PPA v. Richard D. Cady et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 131)

On December 1, 2011, defendants town of Colchester (town), Jeffrey Mathieu, Karen Loiselle, Dale McCubrey, Ross Sward, Gregory Plunkett, William Hettrick, John Mazzarella, Elizabeth Ciccione, Linda Hodge, Mary Lynne Burke, and Andrew George (collectively, defendants) moved for summary judgment on counts two through eleven of the operative complaint on the ground that they are entitled to governmental immunity.¹  The motion was accompanied by a supporting memorandum of law and exhibits.²  On January 16, 2013, the plaintiff filed an objection to summary judgment along with a supporting memorandum of law and exhibits.   On July 18, 2013, the defendants filed a reply to the plaintiff's objection.   In response, the plaintiffs filed two reply memoranda on August 7, 2013 and August 12, 2013.   The matter was heard at short calendar on August 12, 2013.

BACKGROUND

The plaintiff, Joseph Strycharz, through his next friend and mother, Kiersten Strycharz, alleges the following facts.   The plaintiff was, at all relevant times, a fourteen-year-old student at Bacon Academy, a public high school in Colchester, Connecticut.   On September 20, 2007, the plaintiff rode the bus to school and was delivered to the school bus post immediately in front of the school building at approximately 7:15 a.m. or shortly thereafter.   Instead of entering the school, the plaintiff and a fellow student decided to leave school property to smoke cigarettes.   They walked along a pedestrian walkway that led them through the school parking lots to the intersection of Norwich Avenue and the school driveway entrance.   At approximately 7:20 a.m., while attempting to cross Norwich Avenue, defendant Richard Cady drove his vehicle into and struck the plaintiff, causing injuries.   There were no crossing guards at the intersection, and no school faculty or staff were visible at the bus port.   No one attempted to stop the plaintiff from leaving school property and crossing the street.

The plaintiff alleges fourteen counts of negligence.   Count one is against Richard Cady, and is not at issue in the present motion.   Count two is against the town board of education members (Hettrick, Mazzarella, Ciccione, Hodge, and George),³ count four is against the school superintendent (Loiselle), count six is against the school principal (Mathieu), count eight is against a school assistant principal (McCubrey), and count ten is against another school assistant principal (Sward).   The plaintiff alleges that the town must indemnify all of the individual defendants pursuant to General Statutes § 7–465.⁴  Counts three, five, seven, nine, and eleven allege direct negligence against the town based on the negligence of the board members, superintendent, principal, and assistant principals pursuant to General Statutes § 52–557n.⁵  Counts twelve through fourteen, which are not at issue in this motion, allege negligence against the director of buildings and grounds (Gregory Plunkett) and the town.

LAW RE SUMMARY JUDGMENT

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

APPLICABLE LAW

The defendants argue that they are entitled to governmental immunity on counts two through eleven pursuant to § 52–557n(a)(2)(B) because the acts and omissions of negligence alleged involve the exercise of discretion.   Further, they peremptorily argue that the imminent harm, identifiable victim exception to discretionary act immunity does not apply to the present facts.   The plaintiff responds that there are genuine issues of material fact as to whether the defendants violated ministerial duties, which are not protected by governmental immunity.   Namely, the plaintiff points to, inter alia, the violation of a ministerial duty by school administrators when they failed to assign teachers or staff members to supervise the students arriving at school and exiting the bus.   The plaintiff also argues that he meets the imminent harm, identifiable victim exception to discretionary act immunity.

“The issue of governmental immunity is simply a question of the existence of a duty of care, and [our Supreme Court] has approved the practice of deciding the issue of governmental immunity as a matter of law.”  (Internal quotation marks omitted.)  Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006).  “By the passage of § 52–557n the legislature abandon[ed] the common-law principle of municipal sovereign immunity and establish[ed] the circumstances in which a municipality may be liable for damages ․ [Section 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.”  (Citation omitted, emphasis removed;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).

“Municipal officials are immune 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.”   (Citations omitted;  footnote omitted;  internal quotation marks omitted.)   Doe v. Petersen, supra, 279 Conn. 614–15.

“[T]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ․ § 52–557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint.”  (Footnote omitted;  internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010).   “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.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Martel v. Metropolitan District Commission, 275 Conn. 38, 48–49, 881 A.2d 194 (2005).  “[F]or the purposes of § 52–557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.”   Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A 2d 449 (2010).   The rule, policy, or other directive must therefore limit discretion by prescribing the manner in which the complained of act is performed in order for that act to be characterized as ministerial.  Violano v. Fernandez, 280 Conn. 310, 323–24, 907 A.2d 1188 (2006).

“[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․” (Internal quotation marks omitted.)  Bonington v. Westport, supra, 297 Conn. 307.   However, “where it is apparent from the complaint that the ․ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”   (Internal quotations marks omitted.)  Id., 307–08.

Our Supreme Court has described three exceptions to discretionary act immunity:  “First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure ․ Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ Third, liability may be imposed 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;  internal quotation marks omitted.)  Doe v. Petersen, supra, 279 Conn. 615–16.   In order for plaintiffs to avail themselves of the imminent harm exception, three elements are required:  “(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.   All three of these factors are intimately tied to the question of foreseeability, and all must be met for a plaintiff to overcome qualified immunity.”  (Internal quotation marks omitted.)  Fleming v. Bridgeport, 284 Conn. 502, 533, 935 A.2d 126 (2007).

Superior Courts have generally held that the supervision of students is carried out through discretionary acts.   Rigoli v. Shelton, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–09–5007920–S (February 6, 2012) (53 Conn. L. Rptr. 466, 467).   See also Romanella v. Nielson, Superior Court, judicial district of New London, Docket No. CV–06–5100163–S (May 27, 2009) (“Connecticut law ․ considers the supervision of students a discretionary act”);  Doe v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV–04–0490216–S (December 19, 2007) (“It 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. CV–06–5000370–S (June 5, 2007) (43 Conn. L. Rptr. 531, 532) (“The 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. CV–93–9352632–S (February 7, 1994) (“The claim of the plaintiff against the board is a failure to supervise students, and this duty, if it exists, is a discretionary one”).

ANALYSIS

The court first addresses the claims of negligence against the board of education, which are alleged in counts two and three.   Count two is against the individual board members and seeks indemnification from the town pursuant to § 7–465.   Count three, which involves the same allegations as count two, is brought against the town directly, pursuant to § 52–557n.   First, the court must determine whether there is a genuine issue of material fact as to the violation of a ministerial duty on the part of the board of education.   Counts two and three contain the following additional allegations.   The board was responsible for implementing and enforcing rules and regulations as well as taking steps to ensure the safety of students, which includes the duty to protect students from foreseeable dangers.   Pursuant to General Statutes § 10–220,⁶ the board had a duty to provide a safe school setting.   The board knew or should have known that the intersection at which the accident occurred presented a risk of serious injury to students arriving at school in the mornings.

The plaintiff alleges that the board members were negligent in that:  they did not implement rules and regulations or take other steps to ensure that students did not leave school grounds after arriving at school in the morning, which is prohibited by the student and parent handbook, and knew or should have known that students regularly left school grounds and crossed Norwich Avenue immediately upon arriving at school;  they failed to assign a crossing guard or traffic agent at the intersection;  and they failed to provide warnings, cautions, signage, or lights or take other steps to give notice to students of the motor vehicle traffic at the intersection.

Regarding the supervision of students, the court agrees with the Superior Courts that have held that the supervision of students inherently involves the exercise of discretion.   Although it may be true that § 10–220(a)(4) generally requires each local or regional board of education to provide a safe school setting;  see footnote 6 of this decision;  the plaintiff has not directed the court's attention to any rule, policy, or directive that limits the board's discretion by prescribing the manner in which they must provide such a setting.   This includes the student handbook, which does not limit the board's discretion in any way.   It provides the rules by which students must abide with regard to morning arrival, but does not dictate how, in particular, the board must enforce those rules.   Thus, although the board may be responsible for implementing certain rules, regulations, and policies regarding the situation at hand, the manner in which it chooses to do so is discretionary.

The remaining issue regarding counts two and three is whether the plaintiff has met the imminent harm, identifiable victim exception to discretionary act immunity.   The defendants argue that the plaintiff is not in a class of identifiable victims for purposes of this exception because the plaintiff was not required to be where he was at the time he was injured, but, rather, he left school grounds voluntarily.   The defendants further claim that the plaintiff does not meet the imminency requirement because the incident that occurred was not limited in duration and was not foreseeable.   The plaintiff claims that he was in an identifiable class of victims because the incident occurred during school hours, when the plaintiff was statutorily required to be at school.   The plaintiff also claims that he meets the imminency requirement because the incident was foreseeable and limited in scope and duration to students who left school property during school hours and were pedestrians in the vicinity of the intersection at which the incident occurred.

“An individual may be identifiable for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition ․ For the harm to be deemed imminent, the potential for harm must be sufficiently immediate.   In fact, the criteria of identifiable person and imminent harm must be evaluated with reference to each other.   An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm.   Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person ․ For the purposes of the imminent harm exception ․ it is impossible to be an identifiable person in the absence of any corresponding imminent harm.”  (Citations omitted;  internal quotation marks omitted.)   Cotto v. Board of Education, 294 Conn. 265, 275–76, 984 A.2d 58 (2009).

“With respect to the identifiable victim element, our Supreme Court has stated that this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims ․ [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.”  (Internal quotation marks omitted.)  Merritt v. Bethel Police Dept., 120 Conn.App. 806, 812–13, 993 A.2d 1006 (2010).  “[T]he only identifiable class of foreseeable victims that [our Supreme Court] ha[s] recognized for these purposes is that of schoolchildren attending public schools during school hours ․” (Internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 352, 984 A.2d 684 (2009).  “In addition to not recogniz[ing] any additional classes of foreseeable victims outside of the public school context ․ even in such a context, such a class has only been recognized where attendance has been compulsory.”  (Internal quotation marks omitted.)  Chirieleison v. Lucas, 144 Conn.App. 430, 442, 72 A.3d 1218 (2013).

Regarding imminence, there are “limited circumstances under which imminent harm may be established.   Imminent does not simply mean a foreseeable event at some unspecified point in the not too distant future.   Rather, [our Supreme Court] ha[s] required plaintiffs to identify a discrete place and time period at which the harm will occur.”  Bonington v. Westport, supra, 297 Conn. 314.  “Imminent harm excludes perils that could have occurred at any future time or not at all.”  (Internal quotation marks omitted.)  Haynes v. Middletown, 142 Conn.App. 720, 734, 66 A.3d 899, cert. granted, 309 Conn. 919, 70 A.3d 1067 (2013).

The defendants do not dispute that Bacon Academy is a public school that the plaintiff was required to attend, and that the incident occurred during school hours.   What is at issue, first, is whether voluntarily leaving school premises during school hours removes the plaintiff from consideration as an identifiable victim.   In this regard, “Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred ․ “ (Emphasis added.)  DeConti v. McGlone, 88 Conn.App. 270, 274, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005).   One of the reasons stated for considering students attending public schools to be an identifiable class of victims is that public school students are “compelled by statute to be on ․ school grounds.”  Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994).   This is because, among other reasons, it is foreseeable that children who are statutorily compelled to be present on school grounds will in fact be on school grounds during school hours, and administrators have a special duty of care with respect to those students.   The foreseeability of any imminent harms that could befall a student at a particular location is seriously diminished, however, when the student is not compelled to be present at that location, as is the case here.   Indeed, our Supreme Court has “interpreted the identifiable person element narrowly as it pertains to an injured party's compulsion to be in the place at issue ․” Grady v. Somers, supra, 294 Conn. 356.

The present case is analogous to the line of cases that have declined to consider students attending after-school programs or activities to be within a class of identifiable victims, even though those same students may be compelled to be at school during school hours, and even though such programs or activities may be encouraged.   See, e.g., Coe v. Board of Education, supra, 301 Conn. 119–20 (affirming trial court's conclusion that student injured at middle school graduation dance at off-school site was not in identifiable class of foreseeable victims);  Durrant v. Board of Education, 284 Conn. 91, 104, 931 A.2d 859 (2007) (holding that mother, whose six-year-old child was attending after-school day care and homework study program conducted by Boys and Girls Club in conjunction with public school, was not member of identifiable class of foreseeable victims when she slipped and fell on puddle of water on school property while picking up her daughter);  Jahn v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV–13–6032218–S (August 2, 2013) [56 Conn. L. Rptr. 569] (voluntary member of school swim team injured during warm-up drill not in identifiable class of foreseeable victims).   Although the present case is different in that the injury took place during school hours, precedent dictates that the identifiable victim requirement has both geographical and temporal components, which must be considered together.   See Deickler v. Ridgefield, Superior Court, judicial district of Danbury, Docket No. CV–11–6005851–S (June 4, 2012) (when plaintiff was injured while driving to school, court found “no evidence ․ to show that the accident occurred within the limited time and geographical parameters for which the identifiable victim status has been extended to school children”).   That is, under our case law, plaintiffs must be compelled to be present at the place where the injury occurred at the time when the injury occurred, because that is where and when the persons charged with protecting those plaintiffs from harm would expect them to be.   See id.  (“It may safely be said that where a public official has no reason to know his failure to act will subject an identifiable person to imminent harm, summary judgment will be appropriate”).   If a plaintiff voluntarily places himself or herself outside of that time, as in Coe, Durrant, and Jahn, or place, as the plaintiff did here, the plaintiff loses his or her status as a member of an identifiable class of victims, and therefore cannot meet the imminent harm, identifiable victim exception to discretionary act immunity.

The present case also does not fall within the limited circumstances under which imminence may be established.   This is not a case that involves a discrete place and time at which the harm could have occurred.   Even assuming that the injury occurred in a discrete place and thus was limited in geographical scope, the injury was not limited in duration, but could have occurred at any time.   Contrary to the arguments of the plaintiff, it could have occurred before, during, or after school hours, and the “condition” causing the injury, i.e., a dangerous intersection, cannot be considered to have been temporary.

In Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003), the plaintiff, a twelve-year-old female student, was sexually assaulted by three male students in a vacant classroom during school hours.   The Appellate Court rejected the plaintiff's argument that the plaintiff was subjected to imminent harm, stating that “the harm [to the plaintiff] potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school.”  Id., 305.   Here, similarly, the harm could have occurred to any student that left school premises at any time and attempted to cross the subject intersection.

The present case, like Doe, is thus distinguishable from Burns v. Board of Education, supra, 228 Conn. 640, where a high school student was injured because of an icy condition in a treacherous area of campus, and from Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), where an elementary school student was tripped by another student in an unsupervised school hallway during a half-hour lunch recess period.  “In each of those cases, the identifiable person-imminent harm exception was applicable because the dangerous condition was sufficiently limited both in duration and in geography to make it apparent to the defendants that school children were subject to imminent harm.”  Doe v. Board of Education, supra, 76 Conn.App. 303.   Here, there is nothing indicating that the risk of harm was imminent.   The alleged danger was not limited to a discrete, nonrecurring period of time, such as is the case with a danger that arises from a particular patch of ice, nor was the danger limited to a discrete yet recurring and predictable period of period of time, as when young children are left unsupervised for a half-hour period at the same time each day.   See also Haynes v. Middletown, supra, 142 Conn.App. 737 (affirming trial court's conclusion that presence of broken, jagged, rusty locker in boys locker room at middle school did not pose threat of imminent harm because harm could have occurred at any time or not at all, even if harm was more likely to occur during four or five minutes after gym class);  Golding v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV–10–6014414–S (July 17, 2013) (risk of harm not imminent when unknown student pushed minor child to ground during supervised recess);  Adams v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV–06–4027110–S (August 28, 2008) (46 Conn. L. Rptr. 305, 307) (risk of harm not imminent when middle school student was injured by glass divider separating sections of stairs;  injury could have happened at any time since installation of glass divider);  Antalik v. Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV–07–5001762–S (August 13, 2008) (46 Conn. L. Rptr. 179, 182) (risk of harm not imminent when minor child kicked to ground during supervised recess).

The plaintiff incorrectly attempts to limit the relevant timeframe to morning arrival, based on the assumption that the lack of supervision during that timeframe caused his injury.   In contrast to the plaintiff in Purzycki, however, the plaintiff in the present case is not an elementary school student to which the same duty of supervision is owed.   See Heigl v. Board of Education, 218 Conn. 1, 8, 587 A.2d 423 (1991) (“Neither the General Statutes nor our decisional law has ever stated that a board of education has a specific duty to supervise high school students.   Even if such a duty exists, actions pursuant to such a duty are discretionary if they are performed wholly for the direct benefit of the public.”  [Internal quotation marks omitted] ).   A key reason for the court's decision in Purzycki was that there was a discrete window of time where elementary schoolchildren were left unsupervised, which, based on testimony that injurious horseplay often arises when children are left unsupervised, was the dangerous condition, and unique to the half-hour lunch recess period.   In the present case, there is no evidence that the students at Bacon Academy were otherwise supervised at all times.   Therefore, leaving them unsupervised during any one period of time cannot be considered to create a discrete timeframe in which students are subjected to a risk of imminent harm arising from a lack of supervision.

In Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), it was alleged that the City of Waterbury and its officers had been negligent in failing properly to enforce various statutes, regulations, and codes concerning the maintenance of rental dwellings and, as a result, the plaintiffs' decedents were killed when a fire destroyed their residence, which was a multi-family rental unit.   The court held:  “The gravamen of the ․ allegations is that the defendants had not done enough to prevent the occurrence of a fire.   The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future ․ The present allegations do not even rise to the level of the imminence we rejected in Shore v. Stonington, [187 Conn. 147, 444 A.2d 1379 (1982) ], in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiff's decedent.   In the present instance, the fire could have occurred at any future time or not at all.   We cannot accept the proposition that the plaintiffs' decedents in this case were readily identifiable victims subject to imminent harm.”  Evon v. Andrews, supra, 507–08.   Our Supreme Court continues to treat Evon as good law, even after Burns and Purzycki, and has used it to delineate the boundaries of imminency.   See Violano v. Fernandez, supra, 280 Conn. 330–32 (risk of harm more analogous to Evon than to Burns and Purzycki;  risk of theft occurring in building not imminent when theft occurred seven months after building was condemned and left vacant).   Like the risk of fire in Evon, the risk of an accident at the subject intersection in the present case may have been substantial, but it was ongoing and continuous, rather than imminent and discrete.   An injury at the subject intersection could have occurred at any time or not at all.

Accordingly, as all of the board members are protected from liability both individually and as agents of the city, the defendants are entitled to summary judgment on counts two and three.   Because the court has already determined that the only relevant exception to discretionary act immunity does not apply, the only issue with respect to remaining counts is whether there is a genuine issue of material fact as to the violation of a ministerial duty on the part of the remaining defendants.

Next, the court addresses the claims of negligence against the superintendent, Karen Loiselle, which are alleged in counts four and five.   Count four is against Loiselle individually, and seeks indemnification from the town pursuant to § 7–465.   Count five, which involves the same allegations as count four, is brought against the town directly, pursuant to § 52–557n.   Counts four and five contain the following additional allegations.   Loiselle was “charged with the safety and wellbeing of Colchester students and implementing and enforcing rules and regulations governing student safety pursuant to Section 5142(a) of the Colchester Schools Policies, Regulations and Bylaws Manual” (policy manual).   She had a duty to protect the plaintiff and all other students in the district from foreseeable dangers while they were in the custody of the board of education and its employees during school hours on school days.   In addition, she knew or should have known that the traffic at the subject intersection created a serious risk of injury and that students arriving on school buses would leave school grounds and attempt to cross the intersection rather than enter the school building directly upon arrival.

The plaintiff alleges that Loiselle was negligent in that:  she did not implement rules and regulations or take necessary steps pursuant to the policy manual;  she failed to inspect and discover safety hazards on school grounds when she had a duty to do so pursuant to Section 5142(a)(3) of the policy manual;  she failed to provide a crossing guard or traffic agent at the intersection;  she failed to provide warnings, cautions, signage, or lights or take other steps to give notice to students of the motor vehicle traffic at the intersection;  and she failed to properly supervise administration and staff and create a reasonable student safety and supervision program.

Like the counts against the school board, counts four and five contain allegations pertaining to the supervision of students, which inherently involves the exercise of discretion.   The plaintiff has not directed the court's attention to any rule, policy, or directive that creates a ministerial duty on the part of Loiselle.   Although it may be true that the policy manual and student handbook create duties of a general nature, they do not limit the superintendent's discretion by prescribing the manner in which she must provide a safe intersection or supervise morning arrival.   Thus, despite the extensive evidence submitted by the plaintiff showing that Loiselle was aware that the subject intersection posed a danger to students attempting to cross it, the evidence also shows that the steps she chose to remedy that danger involved the exercise of the kind of discretionary acts governmental immunity is designed to protect.   A more expansive exposure to liability, in this instance, “would cramp the exercise of official discretion beyond the limits desirable in our society.”  (Internal quotation marks omitted.)  Doe v. Petersen, supra, 279 Conn. 614.

Accordingly, as Superintendent Loiselle is protected from liability both individually and as an agent of the city, the defendants are entitled to summary judgment on counts four and five.

Next, the court addresses the claims of negligence against the principal, Jeffrey Mathieu, which are alleged in counts six and seven.   Count six is against Mathieu individually, and seeks indemnification from the town pursuant to § 7–465.   Count seven, which involves the same allegations as count six, is brought against the town directly, pursuant to § 52–557n.   The allegations against Mathieu are largely the same as those against Loiselle, with the exception of the following additional allegations.   Mathieu was negligent in that:  he failed to instruct his subordinates, including the assistant principals and other staff, with respect to bus duty responsibilities;  he failed to execute his nondiscretionary ministerial duty to assign staff to serve on bus duty in general and on the day of the plaintiff's injury;  he failed to ensure that the staff assigned to bus duty were present for their duty and executed their duties.

The following additional facts, construed in a light most favorable to the nonmovant, are taken from the depositions of Principal Mathieu and Superintendent Loiselle.   Among Mathieu's duties was the duty to assign staff members to monitor school grounds at particular times.⁷  Sometimes, this duty was delegated to assistant principals.   Generally, staff members were assigned one duty period per day, and those periods were listed in the school schedule.   Pursuant to school policy, teachers are assigned, on a weeklong rotating basis, to assist students arriving at school when they get off the bus to make sure that they are safe and following school rules, including the rule that they must enter the school building immediately upon arrival.

In light of the above facts, it is clear, for purposes of this motion, that Mathieu had a ministerial duty to assign staff members to morning bus duty pursuant to school policy.   In Loiselle's deposition, this was further clarified when she was asked whether “[P]rincipal [Mathieu] ha[d] discretion not to assign school personnel to the areas where the [buses] came in in the morning to ensure that students went from the [buses] into the building and not leave the school grounds.”  (Plaintiff's Exhibit E, p. 91.)   She responded in the negative.  Id. There was no room for the exercise of discretion in assigning teachers or staff members to morning bus duty.   Given the existence of this ministerial duty, the next issue is whether there is a genuine issue of material fact as to whether Mathieu violated his duty.

In answers to interrogatories, Mathieu attested that he delegated his duty to assign staff members to bus duty to Assistant Principal Dale McCubrey.   Specifically, McCubrey was to create a duty roster which identified the teachers and staff members responsible for supervision during the time when students were arriving at school.   Mathieu instructed McCubrey to create a fair and reasonable schedule giving each staff member approximately two weeks of duty for the year.   According to McCubrey's deposition testimony and responses to interrogatories, she did not have discretion to instruct staff not to report to bus duty.   In accordance with his responsibility delegated to her by Mathieu, she created duty rosters every summer prior to the school year in which they were implemented.   For the 2007–2008 school year, bus duty was assigned to supervise students during the transition to and from school and buses.⁸  Various teachers and/or staff members each were assigned approximately two weeks of bus duty for the calendar school year.   They were instructed to control traffic so as to not endanger students, to ensure orderly transition to and from the school and the bus, and to prevent students from loitering.   The duty roster itself was not found, and McCubrey is unaware of which particular staff members were assigned to morning bus duty on the day of the plaintiff's injuries.

The plaintiff has not submitted any evidence to dispute that Mathieu delegated his responsibility to assign staff members to morning bus duty to McCubrey.   Even if mere delegation of this ministerial duty was not enough to fulfill his duty, there is no genuine issue of material fact as to whether the duty roster was actually created, notwithstanding the disappearance of the roster itself.   Once the duty roster was completed, and staff members were assigned to their duty periods for the year, including the day of the plaintiff's injury, Mathieu fulfilled his ministerial duty.   The plaintiff has not submitted evidence of a ministerial duty to ensure that teachers were actually present each day.   If any such duty existed, it would be discretionary, and there is no evidence of a particular law, policy, or directive that dictates how exactly Mathieu must fulfill this duty.   Although there is evidence that administrators periodically walked the grounds to ensure compliance, there is none indicating that doing so was mandatory, let alone evidence of a rule or policy directing the precise manner in which it must be done.   Aside from the responsibility to assign teachers to morning bus duty, there is no evidence of any other relevant ministerial duties on the part of Mathieu.

Accordingly, as Principal Mathieu is protected from liability both individually and as an agent of the city, the defendants are entitled to summary judgment on counts six and seven.

Next, the court addresses the claims of negligence against Assistant Principal Dale McCubrey and Assistant Principal Ross Sward, which are alleged in counts eight through eleven.   Counts eight and ten are against McCubrey and Sward individually, and seek indemnification from the town pursuant to § 7–465.   Counts nine and eleven, which involve the same allegations as counts eight and ten, are brought against the town directly, pursuant to § 52–557n.   There are no allegations of any additional ministerial duties on the part of either assistant principal, aside from those related to the assignment of teachers to morning bus duty.   In McCubrey's deposition, she indicated that she outlined a duty roster and turned it into the school office, and that Sward may have tweaked it thereafter.   See footnote 8 of this decision.   Whether or not this tweaking actually occurred is not clear from the present evidence, but in any event, there is no genuine issue of material fact as to whether teachers were assigned to morning bus duty, in satisfaction of any ministerial duties on the part of McCubrey and/or Sward.   As was the case with Mathieu, any duty McCubrey and Sward may have had to ensure that teachers and/or staff members were actually present at their assigned times would be discretionary.

Accordingly, as Assistant Principal McCubrey and Assistant Principal Sward are protected from liability both individually and as agents of the city, the defendants are entitled to summary judgment on counts eight through eleven.⁹

ORDER

For the foregoing reasons, the defendants' motion for summary judgment (# 131) as to counts two through eleven of the plaintiff's complaint is granted in its entirety.

Devine, J.

FOOTNOTES

FN1. The defendants moved for summary judgment on the third revised complaint, which was filed on April 22, 2010.   Subsequently, on January 14, 2013, the plaintiff filed an amended complaint, adding three counts.   Because in the absence of an objection from the defendants, the later filed complaint is now the operative complaint;  Practice Book § 10–60(a)(3);  the court will consider the motion for summary judgment to be directed at counts two through eleven of that complaint..  FN1. The defendants moved for summary judgment on the third revised complaint, which was filed on April 22, 2010.   Subsequently, on January 14, 2013, the plaintiff filed an amended complaint, adding three counts.   Because in the absence of an objection from the defendants, the later filed complaint is now the operative complaint;  Practice Book § 10–60(a)(3);  the court will consider the motion for summary judgment to be directed at counts two through eleven of that complaint.

FN2. Because neither party has objected to the submission of any uncertified deposition transcripts or other evidence, the court will consider all of the evidence submitted by both parties.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Additionally, the court will consider all of the evidence before it in deciding the present motion without regard to which party or parties submitted the evidence.   See Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004) (even where nonmoving party has no obligation to submit documents in opposition to motion for summary judgment because moving party's own evidence is insufficient to establish absence of genuine issue of material fact, court may consider whether evidence nonmoving party chooses to submit supports moving party's claim)..  FN2. Because neither party has objected to the submission of any uncertified deposition transcripts or other evidence, the court will consider all of the evidence submitted by both parties.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Additionally, the court will consider all of the evidence before it in deciding the present motion without regard to which party or parties submitted the evidence.   See Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004) (even where nonmoving party has no obligation to submit documents in opposition to motion for summary judgment because moving party's own evidence is insufficient to establish absence of genuine issue of material fact, court may consider whether evidence nonmoving party chooses to submit supports moving party's claim).

FN3. In the original complaint, Mary Lynne Burke was listed as a defendant, and alleged to be a member of the school board.   In the operative complaint, however, she is not listed in count two or any other counts.   Thus, for purposes of the present motion, the court will consider any claim against Burke to be abandoned..  FN3. In the original complaint, Mary Lynne Burke was listed as a defendant, and alleged to be a member of the school board.   In the operative complaint, however, she is not listed in count two or any other counts.   Thus, for purposes of the present motion, the court will consider any claim against Burke to be abandoned.

FN4. Section 7–465 provides that, subject to certain exceptions:  “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for ․ physical damages to person or property ․ if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment ․”.  FN4. Section 7–465 provides that, subject to certain exceptions:  “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for ․ physical damages to person or property ․ if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment ․”

FN5. Section 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 ․”.  FN5. Section 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 ․”

FN6. Section 10–220 provides in relevant part:  “(a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state ․ and ․ shall provide an appropriate learning environment for its students which includes ․ (4) a safe school setting ․”.  FN6. Section 10–220 provides in relevant part:  “(a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state ․ and ․ shall provide an appropriate learning environment for its students which includes ․ (4) a safe school setting ․”

FN7. Superintendent Loiselle's Deposition contains the following colloquy:Q ․ As of September of 2007 when this accident happened, what involvement was there on the part of school personnel to ensure that students didn't leave the school grounds after they got off the bus during school hours?A. The principal would have assigned teachers on duty or staff, classified staff, on duty in the school hallways and in the school grounds.Q. So how to you know that?A. Because the principals are responsible for assigning such duties.”   (Plaintiff's Exhibit A, p. 59.).  FN7. Superintendent Loiselle's Deposition contains the following colloquy:Q ․ As of September of 2007 when this accident happened, what involvement was there on the part of school personnel to ensure that students didn't leave the school grounds after they got off the bus during school hours?A. The principal would have assigned teachers on duty or staff, classified staff, on duty in the school hallways and in the school grounds.Q. So how to you know that?A. Because the principals are responsible for assigning such duties.”   (Plaintiff's Exhibit A, p. 59.)

FN8. McCubrey's deposition contains the following colloquy:Q. Exactly how would it be determined which teacher or which person in the school would have to be at a certain place for a certain time regarding student safety? ․A․  [A] duty roster is made every summer and given to the teachers.Q. Okay. Who makes these duty rosters?A. The assistant principal.Q. Did you personally make these duty rosters before September 20 of 2007?A. I made the outlines for it and turned it in, but since I was on medical leave, it may have been tweaked by someone else.Q. And to whom did you turn the duty roster in to?A. Probably my colleague.Q. Would that be [Assistant Principal] Sward?A. Right.Q. It sounds like you're not sure, but it sounds like you probably did.   Fair?A.  Right. Turned it in to the office.(Plaintiff's Exhibit C, p. 25.)Despite any expressed uncertainty at her deposition, McCubrey's responses to interrogatories leave no real doubt that bus duty was actually assigned.   Interrogatory four posed to McCubrey the following question:  “Prior to September 20, 2007, did you assign any duties with respect to student supervision at the bus port to assistant principals, teachers or other school staff?   Please limit your response to this question and its subparts to the duties involved in supervising students at the bus port from the first day of the 2007–2008 school year until September 20, 2007.”  (Plaintiff's Exhibit G.) McCubrey responded, “Yes.” Id.The follow-up questions and answers to interrogatory four were as follows.   Interrogatory four, subpart a., asked:  “What duties did you assign to your subordinates?”McCubrey responded:  “Bus duty was assigned to supervise students during the transition to and from school buses.”  Id. Subpart b. asked:  “To whom were these duties assigned?   Please identify both the subordinate who received the assignment and what he or she was supposed to do.”   McCubrey responded:  “Various teachers and staff members each were assigned approximately two weeks of bus duty for the calendar school year.”  Id. Finally, subpart c. asked:  “What instructions, directives or training did you provide to your subordinates?”   McCubrey responded:  “Control traffic so as to not endanger students;  ensure orderly transition to and from school and bus;  do not allow students to loiter.”  Id..  FN8. McCubrey's deposition contains the following colloquy:Q. Exactly how would it be determined which teacher or which person in the school would have to be at a certain place for a certain time regarding student safety? ․A․  [A] duty roster is made every summer and given to the teachers.Q. Okay. Who makes these duty rosters?A. The assistant principal.Q. Did you personally make these duty rosters before September 20 of 2007?A. I made the outlines for it and turned it in, but since I was on medical leave, it may have been tweaked by someone else.Q. And to whom did you turn the duty roster in to?A. Probably my colleague.Q. Would that be [Assistant Principal] Sward?A. Right.Q. It sounds like you're not sure, but it sounds like you probably did.   Fair?A.  Right. Turned it in to the office.(Plaintiff's Exhibit C, p. 25.)Despite any expressed uncertainty at her deposition, McCubrey's responses to interrogatories leave no real doubt that bus duty was actually assigned.   Interrogatory four posed to McCubrey the following question:  “Prior to September 20, 2007, did you assign any duties with respect to student supervision at the bus port to assistant principals, teachers or other school staff?   Please limit your response to this question and its subparts to the duties involved in supervising students at the bus port from the first day of the 2007–2008 school year until September 20, 2007.”  (Plaintiff's Exhibit G.) McCubrey responded, “Yes.” Id.The follow-up questions and answers to interrogatory four were as follows.   Interrogatory four, subpart a., asked:  “What duties did you assign to your subordinates?”McCubrey responded:  “Bus duty was assigned to supervise students during the transition to and from school buses.”  Id. Subpart b. asked:  “To whom were these duties assigned?   Please identify both the subordinate who received the assignment and what he or she was supposed to do.”   McCubrey responded:  “Various teachers and staff members each were assigned approximately two weeks of bus duty for the calendar school year.”  Id. Finally, subpart c. asked:  “What instructions, directives or training did you provide to your subordinates?”   McCubrey responded:  “Control traffic so as to not endanger students;  ensure orderly transition to and from school and bus;  do not allow students to loiter.”  Id.

FN9. At this time, the court need not determine whether there is a genuine issue of material fact with respect to whether the teachers assigned to bus duty on the morning of the plaintiff's injury violated a ministerial duty by not reporting for morning bus duty.   That would be at issue if the defendants had moved for summary judgment on count fourteen, which alleges a direct action against the city pursuant to § 52–557n on the theory that the teachers assigned to report for bus duty on the morning of September 20, 2007 did not actually report for duty.   Although the complaint does not identify the teachers by name, the court, Cole–Chu, J., has already concluded that “the Fourteenth Count is legally sufficient as to the Town of Colchester without naming a particular tortfeasor.   Spears v. Garcia, 263 Conn. 22, 37, 818 A.2d 37 (2003).   The resulting Fourteenth Count is not duplicative of other C.G.S. § 52–557n counts in which, along with the Town of Colchester, particular officers or employees of the Town of Colchester are named because the Town's alleged liability in those other counts depends upon the plaintiff's proving liability of the named individual defendants.”   Doc. No. 163.01.   Thus, although summary judgment is proper with respect to all counts directed at the school administrators named in counts two through eleven, none of those counts address the city's liability vis-a-vis the unidentified teachers assigned to bus duty on the morning at issue..  FN9. At this time, the court need not determine whether there is a genuine issue of material fact with respect to whether the teachers assigned to bus duty on the morning of the plaintiff's injury violated a ministerial duty by not reporting for morning bus duty.   That would be at issue if the defendants had moved for summary judgment on count fourteen, which alleges a direct action against the city pursuant to § 52–557n on the theory that the teachers assigned to report for bus duty on the morning of September 20, 2007 did not actually report for duty.   Although the complaint does not identify the teachers by name, the court, Cole–Chu, J., has already concluded that “the Fourteenth Count is legally sufficient as to the Town of Colchester without naming a particular tortfeasor.   Spears v. Garcia, 263 Conn. 22, 37, 818 A.2d 37 (2003).   The resulting Fourteenth Count is not duplicative of other C.G.S. § 52–557n counts in which, along with the Town of Colchester, particular officers or employees of the Town of Colchester are named because the Town's alleged liability in those other counts depends upon the plaintiff's proving liability of the named individual defendants.”   Doc. No. 163.01.   Thus, although summary judgment is proper with respect to all counts directed at the school administrators named in counts two through eleven, none of those counts address the city's liability vis-a-vis the unidentified teachers assigned to bus duty on the morning at issue.

Devine, James J., J.