Adaliz Negron v. Miseal Ramirez (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 121)

FACTS

On November 9, 2009, the plaintiffs, Magdaliz Negron, individually and as guardian on behalf of her niece, Adaliz Negron, a minor, filed a twelve-count complaint ¹ against the defendants, Miseal Ramirez,² Francisco Ramirez, Maria Ramirez, the Norwich Board of Education (Board), the City of Norwich (City) and Scott Fain, alleging the following facts.   On May 1, 2008, the minor plaintiff Adaliz Negron arrived at the middle school she attended, and, during one of her regular classes, the defendant Miseal Ramirez, without warning, consent or provocation, proceeded to place his hands on the minor plaintiff and fondled her breasts, genitalia and body.   The complaint alleges that the minor plaintiff reported the incident to the school principal, the defendant Scott Fain. Fain had been notified previously that the defendant Miseal Ramirez had threatened physical harm against the minor plaintiff.   Both plaintiffs allege that the defendants Fain, Board and City were negligent in failing to execute proper disciplinary action, failing to contain disorderly and violent students, failing to maintain sufficient security measures, failing to take reasonable precaution to avoid harm to the plaintiff and failing to maintain adequate control of its students.

The defendants, Board, City and Fain (movants), filed a motion for summary judgment on December 21, 2010.   The motion is accompanied by a memorandum of law and several exhibits.   The plaintiffs filed an objection to the movants' motion, along with a memorandum of law and exhibits, on April 5, 2011.   The movants filed a reply memorandum on April 7, 2011;  the plaintiffs filed a sur-reply memorandum on April 8, 2011.   The matter was heard at short calendar on April 11, 2011.

DISCUSSION

“The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”   Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “[T]he ‘genuine issue’ aspect of summary judgment 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 ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Gold v. East Haddam, 290 Conn. 668, 678, 966 A.2d 684 (2009).

The evidence presented by both sides in support of and in opposition to the motion for summary judgment reveals the following.   The minor plaintiff and the minor defendant met in the sixth grade, during the 2006–2007 school year.   There were two altercations between them during that school year occurring around March 2007.   The first was a verbal statement, where Miseal said, “I'm going to rape you” while in class.   The minor plaintiff did not respond or report the incident.   A few days later, Miseal allegedly stopped Adaliz in the hallway, grabbed her wrist and tried to push her into the boys' bathroom.   Adaliz kicked him in the leg and ran back to class.   She did not report the incident.

A few days after the bathroom incident, Adaliz's grandfather, her guardian at the time, overheard a phone conversation between Adaliz and a friend while at home.   He heard the friend tell Adaliz she was afraid that someone was at her house.   After investigating at the friend's house, the grandfather confronted Adaliz, who finally told him that Miseal told her he was going to rape her.   The next day, March 27, 2007, the grandfather went to the school and reported the threat to the defendant Fain, the school's principal.   Fain advised the grandfather that the school would investigate the rape threat.   Approximately two days later, Connie Labasi, the school social worker, investigated the rape allegation by speaking with Adaliz, Miseal, Adaliz's friend whose telephone conversation was overheard by Adaliz's grandfather and the students' teacher.   The social worker learned from the students that Miseal had told Adaliz's friend that he was going to come over to her house just to scare her.   He allegedly made the statement over the telephone outside of school.   Based on her investigation, the social worker found the complaint that Miseal had threatened to rape Adaliz and/or her friend to be unsubstantiated and concluded that neither female student was at risk of harm.   Both the social worker and Miseal's teacher spoke with his parents and told them that his comments to the female students, including the minor plaintiff, were inappropriate and unacceptable.   Furthermore, the defendant Fain spoke with the parents/guardians of all three students involved and worked with the staff to separate Adaliz and Miseal both in and out of class by moving their seats and giving Miseal a delayed hall pass.   No further disciplinary action was taken.

During Adaliz's seventh grade year, the 2007–2008 school year, the defendant Fain was no longer the principal of the school, and, according to Adaliz, she and Miseal were friends after the latter had apologized at the end of the previous school year.   Adaliz alleges one negative incident occurred between herself and Miseal in the middle of the school year when Miseal pushed her against a wall in a classroom during a break between classes when no one else was in the room.   She did not report the incident.   No other incidents occurred between Adaliz and Miseal until May 2008.

The incident that is the subject of this lawsuit occurred on May 1, 2008, towards the end of the school year and nearly sixteen months after the alleged rape threat.   Adaliz and Miseal were part of a group of four or five students sitting at a table while in class when Miseal leaned over and touched both of Adaliz's breasts with one hand, then touched her genitalia with the same hand, then quickly pulled away.   The touching was done over the clothing and lasted a matter of seconds.   Adaliz did not say anything.   Seconds later, Miseal attempted to touch Adaliz's breasts again but Adaliz stopped him before he could touch her.   He threatened to punch her instead.   The teacher was present in the classroom at the time but had his back towards the students.   At the end of class, Adaliz told two friends that Miseal touched her.   The two friends reported the incident to their teacher, who in turn asked Adaliz about it.   She told her teacher what had happened, and the teacher reported the incident to the school's resource officer, who investigated the incident.   Miseal was subsequently arrested for this incident and expelled from school.

In the present case, the movants collectively assert five grounds in support of their motion for summary judgment.   This court finds the movants' governmental immunity claim to be the most persuasive, and because it applies to all three movants, the court will limit its analysis to this particular ground and need not address the other four.

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 ․ 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.”  “The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees ․ Governmental immunity in such cases depends on whether the act in question involves a ministerial or discretionary act.  [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 ․ The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 272 n.8, 984 A.2d 58 (2009).

A governmental immunity analysis therefore requires a determination of whether the duty was public or private, ministerial or discretionary, and whether there is liability under any of the established exceptions.   Here, the movants argue that they were engaged in public, discretionary acts at all relevant times, and thus governmental immunity applies to all counts directed against them.   The plaintiffs respond by asserting that the determination of whether an act is ministerial or discretionary is a question of fact that a jury should decide.   Alternatively, they argue that even as a matter of law, the acts alleged in the complaint are ministerial in nature, therefore rendering governmental immunity inapplicable.

According to the Supreme Court, “[t]he issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law.  (Internal quotation marks omitted.)  Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006).  “Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ․ Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.”  Id., 614–15.

With respect to whether the movants were engaged in a public or private duty, “the test to discern between a public and private duty is as follows:  If the duty imposed upon the public official by the statute is of such a nature that the performance of it will affect an individual in a manner different in kind from the way it affects the public at large, the statute is one which imposes upon the official a duty to the individual, and if the official is negligent in the performance of that duty he is liable to the individual.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 333, 907 A.2d 1188 (2006).  “[M]unicipalities, by providing public education, are engaged in a governmental duty.”  Couture v. Board of Education, 6 Conn.App. 309, 312, 505 A.2d 432 (1986).

When presented with the issues of supervision of students, implementation of school policies and the control and management of a school and its students, Superior Courts have generally held that these are public duties, as they affect students generally, and are carried out through discretionary acts.   See Jahic v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000255 (September 25, 2008, Roche, J.);   Suller v. Shelton, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 96 0056428 (August 9, 2000, Grogins, J.);   Dube v. Bye, Superior Court, judicial district of New Haven, Docket No. CV 98 0418259 (December 13, 1999, Zoarski, J.T.R.) (26 Conn. L. Rptr. 290);  Colon v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 94 0363088 (July 2, 1998, Moran, J.) (22 Conn. L. Rptr. 337);  Rheiner v. Lefevre, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 940541267 (March 12, 1998, Teller, J.) (21 Conn. L. Rptr. 502);  O'Neill v. State, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0332721 (January 7, 1998, Skolnick, J.);   Doe v. Roe, Superior Court, judicial district of Windham at Putnam, Docket No. CV 94 0048779 (April 17, 1996, Martin, J.);   Viens v. Graner, Superior Court, judicial district of New London, Docket No. 524313 (June 28, 1993, Teller, J.) (9 Conn. L. Rptr. 306).

Based on the allegations in the complaint and the evidence presented by the parties, this court concludes that as a matter of law, the movants were engaged in a public duty when their employees were supervising the students, including Adaliz and Miseal, and providing them with a reasonably safe school environment.

With respect to the determination of whether the movants and their employees were engaged in either a discretionary or ministerial act, “[t]he 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, 999 A.2d 700 (2010).   The acts alleged of the movants in the complaint clearly required the use of judgment and discretion.   For example, the plaintiffs allege that the movants were negligent by failing to execute proper disciplinary action, failing to contain disorderly and violent students, failing to maintain sufficient security measures, failing to take reasonable precaution to avoid harm to the plaintiff and failing to maintain adequate control of its students.  “[W]here it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”  (Internal quotation marks omitted.)  Id., 307–08.

The cases cited by the plaintiffs for the proposition that the movants here were engaged in ministerial acts are distinguishable.   In Koloniak v. Board of Education, 28 Conn.App. 277, 281, 610 A.2d 193 (1992), the court concluded that the act of clearing snow was ministerial because the board of education had a specific policy mandating maintenance staff to inspect the sidewalks and to keep them clean on a daily basis.   Other Superior Court cases that have concluded that issues of fact exist as to whether acts taking place at a school were ministerial involved instances when school boards had specific policies requiring supervision.   See Bonnell v. Potocco, Superior Court, judicial district of Hartford, Docket No. CV 05 4015022 (June 1, 2007, Wagner, J.T.R.) (school board had policy requiring teachers to supervise children waiting for late buses);  Esposito v. Bethany, Superior Court, judicial district of New Haven, Docket No. 06 5002923 (May 3, 2010, Corradino, J.T.R.) (school board had specific policy requiring teacher supervision of students at recess and detailed anti-bullying policy).

The plaintiffs also assert that the defendant Board's policies against sexual harassment and bullying created ministerial duties upon its employees.   Nevertheless, these policies merely provide vague goals and guidelines in promoting a school environment free from sexual harassment and bullying.   For instance, employees must “adhere to a standard of conduct that is respectful of the rights of students.”   Further, the school district “will periodically provide staff development for district administrators and periodically distribute this Policy and the implementing Administrative Regulations to staff and students in an effort to maintain an environment free of sexual harassment and sex discrimination.”   By its own wording, implementing the sexual harassment policy is left within the discretion of district administrators.

Similarly, the defendant Board's anti-bullying policy “involves a multi-faceted approach, which includes education and the promotion of a school atmosphere in which bullying will not be tolerated by students or staff.”   The only directive that could arguably be considered a ministerial duty imposed upon school staff is the requirement that teachers who witness acts of bullying must report it to the principal or other school official.   It is undisputed, however, that Adaliz and Miseal's teacher promptly reported the incident in this case to the appropriate school official as soon as he discovered what had taken place.   The actual duty of supervising students is left to the individual judgment of the teachers, and therefore, this court is unpersuaded that the Board's anti-bullying policy creates a ministerial duty that in this case would lead to the potential for liability to the movants.   The movants are not being sued for failing to adhere to the Board's anti-bullying or sexual harassment policies;  indeed, these policies were followed by school staff and administrators in both the previous rape threat and the actual alleged touching that is the subject of this suit.   Rather, the movants are being sued for negligence, specifically for failure to properly supervise, control and monitor the students at Kelly Middle School.   To allow students to sue the town, board of education and their principal for negligent supervision arising from an alleged offensive touching that lasted mere seconds in a classroom setting where a teacher was present would fly in the face of the policy rationale behind governmental immunity.   Therefore, this court holds that the acts complained of by the plaintiffs were public, discretionary acts within the scope of governmental immunity.

The plaintiffs alternatively contend that an exception to governmental immunity exists in the present case.  “[T]he identifiable person, imminent harm exception ․ applies 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 ․ By its own terms, this test requires three things:  (1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ․ We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state ․ If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.”  (Internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 350, 984 A.2d 684 (2009).   The movants strongly deny that the minor plaintiff was subjected to imminent harm and contend that this exception does not apply.   The court agrees with the movants.

The Appellate Court, in Doe v. Board of Education, 76 Conn.App. 296, 303–04, 819 A.2d 289 (2003), discussed recent appellate decisions that have applied the identifiable person-imminent harm exception in cases involving injuries to schoolchildren and is helpful to the resolution of this case.   Citing Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), and Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900 (2000), the court noted:  “In each of those cases, the identifiable person-imminent harm exception was applicable because the dangerous condition was sufficiently limited both in duration and in geography to make it apparent to the movants that schoolchildren were subject to imminent harm.   In Burns, the plaintiff schoolchild slipped and fell on an icy courtyard in a main accessway of the school campus ․ The court stated:  ‘Unlike the incident in Evon v. Andrews, [211 Conn. 501, 559 A.2d 1131 (1989) ], 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 ․”

“In Purzycki, the plaintiff schoolchild was injured when another student tripped him in an unmonitored school hallway ․ The court determined that the case was more analogous to Burns than ․ to Evon ․ 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 ․ Accordingly, the Purzycki court held that the facts were sufficient to bring the case within the identifiable person-imminent harm exception to governmental immunity.”  (Citations omitted;  internal quotation marks omitted.)  Doe v. Board of Education, supra, 76 Conn.App. 303–04.

The court in Doe ultimately concluded that the identifiable person, imminent harm exception did not apply where the plaintiff alleged that the defendant board of education was negligent “in failing to provide an adequate number of hall monitors, in failing to implement a system for ensuring that students were not roaming the halls unsupervised, and in neglecting to provide for adequate supervision of students known to have disciplinary problems or to secure vacant rooms so that they could not be used for unlawful purposes.”   Id., 304.   The court held that, unlike the other cases involving schoolchildren where the exception applied, “the alleged danger in the present case was not limited to a particular area of the school and a particular time period ․ [T]he harm in the present case potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school.”  Id., 305.

In the present case, the undisputed facts establish that the minor plaintiff was not subject to “imminent harm” sufficient to render the identifiable victim-imminent harm exception applicable.   No reasonable trier of fact could determine that an unsubstantiated threat of rape that was fully investigated by school officials and made sixteen months prior to the alleged incident that gave rise to this action would render Adaliz subject to imminent harm.   Further, the alleged risk in this case was not limited to a particular time period or location.   The prior incidents involving Adaliz and Miseal occurred in different classes, with different teachers, in different school years.   Given the Supreme Court's warning that this exception to governmental immunity is to receive limited recognition in this state;  see Grady v. Somers, supra, 294 Conn. 350;  the court must hold that the exception does not apply.

Because there is no genuine issue of material fact that Adaliz was not subject to imminent harm, the exception does not apply in the present case and the other two prongs need not be analyzed.   The movants have met their burden of establishing that, as a matter of law, governmental immunity bars the negligence claims asserted against them and that no exception applies.

CONCLUSION

Based on the foregoing, the court hereby grants summary judgment in favor of the defendants City of Norwich, Norwich Board of Education and Scott Fain with respect to counts five through ten of the complaint.

Cosgrove, J.

FOOTNOTES

FN1. Counts eleven and twelve, asserted against Francisco Ramirez and Maria Ramirez, respectively, were stricken when the court, Martin, J., granted the Ramirez defendants' motion to strike those two counts on November 15, 2010..  FN1. Counts eleven and twelve, asserted against Francisco Ramirez and Maria Ramirez, respectively, were stricken when the court, Martin, J., granted the Ramirez defendants' motion to strike those two counts on November 15, 2010.

FN2. This defendant's name is spelled differently throughout the pleadings.   For consistency's sake, the court will adhere to the spelling in the initial summons filed with the court..  FN2. This defendant's name is spelled differently throughout the pleadings.   For consistency's sake, the court will adhere to the spelling in the initial summons filed with the court.

Cosgrove, Emmet L., J.