Opinion
DBDCV176024080S
01-03-2019
Nicolas GARDNER, BY AND THROUGH his Parent and Next Friend Dallas GARDNER v. Carrie E. SMITH et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Defendant Danbury Board of Education ("Board") has moved for summary judgment on the Fourth Count of the Complaint on the ground of governmental immunity. For the reasons stated below, the motion is denied.
Defendant City of Danbury’s motion for summary judgment to dismiss the Fifth and Sixth Counts for failure to state a claim is granted without objection. The allegations in the complaint fail to allege a highway defect claim or negligence claim against the city.
The Standards for Deciding a Motion for Summary Judgment
"The standards ... [for] review of a ... motion for summary judgment are well established. 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 ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case ..." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60 (2001). (Citations omitted.)
In this action, plaintiff alleges the Board was negligent and caused the injuries to the minor plaintiff who was injured while crossing the street shortly after disembarking from a school bus at a stop other than his designated bus stop. The Fourth Count states a statutory negligence claim pursuant to C.G.S. § 52-557n and alleges that the Board was negligent by failing to take reasonable steps to ensure that students are only dropped off at their designated stop, to respond adequately and appropriately to prior instances of students getting off at stops other than their designated stops, to require bus monitors or aides to assist with control of student passengers, to design the bus route and to set the location of the Madison Avenue bus stop.
The Board argues that the Fourth Count is barred by governmental immunity under C.G.S. § 52-557n(a)(2)(B) because the acts complained about concerned exercise of judgment and discretion. Plaintiff’s response is that the claim falls within C.G.S. § 52-557, which is an exception to governmental immunity citing Judge Tierney’s decision in Nisinzweig v. Kurien, 2001 WL 1075761 *32 (Conn.Super. 2001) (Tierney, J.) .
Connecticut General Statutes § 52-557 provides: "In any action brought by any person for personal injuries received while being transported to or from school in a vehicle owned, leased or hired by, or operated under contract with, any town, school district or other municipality, it shall be no defense that such transportation is in the line of governmental duty or is mandated by the state. In any such action brought against any town, school district or other municipality, the defense of sovereign immunity shall not be available and it shall be no defense that the transportation was being provided by an independent contractor."
The question of whether C.G.S. § 52-557 operates as a waiver of governmental immunity turns on whether the action is "for personal injuries received while being transported to or from school ..." The Board argues that the statute is limited to injuries sustained on the vehicle while being transported and notes that plaintiff’s injuries were allegedly sustained after he exited the bus at a location other than his designated spot and ran across the street into oncoming traffic.
In Silano v. City of Bridgeport, 52 Conn.Supp. 42, 56 (2011) (Levin, J.), Judge Levin held the statute applied to eliminate the defense of governmental immunity for a claim that alleged plaintiff had been harassed by other students on a school bus:
"In Todd M. v. Richard L., 44 Conn.Supp. 527, 529, 696 A.2d 1063 (1995), the defendant pleaded governmental immunity as a special defense to the minor plaintiff’s claim that he was injured on a school bus. In granting the plaintiff’s motion to strike that special defense, the court stated that § 52-557 ‘explicitly eliminates the defense relied on by the defendants ...’ Id., at 537, 696 A.2d 1063. In the absence of any other explanation by the defendants, the court agrees with the plaintiffs and with the court in Todd M. that the plain and unambiguous meaning of § 52-557 is to eliminate the defense of governmental immunity for personal injuries received on a school bus." (Footnote omitted.)
In Todd M., 44 Conn.Supp. at 538, Judge Foley found two statutory grounds for striking a special defense of governmental immunity in a case that alleged harassment of a student on a bus: "[s]ection 52-557 prevents a town, school district, or municipality from claiming that transportation of school children is a governmental duty and thus exempting them from liability" and that section expressly "abrogates [the defense of] governmental immunity in the area of transportation of school children."
In Nisinzweig, 2001 WL 1075761 *32, Judge Tierney cited Todd M. ’s interpretation of Section 52-557 in striking a special defense of governmental immunity: "[b]y statute, a municipality is prevented from raising the defense of governmental immunity for negligent transportation of students." The claim in Nisinzweig was that the minor plaintiff was a special education student injured in an automobile accident while being transported to school by a company under contract with the Greenwich Board of Education.
Although Silano, Todd M. and Nisinzweig all concerned students injured while on the vehicle that was transporting them the Court does not understand those decisions to interpret § 52-557 so narrowly. All three courts focused on the statutory purpose of abrogating governmental immunity in personal injury cases involving the transportation of students.
In Smith v. Rudolph, 330 Conn. 138, 143 (2018), the Supreme Court recently reiterated the well-settled rule of statutory construction that courts must be guided by the plain language of the statute:" ‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... In seeking to determine that meaning [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter ...’" (Citations omitted.)
In Palosz v. Town of Greenwich, 184 Conn.App. 201, 215 n.14 (2018), the Appellate Court recently reminded courts of the duty to follow the plain language of a statute: "[w]e will not torture the plain wording of a statute to impart a meaning not expressed by its unambiguous language."
Applying the plain language of § 52-557 to the alleged facts of this case, it is evident the minor plaintiff was injured "while being transported to or from school ..." The wrongful acts and omissions of the Board alleged all relate to safe transportation of students. The negligent act alleged to have caused the injuries was allowing the minor plaintiff to disembark at a bus stop other than the designated stop close to his home. That occurred on the bus, although the injuries were sustained shortly after he left the bus. No evidence was presented in support of this motion that there was any break in the causal link between his leaving the bus and plaintiff’s injuries crossing the street from the bus stop so that it appeared as a matter of law that the defendant’s responsibility for the safety of the student transported had concluded.
Because the Court concludes that § 52-557 applies and there is no governmental immunity, there is no need to decide whether the act alleged to have breached the duty and caused the injury was discretionary or ministerial or whether any other exception to governmental immunity applies.
The cases cited by the Board concerned the exception to governmental immunity for identifiable victim in imminent harm and did not consider the applicability of C.G.S. § 52-557. See Strycharz v. Cady, 323 Conn. 548, 550-51, 588 (2016); Martinez v. New Haven, 328 Conn. 1, 8 (2018).