PPA v. New Haven Board of Education, City of New Haven et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 122)

FACTS

On June 1, 2010, John Doe I, as father and next best friend of the minor plaintiff John Doe II, filed a sixteen-count, revised complaint alleging that various defendants' negligence caused injuries to John Doe II. Counts one through twelve are brought against Kathleen Rende, Ramon Jimenez, New Haven Board of Education (board) and city of New Haven (city), while counts thirteen through sixteen are brought against the minor defendant and his parent.   At issue before the court are counts one through twelve only.   In the revised complaint, the plaintiffs allege the following.   The minor plaintiff was a second grade student in the special education program at Columbus School in the city.   Rende and Jimenez were his classroom teachers, who would accompany minor students to the restrooms before lunch time.   At other times during school hours, the teachers would select a student to accompany the student who asked to leave and use the restroom, at which time, the paired students would go on unsupervised bathroom breaks.   On February 13, 2008, the defendant teachers allowed the minor defendant to accompany the minor plaintiff on his restroom break, at which time, the minor plaintiff was sexually assaulted by the minor defendant.   Furthermore, the alleged sexual assault occurred on more than one occasion, including the incident on February 13, 2008.

In counts one through twelve, the plaintiffs allege that due to the teachers' negligence, the minor plaintiff suffered various injuries as a result of having been sexually assaulted.   Consequently, the plaintiffs allege that medical expenses were incurred and more may be incurred in the future.   Additionally, they allege that the board and the city are liable for the injuries because the teachers are agents, servants and/or employees of the board, acting within the scope of their employment, and the board is an agent of the city.   More specifically, the plaintiffs allege that the teachers failed to heed the minor plaintiff's request that the minor defendant not be allowed to accompany him to the restroom.   Accordingly, the first and second counts are against Rende, and seventh and eighth counts are against Jimenez.   Counts three, four, nine and ten are brought against the board.   The plaintiffs brought counts five, six, eleven and twelve against the city.

On August 17, 2010, defendants Rende, Jimenez, the board and the city filed a motion to strike counts one through twelve of the revised complaint on the ground of governmental immunity.   Their motion is supported by a memorandum of law.   The plaintiffs filed their opposition to the motion on March 11, 2011, which is accompanied by a memorandum of law.   The matter was heard at short calendar on March 14, 2011.

DISCUSSION

I. WHETHER THE MOTION TO STRIKE IS PROPER

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   The court construes “the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

The Supreme Court has “previously determined that 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.”  (Internal quotation marks omitted.)   Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).   “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.”  (Emphasis added;  internal quotation marks omitted.)  Id. “Determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions.”   (Emphasis added.)  Violano v. Fernandez, supra, 280 Conn. 322.

In Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), “the plaintiffs brought an action against the New Haven board of education alleging that its employee, a teacher, had caused personal injuries to one of the plaintiffs by negligently opening a door into her while she was in the school hallway ․ The Appellate Court concluded that the trial court properly had rendered summary judgment in favor of the defendants because it was apparent from the plaintiffs' complaint that the teacher was not performing a ministerial function ․ Specifically, the court determined that governmental immunity applied to the teacher's action in opening the door because the plaintiffs' complaint failed to allege the existence of any directive describing the manner in which the teacher was to open the door ․ Rather, the court concluded that the complaint simply alleged that the teacher exercised poor judgment in the manner in which she opened the door into the school's hallway.”  (Citations omitted.)  Violano v. Fernandez, supra, 280 Conn. 323–24.

In the present case, the plaintiffs allege in their revised complaint that the teachers were negligent in allowing the minor defendant, who was older and physically larger than the minor plaintiff, to accompany the minor plaintiff to the restroom.   The plaintiffs allege further that the teachers were negligent in that they failed to suspect anything suspicious when the minor defendant volunteered consistently to accompany the minor plaintiff.   More specifically, the plaintiffs allege that the teachers failed to heed the minor plaintiff's request that the minor defendant not be allowed to accompany him to the restroom and that the teachers were negligent when they failed to check on them while the alleged sexual activity was going on.   Furthermore, the plaintiffs do not allege that there was any rule, policy or directive describing the manner in which the teachers permitted the students to go to use the restrooms.   The plaintiffs' claims against the board and the city are strictly based on the alleged negligent acts or omissions of the teachers.   Accordingly, in light of the plaintiffs' allegations, it is apparent on the face of the revised complaint that the defendants were engaging in a governmental function while performing the acts and/or the omissions complained of by the plaintiffs.   Therefore, a motion to strike is a proper vehicle in the present case to raise the special defense of governmental immunity.

II. GOVERNMENTAL IMMUNITY

In their memorandum supporting the motion to strike, the defendants argue that the plaintiffs' claims against Rende and Jimenez pursuant to General Statutes § 52–557n are legally insufficient because the plaintiffs are suing them in their official capacities as schoolteachers, who are employed by the board and the city.   Accordingly, they argue that Rende and Jimenez are entitled to governmental immunity because they were performing discretionary acts, and the plaintiffs have failed to establish that the defendants' alleged negligent acts were ministerial.   The defendants argue further that none of the exceptions to governmental immunity applies in the present case.   Lastly, the defendants argue that the city and the board are entitled to immunity for tortious or criminal acts of others.

In response, the plaintiffs counter that the teachers were performing ministerial duties of providing supervision and ensuring safety of minor students.   Alternatively, they argue that to the extent the teachers' alleged negligence could be characterized as discretionary governmental action or omission, the imminent harm to an identifiable person exception to governmental immunity should apply.   Lastly, the plaintiffs argue that their claims against the teachers in the revised complaint are not limited to their official capacities as teachers.

“Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct ․ The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees.”  (Citations omitted;  internal quotation marks omitted.)  Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998).  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.”  “Generally, 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 which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368 (2011).

“A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions:  first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence ․” (Internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009).

A

MOTION TO STRIKE COUNTS ONE, TWO, SEVEN AND EIGHT

The first, second, seventh and eighth counts of the revised complaint are brought against Rende and Jimenez.   In paragraph five of the first count, the plaintiffs allege that the defendant teachers were negligent in many ways, set forth in subparagraphs (a) through (l).  More specifically, they allege in subparagraph (b) that the teachers were negligent in allowing the minor students in the special education program to leave the classroom to use the lavatories unsupervised when they “knew, or should have known, or at the very least, suspected, that there would be attendant horseplay.”   In subparagraph (e), they allege that the teachers failed to suspect anything suspicious when the minor defendant volunteered consistently to accompany the minor plaintiff whenever he raised his hand to ask for permission to leave and use the restroom.   Also, they allege in subparagraph (i) that the teachers “failed to check the condition of the students while they were in the lavatories, engaged in said sexual activity.”   Additionally, in subparagraph (j), the plaintiffs allege that the teachers “failed to heed the request of John Doe II, that his perpetrator not be permitted to leave the classroom with him, for a bathroom break.”   Paragraph five, which contains such subparagraphs, is incorporated in counts two, seven and eight of the revised complaint.   In paragraph one of the first count, which is incorporated in the second, seventh and eighth counts, the plaintiffs allege that they are bringing “this action ․ pursuant to the provisions of General Statutes § 52–557n(a)(1)(A).”

Section 52–557n(a)(1) provides in relevant part:  “Except as otherwise provided by law, a political subdivision of the state should be liable for damages to person or property caused by:  (A) 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.”   In Coe v. Board of Education of Watertown, the Supreme Court agreed with the trial court that while political subdivisions may be held liable for damages caused by certain negligent acts or omissions pursuant to § 52–557n, the statute does not provide that individual municipal employees are liable.  Coe v. Board of Education of Watertown 301 Conn. 112 (2011).¹

In the revised complaint, the plaintiffs allege that they brought this action “pursuant to the provisions of General Statutes § 52–557n (a)(1)(A).”   Accordingly, the court grants the motion to strike the first, second, seventh and eighth counts against the teachers.²

B

MOTION TO STRIKE COUNTS THREE, FOUR, FIVE, SIX, NINE, TEN, ELEVEN AND TWELVE

The plaintiffs brought counts three, four, nine and ten against the board because they contend that since the defendant teachers acted within the scope of their employment as agents, servants, and/or employees of the board, it should be liable for the teachers' negligence.   Additionally, the plaintiffs brought counts five, six, eleven and twelve against the city because the defendant teachers are employees, agents and servants of the board, and the board acts as an agent of the city.   Therefore, the plaintiffs argue that the city should be held liable.   The defendants argue that because the plaintiffs are bringing this action against Rende and Jimenez in their governmental capacities as school teachers, the claims against the teachers should fail as a matter of law because they cannot be held personally liable for the alleged negligence.   In response, the plaintiffs maintain that their allegations against the teachers are not limited to their official capacities.   The plaintiffs argue further that the teachers' immunity for performing discretionary governmental acts is qualified by the identifiable person-imminent harm exception.

In paragraph five of the first count, which is incorporated in all of the subsequent counts of the revised complaint, the plaintiffs allege that defendant teachers were negligent in many ways, set forth in subparagraphs (a) through (l).  More specifically, they allege in subparagraph (b) that the teachers were negligent in allowing the minor students in the special education program to leave the classroom to use the lavatories unsupervised when they “knew, or should have known, or at the very least, suspected, that there would be attendant horseplay.”   In subparagraph (e), they allege that the teachers failed to suspect anything suspicious when the minor defendant volunteered consistently to accompany the minor plaintiff whenever he raised his hand to ask for permission to leave and use the restroom.   Also, they allege in subparagraph (i) that the teachers “failed to check the condition of the students while they were in the lavatories, engaged in said sexual activity.”   Additionally, in subparagraph (j), the plaintiffs allege that the teachers “failed to heed the request of John Doe II, that his perpetrator not be permitted to leave the classroom with him, for a bathroom break.”

“[Whether] the plaintiff ․ has sued the defendants in their official capacities ․ is a question of law ․” Mercer v. Strange, 96 Conn.App. 123, 127, 899 A.2d 683 (2006).  “The vital test is to be found in the essential nature and effect of the proceeding.”  Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003).  “Because [the court is] bound by the four corners of the plaintiff's complaint, [the court] must examine the specific language to determine the particular causes of action alleged.”  Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).

In the present case, the allegations against Rende and Jimenez in the plaintiffs' revised complaint are based solely on their official capacities as teachers at Columbus School.   Therefore, a plain reading of the revised complaint reveals that Rende and Jimenez are being sued in their official capacities regardless of the plaintiffs' mere assertion to the contrary in their memorandum.   Accordingly, governmental immunity applies to these teachers when they engage in discretionary governmental acts.

“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 [the Supreme Court has] recognized for these purposes is that of school children attending public schools during school hours.”  (Citations omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, supra, 294 Conn. 274.   To invoke this exception, a plaintiff must demonstrate:  “(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.”  Doe v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006).

“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.”  (Internal quotation marks omitted.)  Cotto v. Board of Education, supra, 294 Conn. 276.   The Supreme Court held in Purzycki v. Fairfield, supra, 244 Conn. 101, that the minor student, who was injured when another student tripped him in an unmonitored hallway during the one-half hour interval on their way to recess from the lunchroom, fell within the identifiable person-imminent harm exception.   On the other hand, in Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003), the Appellate Court held that the minor student, who was sexually assaulted by three male students at her school, failed to allege sufficient facts to establish that it was apparent to the board of education that its failure to perform a discretionary act would likely subject students to imminent harm.   The facts alleged in that case did not show that the danger was limited in duration and geography.

In the present case, the defendants conceded at oral argument that the minor plaintiff falls within the identifiable class of foreseeable victims.   When construing the revised complaint broadly and in the manner most favorable to sustaining its legal sufficiency, the plaintiffs have alleged sufficient facts to demonstrate that it was apparent to the teachers that their allowing the minor defendant to accompany the minor plaintiff is likely to subject him to imminent harm, which was limited in duration and geography of the restroom break.   Therefore, the plaintiffs have alleged sufficient facts such that the identifiable person-imminent harm exception to governmental immunity should apply in the present case.

Although the teachers were engaging in discretionary governmental acts, because the revised complaint contains sufficient allegations to fall within the identifiable person-imminent harm exception to governmental immunity, the defendants' motion to strike counts three, four, five, six, nine, ten, eleven and twelve against the board and the city on the ground of governmental immunity is denied.³

CONCLUSION

For the foregoing reasons, the defendants' motion to strike counts one, two, seven and eight is granted.   The motion to strike counts three, four, five, six, nine, ten, eleven and twelve is denied.

Wilson, J.

FOOTNOTES

FN1. The present case is distinguishable from Coe, however, because the Supreme Court in Coe held that the allegations in counts against the municipal employees were legally sufficient to support a common-law negligence claim.   In the present case, the court, in construing the complaint broadly and in the manner most favorable to sustaining its legal sufficiency, finds that the plaintiffs have failed to plead sufficient facts to allege a common-law negligence claim against the defendant teachers.   Additionally, the plaintiff in Coe brought a statutory indemnification claim pursuant to General Statutes § 7–465 as well, while the plaintiffs in the present case did not, which further indicates that the plaintiffs claims are brought pursuant to § 52–557n(a)(1) and not pursuant to common law..  FN1. The present case is distinguishable from Coe, however, because the Supreme Court in Coe held that the allegations in counts against the municipal employees were legally sufficient to support a common-law negligence claim.   In the present case, the court, in construing the complaint broadly and in the manner most favorable to sustaining its legal sufficiency, finds that the plaintiffs have failed to plead sufficient facts to allege a common-law negligence claim against the defendant teachers.   Additionally, the plaintiff in Coe brought a statutory indemnification claim pursuant to General Statutes § 7–465 as well, while the plaintiffs in the present case did not, which further indicates that the plaintiffs claims are brought pursuant to § 52–557n(a)(1) and not pursuant to common law.

FN2. The plaintiffs, however, may plead a common-law negligence claim within fifteen days of the court's granting of the motion to strike as to these counts pursuant to Practice Book § 10–44..  FN2. The plaintiffs, however, may plead a common-law negligence claim within fifteen days of the court's granting of the motion to strike as to these counts pursuant to Practice Book § 10–44.

FN3. The defendants argue in their memorandum in support of the motion to strike that the board and the city cannot be held liable as a matter of law for the minor defendant's alleged criminal acts because he is not an employee, officer or agent of the city, pursuant to General Statutes § 52–557n(b)(6).  General Statutes § 52–557n(b)(6) provides in relevant part:  “[A] political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ․ (6) the act or omission of someone other than an employee, officer or agent of the political subdivision.”   In various counts against the defendants at issue in the motion to strike, the plaintiffs have alleged sufficient facts claiming liability based on the actions or omissions of the municipal defendants.   Because the plaintiffs did not bring these particular counts against the defendants based on the alleged criminal acts of the minor defendant, this subsection is not applicable..  FN3. The defendants argue in their memorandum in support of the motion to strike that the board and the city cannot be held liable as a matter of law for the minor defendant's alleged criminal acts because he is not an employee, officer or agent of the city, pursuant to General Statutes § 52–557n(b)(6).  General Statutes § 52–557n(b)(6) provides in relevant part:  “[A] political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ․ (6) the act or omission of someone other than an employee, officer or agent of the political subdivision.”   In various counts against the defendants at issue in the motion to strike, the plaintiffs have alleged sufficient facts claiming liability based on the actions or omissions of the municipal defendants.   Because the plaintiffs did not bring these particular counts against the defendants based on the alleged criminal acts of the minor defendant, this subsection is not applicable.

Wilson, Robin L., J.