Kyle Straiton v. New Milford Board of Education et al. (2012)

MEMORANDUM OF DECISION

I

PROCEDURAL BACKGROUND

The parties in this action are the plaintiff Kyle Straiton and the defendants New Milford Board of Education, The Town of New Milford, John Lee, Donna Luzi and Kevin DaSilva.   The defendants Town of New Milford, New Milford Board of Education, John Lee and Donna Luzi, have moved for the entry of summary judgment as to the First, Second, Third and Fourth Counts of the plaintiff's August 30, 2010 Amended Complaint.   The defendants have moved for summary judgment on the following grounds:  (1) as to the First Count of the Amended Complaint asserted against the Town of New Milford, that since it exercised no control over the New Milford Board of Education in the board of education's duty to educate or supervise students, it is not a proper party to this action;  (2) as to the Fourth Count of the Amended Complaint asserted against Defendant Luzi, that there is no legal or factual basis to find that defendant Luzi had a duty to plaintiff;  (3) as to the First, Second, Third and Fourth Counts of the Amended Complaint that the plaintiff's claims are barred by the doctrine of governmental immunity;  and (4) as to the First, Second, Third and Fourth Counts of the Amended Complaint asserted against the defendants Town of New Milford, New Milford Board of Education, Lee and Luzi that as a matter of law the plaintiff cannot establish proximate causation.

A memorandum in opposition to the motion for summary judgment was filed by the plaintiff, along with a reply brief by the defendants.   On December 19, 2011, oral argument was heard on the defendants' motion for summary judgment.

II

FACTUAL BACKGROUND

This case arises out of an April 2008 incident in which the plaintiff, then a student at New Milford High School, was bullied and subsequently assaulted by a fellow student.   The plaintiff Kyle Straiton, attended New Milford High School and was bullied and harassed by defendant Kevin DaSilva during his freshman year.   The bullying and harassment continued and plaintiff made a formal complaint a few months into the school year.   On the day the plaintiff made his formal complaint, the defendant DaSilva confronted him in the hallway, knocked his books to the ground, grabbed him by the shoulder and tried to punch the plaintiff.   The physical altercation was subsequently stopped by a teacher.   Following that incident, the defendant DaSilva's bullying and harassment of plaintiff continued.

On the first day of his sophomore year, the plaintiff was again bullied and harassed by the defendant DaSilva during their common lunch schedule, when defendant continued to harass the plaintiff.   Almost every single day, the defendant DaSilva would sit at a lunchroom table near the plaintiff and give him dirty looks, throw food or other objects at plaintiff.   During the first semester of his sophomore year, the plaintiff once again filed a complaint about the bullying and harassment he was receiving from defendant DaSilva in the lunchroom and relayed the history of his problems with defendant DaSilva from the prior year.   In response to the plaintiff's complaint, defendant DaSilva was made to move his lunch table for a single day, but then was permitted to be next to the plaintiff the next day.

In his second semester, sophomore year, the plaintiff continued to complain to teachers in the lunchroom about defendant DaSilva's bullying and harassing behavior.   In response to his complaints, allegedly teachers would attempt to move defendant DaSilva to another table, but they were ignored.   The defendant Lee supervised this lunch period and there were times when the bullying and harassment would stop when Lee “clamped down on them.”   Defendant DaSilva's bullying and harassment continued throughout the second semester of plaintiff's sophomore year.

One week before he was assaulted, the plaintiff was in the school cafeteria when the defendant DaSilva allegedly made eye contact with him and said a derogatory “gay” remark.   Plaintiff filed a complaint with defendant Luzi, who was Vice Principal, when the lunch period ended.   As the plaintiff walked to defendant Luzi's office, defendant DaSilva followed him continuing to make remarks about his sexuality.   As plaintiff entered defendant Luzi's office, defendant DaSilva hit the plaintiff with a handful of textbooks.

The plaintiff then spoke to defendant Luzi and complained about defendant DaSilva hitting him.   Plaintiff allegedly advised Luzi that no other teacher had been able to stop the bullying and harassment and asked the defendant Luzi to do something to stop it.   In response to his complaint, defendant Luzi brought the plaintiff to defendant Vice Principal Lee's office, where the plaintiff again recounted the bullying and harassment by defendant DaSilva.   This was not the first time that the plaintiff had complained to defendant Lee about being bullied and harassed by defendant DaSilva as the plaintiff had complained to defendant Lee in his freshman year.   As a consequence of striking the plaintiff with his books, defendant DaSilva was suspended from school for two days.

The plaintiff thereafter went on vacation for a week while school remained in session.   While on vacation, the plaintiff received an electronic message that defendant DaSilva was telling people he was going to get the plaintiff upon his return.   The plaintiff returned from vacation and spoke to defendant Lee, who allegedly confirmed that he had information that defendant DaSilva had made comments about getting him.   Defendant Lee allegedly told the plaintiff that he had spoken to the School Resource Officer about the matter and informed him to be on alert.   During lunch that day, the plaintiff noticed the way defendant DaSilva was looking at him and it made him nervous.   He reported his fear to defendant Lee who was present in the lunch room.   Defendant Lee made defendant DaSilva move to another table in the lunch room.   The plaintiff allegedly continued to fear for his safety and allegedly reported his fear to defendant Luzi who was also in the lunchroom.   As the plaintiff left the lunchroom he was followed by defendant DaSilva and physically assaulted in the hallway.

III

DISCUSSIONA. Summary Judgment Standard

The defendants have moved for summary judgment as to the First through Fourth Counts of the plaintiff's Amended Complaint.  “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.)  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).

“[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of a case.”   (Citations omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“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 material fact, which, under applicable principles of substantive law, entitle him to 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 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).  “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).

The issue of governmental immunity is a question of the existence of a duty of care, and the Connecticut Supreme Court “has approved the practice of deciding the issue of governmental immunity as a matter of law.”  Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006).

B. Claims Against Town of New Milford

The defendant Town of New Milford has first moved for summary judgment as to the First Count of the Amended Complaint on the grounds that the defendant Town of New Milford is entitled to summary judgment since it did not have control or responsibility with regard to the provision of supervision to students in the New Milford School system.   The plaintiff contends that the Town of New Milford is a proper party and because it does not have sovereign immunity it is responsible to indemnify defendants Lee and Luzi for their negligence.

“A suit against a municipality is not a suit against a sovereign.”  Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596 (1963).  “General Statutes § 52–557n abandons the common law principle of municipal sovereign immunity and established the circumstances in which a municipality may be liable for damages.”  (Citations omitted.)  Doe v. Petersen, supra, 279 Conn. 614.   “One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.”  Id., See also General Statutes § 52–557n(a)(1)(A).

“A town board of education can be an agent of the state for some purposes and agent of the municipality for others.   A town board of education thus potentially enjoys immunity under two different theories of immunity for acts carried out within its governmental capacity.”  Heigl v. Board of Education of New Canaan, 218 Conn. 1, 3–4, 587 A.2d 423 (1991).  “Local boards of education are not agents of the state ․ in performing each and every mandated function ․ Local boards of education act as agents of the state when fulfilling the statutory duties imposed upon them by the legislature in light of the state constitutional mandate to furnish public education.   Local boards of education are also agents of the towns, subject to the law governing municipalities, when acting on behalf of the municipality in its function of mandating control over the public schools within the municipality's limits.”   (Citations omitted.)  R.A. Civetello Co. v. New Haven, 6 Conn.App. 212, 218, 504 A.2d 542 (1986).  “The [board of education's] duty to supervise students is performed for the benefit of the municipality.”  Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d 937 (1998).

The defendant contends that “[i]n discharging its state constitutional mandate to provide free public primary and secondary education;  ․ the state has delegated the duty to educate a municipality's children to local boards of education.”  (Citation omitted.)  Board of Education v. New Haven, 237 Conn. 169, 174–75, 676 A.2d 375 (1996).   The defendant further argues that in the context of this case, the Town of New Milford Board of Education was acting in its capacity as a State agency by providing education and as such the Town of New Milford is not a proper defendant.

The plaintiff contends that the New Milford Board of Education is acting as an agent for the Town of New Milford when it is “mandating control” over the public high school.   In support of his position, the plaintiff cites to the written policies and procedures that were in place at the school relating to an imminent threat to a student at the school and to maintaining control in such situations.   The plaintiff further cites to General Statutes § 7–465 which provides in relevant part:

Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for ․ physical damages to person or property ․ if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any willful or wanton act of such employee in the discharge of such duty ․ [E]mployee includes (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board ․

The claims asserted in this case do not relate to the “education” given to plaintiff.   Instead, they relate to the inability of certain teachers and staff at New Milford High School to supervise and maintain control on its premises for the protection of its students.   As the defendant Town of New Milford Board of Education was performing such functions within the town limits of the Town of New Milford, it was acting as an agent of the Town of New Milford.   As such, the defendant Town of New Milford is a proper defendant in this action.

Based on the foregoing, the defendant Town of New Milford's motion for summary judgment on this ground is denied.

C. Claims Against Defendant Luzi

The defendant Luzi has moved for summary judgment on the Fourth Count of the Amended Complaint on the grounds that there is no factual or legal basis for the finding that she had a duty to plaintiff.

In support of her claim, defendant Luzi claims she had very limited involvement with the bullying situation set forth in the allegations in the complaint and no control over the disciplining of defendant DaSilva.   Defendant Luzi, however, does not dispute that she was one of two Vice Principals at New Milford High School responsible for monitoring the student body or that she had multiple interactions with the plaintiff regarding this bullying situation.   In response to defendant Luzi's arguments, the plaintiff contends that not only is defendant Luzi's statement of “very limited involvement” factually inaccurate, but under the New Milford High School Bullying policy, defendant Luzi had a duty to the plaintiff.

The court has set forth above in great detail the facts alleged as against defendant Luzi by the plaintiff, which facts were supported by evidence attached in opposition to this motion for summary judgment.   Included in that factual summary were the facts that this bullying situation was reported to defendant Luzi on multiple occasions by the plaintiff, a physical altercation between the plaintiff and defendant DaSilva occurred at her office, the plaintiff complained to her and asked for help regarding this bullying situation shortly before the final physical assault occurred.   This court finds that there is a sufficient factual basis that defendant Luzi had knowledge of and involvement in the bullying situation and there is certainly a genuine issue of material fact as to how extensively she was involved in the situation.   The defendant Luzi's motion for summary judgment on the Fourth Count of the Amended Complaint on the grounds that she only had limited involvement with the situation is denied.

The defendant Luzi has also moved for summary judgment as to the claims asserted in the Fourth Count of the Amended Complaint on the grounds that she had no legal duty to the plaintiff.   The plaintiff contends that defendant Luzi had a duty to compel compliance with school rules and to prevent bullying and harassment from defendant DaSilva.   The plaintiff also contends that defendant Luzi had a legal duty to be alert to possible situations that might include bullying and to inform the administration immediately of such events.   The plaintiff has directed this court to Section IV of the New Milford High School Bullying policy, entitled “Reporting Procedure,” which provides in relevant part:

Teachers, administrators, other employees of the school district, volunteers and contractors shall be particularly alert to possible situations, circumstances or events which might include bullying.   Any individual, who receives a report of, observes or who otherwise acquires knowledge or belief of, conduct which may constitute bullying must inform the building administration immediately.

“The existence of a duty of care, an essential element of negligence, is a matter of law for the court to decide ․ A duty to act with reasonable care to prevent harm to a plaintiff which, if violated, may give rise to tort liability is based on a ‘special relationship’ between the plaintiff and the defendant ․ A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his failure to act.”  (Citations omitted;  internal quotation marks omitted.)  Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994).  “The ultimate test of the existence of a duty to use care is found in the forseeability that harm may result if it is not exercised ․” Id., at 647.  “A teacher stands in loco parentis toward a pupil.   He must maintain discipline, and if a pupil disobeys his orders it is his duty to use reasonable means to compel compliance.”  Sheehan v. Sturges, 53 Conn. 481, 483, 2 A. 841 (1885);  Conley v. Board of Education, 143 Conn. 488, 497, 123 A.2d 747 (1956);  Andreozzi v. Rubano, 145 Conn. 280, 282, 141 A.2d 639 (1958).

In this case, the defendant Luzi had repeated contact and interaction with the plaintiff regarding the bullying by defendant DaSilva and was not only alert to, but aware of several events which had occurred.   At a minimum, the defendant Luzi had a duty to report these events to the building administration immediately.   More importantly, this court finds that defendant Luzi had a duty to be alert to and to protect the plaintiff from bullying and harassment from defendant DaSilva.

As there is a sufficient legal basis for the assertion of the claims in the Fourth Count of the Amended Complaint against defendant Luzi, defendant's motion for summary judgment on this ground is denied.

D. Duty to Supervise High School Students and Governmental Immunity

The defendants Town of New Milford, New Milford Board of Education, Lee and Luzi next move for summary judgment on the First through Fourth Counts of the Amended Complaint on the grounds that no legally cognizable duty exists with regard to the supervision of high school students and that the doctrine of governmental immunity bars the plaintiff's claims against them.

The court's analysis begins with an examination of tort liability of municipalities and their employees, including when a duty of care exists between a municipality and its employees and a student in one of its schools.

“The doctrines that determine the tort liability of municipal employees are well established.   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.”   Burns v. Board of Education, supra, 228 Conn. 645.  “[A] municipal employee ․ has qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act ․ The word ‘ministerial’ refers to a duty which is to be performed in a prescribed manner without the exercise of discretion ․” Id., at 645.

“Municipal officers are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society.”  (Internal quotation marks omitted.)   Doe v. Petersen, supra, 279 Conn. 614.  “Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.”  (Internal quotation marks omitted.)   Id. at 615.  “In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Id. “This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.”  Id.

“There are three exceptions to discretionary act 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 ․ First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure ․ Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal officer for failure to enforce certain laws ․ Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․” (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 319–20, 907 A.2d 1188 (2006).

“Discretionary act immunity is abrogated when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ By its own terms, this test requires three things:  (1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject victim to that harm.”  (Internal quotation marks omitted.)  Doe v. Petersen, supra, 279 Conn. 616.

In Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), the Supreme Court concluded that a public officer did not enjoy discretionary act immunity when he or she is subject to a “clear and unequivocal” duty to act.   In that particular case, the court found that the police officer did enjoy discretionary act immunity after he pulled over an apparently intoxicated motorist for speeding, let him go and the motorist subsequently got into an accident that killed another person.   The court found that the threshold requirement of “imminent harm” exception was not satisfied, because the officer could not “have been aware that [the motorist's] conduct threatened an identifiable victim with imminent harm.”  Id., at 154.   Because the police officer could not have been aware that the likely consequence of his action was a fatal collision, no clear and unequivocal duty to act to prevent that collision existed, and the abrogation of discretionary act immunity under the imminent harm exception was inappropriate.  Id. “The special duty required to maintain the action cannot be established by the mere fact that someone with whom the official had prior contact subsequently injured the plaintiff ․” Id., at 156.

The only exception to the qualified immunity of a municipal employee for discretionary acts that is of relevance to the present case is the exception permitting a tort action in circumstances of perceptible imminent harm to an identifiable person.   The Supreme Court has “construed this exception to apply not only to identifiable individuals, but also to narrowly defined identifiable classes of forseeable victims.”  Purzycki v. Fairfield, supra, 244 Conn. 108.   The plaintiff contends that not only was the plaintiff school child a member of a forseeable class of victims to whom the defendants owed a special duty of care, but that plaintiff was also a specific identifiable victim as to which imminent harm was forseeable to the plaintiff if the defendants did not act with reasonable care.

“The existence of a duty of care, an essential element of negligence, is a matter of law for the court to decide ․ A duty to act with reasonable care to prevent harm to a plaintiff which, if violated, may give rise to tort liability is based on a ‘special relationship’ between the plaintiff and the defendant ․ A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his failure to act.”  (Citations omitted;  internal quotation marks omitted.)  Burns v. Board of Education, supra, 228 Conn. 646.  “The ultimate test of the existence of a duty to use care is found in the forseeability that harm may result if it is not exercised ․” Id., at 647.

In support of their position that there is no legally cognizable duty to supervise high school students, the defendants cite to Heigl v. Board of Education, supra, 218 Conn. 2, where a high school student was injured in an automobile accident off the school's premises, but during school hours.   The plaintiff in that case argued that the school had a duty to supervise students during school hours of attendance, even if they were off campus, and therefore could not allow them to leave the school without supervision.   The defendants in this case specifically cite to the holding of the Connecticut Supreme Court in Heigl that “[n]either the General Statutes nor our decisional law has ever stated that a board of education has a specific duty to supervise high school students,” for the proposition that there is no legal duty to supervise high school students.  Id., at 8.

In reality, the Supreme Court's holding in Heigl was much narrower than that asserted by the defendants.   The Supreme Court held that “[n]either the General Statutes nor our decisional law has ever stated that a board of education has a specific duty to supervise high school students.   Even if such a duty exists, actions pursuant to such a duty are discretionary if they are performed wholly for the direct benefit of the public ․ If the duty imposed ․ by the statutes is of such a nature that the performance of it will affect an individual in a manner different in kind from the way it affects the public at large, the statute is one which imposes ․ a duty to the individual ․ If, on the other hand, no one individual is affected ․ in a manner different from other members of the general public ․ [t]he duty imposed [is] ․ public ․ Pursuant to its authority under the General Statutes, the board of education in this case established a policy that affected every member of the student population of New Canaan High School in the same manner.   There is no suggestion that the decedent was singled out by the policy.   Thus, the board was acting for the public benefit and was not discharging an affirmative duty toward an identifiable individual student.   As a result, any action by the board in this regard was discretionary and therefore protected from liability.”  (Citations omitted;  internal quotation marks omitted.)  Id. The Supreme Court does not say that a duty to supervise high school students does not exist.   Rather it focuses its analysis with respect to the policy at issue on whether the decedent student was an identifiable individual student.

While not a duty to supervise case, the Supreme Court has held that a board of education does have a duty to students who are statutorily compelled to attend school and obey school rules and discipline, even if the student is high school age.   In Burns v. Board of Education, supra, 228 Conn. 649, the Supreme Court held that a fourteen-year-old boy was “statutorily compelled to attend school and obey school rules and discipline formulated and enforced pursuant to statute.”   The Supreme Court further held that “the superintendent of schools bears the responsibility for failing to act to prevent the risk of imminent harm to school children as an identifiable class of beneficiaries of his statutory duty of care.   At least during school hours on school days, when parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees, the superintendent has the duty to protect the pupils in the board's custody from dangers that may reasonably be anticipated ․ As a matter of policy, this conclusion comports with our caselaw that has traditionally recognized that children require special consideration when dangerous conditions are involved.”  (Citations omitted.)   Id., at 649–50.

In Purzycki v. Fairfield, a second grader sought to hold the Town of Fairfield and other related defendants liable for injuries incurred when he was tripped by another student in the school hallway while traveling from lunch to recess.   The Supreme Court held in that case that “the present case involves a limited time period and limited geographical area, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess ․ [T]he risk of harm was significant and forseeable, as shown by the principal's testimony ‘that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries.’  “ Purzycki v. Fairfield, supra, 244 Conn. 110.   The Supreme Court held that “because the school administrators here had reason to foresee the danger that could occur on a daily basis, the harm in the present case was not as remote a possibilityDP1⌑This Court is aware of no case law that has limited the application of Purzycki to school supervision cases involving young children.   In Bonamico v. Middletown, 244 Conn. 923, 714 A.2d 8 (1998), a middle school student was walking down the hallway in a school when she was struck in the eye by a pellet thrown by another student.   The plaintiff asserted claims against the City of Middletown, the Middletown Board of Education and related others for the injuries she suffered.   The defendants moved to strike all of claims in the complaint on the grounds that the doctrine of governmental immunity barred such claims.   The plaintiff contended that since the school had a policy that required teachers to be in the hallway to supervise students as they changed class periods, the minor plaintiff was an identifiable person subject to imminent harm by merely passing through this hallway between classes.¹  The Supreme Court ultimately found that there were sufficient facts to bring this case within the identifiable person-imminent harm exception to the governmental immunity rule.

In Maretz v. Huxley, Superior Court, judicial district of New Haven, Docket No. CV 07 5011978 (January 12, 2009, Corradino, J.), the trial court denied a motion for summary judgment on the issues of governmental immunity and imminent harm exception where a high school student was assaulted.   In holding that Purzycki was not limited to second graders, the court noted that “high school students gathered in large numbers at lunch time or at sporting events would certainly seem to present a risk of incidents such as the one involved in this case occurring.”   In 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], the trial court denied a motion for summary judgment on the issues of governmental immunity and proximate cause where the high school student plaintiff asserted claims against the Coventry Board of Education and related parties arising out of an accident that occurred during a chemistry lab at Coventry High School.   In holding that the Supreme Court did not intend to limit Purzycki to school supervision cases involving young children, the court noted that “teenagers can be just as apt to exercise bad judgment or to misbehave as eight-year olds.”

Based on the foregoing, the defendants' motion for summary judgment on the grounds that there is no legally cognizable duty to supervise high school students is denied.

The defendants next move for summary judgment on the grounds that the doctrine of governmental immunity bars the plaintiff's claims against them.   The defendants contend, and the court agrees, that the acts alleged against defendants were discretionary acts.   In looking at the possible exceptions to governmental immunity for discretionary acts, the court finds that the only potentially relevant exception is the identifiable person-imminent harm exception.   Viewing the evidence in the light most favorable to the non-moving party, as required, the court finds that not only are there genuine issues of material fact as to whether the plaintiff was an identifiable victim, but also as to whether there was imminent harm present to the plaintiff on April 3, 2008 and whether it was apparent to the defendants that their respective actions or inactions were likely to subject the plaintiff to harm.   Accordingly, the defendant's motion for summary judgment on governmental immunity grounds is denied.

E. Causation

The defendants Town of New Milford, New Milford Board of Education, Lee and Luzi next move for summary judgment on the grounds that the plaintiff cannot establish causation as the defendant DaSilva's assault of the plaintiff prevents a finding of causation.

“[L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.   The first component of legal cause is causation in fact.   Causation in fact is the purest legal application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred were if not for the actor's conduct ․ Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions ․ The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct ․ In negligence cases ․ in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the [victim].”  (Internal quotation marks omitted.)  Malloy v. Colchester, 85 Conn.App. 627, 633–34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004).   The determination of the nature of the legal duty owed, if any, must be rooted in “the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong.”  (Internal quotation marks omitted.)  Id., 634.  “Foreseeable acts” can include the criminal acts of third parties.  Doe v. Manheimer, 212 Conn. 748, 767, 563 A.2d 699 (1989), overruled on other grounds by Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 662 A.2d 753 (1995).

“[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the [victim's] injuries.”  (Internal quotation marks omitted.)  Malloy v. Colchester, 85 Conn.App. 634.   To that end, “[t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Citations omitted;  internal quotation marks omitted.)  Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 611.

Viewing the evidence in the light most favorable to the non-moving party, as required, the court finds that a fair and reasonable person could not reach only one conclusion with regard to the legal cause, actual or proximate, of the injuries suffered by the plaintiff and that this issue should be determined by the trier as a matter of fact.   The court finds that there are genuine issues of material fact as to whether the defendant DaSilva's actions were the legal cause of the injuries suffered by the plaintiff, and the defendants' motion for summary judgment on these grounds is denied.

IV

CONCLUSION

Based on the foregoing, the defendants' motion for summary judgment on the First through Fourth Counts of the Amended Complaint is denied.

BY THE COURT

OZALIS, J.

FOOTNOTES

FN1. The trial court granted the motion to strike and its decision was at first affirmed by the Appellate Court on the grounds that there were insufficient facts to bring this case within the identifiable person-imminent harm exception to the governmental immunity rule.   The case was then appealed to the Supreme Court.   The Supreme Court remanded the case back to the Appellate Court for reconsideration in light of its ruling on the Purzycki case, and upon reconsideration of the Supreme Court's holdings in Purzycki, the Appellate Court reversed the decision of the trial court and remanded it back for further proceedings..  FN1. The trial court granted the motion to strike and its decision was at first affirmed by the Appellate Court on the grounds that there were insufficient facts to bring this case within the identifiable person-imminent harm exception to the governmental immunity rule.   The case was then appealed to the Supreme Court.   The Supreme Court remanded the case back to the Appellate Court for reconsideration in light of its ruling on the Purzycki case, and upon reconsideration of the Supreme Court's holdings in Purzycki, the Appellate Court reversed the decision of the trial court and remanded it back for further proceedings.

Ozalis, Sheila A., J.