PPA v. City of West Haven Board of Education et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 161)

I. BACKGROUND

Plaintiff brought this action on behalf of her minor son against the Board of Education of the City of West Haven, the City, the principal of Carrigan Middle School, the Superintendent of the Board of Education and the West Haven police officer assigned to Carrigan Middle School as a school resource officer.   The Amended Complaint filed March 13, 2012 alleges the injuries minor plaintiff sustained from an assault by West Haven High School students on the premises of the middle school on December 17, 2007 were caused by the negligence of the defendants.

Plaintiff filed a separate count as to each defendant and two counts as to the defendant police officer, one in his capacity as school resource officer and one in his capacity as a West Haven police officer.   The allegations of negligence in each count are identical and allege that each defendant failed to keep the school premises reasonably safe for its students, failed to protect its students and plaintiff from known dangerous propensities of identifiable unruly individuals, failed to warn its students and plaintiff of said dangerous individuals, failed to adequately monitor individuals on its premises, failed to provide security guards who were alert to security breaches, failed to provide proper operating procedures for its security guards, failed to follow its own published anti-bullying policy and procedures set forth in Policy 5131.911 regarding documenting, investigating and reporting acts of violence or bullying perpetrated against its students, and violated Connecticut General Statues 10–222d by failing to comply with and follow its own mandated safe school policies as required by said statute.   Amended Complaint Para. 14a-g (each count).

Defendants filed a joint Answer and Special Defenses denying the claims of negligence and asserting that all defendants are immune from liability under the doctrine of governmental immunity and Connecticut General Statutes Sec. 52–557n because the acts performed by defendants or its agents were discretionary acts and that the minor plaintiff's injuries were caused by his own negligence.

Defendants then filed the Motion for Summary Judgment at issue here, claiming there is no genuine issue of material fact and they all are entitled to summary judgment as a matter of law on the grounds of governmental immunity as to the allegations of negligence and sovereign immunity as to the allegations of violation of Conn. Gen.Stat. Sec. 10–222d and the Board Policy 5131.911.

II. FACTS

Reviewing the pleadings and the depositions, and the documents provided in support of and opposition to this motion, a trier could reasonably find the following facts:

In the fall of 2007, the minor plaintiff was a student at Carrigan Middle School, a West Haven public school.   On November 7, 2007, he was attacked by a group of youths while walking home from school.   The incident was immediately reported to defendants Officer Lofton and Principal Libero.   Plaintiff's attackers were identified as West Haven High School students who may have believed he was part of a rival gang.

In response to this incident, Officer Lofton asked plaintiff and his mother to attend a meeting at the high school on November 20, 2007 involving the plaintiff and the suspected attackers.   The meeting was called in an attempt to stem gang-related violence at the high school.   After that meeting, there was a song posted on social media referring to the attack and calling plaintiff a snitch and threatening him.   The plaintiff's mother brought this to the attention of Officer Lofton but no evidence was presented as to any action taken by any defendant in response to this second incident of harassment.   Officer Lofton did investigate these incidents, but they were never documented or treated as harassment, intimidation or bullying acts as defined by Board of Education Policy 5131.911.

On December 7, 2007, plaintiff was at an after-school middle school basketball game at his Carrigan Middle School.   The high school students who were involved in the November incident were at the middle school game and plaintiff brought this to the attention of Officer Lofton who was at the game providing security as the school resource officer.   Officer Lofton told plaintiff everyone was allowed to attend the game, so plaintiff told Officer Lofton he was leaving.   Once outside, the same individuals followed him out and assaulted him, causing physical injuries.

III. DISCUSSION

“The moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a 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.”  Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006).   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.

The claims of negligence in this action are governed by Connecticut General Statutes Sec. 52–557n which provides that a municipality “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, the law also provides an exception and shields the municipality from liability for 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.”  Sec. 52–557n(a)(2)(B).

The issue of governmental immunity is a question of the existence of a duty of care and thus the court may decide the issue of governmental immunity as a matter of law.  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988);  Doe v. Petersen, 279 Conn. 607, 613 (2006).   The Court must determine whether or not the acts of negligence alleged in the complaint are discretionary or ministerial as a matter of law or require a factual determination.   The hallmark of discretionary act is that it requires the exercise of judgment.   In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628 (2000).   Where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.   Bonington v. Westport, 297 Conn. 297, 307–08 (2010);  Martel v. Metropolitan District Commission, 275 Conn. 38, 50 (2005).

Here, the allegations of negligence contained in paragraphs 14a through 14f involve allegations that the respective defendants failed to exercise reasonable care as to safety, supervision, warning and establishing appropriate policies affecting their middle school students in general and plaintiff in particular.   These duties are inherently discretionary.

In Heigl v. Board of Education, 218 Conn. 1, 8 (1991), our Supreme Court observed that ‘neither the General Statutes nor our decisional case law has ever stated that a board of education has a specific duty to supervise high school students.’   Even so, assuming, arguendo, that a duty to supervise high school students does exist, the duty is inherently discretionary.  ‘When presented with the issues of supervision of students, implementation of school policies and the control and management of a school and its students, Superior Courts have generally held that these duties are carried out through discretionary acts.

Harris v. New Haven Board of Education, Superior Court, J.D. New Haven, No. CV09 6004180S (Mar. 12, 2013, Fischer, J.), and cases cited therein.

Accordingly, as to these allegations, plaintiff does not claim the acts are discretionary, but rather that the minor plaintiff falls within the exception to qualified governmental immunity where circumstances make it apparent to the government actor that failure to act would be likely to subject an identifiable person to imminent harm.  Violano v. Fernandez, 280 Conn. 310, 329 (2006).

In Doe v. Petersen, 279 Conn. 616, 620 (2006), the Supreme Court noted that the identifiable victim, 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.

Defendants at first argued that plaintiff had not sufficiently pled this exception, but withdrew this claim at oral argument because the issue is still undecided.  Haynes v. Middletown, 306 Conn. 471 (2012) and 142 Conn.App. 720 (2013), deciding the case on other grounds on remand.

Defendants next argue that because there is only one case where a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for the purposes of this exception, Sestito v. Groton, 178 Conn. 527 (1979), plaintiff cannot come within this narrow exception as a matter of law, citing Grady v. Somers, 294 Conn. 324 (2009).   However, construing the evidence most favorably to plaintiff, the Court finds that the plaintiff child was an identifiable person subject to possible harm from known bullies who had previously assaulted plaintiff after school and then threatened to harm him for being a snitch, were present at his middle school again, and followed him from the school building as he left after he had alerted the defendant school resource officer.   As the school resource officer who was charged with security and safety at the school activity and who had personal knowledge of plaintiff's prior attack, the threats made against him and the suspected assailants, the Court finds, as in Sestito, that defendant Lofton owed plaintiff child a duty of care.   It is a question of fact for the jury whether that duty was negligently violated.   Esposito v. Bethany, Superior Court, J.D. New Haven, No.CV 06–5002923S (May 3, 2010, Corradino, J.)

Neither plaintiff nor defendants have argued or asked for a decision as to the separate liability of each individual defendant, so the Court will not address that issue.   It is relevant, however, because the Court must determine whether or not, and to what extent, plaintiff child was a foreseeable victim foreseeably at risk of imminent harm.   In other words, as to the school resource officer personally involved with all aspects leading up to this incident, plaintiff has offered sufficient evidence from which a jury could find that he meets the requirements of Doe and Sestito as an identifiable victim at risk of potential imminent harm.   But that determination is not as clear as to the other municipal defendants who were not as directly involved with plaintiff.   Their liability or immunity depends on whether or not plaintiff child was part of a foreseeable class of identifiable victims subject to imminent harm.

In Durrant v. Board of Education, 284 Conn. 91 (2007), the Supreme Court analyzed the identifiable victim-imminent harm exception in a school setting, quoting from Burns v. Board of Education, 228 Conn. 640, 647–48 (1994), as follows:

In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim.   Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts ․ whether the relationship was of a voluntary nature ․ the seriousness of the injury threatened ․ the duration of the threat of injury ․ and whether the persons at risk had the opportunity to protect themselves from harm.

(Citations omitted.)

In Durrant, the Court concluded that the plaintiff, a mother who slipped and fell in a puddle while picking her child up from a school-sponsored after school program, was not a foreseeable victim.  “The only identifiable class of foreseeable victims that we have recognized for these purposes is that of school children attending public schools during school hours.”   284 Conn. at 107.  “In determining that such school children were within such a class, we focused on the following facts:  they were intended to be the beneficiaries of particular duties of care imposed by law on school officials;  they were legally required to attend school rather than being there voluntarily;  their parents were thus statutorily required to relinquish their custody to those officials during those hours;  and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions.”   Prescott v. Meriden, 273 Conn. 759, 764 (2005).

Although plaintiff here is the student child, not a parent, Durrant would still be dispositive of the claims against the other individual defendants if it were not for the allegations of negligence in Paragraphs 14g, that the individual defendants failed to comply with the Board's state-mandated “Harassment, Intimidation, and Bullying” Policy 5131.911.   This is a clear policy against bullying and directive as to procedures to be followed in cases of suspected bullying.   Further, such a policy is mandated by Connecticut General Statutes Sec. 10–222d, now entitled “Safe School Climate Plans.”

The existence of this state-mandated policy distinguishes this case from Durrant.   Most notably, General Statutes Sec. 10–222d as in effect in 2007 defined bullying to include conduct at any school-sponsored function and even outside of the school setting if it would affect the student's safety at school.  P.A. 06–115, Sec. 1. Thus, when it comes to alleged bullying, the legislature specifically enlarged and defined the foreseeable class of victims to include students subjected to bullying or harassment at all school-sponsored functions on or even off school property if it affected that student's safety at school.   This legislative directive expands the scope of the foreseeable class of victims' exception to governmental immunity under Burns v. Board of Education sufficiently to impose a duty of care on the municipal defendants and to make any negligence or failure to act pursuant to that policy material questions of fact for the jury.

Further, as to the Board Policy itself, certain of its provisions arc mandatory and require the Board of Education personnel to take certain actions and perform certain tasks to document and prevent bullying.   Policy 5131.911(a) pp. 6–7.   As such, these are ministerial duties which are to be performed in a prescribed manner without the exercise of judgment or discretion:  Thus, as to the allegations of negligence in Paragraphs 14g, defendants are not entitled to governmental immunity as a matter of law and, if negligent, can be held liable under Connecticut General Statutes Sec. 52–557n.  Wisniewski v. Darien, 135 Conn.App. 364 (2012).   See also Coley v. City of Hartford, 140 Conn.App. 315, 323 (2013), cert. granted, 308 Conn. 922 (2013), and Doe v. Westport Bd. of Education, Superior Court J.D. Fairfield, No. CV08–5015710S (February 29, 2012, Bellis, J.), 2012 WL 1004308.

In response to this claim of failure to follow the Board's anti-bullying policy as alleged in Paragraphs 14g and violation of Connecticut General Statutes 10–222d for failure to comply with that policy alleged in Paragraphs 14h, defendants argue plaintiff's recovery is barred by the doctrine of sovereign immunity.

(O)ur jurisprudence has created a dichotomy in which local boards of education are agents of the state for some purposes and agents of the municipality for others.  Heigl v. Board of Education, 218 Conn. 1, 3–4 (1991).   To determine whether the doctrine of sovereign immunity applies to a local school board, we look to whether the “action would operate to control or interfere with the activities of the state ․” Cahill v. Board of Education, 187 Conn. 94, 102 (1982), Purzycki v. Fairfield, 244 Conn. 101, 112 (1998).

Nothing involved in the Safe School Policy, Connecticut General Statutes Sec. 10–222d, controls or interferes with activities of the state.   Maintaining a safe school is done for the benefit of the municipality, not the state.   Therefore, sovereign immunity is not implicated in this case.  Id.

The Court agrees with defendants that nothing in Connecticut General Statutes Sec. 10–222d as it existed at the time of the offense indicates a sufficient legislative intent to create a private cause of action against the municipal defendants for failure to comply with its mandates.   See Roach v. First Student Transportation, Superior Court, J.D. New Haven, No. CV–10 6007924S (Aug. 18, 2010, Lager, J.) [50 Conn. L. Rptr. 517], and legislative history quoted therein.   If this were the sole basis for liability and alleged in a separate count or counts as to each defendant, then defendants could be entitled to judgment on those counts.   But here, it is an allegation of negligence as to each defendant, not a separate count.   The Court declines to enter summary judgment on a separate allegation of negligence.   Embry v. Hartford, Superior Court, J.D. Hartford, No. CV 07 5014615 (October 18, 2011, Domnarski, J.);   First American Title Ins. Co. v. 273 Water Street, LLC, Superior Court, J.D, Hartford, No. CV 08 4041234 (January 5, 2012, Peck, J.);  Doe v. Westport Bd. of Education, supra.

IV. CONCLUSION

As noted above, this motion for summary judgment was based more on questions of law and the duty of care than on the absence of issues of material fact.   The Court has found that the claims against defendants are not barred by either governmental immunity or sovereign immunity.   Having imposed a duty of care on the defendants, whether or not each was negligent in performance of that duty and whether that negligence was a proximate cause of the minor plaintiff's injuries are questions of fact for the jury.   Accordingly, Defendants' Motion for Summary Judgment is denied.

So Ordered,

Sequino, J.

Sequino, Karen Nash, S.J.