PPA v. Latasha Stoval et al. (2013)

MEMORANDUM OF DECISION MOTION TO STRIKE (# 125)

The plaintiff, Tyree Wells, through his mother and next friend, Diane Chapman, brings this action against the defendants, the board of education of the city of New Haven (the board), Christopher Mignosa and Kathy Beck Russell, seeking money damages for injuries he allegedly sustained while walking on school grounds.¹  Presently before the court is the defendants' motion to strike counts two through four of the plaintiff's fourth amended complaint (operative complaint) on the ground that those claims are barred by governmental immunity.   Specifically, the defendants argue that counts two through four of the operative complaint should be stricken because the acts alleged therein are discretionary, rather than ministerial.   The defendants further argue that counts two through four are legally insufficient, as they lack allegations indicating that the plaintiff is an identifiable person who was subject to imminent harm.

Three dispositive issues are presented by the instant motion:  (1) whether the plaintiff's claims arising from the defendants' alleged failure to comply with General Statutes §§ 10–222d ² and 10–233d ³ are barred under the doctrine of sovereign immunity;  (2) whether the relevant policies articulated in the New Haven Public Schools Unified Code of Conduct (“Code of Conduct” or “Code”) are discretionary, rather than ministerial, thereby shielding the defendants from liability under the doctrine of governmental immunity;  and (3) whether the plaintiff's claims fall within the identifiable person-imminent harm exception to governmental immunity.

FACTS AND PROCEDURAL HISTORY

The operative complaint is dated December 26, 2012.   In the operative complaint, the plaintiff alleges the following.   The plaintiff was a minor student at Beecher School, a public school operated by the board.   On November 2, 2007, as the plaintiff was leaving school and walking on a sidewalk abutting the school, he was struck in the eye by a rock propelled by a slingshot operated by Darryl Nicholson, Jr., a minor student at the school.   As a result, the plaintiff suffered severe, painful, and potentially permanent personal injuries, including a partial loss of vision in his left eye.

Count one of the operative complaint sets forth a negligence claim against Nicholson, Jr., as well as parental liability claims against both Darryl Nicholson, Sr., and Latasha Stoval.   Count two of the complaint includes a negligent supervision claim against the board.   Count three contains a negligent supervision claim against Mignosa, a teacher at the school.   Count four contains a negligent supervision claim against Beck, a principal at the school.

On August 27, 2010, the defendants filed a previous motion to strike counts two through four of the plaintiff's July 30, 2010 complaint.   In granting the motion to strike, the court, Woods, J., held that the acts alleged in the complaint were discretionary in nature, and that the plaintiff had failed to allege that he is an identifiable person who was subject to imminent harm.   Wells v. Stoval, Superior Court, judicial district of New Haven, Docket No. CV 10 5032978 (March 8, 2011, Woods, J.).   Since Judge Wood's decision and following multiple revisions to the complaint, the plaintiff added paragraphs 7(i) through (k) and paragraphs 8(a) through (d) to counts two through four of the operative complaint.   These allegations are at the center of the instant motion to strike and are recited below.

On January 25, 2013, the defendants filed the instant motion to strike the operative complaint and a memorandum in support.   Attached to the defendants' memorandum in support is a copy of the Code of Conduct.   The plaintiff did not file a memorandum in opposition to the motion to strike.   On March 4, 2013, the court heard oral argument on this matter.

During the court's review and research of the issues, in preparation of drafting its Memorandum of Decision in this matter, the court discovered that its subject matter jurisdiction may be implicated based on the plaintiff's allegations in counts two through four, that the board violated §§ 10–222d and 10–223d.

On May 23, 2013, the court sua sponte, issued an order requesting supplemental briefs regarding whether the plaintiff's claims arising from the defendants' alleged failure to comply with §§ 10–222d and 10–233d are barred by sovereign immunity, thereby depriving this court of subject matter jurisdiction.   The court further ordered that the parties appear on June 17, 2013 for oral argument on this issue.   The defendants submitted a supplemental brief on June 11, 2013 and argued this issue before the court on June 17, 2013, respectively.   The plaintiff failed to both submit a supplemental brief and appear for oral argument.

DISCUSSION

I

The court will first examine whether claims arising from the defendants' alleged failure to comply with both §§ 10–222d and 10–233d are barred under the doctrine of sovereign immunity.   Although the defendants have not raised the issue of sovereign immunity in their motion to strike, the doctrine of sovereign immunity implicates the court's subject matter jurisdiction;  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011);  and therefore the court must address, sua sponte, whether these claims should be dismissed for lack of subject matter jurisdiction.  (Citations omitted;  internal quotation marks omitted.)   Peters v. Depart. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).

Accordingly, with respect to the plaintiff's allegations arising from both §§ 10–222d and 10–233d, the court will treat the defendants' motion to strike as a motion to dismiss.  “A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, supra, 301 Conn. 274.  “[J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court.”  (Internal quotation marks omitted.)  Morgan v. Bridgeport Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”   (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, supra, 274.

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

The relevant allegations are set forth in paragraphs 8(c) and (d) of counts two through four of the operative complaint.   These paragraphs provide, in relevant part:  “The plaintiff's injuries and damages were caused by the breach of ministerial duties of the [defendants] in one or more of the following ways:  ․ [c.] they violated [§ ]10–233d in that they failed to expel ․ Nicholson, Jr., for carrying a slingshot classified as a dangerous instrument, pursuant to [General Statutes § ]53–206 when they knew or should have known that [Nicholson, Jr.,] was possessing said slingshot and displayed it in open view;  [and d.] the [defendants] knew or should have known that ․ Nicholson, Jr., was bullying the plaintiff and other students and failed to notify the parents of [Nicholson, Jr.,] pursuant to [§ ]10–222d ․”

At the outset, it is necessary to examine whether either the doctrines of sovereign or governmental immunity are applicable to the plaintiff's claims arising from §§ 10–222d and 10–233d.  “Connecticut law 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.”   Santoro v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 04 0488583 (August 18, 2006, Robinson, J.) (41 Conn. L. Rptr. 850, 851).   As our Supreme Court has explained:  “A town board of education can be an agent of the state for some purposes and an agent of the municipality for others ․ A town board of education thus potentially enjoys immunity under two different theories of immunity for acts carried out within its governmental capacity.   For example, [w]e have long recognized the common-law principle [of sovereign immunity ] that the state cannot be sued without its consent ․ Alternatively, [a]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Heigl v. Board of Education, 218 Conn. 1, 3–4, 587 A.2d 423 (1991).   Whether the doctrines of sovereign immunity or governmental immunity are applicable to a local school board depends on whether the school is acting in accordance with state-required activities or for the benefit of a municipality.  Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d 937 (1998).

Accordingly, the threshold inquiry becomes whether the requirements set forth in both §§ 10–222d and 10–233d are state-mandated activities, thereby invoking sovereign immunity.   As a general rule, “the furnishing of an education for the public is a state function and duty ․ This duty is placed upon the state by article eighth, § 1 4 of the state constitution and is delegated to local school boards by state statute ․ There is no question but that local boards of education act as agencies of the state when they are fulfilling the statutory duties imposed upon them pursuant to the constitutional mandate of article eighth, § 1.” (Citations omitted;  internal quotation marks omitted.)  Chesire v. McKenney, 182 Conn. 253, 257–58, 438 A.2d 88 (1980).

Both §§ 10–222d and 10–233d are components of a larger statutory scheme involving matters pertaining to the operation of local and regional boards of education, including matters of school discipline and supervision.   See, e.g., Esposito v. Bethany, Superior Court, judicial district of New Haven, Docket No. CV 06 5002923 (May 3, 2010, Corradino, J.) (examining statutory scheme).   Subsection (b) of § 10–222d requires, inter alia, that each local board of education develop a “safe school climate plan to address bullying,” and that each plan must “require each school to notify the parents or guardians of students who commit any verified acts of bullying and the parents or guardians of students against whom such acts were directed ․” Subsection (a)(1) of § 10–233d provides, in relevant part, that “[a]ny local or regional board of education ․ may expel ․ any pupil whose conduct on school grounds ․ is seriously disruptive of the educational process or endangers persons or property or whose conduct off school grounds is violative of such policy and is seriously disruptive of the educational process ․” Subsection (a)(2) sets forth a list of infractions for which a board of education must hold expulsion hearings;  however, the subsection does not mandate that students carrying dangerous weapons automatically be expelled.

Although there is some authority to the contrary, a majority of Superior Court judges have concluded that, in addressing matters of discipline and supervision under General Statutes § 10–218 et seq., local and regional boards of education act as agents of the state.   See, e.g., Esposito v. Bethany, supra, Docket No. CV 06 5002923 (examining school board statutes and holding that a board of education was acting as an agent of the state in adopting a policy regarding bullying pursuant to § 10–222d);  Antalik v. Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 07 5001762 (August 13, 2008, Gallagher, J.) [46 Conn. L. Rptr. 179] (holding that the plaintiffs' claims against a board of education for failing to implement and follow a bullying policy under § 10–222d are barred by sovereign immunity);  Santoro v. Hamden, supra, 41 Conn. L. Rptr. 851 (holding that § 10–222d does not create a cause of action against local school boards and does not abrogate sovereign immunity).

Accordingly, in the present case, it is clear that paragraphs 8(c) and (d) of counts two through four of the operative complaint allege, in part,⁵ that the defendants failed to comply with certain statutory duties imposed upon them by the state.   Because these allegations set forth a failure to comply with a state-mandated activity, the defendants are being sued in their capacity as agents of the state, with respect to those claims.   Therefore, the relevant inquiry becomes whether the instant allegations are barred by the doctrine of sovereign immunity.

“The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law ․ It has deep roots in this state and our legal system in general, finding its origin in ancient common law ․ Not only [has our Supreme Court] recognized the state's immunity as an entity, but [the court has] also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state ․ Exceptions to this doctrine are few and narrowly construed under our jurisprudence ․

“[A] litigant that seeks to overcome the presumption of sovereign immunity must show that (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity ․ or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute ․ In making this determination, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed ․ Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity.”  (Internal quotation marks omitted.)   Daimler Chrysler Corp. v. Law, 284 Conn. 701, 711–12, 937 A.2d 675 (2007).

In the present case, the plaintiff has failed to overcome the presumption of sovereign immunity.   By their plain terms, neither §§ 10–222d nor 10–233d provide a basis for circumventing sovereign immunity.   Since the plaintiff has failed to allege a statutory waiver of sovereign immunity, the first exception to sovereign immunity is not applicable.   Moreover, as the plaintiff's claims seek money damages, the second exception is not relevant.   Accordingly, the plaintiff's claims arising from the defendants' alleged failure to comply with both §§ 10–222d and 10–233d are barred by the doctrine of sovereign immunity, and therefore the court lacks subject matter jurisdiction over these claims.   As a result, the court, sua sponte, dismisses paragraphs 8(c) and 8(d) of counts two through four of the operative complaint, to the extent that these paragraphs allege a failure to comply with §§ 10–222d and 10–233d.

II

The defendants argue that counts two through four of the operative complaint should be stricken, as the allegations contained therein are barred by the doctrine of governmental immunity.   More particularly, the defendants argue that the Code of Conduct merely contains policy recommendations with respect to student conduct and discipline and, as a result, does not set forth a ministerial duty.

As a preliminary matter, it is useful to recite the court's legal standard of review on a motion to strike.  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   The court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”   Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).

“It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on a motion to strike, court cannot resort to information outside of the complaint).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).

Although the defense of governmental immunity must generally be raised as a special defense in a defendant's pleadings;  Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006);  “there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike.   Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.”   (Internal quotation marks omitted.)  Coe v. Board of Education, supra, 301 Conn. 116 n.4.

The relevant allegations are contained in paragraphs 8(a), (b) and (d) of counts two through four of the operative complaint.   These paragraphs provide, in relevant part:  “The plaintiff's injuries and damages were caused by the breach of ministerial duties of the [defendants] in one or more of the following ways:  [a.] they failed to take appropriate action to safeguard said school premises in that they violated New Haven Public School's prescribed policies and procedures in that they failed to expel ․ Nicholson, Jr., because they were aware or should have been aware of his possession of a dangerous weapon namely a slingshot, which ․ Nicholson, Jr., intended to cause harm to students and the plaintiff ․ on school property ․;  [b.] they failed to notify the parent of ․ Nicholson, Jr., who made threats to the plaintiff and other students to cause violence and harm to them as prescribed in Level 4 major offenses no. 2 in said prescribed Rules of Conduct;  ․ [and d.] the [defendants] knew or should have known that ․ Nicholson, Jr., was bullying the plaintiff and other students and failed to ․ take other preventative measures in violation of said ․ Code of Conduct.”   Since it is apparent from the allegations contained in the paragraphs, that the defendants were engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendants' motion to strike is proper.

As stated previously, the doctrine of governmental immunity applies to local school boards when the board is acting for the benefit of a local municipality.  Purzycki v. Fairfield, supra, 244 Conn. 112;  Heigl v. Board of Education, supra;  218 Conn. 3–4.   In the present case, paragraphs 8(a), (b) and (d) of counts two though four of the operative complaint contain allegations that the defendants failed to comply with the board's own Code of Conduct.   Thus, with respect to these allegations, the defendants are being sued in their capacities as municipal actors, and therefore the doctrine of governmental immunity, and not sovereign immunity, is relevant as to these allegations.

The general principles of governmental immunity are well settled.  “The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties.   The common-law doctrine of governmental immunity has been largely codified in General Statutes § 52–557n.” ⁶  (Internal quotation marks omitted.)  Avoletta v. Torrington, 133 Conn.App. 215, 221, 34 A.3d 445 (2012).  “Section 52–557n(a)(2)(B) provides that a political subdivision of the state shall not be liable for damages to person or property caused by negligent acts or omissions that require the exercise of judgment or discretion.   Generally, however, municipal employees are liable for the misperformance of ministerial acts or duties that are to be performed in a prescribed manner without the exercise of judgment or discretion.”  Id., 224–25.

“As our Supreme Court has explained, [m]unicipal officials are immunized 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 ․ Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ․ In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts ․ This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts ․

“The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion ․ If the acts or omissions complained of are not imposed in the form of a general legal duty, they must, in order to be characterized as ministerial, be required by [a] ․ charter provision, ordinance, regulation, rule, policy, or any other directive ․ that prescribe[s] the manner in which [they are to be performed].”  (Citation omitted;  internal quotation marks omitted.)  Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 270–71, 41 A.3d 1147 (2012).

In the present case, the Code of Conduct contains four categories of offenses, ranging from “Level 1:  Minor Offenses” up to “Level 4:  Major Offenses II.” Within each category are examples of typical offenses and recommended responses.   To further illustrate, “Minor Offenses” include “making noise in class,” “dress-code violation” and “tardiness to class.”   At the other end of the spectrum are “Major Offenses II,” which include the distribution of alcohol, distribution of drugs, assault, battery and the possession of weapons, including firearms.   Within each category of offenses is a list of both recommended and required responses.

The court finds that the defendants are entitled to discretionary act immunity from their alleged failure to follow the Code of Conduct.   Although the Code contains mandatory responses to certain offenses—for example, suspension is mandatory for infractions falling within the “Major Offenses II” category—the determination of whether an offense has occurred and whether an offense falls within a particular category is a discretionary act.   This conclusion is buttressed by the text of the Code itself, which provides, in relevant part, that “[i]n any situation where a violation of this Code is alleged to have occurred, the principal or designee will hear the student's explanation and investigate the matter fully before determining if a violation has occurred.   If a violation has occurred, the principal or designee will determine the level of that violation.”   New Haven Public Schools Unified Code of Conduct, at 3. Most importantly, the Code explicitly provides that the principal's discretion is paramount:  “Violations of this Code of Conduct are grouped into four ․ levels:  Minor, Intermediate, Major I and Major II. The recommended responses should be used.   However, the principal's primary responsibility is to maintain order and protect the safety and security of all students and faculty.   Therefore, the principal's judgment in any given situation is considered paramount.”  (Emphasis added.)  Id. Accordingly, the court finds that the plaintiff's claims arising from the defendants alleged failure to follow the Code of Conduct are barred by the doctrine of governmental immunity, as the policies contained therein are discretionary in nature.

In this respect, the present case is similar to Rigoli v. Shelton, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 09 5007920 (February 6, 2012, Hiller, J.) [53 Conn. L. Rptr. 466].   In that case, the minor plaintiff was injured when he was tripped by another student, Matthew McCluster, while attending school.  Id. The defendant board of education moved for summary judgment arguing that it was entitled to discretionary act immunity.  Id. As in the present case, the complaint contained allegations that the defendant failed to respond appropriately to the alleged misconduct in light of, inter alia, the board's own Code of Conduct.  Id. In finding that the directives set forth in the Code were discretionary, the court observed that “there are a number of allegations that the school failed to respond appropriately to prior behavior by McCluster.   The determination of whether such behavior constituted for example, a ‘level 3’ offense mandating a particular response is a discretionary act.”  Id. The court further held that “the remaining paragraphs enumerate various ways in which the defendant failed to perform various enumerated acts ‘in violation of school bullying legislation, school board regulations, and ‘the defendant's policies and procedures.’   A close reading of both the allegations in the complaint and the policies and procedures on which they rely reveals that few contain the mandatory directives that remove the matter from the exercise of discretion.” ⁷  Id.

As in Rigoli, the policies set forth in the Code of Conduct are discretionary, and therefore the defendants are entitled to governmental immunity with respect to their alleged failure to follow the Code. Accordingly, the claims set forth in paragraphs 8(a) and (b), as well as those contained in the remainder of paragraph 8(d), in counts two through four of the operative complaint cannot be the basis of the plaintiff's recovery for his injury.

III

Having determined that the relevant acts alleged in the plaintiff's complaint are discretionary in nature, the court will now examine whether the plaintiff falls within the identifiable person-imminent harm exception to governmental immunity.   The defendants argue, inter alia, that the plaintiff is not an identifiable person who was subject to imminent harm, as the alleged attack on the plaintiff could have happened at any time or location on campus, and was not limited to a specific part of the school or a specific time period.

The relevant allegations are set forth in paragraphs 7(i) through (k) of counts two through four of the operative complaint.   These paragraphs provide, in relevant part:  “The plaintiff's injuries were caused by the negligence and carelessness of the [defendants] in one or more of the following ways:  ․ [i] they knew or should have known that [Nicholson, Jr.,] would attack the plaintiff with a slingshot during school hours on or around November 2, 2007 in that the [Nicholson, Jr.,] has a history of being violent with other students and was going to cause injury to the plaintiff;  [j] they knew or should have known that [Nicholson, Jr.,] would attack the plaintiff with a slingshot during school hours on or around November 2, 2007 in that [Nicholson, Jr.,] displayed the slingshot during school hours and the defendants failed to take the dangerous weapon from [Nicholson, Jr.,] and they knew or should have known that he had the propensity to be violent with said slingshot;  [and k.] they knew or should have known that [Nicholson, Jr.,] would attack the plaintiff with a slingshot during school hours on or around November 2, 2007 in that [Nicholson, Jr.,] made threats to the plaintiff and the defendants failed to take the subject slingshot away from [Nicholson, Jr.]”

“The identifiable person, imminent harm exception to governmental immunity is three-pronged.   By its own terms, this test 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 ․ If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception ․ [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care.”  (Citation omitted;  internal quotation marks omitted.)  Haynes v. Middletown, 142 Conn.App. 720, 735–36 (2013).

In the present case, viewing the allegations in the operative complaint in a light most favorable to the nonmoving party, the court finds that the plaintiff falls within the class of identifiable victims that our Supreme Court has recognized for these purposes, as he is alleged to be a school-aged child attending a public school during school hours.   See, e.g., Cotto v. Board of Education, 294 Conn. 265, 274, 984 A.2d 58 (2009).   Accordingly, for the purposes of this motion to strike, the plaintiff has satisfied the identifiable victim prong of the imminent harm exception to governmental immunDP1⌑However, the plaintiff has failed to allege that the risk of harm was imminent.  “For harm to be deemed imminent, the potential for harm must be sufficiently immediate ․ The risk of harm must be temporary and of short duration ․ Imminent harm excludes risks that might occur, if at all, at some unspecified time in the future.”  Id., 736.   For example, in Purzycki v. Fairfield, supra, 244 Conn. 103–04, the plaintiff elementary school student was injured when another student tripped him in an unsupervised school hallway, after being dismissed for recess following lunch.   In holding that the alleged harm was imminent, the court observed that “the present case involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunch room to traverse an unsupervised hallway on their way to recess.   Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision.   Finally, 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., 110.

In contrast, in Doe v. Board of Education, 76 Conn.App. 296, 304–06, 819 A.2d 289 (2003), the court held that the plaintiff student, who was sexually assaulted by three other students in an unsupervised classroom, had failed to allege facts demonstrating that the purported harm was imminent.   In so holding, the court observed that “the plaintiffs have not alleged facts showing that the danger to students was limited in duration and geography ․ [T]he alleged danger in the present case was not limited to a particular area of the school and a particular time period ․ [T]he 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 [board of education] that its discretionary policy decisions subjected the students to imminent harm.”   Id., 304–05.

Similarly, in Antalik v. Board of Education, supra, Superior Court, Docket No. 07 5001762, the court held that the plaintiff student was not subject to imminent harm when she allegedly sustained injuries during a recess period, after being kicked by another student who had previously bullied her.   In holding that the alleged harm was not imminent, the court observed that “[t]he harm in the present case could have potentially occurred any time that students traveled throughout the school or at any time during the school day.   The alleged bullying and harassment must be limited to a particular site on school property which presents a particular imminent harm rather than one that extends throughout the school premises.   Without these limitations it cannot be said that the potential for harm to the plaintiff was significant and foreseeable within the meaning of a claim for negligence, even if, as plaintiff alleges, the defendants were aware of the alleged prior bullying ․ The allegation that the defendants were made aware of prior harassment and bullying does not, standing alone, satisfy the requirements of [the imminent harm] exception.”   Id.

In light of the above cases, the plaintiff has failed to allege facts demonstrating that he was subject to imminent harm.   In order to satisfy the identifiable person-imminent harm exception to governmental immunity, the potential for harm must be both temporary in duration and limited to a particular site on school property.   Although the plaintiff alleges that he was injured while walking on a “sidewalk” while “leaving school during school hours,” the alleged harassment could have occurred anywhere and at any time during school hours.   As in Doe and Antalik, there are no allegations in the operative complaint limiting the scope of the alleged harm to a particular area of the school and to a particular time period.   By way of comparison, in Esposito v. Bethany, Superior Court, judicial district of New Haven, Docket No. CV 06 5002923 (February 14, 2007, Skolnick, J.T.R.) (43 Conn. L. Rptr. 7, 9–10), the court denied a motion to strike where a student was allegedly struck in the head by a rubber ball during recess, and the potential for injury was “limited to the brief period of time in which students played out of sight of the teacher's aids.”   Absent such allegations indicating that the alleged harassment could only have occurred at a particular place and during a particular time period, the identifiable person-imminent harm exception is not applicable.   Accordingly, the defendants' motion to strike is granted as to the remaining allegations in counts two through four of the operative complaint.

CONCLUSION

For the foregoing reasons, the court, sua sponte, dismisses paragraphs 8(c) and 8(d) of counts two through four of the operative complaint for lack of subject matter jurisdiction, to the extent that those claims arise from §§ 10–222d and 10–233d.   As for the remaining allegations in counts two through four, the defendants' motion to strike is granted.

Wilson, J.

FOOTNOTES

FN1. In addition, the plaintiff has brought claims against Latasha Stoval, Darryl Nicholson, Sr. and Darryl Nicholson, Jr. However, Stoval, Nicholson, Jr., and Nicholson, Sr., are not parties to the instant motion to strike.   Accordingly, the board, Mignosa and Russell are hereinafter referred to collectively as the defendants..  FN1. In addition, the plaintiff has brought claims against Latasha Stoval, Darryl Nicholson, Sr. and Darryl Nicholson, Jr. However, Stoval, Nicholson, Jr., and Nicholson, Sr., are not parties to the instant motion to strike.   Accordingly, the board, Mignosa and Russell are hereinafter referred to collectively as the defendants.

FN2. General Statutes § 10–222d provides, in relevant part:  “(b) Each local and regional board of education shall develop and implement a safe school climate plan to address the existence of bullying in its schools.   Such plan shall:  ․ (8) require each school to notify the parents or guardians of students who commit any verified acts of bullying and the parents or guardians of students against whom such acts were directed ․”.  FN2. General Statutes § 10–222d provides, in relevant part:  “(b) Each local and regional board of education shall develop and implement a safe school climate plan to address the existence of bullying in its schools.   Such plan shall:  ․ (8) require each school to notify the parents or guardians of students who commit any verified acts of bullying and the parents or guardians of students against whom such acts were directed ․”

FN3. General Statutes § 10–233d provides, in relevant part:  “(a)(1) Any local or regional board of education ․ may expel ․ any pupil whose conduct on school grounds ․ is seriously disruptive of the educational process or endangers persons or property or whose conduct off school grounds is violative of such policy and is seriously disruptive of the educational process ․ (2) Expulsion proceedings pursuant to this section ․ shall be required whenever there is reason to believe that any pupil (A) on school grounds or at a school-sponsored activity, was in a possession of a ․ deadly weapon, dangerous instrument or martial arts weapon, as defined in section 53a–3 ․”.  FN3. General Statutes § 10–233d provides, in relevant part:  “(a)(1) Any local or regional board of education ․ may expel ․ any pupil whose conduct on school grounds ․ is seriously disruptive of the educational process or endangers persons or property or whose conduct off school grounds is violative of such policy and is seriously disruptive of the educational process ․ (2) Expulsion proceedings pursuant to this section ․ shall be required whenever there is reason to believe that any pupil (A) on school grounds or at a school-sponsored activity, was in a possession of a ․ deadly weapon, dangerous instrument or martial arts weapon, as defined in section 53a–3 ․”

FN4. Article eighth, § 1 of the Connecticut Constitution provides:  “There shall always be free public elementary and secondary schools in the state.   The general assembly shall implement this principle by appropriate legislation.”.  FN4. Article eighth, § 1 of the Connecticut Constitution provides:  “There shall always be free public elementary and secondary schools in the state.   The general assembly shall implement this principle by appropriate legislation.”

FN5. Paragraph 8(d) of counts two through four of the operative also contains an allegation that the defendants failed to “take other preventative measures in violation of said ․ Code of Conduct.”   This allegation invokes governmental immunity, and is discussed in Section II, infra..  FN5. Paragraph 8(d) of counts two through four of the operative also contains an allegation that the defendants failed to “take other preventative measures in violation of said ․ Code of Conduct.”   This allegation invokes governmental immunity, and is discussed in Section II, infra.

FN6. General Statutes § 52–557n provides, in relevant part:  “(a)(1) 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 ․ (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.”.  FN6. General Statutes § 52–557n provides, in relevant part:  “(a)(1) 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 ․ (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.”

FN7. The court in Rigoli ultimately concluded that a genuine issue of material fact existed as to whether the defendant breached a ministerial duty.  Rigoli v. Shelton, supra, Superior Court, Docket No. CV 09 5007920 [53 Conn. L. Rptr. 466].   Specifically, the court observed that “the plaintiff's do allege that the defendant was required to perform certain acts in a prescribed manner but failed to do so.   For example, the plaintiffs allege that, ‘in violation of the faculty handbook,’ the defendant failed to ‘emphasize,’ ‘illustrate,’ ‘repeat,’ and ‘make sure all students in the class understand’ the rules of behavior expected in the hallway.”  Id. In light of these allegations, the court held that “[t]here is an insufficient factual record concerning these and other allegations to make summary judgment appropriate.”  Id. Such allegations, however, are absent from the operative complaint in the present case..  FN7. The court in Rigoli ultimately concluded that a genuine issue of material fact existed as to whether the defendant breached a ministerial duty.  Rigoli v. Shelton, supra, Superior Court, Docket No. CV 09 5007920 [53 Conn. L. Rptr. 466].   Specifically, the court observed that “the plaintiff's do allege that the defendant was required to perform certain acts in a prescribed manner but failed to do so.   For example, the plaintiffs allege that, ‘in violation of the faculty handbook,’ the defendant failed to ‘emphasize,’ ‘illustrate,’ ‘repeat,’ and ‘make sure all students in the class understand’ the rules of behavior expected in the hallway.”  Id. In light of these allegations, the court held that “[t]here is an insufficient factual record concerning these and other allegations to make summary judgment appropriate.”  Id. Such allegations, however, are absent from the operative complaint in the present case.

Wilson, Robin L., J.