PPA v. 12 (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 143)

The plaintiff, Caleb MacDonald (Caleb), has brought this action through Donna MacDonald and Patrick MacDonald, his parents, next friends and natural guardians.

In his Third Amended Complaint, Caleb alleges that he suffered an injury to his left leg and other injuries and damages while, as a member of the Northwest Regional High School (“Northwest H.S.”) soccer team, he was playing in a match on the campus of Shepaug Valley High School (“Shepaug H.S.”) which is located in the Town of Washington and which is a part of Regional School District No. 12 (“Region No. 12”).

In his Complaint, he alleges that during the match he was pushed out of bounds and fell, striking his leg on an aluminum fence or rail situated in close proximity to the field.

The named defendants include Regional School District No. 12 (“Region No. 12”);  Regional School District No. 12 Board of Education (“the Board”);  Bruce Storm (“Storm”), Superintendent of Region No. 12;  Matt Perachi (“Perachi”), Athletic Director, Shepaug H.S.;   Andrew Campbell, soccer coach, Northwest H.S.;   and Jim Stinson, soccer coach, Shepaug H.S.

Each of the above named defendants have joined in a motion for summary judgment claiming that there is no genuine issue of material fact that they are entitled to governmental immunity for the acts alleged in the First, Second, Third, Fifth, Seventeenth and Eighteenth Counts of the plaintiff's Third Amended Complaint, and that the plaintiff does not come within any recognized exception to such immunity.

In their motion, they further argue that there is no genuine issue of material fact that the plaintiff was not in the exercise of a public right at the time of his alleged injury as he alleges in the Nineteenth and Twentieth Counts.

Lastly, they argue that there is no genuine issue of material fact that the Board was not in possession or control of the subject field so that no claim of nuisance may be stated against it as a matter of law.

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.  Miles v. Foley, 253 Conn. 381, 385–86 (2000).

“Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.”  Haesche v. Kissner, 229 Conn. 213, 217 (1994).

To satisfy this burden, the moving party must make a showing that it is quite clear what the truth is, and that it excludes any real doubt as to the existence of any material fact.  D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980).

“[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the nonmoving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of the fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citation omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 (2003).

I. AS TO GOVERNMENTAL IMMUNITY

The movants claim that the conduct in which they were engaged involved the exercise of judgment and discretion which entitles them to governmental immunity under § 52–557n(b) of the General Statutes.   They concede that there are exceptions to that rule but argue that, under the facts in his case, the plaintiff does not come within any exception.

The plaintiff claims that the defendants violated a ministerial duty in erecting and maintaining a fence within ten feet of the touch line of the soccer field and that they have not demonstrated that they are entitled to a judgment based on the defense of governmental immunity as a matter of law.

Additionally, the plaintiff argues that even if the court were to agree with the movants' claims that the conduct involved discretion and judgment, the motion should still be denied because there is a genuine issue of material fact as to whether or not the plaintiff falls within the imminent harm exception to sovereign immunity.

The plaintiff places great emphasis on the fact that both Northwest H.S. and Shepaug Valley H.S. are members of the Connecticut Interscholastic Athletic Conference (“CIAC”) and that, as members, they have the responsibility of knowing and adhering to all CIAC rules and regulations.

They further maintain that CIAC schools are required to adhere to the rules and regulations of the National Federation of High Schools (“NFHS”).  Included in the NFHS soccer rules is a field diagram which includes the requisite specifications and dimensions of a high school soccer field.   That diagram indicates that the boundary is to be ten feet away from the touch lines on all sides.

As the plaintiff states in his objection to the motion for summary judgment, “the bedrock of [the negligence] claims is the municipal defendants' and their agents' negligent violation of their ministerial duty to provide an unrestricted ten-foot boundary from the touch line of the subject soccer field which was specifically required [by] rule and/or policy to be free from spectators, fences or objects.”

The movants argue that the rules and regulations relied upon by the plaintiff, including the field diagram are documents which are hearsay evidence which would not be admissible at trial and which are not to be considered by the court in ruling upon the motion for summary judgment.

The movants provided the court with affidavits by Matt Perachi, Bruce Storm and Andrew Campbell denying that there were any written policies, rules or regulations that mandated any action by anyone concerning the inspection or maintenance of the fields.   Affidavits which are merely denials of the allegations in a complaint “[are] an insufficient basis for the rendition of summary judgment.”  Gambardella v. Kaoud, 38 Conn.App. 355 (1995).

The plaintiff argues that the issue of whether the acts complained of are ministerial or discretionary is normally a question for the trier of the fact, citing Swanson v. Groton, 116 Conn.App. 849, 854, 977 A.2d 738 (2009), but that based upon the allegations contained in his complaint citing rules and regulations governing the defendants' conduct, the court can and should find that the defendants' negligent acts are ministerial as a matter of law.

The movants maintain that the rules and regulations relied upon by the plaintiff regarding the ten-foot minimum boundary around the high school soccer field, as illustrated in the diagram contained in the NFHS rule book, are recommendations or suggestions only, to be applied or not at the discretion of the hosting facility—in this case Shepaug Valley H.S. They maintain that adherence to such rules and regulations is discretionary and, for that reason, they are entitled to governmental immunity under Sec. 52–557n(b) of the General Statutes.

Having considered the respective arguments of the parties, the court finds that a genuine issue of material fact exists as to the existence of a mandate requiring the existence and maintenance of the fence/rail surrounding the soccer field.   For that reason, the entry of a summary judgment concerning that issue is not permitted.

The court finds that as to the allegations of negligence contained in the First, Second, Third, Fifth, Seventeenth and Eighteenth Counts, the movants have failed to satisfy their burden in demonstrating an absence of genuine issues of material fact and for that reason the motion is denied as to those counts.

Having made that finding, the court will not take up the issue as to whether the plaintiff falls within the identifiable victim/imminent harm exception to governmental immunity.

II. AS TO WHETHER THE PLAINTIFF WAS IN THE EXERCISE OF A PUBLIC RIGHT

In the Nineteenth and Twentieth Counts of the plaintiff's complaint he alleges that Region No. 12 and the Board created and maintained a public nuisance in the form of the fence/rail upon which the plaintiff fell.

“Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to private rights, that is, the rights enjoyed by citizens as part of the public ․ [I]f the annoyance is one that is common to the public generally, then it is a public nuisance ․ A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.”  (Citation omitted;  internal quotation marks omitted.)  Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 611 (1943).

The movants argue that at the time of his injury, the plaintiff was not in the exercise of a public right in that he was a member of a soccer team playing a game on the field as opposed to being on the field a member of the public in the exercise of a public right.

In the case of Couture v. Board of Education, 6 Conn.App. 309, 316 (1986), a person was injured while acting as a chain man during a high school football game.   He was run into by a player who was blocked onto the sideline where the injured person was standing.   In that case, the court held that, “[a]t the time he was injured, the plaintiff was not exercising any right he held as a member of the general public.   In fact, he was in the area where he was injured only because of his special status as a game official.”   As in Couture, the plaintiff in his action was not enjoying his public right to be on the field, he was an active participant in a soccer game.   For that reason, the court finds that no liability in nuisance can attach as a matter of law.   The defendants Regional School District No. 12 and Regional School District No. 12 Board of Education are entitled to summary judgment as to the Nineteenth and Twentieth Counts, respectively.   The motion for summary judgment as to those two counts is granted.   Having so ruled, the court declines to rule on the claim by the defendant Regional School District No. 12 Board of Education that it was not responsible for maintaining a public nuisance for the reason that it was not in possession or control of the soccer field at the time of the plaintiff's alleged injuries.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.