PPA v. Town of Groton Board of Education et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 124)

I

FACTS

On December 11, 2007, the plaintiffs, Melanie Thompson, ppa, Megan L. Rice, and Melanie Thompson, individually, filed an eleven-count complaint against the defendants, the town of Groton (the town), the Groton board of education (the board of education), John J. Luciano, Todd D. Higgins, Aaron Quintana, David Quintana and Jennifer Quintana, seeking damages for personal injuries allegedly sustained by Rice as the result of a classmate's assault.¹  The plaintiffs' complaint alleges the following facts.   Robert E. Fitch Senior High School in Groton, Connecticut is operated by the town.   At all relevant times, Luciano and Higgins were employed at the school by the town and/or the board of education as a principal and a teacher, respectively.   On November 7, 2005, Rice and Aaron Quintana attended a history class at the school typically taught by Higgins.   On that day, the class watched a movie while a substitute teacher monitored the students.   During the class, Aaron Quintana threw a paper airplane that struck Rice. When Rice refused to hand the paper airplane back, Aaron Quintana grabbed and violently twisted her right wrist, thereby causing the plaintiffs' injuries.

Counts one through eight of the plaintiffs' complaint are directed toward the defendants.   Counts one and two allege negligence claims pursuant to General Statutes § 52–557n against the town and the board of education, respectively.   Counts three and six allege common-law negligence claims against Luciano and Higgins, respectively.   Counts four and seven allege claims for indemnification pursuant to General Statutes § 7–465 against the town arising from the negligence of Luciano and Higgins, respectively.   Counts five and eight allege claims for indemnification pursuant to General Statutes §§ 7–101a and 10–235 against the board of education arising from the negligence of Luciano and Higgins, respectively.

On February 24, 2011, the defendants filed a motion for summary judgment as to counts one through eight of the plaintiff's complaint on the grounds that there exist no genuine issues of material fact as to the defendants' liability, and therefore, they are entitled to judgment as a matter of law.   The defendants filed a memorandum of law and several exhibits in support of their motion.   On September 12, 2011, the plaintiffs filed an objection to the defendants' motion, accompanied by a memorandum in support and various exhibits.   The defendants filed a reply memorandum and additional exhibits on September 26, 2011.

II

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“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.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “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.   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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

“The ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court ․ [unless] there are unresolved factual issues material to the applicability of the defense ․ [where] resolution of those factual issues is properly left to the jury.”  (Internal quotation marks omitted.)  Purzycki v. Fairfield, 244 Conn. 101, 107–08, 708 A.2d 937 (1998).

A

Counts One, Two, Three and Six

The defendants first argue that their motion for summary judgment as to counts one, two, three and six of the plaintiffs' complaint should be granted on the ground that the plaintiffs' negligence claims against the defendants are barred by the doctrine of governmental immunity to which no exception applies.   The plaintiffs counter that their claims against the defendants qualify under the identifiable person-imminent harm exception to governmental immunity.

“Section 52–557n ․ specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity.”  (Citation omitted.)  Durrant v. Board of Education, 284 Conn. 91, 105, 931 A.2d 859 (2007).  Section 52–557n(a)(2)(B) provides:  “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.”

“Prior to the enactment of § 52–557n, municipalities generally were immune for the discretionary acts of their officials ․ Under its common-law authority, the court recognized limited exceptions to the discretionary acts immunity ․ Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity to encourage municipal officers to exercise judgment has no force ․ As a result, under the common law, [t]he discrete person/imminent harm exception to the general rule of governmental immunity for employees engaged in discretionary activities ha[d] received very limited recognition in this state.”  (Citations omitted;  internal quotation marks omitted.)  Durrant v. Board of Education, supra, 284 Conn. 105–06.

For the identifiable person-imminent harm exception to apply, three things are required:  “(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).   These three core requirements are to be analyzed conjunctively.  Id., 620.

Our Supreme Court construed the identifiable person-imminent harm exception “to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims ․ Moreover, [our Supreme Court] established specifically that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims.”  (Citation omitted;  internal quotation marks omitted.)   Purzycki v. Fairfield, supra, 244 Conn. 108–09.   In the present case, the plaintiffs concede that Rice, as a student attending a public school during school hours, is a member of a foreseeable class of victims, and as such satisfies the second requirement of the identifiable person-imminent harm exception test.   Therefore, disposition of the defendants' motion depends on the existence of genuine issues of material fact as to whether there was imminent harm to Rice, and whether it was apparent to the defendants that their conduct was likely to subject Rice to that harm.

“A number of [our Supreme Court's] decisions ․, have utilized criteria including the duration, geographic scope, significance and foreseeability of the risk of harm to gauge whether that risk correctly may be considered imminent.”  Doe v. Peterson, supra, 279 Conn. 618 n.10. The majority of Superior Court decisions addressing the imminent harm requirement in the context of students injured at school during school hours have denied summary judgment after considering the aforementioned criteria.   See Bacote v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 06 5005855 (April 16, 2010, Wilson, J.) (student allegedly injured during recess when classmate chased her on school playground);  Beckwith v. O'Hara, Superior Court, judicial district of New London, Docket No. CV 07 5004521 (August 26, 2009, Peck, J.) (student allegedly injured when classmates forced school bathroom door shut with rope and jammed her hand in door);  Sheehan v. Coventry Board of Education, Superior Court, judicial district of Tolland, Docket No. CV 07 5002086 (May 13, 2009, Bright, J.) (47 Conn. L. Rptr. 785) (student allegedly injured during chemistry lab class after another student removed stopper from flask containing hydrogen gas and lit match, resulting in explosion);  Jahic v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000255 (September 26, 2008, Roche, J.) (student allegedly injured during game of freeze tag at recess);  Barnum v. Milford, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 05 5000225 (October 29, 2007, Espinosa, J.) (student allegedly injured in gym class when she fell into unpadded wall in school gym).

The evidence presented by the parties indicates the following.   In excerpts from the depositions of Rice and Aaron Quintana, both parties indicated that they do not know if the substitute teacher was monitoring the class at the time of the alleged incident.   Rice's deposition further states that the entirety of the alleged incident occurred during history class, lasted less than thirty seconds and involved no verbal exchange between Rice and Quintana.   Rice also testifies that she and Aaron Quintana had no relationship prior to that date.   Copies of numerous documents from Aaron Quintana's school file indicate that Quintana was involved in several confrontations with other classmates, resulting in warnings and suspensions, prior to the alleged incident.

Pursuant to the presented evidence, the court finds that the defendants have failed to meet their burden of demonstrating that there exist no genuine issues of material fact as to whether there was imminent harm to the plaintiffs based upon the duration, geographic scope, significance and foreseeability of the risk of harm, or whether it was apparent to the defendants that Aaron Quintana's conduct was likely to subject Rice to that harm.   In light of these genuine issues of material facts, the defendants are not entitled to summary judgment as to counts one, two, three and six on these grounds.

B

Counts One and Six

The defendants further argue that their motion for summary judgment as to counts one and six of the plaintiffs' complaint alleging negligence claims against the town and Higgins, respectively, should be granted on the ground that neither party owed a duty to the plaintiffs.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008).

1

The defendants claim that their motion for summary judgment as to count one of the plaintiffs' claim alleging a negligence claim against the town should be granted because, pursuant to General Statutes § 10–220, the board, and not the town, owed a duty to the plaintiffs.   The plaintiffs counter that the defendants have provided no appellate authority on point, and the Superior Court decisions cited in support of the defendants' argument are not binding on this court.

General Statutes § 10–220 provides in relevant part:  “Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state ․ shall provide an appropriate learning environment for its students which includes ․ a safe school setting ․ shall have charge of the schools of its respective school district [and] shall employ and dismiss the teachers of the schools ․” While there exists no appellate authority on this issue, other Superior Court decisions have held that the town does not owe a duty to an injured student pursuant to § 10–220.   See Ritchie v. Milford, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 06 5001722 (May 27, 2010, Hiller, J.) (granting motion for summary judgment on ground duties allegedly breached by city were owed to plaintiffs by board pursuant to General Statutes);  Miller v. Stamford, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 95 0144988 (October 2, 1996, Ryan, J.) (17 Conn. L. Rptr. 667) (granting city's motion to strike because § 10–220 places duties to maintain schools and hire and fire teachers on board, not city).

In the present case, pursuant to § 10–220 and the foregoing case law, there exists no duty owed to the plaintiffs by the town.   As such, the defendants' motion for summary judgment as to count one against the town for negligence must be granted.

2

The defendants also argue that their motion for summary judgment as to count six of the plaintiffs' claim alleging a negligence claim against Higgins should be granted because he did not hold a supervisory role at the time of the alleged incident, and therefore, he did not owe a duty to the plaintiffs.   The plaintiffs counter that whether Higgins had a supervisory role constitutes a genuine issue of material fact.

The defendants provided Higgins's affidavit in support of their argument, in which Higgins testifies that he was not present in the history class at the time of the incident.   Higgins' affidavit further states that at no relevant time did he direct, oversee, or supervise school faculty.   The plaintiffs have offered no evidence indicating that Higgins had a supervisory role at the time of the alleged incident.   As noted herein, “[m]ere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  Zielinkski v. Kotsoris, supra, 279 Conn. 319.   Pursuant to the evidence presented, Higgins owed no duty to the plaintiffs, and therefore, he may not be held liable for negligence in the present action.   As a result, the defendants' motion for summary judgment as to count six of the plaintiffs' complaint must be granted.

D

Counts Four and Seven

The defendants further argue that their motion for summary judgment as to counts four and seven of the plaintiffs' complaint should be granted on the grounds that the claims against Luciano and Higgins are insufficient as a matter of law, and therefore, the plaintiffs may not prevail on their corresponding claims for indemnification against the town pursuant to § 7–465.   The plaintiffs counter that their claims against the individual defendants are valid, and as a result, their indemnification claims should also survive summary judgment.

Section 7–465 provides for indemnification of a municipal employee by the municipality.  “To invoke § 7–465, the plaintiffs first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof.   Only then may the plaintiff go on to allege and prove the town's liability by indemnification.”  (Internal quotation marks omitted.)   Altfeter v. Naugatuck, 53 Conn.App. 791, 799, 732 A.2d 207 (1999).   In the present case, a genuine issue of material fact exists as to whether the plaintiffs' negligence claim against Luciano is valid pursuant to the identifiable victim-imminent harm exception to governmental immunity.   The plaintiffs' negligence claim against Higgins fails as a matter of law, however, as Higgins did not owe a duty to the plaintiffs pursuant to the evidence provided.   As a result, count four, the indemnification claim arising from Luciano's alleged negligence, must be denied, and count seven, the indemnification claim arising from Higgins' alleged negligence, must be granted.

E

Counts Five and Eight

The defendants also argue that their motion for summary judgment as to counts five and eight of the plaintiffs' complaint against the board for indemnification pursuant to §§ 7–101a and 10–235 should be granted on the grounds that the negligence claims against Luciano and Higgins are insufficient as a matter of law, and the statutes do not provide for a direct cause of action against a municipality.   The plaintiffs counter that their claims against the individual defendants are valid, and as a result, their indemnification claims should also survive summary judgment.

While no appellate authority exists on these issues, numerous Superior Court decisions have held that a party may not bring a claim against a municipality pursuant to § 7–101a;  see, e.g., Early v. Allen, Superior Court, judicial district of Hartford, Docket No. CV 06 5003421 (February 7, 2007, Hale, J.T.R.) (42 Conn. L. Rptr. 802);  or pursuant to § 10–235.   See, e.g., Doe v. Burns, Superior Court, judicial district of Middlesex, Docket No. CV 03 0100254 (July 19, 2005, Aurigemma, J.) [39 Conn. L. Rptr. 815].   Furthermore, the plaintiffs do not argue to the contrary.   As discussed herein, a genuine issue of material fact exists as to whether the plaintiffs' negligence claim against Luciano is valid pursuant to the identifiable victim-imminent harm exception to governmental immunity.   The plaintiffs' negligence claim against Higgins fails as a matter of law, however, as Higgins did not owe a duty to the plaintiffs pursuant to the evidence provided.   As a result, count five, the indemnification claim arising from Luciano's alleged negligence, must be denied, and count eight, the indemnification claim arising from Higgins' alleged negligence, must be granted.

III

CONCLUSION

Based on the foregoing, the court hereby denies the defendants' motion for summary judgment as to counts two, three, four and five, and hereby grants the defendants' motion for summary judgment as to counts one, six, seven and eight.

Martin, J.

FOOTNOTES

FN1. Aaron Quintana, David Quintana and Jennifer Quintana are not parties to the present motion.   Hereinafter the term the defendants shall refer to the town, the board of education, Luciano and Higgins, collectively..  FN1. Aaron Quintana, David Quintana and Jennifer Quintana are not parties to the present motion.   Hereinafter the term the defendants shall refer to the town, the board of education, Luciano and Higgins, collectively.

Martin, Robert A., J.