Megan Kynast, By Nicole Kynast as Parent and Next Friend v. Martin Fiedler et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (104)

The plaintiff has brought this action in eight counts against three defendants, Martin Fiedler, the Town of Ridgefield and the Ridgefield Board of Education, in which she alleges that the defendants were negligent in a number of ways, which negligence resulted in a severe concussion, a traumatic head injury and other injuries and losses on the part of the plaintiff.

The First Count is against Martin Fiedler, principal of the East Ridge Middle School, in which it is alleged that Fiedler, in his capacity as principal, knew or should have known that the conduct of the students in rushing past the plaintiff's locker in a crowded hallway constituted a hazardous, dangerous and unsafe condition for students in that limited area, especially students such as the plaintiff who had been assigned lockers in that area and who were subjected to said dangerous condition.

Count Two is an indemnification claim brought against the Town of Ridgefield under § 7–465, C.G.S. Count Three is an indemnification claim brought against the Town of Ridgefield under § 7–101a, C.G.S. Count Four is an indemnification claim brought against the Ridgefield Board of Education under § 10–235, C.G.S. Count Five is a negligence claim brought against the Town of Ridgefield under § 52–557n, C.G.S., and Count Six is a negligence claim against the Ridgefield Board of Education under § 52–577n, C.G.S.

The plaintiff alleges that on October 28, 2010, at approximately 12:10 p.m., the plaintiff, a student at East Ridge Middle School, was standing in front of her locker in the second floor hallway when she was violently bumped into causing her to fall to the floor and strike her head.

The defendants have moved the court to strike the First, Second, Third, Fourth, Fifth and Sixth Counts of the plaintiff's complaint and also the Seventh and Eighth Counts sounding in nuisance.

Specifically, the defendants argue that the negligent acts which the plaintiff alleges occurred are acts for which the defendants are entitled to governmental immunity.   The defendants claim that § 52–557n, C.G.S. immunizes the defendants from acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.

The defendants argue that all of the allegations in the plaintiff's complaint are discretionary acts rather than ministerial as the plaintiffs maintain.

The plaintiff has objected to the relief sought in the defendants' motion to strike.

The plaintiff maintains that the negligent acts complained of by the plaintiff, even if discretionary, are acts for which the plaintiff is still entitled to recover under an exception to the municipal employee's qualified immunity for discretionary acts.   Under that exception, there is no immunity where the circumstances make it apparent to the pubic officer that his or her failure to act would be likely to subject an identifiable person to imminent harm—especially when the identifiable person is a school student at school during a school day.  Burns v. Board of Education, 228 Conn. 640 (1994);  Purzycki v. Fairfield, 244 Conn. 101 (1998).

The plaintiff relies upon the identifiable person subject to imminent harm exception which 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.   See Doe v. Petersen, 279 Conn. 607 (2006).

In this case, the allegations are that the plaintiff was standing in front of her locker during regular school hours when she was required to be there and that she was injured by a student or students who pushed her down while rushing through the hallway between classes during the several minutes allotted to them to get from one classroom to another.   As noted, the plaintiff argues that Martin Fiedler, as principal, was negligent in that he was aware or should have been aware of a dangerous condition which put the plaintiff and other students at risk and yet he failed to inspect for such condition, failed to warn students such as the plaintiff of such situation and he failed to remedy that situation.   The court finds that the criteria in the identifiable person-imminent harm exception has been established by the plaintiff.

“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.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Gazo v. Stamford, 255 Conn. 245, 260 (2001).  “[I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied.”   Craig v. Driscoll, 262 Conn. 312, 321 (2003).

The court finds as to Count One, that the plaintiff has made allegations which, if provable, would support a cause of action against the defendants.   Counts Two, Three, and Four are indemnification claims against the named defendants.   As such, having found that the plaintiff has pleaded sufficient facts to state a cause of action against Martin Fiedler in Count One, the indemnification counts survive a motion to strike.   Counts Five and Six, against the Town of Ridgefield and the Ridgefield Board of Education, likewise should not be stricken because, under our law, specifically § 52–557n, C.G.S., a municipality shall be liable for the negligent act of the municipality or any employee thereof acting within the scope of his employment.

As to Counts Seven and Eight, the court agrees with the defendants' assertion that under the facts in the instant case, the plaintiff has failed to properly allege that the defendants, by some positive acts, created the condition constituting the alleged nuisance, that “aggressive student behavior” constitutes a public nuisance or how such behavior would constitute a positive act by the school employees as required by our Supreme Court in Picco v. Voluntown, 295 Conn. 141 (2010).

For the foregoing reasons, the court hereby denies the defendants' motion to strike Counts One, Two, Three, Four, Five and Six of the plaintiff's complaint and grants the motion to strike Count Seven and Count Eight.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.