Jordan Green v. Patsy V. Darity et al. (2012)

Ruling on Motion for Summary Judgment

The question in this case is whether a municipality is entitled to immunity from a suit alleging that a high school student tripped on a missing stair in a school building after an evening basketball practice.   The court concludes that immunity is appropriate and grants the defendants' motion for summary judgment.

I

The facts, interpreted in a light most favorable to the plaintiff, are as follows.   At the time of the incident, the plaintiff, Jordan Green, was a junior at the Capital Preparatory Magnet School, which is located on Main Street in Hartford.   The plaintiff's school required him to participate in two extracurricular activities and the plaintiff chose basketball as one of them.   Basketball team practice took place after school at what was formerly known as the Hartford Transitional Learning Academy on Washington Street in Hartford.

On November 30, 2007, practice ended around seven or eight o'clock in the evening.   The plaintiff left via a stairway on the side or in the back of the gym.   There was one light, but it was fairly dim and overall the area was not well lit.   As the plaintiff descended the stairway, he fell because of what he described as a “missing step” and sustained an injury to his leg.¹

The plaintiff filed this negligence suit against Patsy V. Darity, the principal of the Hartford Transitional Learning Academy, and the Hartford Board of Education (the defendants).   The defendants now move for summary judgment on the ground of municipal immunity.

II

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.”  Practice Book § 17–49.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law ․ The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts ․” (Internal quotation marks omitted.)  SS–II, LLC v. Bridge Street Associates, 293 Conn. 287, 293–94, 977 A.2d 189 (2009).

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ․ The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ․ To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․ The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464–65, 976 A.2d 23 (2009).  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).

III

Our Supreme Court has stated that “[a] municipality itself was generally immune from liability for its tortious acts at common law ․ We have also recognized, however, that governmental immunity may be abrogated by statute ․ Thus, the general rule developed in our case law is that a municipality is immune from liability for [its tortious acts] unless the legislature has enacted a statute abrogating that immunity.”  (Internal quotation marks omitted.)  Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2004).

One such statute is General Statutes § 52–557n.   Subsection (a)(1) provides:  “[e]xcept as otherwise provided by law, a political subdivision of the state shall 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 ․” However, subsection (a)(2) states:  “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.”

The Supreme Court has synthesized these provisions as follows.  “Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ․ 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, 272–73, 984 A.2d 58 (2009).

“The 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 Appellate Court has held that a city's design and maintenance of a stairwell can be discretionary in nature, particularly when there is no evidence that the city's employees were ordered to maintain the stairwell in any particular manner.  Segreto v. Bristol, 71 Conn.App. 844, 858, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).   The plaintiff in this case does not present any admissible evidence that the defendants had any such policy governing maintenance of school property.²  Absent such a policy, the task of maintaining school property requires the exercise of at least some judgment.   Accordingly, the court finds that the duty in question here was discretionary.

Of the applicable exceptions to immunity for discretionary acts, the plaintiff relies solely on the identifiable person-imminent harm exception.  “By its own terms, [the identifiable person-imminent harm exception] 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 ․ Failure to establish any one of the three prongs will be fatal to a plaintiff's claim that he comes within this exception.”   (Citation omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, supra, 294 Conn. 273.

“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 [our Supreme Court has] recognized for these purposes is that of schoolchildren attending public schools during school hours.”  (Citation omitted;  internal quotation marks omitted.)  Id., 274.   In the present case, the defendants argue that the plaintiff's accident occurred after normal school hours in an activity in which he was not required to participate.   The plaintiff responds that he was required to participate in two extracurricular activities and that such activities normally take place after school.   These competing concerns raise at least a factual dispute as to whether the plaintiff falls within an identifiable class of victims.

The more difficult hurdle for the plaintiff to surmount is whether there was an imminent harm.   Our Supreme Court has stated:  “[f]or 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 ․ For the purposes of the imminent harm exception ․ it is impossible to be an identifiable person in the absence of any corresponding imminent harm ․ Indeed, we have found imminent harm only in the clearest cases.”  (Citations omitted;  internal quotation marks omitted.)  Id., 276.   Stated differently, a harm is not imminent if it “could have occurred at any time or place in the future or to anyone.”  Id., 277–78.   Compare Tryon v. North Branford, 58 Conn.App. 702, 708–17, 755 A.2d 317 (2000) (question of fact existed as to whether harm from preventing dog from being in plaintiff's close proximity created a situation of imminent harm to plaintiff) with Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989) (harm from risk of fire not imminent because fire could have occurred at any time and affected any number of people).   See also Cotto v. Board of Education, supra, 294 Conn. 276–79.

In the present case, the harm from the missing step “could have occurred at any time or place in the future or to anyone.”  Id., 277.   Although the plaintiff argues that the poor lighting conditions at night contributed to the accident and makes the risk of harm more ephemeral, the slip and fall still could have occurred on any night, and not just the night in question.   Indeed, the condition of a missing step is something that could have caused an accident in full daylight as well.   Thus, the risk of harm was neither temporary nor temporally limited.

Further, this case is not one in which “the alleged imminent harm [is] ․ imminent in terms of its impact on a specific identifiable person ․” (Internal quotation marks omitted.)  Id., 276.   On the contrary, the harm could have occurred not only to the plaintiff or other students, but also to any employee of the school or visitor to the school descending that stairway.   On the basis of the evidence, it could not have been apparent to the defendants that the missing stair was a danger that targeted the plaintiff or his classmates, as opposed to anyone else using that staircase.   See id., 279 (risk of specific harm from a wet bathroom floor was not sufficiently immediate “because any person using the bathroom could have slipped at any time.”)   Accordingly, the plaintiff cannot satisfy the identifiable person-imminent harm exception to the defendants' municipal immunity.

III

The motion for summary judgment is granted.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. The plaintiff testified at his deposition in May 2011 that he has no present problems with his leg other than the appearance of a scar..  FN1. The plaintiff testified at his deposition in May 2011 that he has no present problems with his leg other than the appearance of a scar.

FN2. In his March 1, 2012 opposition to summary judgment, the plaintiff presents a document from the internet that allegedly represents a Hartford regulation requiring monthly inspections of school buildings and grounds.   The plaintiff candidly concedes that he cannot authenticate the document.   Further, the plaintiff did not file his summary judgment opposition by the January 29 deadline set by the court or within five days of the March 5 short calendar hearing, as required by Practice Book § 17–45.   Accordingly, the court declines to consider the plaintiff's exhibit..  FN2. In his March 1, 2012 opposition to summary judgment, the plaintiff presents a document from the internet that allegedly represents a Hartford regulation requiring monthly inspections of school buildings and grounds.   The plaintiff candidly concedes that he cannot authenticate the document.   Further, the plaintiff did not file his summary judgment opposition by the January 29 deadline set by the court or within five days of the March 5 short calendar hearing, as required by Practice Book § 17–45.   Accordingly, the court declines to consider the plaintiff's exhibit.

Schuman, Carl J., J.