Christol Simmons et al. v. City of Derby et al. (2011)

MEMORANDUM OF DECISION RE (# 136) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This is an action by the plaintiff, Christol Simmons, for personal injuries and other damages she allegedly sustained as a result of a slip and fall on the premises of Derby High School on or about January 3, 2007.   The defendants in this action are the City of Derby (the City), the Board of Education of the City of Derby (BOE) and Janet Robinson, Superintendent of Schools for the City of Derby (Robinson).   The plaintiff is joined by her husband, Raymond Simmons who seeks compensation for loss of consortium as a result of his wife's alleged injuries and damages.

The defendants have filed a motion for summary judgment arguing that they are entitled to judgment as a matter of law for the reasons that (1) the plaintiffs' claims of negligence as to all defendants are barred as a matter of law pursuant to the doctrine of governmental immunity;  (2) the plaintiff Christol Simmons is unable to establish a prima facie case as she cannot identify the location or cause of her fall;  and (3) the plaintiff Raymond Simmons' claims for loss of consortium fail as a matter of law because they are derivative of Christol Simmons' claims which are barred.

The parties appeared and were heard regarding the relief sought in the defendants' motion and the Court reserved decision, allowing post-argument briefs.   The defendants filed a brief on December 15, 2010.

Practice Book § 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted to 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.”

While the party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, the opposing party must present evidence demonstrating the existence of such issue.  Haesche v. Kissner, 229 Conn. 213, 217 (1994).

“The burden is on the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded.”  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984).

The defendants' brief in support of the motion contained a very detailed and authoritative recitation of the principles of law regarding the doctrine of sovereign immunity as it relates to the facts in this case and the Court adopts that submission as part of its findings.   Most notably discussed were the issues of the common-law concept of sovereign immunity and the impact of the statutes, most particularly § 52–557, et seq., C.G.S. and by a line of cases involving the tort liability of municipal employees such as Burns v. Board of Education, 228 Conn. 640 (1994).

In their memorandum in opposition to the motion for summary judgment, the plaintiffs acknowledge the doctrine of sovereign immunity, but claim that in the instant case the facts are “atypical” because the plaintiff is not a student or parent but rather an employee of a company with whom the defendants had a contractual arrangement regarding food services.   That, according to the plaintiff, brings into play issues concerning maintenance obligations of the defendants as well as issues of pecuniary benefit to the defendants.

Application of the doctrine of governmental immunity would bar the plaintiffs' lawsuit.   There are exceptions to the doctrine which would render it inapplicable and allow the plaintiffs' claims.   The defendant argues that none of those exceptions apply in this case and that the doctrine, therefore, bars this action by the plaintiff.

Sec. 52–557n, C.G.S. abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages.  Tryon v. North Branford, 58 Conn.App. 702, 721 (2000).   It creates liability on the part of municipalities but under limited circumstances.   Subsection (a)(1)(A) of that statute provides, in relevant part, “a political subdivision of the Estate shall be liable for damages to person or property ․ caused by ․ 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.”  (Emphasis added.)

That statute goes on to limit the liability of a municipality, however, in certain circumstances.   It provides that, “a political subdivision of the state shall not be liable for damages to person or property caused by ․ 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.” § 52–577n(a)(2)(B) (emphasis added).

Our Supreme Court has identified three exceptions to discretionary act immunity.   The first allows for liability to be imposed when a discretionary act involves malice, wantonness or the intent to injure.   The second allows liability to be imposed when a statute provides for a cause against a municipality for failure to enforce certain laws.   The third allows liability to be imposed when the circumstances make it apparent to the public officer that his or her failure to act [or action] would be likely to subject an identifiable person to imminent harm.   See Doe v. Petersen, 279 Conn. 607, 615–16 (2006).

In order to qualify for the identifiable victim exception a plaintiff must show:  (1) an identifiable victim;  (2) an imminent harm;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.  Doe v. Petersen, 279 Conn. 607, 615–16 (2006).

In this case, as in Doe, the only relevant exception to discretionary act immunity is the issue of imminent harm to an identifiable person.

In the instant case, the injured person was an employee of a food service company which provided meals to students pursuant to a contract with the Board.   In Durrant v. Board of Education, 284 Conn. 91 (2007), our Supreme Court held that “since the codification of the common law under § 52–577n ․ [t]he only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours.”  Durrant, supra, p. 107.

The defendants argue that in this case the plaintiff cannot be distinguished from other members of the general public and that she does not qualify for status as an “identifiable person” within the meaning of the exception.   The Court agrees with the defendants.

Having found that the plaintiff does not qualify for “identifiable person” status, there is no need for the Court to go on to consider whether the “imminent harm or “public official awareness” prongs of the three-part Doe v. Petersen criteria have been met.

Section 52–577n(a)(1) goes on to provide that a political subdivision of the state shall be liable for damages to person or property caused by “(B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit” (emphasis added).

The parties are at odds as to whether or not the alleged tortious conduct in this case is inextricably linked to the alleged proprietary function of the defendants in the provision of school meals to its students.   The defendants argue that the alleged negligence (wet floors as a result of mopping and lack of warning to plaintiff) is in no way related to the alleged proprietary function of serving student lunches.

The unrefuted facts are that there was a food service contract ¹ between the BOE and the plaintiff's employer (Sodexho) in effect on the date of the incident, that the plaintiff was at the school to serve lunches pursuant to that contract, and that the plaintiffs alleged fall took place when she was on her way to use the ladies' room.

The defendants argue that under those facts, the plaintiff was not “working” when the incident occurred and, consequently, there is no inextricable link between the alleged negligence on the part of the defendants and the school's proprietary function of providing lunches to its students.

The Court finds that there is little or no merit to the defendants' contention that the plaintiff's claim is not inextricably linked to the service contract simply because she was purportedly on her way to the ladies' room when she fell.   It is unrefuted that she was on the premises to work for her employer at the time.   That fact is borne out by Sodexho's workman's compensation complaint which is a part of this case.

The more contentious argument regarding the “proprietary issue is the question of whether or not the contract with Sodexho provided a “profit or pecuniary benefit” to the defendants as required by § 52–577n(1)(B), C.G.S. As noted in both parties' post-argument briefs, evidence as to that issue was to be based, in large part on the deposition testimony by defendant Steven Tracey, Derby's Superintendent of Schools as it impacted on the affidavit filed over his name as part of the motion for summary judgment.

The deposition testimony of Tracey included his concession that all he could be certain of was that the food services contract was not operating at a deficit.   He has no independent knowledge as to whether or not the program was generating a profit.   Having considered the argument and the evidence offered by the plaintiff, the Court finds that there is insufficient evidence before the Court to permit it to find, as a matter of law that there is no genuine issue of material fact as to whether the BOE derived a profit or pecuniary benefit,” as those terms are used in the statute, as a result of its food service contract with Sodexho.

As part of the defendants' motion for summary judgment, it is argued that the defendant City of Derby is not a proper party to this action because it owed no duty to the plaintiff to maintain the school premises and, therefore could not breach any duty owed to the plaintiff.

“The existence of a duty is a question of law for the court to decide.”   Petriello v. Kalman, 215 Conn. 357, 382–83 (1990).

As cited by the plaintiff, “General Statutes 10–240 provides in part:  ‘Each town shall through its board of education, maintain the control of all public schools within its limits ․ Local Boards of Education act on behalf of the municipality, then in their function of maintaining control over public schools within the municipality's limits ․’ “ Town of Cheshire v. McKenny, 182 Conn. 253 (1980).

The Court finds that the defendants' claim that the City of Derby owed no duty to the plaintiff is without merit.

Lastly, the defendants have raised as an additional ground for the entry of summary judgment against the plaintiff the claim that the plaintiff is unable to prove a prima facie case against the defendants for the reason that she is unable to identify the location or the cause of her fall.   They predicate that claim upon the deposition testimony of the plaintiff wherein she testified that she didn't know how far she may have walked into the hallway and that she has no independent knowledge that the area has been mopped by janitors prior to her fall.

A review of the plaintiff's deposition testimony discloses that her recollection of where she was in relation to the cafeteria and the hallway is quite specific.   She testified that she was at “a little bit of a dip where the tile meets the linoleum ․” (Ex. A).  The Court cannot possibly agree with the defendants' argument the plaintiff “could not identify the location of her fall.”

As for basis for the plaintiff's allegation as to what caused her to fall, the plaintiff points out that the defendants have produced a signed statement of an independent witness who was on the scene very shortly after the incident.   In that document the witness states, “She walked on the wet floor.”

The Court finds the City of Derby is a proper defendant in this action.

The Court finds that the defendant's claim that the plaintiff is unable to establish a prima facie case for the reasons it cited is without merit.

The Court finds that the plaintiff does not qualify as an “identifiable person” as that term is used in the determination of the exception to the doctrine of sovereign immunity, however the Court does find that the acts of the defendants were “proprietary” acts as a result of the contract for food services with the plaintiff's employer, Sodexho.   For that reason, the allegedly tortious conduct is found to have been inextricably linked to a proprietary function.

The Court finds that there is insufficient evidence before the Court to determine whether or not the contact between Sodexho and the defendants generated a profit or pecuniary gain for the defendants.   A genuine issue of material fact remains as to that issue.

For the foregoing reasons, the defendants' motion for summary judgment is hereby denied.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

FOOTNOTES

FN1. Under the contract the board is guaranteed a profit of $27,126.00 in the first year.   It also provides, “If the annual financial return for the Food Service Program falls short of the aforementioned amount, Sodexho shall pay the difference to the District ․” Sec. 7.4 of the contract..  FN1. Under the contract the board is guaranteed a profit of $27,126.00 in the first year.   It also provides, “If the annual financial return for the Food Service Program falls short of the aforementioned amount, Sodexho shall pay the difference to the District ․” Sec. 7.4 of the contract.

Doherty, Joseph W., J.