Jesse Estrada v. Stamford Board of Education et al. (2010)

Memorandum of Decision

On February 28, 2005, the plaintiff in this action, Jesse Estrada, was a twenty-year-old special education student at Westhill High School in Stamford.   On that date she claims to have suffered damages as a consequence of a sexual assault perpetrated on her by a fellow student, defendant Jonathan Alarcon.¹  In addition to Alarcon, the defendants include Stamford Board of Education, The City of Stamford, Dr. Anthony Mazzullo, Elayne Cuttitta, Maria Fiori,² Camille Figluizzi-Bingham, Darlene Desmond, Eugene Charles, Ronnie Griggs.

In her first amended complaint dated February 14, 2008,³ the plaintiff alleges the following facts.   On February 28, 2005, while attending class at Westhill High School, the plaintiff was granted permission to use the bathroom by Desmond, who was acting as a substitute teacher that day.   While she was using the bathroom facilities, the plaintiff alleges that Alarcon, who was another special education student in the same class as the plaintiff, entered the bathroom and forcibly sexually assaulted the plaintiff.   As a result of this alleged conduct, counts one through four of the first amended complaint allege claims against Alarcon for:  (1) assault and battery;  (2) false imprisonment;  (3) intentional infliction of emotional distress and (4) invasion of privacy.

Counts five through ten allege causes of action against the remaining defendants.   In count five, the plaintiff alleges that the City of Stamford “owned, operated, supervised and controlled Stamford Public Schools, which included, but not limited to, Westhill High School ․ and was otherwise responsible for the safety of students attending Westhill.”   Furthermore, the plaintiff alleges that the board of education was “constituted and convened for purposes, including, but not limited to, the implementation and administration of policies, procedures and/or statutory and legal mandates concerning the delivery of public education, supervision and safety of students,” and that each of the individual defendants were responsible for implementing these policies.   In the operative complaint, the plaintiff alleges that at the time of the subject incident, Mazzullo was employed as the superintendent of the Stamford public schools, Cuttitta was the special education coordinator for Westhill High School, Fiori was the assistant principal at Westhill High School, Figliuzzi- Bingham was the principal at Westhill High School, Desmond was a substitute teacher and Charles and Griggs were special education assistants, respectively.

The plaintiff alleges that prior to February 28, 2005, Alarcon exhibited behavior showing a tendency to sexually assault female special education students, including, specifically, the plaintiff.   This conduct included “inappropriate and unwanted touching, exposing himself in public, masturbating on school grounds, inappropriate and explicit sexual speech and comments, and prior attempts to engage in intercourse on school grounds during school hours.”   The plaintiff contends that the defendants were aware of this behavior, but they failed to take appropriate measures to protect the plaintiff from the sexual assault that occurred on February 28, 2005.   Furthermore, the plaintiff alleges that following the sexual assault committed by Alarcon, school officials allowed the two students to ride home together on the school bus.   Accordingly, in count five, the plaintiff states a negligence claim against all of the defendants as a result of their failure to:  (1) properly monitor, supervise and control Alarcon;  (2) properly monitor, supervise and protect the plaintiff;  (3) report Alarcon's sexual abuse of the plaintiff to proper authorities;  (4) secure medical treatment for the plaintiff;  (5) report Alarcon's sexual abuse of the plaintiff to her guardian and (6) investigate properly the events of February 28, 2005, before sending both Alarcon and the plaintiff home on the school bus together.

In count six, the plaintiff brings a claim against the Stamford Board of Education, The City of Stamford, Mazzullo, Figluizzi-Bingham, Cuttitta and Fiori for their failure to train and supervise properly, as well as their decision to hire, Desmond, Charles and Griggs.   Count seven alleges a negligence per se cause of action against all of the defendants for their failure to adhere to the mandated reporting law, General Statutes § 17a-101a et seq.   Furthermore, counts eight and nine state claims against all of the defendants for recklessness and negligent infliction of emotional distress, respectively.   Finally, in count ten, the plaintiff brings an indemnification claim against the City of Stamford pursuant to General Statutes §§ 7-465(a), 7-101a and 10-235.

Presently before the court in a motion for summary judgment dated August 19, 2010 filed by all defendants with the exception of Alarcon.⁴  In their motion the defendant ask the court to grant them summary judgment on counts five through ten of the first amended complaint on the grounds that:  (1) there is no civil liability for negligent failure to prevent peer sexual harassment;  (2) the defendants are not liable for failure to supervise;  (3) there is no liability for failure to report a sexual assault when the alleged victim is over the age of eighteen;  (4) there is no cause of action against the City of Stamford under General Statutes §§ 7-465 and 7-101a;  (5) there is no direct cause of action against the board of education under General Statutes § 10-235 and (6) there is no liability against the City of Stamford because it does not supervise teachers, aids or supervisory personnel such as principals and assistant principals.

DISCUSSION

Attached to the defendants' motion are:  (1) Desmond's sworn affidavit;  (2) Fiori's sworn affidavit;  (3) a series of incident reports prepared by some of the defendants regarding the events of February 28, 2005;  (4) Cuttitta's sworn affidavit;  (5) Figluizzi-Bingham's sworn affidavit;  (6) Griggs' sworn affidavit;  (7) Stamford police department reports describing the subject incident and (8) certified excerpts from the transcript of the plaintiff's deposition.   On September 22, 2010, the plaintiff filed a memorandum of law in opposition to the defendants' motion.   The plaintiff attached the following exhibits to her memorandum of law:  (1) certified excerpts from the transcript of the plaintiffs' deposition;  (2) a copy of the Stamford public schools handbook;  (3) a certified transcript of a conversation between Fiori and Amy Estrada (the plaintiff's mother);  (4) uncertified excerpts from Desmond's deposition transcript;  (5) uncertified excerpts from Cuttitta's deposition transcript;  (6) uncertified excerpts from Fiori's deposition transcript;  (7) Stamford police reports regarding the subject incident;  (8) uncertified excerpts from Amy Estrada' deposition transcript (9) and a series of incident reports regarding the events of February 28, 2005.⁵  The court heard oral argument in this matter at short calendar on September 27, 2010.

DISCUSSION

“Practice Book § 17-49 provides that 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [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.”   (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 (2003).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy his burden the movant 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Zieilnski v. Kotsoris, 279 Conn. 312, 318-19 (2006).

I

GOVERNMENTAL IMMUNITY

The first two grounds listed on the defendants' motion for summary judgment are:  (1) there is no civil liability for negligent failure to prevent peer sexual harassment and (2) the board of education, former superintendent (Mazzullo) and three Westhill supervisors (Fiori, Figliuzzi-Bingham and Cuttitta) are not liable for failure to supervise the three classroom defendants (Desmond, Charles and Griggs).   Although it is not clearly stated in their motion, an examination of the defendants' memorandum of law makes it evident that they are moving for summary judgment on governmental immunity grounds.

General Statutes § 52-557n(a)(2) provides in relevant part:  “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.”   Under Connecticut law, “a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ․ Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ․ The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 306 (2010).

In her memorandum of law in opposition to the summary judgment motion, the plaintiff briefly argues that the defendants were engaged in conduct that was ministerial in nature.   Specifically, the plaintiff argues that schools are required by General Statutes § 10-233a ⁶ to set forth disciplinary policies and procedures, which the Stamford schools did in the form of a handbook.   Furthermore, the plaintiff argues that the defendants had a statutory obligation, pursuant to General Statutes §§ 10-222d and 10-222g, to protect the plaintiff from bullying behavior.   Although it is conceivable that these statutory mandates could give rise to ministerial duties, there are no allegations regarding these statutes or the school handbook in the operative complaint.⁷  Other than a conclusory allegation in paragraph twenty-five of count five that the defendants had a ministerial duty to protect the plaintiff from sexual assault, the defendants were never on notice that the operative complaint was proceeding on a theory that the defendants violated a ministerial duty.   Indeed, the complaint never mentions the alleged source of this ministerial duty.   The court finds that the plaintiff cannot rely on these statutes to establish that the defendants violated a ministerial duty.   Accordingly, the court further finds that, as a matter of law, that the operative complaint alleges violations of discretionary duties rather than ministerial ones.   See, e.g., Segreto v. Bristol, 71 Conn.App. 844, 858, cert. denied, 261 Conn. 941 (2002) (upholding the trial court's determination, on a summary judgment motion, that the defendant “city was immune ․ because the plaintiff's complaint failed to allege that the city negligently failed to perform a ministerial duty ․ [because] a determination as to whether an act or omission is discretionary or ministerial turns on the facts alleged in the complaint ․”).⁸

Accordingly, in order to defeat this summary judgment motion, the plaintiff must raise a genuine issue of material fact as to the applicability of one of the exceptions to governmental immunity.  “There are three exceptions to discretionary act immunity ․ First, liability may be imposed for a discretionary 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.)  Violano v. Fernandez, 280 Conn. 310, 319-20 (2006).   The only potentially applicable exception to the present case is the identifiable person-imminent harm exception.⁹

The defendants argue that the identifiable person-imminent harm exception to governmental immunity does not apply in the present case.   Specifically, the defendants contend that the plaintiff cannot establish that:  (1) the defendants knew that she would be sexually assaulted by a classmate;  (2) that the plaintiff was an identifiable victim in danger of imminent harm from another classmate and (3) that the risk of sexual assault was apparent to the defendants.   The defendants rely on, Doe v. Board of Education, 76 Conn.App. 296 (2003), where the court determined that the exception did not apply in a case where a student was sexually assaulted by classmates on school grounds.   In response, the plaintiff argues that all of the requirements of the identifiable person-imminent harm exception have been satisfied in her case because the defendants, in contrast to those in Doe, supra, had knowledge that Alarcon had previously sexually harassed the plaintiff, and, therefore, the plaintiff was an identifiable victim.   Furthermore, the plaintiff points to the fact that the harassment took place in “entirely predicable” locations, such as the students' classroom and the school bus.   The plaintiff further notes that school administrators allowed the plaintiff to get on the bus with Alarcon even though they knew that sexual contact had occurred between the parties.

“By its own terms, [the identifiable person-imminent harm] 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 [she] comes within this exception.”   (Citation omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 273 (2009).  “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 we have recognized for these purposes is that of schoolchildren attending public schools during school hours.” ¹⁰  (Citations omitted;  internal quotation marks omitted.)  Id., 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.”  (Citations omitted;  internal quotation marks omitted.)  Id., 275-76.

An examination of the evidence attached to the parties' respective memoranda of law reveals the following undisputed facts.   The plaintiff and Alarcon were both special education students in the same class at Westhill High School.   This class had a total of eleven students.   On the date of the subject incident, the class was taught by Desmond, who was a substitute teacher, along with Charles and Griggs, who were teacher's aides.   Sometime between 10:30 and 11:00 a.m., the plaintiff asked if she could use the single-unit girl's bathroom, which was located in the same room as the special education classroom.   Desmond granted the plaintiff permission to do so.   Soon after the plaintiff's request, Alarcon asked to go and get a drink from the drinking fountain, which was also located in the same classroom.   At this point in time, there were only five students in the classroom, as the other students were with Griggs and Charles participating in school-related activities.   After a few minutes, Desmond knocked on the door to the girl's bathroom, and the plaintiff indicated that she was not finished.   When another female student stated that she needed to use the restroom facilities, Desmond once again knocked on the bathroom door, and the plaintiff indicated that she was still not done.   When the plaintiff eventually exited the bathroom, Desmond checked in the bathroom and did not see anybody else in there.   The other female student then proceeded to enter the bathroom and she immediately discovered that Alarcon was there and that he was not fully dressed.   Consequently, at approximately 11:15 a.m., Griggs, who had by this time returned to the classroom, took both the plaintiff and Alarcon to Cuttitta's office.   Cuttitta questioned the plaintiff and Alarcon together, and neither admitted that anything had occurred.   After the plaintiff and Alarcon were separated, however, the plaintiff indicated that some type of sexual contact had occurred between herself and Alarcon.¹¹  Cuttitta then brought Alarcon and the plaintiff into Fiori's office, where they were further questioned.   At 11:45 a.m., the dismissal bell sounded because school was closing early due to a snowstorm.   Alarcon and the plaintiff were then allowed to ride home together on the school bus.   The plaintiff reported that she was teased and called a liar by Alarcon while she was on the bus.

According to the plaintiff's deposition testimony, Alarcon made numerous unwanted romantic advances prior to the date of the subject incident.   For instance, the plaintiff states that Alacron “was very inappropriate and trying to touch my hand, and trying to kiss me, but I moved my head, and I moved my hand.”   The plaintiff also testified that Alarcon exposed his penis to her when the class was watching a movie.   All of these incidents occurred in the same special education classroom as the alleged sexual assault.   The plaintiff indicated that she told school officials about these events, and these contentions are supported by statements made in Amy Estrada's deposition.   In fact, in a transcribed telephone conversation with Amy Estrada, which is attached as the plaintiff's exhibit C, Fiori stated that Alarcon has “got, you know, lack of judgment and, you know, impulse control and those kinds of things.”

From these facts, it can reasonably be concluded that the defendants were on notice of Alarcon's propensity to make sexual advances to the plaintiff and that the likely location of these events would be the special education classroom where both students attended class.   Consequently, the present case is factually distinguishable from Doe v. Board of Education, supra, 76 Conn.App. 296.   In Doe, the Appellate Court affirmed the trial court's granting of a motion to strike brought by the board of education of the City of New Haven.   The plaintiff in Doe alleged that she was sexually assaulted by three male students in an unsupervised classroom.   When determining that the identifiable person-imminent harm exception did not apply, the Appellate Court noted that the plaintiff failed to allege that school officials were on notice that the alleged perpetrators had previously touched other students in an inappropriate manner.   Id., 297 n.3. Furthermore, the Doe court stated that “the alleged danger ․ was not limited to a particular area of the school and a particular time period ․ [T]he harm ․ potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school.”  Id., 305.   In contrast, in the present case, the risk of Alarcon sexually assaulting the plaintiff was potentially limited to a specific area of the school because the two students were in the same self-contained classroom.   Moreover, the plaintiff might well qualify as an identifiable victim because school officials arguably knew that Alarcon had previously made sexual advances to the plaintiff.

With respect to the alleged sexual assault itself, the “imminent harm” element of the three-part test does not appear to be met.   The plaintiff's evidence does not demonstrate that she was subject to imminent harm at the time when the subject incident occurred.   Imminent harm is “harm ready to take place within the immediate future ․” Tryon v. North Branford, 58 Conn.App. 702, 712 (2000).  “Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future.   In order to meet the imminent harm prong of this exception ․ the risk must be temporary and of short duration ․ Such conditions that have been identified as imminent include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door.” ¹²  (Internal quotation marks omitted.)   Stavrakis v. Price, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001285 (September 7, 2010, Roche, J.).   There is no evidence in the record as to when Alacron made these past sexual advances to the plaintiff.   Furthermore, there is no evidence indicating that school officials should have known that Alarcon would sexually assault the plaintiff on the morning of February 28, 2005 or at another time or date of close proximity.   Consequently, the court finds that the plaintiff has failed to demonstrate that there is a genuine issue of material fact as to the applicability of the identifiable-person imminent harm exception at least with respect to the alleged sexual assault itself.

However, the court reaches a different conclusion with respect to those allegations of the plaintiff's fifth count concerning the conduct of Fiori and Cuttitta following Alarcon's alleged sexual assault on the plaintiff.   Fiori and Cuttitta admit in their affidavits that they knew some sort of sexual conduct had occurred between the plaintiff and Alarcon.   Despite this fact, they did not stop the plaintiff from taking the bus with Alarcon.   At that time, the plaintiff was an identifiable victim of harassment by Alacron, and the risk was limited in geographic and temporal scope because the plaintiff and Alacorn were riding the bus together and the risk only lasted the duration of the bus ride home.   Moreover, the risk of harm was arguably imminent because the dismissal bell had just sounded to release the students early because of a snowstorm, and the bus would presumably be leaving soon thereafter.   See, e.g., Purzycki v. Fairfield, 244 Conn. 101, 110 (1998) (holding that the identifiable person-imminent harm exception was satisfied when the risk of harm “involve[d] 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”).   Although Fiori and Cuttitta both attest in their affidavits that the plaintiff voluntarily left to take the bus when the bell sounded, that fact does not completely absolve them of liability.   A jury might reasonably conclude that it was negligent for Fiori and Cuttitta to allow a special education student to take the bus home with the individual who had harassed her in the past and who may have just perpetrated a sexual assault upon her.   Accordingly, the court finds the defendants have failed to demonstrate that no issues of material fact as to the applicability of the identifiable person-imminent harm exception with respect to each and every allegation of the plaintiff's fifth, sixth, eighth and ninth counts.

Although the defendants may be entitled to judgment as a matter of law as to their alleged negligence regarding the sexual assault, the allegation regarding Fiori and Cuttitta's decision to allow the plaintiff to ride the bus is interspersed into the factual allegations regarding the sexual assault in counts five, six, eight and nine.   Each of these counts sound in a negligence based theory.   Consequently, in order to grant the defendants' motion, the court would have to grant summary judgment as to a portion of each of those counts.

“There is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint.   At the trial court level there is a split of authority on the issue.   A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment.   Nevertheless, some courts have found that the language of Practice Book § 17-51 ․ authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim.”  (Internal quotation marks omitted.)   Pray v. Crystal Mall, LLC, Superior Court, judicial district of New London, Docket No. CV 07 5002405 (December 10, 2009, Peck, J.) (49 Conn. L. Rptr. 16, 18).¹³  The Connecticut Supreme Court recently noted, but did not resolve, this split of authority.  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 809 n.41 (2009).   This court has previously determined that a party cannot “isolate a single issue ․ and resolve it on a motion for summary judgment.”   Teachers Ins. and Annuity Assn. of America v. Water Pollution Control Authority, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007101 (November 15, 2007, Tobin, J.);   see also Ouzounidis v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 08 5019441 (January 21, 2010, Tobin, J.) (49 Conn. L. Rptr. 251) (denying summary judgment motion addressed to a portion of a count).   Consequently, in the absence of appellate authority to the contrary, this court will adhere to its past rulings and determine that it cannot grant summary judgment as to the allegations within a count.   Accordingly, the court denies the defendants' summary judgment motion as to counts five, six, eight and nine.¹⁴

II

NEGLIGENCE PER SE

Next, the defendants move for summary judgment as to count seven, which alleges a negligence per se cause of action due to the defendants' failure to report suspected child abuse under Connecticut's mandated reporter law.   In count seven, the plaintiff alleges that the defendants had a legal obligation, pursuant to General Statutes §§ 17a-101a and 17a-101b, to report the abuse that the plaintiff suffered to the department of children and families or another law enforcement agency.   The plaintiff contends that the defendants breached this duty when they failed to report the incident to the appropriate authorities.   In their memorandum of law in support of their summary judgment motion, the defendants argue that they had no such duty because the plain language of § 17a-101a only imposes a legal obligation to report abuse of a child under the age of eighteen years.   The parties all agree that at the time of the alleged sexual assault, the plaintiff was twenty years old.   In response, the plaintiff freely admits that § 17a-101a only refers to individuals under the age of eighteen, but notes that § 17a-101b does not contain a maximum age limitation for the word “child.”   Moreover, the plaintiff points to General Statutes § 10-76a(2), which defines a special education “child” as “any person under twenty-one years of age.”

“Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct.   To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances.  [It] merely decide[s] whether the relevant statute or regulation has been violated.   If it has, the defendant was negligent as a matter of law.”  (Internal quotation marks omitted.)  Shukis v. Board of Education, 122 Conn.App. 555, 580 (2010).  “[T]he two-pronged test applied to establish negligence per se is:  (1) that the plaintiff was within the class of persons protected by the statute;  and (2) that the injury suffered is of the type that the statute was intended to prevent.”  Id.

Section 17a-101a provides in relevant part:  “Any mandated reporter, as defined in section 17a-101, who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected, as defined in section 46b-120, (2) has had nonaccidental physical injury, or injury which is at variance with the history given of such injury, inflicted upon such child, or (3) is placed at imminent risk of serious harm, shall report or cause a report to be made in accordance with the provisions of sections 17a-101b to 17a-101d, inclusive.”  (Emphasis added.)   According to its plain language, § 17a-101a only creates a reporting duty as to children under the age of eighteen.   In the specific context of General Statutes § 17a-101 et seq., the Connecticut Supreme Court has stated that “[i]n determining the class of persons protected by a statute ․ we review the statutory scheme in its entirety, including the design of the scheme as enacted.”  (Internal quotation marks omitted.)  Ward v. Greene, 267 Conn. 539, 551 (2004).   An examination of § 17a-101 et seq. reveals that the only specific age reference is found in § 17a-101a, which limits the reporting duty to children under the age of eighteen.   As our Supreme Court has stated that the class of persons protected by § 17a-101 et seq. is determined by a review of the “statutory scheme in its entirety,” the court concludes that the statutory reporting duty only extends to children under the age of eighteen.   Although § 10-76a(2) does define “child” in the context of special education to extend to the age of twenty-one, this definition is found in an entirely different title of the General Statutes.   If the legislature had wanted to require mandated reporters to divulge the suspected abuse of special education students up to the age of twenty-one, it could have written that requirement into the statute.¹⁵  Accordingly, because the plaintiff is not in the class of persons protected by §§ 17a-101a and 17a-101b, the court grants summary judgment in favor of the defendants with respect to count seven.

III

LIABILITY OF THE CITY OF STAMFORD

The defendants also move for summary judgment on count ten, which alleges indemnity against the City of Stamford pursuant to General Statutes §§ 7-465(a), 7-101a and 10-235.   The defendants first argue that there can be no cause of action against the City under General Statutes §§ 7-465 and 7-101a.   As authority for this proposition, the defendants only cite to a Superior Court case, Ritter v. Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0178893 (June 12, 2003, Lewis, J.T.R.), where the court granted a motion to strike claims brought against a town.   In opposition, the plaintiff argues the following:  the defendants “rely on the issue of exercise of judgment in their argument.   Essentially if the school employees are not acting on a ministerial duty at the time of the offense, there can be no liability against the City. Again, the bullying of [the plaintiff] in the past, and the reports of same under C.G.S. § 10-222 et seq., plus the clear violations of the schools' own rules and regulations on the matter, as proscribed by § 10-233 made both the protection of [the plaintiff] in the classroom that day, as well as the requirement for an investigation, and the protection of [the plaintiff] from the harm she suffered as a result of being sent home on the same school bus as the individual who had just raped her hours earlier, a ministerial duty, and therefore the City Defendants' argument here holds no weight.”

“[A]t common law, municipal officers were liable for their own torts, but the municipality, their municipal master, was not vicariously liable for those torts ․ [Section] 7-465(a) effectively circumvented the general common law immunity of municipalities from vicarious liability for their employees' acts by permitting injured plaintiffs to seek indemnification from a municipal employer for such acts under certain circumstances and after conformance with certain statutory requirements, but it did not bar a plaintiff from seeking redress from those employees ․ Municipal liability via an indemnification theory under § 7-465(a) requires, however, that the plaintiff 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.”  (Citation omitted;  internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 337 (2009).

In their memorandum of law, the defendants have not offered any legal analysis as to why the plaintiff is not authorized to seek indemnification from the City of Stamford.   Rather, the defendants have only provided the court with a block quotation from Judge Lewis' decision in Ritter.   In this quoted passage, Judge Lewis states:  “Thus, the only basis on which the town and its board of education may be liable is General Statutes § 52-557n(a)(1), which provides that a municipality is liable for its own negligence or that of its employees acting within the scope of their employment.   However, subsection (2)(B) of that statute provides ․ that a municipality is not liable for the negligence of its employees, whose acts or omissions ‘require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law ․’ Hence, the plaintiffs ․ have not set forth a cognizable cause of action against a municipality or its board of education because they do not allege that the actions of the two teachers/staff were not ‘in the exercise of judgment or discretion’ as required by General Statutes § 52-557n(a)(2)(B).”  Ritter v. Westport, supra, Superior Court, Docket No. CV 00 0178892.   A close examination of Judge Lewis' decision reveals that the reason he determined that the plaintiff could only bring a claim against the defendant town under § 52-557n(a)(1) was because “there are no individual teachers or employees who are defendants in this present action.   Because no municipal employee was joined as a defendant in this action, the indemnity statutes have no applicability to this case ․” Id. This conclusion is in accord with the Supreme Court's recent discussion in Grady, supra, 294 Conn. 324.   In contrast, in the present case, the plaintiff has named individual school employees as defendants and then brought an indemnification claim against the City of Stamford in a separate count.   Moreover, in count ten, the plaintiff alleges that each of the individual defendants were “agents, servants and employees, municipal employees, municipal officers, and/or other representatives” of the City of Stamford.   Consequently, the allegations in count ten set forth a facially valid claim for indemnification.   Therefore, the court finds that the defendants are not entitled to summary judgment on the plaintiff's tenth count.

The defendants also argue that the City of Stamford is not liable because, pursuant to General Statutes § 10-220, the legislature has delegated responsibility for education to local boards of education and not to municipalities.   Although the defendants cite no case law for this contention, there is some Superior Court authority supporting this legal position.   See, e.g, Ritchie v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5001722 (May 27, 2010, Hiller, J.) (granting motion for summary judgment because “the duties allegedly breached by the city [were], in accordance with the General Statutes, owed to the plaintiffs by the defendant board of education, not the city”);  Miller v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0144988 (October 2, 1996, Ryan, J.) (17 Conn. L. Rptr. 667, 667) (granting motion to strike because “[t]he plaintiff does not allege that the city owed a duty to the plaintiff ․ and from where the duty arose.  General Statutes § 10-220 places on the Board of Education the duty of maintenance of schools, and the duty to hire and fire teachers”).   It seems unlikely, however, that there is an absolute rule of law that a municipality cannot be held liable for the actions of school personnel given the fact that our appellate courts have heard many cases alleging injuries in schools where a municipality was a named defendant.   See, e.g., Haynes v. Middletown, supra, 122 Conn.App. 72;  Prescott v. Meriden, 273 Conn. 759 (2005);  Segreto v. Bristol, supra, 71 Conn.App. 844.   As stated previously, the operative complaint alleges that all of the individual defendants were agents, servants or employees of the City of Stamford.   The defendants have not offered any evidence that disputes these allegations.   For instance, none of the individual employees attest in their affidavits that they were not employed by the City of Stamford.   As a result, the defendants have not met their burden of demonstrating that the City cannot be held liable for the allegedly negligent actions of its employees under a respondeat superior theory.   Accordingly, the court finds that the City of Stamford has failed to establish that it is entitled to summary judgment with respect to the tenth count of the plaintiff's complaint.

CONCLUSION

For all of the reasons stated above, the court grants the motion for summary judgment as to count seven, but denies it as to counts five, six, eight, nine and ten.

David R. Tobin, J.

FOOTNOTES

FN1. The pleadings are inconsistent as to how this defendant's surname is spelled.   This memorandum will use the spelling “Alarcon” because it is the spelling used by that defendant's counsel..  FN1. The pleadings are inconsistent as to how this defendant's surname is spelled.   This memorandum will use the spelling “Alarcon” because it is the spelling used by that defendant's counsel.

FN2. The operative complaint alleges that the spelling of this defendant's name is “Mary Fiore.”   However, the memorandum of law in support of the defendants' motion for summary judgment indicates that the correct spelling is “Maria Fiori.”.  FN2. The operative complaint alleges that the spelling of this defendant's name is “Mary Fiore.”   However, the memorandum of law in support of the defendants' motion for summary judgment indicates that the correct spelling is “Maria Fiori.”

FN3. After the filing of this motion for summary judgment, on September 20, 2010, the plaintiff filed a request for leave to file an amended complaint.   On October 1, 2010, the defendants filed an objection to this request, which appeared on the non-arguable calendar on October 12, 2010.   The court, Karazin, J.T.R., marked this objection off until this court could issue a ruling on the motion for summary judgment.   Accordingly, the operative complaint remains the first amended complaint..  FN3. After the filing of this motion for summary judgment, on September 20, 2010, the plaintiff filed a request for leave to file an amended complaint.   On October 1, 2010, the defendants filed an objection to this request, which appeared on the non-arguable calendar on October 12, 2010.   The court, Karazin, J.T.R., marked this objection off until this court could issue a ruling on the motion for summary judgment.   Accordingly, the operative complaint remains the first amended complaint.

FN4. In this memorandum of decision, the term “defendants” will refer to the moving defendants, only, and does not include defendant, Alarcon..  FN4. In this memorandum of decision, the term “defendants” will refer to the moving defendants, only, and does not include defendant, Alarcon.

FN5. Under Connecticut law, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 196 Conn.App. 88, 92 (2006).   Neither side has raised any objection to the uncertified attachments offered by the opposing party.   Consequently, the court will, in the exercise of its discretion, consider all of the documentary evidence submitted by the parties when ruling on this motion for summary judgment..  FN5. Under Connecticut law, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 196 Conn.App. 88, 92 (2006).   Neither side has raised any objection to the uncertified attachments offered by the opposing party.   Consequently, the court will, in the exercise of its discretion, consider all of the documentary evidence submitted by the parties when ruling on this motion for summary judgment.

FN6. Although the plaintiff's memorandum of law cites to General Statutes § 10-233a as the source of this requirement, it appears that the correct statute is General Statutes § 10-233e..  FN6. Although the plaintiff's memorandum of law cites to General Statutes § 10-233a as the source of this requirement, it appears that the correct statute is General Statutes § 10-233e.

FN7. The plaintiff has inserted allegations regarding these statutes into her proposed second amended complaint.   As noted previously, however, this is not the operative complaint in this case.   In their objection to the plaintiff's request for leave to file the second amended complaint, the defendants claim that they would experience substantial prejudice if the plaintiff were allowed to amend her complaint as proposed..  FN7. The plaintiff has inserted allegations regarding these statutes into her proposed second amended complaint.   As noted previously, however, this is not the operative complaint in this case.   In their objection to the plaintiff's request for leave to file the second amended complaint, the defendants claim that they would experience substantial prejudice if the plaintiff were allowed to amend her complaint as proposed.

FN8. The defendants have yet to file an answer in this case.   Ordinarily, “governmental immunity must be raised as a special defense in the defendant's pleadings ․ Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] ․ The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway ․ Nevertheless, (w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.”  (Citations omitted;  internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 321 (2006).   Although the Violano court only specifically endorsed the practice of a trial court deciding the issue of governmental immunity as a matter of law in the context of a motion to strike, Violano relies on Segreto v. Bristol, Conn.App. 844, cert. denied, 261 Conn. 941 (2002), where a similar determination was made on a summary judgment motion.   Therefore, even though the defendants have yet to plead governmental immunity as a special defense in their answer, the issue properly before the court..  FN8. The defendants have yet to file an answer in this case.   Ordinarily, “governmental immunity must be raised as a special defense in the defendant's pleadings ․ Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] ․ The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway ․ Nevertheless, (w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.”  (Citations omitted;  internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 321 (2006).   Although the Violano court only specifically endorsed the practice of a trial court deciding the issue of governmental immunity as a matter of law in the context of a motion to strike, Violano relies on Segreto v. Bristol, Conn.App. 844, cert. denied, 261 Conn. 941 (2002), where a similar determination was made on a summary judgment motion.   Therefore, even though the defendants have yet to plead governmental immunity as a special defense in their answer, the issue properly before the court.

FN9. In a recent case discussing the identifiable person-imminent harm exception, the Appellate Court stated that if a “defendant's actions [are] discretionary, it then clearly [becomes] the plaintiff's burden to plead and to prove the exception to that immunity.”  Haynes v. Middletown, 122 Conn.App. 72, 80-81, cert. granted, 298 Conn. 907 (2010)..  FN9. In a recent case discussing the identifiable person-imminent harm exception, the Appellate Court stated that if a “defendant's actions [are] discretionary, it then clearly [becomes] the plaintiff's burden to plead and to prove the exception to that immunity.”  Haynes v. Middletown, 122 Conn.App. 72, 80-81, cert. granted, 298 Conn. 907 (2010).

FN10. When determining that school children are foreseeable victims, our Supreme Court has focused on the fact that “they [are] legally required to attend school rather than being there voluntarily [and] their parents [are] thus statutorily required to relinquish their custody to those officials during those hours ․” (Internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 107 (2007).   This language raises the issue of whether a twenty-year-old special education student would qualify as a foreseeable victim because she is not required to attend school.   See General Statutes § 10-184 (mandating compulsory school attendance for children until the age of eighteen or sixteen with permission to withdraw granted by parents).   This issue was not raised by either party in their respective memoranda of law, and research has failed to reveal any cases addressing this question.   In the absence of any controlling authority, this court cannot find that the plaintiff's age alone disqualifies her from consideration as an identifiable victim..  FN10. When determining that school children are foreseeable victims, our Supreme Court has focused on the fact that “they [are] legally required to attend school rather than being there voluntarily [and] their parents [are] thus statutorily required to relinquish their custody to those officials during those hours ․” (Internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 107 (2007).   This language raises the issue of whether a twenty-year-old special education student would qualify as a foreseeable victim because she is not required to attend school.   See General Statutes § 10-184 (mandating compulsory school attendance for children until the age of eighteen or sixteen with permission to withdraw granted by parents).   This issue was not raised by either party in their respective memoranda of law, and research has failed to reveal any cases addressing this question.   In the absence of any controlling authority, this court cannot find that the plaintiff's age alone disqualifies her from consideration as an identifiable victim.

FN11. The parties dispute whether the sexual contact between the plaintiff and Alarcon was consensual..  FN11. The parties dispute whether the sexual contact between the plaintiff and Alarcon was consensual.

FN12. These specific factual examples have been gleaned from the leading cases where the Connecticut appellate courts have applied the identifiable person-imminent harm exception to school children, which are Burns v. Board of Education, 228 Conn. 640 (1994), Purzycki v. Fairfield, 244 Conn. 101 (1998) and Colon v. Board of Education, 60 Conn.App. 178, cert. denied, 255 Conn. 908 (2000), respectively..  FN12. These specific factual examples have been gleaned from the leading cases where the Connecticut appellate courts have applied the identifiable person-imminent harm exception to school children, which are Burns v. Board of Education, 228 Conn. 640 (1994), Purzycki v. Fairfield, 244 Conn. 101 (1998) and Colon v. Board of Education, 60 Conn.App. 178, cert. denied, 255 Conn. 908 (2000), respectively.

FN13. Practice Book § 17-51 provides:  “If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just;  and the action may be severed and proceeded with as respects the remainder of the claim.”.  FN13. Practice Book § 17-51 provides:  “If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just;  and the action may be severed and proceeded with as respects the remainder of the claim.”

FN14. In their memorandum of law, the defendants also argue that counts five through nine should be “stricken” as to the defendant Stamford Board of Education because General Statutes § 10-235 does not provide for a direct cause of action by an injured person against a board of education.   By the defendants' own admission, the plaintiff does not allege § 10-235 as a basis for her claim against the board of education.   Rather, the defendants note that § 10-235 is mentioned in the plaintiff's notice of intent to sue.   Consequently, the defendants are arguing that the board of education is entitled to summary judgment because a direct cause of action is not authorized by a statute that is not alleged in the operative complaint.   This type of argument is an insufficient basis to grant summary judgment in the movants' favor.   See, e.g., Papon v. Board of Education, Superior Court, judicial district of New London, Docket No. 555824 (August 13, 2001, Martin, J.) (denying motion to strike brought on the ground that § 10-235 does not provide for an action against a board of education because “the plaintiffs have not filed suit pursuant to General Statutes § 10-235”)..  FN14. In their memorandum of law, the defendants also argue that counts five through nine should be “stricken” as to the defendant Stamford Board of Education because General Statutes § 10-235 does not provide for a direct cause of action by an injured person against a board of education.   By the defendants' own admission, the plaintiff does not allege § 10-235 as a basis for her claim against the board of education.   Rather, the defendants note that § 10-235 is mentioned in the plaintiff's notice of intent to sue.   Consequently, the defendants are arguing that the board of education is entitled to summary judgment because a direct cause of action is not authorized by a statute that is not alleged in the operative complaint.   This type of argument is an insufficient basis to grant summary judgment in the movants' favor.   See, e.g., Papon v. Board of Education, Superior Court, judicial district of New London, Docket No. 555824 (August 13, 2001, Martin, J.) (denying motion to strike brought on the ground that § 10-235 does not provide for an action against a board of education because “the plaintiffs have not filed suit pursuant to General Statutes § 10-235”).

FN15. For instance, the mandated reporter statute in Ohio provides in relevant part:  “No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age or a mentally retarded, developmentally disabled, or physically impaired child under twenty-one years of age has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child shall fail to immediately report that knowledge or reasonable cause to suspect to the entity or persons specified in this division.”  (Emphasis added.)   Ohio Rev.Code Ann. § 2151.421(A)(1)(a).   The absence of similar language in Connecticut's statute strongly indicates that, under the law of this state, the defendants had no duty to report abuse allegedly suffered by a twenty-year-old special education student..  FN15. For instance, the mandated reporter statute in Ohio provides in relevant part:  “No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age or a mentally retarded, developmentally disabled, or physically impaired child under twenty-one years of age has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child shall fail to immediately report that knowledge or reasonable cause to suspect to the entity or persons specified in this division.”  (Emphasis added.)   Ohio Rev.Code Ann. § 2151.421(A)(1)(a).   The absence of similar language in Connecticut's statute strongly indicates that, under the law of this state, the defendants had no duty to report abuse allegedly suffered by a twenty-year-old special education student.

Tobin, David R., J.