PPA v. Specialized Education Services, Inc. et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 147)

The defendant has filed this Motion to Strike counts two, three, four, five, six, seven, eight, eleven, twelve, thirteen, and fourteen of the plaintiffs' operative complaint (Revised Amended Complaint dated May 28, 2013) hereinafter “complaint” on the ground that the plaintiffs failed to state legally sufficient claims.

This case arises from the alleged injuries by the plaintiff Gustavo Rodriguez, a special needs student, who was restrained at school.   On May 28, 2013, the plaintiff, Alma Vargas, on her behalf and on behalf of her minor son Rodriguez, filed a complaint with fourteen counts directed against the defendants, Specialized Education Services, Inc., Jim Prosper, Steven Melillo, and Clifton Crabbe.   The plaintiffs allege the following facts.

On January 19, 2010, Gustavo Rodriguez, a special needs student with a diagnosed developmental disability, was removed from a classroom and physically restrained in a “timeout room” by the defendants.   The defendants' use of physical force to restrain Rodriguez resulted in a blow to the right side of Rodriguez's head, partially severing his right ear and knocking him unconscious.   The plaintiffs claim Rodriguez suffered severe and permanent injuries as a result of the defendants' actions.

On June 13, 2013, the defendants filed a motion to strike counts two, three, four, five, six, seven, eight, eleven, twelve, thirteen, and fourteen of the plaintiffs' complaint on the ground that the counts fail to state legally sufficient claims.¹  The motion to strike is accompanied by a memorandum of law.   On July 25, 2013, the plaintiffs filed an objection to the motion to strike.   The matter was heard at short calendar on August 26, 2013.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp, 240 Conn. 576, 580, 693 A.2d 293 (1997).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991);  see also Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010) (motion must be denied where provable facts support a cause of action).

I

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (PLAINTIFF VARGAS) COUNT TWO

“[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”  Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).   The elements in a cause of action for negligent infliction of emotional distress are:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).

“[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions:  (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim;  (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location;  (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury;  and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.”  Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996).

The defendants move to strike the plaintiffs' complaint for negligent infliction of emotional distress in count two.   The defendants argue that the second count on behalf of plaintiff Vargas, the mother of Gustavo Rodriguez, is legally insufficient.   Specifically, the plaintiffs failed to allege that:  (1) Vargas' emotional distress was severe enough that it might result in illness or bodily harm, and (2) Vargas had a contemporaneous sensory perception of the event.   The plaintiffs counter that the defendants incorrectly categorize the second count as “bystander” rather than “direct” negligent infliction of emotional distress, and sufficient allegations have been made to support the claim.

The issue here is whether the plaintiffs' second count claims direct or bystander negligent infliction of emotional distress.  “Claims for negligent infliction of emotional distress are distinguished from claims for bystander emotional distress not only by the precise cause of the plaintiff's injury, but also by the distinct elements that a plaintiff must satisfy for each claim.”   Hylton v. Stamford Board of Education, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–10–6002746 (October 20, 2011, Adams, J.) (52 Conn. L. Rptr. 790, 791).  “Traditionally, the method by which the courts have addressed negligent infliction of emotional distress claims has depended on whether the injury was produced by the plaintiff's apprehension of harm to himself ․ or from apprehension of harm to another.”   (Internal quotation marks omitted.)   Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 321879 (June 26, 1996, Moraghan, J.) (17 Conn. L. Rptr. 232, 233).  “While apprehension of harm to another is labeled as ‘bystander emotional distress,’ a person's own anxiety over possibly suffering an injury is termed ‘negligent infliction of emotional distress.’   “ Doe v. Jacome, Superior Court, judicial district of Danbury, Docket No. CV–98–0331360–S (May 13, 1999, Stodolink, J.) (24 Conn. L. Rptr. 591, 593).

Here, the plaintiffs' complaint does not explicitly allege whether Vargas' injuries were caused by her apprehension of harm to herself or to Rodriguez.   The plaintiffs argue in their objection to the motion to strike that the defendants “owed a separate duty to plaintiff Vargas, which was breached by the defendants' negligent acts towards plaintiff Rodriguez.”  (Emphasis added.)   The plaintiffs rely on Doe v. First Step Preschool, Inc., Superior Court, judicial district of Danbury, Docket No. CV–12–5009050–S (January 31, 2013, Doherty, J.) (First Step ) for the proposition that “recent Connecticut jurisprudence recognizes the existence of negligent infliction of emotional distress claims brought by a parent for injuries sustained by the parent's child at school.”   The plaintiffs' reliance on First Step is misplaced and the facts are clearly distinguishable from the present case.

In First Step, Jane Doe, a minor child, was unattended in a preschool bathroom when a fellow classmate entered the bathroom and engaged in inappropriate activity of a sexual nature with the plaintiff child.  Id. As a result of the events at the preschool, the plaintiff parents were instructed that their child could not return to the defendants' daycare.  Id. Also, the parents underwent questioning regarding their parenting and were forced to send one of their children away from home for a period of time after the incident.  Id. One issue before the court was whether the plaintiff parents' claim for negligent infliction of emotional distress was direct or bystander.   See id.   The court, Doherty, J., held that the parents' claim was for direct negligent infliction of emotional distress.   Judge Doherty reasoned that the parents' apprehension of harm was to themselves because the alleged emotional harm arose from the questioning they underwent regarding their parenting and being forced to send their other child away for a period of time following the incident.  Id. The holding of First Step did not recognize the existence of negligent infliction of emotional distress brought by a parent for injuries sustained by a parent's child at school, but rather recognized a parent's claim for negligent infliction of emotional distress when the alleged emotional distress arises from apprehension of harm to themselves, not to their child.   See id.

In the present case, the plaintiffs' claim for negligent infliction of emotional distress appears to arise from Vargas' apprehension of harm to her child, not herself.   Although the plaintiffs argue that the second count is a claim for direct rather than bystander emotional distress, the allegations of the complaint sound in a claim for bystander emotional distress.   See Hylton v. Stamford Board of Education, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–10–6002746–S (October 20, 2011, Adams, J.) (52 Conn. L. Rptr. 790, 792) (“While the plaintiffs couch their argument in terms of a violated duty owed them by the defendants, this does not alter the fact that their claim is based upon the movants' acts toward a third party ․ Therefore, the plaintiffs' complaint states a cause of action for bystander emotional distress ․” [Internal quotation marks omitted] ).   The plaintiffs' claim for negligent infliction of emotional distress is based upon the defendants' actions toward Rodriguez.   Unlike First Step, the complaint does not allege that the defendants' actions were directed at Vargas or that Vargas was anxious about possibly suffering an injury.   Therefore, the second count will be analyzed as a cause of action for bystander negligent infliction of emotional distress.²

Here, the plaintiffs' second count is legally insufficient to support a claim for bystander negligent infliction of emotional distress.   The plaintiffs have not alleged that Vargas' emotional injuries were caused by the contemporaneous sensory perception of an event.   Additionally, the plaintiffs have not alleged that Vargas arrived on the scene of the incident soon after her son was injured and before substantial change had occurred in Rodriguez's condition or location.   Put another way, the plaintiffs' complaint does not allege that Vargas perceived through any of her senses her son's ear being partially severed or that she arrived at the school or hospital before her son had received medical attention.   Therefore, the plaintiffs have failed to sufficiently allege facts to support a cause of action for bystander negligent infliction of emotional distress and the court will grant the Motion to Strike count two.

II

ASSAULT AND BATTERY—COUNT THREE

The defendants move to strike count three of the plaintiffs' complaint for assault and battery.   The defendants argue that the third count is legally insufficient.   Specifically, they argue that the plaintiffs failed to allege facts to support a claim that the defendants' actions were “intentional, wanton or without the exercise of due care.”   The plaintiffs counter that sufficient facts have been alleged to support the claim for assault and battery.

“A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another.”  DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.App. 590, 594, 501 A.2d 768 (1985).  “An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.”  (Internal quotation marks omitted.)  Alteiri v. Colasso, 168 Conn. 329, 334 n.3, 362 A.2d 798 (1975).  “[A]n actionable assault and battery may be one committed willfully or voluntarily, and therefore intentionally;  one done under circumstances showing a reckless disregard of consequences;  or one committed negligently.”   (Internal quotation marks omitted.)  Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).

In the present case, the plaintiffs' third count for assault and battery, which incorporates paragraphs 1 through 27 of the first count is legally sufficient.   In count one, paragraph 21 of the complaint, the plaintiffs state that “defendants ․ physically restrained Gustavo Rodriguez in such a manner and with such force so as to result in a blow to the right side of the plaintiff's head, which partially severed plaintiff Gustavo Rodriguez's right ear.”   Additionally, in paragraph 22, the plaintiffs state that “Rodriguez was rendered unconscious by the actions of the defendants ․” Furthermore, in paragraph 25, the plaintiffs state that “[a]s a result of the actions of the defendants as aforesaid, plaintiff Gustavo Rodriguez sustained serious and painful injuries to his head, ear, neck, and back ․” Allegations of the defendants' forceful restraint of Rodriguez that resulted in the partial severing of his ear and being knocked unconscious reached the level of sufficiency needed to plead apprehension and subsequent harmful contact.   Also, an inference can be drawn from the alleged severity of Rodriguez's injuries, namely the partial severing of his ear and unconsciousness, that the defendants exhibited a reckless disregard of consequences.   Therefore, the plaintiffs have pleaded sufficient facts to support a cause of action for assault and battery.   The court will deny the Motion to Strike as to count three.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS—COUNTS FOUR & ELEVEN

ACount Four—Vargas

The defendants move to strike count four of the plaintiffs' complaint for intentional infliction of emotional distress on behalf of Vargas.   The defendants argue that count four is legally insufficient because (1) the defendants' alleged behavior was not directed toward Vargas, and (2) the allegations do not rise to the level of extreme and outrageous behavior.   The plaintiffs counter that sufficient facts have been alleged.

“In order for the plaintiff to prevail in a case for liability ․ [alleging intentional infliction of emotional distress], four elements must be established.   It must be shown:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, 304 Conn. 483, 526–27, 43 A.3d 69 (2012).

In the present case, the plaintiffs' fourth count is legally insufficient to support a claim for intentional infliction of emotional distress on behalf of Vargas.   The plaintiffs' complaint fails to allege that the defendants' actions were directed at Vargas.   The plaintiffs incorrectly rely on James v. Kinder–Garden Learning Center & Day Care, Inc., Superior Court, judicial district of New Haven, Docket No. CV–09–6003352–S (November 1, 2009, Alander, J.) for the proposition that “courts have recognized a parent's claim for intentional infliction of emotional distress for negligent acts directed at their child while in the care of others.”   The court's decision in James is distinguishable from the present case.

In James, two parents and a minor child brought suit against a daycare and its employees for injuries sustained by the minor child while in their care.   Id. The plaintiffs claimed intentional infliction of emotional distress on behalf of the parents because the defendants “failed to appropriately comply with agreed upon handling procedures and failed to provide an explanation as to how the injuries occurred.”  (Internal quotation marks omitted.)  Id. The wrongful conduct alleged by the plaintiffs for the intentional infliction of emotional distress was directed at the parents themselves, not the minor child.   See id.   Therefore, the court denied the motion to strike a claim for intentional infliction of emotional distress on behalf of the parents.

Here, the complaint does not allege wrongful conduct by the defendants against Vargas.   The plaintiffs' intentional infliction of emotional distress claim on behalf of Vargas is based on the defendants' actions toward her son.   The only allegation that even references defendants' behavior relating to Vargas is contained in paragraph 22, which states, in relevant part:  “Plaintiff Gustavo Rodriguez was rendered unconscious by the actions of the defendants ․ and was transported via ambulance to Midstate Medical Center and treated for injuries without notifying plaintiff Vargas, where medical personnel reattached his ear and performed other medical intervention.”  (Emphasis added.)   Although paragraph 22 states that the defendants had Rodriguez treated for injuries without notifying Vargas, no link between the lack of notification to Vargas and the injuries she sustained is alleged.   Even when viewing the complaint in a “manner most favorable to sustaining its legal sufficiency;” (internal quotation marks omitted).  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013);  the allegation that Rodriguez was treated for injuries without the defendants first notifying Vargas does not provide, ipso facto, sufficient support that the defendants intended to inflict emotional distress or that the defendants knew or should have known that emotional distress was the likely result of their conduct.   The plaintiffs have failed to allege facts sufficient to support a cause of action for intentional infliction of emotional distress on behalf of Vargas.³  The court will strike court four of the complaint as to Vargas.

B

Count Eleven—Rodriguez

The defendants move to strike count eleven of the plaintiffs' complaint for intentional infliction of emotional distress on behalf of Rodriguez.   The defendants argue that count eleven is legally insufficient because (1) the alleged conduct was not extreme and outrageous, and (2) the alleged emotional distress was not severe.   The plaintiffs counter that sufficient allegations have been made to support the claim.

“[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate-keeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.”  (Internal quotation marks omitted.)  Gillians v. Vivanco–Small, 128 Conn.App 207, 211, 15 A.3d 1200 (2011).  “Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!  ․ Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”   (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, supra, 304 Conn. 527.

In this case, the plaintiffs have sufficiently alleged facts to support a claim for intentional infliction of emotional distress on behalf of Rodriguez.   The plaintiffs' complaint alleges that Rodriguez was subjected to such force by the defendants that his ear was partially severed and he was knocked unconscious.   The actions of the defendants as alleged are more than mere insults or displays of bad manners, and a reasonable fact finder could find them extreme and outrageous.   Additionally, the plaintiffs allege that as a result of the defendants' actions, Rodriguez suffered “physical trauma, mental anguish, physical scarring, and a severe shock to his entire nervous system” and that the emotional distress he suffered was severe.   The plaintiffs have alleged facts sufficient to support a cause of action for intentional infliction of emotional distress on behalf Rodriguez and the court will deny the defendants' motion to strike count Xl as to Rodriguez.

IV

BREACH OF CONTRACT—COUNT FIVE

The plaintiffs allege in count five that the defendant SESI breached an implied and express agreement to provide a safe environment for Rodriguez:  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).  “A contract is an agreement between parties ․ Contracts may be express or implied ․ If the agreement is shown by the direct words of the parties, spoken or written, the contract is said to be an express one.   But if such agreement can only be shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances, then the contract is an implied one.”  (Internal quotation marks omitted.)  Boland v. Catalano, 202 Conn 333, 336–37, 521 A.2d 142 (1987).   “The rules governing contract formation are well settled.   To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ․ To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties ․ If the minds of the parties have not truly met, no enforceable contract exists ․ [A]n agreement must be definite and certain as to its terms and requirements ․ So long as any essential matters are left open for further consideration, the contract is not complete.”  (Internal quotation marks omitted.)  Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A 2d 536 (2006).

The defendants move to strike count five of the plaintiffs' complaint for breach of contract.   At short calendar, the defendants argued, inter alia, that the plaintiffs' fifth count for breach of contract on behalf of Vargas is legally insufficient because no contract, express or implied, existed between the defendants and Vargas.   The plaintiffs counter that sufficient allegations have been made to support the claim for a breach of an implied contract.

In the present case, the plaintiffs' fifth count is legally insufficient to support a claim for breach of contract on behalf of Vargas.   The plaintiffs have alleged representations made by the defendants to Vargas, but have not alleged the formation of an express or implied agreement.   The plaintiffs merely state in paragraph 28 that “[a]s a result of and in consideration of, the aforementioned representations made to the plaintiffs by [the defendants,] through its agents and employees, plaintiff Vargas agreed to enroll plaintiff Gustavo Rodriguez in The High Road School.”   There are no allegations that Vargas and the defendants had an agreement with definite and certain terms and requirements or an offer and acceptance.   The plaintiffs have failed to allege facts sufficient to support a cause of action for breach of contract on behalf of Vargas and therefore the court will strike count five.

V

FEDERAL CLAIMSAExhaustion of Administrative Remedies

The defendants argue that counts six, seven, twelve, and thirteen should be stricken because the plaintiffs have failed to exhaust all administrative remedies.   The plaintiffs do not dispute that their Rehabilitation Act and Americans with Disabilities Act (ADA) ⁴ claims require exhaustion of administrative remedies under the Individuals with Disabilities Education Act (IDEA), however, the plaintiffs counter that the exhaustion of administrative remedies would have been futile and the requirement should be waived.

“Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum.   In the absence of exhaustion of that remedy, the action must be dismissed.”  (Internal quotation marks omitted.)   Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).  “Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.” ⁵  (Internal quotation marks omitted.)  Id.

“The exhaustion requirement is not an inflexible rule.”  (Internal quotation marks omitted.)  Murphy v. Arlington Cent. School District Board of Education, 297 F.3d 195, 199 (2d Cir2002).  “[A] party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if:  recourse to the administrative remedy would be futile or inadequate ․ the procedures followed by the administrative agency are constitutionally infirm ․ or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm.”  (Citations omitted;  internal quotation marks omitted.)  Johnson v. Statewide Grievance Committee, 248 Conn. 87, 103, 726 A.2d 1154 (1999).

In the present case, the plaintiffs' exhaustion of administrative remedies would be futile.   In Polera v. Board of Education, 288 F.3d 478 (2d Cir.2002), the Second Circuit discussed, inter alia, the futility exception of the exhaustion requirement as it related to a disabled-student plaintiff.   The plaintiff, Polera, relied on the Sixth Circuit's decision in Covington v. Knox County School System, 205 F.3d 912 (6th Cir.2000), arguing that exhaustion of administrative remedies was futile because she had already graduated and complained of past, not ongoing, conduct See Polera v. Board of Education, supra, 288 F.3d 490.   The Second Circuit discussing Covington stated that “[a]lthough the Sixth Circuit focused on the fact that the plaintiff student had graduated, damages would have been the only adequate remedy even had he sought immediate relief at the time of the wrongdoing.”  Id., 490.   In contrast with Covington, the Second Circuit distinguished the plaintiff's claim stating “had Polera pursued administrative procedures at the time of the alleged wrongdoing, she could have obtained the materials she needed and, perhaps, remedial tutoring or schedule adjustments to undo the effects of the wrong.   For Polera, unlike the plaintiff in Covington, a fully effective remedy was available at the time;  she simply chose not to pursue it.”  Id.

Here, the plaintiffs' circumstances are similar to Covington.   In Covington, the plaintiff, the mother of a disabled student, sued the school district asserting that the “school officials had locked the student inside a small, dark, unheated, unventilated cell for long periods of time as a disciplinary measure.”  Id. “In considering the applicability of the IDEA exhaustion requirement, the court held that in the unique circumstances of this case in which the injured child has already graduated from the special education school, his injuries are wholly in the past, and therefore money damages are the only remedy that can make him whole proceeding through the state's administrative process would be futile ․” (Internal quotation marks omitted.)  Id. Similar to Covington, the plaintiff in the present case has already graduated from the special education school, his injuries are wholly in the past, and money damages are the only remedy that can make him whole.   Additionally, unlike Polera, the plaintiff in the present case would not have been able to “undo the effects” of being knocked unconscious and having his ear partially severed by pursuing administrative remedies at the time of the incident.  Id. The court finds that under the facts of this case, this court has subject matter jurisdiction since the exhaustion of administrative remedies by the plaintiffs would have been futile.

B

Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794 (Rehabilitation Act)—Counts Six & Twelve &Title II of the Americans with Disabilities Act of 1990,42 U.S.C. § 12132(ADA)—Counts Eight & Fourteen

“Because of the significant overlap between the ADA and the Rehabilitation Act, [the court] will address simultaneously the plaintiff's complaint requesting ․ relief under both the ADA and the Rehabilitation Act and make distinctions as necessary.”  Mercer v. Champion, 139 Conn.App. 216, 229 n.13, 55 A.3d 772 (2012).   A claim under Title II of the ADA consists of three elements, which the plaintiff must establish:  “(1) he or she is a ‘qualified individual with a disability,’ (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability;  and (3) the entity [that] provides the service, program, or activity is a public entity.”  Id., 229.

“For a plaintiff to prevail on a claim under § 504 of the similar, but distinct, Rehabilitation Act, the plaintiff must establish that (1) he is a ‘qualified individual’ with a disability, as that term is defined in the Rehabilitation Act, (2) he is ‘otherwise qualified’ to participate in the offered program or activity or to enjoy the services or benefits offered, (3) he is being denied the opportunity to participate in or benefit from the defendants' services, programs or activities, or was otherwise discriminated against by the defendants by reason of his disability and (4) the defendants, or the entity they represent, receive federal financial assistance so as to be subject to the Rehabilitation Act.” (Internal quotation marks omitted.)   Id., 230.

The defendants move to strike counts six, eight, twelve, and fourteen of the plaintiffs' complaint.   The defendants raise the same arguments against each of these counts.   Specifically, the defendants argue that the plaintiffs' counts for violation of § 504 of the Rehabilitation Act and Title II of the ADA have failed to allege sufficient facts to support a cognizable cause of action.   The plaintiffs counter that sufficient allegations have been made to support the claim.

In the present case, counts six, eight, twelve, and fourteen are legally insufficient to support a claim for violation of § 504 of the Rehabilitation Act and Title II of the ADA. “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).  “[T]he central purpose of the ADA and § 504 of the Rehabilitation Act is to assure that disabled individuals receive ‘evenhanded treatment’ in relation to the able-bodied.”  Mercer v. Champion, supra, 139 Conn.App. 233.   Here, the plaintiffs allege mere conclusions of law that “Plaintiff Gustavo Rodriguez was discriminated against by the defendants by reason of his known disability.”   The plaintiffs do not support their conclusions of law with factual allegations as to how Rodriguez was discriminated against or treated differently from others as a result of his disability, and how that discrimination denied him the benefits or services of the defendants.   Therefore, the plaintiffs have failed to allege sufficient facts to support their claims for violation of the Rehabilitation Act and ADA and the court will strike counts eight and fourteen.

C

Individuals with Disabilities Education Act,20 U.S.C. § 1415 et seq.  (IDEA)—Counts Seven & Thirteen &General Statutes § 10–76a et seq.

“Congress left the details of how a parent makes a complaint regarding a special education student's education and related services to the states.   As a result, Connecticut has adopted statutes and regulations ․ that must be met pursuant to the IDEA. In turn, Connecticut receives federal funding for executing the provisions of the IDEA ․ Specifically, Connecticut enacted General Statutes § 10–76a, et seq. and the regulations thereunder to comply with the IDEA.” (Citation omitted.)   Hsing v. Glastonbury Board of Education, Superior Court, judicial district of Hartford, Docket No. CV–01–0809804–S (December 1, 2003, Hennessey, J.).

“The IDEA ․ mandates federal grants to states to provide disabled children with ‘a free appropriate public education’ in the least restrictive appropriate environment ․ Educators and parents of a child covered by the IDEA must jointly develop an ‘individualized education program’ (IEP) for each year of the child's education ․ According to the statute, an IEP must include, in writing, ‘a statement of the child's present levels of educational performance ․;  a statement of measurable annual goals, including benchmarks or short-term objectives ․;  a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child ․ to advance appropriately toward attaining the annual goals ․;  [and] the projected date for the beginning of the services and modifications ․ and the anticipated frequency, location, and duration of those services and modifications.’  ․ The IEP is the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education.”  (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Polera v. Board of Education, supra, 288 F.3d 481–82

The defendants move to strike counts seven and thirteen of the plaintiffs' complaint for violations of the IDEA and § 10–76a.   The defendants argue that the claims of IDEA and § 10–76a violations are legally insufficient because the plaintiffs have failed to allege any factual details.   The plaintiffs counter that the claims have been sufficiently supported by factual details.

In the present case, counts seven and thirteen are legally insufficient to support a claim for violation of the IDEA and § 10–76a.   Again, the plaintiffs merely state the legal conclusion that “[t]he education program as aforementioned provided by the defendants was inappropriate for plaintiff Gustavo Rodriguez, given his known disabilities.”   The plaintiffs fail to allege how Rodriguez's education program was inappropriate.   The plaintiffs make no mention of Rodriguez's present educational performance, annual goals, benchmarks, short term objectives, or Individualized Education Program (IEP).   Additionally, “[t]he purpose of the IDEA is to provide educational services, not compensation for personal injury, and a damages remedy—as contrasted with reimbursement of expenses—is fundamentally inconsistent with this goal.”   Polera v. Board of Education, supra, 288 F.3d 486.   Therefore, the plaintiffs have failed to allege sufficient facts to support their claims for violation of the IDEA and § 10–76a.   The court will strike counts seven and thirteen.

VI

GOVERNMENTAL IMMUNITY—COUNTS FIVE, EIGHT & FOURTEEN

Additionally, the defendants argue that they are entitled to governmental immunity for the alleged breach of contract and violations of the ADA in counts five, eight and fourteen, respectively.   Specifically, the defendants argue that they were providing a governmental function in public education and their actions were discretionary.   The plaintiffs counter that the defendants are not municipal entities entitled to governmental immunity.

“Generally, governmental immunity must be specifically pleaded in accordance with Practice Book § 10–50.”  Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995).   However, when “[i]t is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant [is] not required to plead governmental immunity as a special defense and [may] attack the legal sufficiency of the complaint through a motion to strike.”  Brown v. Branford, 12 Conn.App. 106, 111 n.3, 529 A.2d 743 (1987).  “But where it is not apparent from the allegation of the complaint that the municipality was so engaged, then the defense of governmental immunity should be pleaded.”  Trzaska v. Hartford, 12 Conn.Sup. 301, 302 (1943).

In the present case, the plaintiffs allege that “[t]he defendant, Specialized Education Services, Inc ․ was at all relevant times, a private corporation, incorporated under the laws of the Commonwealth of Pennsylvania, which owns and operates a privately owned, Connecticut licensed special education day school known as The High Road School, located in Wallingford, Connecticut, which provides special education services to children.”   The defendants' status as a municipal entity engaged in a governmental function entitled to governmental immunity is not apparent based upon the allegations of the plaintiffs' operative complaint.   Therefore, the defendants should plead governmental immunity as a special defense.

CONCLUSION

For the foregoing reasons, the court will grant the defendants' motion to strike counts two, four, five, six, seven, eight, twelve, thirteen, and fourteen.   The court will deny the motion to strike as to counts three and eleven.

Joseph H. Pellegrino, JTR

FOOTNOTES

FN1. The defendants also request in their memorandum of law for the court to strike punitive damages in conjunction with counts three, four, and five.   The Connecticut Supreme Court “will not uphold the granting of [a] motion to strike on a ground not alleged in the motion ․” (Citations omitted.)  Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).  “In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).   In the motion to strike, the defendants did not specify a ground to strike punitive damages.   Additionally, the defendants presented no argument or case law regarding the award of punitive damages as it relates to counts three, four, and five.   A court is “not required to review issues that have been improperly presented ․ through an inadequate brief.”  (Internal quotation marks omitted.)  Connecticut National Bank v. Giacomi, 242 Conn. 17, 44–45, 699 A.2d 101 (1997).   Therefore, the court will not consider the defendants' request to strike punitive damages in conjunction with counts three, four, and five..  FN1. The defendants also request in their memorandum of law for the court to strike punitive damages in conjunction with counts three, four, and five.   The Connecticut Supreme Court “will not uphold the granting of [a] motion to strike on a ground not alleged in the motion ․” (Citations omitted.)  Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).  “In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).   In the motion to strike, the defendants did not specify a ground to strike punitive damages.   Additionally, the defendants presented no argument or case law regarding the award of punitive damages as it relates to counts three, four, and five.   A court is “not required to review issues that have been improperly presented ․ through an inadequate brief.”  (Internal quotation marks omitted.)  Connecticut National Bank v. Giacomi, 242 Conn. 17, 44–45, 699 A.2d 101 (1997).   Therefore, the court will not consider the defendants' request to strike punitive damages in conjunction with counts three, four, and five.

FN2. Having determined that the second count sounds in bystander negligent infliction of emotional distress, an analysis of the defendants' first argument against the second count relating to direct negligent infliction of emotional distress is unnecessary..  FN2. Having determined that the second count sounds in bystander negligent infliction of emotional distress, an analysis of the defendants' first argument against the second count relating to direct negligent infliction of emotional distress is unnecessary.

FN3. Having determined that the plaintiffs failed to allege sufficient facts to support a claim of intentional infliction of emotional distress on behalf of Vargas, an analysis of whether the defendants' conduct was extreme and outrageous is unnecessary..  FN3. Having determined that the plaintiffs failed to allege sufficient facts to support a claim of intentional infliction of emotional distress on behalf of Vargas, an analysis of whether the defendants' conduct was extreme and outrageous is unnecessary.

FN4. Although the defendants do not argue that the plaintiffs' ADA claims are subject to the exhaustion of administrative remedies requirement, the plaintiffs recognize in this case that their ADA claims, counts eight and fourteen, also fall under the exhaustion requirement.   See, e.g., Polera v. Board of Education, 288 F.3d 478, 481 (2d Cir.2002)..  FN4. Although the defendants do not argue that the plaintiffs' ADA claims are subject to the exhaustion of administrative remedies requirement, the plaintiffs recognize in this case that their ADA claims, counts eight and fourteen, also fall under the exhaustion requirement.   See, e.g., Polera v. Board of Education, 288 F.3d 478, 481 (2d Cir.2002).

FN5. “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it ․ must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”   (Internal quotation marks omitted.)  Piteau v. Board of Education, 300 Conn. 667, 670 n.6, 15 A.3d 1067 (2011)..  FN5. “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it ․ must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”   (Internal quotation marks omitted.)  Piteau v. Board of Education, 300 Conn. 667, 670 n.6, 15 A.3d 1067 (2011).

Pellegrino, Joseph H., J.T.R.