PPA v. Danbury Board of Education et al. (2012)

MEMORANDUM OF DECISION Re Motion for Summary Judgment # 115.00

This action comes before the court on the defendants' Motion for Summary Judgment (# 115), filed on December 19, 2011.   In the present motion, three of the defendants move for summary judgment, on the ground of governmental immunity, as to Counts One, Two, and Three.

FACTS

The plaintiff ¹ commenced this action on March 17, 2011, and on April 6, 2011, the plaintiff filed an amended four-count complaint.   All of the plaintiff's claims arise out of an alleged incident which occurred while the plaintiff was attending gym class at a local middle school.   He alleges that, during the class, he and several other students were left unattended in a nearby activity area where he was struck several times in the head by another student, causing serious personal injuries.   Count One is against the defendants Danbury Board of Education and Dr. Salvatore Pascarella, Superintendent.   It alleges that the injuries were the result of defendants' failure to provide a safe school environment under a general theory of negligence and pursuant to General Statutes § 10–220(a).   Count Two is alleged against the teacher, Richard Klemenz, and sounds in negligence for failure to properly and adequately supervise the plaintiff who was a student in his gym class during the time of the assault.   Count Three is against the defendant Danbury Board of Education pursuant to § 52–557n and sounds in vicarious liability.   In all three counts, it is specifically alleged that this cause of action is authorized pursuant to General Statutes § 52–557n and falls under the “identifiable person-imminent harm” exception to the doctrine of governmental immunity.

The moving defendants ² filed their answer asserting three special defenses to the amended complaint.   These special defenses claim as to each of the counts that the claims are barred by common law governmental immunity, governmental immunity pursuant to § 52–557n(a)(2)(b) or both.   In this motion, the defendants move for summary judgment as to Counts One through Three of the Amended Complaint on the basis of such immunity.

As the motion is presented to this court, it is properly focused by the parties.   Plaintiff has anticipated the governmental immunity defense and specifically alleged the sole exception thereto on which he will rely.   To dispose of the motion, this court must resolve whether or not there exists a genuine dispute as to the facts claimed as the basis of this exception.

STANDARD OF REVIEW

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).   The rule for granting motions for summary judgment is set forth in Practice Book § 17–49.   Summary judgment is to 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 summary judgment as a matter of law.”  Id. An “ ‘[i]ssue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).  “[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).  Practice Book § 17–46 provides:  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein.   Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”

THE DOCTRINE OF GOVERNMENTAL IMMUNITY

The defendants' motion for summary judgment relies on both statutory governmental immunity, under § 53–557n(a)(2) 3 of the General Statutes, as well as common law governmental immunity.   Both defenses require the same analysis by the court.  “[T]he common law states that a municipal employee is liable for the misperformance of a ministerial act, but has a qualified immunity in the performance of a discretionary act ․ This employee immunity for discretionary acts is identical to the municipality's immunity for its employees' discretionary acts under § 52–557n.”  Kastancuk v. East Haven, 120 Conn.App. 282, 287, 991 A.2d 681 (2010).

“General Statutes § 52–557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages ․ 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.  General Statutes § 52–557n(a)(1)(A).   General Statutes § 52–557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the ‘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.’  “ (Citation omitted.)  Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006).  “Municipal officials 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.)  Id.

“We have identified 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 ․ [The Third Exception is that] 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.’  “ (Citations omitted.)  Doe v. Petersen, supra, 279 Conn. at 615–16.

The identifiable person subject to imminent harm exception, “[b]y its own terms 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.”  Doe v. Petersen, supra, 279 Conn. at 616.  “Demonstration of less than all of these criteria is insufficient.”  Id., at 620.

It may safely be said that where a public official has no reason to know his failure to act will subject an identifiable person to imminent harm, summary judgment will be appropriate.   See, Doe v. Petersen, supra, 279 Conn. at 617 (discussing the holding of Shore v. Stonington, 187 Conn. 147, 153–54, 444 A.2d 1379 (1982)).   On the other hand, “conflicting testimony on the issue of imminence of harm” may need to be submitted to the jury.”  Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982) (discussing Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979)).

Making this determination as to when there is an identifiable victim exposed to imminent harm became more problematic as a result of the Connecticut Supreme Court's decision in Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994).   In Burns, the court had granted certiorari on the issue of “whether there is a ‘foreseeable class of victim’ exception to the governmental immunity doctrine which would include students allegedly the victims of improper school maintenance.”  Burns v. Board of Education, 225 Conn. 927, 625 A.2d 825 (1993).   Interestingly, in answering that question, the Supreme Court first noted, in retrospect, that it had already “construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims.”  Burns v. Board of Education, 228 Conn. at 646 (citing to Sestito v. Groton, 178 Conn. at 527–28).   After discussing the factors which courts have considered in delineating such foreseeable classes of victims, the Connecticut Supreme Court went on to note some special concerns in the case of “school children attending public school during school hours.”  228 Conn. at 648.   Ultimately, the court noted a policy “that children require special consideration where dangerous conditions are involved.”  228 Conn. at 650.   The net result in Burns was the conclusion that during the period children were entrusted to the public schools, the defendant superintendent “ha[d] the duty to protect the pupils ․ from dangers that may reasonably be anticipated.”  228 Conn. at 649–50.

Both Burns and subsequent cases suggest the imminent harm to identifiable persons exception has been more broadly applied in cases involving injuries to schoolchildren.   See, Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998);  Colon v. Board of Education, 60 Conn.App. 178, 184–85, 758 A.2d 900 (2000).   In each of those cases, the identifiable person-imminent harm exception was found applicable because the dangerous condition was sufficiently limited both in duration and in location to make it apparent to the defendants that schoolchildren were subject to imminent harm.   In Purzycki, the plaintiff schoolchild was injured when another student tripped him in an unmonitored school hallway.  244 Conn. at 104.   The court determined that the case was “more analogous to Burns than ․ to Evon [v. Andrews, 211 Conn. 501, 559 A.2d 1311 (1987) ] ․ [Because] ․ [it] involve[d] a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess.   Also, it involve[d] a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision.”  (Citation omitted.)  Id., at 109–10.   Importantly, Purzycki found that there was an absence of supervision of the hallway area even though teachers in classrooms abutting the hallway “were instructed to keep their doors open in order to hear or see any activity in the hallway.”  Purzycki v. Fairfield, supra, 244 Conn. at 104.   Additionally, the court found that, “the risk of harm was significant and foreseeable, 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.’  “ Id., at 110.   Thus, the court followed Burns and concluded that there was sufficient evidence from which the jury reasonably could have found a foreseeably dangerous condition that was limited in duration and geographical scope.  Id.⁴

In the present case, the defendants argue that there is no genuine issue of material fact in way dispute as to the facts that the harm suffered by the plaintiff was not imminent in nature nor was it apparent that their actions subjected the plaintiff to imminent harm.   Here, the incident at issue took place within a computer lab adjacent to a media center in the middle school.   The area is described as consisting of a large room with a library portion and tables, i.e., the media center, along with a separate but connected smaller room, i.e., the computer lab.   The defendant admits that during the incident in the computer lab when the plaintiff was allegedly attacked by another student, the defendant teacher was situated inside of the adjoining media center.   However, he testified that although the computer lab was, “a separate room ․ there are windows ․ and the door was open ․” Additionally, he testifies that he was simply, “between the media center and the computer lab ․ [moving] back and forth answering questions ․” Nevertheless, when the defendant teacher was asked whether at any point during the class period he had heard unusual noises or commotion coming from the computer lab, he admitted that he had not.

In this case, there is a genuine factual dispute as to the extent to which the plaintiff and the co-defendant Sanchez were left unsupervised.   Whether they remained within their teacher's sight, or hearing or both is also genuinely in dispute.   If there was a period of unsupervised activity, its duration is also unascertained.   It is also clear that circumstances will arise in schools where teachers may have to exercise their discretion on the level of supervision which any one teacher can exercise over a number of students.   All of these factors are ones which are relevant to the exception at hand, yet are not yet firmly established.

The ultimate question before this court then is whether movants have demonstrated the absence of dispute as to facts which would preclude a finding of imminent harm to this victim.   Under the facts before this court, the court cannot find defendants have carried that heavy burden.

The court bears in mind that, “[t]he 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 the] resolution of those factual issues is properly left to the jury.”  Colon v. Board of Education, supra, 60 Conn.App. at 181.   See also, Purzycki v. Fairfield, supra, 244 Conn. at 107–08.   Here, the court finds unresolved factual issues material to the applicability of the “imminent harm to an identifiable person” exception.   The court having found movants have failed to demonstrate their entitlement to judgment on that basis, the defendants' motion for summary judgment is denied.

William J. Wenzel, Judge

FOOTNOTES

FN1. The complaint lists the plaintiff as Cherie Robinson, as parent and next friend of a minor who was physically injured as a result of the alleged incident at issue.   For ease of reference, the count will refer to this minor victim as plaintiff..  FN1. The complaint lists the plaintiff as Cherie Robinson, as parent and next friend of a minor who was physically injured as a result of the alleged incident at issue.   For ease of reference, the count will refer to this minor victim as plaintiff.

FN2. Count Four is against the defendant who allegedly committed the assault and is not at issue in the present motion.   As a result reference, hereafter to “the defendants” will not refer to Carlos Sanchez, but only the moving defendants..  FN2. Count Four is against the defendant who allegedly committed the assault and is not at issue in the present motion.   As a result reference, hereafter to “the defendants” will not refer to Carlos Sanchez, but only the moving defendants.

FN3. General Statutes § 52–557n(a)(2) provides in relevant part:  (2) 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 ․”.  FN3. General Statutes § 52–557n(a)(2) provides in relevant part:  (2) 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 ․”

FN4. By way of contrast, the Appellate Court came to a different conclusion in Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003).   There, a female student was sexually assaulted in a vacant classroom by three male students and subsequently brought suit against the board of education.   The Appellate Court found that, “[u]nlike the factual situations in Burns and Purzycki, the alleged danger in the present case was not limited to a particular area of the school and a particular time period.   Although the danger in Burns was confined to the duration of an icy condition in a particularly treacherous location on campus, and the danger in Purzycki was confined to a particular hallway in which the defendants knew that students were permitted to travel unmonitored for a one-half hour period each day, the harm in the present case potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school.   Under the facts alleged, therefore, it would not have been apparent to the defendant that its discretionary policy decisions subjected students to imminent harm.”  Id., at 304–05..  FN4. By way of contrast, the Appellate Court came to a different conclusion in Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003).   There, a female student was sexually assaulted in a vacant classroom by three male students and subsequently brought suit against the board of education.   The Appellate Court found that, “[u]nlike the factual situations in Burns and Purzycki, the alleged danger in the present case was not limited to a particular area of the school and a particular time period.   Although the danger in Burns was confined to the duration of an icy condition in a particularly treacherous location on campus, and the danger in Purzycki was confined to a particular hallway in which the defendants knew that students were permitted to travel unmonitored for a one-half hour period each day, the harm in the present case potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school.   Under the facts alleged, therefore, it would not have been apparent to the defendant that its discretionary policy decisions subjected students to imminent harm.”  Id., at 304–05.

Wenzel, William J., J.