Cortney Sevigny v. Devyn Daviau et al. (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (# 124)

On or about February 26, 2012, according to the first revised complaint in this case, the then-minor named plaintiff sustained serious personal injuries during a cheerleading team practice in the gymnasium of the town of Thompson's public high school, Tourtellotte Memorial (TMHS).  She was part of a human pyramid formation when it collapsed.   Originally the suit involved a number of defendants, including the town and various individuals.   As to all defendants except the town the case has been withdrawn.   Now before the court is the town's motion for summary judgment on the sixth count, the only one addressed to the town.   The basis of the motion is that there are no genuine issues as to any material fact in the case, and that the doctrine of governmental immunity shields the town and its agents from liability for claims of the type plaintiff has raised.   Each party filed an initial memorandum with exhibits on the motion prior to oral argument, and each party filed a subsequent memorandum following that argument.

The allegations of the first revised complaint, dated June 29, 2012, do not differ in substance from those set forth in the original complaint, dated March 9, 2012.   Briefly, the revised complaint alleges that two defendants who were fellow members of the cheerleading squad namely Devyn Daviau and Tyla Potvin, caused the incident which harmed plaintiff when each of them “engaged in horseplay and mischief, becoming unfocused and causing the middle stunt group and the larger pyramid to become unstable and to collapse onto the Plaintiff,” and were negligent in that they were “inattentive,” “engaged in inappropriate antics and mischief,” “carelessly ignored proper pyramid formation,” “failed to give the plaintiff any warning,” “failed to pay attention to her responsibilities as a prudent team member,” and “failed to act appropriately and acted inappropriately”;  (first revised complaint, ¶¶ 6 and 7, as to Daviau, and 16 and 17 as to Potvin, respectively).   Pertinent to the present motion are the allegations that certain school agents, servants, and/or employees (see ¶¶ 38–41 ¹ of the first revised complaint) allowed “the conduct of defendants Daviau and Potvin to occur and to continue to occur” (¶ 39), were guilty of “negligence and carelessness” by failing to stop Daviau and Potvin's conduct from continuing, failing to stop the two from participating in the pyramid formation, failing to exercise proper supervision and to instruct team members on proper conduct, etc. (¶ 41), despite knowing (actually or constructively) the negligent propensities of the two girls (¶ 38).   Although the complaint employs the plural in attributing that negligence to the town's “agents, servants, and/or employees,” an affidavit accompanying the town's motion identifies a single agent conceivably responsible, namely the cheerleading team coach, Brooke Nici. The town has denied the allegations addressed to the behavior of this agent.

In determining this motion, the court will not consider whether there is a causal chain sufficient to link the behavior of Daviau or Potvin at the practice to the town's being held liable for plaintiff's injuries;  proximate cause, or lack thereof, is not the focus of this motion.   Since the motion is one for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party.   The town has the burden of showing the absence of any genuine issue of material fact which, under applicable principles of substantive law, entitle it to a judgment as a matter of law, and plaintiff, in opposing the motion, must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact;  J.E. Robert Co., Inc. v. Signature Properties, LLC, 309 Conn. 307 (2013).

The town's motion is based upon the argument that the facts set forth in the complaint lead inevitably to a conclusion that the cheerleading coach's supervision of a team practice is a classic act of discretion and hence summary judgment is warranted.   The town relies upon the language of Gen.Stat. § 52–557n providing, except as otherwise authorized by law, that employees, officers, or agents of political subdivisions of the state may not be held liable in damages for their acts or omissions when their behavior requires the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.   It relies upon the construction of that statute set forth principally in Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988), Heigl v. Board of Education, 218 Conn. 1 (1991), and Williams v. City of New Haven, 243 Conn. 763 (1998).  Gordon affirmed the striking of a complaint against the city alleging negligence in the deployment of its police force, and, at page 168, indicates that under the statute in question “[a] municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts.   Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ․ On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.”  Heigl applies that dichotomy in the school context, in a case involving a motor vehicle fatality to a student allowed off the school grounds under an “open campus” policy.   Recognizing, at page 5, that “[t]he act of promulgating a policy ․ is a discretionary activity,” the Court went on to explain that “[n]either the General Statutes nor our decisional law has ever stated that a board of education has a specific duty to supervise high school students”;  Id., 8. While those words have been often discussed in subsequent decisions, they still apparently stand for the proposition that school officials supervising students of that age group, at least as to afterschool, voluntary activities, will not be deemed to be involved in a mere ministerial task and thus deprived of the statutory immunity at issue;  Purzycki v. Town of Fairfield, 244 Conn. 101 (1998).   The Williams decision reversed a trial court judgment in favor of a plaintiff claiming that a high velocity stream from a fire hydrant had injured her minor son, and that the existence of this hazard was chargeable to town officials, again holding that the statute is intended to afford such immunity to municipalities.   Recently, in a per curiam ruling in Coe v. Board of Education of the Town of Watertown, 301 Conn. 112 (2011), the Court affirmed a trial court decision striking the complaint of a young woman injured at a school graduation party upon the motion of the defendant school employees who had served as chaperones, thus eliminating any doubt that the construction of this statute's immunity provisions contained in those earlier cases remains the law in this state.

It merits noting that whether or not discretion is the governing milieu in which a municipal employee or agent is operating depends upon the nature of the acts involved;  Smart v. Corbett, 126 Conn.App. 788 (2011) (holding that duties of a police officer investigating an incident are generally thought to be discretionary).   Also, it is significant in determining whether an agent is acting with discretion or in a ministerial mode whether any written policy or directive exists which guides the hand of that employee—indeed, the mere failure to allege such a policy or directive in one's complaint may be interpreted so as to establish that he or she is expected to use discretion in fulfillment of the job's requirements;  Violano v. Fernandez, 280 Conn. 310, 324 (2006);  Mills v. The Solution, LLC, 138 Conn.App. 40 (2012).

In further support of its motion, the town cites about fifteen superior court cases on this topic, most of which conclude in the manner urged upon this court.   Among those are several cases factually similar to the case at bar, including Lowenadler v. Mallard, DN# CV 08 5004054, Superior Court, Judicial District of Danbury (2008;  Shaban, J.) (striking the complaint, on immunity grounds, of a seventh-grade student injured in an after-school, but school-sponsored, student/staff basketball game);  Dornfried v. Berlin Board of Education, 46 Conn. L. Rptr. 706 (2008) (striking the complaint, on immunity grounds, of a student claiming to have been bullied by members of the football team;  the football program was an after-school, voluntary program);  Caruso v. Board of Education of the City of Milford, DN# CV 99 0607957 (1999;  Moran, J.) (granting motion for summary judgment against minor plaintiff injured on ring-set apparatus in school gym, on ground that supervision of such activity by school officials is a discretionary activity and hence immune from suit);  Rodriguez v. City of Bridgeport, 33 Conn. L. Rptr. 167 (2002) (court trial ends in judgment for defendant, accused of failure to supervise by student assaulted in school hallway, with court observing that “providing safe schools is a discretionary activity”);  Fortune v. City of New London, 27 Conn. L. Rptr. 637 (1999) (summary judgment granted against student claiming injuries during basketball game;  the case reviews and summarizes the law as to immunity as it existed to that point);  Burks v. Town of Wallingford, DN# 98 0262469, Superior Court, New Haven Judicial District (1999;  Beach, J.) (summary judgment granted against student injured on basketball court, on immunity grounds);  and Burrows v. Milford Board of Education, DN# CV 08 5005999, Superior Court, Judicial District of Ansonia/Milford (2006, Bellis, J.) (summary judgment entered on immunity basis against minor student injured in class when another student knocked him from a stool on which he was perched).

One of the authorities cited by the town reached an opposite conclusion on the immunity issue.   In Gervais v. West Hartford Board of Education, 17 Conn. L. Rptr. 383 (1996), the court withheld immunity from a physical education teacher in a suit brought by a student who had been injured in a floor hockey game.   This court disagrees with the result in that case, and questions whether the result would be the same now in light of the many intervening cases which have addressed this issue.   These authorities include additional appellate and trial court decisions beyond those cited by the town, including Haynes v. City of Middletown, 122 Conn.App. 72 (2010) (affirming verdict directed on basis of immunity against plaintiff alleging injury in school gymnasium “during horseplay,” and claiming gym teacher had failed to supervise students involved);  Straiton v. New Milford Board of Education, DN# CV10 6003255, Superior Court, Danbury Judicial District (2012;  Ozaliz, J.) (summary judgment granted on immunity grounds against student claiming that teacher failed to interdict bullying);  and Harris v. City of New Haven Board of Education, DN # CV 09 6004180, Superior Court, New Haven Judicial District (2013;  B. Fischer, J.) (granting summary judgment on immunity grounds against student sexually abused after leaving school grounds who had alleged negligent failure to supervise).   Although this court acknowledges that the Harris case is on appeal (A.C.35520), it finds particularly persuasive and likely beyond dispute the court's summary of a host of cases, beginning with Heigl, all concluding that the supervision of students by a teacher is an inherently discretionary activity:

In Heigl v. Board of Education, 218 Conn. 1, 8 (1991), our Supreme Court observed that “[n]either 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.   See Rigoli v. Shelton, supra, 53 Conn. L. Rptr. 467 (“[w]hen 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”);  see also Romanella v. Nielson, Superior Court, judicial district of New London, Docket No. 065100163 (May 27, 2009, Abrams, J.) (“Connecticut law ․ considers the supervision of students a discretionary act”);  Doe v. Board of Education, Superior Court, judicial district of New Haven, Docket No. 04 0490216 (December 19, 2007, Corradino, J.) (“[i]t is generally recognized that failure to supervise students or perhaps better put, the provision of adequate security to protect students from injury of a physical or emotional nature caused by other students is a discretionary government activity”);  LaPerle v. Woodstock Academy, Superior Court, judicial district of Windham, Docket No. 06 5000370 (June 5, 2007, Martin, J.) (43 Conn. L. Rptr. 531, 532) (“[t]he duty of a [town board of education] to supervise students is discretionary rather than ministerial”);  Stevens v. Vegas, Superior Court, judicial district of New Haven, Docket No. 93 9352632 (February 7, 1994, Hadden, J.) (“[t]he claim of the plaintiff against the board is a failure to supervise students, and this duty, if it exists, is a discretionary one”).

This court believes that the Harris court stated the disciplinary function of teachers (and coaches) very aptly when it observed that “supervising students is not a single act that one can perform uniformly in all circumstances.   It is a dynamic activity that must be tailored to the various circumstances in which it occurs ․ [F]or school employees to effectively evaluate the circumstances that face them and determine how best to respond, they must exercise some measure of judgment.”   And it is axiomatic that “the hallmark of a discretionary act is that it requires the exercise of judgment,” Martel v. Metropolitan District Commission, 275 Conn. 38, 48–9 (2005) (emphasis added).

In support of its argument that the town is entitled to immunity because Coach Nici's behavior was discretionary, the town includes as Exhibit B to its motion the affidavit of Athletic Director Deborah Spinelli attesting to the following facts:  that the cheerleading program at TMHS was at all relevant times a voluntary activity (¶ 6);  that there are no written ordinances, regulations, directives or policies within the Town, the Board of Education, or the high school, which mandate the manner in which the cheerleading team practices are to be conducted, supervised or controlled (¶ 7);  and that (with exceptions not relevant hereto), decisions as to which activities the team engages in and how it does so are left to the cheerleading coach, Ms. Nici (¶ 10).   Plaintiff's efforts to refute these assertions are discussed below.

To close out its arguments in favor of its motion, the town's memorandum goes on to identify the three oft-cited exceptions to § 52–557n immunity, those being situations in which “the public official's duty to act is so clear and unequivocal that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force.”   These are described in Doe v. Petersen, 279 Conn. 607, 615–6 (2006) as 1) a situation in which “the alleged conduct involves malice, wantonness or intent to injure”;  or 2) “when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws;” or 3) when “the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․” (citations omitted).   The town identifies these three exceptions in order to proceed in detail to explain how none of them apply to the instant case.   Plaintiff made no reply to this portion of the town's argument, and so the court concludes that analysis of potential exceptions to the immunity rule is not required.²  In reviewing issues of law, a court is not required to review issues that have been improperly presented to it through an inadequate brief;  Barros v. Barros, 309 Conn. fn.   4 (August 6, 2013).

Plaintiff doesn't challenge the applicability of the weighty authority listed above to her complaint.   Instead, she argues that events which she identifies in exhibits to her initial objection and which she elaborates upon there and in her subsequent memorandum removed that discretion from Coach Nici with respect to the defendant Potvin, and converted her supervision of Potvin into a mere ministerial role.   She provided evidence that Potvin had been suspended from the team shortly before the February 26 accident, and argues that on that basis Potvin ought not to have been present in the gym in the first place.   She contends, implicitly, that if believed this fact would separate this case from all those mentioned above, and expressly argues that this factual issue at the least poses a question which a jury must resolve.

Her proof consists of Exhibit C to her Objection to Motion for Summary Judgment, which is a copy of a March 7 letter from TMHS Principal Penny Hebert to Potvin's father.   Ms. Hebert had imposed punishment upon Potvin, effective prior to February 26 but apparently not memorialized until the March 7 letter.   The letter informs the elder Potvin that “as a result of an incident on Facebook” his daughter was subject to discipline which consisted of “writing a letter of apology to the party involved, writing a 1–2 page essay on the Pros and Cons of Facebook, and removal from the cheerleading squad for the remainder of the winter sport season.”   Further, since students on the cheerleading team were aware of Potvin's suspension as of February 26;  see deposition testimony of Cortney Sevigny and Francesca Coppoletti, Exhibit A to Plaintiff's Objection;  the court will presume that the cheerleading coach was likewise aware of that status.   As a result of that suspension, plaintiff argues, Coach Nici had a ministerial duty to exclude Potvin which, had it been fulfilled, would have removed the cause of the subsequent calamity.

In further support of her position plaintiff submits as Exhibit B to her Objection a copy of the Thompson Public Schools Policy Manual, October 2010 edition, specifically Section V–10, which reads in full:

During the period of suspension, the student shall not be permitted to be on school property and shall not be permitted to attend or participate in any school-sponsored activities, unless the principal specifically authorizes the student to enter school property for a specified purpose or to participate in a particular school-sponsored activity.

At Section I–E, however, the same Manual defines suspension as “the exclusion of a student from school and/or transportation services for not more than ten (10) consecutive school days.”   Since Potvin was not on “suspension” as the Manual defines that term at any time relevant to this controversy, the court therefore finds that Section V–10 is inapplicable to this case.   Potvin's disciplinary status was not tantamount to an exclusion from the school and/or transportation services.   She was only suspended from an extracurricular activity, and not barred from being on the TMHS campus.   No policy has been adduced which speaks to her presence at the practice.

Thus if the jury were charged to determine whether Nici retained discretion to manage the practice, or whether she was required to eject this team member, all that the jury could conceivably have before it on this issue would be the circumstance that Potvin, at the time of the incident, was apparently suspended from the team.   Plaintiff has not proffered evidence of any written or oral policy directing how Nici should have responded to that suspension, nor evidence of any specific directive from her superiors to the coach substituting for her discretion a duty of simple adherence to another's mandate.   At best, the jury might find her negligent and then speculatively equate that negligence with the absence of discretion.   In none of the numerous cases cited above did the court leave to a jury the determination whether or not a school official's discretion was negated by allegedly negligent behavior, despite the fact that the school officials' act or omission in those cases was predicated upon circumstances in which third parties engaged in criminal activity (e.g., Mills, Rodriguez and Harris ), recklessness (e.g., Heigl ), bullying (e.g., Dornfried, Haynes, and Straiton ), or horseplay and foolishness (e.g., Fortune, Lowenadler, and Burks ).   Assuming, arguendo, that Nici was negligent in allowing Potvin to remain at practice, that does not alter the apparently inescapable conclusion that it was her call and no one else's, and that conferring the authority to make that decision upon her was the privilege of the defendant town.   If so, there is nothing unique about the status of Potvin which removes this case from the category in which all those cases cited above belong.

Plaintiff claims that Garcia v. Hartford Board of Education, DN# 11 6023266, Superior Court, Judicial District of Hartford (2012, Peck, J.), supports a denial of this motion, but the court finds that case to be inapposite.   The Garcia plaintiff was injured on a broken ladder at a school playground, and the court denied that town's motion for summary judgment made on immunity grounds.   The specific reason it did so was that nowhere in the submissions made in support of its motion did the town allege the absence of an applicable policy governing the decisions of its employees with respect to facility repair and maintenance.   Given that omission, and in view of the fact that the town was seeking summary judgment as opposed to a favorable result following a trial, the court permitted an inference that some policy pertinent to the situation did exist, but had not been disclosed.   That distinguishes the case entirely from the one at bar, in which the town's submissions negate the existence of a relevant policy and in that detail go unchallenged.

When ruling upon a motion for summary judgment, if the facts submitted admit of only one just conclusion, it is the duty of the court to determine as a matter of law whether or not the controversy should end at this point;  Redfearn v. Ennis, 28 Conn.App. 398, 401 (1992).   In light of the foregoing discussion, this court's conclusion is that no genuine issue of material fact remains for determination by a jury, and therefore judgment should enter on count six in favor of the defendant town.

Accordingly, the motion for summary judgment is granted.

Boland, J.

FOOTNOTES

FN1. Paragraph 40 reads, verbatim:  “By being aware of such conduct by Defendants Daviau and Potvin that was occurring and that Defendant Town, its agents, servants, and/or employees had notice of” (sic).   This is an incomplete expression of an idea and of dubious value to plaintiff's cause of action by any measure..  FN1. Paragraph 40 reads, verbatim:  “By being aware of such conduct by Defendants Daviau and Potvin that was occurring and that Defendant Town, its agents, servants, and/or employees had notice of” (sic).   This is an incomplete expression of an idea and of dubious value to plaintiff's cause of action by any measure.

FN2. Moreover, the court would in any event view the exceptions as inapplicable to the circumstances of this case..  FN2. Moreover, the court would in any event view the exceptions as inapplicable to the circumstances of this case.

Boland, John D., J.