Charlotte Black v. Town of Westport et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS MOTION FOR SUMMARY JUDGMENT DATED NOVEMBER 14, 2012 (# 124.00)

The plaintiff, Charlotte Black, was injured during practice as a member of the Staples High School gymnastics team in the Staples High School gym.   The injury occurred at 3:45 p.m. on February 27, 2009, after the students were discharged from the school day.   Staples High School is the public high school for the Town of Westport.   The five defendants are the Town of Westport, as the owner of the real property, the Westport Board of Education, Donald O'Day, as chairman of the Westport Board of Education, Martin Lisevick, as athletic director of Staples High School, and Melissa Zygmont, an employee of the Westport Board of Education and the coach of the Staples High School gymnastics team.   The four-count lawsuit alleges violations of ministerial duties and violations of discretionary duties.   There is no claim of defective equipment or defective premises.

The operative complaint is the March 6, 2013 Amended Complaint (# 132.00).   The allegations of the complaint that are pertinent to the underlining factual claims are as follows:

“13. During gymnastics practice, at about 3:45 p.m., while in the field house at Staples High School the defendant ZYGMONT singled the plaintiff out from the rest of her teammates and directed her to go off by herself in an area of the gymnasium separate and apart from the rest of her teammates to attempt and practice a gymnastics maneuver known as the Yamashita vault.

14. The plaintiff had never attempted nor practiced the Yamashita vault before and had never performed the Yamashita vault in any meet or competition.

15. The defendant ZIGMIONT did not provide guidance, instruction, or supervision of the plaintiff when she attempted the Yamashita vault on this occasion.

16. The defendant ZIGMIONT was not present when the plaintiff practiced the Yamashita vault.   In fact the defendant ZIGMONT was in another area of the practice facility coaching team members performing floor routines.”

“19. Shortly after being sent off on her own to practice the Yamashita vault the plaintiff, CHARLOTTE BLACK, attempted the Yamashita vault as she had been directed to by the defendant ZYGMONT but was unable to complete it and landed on her head and neck suffering severe personal injuries as hereinafter set forth.”

The court is applying the well known standards for summary judgments without stating those standards in this Memorandum of Decision.   Covello v. Darien, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 08–5008909 S (October 22, 2010, Tierney, JTR) [51 Conn. L. Rptr. 40];  Forrest v. Sotheby's International Realty, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 011–6010200 S (January 9, 2013, Tierney, JTR).

The parties have an initial disagreement as to whether the plaintiff is alleging violations of a ministerial duty and/or violations of a discretionary duty or both.   The defendants' November 14, 2012 Motion for Summary Judgment (# 124.00) is silent on the nature of the duty.   The defendants' March 7, 2013 Memorandum of Law states:  “Whereas is the case herein it is apparent from the complaint that breach of a specific ministerial standard is being alleged, then it may be concluded from the pleadings that the plaintiff is not alleging a discretionary act.” (# 134.00, p. 10.)   The plaintiff, on the other hand, in her November 14, 2012 Memorandum of Law states:  “As a matter of law, the Defendants' alleged conduct in the present was discretionary in nature.” (# 125.00, p. 6 & 7.) This court must determine whether the negligent acts are claimed to have violated discretionary duties or ministerial duties or both.

“The determination of whether official acts or omissions are ministerial or discretionary is a question of fact for the fact finder.”  Beach v. Regional School District Number 13, 42 Conn.App. 542, 553 (1996);  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165 (1988).   The operative complaint is the March 6, 2013 Amended Complaint (# 132.00).   It is in four counts.   The First Count alleges negligence against the Town of Westport and the Westport Board of Education.   The Second Count alleges negligence against Donald O'Day, the chairman of the Westport Board of Education.   The Third Count alleges negligence against Melissa Zygmont, the employee of the Westport Board of Education and the coach of the Staples High School gymnastics team.   The Fourth Count alleges negligence against Martin Lisevick, the director of athletics for the Westport Board of Education.   The plaintiff Melissa Zygmont is referred to in the pleadings by different names;  Zigmont, Zigmiont, and Zygmont.   The court will refer to this defendant as Melissa Zygmont.   The court assumes that the spelling variations are typographical in nature.   The plaintiff did not frame her complaint by alleging separate counts for violations of ministerial duties against each of the named defendants and a separate count for violations of discretionary duties as against each of the named defendants.   Each of the four counts contains separate allegations of negligence as to each of the four groups of defendants, each restated and contained in paragraph 29 of the four counts.   The allegations of negligence in the First Count against the Town of Westport and the Westport Board of Education are found are in paragraphs 29 a) through l).  The allegations of negligence in the Second Count against Donald O'Day are identical to the First Count and found in the Second Count in paragraph 29 a) through l).  Both paragraphs 29 g) state:  “failed to perform the ministerial duty of providing adequate supervision at all times during gymnastics practices held within the confines of the Staples High School field house to ensure that every identifiable member of the gymnastics team, including the plaintiff, Charlotte Black, would not be exposed to dangerous and hazardous conditions, such as the conditions described above.”   Each of the four sub-paragraphs 29 h) through k) allege:  “failing to follow the defendants' gymnastics safety policy.”   Each sub-paragraph then sets forth the language of four different safety policies.   Those same five sub-paragraphs g), h), i), j), k) and l) are realleged in the Third Count of negligence against Melissa Zygmont, the coach of the Staples High School gymnastics team and in the Fourth Count of negligence against Martin Lisevick, the athletic director for Staples High School.   The court concludes from these allegations that the plaintiff is claiming negligence against all five defendants for breaches of ministerial duties.

Sub-paragraphs 29 a), b) and c) allege as follows:  “a) failed to exercise reasonable supervision by mandating that gymnastics practices be conducted in a reasonably safe fashion;” “b) failed to prohibit members of the gymnastics team from performing dangerous maneuvers without appropriate safeguards and protection in place;” and “c) failed to properly train [the] Melissa Zygmont regarding how to safely conduct gymnastics practices without creating a dangerous and hazardous condition for the students, including the plaintiff, Charlotte Black.”   These allegations of sub-paragraphs 29 a) and b) are common to all four counts against all five defendants.   Allegations of sub-paragraph 29 c) are found in the First Count against Town of Westport, and the Westport Board of Education, the Second Count against Daniel O'Day and the Fourth Count against Martin Lisevick.   The equivalent allegation in the Third Count against Melissa Zygmont in sub-paragraph 29 c) is as follows:  “failed conduct gymnastics practices without creating a dangerous and hazardous condition for the students, including the plaintiff, Charlotte Black.”   From these allegations the court concludes that the plaintiff has alleged negligence by all five defendants for breaches of discretionary duties.

The court therefore concludes that each of the four counts as against each of the five defendants alleges in a single count violations of both ministerial duties and discretionary duties.

“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.   A municipal employee ․ has a 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.”  Purzycki v. Fairfield, 244 Conn. 101, 107 (1998).   “Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.”  Gauvin v. New Haven, 187 Conn. 180, 184 (1982) “Ministerial acts are those that are performed in a prescribed manner without the exercise of judgment ․” Lyon v. Andrews, 211 Conn. 501, 506 (1989).  General Statutes § 52–557n(a)(1) provides:  “Except as otherwise provided by law, a political subdivision of the state 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.”

Ministerial refers to duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.  Violano v. Fernandez, 280 Conn. 310, 318 (2006);  “The hallmark of a discretionary act is that it requires the exercise of judgment ․” Martel v. Metropolitan District Commission, 225 Conn. 38, 48–49 (2005).   A ministerial duty to act in the prescribed manner may follow a discretionary determination as to whether to act.  Mills v. The Solution, LLC, 138 Conn.App. 40, 52–53 (2012);  Pluhowsky v. New Haven, 151 Conn. 337, 347–48 (1964).   In this case the plaintiff is claiming that “A policy or directive such as the defendants' gymnastic team safety policy curtails whatever judgment and discretion would ordinarily be associated with the performance of a particular duty and renders the duty ministerial.   See Beach, 42 Conn.App. 542, 553–54, 682 A.2d 118 (1996).”   Plaintiff's March 7, 2014 Memorandum of Law (# 134.00, p. 11).

In the event that the court determines that the actions of the defendants were discretionary in nature, the court must consider whether one of three exceptions apply:  “The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary:  first, where the circumstances make it apparent to the public officer that his or her failure would be likely to subject an identifiable person to imminent harm ․ second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ and third, where the alleged acts involve malice, wantonness or intent to injury, rather than negligence.”  Doe v. Board of Education, 76 Conn.App. 296, 300 (2003).   Based upon a review of the parties' Memoranda of Law and their oral argument, only the first exception is relevant in this case ․ likely to subject an identifiable person to imminent harm.”

The court will first consider a violation of a ministerial duty.   Paragraphs 29 h) through k) allege four separate sections of the “defendants' gymnastics safety policy.”   Each of the four counts contain the same four allegations.   Each of the four counts contain the same allegations in subparagraph 12.   Subparagraph 12 alleges as follows:  “That policy provided and directed in pertinent part that a. members of the Staples High School gymnastics team were to ‘perform only those skills and techniques as instructed and/or supervised by your coach’;  b. team members ‘practice only when your coach is present’ “;  c. “that team members be supervised and monitored by properly trained and qualified spotters;  and d. that spotters in place before team members attempting any stunt or routine as directed by the coach.”   An interrogatory answer furnished by the defendant, Donald O'Day, dated November 8, 2012 (# 134.00) was before the court:  “37.   At the time of the events complained of herein did any policies, protocols, guidelines or similar documents exist concerning any of the following materials:  a. Safety of participants in interscholastic sports teams;  b. Supervision of athletes in competing on interscholastic sport teams;  c. Safety of participants on any gymnastics team or clubs at Staples High School;  and d. Supervision of participants on any gymnastics teams or clubs at Staples High School.”   The interrogatory was answered:  “Yes. See attached rules of the National Federation of State High School Associations for gymnastics.”   Attached to the interrogatory answer is a one page document entitled “GYMNASTICS ” (# 134.00 p. 38).   This one-page document contains one paragraph with three sentences and then thirteen numbered paragraphs follow.   It appears that the allegations in paragraph 12 of the complaint were drawn directly from the language of this thirteen numbered paragraph document.   Paragraph 12a of the complaint is a direct quote from paragraph numbered 2. Paragraph 12b of the complaint is a direct quote from paragraph numbered 11.   Paragraph 12c of the complaint is drawn from paragraph numbered 12 and paraphrases portions of paragraph numbered 12.   Paragraph 12d of the complaint is a direct quote from the second sentence of paragraph numbered 12.   The introductory three sentence paragraph to these thirteen numbered paragraphs is as follows:  “When a person is involved in any athletic activity, an injury can occur.   One should be aware the information presented in these safety guidelines is to inform the athlete of proper techniques and inherent dangers involved with gymnastics.   There is a chance of broken bones, muscle and soft tissue and back injuries, which could lead to some form of paralysis.   Not all potential injury possibilities in this sport are listed, but athletes should be aware that fundamentals, coaching and proper safety equipment are important to the safety and enjoyment of the sport.”

The court has carefully reviewed the attached rules of the National Federation of State High School Associations for gymnastics attached to Interrogatory 37 of the November 8, 2012 interrogatory response.   This court cannot find that any paragraph is directed to a coach.   Each of these thirteen numbered paragraphs are directed to the gymnastic athlete.   The court further notes that the Interrogatory 37 does not directly ask about the policies, protocols, guidelines or similar documents relating to the policies of Staples High School and/or the Westport Board of Education or the policies of any coaching duties for Staples High School's interscholastic teams.   The court further notes that the one-page document attached to Interrogatory 37 does not contain any introductory information promulgated by the National Federation of State High School Associations for gymnastics.   The document contains no page numbers.   There are no indications what pages or language preceded or followed this one attached page.   The context of this one page was not furnished to this court.

The two essential allegations of negligence are:  (1) that the coach, Melissa Zygmont, was not present when she instructed Charlotte Black to practice the Yamashita vault knowing that she had never attempted such a gymnastics maneuver prior and (2) the coach failed to provide spotters to assist Charlotte Black in performing the Yamashita vault in order to protect Charlotte Black from injury in the event that she did not perform the vault completely, fully and safely.   Two of the thirteen paragraphs of the National Federation of State High School Associations for gymnastics relate to the above two claims of negligence:  Paragraph numbered 11, “Practice only when your coach is present,” and Paragraph numbered 12, “Stunts and/or routines can be dangerous if not spotted correctly while learning or not performed correctly.   You must understand the requirements of a spotter and have spotters in place before attempting any stunt or routine as directed by your coach.”

These paragraphs are directed toward the athlete only.   By plain reading the language of this attached one-page is not directed toward the coach.   An argument can be made that the intention of these paragraphs is directed to the coach and therefore the coach must be present when practice occurs and the coach must arrange for spotters to be present when a gymnast is learning or practicing a new gymnastic maneuver.

The court therefore finds that it is a material issue of fact as to whether or not there is a policy in effect directed toward the coach of the Staples High School gymnastics team.

Connecticut law has not provided a bright line rule determining if a municipal action is ministerial.   One case describes the mere opening of a door by a school employee as a discretionary act.  Colon v. City of New Haven, 60 Conn.App. 178, 185 (2000).   The inability to offer definite guidelines is not limited to Connecticut courts.  “It would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved the driving of a nail.  Ham v. County of Los Angeles, 46 Cal.App. 148, 162, 189 P. 462 (1920).   Our Supreme Court has noted the dissatisfaction with the distinction between ministerial and discretionary.   It has refused to adopt a governmental immunity distinction based on the planning and operational levels due to the Connecticut legislature adopting the ministerial-discretionary common law test in Gen.Stat. 52–557n.  Violano v. Fernandez, supra, 280 Conn. 327.

Cases that have found the duties to be ministerial have looked for the existence of a written policy or directive.  Kolaniak v. Board of Education, 28 Conn.App. 277, 281–82 (1992) (a bulletin issued to all custodians requiring walkways to be inspected and kept clean on a daily basis provides a sufficient basis to establish a breach of ministerial duty for an icy sidewalk fall).

An example of the many trial court decisions noting the requirements of proving a ministerial duty is as follows:  “The plaintiff ․ presents no documentation regarding any ordinances, regulations, written directives or policies within the City of Milford or the Milford Board of Education mandating the manner in which the Foran High School cheerleading squad's team practices were to be conducted, supervised or controlled, or as to what type of matting should be used.”   Pierce, PPA et al. v. City of Milford et al., Superior Court, judicial district of Ansonia/Milford at Milford, Docket Number CV 10–6003528 S (January 13, 2012, Arnold, J.).

In 2002 a change in this written policy or directive requirement occurred, when a municipality was held liable for negligence of its tree warden for the plaintiff's injuries.   There were no municipal charter provisions, rules or ordinances that directed the duties of the tree warden.   The general statutes on the subject were vague.  Gen.Stat. § 23–59.   The jury's interrogatory answers found that the municipality failed to establish that the tree warden's duties to inspect, maintain and remove the tree were discretionary in nature.   The Appellate Court acknowledged that there were no written policies but it held that the general directions given by the municipality to the tree warden “is always the same, look at the tree, make a determination.   Is it a safety concern?   Is it a priority?”   This testimony was sufficient to uphold the jury's findings of a breach of a ministerial duty.  Wisniewski v. Darien, 135 Conn.App. 364, 375 (2012).   This testimonial method without proof of written policies, may be enough to sustain the plaintiff's burden of demonstrating that a municipal duty is ministerial.

Melissa Zygmont's February 12, 2013 deposition filed with this court contains sufficient oral evidence of material issues of fact or to whether there was a policy in effect requiring the gymnastics coach to perform ministerial duties. (# 134.00, pages 40–42, 46–53, 93.)

That conclusion is supported by a recent trial court decision.   The plaintiff was injured at an after school gymnastics team practice in the public school gym.   Ritchie v. Milford, Superior Court, judicial district of Ansonia/Milford at Milford, Docket Number CV 06–5001722 (May 27, 2010, Hiller, J.).  “The court has reviewed the evidence submitted by the parties, and finds that genuine issues of material fact remain with regard to whether such a policy was properly in place at the time of Richie's injuries.”  “Other evidence provided to the court that is relevant to any such policy is simply confusing and sometimes contradictory.”  “In short, the court has reviewed all the evidence submitted by the parties and finds that genuine issues of material fact remain in dispute with regard to the alleged policy.   These issues include but are not limited to (1) whether there was a policy in place mandating that only custodians were to set up the school's gymnastics floor;  (2) whether such a policy applied only when the floor was to be constructed for meets, or extended to all instance in which the floor was to be assembled;  (3) who was authorized to institute and/or modify any such policy;  and (4) what the substance of any such policy was at the time of the incident.   The resolution of these issues of fact is necessary in order to determine whether the duties allegedly breached by the defendants were ministerial or discretionary.   As such, the court is unable to grant any party judgment as a matter of law at this juncture.”   Id.

The plaintiff Charlotte Black's complaint does not allege separate counts directed to violations of ministerial duties and violations of discretionary duties.   The plaintiff has combined both legal theories into a single count.   Summary judgment can only be directed toward an entire count of the complaint, not to portions of a count.  “There is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint.   At the trial court level there is a split of authority on the issue.   A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment ․” Fuller v. Manchester Obstetrics & Gynecology Associates, Superior Court, judicial district of Hartford at Hartford, Docket Number HHD CV 07–5012261 S (June 3, 2011, Robaina, J.);  Telesco v. Telesco, 187 Conn. 715, 718–19 (1982);  Teachers Insurance and Annuity Association of America v. Water Pollution Control Authority of the Town of Wilton;  Superior Court, judicial district of Stamford/Norwalk of Stamford, Docket Number FST CV 05–4007101 S (November 15, 2007, Tobin, J.).

The court will not discuss the applicability of the identifiable person imminent harm exception to a claimed violation of a discretionary duty, since the court already has found a material issue of fact as to the ministerial duty allegations.

Neither the parties' Memoranda nor their oral argument differentiated between the five defendants on the issues raised in this Motion for Summary Judgment.   The court therefore will not separately analyze the issues as to each of the five defendants.   The lead defendant is the gymnastics coach, Melissa Zygmont.   The court denies the Defendant, Melissa Zygmont's, November 14, 2012 Motion for Summary Judgment (# 124.00).   This same result is applicable to the other four defendants, since no party argued different standards and facts as to the other four defendants.

The court denies the Defendants' November 14, 2012 Motion for Summary Judgment (# 124.00) filed by all five defendants;  the Town of Westport, Westport Board of Education, Donald O'Day, Melissa Zygmont and Martin Lisevick.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.