the veracity of these is unknown.   See P.B. § 17-45, 46.

Young, Robert E., J.