Erin Gorman v. Town of New Milford et al. (2011)

CLARIFIED MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 142.00)

The principal issue in this case is whether the plaintiff, Erin Gorman, was a “teacher or other employee” pursuant to General Statutes § 10–236a.

In this action, the plaintiff seeks damages for injuries she sustained as the result of an assault by a student which took place while she was working at the Schaghticoke Middle School in the town of New Milford.   The defendants are:  the town of New Milford (the town), the New Milford Board of Education (the board), Jean Ann Paddyfote, the town of New Milford's superintendent, and Dana Ford, principal of the Schaghitcoke Middle School (collectively, the “town defendants”).   At the time of the incident, the plaintiff was employed by the intervening plaintiff, Ability Beyond Disability.

The plaintiff's operative complaint alleges that:  (1) the defendant board must indemnify the plaintiff pursuant to General Statutes § 10–236a;  (2) defendant Paddyfote must indemnify the plaintiff pursuant to § 10–236a;  (3) defendant Ford violated General Statutes § 10–233g in failing to report incidents of physical assault against the plaintiff to the local authorities;  (4) defendant Ford was negligent in failing to protect the plaintiff from harm;  (5) the town is “responsible for indemnifying its employee's failure to perform their duties” pursuant to General Statutes § 10–235;  (6) that the town must indemnify the plaintiff under General Statutes § 7–465;  and (7) that the town must indemnify the plaintiff pursuant to § 52–557n.   The court, Marano J., granted the defendants' motion to strike counts two and five.

The defendants have filed a motion for summary judgment seeking judgment in their favor on the remaining counts in the second amended complaint.   The plaintiff has objected to the motion.   The court heard argument on defendants' motion for summary judgment on April 11, 2011.   At the conclusion of the argument, the court asked the parties to present supplemental briefs on (1) the legislative histories of General Statutes §§ 10–233g and 10–236a;  (2) the applicability of the “control test” annunciated by the Supreme Court in Hunte v. Blumenthal, 238 Conn. 146, 680 A.2d 1231 (1996);  and (3) any other issues raised at oral argument.   Both parties filed supplemental briefs, and the court heard additional argument on May 9, 2011.

“Summary judgment is a method of resolving litigation when 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 ․ 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.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   The burden of proof is on the movant, and when deciding a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party.   See Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010);  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (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 ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003);  Roy v. Bachmann, 121 Conn.App. 220, 994 A.2d 676 (2010);  Rodriguez v. Testa, 296 Conn. 1, 993 A.2d 955 (2010).

“ ‘Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ․ it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ [T]he existence of [a] genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence ․ If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met [its] burden of proof ․’ (Citations omitted;  internal quotation marks omitted.)   Farrell v. Twenty–First Century Ins. Co., 118 Conn.App. 757, 759–60, 985 A.2d 1076, cert. granted on other grounds, 295 Conn. 904, 988 A.2d 878 (2010).”  Fiorelli v. Gorsky, 120 Conn.App. 298, 305–06, 991 A.2d 1105 (2010);  Sullivan v. Yale–New Haven Hosp., Inc., 64 Conn.App. 750, 764, 785 A.2d 588, (2001);  see also Practice Book 1978, § 17–49.

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist ․ Because [l]itigants have a constitutional right to have factual issues resolved by the jury ․ motion[s] for summary judgment [are] designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ The courts hold the movant to a strict standard.   To 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.”  (Internal quotation marks omitted.)   Maltas v. Maltas, 298 Conn. 354, 365–66, 2 A.3d 902 (2010).

The court finds the following undisputed material facts based on the affidavit, deposition testimony and other documents submitted by the parties.   The intervenor's mission is to “enable individuals whose independent living skills are impaired by disability, illness, or injury to achieve and maintain self-reliance, fulfillment, and comfort at home, work, and in the community by providing the best comprehensive home, health, and rehabilitation services.”   In 2006, the plaintiff was hired by the intervenor as a life skills instructor, which position is “responsible for meeting the programmatic, medical transportation, environmental and all other needs for the assigned residents.   The [life skills instructor] has a direct role in protecting the rights of the residents and facilitating, through teaching and supervision, consumer's potential for functioned independence in their communities.”

In December 2006, Adele Johnson, the director of pupil personnel and special services for the defendant town's public schools, contacted the intervenor to arrange for it to provide “school based support services” for a seventh grade student at Schaghitcoke Middle School.   The student, Michael, is severely disabled, with serious mental and physical disabilities.   In addition to being legally blind, Michael has been diagnosed with optic atrophy, bilateral optic nerve hypolpiasia, macular colobomas, esotrophia, bilateral microphthalmus bialeteral retinopathy of prematurity and nystagmus.   Michael's disabilities are so severe that he was unable to speak in sentences, unable to tie his own shoes, unable without prompting to eat using utensils, and was not independent with toileting skills.   As a result of his disabilities, Michael required full-time, one-on-one attention during each school day.

The plaintiff was assigned by the intervenor to provide services to Michael.   On her first day at the school and for a couple of weeks thereafter, the plaintiff shadowed a paraprofessional who had been working with Michael in order to learn Michael's daily routine, needs and activities so that the plaintiff could take over for that person.   There were two other paraprofessionals in the classroom with the plaintiff and Michael who were employed by the defendant board and provided services to other disabled students.

The other paraprofessionals informed the plaintiff about Michael's care plan at the school.   After the plaintiff's initial training, she began providing the daily one-on-one assistance and supervision that had previously been provided by the paraprofessional to Michael in his classroom.   Some of the activities the plaintiff participated in with Michael included playing catch, doing puzzles and other learning games, and teaching the alphabet.   The plaintiff also assisted Michael in using utensils while he ate meals in the classroom.

On January 9, 2007, while assisting Michael to put on his shoes, Michael hit the plaintiff on her shoulder.   He then struck her again, hitting her thumb and jamming it and causing the plaintiff pain.   The plaintiff went to the school nurse and later to the hospital.   Neither the plaintiff nor the defendants reported the incident to the police.   In addition, there had been other prior similar incidents between the plaintiff and Michael that neither the plaintiff nor the defendants reported to the police.

I

The first count of the second amended complaint is against the defendant board only and asserts a claim for indemnification under § 10–236a for financial losses and expenses stemming from her injury while she was working at the town school.  Section 10–236a provides in relevant part:

(a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff, and the State Board of Education, the Board of Governors of Higher Education, the board of trustees of each state institution and each state agency which employs any teacher, and the managing board of any public school, as defined in section 10–183b, shall protect and save harmless any member of such boards, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense, including payment of expenses reasonably incurred for medical or other service necessary as a result of an assault upon such teacher or other employee while such person was acting in the discharge of his or her duties within the scope of his employment or under the direction of such board of education, Board of Governors of Higher Education, board of trustees, state agency, department or managing board, which expenses are not paid by the individual teacher's or employee's insurance, workers' compensation or any other source not involving an expenditure by such teacher or employee.

* * * *

(c) For the purposes of this section, the terms “teacher” and “other employee” shall include any student teacher doing practice teaching under the direction of a teacher employed by a local or regional board of education or by the State Board of Education or Board of Governors of Higher Education, and any member of the faculty or staff or any student employed by The University of Connecticut Health Center or health services.

(Emphasis added.)

The defendant has moved for summary judgment on this count, claiming that the undisputed material facts establish that the plaintiff was not a “teacher or other employee” under § 10–236a and that the incident did not involve an “assault.”   In particular, the defendant asserts that the plaintiff was not a teacher because she was not certified under Connecticut law and was an independent contractor employed by the intervenor.   The defendant board also asserts that the incident did not involve an “assault” as contemplated by § 10–236a, because Michael did not have the requisite intent, and could not form the requisite intent due to his severe mental disabilities.   The plaintiff opposes the defendant's motion and asserts that these issues present questions of fact for the jury.

The issues presented require the court to interpret the meaning of the words “teacher” and “assault” under § 10–236a.¹  “ ‘The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply ․ In seeking to determine [the] meaning [of a statute], General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.’   (Citations omitted;  internal quotation marks omitted.)  Thomas v. Dept. of Developmental Services, 297 Conn. 391, 399, 999 A.2d 682 (2010).”  Stec v. Raymark Industries, 299 Conn. 346, 358, 10 A.3d 1 (2010);  Booker v. Jarjura, 120 Conn.App. 1, 21, 990, A.2d 894 (2010).

Moreover, because § 10–236a is a remedial statute, it “must be liberally construed in favor of those whom the legislature intended to benefit.”   (Internal quotation marks omitted.)  DiLieto v. County Obstetrics and Gynecology Group, P.C., 297 Conn. 105, 149, 998 A.2d 730 (2010);  Commission on Human Rights and Opportunities v. Sullivan, 285 Conn. 208, 222, 939 A.2d 541 (2008).

A

Having analyzed the text of § 10–236a and its relationship to other statutes, the court finds that the word “teacher” in § 10–236a is susceptible to more than one interpretation and is therefore ambiguous.   Section 10–236a is located in Chapter 170 of the General Statutes, governing boards of education generally.   Although the word teacher is used in numerous provisions in Chapter 170, this chapter does not define the word “teacher.”   Nor does § 10–236a contain a definition of the word “teacher” for its purposes.²

Other statutes, in different chapters of the General Statutes that address issues affecting teachers, define the term teacher but confine those definitions to a particular provision or chapter that are unrelated to the indemnification statute at issue here See, e.g., General Statutes § 10–10a (establishing a state-wide public school information system, and defines “teacher” as “any certified professional employee below the rank of superintendent employed by a board of education for at least ninety days in a position requiring a certificate issued by the State Board of Education”);  General Statutes § 10–151 (the Teacher Tenure Act defines the word teacher for purposes of that act only as:  “the term ‘teacher’ shall include each certified professional employee below the rank of superintendent employed by a board of education for at least ninety days in a position requiring a certificate issued by the State Board of Education,” (emphasis added);  General Statutes § 10–183b(26) et seq. defines “teacher” for purposes of the teachers retirement system, Chapter 167a as “(A) any teacher, permanent substitute teacher, principal, assistant principal, supervisor, assistant superintendent or superintendent employed by the public schools in a professional capacity while possessing a certificate or permit issued by the State Board of Education, ․ (B) certified personnel who provide health and welfare services for children in nonprofit schools, as provided in section 10–217a, under an oral or written agreement, (C) any person who is engaged in teaching or supervising schools for adults if the annual salary paid for such service is equal to or greater than the minimum salary paid for a regular, full-time teaching position in the day schools in the town where such service is rendered, (D) a member of the professional staff of the State Board of Education or of the Board of Governors of Higher Education or any of its constituent units, and (E) a member of the staff of the State Education Resource Center established pursuant to section 10–4q employed in a professional capacity while possessing a certificate or permit issued by the State Board of Education.   A ‘permanent substitute teacher’ is one who serves as such for at least ten months during any school year.”

Because these statutes are unrelated to § 10–236a and provide varying definitions, they are of little assistance in determining the definition in § 10–236a.   The existence of differing and specific definitions of teacher for other express purposes creates an ambiguity as the word teacher is susceptible to differing meanings in the General Statutes.   Accordingly, because the word teacher is ambiguous, the court is compelled to seek interpretive guidance from the legislative history and circumstances surrounding the statute's enactment as well as the legislative policy it was designed to implement.   See Booker v. Jarjura, supra, 120 Conn.App. 21.

There being no express definition provided, the court first looks to the common definition of a word.  “If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.”  Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 808, 942 A.2d 305 (2008);  Levine v. Town of Sterling, 300 Conn. 521, 532, 16 A.3d 664 (2011).   The American Heritage Dictionary of the English Language (New College Ed.1976) defines a teacher as “[o]ne who teaches;  especially, a person hired by a school to teach.”   Webster's Third New International Dictionary (1966) defines teacher as “one that teaches or instructs;  esp[ecially]:  one whose occupation is to instruct.”   This common dictionary definition of teacher is broad and suggests that the legislature, by failing to limit the term and choosing instead to rely on the common definition of the word, intended to employ a broad definition.

A review of § 10–236a as a whole, along with its intended purposes, also supports a broad interpretation of the word teacher.  Section 10–236a was first enacted in 1973 in response to a growing concern for violence in the schools and, in particular, violence by students against teachers.   Conn. Joint Standing Committee Hearings, Education, Pt. 7, 1973 Sess., p. 476.  Section 10–236a requires boards of education to indemnify persons covered by the statute for all financial losses and expenses.   Such indemnification includes expenses not paid by “the individual teacher's or employee's insurance, workers' compensation or any other source not involving an expenditure by such teacher or employee.”

Section 10–236a is located in Chapter 170 of the General Statutes which is titled “boards of education.”   The statute has broad application and in addition to applying to “teachers and other employees,” the statute applies to “any member of such board [of education] ․ or any member of its supervisory administrative staff, and the State Board of Education, the Board of Governors of Higher Education, the board of trustees of each state institution and each state agency which employs any teacher, and the managing board of any public school, as defined in section 10–183b ․” In addition, the statute provides indemnification for persons acting “in the discharge of his or her duties within the scope of his employment or under the direction of such board of education.” ³  (Emphasis added.)

Based on the foregoing, the court finds that § 10–236 is a remedial statute, which the legislature intended to sweep broadly to protect teachers and other school personnel from financial losses and expenses resulting from the growing violence by students in public schools.   Applying a liberal construction, the court rejects defendant board's view that to be a “teacher” under § 10–23–6a, the plaintiff must be certified.   There is nothing in § 10–236a that suggests a certification requirement or any other educational requirements as prerequisites to protection under this statute.   Indeed, as evidenced by the statutes defining teacher, when the legislature has intended the word teacher have a specific definition or required certification before the person could obtain statutory benefits, they have done so.   See, e.g., supra, General Statutes §§ 10–10a, 10–151(2), 10–183b(26).   Having not done so in § 10–236a, it would be inappropriate for the court to read such a specific requirement into the statute.  Laliberte v. United Security, Inc., 261 Conn. 181, 186, 801 A.2d 783 (2002) (“In the absence of any indication of the legislature's intent concerning this issue, we cannot engraft language onto the statute”);  Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 416–17, 880 A.2d 882 (2005) (“The court ․ cannot read something into a statute ․ nor can it substitute its judgment of what would constitute a wiser provision for the clearly expressed intent of the legislature”).

The defendant board does not claim that certification was necessary for the position held by the plaintiff.   The plaintiff, while not certified as a teacher to teach a specific age group or subject matter, was nonetheless providing instruction to Michael under the circumstances presented here.   Indeed, the plaintiff was Michael's main source of educational instruction on a daily basis as she was the one person supervising and instructing Michael all day everyday in a school classroom with other paraprofessionals working with other similar students.   Throughout the day, the plaintiff taught Michael life skills and attempted to teach him certain elementary learning skills, like the alphabet through game play.   The court, therefore, includes that reading this record in the light most favorable to the plaintiff, as the court must do, the plaintiff was a teacher as that word is commonly understood and as contemplated by § 10–236a.

The defendant board also claims that the word teacher must be read in conjunction with the phrase that immediately follows it, “other employee,” to mean that teachers must be “employed” by the defendant town or board to be eligible for the benefit provided by § 10–236a.   The defendant board claims that because the plaintiff was an independent contractor employed by the intervenor and was not “employed” by the defendant, § 10–236a does not apply to her.   The court disagrees with the defendant's narrow interpretation and finds that there is a factual issue as to whether the plaintiff was an “employee.”

Whether a person is an employee or independent contractor depends on the level of control the defendants had over the plaintiff.   See Hunte v. Blumenthal, supra, 238 Conn. 146.  Hunte addressed the issue of whether foster parents are employees within the meaning of General Statutes §§ 5–141d and 4–165, and therefore entitled to defense and indemnification as state “employees.”   The Supreme Court held that whether an individual is an employee or independent contractor depends on “the existence or nonexistence of the right to control the means and methods of work.”  Id., at 154.   Applying that standard, the Supreme Court determined that foster parents were employees under §§ 5–141d and 4–165.

Thus, whether the plaintiff was an employee of the defendant or an independent contractor depends on whether the defendant had the right to control the plaintiff's actions and duties while she was teaching and supervising Michael at school.   The defendant board has not met its burden on this issue.   Viewing the evidence presented in the light most favorable to the plaintiff, the court finds that there are disputed issues of material fact as to whether the plaintiff was subject to the control of the defendants while working with Michael at the school.

B

The defendant board next claims that it is entitled to summary judgment as a matter of law on the first count of the second amended complaint because the undisputed material facts demonstrate that Michael did not intend to “assault” the plaintiff.   The word “assault” is not defined in § 10–236a and does not include an intent requirement.   The defendant argues that the court should adopt the criminal penal definition of assault which requires, as an element of a crime, that a defendant have a specific intent to cause physical harm.   Michael's mental disabilities, the defendant claims, made it impossible for him to form the requisite intent to assault the plaintiff.   It also claims that the plaintiff admitted in her deposition that she did not believe that Michael intended to harm her.

Section § 10–236a is a civil rather than a criminal statute, and therefore the court adopts the well established civil standard for an assault.   It has long been established “[i]n this state [that] an actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally;  ․ or one committed negligently ․ Thus, intentional conduct is not required for an assault and battery.” ⁴  (Internal quotation marks omitted.)  Clinch v. Generali–U.S. Branch, 110 Conn.App. 29, 40, 954 A.2d 223 (2008);  Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985), quoting Alteiri v. Colasso, 168 Conn. 329, 333, 362 A.2d 798 (1975);  Russo v. Porga, 141 Conn. 706, 708–09, 109 A.2d 585 (1954);  Jonelis v. Russo, 863 F.Sup. 84, 88 (D.Conn.1994).   The court presumes that in enacting § 10–236a, the legislature was aware of this long established civil standard of assault, and intended the term assault in § 10–236a to include negligent assault which does not require intent.

Even if § 10–236a includes an intent requirement, whether Michael had, or could formulate the requisite intent is a question of fact for the jury.   State v. Porter, 76 Conn.App. 477, 491, 819 A.2d 909 (2003);  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).   The fact that Michael is mentally disabled does not mean that he could not form the requisite intent.   See Polmatier v. Russ, 206 Conn. 229, 233, 537 A.2d 468 (1988).

The court concludes that § 10–236a does not require intent, and even if it did conclude an intent requirement, the issue is a question for the jury.   Thus, the defendant board has failed to meet its burden to show that Michael's conduct did not constitute an actionable assault under § 10–236a as a matter of law;  whether an assault occurred is a question for the jury.

Accordingly, the defendant board's motion for summary judgment on count one is denied.

II

In count three, the plaintiff claims that the defendant Ford, principal of the Schaghticoke Middle School, failed to report prior assaults by Michael to the local police as required by § 10–233g.  Section 10–233g is also in Chapter 170 of the General Statutes and provides in subsection (a) “Where there is a physical assault made by a student upon a teacher or other school employee on school property or in the performance of school duties and such teacher or employee files a written report with the school principal based upon such assault, the school building principal shall report such physical assault to the local police authority.”  (Emphasis added.)

In support of her motion for summary judgment on this count, the defendant Ford asserts the same arguments made by the defendant board as to count one;  that is, that the plaintiff is not a “teacher” and Michael's conduct did not constitute an “assault.”   The court's reasoning as to count one is equally applicable to count three.   Accordingly, the court denies the defendant Ford's motion for summary judgment on count three.

III

In count four, the plaintiff claims that the defendant Ford was negligent in failing to report prior assaults by Michael and protect her from harm as required by § 10–233g.   Defendant Ford claims that she is entitled to qualified immunity because the decisions whether to report the assaults and protect the plaintiff were discretionary acts rather than ministerial acts.   In response to the defendant Ford's motion for summary judgment on this count, the plaintiff does not address § 10–233g, the statutory basis for count four provided in the complaint, but instead argues that certain Connecticut regulations created a ministerial duty on the part of defendant Ford to provide her with a behavioral plan or medical binder of Michael's needs.   These Connecticut regulations do not appear anywhere in the second amended complaint, and the court finds it is too late to assert them now in response to a motion for summary judgment.  “[T]he right of a plaintiff to recover is limited by the allegations of the complaint ․ and any judgment should conform to the pleadings, the issues and the prayers for relief.”  Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002).

Moreover, to the extent that the plaintiff intended to oppose the defendants' motion based on § 10–233g, she has not briefed that issue and, therefore, the court considers it abandoned.  Hurley v. Heart Physicians, P.C., 298 Conn. 371, 378 n.6, 3 A.3d 892 (2010) (“[W]e generally decline to consider issues that are inadequately briefed ․ Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived ․”) (internal quotation marks omitted);  Conn. Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ( “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ․”) (internal quotation marks omitted).   Accordingly, the defendant Ford's motion for summary judgment on count four of the second amended complaint is granted.

IV

Defendant town has moved for summary judgment on counts six and seven of the second amended complaint, which allege that the defendant town is “responsible for the plaintiff's injuries in that it is responsible for indemnifying its employee's failure to perform their duties” pursuant to General Statutes §§ 7–465 and 52–579.   The plaintiff has failed to oppose the defendant town's motions on these counts and has not provided any evidence or argument in opposition to the defendant town's motion.   Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, it is incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.  Fiorelli v. Gorsky, supra, 120 Conn.App. 306;  Sullivan v. Yale–New Haven Hosp., Inc., supra, 64 Conn.App. 764.   The plaintiff has failed to do so.   Accordingly, judgment shall enter for the defendant town on counts six and seven of the second amended complaint.

V

The defendants have moved for summary judgment on their special defense that counts three, four, six and seven are barred by the statute of limitations.   Because the court has already granted the defendants' motion as to counts four, six and seven on other grounds, it is not necessary for the court to address the defendants' motion for summary judgment on the special defense of statute of limitation as to those counts.

The remaining count, count three, is against the defendant Ford only and is titled “Breach of Ministerial Duty.” Count three alleges that the defendant Ford failed to report the assault at issue in this case and three others to the local police authorities as required by § 10–233g.   The defendant Ford asserts that this count sounds in negligence, and is, therefore, subject to the two-year statute of limitations in General Statutes § 52–584.   Because the plaintiff's request for leave to amend to add count three was not filed until April 9, 2009, several months after the two-year statute of limitations had lapsed, the defendant claims count three is time-barred.

At oral argument, the plaintiff argued that count three is a claim for an assault and is not a negligence claim and, therefore, is controlled by the three-year statute of limitation for an assault.   The court has reviewed count three and concludes that, as pleaded, it is not a negligence claim.   Count three is entitled, “breach of a ministerial duty,” but does not allege the elements of a negligence claim.   Moreover, count four is a negligence claim and it would be unnecessary for the plaintiff to duplicate that claim in count three.

Accordingly, because the defendants' special defense is premised on count three being construed as a negligence claim and the court finds that it is not a negligence claim, the court concludes that the defendant Ford has failed to meet her burden.⁵  The court, therefore, denies the defendants' motion for summary judgment on count three on its special defense of statute of limitations.

CONCLUSION

Accordingly, the defendants' motion for summary judgment is granted in part and denied in part.   As to counts one and three, the motion for summary judgment is denied.   As to counts, four, six and seven the defendants' motion for summary judgment is granted.

Cobb, J.

FOOTNOTES

FN1. In her complaint, the plaintiff asserts only that she was a “teacher” and has not alleged that she was an “other employee.”   Thus, the court only addresses the issue of whether plaintiff was a teacher, as the plaintiff is limited to the allegations of the operative complaint.  “[T]he right of a plaintiff to recover is limited by the allegations of the complaint ․ and any judgment should conform to the pleadings, the issues and the prayers for relief.”  Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002)..  FN1. In her complaint, the plaintiff asserts only that she was a “teacher” and has not alleged that she was an “other employee.”   Thus, the court only addresses the issue of whether plaintiff was a teacher, as the plaintiff is limited to the allegations of the operative complaint.  “[T]he right of a plaintiff to recover is limited by the allegations of the complaint ․ and any judgment should conform to the pleadings, the issues and the prayers for relief.”  Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002).

FN2. Although § 10–236a does not define “teacher,” subsection (c) does include certain categories of persons that are included in the definition, and provides:  “For the purposes of this section, the terms ‘teacher’ and ‘other employee’ shall include any student teacher doing practice teaching under the direction of a teacher employed by a local or regional board of education or by the State Board of Education or Board of Governors of Higher Education, and any member of the faculty or staff or any student employed by The University of Connecticut Health Center or health services.”   The court rejects the defendant's position that this subsection is somehow intended to limit the definition of “teacher” because subsection (c) does not contain limiting language and it is remedial in nature.   See Stitzer v. Rinaldi's Restaurant, 211 Conn. 116, 119, 557 A.2d 1256 (1989) (legislature knows how to use limiting language);  Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 103 Conn.App. 319, 930 A.2d 701 (2007) (remedial statutes require a literal interpretation in favor of the class to be benefited)..  FN2. Although § 10–236a does not define “teacher,” subsection (c) does include certain categories of persons that are included in the definition, and provides:  “For the purposes of this section, the terms ‘teacher’ and ‘other employee’ shall include any student teacher doing practice teaching under the direction of a teacher employed by a local or regional board of education or by the State Board of Education or Board of Governors of Higher Education, and any member of the faculty or staff or any student employed by The University of Connecticut Health Center or health services.”   The court rejects the defendant's position that this subsection is somehow intended to limit the definition of “teacher” because subsection (c) does not contain limiting language and it is remedial in nature.   See Stitzer v. Rinaldi's Restaurant, 211 Conn. 116, 119, 557 A.2d 1256 (1989) (legislature knows how to use limiting language);  Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 103 Conn.App. 319, 930 A.2d 701 (2007) (remedial statutes require a literal interpretation in favor of the class to be benefited).

FN3. The court has reviewed the legislative history of § 10–236a and finds that does not contain any salient material helpful in determining what is meant by the word teacher..  FN3. The court has reviewed the legislative history of § 10–236a and finds that does not contain any salient material helpful in determining what is meant by the word teacher.

FN4. The court recognizes that the one superior court has held that the word “assault” in § 10–236a includes the element of intent.   Patrie v. Area Cooperative Education Services, Superior Court, judicial district of New Haven, Docket No. CV 00 0440418 (June 16, 2004, Corradino, J.) [37 Conn. L. Rptr. 470] (court found assault means “an intentionally violent and hostile attack on another person”).   This court is not bound by that decision and declines to follow it in view of the well established law in Connecticut that a civil assault may be committed without intent..  FN4. The court recognizes that the one superior court has held that the word “assault” in § 10–236a includes the element of intent.   Patrie v. Area Cooperative Education Services, Superior Court, judicial district of New Haven, Docket No. CV 00 0440418 (June 16, 2004, Corradino, J.) [37 Conn. L. Rptr. 470] (court found assault means “an intentionally violent and hostile attack on another person”).   This court is not bound by that decision and declines to follow it in view of the well established law in Connecticut that a civil assault may be committed without intent.

FN5. The court takes no position on what cause of action is alleged in count three..  FN5. The court takes no position on what cause of action is alleged in count three.

Cobb, Susan Quinn, J.