Erin Gorman v. Town of New Milford et al. (2012)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (# 160)

This action comes before the court on the defendants' Second Motion for Summary Judgment (# 160).   As is obvious from the age of this action, it has had a somewhat tortured history of proceedings to reach this point and a review of that history will be helpful in addressing some of the issues raised by the motion.

As currently alleged in the Second Amended Complaint, the plaintiff is a teacher who came to provide instruction for a Middle School student who suffered from extensive disabilities and needed instruction with some basic living skills.   She alleges that in January of 2007, while providing instruction to this student, she was assaulted by him, receiving rather significant and continuing personal injuries.   As a result of two Motions to Strike and one prior Motion for Summary Judgment, there are currently only two pending claims in this case, Counts One and Three.

Count One alleges that this assault by a student occurred during the performance of plaintiff's duties as a teacher and that she is entitled to indemnification from the defendant New Milford Board of Education pursuant to § 10–236a of the Connecticut General Statutes.   This count alleges that plaintiff suffered painful and permanent injuries;  has undergone therapy, surgery and treatment;  “has expended sums of money for medical treatment”;  has lost time from her employment;  and has experienced pain and suffering and loss of enjoyment.

Count Three alleges, in addition, that on three prior occasions plaintiff had been assaulted by this same student, which assaults had been reported in writing to the principal of the school.   Plaintiff alleges that despite such written reports, the assaults were not reported to the police and no corrective action was taken.   Plaintiff alleges this failure violated § 10–233g of the Connecticut General Statutes.

The threshold issue with regard to the entire Motion for Summary Judgment is whether or not this court should entertain the motion.   Plaintiff's argument is simple:  Defendants have filed two motions to strike as well as a prior motion for summary judgment and all of the defenses now asserted could and should have been presented in one or more of those earlier motions ․ but were not.   Plaintiff's point is well taken.   These two counts were addressed in the prior motions, particularly the October 8, 2010 motion for summary judgment (# 142), but on entirely different grounds.   The arguments made here could have been advanced in addition, or in the alternative, to the arguments previously advanced, but they were not mentioned.   It certainly would have been more efficient for the parties and the court had all grounds on which defendants believed they were entitled to judgment been included in the initial motion.

If, in fact, this court could see any benefit to the plaintiff, the court or the interests of justice in declining to now address the defenses belatedly raised, it would be sorely tempted to do so.   This is not the case, however.   It appears to the court that if the arguments here have merit, plaintiff will face the same result at the close of her case as she faces now.   It would be a disservice to both sides and the public to proceed to trial only to find defendants' arguments have merit.   As it appears to the court that it has discretion to allow a renewed motion for summary judgment, Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 532–33, 906 A.2d 14 (2006), the court will entertain the motion on the merits.

THE STANDARD OF REVIEW

Section 17–49 of the Connecticut Practice Book states that summary judgment shall be rendered when “the pleadings, affidavits and other proof submitted shows that there is no genuine issue as to any material fact.”   Of course, not every factual dispute will be material nor should it preclude the entry of summary judgment.  “A material fact is a fact that will make a difference in the result of the case.”  Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004).   Once the movant has established the absence of any genuine dispute as to a set of facts which clearly entitles him to judgment, regardless of whatever else might be in dispute, he is entitled to summary judgment.   The burden on the moving party is a heavy one.   This court must view the evidence in a light most favorable to the nonmoving party;  Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007);  and the movant must present sufficient factual evidence to demonstrate the absence of any genuine dispute.  Barasso, supra, 81 Conn.App. at 803.   If the moving party has not met this burden, the failure of the nonmoving party to submit opposing evidence does not entitle the movant to judgment.   Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).

Once the moving party has met this burden, however, the party opposing the motion cannot simply rest on its allegations or denials;  it must “provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009).

DISCUSSION

COUNT ONE

The plaintiff's First Count asserts a claim for reimbursement under the provisions of General Statutes § 10–236a.¹  Defendants' claim here is that the phrase “financial loss or expense” only encompasses traditional “out-of-pocket” losses, and does not cover such non-financial matters as pain and suffering, loss of enjoyment, etc.   Defendants do not cite any authority specific to this issue but cite a case, Cooney v. Montes, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV090372152 (May 18, 1992, O'Neill, J.) [6 Conn. L. Rptr. 442], which discusses similar indemnification statutes, and argue this provides a framework for interpreting § 10–236a.   Defendants further argue that there is no genuine dispute that plaintiff has no financial loss within this more restricted reading of the statute.   Defendants rely on the admissions of the plaintiff during her deposition to the effect that while she has incurred medical expenses, lost wages from work and the like, these expenses and losses have already been satisfied through workers' compensation and that, at least presently, she is not out-of-pocket anything.   Defendants have properly supported these factual contentions.

In response, plaintiff has failed to take issue with the factual matters relevant to this count, has not challenged the correctness of these points and has not identified any item of expense or financial loss which, as of this date, has not been fully satisfied.   Thus, as to the factual issues concerning this count, the court finds there is no genuine dispute;  plaintiff has no out-of-pocket or pecuniary losses.   What plaintiff does dispute is defendants' construction of the statutory language limiting recovery to out-of-pocket losses and excluding “her pain and suffering.”   Plaintiff notes that defendants have not identified any cases directly supporting this construction and suggests instead three cases which would, she argues, support her more generous reading of the statute.

While the first of those cases, Armstrong v. City of Hartford Board of Education, Superior Court, judicial district of Hartford, Docket No. CV030826811S (August 19, 2004, Wagner, J.) [37 Conn. L. Rptr. 791], does discuss the crucial language in this statute, it ultimately adds nothing persuasive to this debate.   In Armstrong, the court was ruling on a motion to strike and the allegation of concern was one alleging “lost time from work and future economic loss and earning capacity.”   The issue before the court in Armstrong was simply whether the phrase “financial loss and expense” was limited to only those items enumerated in the phrase which followed the word “including.”   The decision, in effect, held the word “including” should be read as meaning “including, but not limited to.”   There was no discussion concerning whether or not the statute included nonfinancial losses.   As the allegation at issue there was financial in nature, the court's decision in Armstrong did not reach the issue before the court here.   The other two cases cited by plaintiff do not speak to this issue but simply hold that § 10–236a may provide coverage more extensive than workers' compensation.

To resolve this question, the court looks first to the plain meaning of the statute in question.  Section 10–236a provides that all teachers and other covered employees shall be held harmless “from financial loss and expense.” ²  The word “expense” already suggests an economic or out-of-pocket item rather than a noneconomic one.   See, Merriam Webster's Third New International Dictionary (1968) (defining “expense” as “the act or practice of expending money”).   While the word “loss” may be used to include both pecuniary and nonpecuniary losses;  see Conn. Gen.Stat. § 52–572h(a);  when used in § 10–236a, it is clearly modified by the term “financial.”   Financial, when used as an adjective, means “fiscal, monetary, pecuniary.”   Roget's II, The New Thesaurus (3rd ed.1995), at 393.³

This distinction is fully consistent with how this phrase is used in other statutes.   Indemnification for teachers and other public employees is provided in several other statutes which use the phrase “financial loss and expense.”   See, e.g. §§ 10–235 and 7–101a.   When used there, it provides indemnification for liabilities arising from the performance of duties and typically covers claims, demands and judgments imposed against the employees.   Such coverage is clearly economic in nature.   Not only is there no language in § 10–236a which might suggest coverage for noneconomic losses, such as pain and suffering, but such a construction of the statute would have profound implications for school systems as it would in effect render the board liable for all damages a teacher might claim from the perpetrator of the assault.   For all these reasons, this court holds that the coverage afforded under § 10–236a is limited to economic or pecuniary losses and does not include nonpecuniary losses such as pain and suffering.

As to those losses which are within the scope of this statute, the court finds that there is no genuine dispute that no such loss currently exists.   Accordingly, defendants are entitled to the entry of summary judgment on Count One.

COUNT THREE

The dispositive issue for this count is whether or not Conn. Gen.Stat. § 10–233g ⁴ provides a private right of action to a teacher where a school principal has failed to comply with the reporting requirement set out in subsection (a) of the statute.   Ultimately, this court holds that it does not and finds defendants entitled to judgment.

LEGAL PRINCIPLES:

Whether a statute creates an implied private right of action is a matter of statutory construction.   When ․ a statutory provision is silent with respect to whether it creates a private remedy, our analysis is not limited by General Statutes § 1–2z, which provides that the meaning of statutes shall be ascertained from only their text and their relationship to other statutes if those sources reveal an unambiguous meaning that is not absurd or unworkable.   Cf. Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246–48, 890 A.2d 522 (2006).   In addition to the words of the statute itself, “we look 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.”  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 372, 880 A.2d 138 (2005).

“[A]s the party seeking to invoke an implied right of action, the [plaintiff bears] the burden of demonstrating that such an action is created implicitly in the statute.”  Asylum Hill Problem Solving Revitalization Assn. v. King, supra, 277 Conn. 246.  “In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant.   First, is the plaintiff one of the class for whose ․ benefit the statute was enacted ․ ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?  ․ Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?”  (Internal quotation marks omitted.)   Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).   Furthermore, the plaintiff also “must demonstrate ․ in applying [this] three part test ․ [that] no factor weighs against affording an implied right of action and [that] the balance of factors weighs in [his] favor.”   (Citation omitted.)  Asylum Hill Problem Solving Revitalization Assn. v. King, supra, 246–47.

“In examining these three factors, each is not necessarily entitled to equal weight.   Clearly, these factors overlap to some extent with each other, in that the ultimate question is whether there is sufficient evidence that the legislature intended to authorize [the plaintiff] to bring a private cause of action despite having failed expressly to provide for one ․ Therefore, although the [plaintiff] must meet a threshold showing that none of the three factors weighs against recognizing a private right of action, stronger evidence in favor of one factor may form the lens through which we determine whether the [plaintiff] satisf[ies] the other factors.   Thus, the amount and persuasiveness of evidence supporting each factor may vary, and the court must consider all evidence that could bear on each factor.   It bears repeating, however, that the [plaintiff] must meet the threshold showing that none of the three factors weighs against recognizing a private right of action.”  (Citation omitted.)  Id., 247–48.

Rollins v. People's Bank Corp., 283 Conn. 136, 141–43, 925 A.2d 315 (2007).

Discussion

The first question pertinent then is whether the plaintiff here, a teacher, is one of the class for whose benefit the statute was enacted.   To this court, the answer is neither a clear yes nor a clear no.

The court begins with the plain language of the statute.   Subsection (b) of the statute seems more clearly intended to protect the interests of teachers when dealing with threats or acts of violence in the classroom than subsection (a) on which this count relies.   Subsection (b) proscribes any interference with the right of a teacher to file a complaint with the local police department arising from the incident in question.   Such a complaint will immediately initiate police review which can have considerable prophylactic effect on a student through pending criminal or juvenile charges, court imposed conditions of release or simply an awareness that law enforcement is watching.   Subsection (a) appears to benefit teachers in a much less direct manner.   First, it does not add any immediate benefit to a teacher who has pursued the option of filing a complaint with the local department.   Second, the result of action under (a) is a report to the police department, something which may or may not ever lead to police intervention.   There is also no express timetable for the principal's report which can water down the benefit to the teacher involved.   In short, while subsection (b) directly benefits teachers who have been assaulted, the benefit under (a) is far less immediate and hence more likely to flow to all students, teachers and the educational community in general.   The diffuse nature of the groups benefitted by subsection (a) does not weigh in favor of an implied right of action for teachers.

The second factor is whether or not there is any indication of legislative intent to create a private right of action.   There is no indication here, explicit or implicit, that the statute was intended to create any private right of action, particularly with regard to subsection (a).   A private right of action for violation of § 10–233g(a) is simply not needed where the legislature, in the very same statute, has already protected the practical and immediate remedy for an assaulted teacher, which is to personally file a complaint with the local police department.   It is difficult to comprehend a legislative intent to create the remedy of a civil cause of action simply to duplicate protections already afforded.   This redundancy of remedy suggests to the court that subsection (a) was intended not to serve the teacher's interests of immediate protection from further violence, but rather those of the larger educational system in accurately gauging the extent of student on teacher violence.

Finally, the court has reviewed some of the legislative history of this statute.   As originally enacted, this section included semi-annual reporting requirements to the State Board of Education.   See, Public Act 79–464.   Obviously, the purpose of that report was to gather information on the larger social problem of school violence, not safety concerns in individual cases.   This suggests that the reporting requirements to the police were similarly intended.   Defendants have presented similar comments from the legislative history of the statute, all to the effect that these reports were intended to gather data from which the nature and scope of student violence against teachers could be gauged, rather than as a remedy for such incidents.

Finally, this court is mindful that while the defined elements of the Napoletano test;  Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103 (1997);  have remained unchanged, courts have increasingly recognized that the burden of establishing an implied right of action rests on the party which seeks to assert it.  Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246–48, 890 A.2d 522 (2006).   The Legislature knows how to create express rights of action and when it has remained silent on such remedies this court will not presume that was unintentional.   Parties arguing for implied rights of action must overcome this not insignificant inertial force.   Here, the plaintiff has not presented any arguments or authorities to support her claim of an implied right of action and has not addressed any of the elements of the Napoletano test.   Based on the court's independent evaluation of the Napoletano factors, the case for implying a private right of action for violations of § 10–233g cannot be made.

For these reasons and authorities, the court holds that no private right of action is implied under § 10–233g and Count Three cannot stand.

The court notes that since September of 2008, an intervening plaintiff, Ability Beyond Disability, has been participating in this action.   This party's claim is as the plaintiff's employer, under Conn. Gen. § 31–293.   Defendants in their motion seek judgment on this intervening complaint for the same reasons as discussed above.   The intervening plaintiff has not filed any objection or argument and appears to rest on the opposition made by plaintiff.   As it appears to the court that the plaintiff's complaint cannot withstand the defenses here raised, summary judgment is also appropriate with regard to the intervening complaint.   See, Stavola v. Palmer, 136 Conn. 670, 677–78 (1950) (“[T]he right of the employer depends upon the employee's right to the extent that he has no cause of action unless the employee ․ has a cause of action”).

Accordingly, defendants' Motion for Summary Judgment as to Courts One and Three of the Complaint is granted.   As these are the only remaining counts before the court, judgment may enter in favor of defendants and against both plaintiff and intervening plaintiff.

Wenzel, J.

FOOTNOTES

FN1. Sec. 10–236a.   Indemnification of educational personnel assaulted in the line of duty.(a) Each board of education, the State Board of Education, the Board of Regents for Higher Education, the Board of Trustees for The University of Connecticut, 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 of such boards, 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 member, teacher or other employee while such person was acting in the discharge of his or her duties within the scope of his or her employment or under the direction of such boards, 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..  FN1. Sec. 10–236a.   Indemnification of educational personnel assaulted in the line of duty.(a) Each board of education, the State Board of Education, the Board of Regents for Higher Education, the Board of Trustees for The University of Connecticut, 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 of such boards, 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 member, teacher or other employee while such person was acting in the discharge of his or her duties within the scope of his or her employment or under the direction of such boards, 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.

FN2. While presumably this language would include lost wages, subsection (b) of the statute expressly dictates that result in any event..  FN2. While presumably this language would include lost wages, subsection (b) of the statute expressly dictates that result in any event.

FN3. Though the fit may not be a perfect one in every case, the statutory distinction between pecuniary and nonpecuniary losses, or “Economic” and “Noneconomic” damages, in section 52–572h(a) seemingly parallels this court's delineation of the scope of section 10–236a..  FN3. Though the fit may not be a perfect one in every case, the statutory distinction between pecuniary and nonpecuniary losses, or “Economic” and “Noneconomic” damages, in section 52–572h(a) seemingly parallels this court's delineation of the scope of section 10–236a.

FN4. Sec. 10–233g.   Reports of principals to police authority concerning physical assaults upon school employees by students.(a) Where there is a physical assault made by a student upon a teacher or other school employee on school property or in 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.(b) No school administrator shall interfere with the right of a teacher or other employee of a board of education to file a complaint with the local police authority in cases of threats of physical violence and in cases of physical assaults by a student against such teacher or employee..  FN4. Sec. 10–233g.   Reports of principals to police authority concerning physical assaults upon school employees by students.(a) Where there is a physical assault made by a student upon a teacher or other school employee on school property or in 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.(b) No school administrator shall interfere with the right of a teacher or other employee of a board of education to file a complaint with the local police authority in cases of threats of physical violence and in cases of physical assaults by a student against such teacher or employee.

Wenzel, William J., J.