PPA v. 12 (2012)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 127)

This is an action for monetary damages and other losses allegedly sustained by the plaintiff Caleb MacDonald during a soccer game at Shepaug Valley High School on or about November 2, 2009.   The action was brought by his parents and next friends, Donna MacDonald and Patrick MacDonald.

The plaintiffs' twenty-count amended complaint names as defendants Regional School District No. 12, Regional School District No. 12 Board of Education, Bruce Storm, Eugene Horrigan, Matt Perachi, Town of Bridgewater, Town of Roxbury, Town of Washington, Andrew J. Campbell and Jim Stinson.

The defendants have moved for summary judgment as to the Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth Counts.

As to the Fourth, Seventh, Tenth, and Thirteenth Counts, the plaintiffs have not objected.   Count Four alleges negligence on the part of Eugene Horrigan as principal of Shepaug Valley High School when, in fact, he was not principal at the time of the alleged incident having retired several months previously.   The Seventh, Tenth and Thirteenth Counts are claims that were derivative in nature with the Fourth Count.

There being no objection, summary judgment is entered in favor of the movants as to the Fourth, Seventh, Tenth, and Thirteenth Counts.

The remaining counts that are the subject of this motion, the Sixth Count, Eighth, Ninth, Eleventh, Twelfth and Fourteenth Counts, were brought against the towns of Bridgewater, Roxbury and Washington on the premise that the negligence claims against Matt Perachi and Bruce Storm could be imputed to those towns under § 7–465, C.G.S. because each of them was an “employee” of those towns, as that term is defined in § 7–465.

Sec.7–465, C.G.S. provides, in relevant part, “(a) Any town, city or borough ․ 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 damages awarded for infringement of any person's civil rights or 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 ․”

The movants argue that neither of those individuals is an employee of those towns, but, rather, they both are employees of Regional School District No. 12.   The defendants have submitted an affidavit of Bruce Storm in which he avers that at the time of the incident both he and Matt Perachi were employees of Regional School District 12 and that neither was an employee of the Towns of Bridgewater, Roxbury or Washington.

The plaintiffs argue that although the defendant towns “may not be employers in name, they are de facto employers that General Statutes § 7–465 intended to reach, because they fully fund the regional school district.”

The plaintiffs maintain that while there is no case law in Connecticut concerning the applicability of § 7–465 to the towns that make up a regional school district, the statutory language and purpose strongly suggest that member towns of a regional school district should have the same indemnity obligations as towns with “stand-alone school districts.”

Sec. 10–46a, C.G.S. deals with the transfer of authority to regional school boards from local boards of education.   That statute provides, in relevant part, “When, in accordance with this section ․ a regional board of education assumes the responsibility for administration of all programs which are provided in the member towns and are under the general supervision of the State Board of Education, the local boards of education are dissolved.”  (Emphasis added.)

It would stand to reason that among the powers conferred upon the regional school boards, as opposed to the several municipalities, is the power to hire the teachers, coaches, administrators and all of the other individuals who work for the regional school district as well as the power to pay them and to indemnify them.   Nothing in the statutes permits the court to find that teachers, coaches, administrators or other employees of a regional school district are employees of the towns which comprise that district.

“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.”  Miles v. Foley, 253 Conn. 381, 385–86 (2000).

“Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.”  Haesche v. Kissner, 229 Conn. 213, 217 (1994).   To satisfy this burden, the moving party must make a showing that it is quite clear what the truth is, and that it excludes any real doubt as to the existence of any material fact.  DHR Construction v. Donnelly, 180 Conn. 430, 434 (1980).

“It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of an issue of material fact and, therefore, cannot refute evidence properly presented to the court in support of a motion for summary judgment.”  Miller v. United Technologies Corp., 233 Conn. 732, 745 (1995).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ․ it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ [T]he existence of [a] genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence ․ If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met [its] burden of proof ․” Farrell v. Twenty–First Century Ins. Co., 118 Conn.App. 757, 759–60 (2010).

There is no genuine issue of fact that at the time of the incident the individual defendants Storm and Perachi were employees of Regional School District No. 12 and not employees of either of the defendant towns, Bridgewater, Roxbury or Washington.   For that reason, those towns have no duty to indemnify them.

The court finds that there is no genuine issue of material fact as that Eugene Horrigan owed no duty to the plaintiff on which to predicate liability in this action.   The court further finds that there is no genuine issue of fact that there exists no derivative statutory indemnification claim against the Towns of Bridgewater, Roxbury or Washington, because the named defendants were not employees of those towns at the time of the incident.

For those reasons, the court finds that the movants Eugene Horrigan and the Towns of Bridgewater, Roxbury and Washington are entitled to judgment as a matter of law.   The motion for summary judgment as to Count Four and Counts Sixth through Fourteen is hereby granted.

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.