Opinion
No. CV 07 5002146
March 31, 2009
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND MOTION FOR DIRECTED VERDICT
This action in negligence is prosecuted by Jasmon Vereen, then a minor, through his mother and next friend, Tracey Haynes, to recover for injures suffered by Tracey as a result of his being forced against a jagged and rusty locker in the boy's locker room at the Middletown High School on March 15, 2005. At the time of the injury Tracy was horse playing with one or more boys in the locker room. On November 25, 2008 a jury found Jason thirty-three percent and the City of Middletown (City) sixty-seven percent liable for the injuries and returned a verdict in the plaintiff's favor in the amount of $20,100.
The City has filed a Motion to Set Aside the Verdict and a Motion for Directed Verdict both of which share the argument that sovereign immunity safeguards it from liability. The issues involved in the arguments for and against these motions are as follows: (1) whether a defendant who does not request a jury charge on governmental immunity may subsequently renew its motion for directed verdict by moving to set aside the verdict and having judgment entered for the defendant notwithstanding the jury verdict?: (2) whether the alleged acts or omissions were discretionary or ministerial?; (3) whether the identifiable person/imminent harm exception to governmental immunity applies directly to municipalities, or whether a municipal employee must be specifically named as a defendant in the suit?; and (4) whether the evidence as summarized by the plaintiff could support a jury finding that the identifiable person/imminent harm exception applies?
Summary of Facts and Procedural History
Some discussion of the facts and procedural history are necessary. The plaintiff filed a two-count complaint against the defendant dated March 14, 2007, in which he claimed that he suffered injuries as a result of the negligence of the defendant and alleged the facts that follow. The plaintiff, a student at Middletown High School at the time, was in the boy's locker room in preparation for his physical education class on March 15, 2005 when he was pushed into a locker. The locker was already broken prior to this incident, and was in such condition that it remained open leaving a jagged, rusty edge exposed. The plaintiff alleged that the defendant was negligent in that it knew or should have been aware of the condition of the broken, rusty, jagged locker before the incident; it caused or allowed and permitted the locker to remain in disrepair in an area where students were required to pass; it caused or allowed and permitted the broken, jagged, rusty locker to be exposed to persons required to be in said locker room; the broken locker violated basic safety codes and presented a danger foreseeable to injure young men such as the plaintiff; it maintained said property in the men's locker room in the aforesaid conditions; it failed to repair or remedy said conditions when the same were reasonably necessary under the circumstances; it failed to warn the plaintiff of the aforesaid conditions; it failed to supervise the students to prevent them from going near the aforementioned dangerous condition; and that it failed to make proper and reasonable inspection.
The complaint contained two counts, the first as to Jason Vereen for injuries which he suffered; the second as to his mother, Tracey Haynes to recoup the expenses she incurred for his medical care.
At no point were any city officials or employees named as defendants in this action.
In its answer the defendant City asserted two special defenses: governmental immunity and contributory negligence. Specifically, the defendant pled immunity from liability under General Statutes § 52-557n; and that any injuries, losses, or damages were caused by the negligence and carelessness of the plaintiff, therefore the defendant sought apportionment of fault pursuant to the contributory negligence doctrine. Governmental immunity is the only defense particularly relevant to the defendant's motion to set aside the verdict and enter judgment for the defendant.
At the close of the plaintiff's case-in-chief, the defendant made a motion for a directed verdict because the plaintiff had not provided evidence of any rule, policy, or directive requiring the defendant to undertake any specific safety precautions in connection with the inspection and repair of the gym lockers and that even if there was a general policy to keep the premises in a safe condition, decisions concerning locker maintenance are within the discretion of the city employees. As a result, the defendant argued the duty of the defendant was discretionary as a matter of law, and therefore, the plaintiff's claim was barred under the doctrine of governmental immunity. Oral argument was heard on the motion, but the plaintiff did not file a brief in objection at that point in time. The court reserved its decision on the motion in accordance with Practice Book § 16-37.
"`The rules of practice establish a procedure pursuant to which a motion for a directed verdict, if denied (or for any reason is not granted], is considered renewed by the motion for judgment notwithstanding the verdict.' Salaman v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998); Practice Book § 16-37; see also 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 203, p. 823." Bauer v. Pounds, 61 Conn.App. 29, 34, 762 A.2d 499 (2000). Practice Book § 16-37 states in relevant part: "Whenever a motion for a directed verdict made at any time after the close of the plaintiff's case in chief is denied or for any reason is not granted, the judicial authority is deemed to have I submitted the action to the jury subject to a later determination of the legal questions raised by the motion . . ."
Subsequently, requests for jury charges as well as interrogatories were submitted by both parties. However, neither party made requests relating to the doctrine of governmental immunity. As a result, the jury did not receive instructions on that doctrine. After deliberations, the jury returned a verdict for the plaintiff in the amount of $20,100.
Pursuant to Practice Book §§ 16-35 and 16-37, the defendant renewed its motion for a directed verdict and moved to set aside the verdict and for a judgment notwithstanding the verdict, on the grounds that the defendant did not waive its special defense of governmental immunity in failing to request a jury charge on the doctrine because the issues raised can be decided as a matter of law; as a matter of law, the identifiable victim/imminent harm exception to governmental immunity does not apply to municipalities, but only applies to the employees of municipalities; and, in the alternative, the facts established at trial demonstrate that the plaintiff does not qualify for the imminent harm exception because the defective condition complained of did not pose a threat of "imminent harm" as the condition had existed for several months prior to the accident, and the plaintiff failed to prove that the harm was apparent to an official of the school.
In opposition, the plaintiff argues that the defendant waived its special defense because it failed to request any related jury charges; that the imminent harm exception does apply to the municipality itself, that on the doctrine of governmental immunity there was enough evidence for the jury to find that the imminent harm exception applied under the facts of the case; and that under the general verdict rule, all the governmental immunity issues are presumed to have been decided by the jury in favor of the plaintiff because the defendant did not request interrogatories on its special defense.
As represented in the plaintiff's memoranda of law in objection, the relevant facts, from the plaintiff's perspective are as follows. The defendant did elicit testimony from Kendall Jackson, the Director of Facilities for the Middletown public schools. Nevertheless, the photos of the broken locker showed that the locker doors were missing in such a way that sharp and jagged edges were exposed, and the jury could have concluded that this presented an imminent harm. There was testimony that after the physical education class, students were afforded four to five minutes to go into this locker room to change before their next class, so that there was a specific and limited period of time when this harm was focused. Therefore, the male students in the morning physical education session present a class of foreseeable victims. Mr. Smirnoff, employed by the school as a physical education teacher, testified that he had seen the lockers the morning of the incident. As a result, the jury could have reasonably found he was a public official to whom it was apparent that his failure to report the damaged lockers was likely to subject the male gym class students to harm. The jury could have also found that Jeff Turro, the Building Superintendent for Middletown High School, was the public official to whom the imminent harm was apparent. Both these men claimed that they did not have notice of the defect, but the jury obviously did not believe them and chose to credit the testimony of the plaintiff and Andre Francis.
However Mr. Jackson became aware of the "defective lockers" only after the accident. See Trial Transcript, p. 47.
Andre Francis was originally named as an apportionment defendant by the City of Middletown in its apportionment complaint, which alleged that Mr. Francis was the student who pushed the plaintiff into the locker. The City's apportionment complaint was later dismissed because the City failed to serve Mr. Francis within 120 days of the return date.
The plaintiff did not provide evidence of any rule, policy or directive requiring the defendant to undertake any specific safety precautions in connection with the inspection and repair of the gym locker in question. At the most, the jury could only find a general objective to maintain the school facilities in a safe condition. Regardless, it still remains that all decisions specifically concerning the maintenance of the lockers are left to the discretion of city employees. Furthermore, during oral argument regarding the defendant's motion for directed verdict following the close of the plaintiff's case-in-chief, the plaintiff's counsel acknowledged the discretionary nature of the defendant's duty. Additionally, Mr. Turro testified that it was left to the discretion of the individual custodians as to whether any particular condition detected at the school was of such a nature that it should be reported or repaired. Both the plaintiff and Mr. Francis testified that the locker had been in the alleged defective condition since the beginning of the school year. The plaintiff had been in the boys' locker room numerous times before the incident occurred. Mr. Francis, as well as the plaintiff, testified that the locker in question had been in the alleged defective condition for approximately seven months prior to the plaintiff's injury. It is unreasonable to believe that it was apparent to Mr. Turro that the harm to plaintiff was imminent because Mr. Turro testified that he could not recollect ever seeing those lockers in that condition and could not remember the last time he had been in the locker room.
Plaintiff's counsel stated: "However, I think it's — there's no question that this would be discretionary. It's not ministerial." See Trial Transcript, p. 40 lines 5-6.
See Trial Transcript, p. 26, line 5.
See Trial Transcript p. 31, lines 3-16.
See Trial Transcript, p. 10, line 4-p 11, line 20.
See Trial Transcript, p. 31, lines 3-16.
Question 1: Whether a defendant who does not request a jury charge on governmental immunity may subsequently renew its motion for directed verdict by moving to set aside the verdict and having judgment entered for the defendant notwithstanding the jury verdict?
The defendant in the present case is moving for the verdict to be set aside on the ground that the evidence at trial is insufficient to show that the plaintiff's claim is not barred by the special defense of governmental immunity. The plaintiff contends that the defendant has completely waived its special defense of governmental immunity, which it pled in its answer, because it failed to request a jury charge on the defense. Specifically, the plaintiff cites Practice Book § 16-21 as authority for the proposition that the court can not properly consider any of the defendant's arguments based on governmental immunity. Practice Book § 16-21 provides in relevant part: "Any party intending to claim the benefit of . . . the provisions of any specific statute shall file a written request to charge on the legal principle involved."
However, further analysis shows that the "benefit" as discussed in § 16-21 should not be interpreted as broadly as the plaintiff contends, but in fact it is more limited to precluding the defendant from claiming error in the charge given to the jury. Section 16-21 of the Practice Book is often construed in tandem with Practice Book § 16-20, which provides in relevant part that "[a]n appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered." (Emphasis added.); see also, 2 E. Stephenson, Connecticut Civil Procedure § 167a, p. 284 (3d Ed. 2002), citing Practice Book §§ 16-20 and 16-21 ("The rules now provide that on appeal no error can be assigned in the giving or failing to give a charge unless (a) it is requested in writing before the charge is given or (b) is excepted to immediately after the charge is given. As will be seen hereafter, certain matters of law must be embraced in a written charge, the exception after the charge not being sufficient as to them").
Claiming error in the charge to the jury and claiming error in the verdict as against evidence are two distinct grounds for granting a motion to set aside. In Phenning v. Silansky, 144 Conn. 223, 129 A.2d 224 (1957), "the plaintiff sought to recover damages for injuries alleged to have been caused by the defendant's negligence. After the jury had returned a plaintiff's verdict, the court set it aside. The plaintiff . . . appealed, assigning, as the sole error, the [trial] court's ruling on the verdict." Id., 224. The Supreme Court of this state explained that the "only ground advanced by the defendant in his motion was that the verdict was against the evidence. Nevertheless, the court set the verdict aside because of an error in the charge . . . In our view, however, the ground relied on by the defendant presented a more fundamental reason for setting the verdict aside. We therefore propose to examine the merit of that ground, since the question before us is whether the court's ruling is sustainable on any ground . . . If it is, it will not be disturbed, even though the ground relied on is different from the one adopted by the trial court." (Citations omitted.) Id.
Moreover, this motion for judgment notwithstanding was brought pursuant to Practice Book § 16-37, which allows the court to make its decision so as to be effective prior to the retirement of the jury. "`The rules of practice establish a procedure pursuant to which a motion for directed verdict, if denied [or otherwise not granted], is considered renewed by the motion for judgment notwithstanding the verdict.' Salaman v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998); Practice Book § 16-37; see also 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 203, p. 833 . . . As provided for in Practice Book § 16-37, the motion for judgment notwithstanding the verdict merely allows the court to make a `later determination of the legal questions raised' by the earlier motion for a directed verdict." (Citations omitted; emphasis in original.) Macchietto v. Keggi, 103 Conn.App. 769, 777-79, 284 A.2d 934, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). "By requiring the motion for a directed verdict, the fiction is preserved that the judge, in ruling on the motion after verdict, is really giving a delayed decision on the motion for a directed verdict." 2 E. Stephenson, Connecticut Civil Procedure (3d Ed. 2002) § 195b, p. 396. In this way, Connecticut's rule of practice is similar to rule 50(b) of the Federal Rule of Civil Procedure, the purpose of which was to permit "the trial judge to let the case go to the jury while he was considering how to rule on the motion for a directed verdict. If he decided in favor of directing a verdict, his decision was `related back' so as to be effective prior to the retirement of the jury." Id., § 295a, p. 395. Since the defendant is not claiming that there was error in the jury charge, and also because of the nature of a motion for judgment notwithstanding the verdict pursuant to Practice Book § 16-37, the defendant's not requesting a jury charge on the issue of governmental immunity does not preclude this court from considering its motion for judgment notwithstanding the verdict.
In the present case, the post-verdict motion was sufficiently in accord with the motion for a directed verdict. The plaintiff and defendant presented argument on the issue of governmental immunity, both with respect to the nature of the duty owed by the defendant as well as the imminent harm exception. The motion for a directed verdict alerted the court and the plaintiff that the claim was one of insufficiency of the evidence, in that there was insufficient evidence to prove that this action was not barred by governmental immunity. See, e.g., Salaman v. Waterbury, supra, 246 Conn. 308-10 (Defendant's motion for directed verdict argued plaintiff was a trespasser as a matter of law, and its subsequent motion for judgment notwithstanding argued there was insufficient evidence to support liability as to a licensee. Our Supreme Court held that the court and plaintiff were sufficiently alerted to legal issue of the plaintiff's entrant status.); Bauer v. Pounds, supra, 61 Conn.App. 33-36 (Defendant's motion for directed verdict argued that the plaintiff failed to prove the bus in question was owned by Connecticut Transit, while the motion to set aside argued that the plaintiff failed to prove the bus was owned by H.N.S. Management Co., Inc. It was held that the basis of both motions was that there was no evidence to prove ownership of the bus).
Generally, to completely waive a special defense a party must fail to specifically plead the defense or fail to sufficiently apprise the opposing party of the nature of the action. "Practice Book § 10-3(a) provides that [w]hen any claim made . . . in a . . . special defense . . . or other pleading is grounded on a statute, the statue shall be specifically identified by its number . . . By not specifically plea-ding the statue . . . in its special defense, the defendant waived its right to have [that defense] considered by the trial court . . .
"At the same time, our courts repeatedly have recognized that the rule embodied in Practice Book § 10-3 is directory and not mandatory . . . As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Citations omitted; emphasis in original; internal quotation marks omitted.) Ramondetta v. Amenta, 97 Conn.App. 151, 162, 903 A.2d 232 (2006). In the present case the defendant has specifically pled its special defense as well as briefed the issue during trial.
With this background in mind, the court must then examine whether the plaintiff has provided sufficient evidence to show that this action is not barred by the doctrine of governmental immunity. "The court `should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion . . .' A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). `[In deciding a motion for] judgment notwithstanding the verdict, we consider the evidence in the light most favorable to the [plaintiff].' Salaman v. Waterbury, [ supra, 246 Conn. 304]." Bauer v. Pounds, 61 Conn.App. 29, 40-41, 762 A.2d 499 (2000).
Question 2: Whether the alleged acts or omissions were discretionary or ministerial?
"The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . 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 . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49, 881 A.2d 194 (Conn. 2005). "Determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions." Violano v. Fernandez, 280 Conn. 310, 322, 907 A.2d 1188 (2006). Absent evidence that a policy or directive existed requiring the defendant to perform a particular duty, the conclusion that the allegedly negligent acts were discretionary in nature as a matter of law is proper. See Martel v. Metropolitan District Commission, supra, 275 Conn. 50-51.
In Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), the plaintiff, a young student, alleged that her teacher was negligent in the following ways: "(a) In that she was inattentive in that she did not pay proper attention to the safety of the students, including the minor plaintiff, when she opened the aforementioned door; (b) In that she opened the aforementioned door in a quick and abrupt manner, endangering the safety of the students, including the minor plaintiff, who were in the hallway; (c) In that she failed to warn the students in any manner that she was opening a door into a school hallway, when she knew or should have known that opening said door might cause injury or harm to the students including the minor plaintiff; [and] (d) In that she failed to ascertain whether or not students were in the pathway of the door as she opened it, when she knew or should have known that students could be in the hallway at the time." Id., 182 n. 3. The Appellate Court held that it was "apparent from the complaint that the plaintiffs [had] not alleged that the [teacher] was performing a ministerial duty. There is no allegation that [the teacher] was required to perform in a proscribed manner and failed to do so." Id., 182. Because "there was no directive describing the manner in which [the teacher] was to open doors," the court concluded "that [the teacher's] actions were discretionary in nature." Id., 183.
The allegations of the plaintiff's complaint in the present case are very similar to Colon. Here the plaintiff essentially alleged that defendant was negligent in the following respects: it failed to detect the broken locker or otherwise inspect, maintain, and repair the lockers. The defendant at trial has met its burden by providing testimony from the Building Superindentent, Mr. Turro, that it was left to the discretion of the individual custodians as to whether any particular condition detected at the school was of such a nature that it should be reported or repaired. See, e.g., Segreto v. Bristol, 71 Conn.App. 844, 857, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). The plaintiff has failed to provide any evidenee which would prove, as he alleged in his complaint, that there were any building codes or regulations which required the defendant to inspect or repair the gym lockers or put that fact in dispute in any way. Absent evidence of such a policy or directive that required the defendant to act in a particular manner, it must be concluded that the defendant, in determining whether to inspect, repair, and maintain the lockers, if at all, was engaged in duties that inherently required the exercise of judgment. See, e.g., Martel v. Metropolitan District Commission, supra, 275 Conn. 50. The court finds that the defendant's duty was discretionary as a matter of law.
Question 3: Whether the identifiable person/imminent harm exception to governmental immunity applies directly to municipalities, or whether a municipal employee must be specifically named as a defendant in the suit?
As the Supreme Court quoted in Martel v. Metropolitan District Commission, supra, "[a] municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: first, where 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 . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." 275 Conn. 49, n. 7.
The only exception applicable to this case is the identifiable person/imminent harm exception, which "requires three things: (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." Doe v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006). "If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." Violano v. Fernandez, supra, 280 Conn. 329.
To better understand the issue surrounding the exception, and some of the arguments made by the various Superior Courts, it is helpful to review the law of governmental immunity in Connecticut. "[A] municipality itself was generally immune from liability for its tortious acts at common law . . . [The Connecticut Supreme Court has] recognized, however, that governmental immunity may be abrogated by statute . . . Thus, the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003).
General Statutes § 52-557n abrogates that common-law immunity. It 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." General Statutes § 52-557n(a). Notably, the identifiable person/imminent harm exception developed at common law and applicable to municipal employees does not expressly appear in the statute.
A division of authority has arisen among the Superior Courts concerning whether the common-law identifiable person/imminent harm exception to a municipal employee's discretionary act immunity can apply in a suit brought directly against a municipality. This would open a municipality to liability in a suit where a municipal employee is not specifically named as a defendant.
In Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004), our Supreme Court commented on the identifiable person/imminent harm exception in a case where claims against the individual municipal employee had been withdrawn. It stated, solely by way of a footnote, that "there is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself, where 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 . . . That exception does not apply in this case because the claims against [the municipal employee] have been withdrawn." (Citation omitted, emphasis in original; internal quotation marks omitted.) Id., 677-78 n. 9. The court did not comment further, and the identifiable person/imminent harm exception was not at issue in the case.
Post- Pane, the majority of Superior Courts embraced the footnote, citing it when refusing to apply the exception directly against a municipality. In Disabella v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 0832044S (November 15, 2005, Keller, J.), the court, in addition to citing Pane, offered a deeper explanation of why the footnote made sense. "[T]he proper means to expose a municipality to liability in cases alleging imminent harm to identifiable persons is through the indemnification provisions of § 7-465. [U]nder Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), the town has no direct common-law liability. The holding of Williams is that town liability only arises by statute. Therefore, one must look to § 52-557n to define that direct liability and cannot rely on common-law exceptions regarding employee immunity . . . Section 52-557n(a) sets forth and circumscribes municipal liability generally and, it excludes liability for `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.' . . .
"When the Tort Reform Act of 1986, which spawned § 52-557n, was enacted, [the] legislature chose to omit the imminent harm to identifiable persons exception, applicable under the common law to employees, from § 52-557n(a) which pertains to the municipality itself . . . If the legislature wished municipalities to be subject to such an exception to governmental immunity, one would have expected to see that exception explicitly stated along with the other exceptions which were set forth. In short, the common-law imminent harm exception to qualified immunity for municipal employees is inapplicable to the direct liability imposed against a municipality under § 52-557n." (Citations omitted; internal quotation marks omitted.) See also Sanchez v. New Milford, Superior Court, judicial district of New Haven, Docket No. CV 01 0453299S (July 7, 2004, Arnold, J.); Gaudino v. East Hartford, 87 Conn.App. 353, 359, 865 A.2d 470 (2005); Cotto v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV 01 045489S (June 30, 2006, Corradino, J.); Bacchiocchi v. Carden, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 06 5000407S (Aug. 17, 2006, Sylvester, J.T.R.).
Our Supreme Court called into question the Pane footnote in Doe v. Petersen, supra, 279 Conn. 609. It stated that "[a]n exception to this immunity exists and municipalities are exposed to possible liability — 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 . . ." (Internal quotation marks omitted). In Doe, the municipal employee had withdrawn from the case, leaving the town of Wethersfield as the sole defendant. The court stated that its "inquiry focuses on the scope of this exception and whether it shields the town from liability for [the municipal employee's] allegedly negligent actions." Id., 616. The court proceeded to apply the identifiable person/imminent harm exception, but concluded that the plaintiff failed on the third prong of apparentness. "Although the court ultimately decided that exception was not available in that particular case, and that the town was thus immune from negligence liability for its employee's discretionary act, it never stated that the exception was per se inapplicable to claims against municipalities." (Emphasis in original.) Seri v. Newtown, 573 F.Sup.2d 661, 673 (D.Conn. 2008).
Although the court did not state precisely that the exception always applied to claims made directly against a municipality for the negligent discretionary acts of its employees, a number of Superior Courts have abandoned Pane and cite Doe for the proposition that a plaintiff may use the exception to attack a municipality's shield of immunity. In Conway v. New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 03 04800918 (March 21, 2007, Skolnick, J.T.R.) [43 Conn. L. Rptr. 177], the court stated that "the [ Doe] court, by discussing the identifiable person/imminent harm exception, tacitly indicated that the exception could apply in direct actions against a municipality." (Emphasis added.) In Susman v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0468497S (May 9, 2007, Skolnick, J.T.R.), the court cited the pre- Doe decision of Singletary v. Poynton, Superior Court, judicial district of New Haven, Docket No. CV 03 0473378S (June 1, 2006, Licari, J.), stating that "the only mention of this issue [in Pane] appears in a footnote in which by way of dicta at best the court makes a passing reference to the applicability of the exception to municipal employees but moves on without further discussion. The issue [is] not before the court . . . It would be a quantum leap to transform this cryptic observation into a general rule of law." Finally, in Rasmnus v. Plainville, Superior Court, judicial district of New Britain, Docket No. CV 044002902S (October 31, 2006, Shapiro, J.), the court stated that "this court must be guided by our Supreme Court's more recent, and more extensive, discussion of the subject, in Doe v. Petersen . . ." See also Kumah v. Brown, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 08 5015502S (January 7, 2009, Bellis, J.); Delgado v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 05 40078515 (February 7, 2007, Thompson, J.); Esposito v. Bethany, Superior Court, judicial district of New Haven, Docket No. CV 06 5002923S (February 14, 2007, Skolnick, J.T.R.) [43 Conn. L. Rptr. 7]; Shanley v. Branford, Superior Court, judicial district of New Haven, Docket No. CV 06 50047705 (April 22, 2008, Thompson, J.). Nevertheless, a number of Superior Courts continue to follow Pane. In Miller v. New Haven, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 03 01794165 (July 17, 2007, Gilligan, J.) [43 Conn. L. Rptr. 791], the court rejected Doe based on statutory interpretation, citing reasoning similar to that found in pre- Doe cases. "The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity. Williams v. New Haven, [ 243 Conn. 763, 766-67, 707 A.2d 1251 (1998] . Statutes that abrogate or modify governmental immunity are to be strictly construed . . . This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction . . . Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988). The court is to go no faster and no further than the legislature has gone . . . A legislative intention not expressed in some appropriate manner has no legal existence." Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975). There is no language in § 52-557n which can be reasonably construed to impose the `identifiable person/imminent harm' exception for discretionary acts on municipalities directly. Moreover, the language of § 52-557n(a)(1): `Except as otherwise provided by law' pertains only to state and federal statutes, not to the common law. Spears v. Garcia, 263 Conn. 22, 30, [ 818 A.2d 37] (2003)." It further stated that "the legislature has manifested its intention to abrogate governmental immunity only on the limited basis expressed in § 52-557n and the exception may not be asserted directly against the municipality.'" Id. Pane's conclusion was most recently addressed in Grady v. Somers, Superior Court, judicial district of Tolland, Docket No. CV 06 50005525 (March 26, 2008, Sferrazza, J.) [45 Conn. L. Rptr. 276]. In an action directed solely against the town of Somers, the court stated that "[b]ecause Williams v. New Haven . . . restricts direct municipal liability to that explicitly afforded by § 52-557n(a) and because § 52-557n(a) contains other exceptions to immunity but not the imminent harm exception, the court concludes that the imminent harm exception applies only to municipal employee liability and does not apply to direct liability of the municipal under § 52-557n. This conclusion is confirmed by the . . . footnote in Pane v. Danbury . . ." The court also reasoned that "the issue of whether the imminent harm exception applied to such direct statutory liability was never raised by the defendant," and that the court in Doe did not mean to overturn Pane. It came to this determination based on the Doe court's lack of comment, its failure to even mention Pane in its decision, and its failure to at least explain why precedent holding that common-law liability against a municipality was either being abandoned or is distinguishable. Id. It essentially determined that Superior Courts using Doe to make the identifiable person/imminent harm exception available to plaintiffs in direct suits against municipalities read too much into the decision. See also Winters v. Windsor, Superior Court, judicial district of Hartford, Docket No. CV 05 4011068S (December 14, 2006, Scholl, J.) (citing Pane as the Supreme Court authority to follow); Pagliaro v. City of Middletown, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 05 5000161S (September 12, 2006, Dubay, J.); Campbell v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV 04 500211S (March 30, 2007, Holden, J.); Benedict v. Norfolk, Superior Court, judicial district of Litchfield, Docket No. CV 5001211S (September 24, 2007, Pickard, J.) [44 Conn. L. Rptr. 240].
Doe remains the Supreme Court's most recent statement on the applicability of the identifiable person/imminent harm exception directly to municipalities. Furthermore, the court has not spoken since to address the split of authority among the Superior Courts. Given that the court does not state that the exception is per se inapplicable directly to municipalities, and that it applies the exception in a case where a municipality is the sole remaining defendant, it is submitted that this court should find that the identifiable person/imminent harm exception does apply directly to municipalities.
Question 4: Whether the evidence as summarized by the plaintiff could support a jury finding that the identifiable person/imminent harm exception applies.As discussed previously, the identifiable person/imminent harm exception, "requires three things: (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." Doe v. Petersen, supra, 279 Conn. 616. "If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." Violano v. Fernandez, supra, 280 Conn. 329.
When reviewing the sufficiency of the evidence, the inquiry is "whether the jury reasonably could have concluded, upon the facts found and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the necessary element." Bovat v. Waterbury, 258 Conn. 574, 593, 783 A.2d 1001 (2001).
The Supreme Court has also stated that it does not "sit as the seventh juror when . . . review[ing] the sufficiency of the evidence . . . rather [the court] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it . . . [A] fundamental [point] bear[s] emphasis . . . [T]he plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient."(Citations omitted; emphasis in original; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534-35, 733 A.2d 197 (1999).
Imminent Harm
In order for the exception to apply, the plaintiff must present evidence sufficient to establish that the harm he suffered — injury from a broken, jagged, rusty locker — was imminent. Imminent harm excludes perils "that could have occurred at any future time or not at all." Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989). "In order to meet the imminent harm prong of this exception to governmental immunity, the risk must be temporary and of short duration. Purzycki v. Fairfield, [ 244 Conn. 101,] 110, [ 708 A.2d 937 (1998).]" (Internal quotation marks omitted.) Eberle v. Coventry, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0078407S (July 21, 2003, Sferrazza, J.).
In Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), the plaintiff fell on a patch of ice while walking through the school's courtyard, a main accessway of the school campus. The court determined that "this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus." Id., 650.
By contrast, in Evon v. Andrews, supra, 211 Conn. 501, the court was presented with a claim against the city and its officials for failing to properly enforce certain regulations as the result of a fire that broke out in an apartment building. It held that the imminence requirement was not satisfied because "[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future." Id., 508. The court stated that "the fire could have occurred at any future time, or not at all." Id.
Our Supreme Court has had occasion to address the imminent harm exception in the context of a claim for negligent supervision of schoolchildren. In Purzycki v. Fairfield, supra, 244 Conn. 101, the court dealt with a case involving the school board's failure to properly monitor a school hallway. The child, who was dismissed for recess after lunch, ran down the hallway and another student tripped him, causing him injuries. The court found that the imminent harm "involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision. Finally, the risk of harm was significant and foreseeable, as shown by the principal's testimony `that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries.'" (Emphasis added.) Id., 110.
The plaintiff contends that the factual circumstances of its case are similar to those in Purzycki, and wishes to rely on its conclusion as to imminent harm. While the two cases share some factual similarities, Purzycki differs in two important respects. First, the foreseeable victims in Purzycki were elementary schoolchildren. This is significant because the Purzycki court stated that "[i]n [ Heigl v. Board of Education, supra, 218 Conn. 1, 8, 587 A.2d 423 (1991] we declared: `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 . . . The child in the present case was a second grade student and not a high school student." (Citation omitted.) Purzycki v. Fairfield, supra, 244 Conn. 114. The court distinguished between the supervisory needs of high school students and younger students. Second, the court relied on testimony by the school's principal stating that the board knew that children of that age would engage in horseplay if they were not properly supervised.
In the present case, the plaintiff pleads only a "failure to supervise the students to prevent them from going near the . . . dangerous condition." There is no mention in the pleadings of roughhousing or horseplay as the reason for the need to supervise. As previously discussed, there does not exist a specific duty to supervise high school students as may be the case with younger children. Furthermore, the plaintiff offered no evidence whatsoever to allow a jury to find that the harm was the result of a forseeable tendency of high school students to roughhouse in the absence of supervision, as was the case in Purzycki. The plaintiff also failed to bring forth any evidence to so much as raise an inference that there was a need to supervise, for example, based on a school official having actual knowledge of roughhousing by students in the vicinity of the defective locker, or evidence that this particular group of students involved in the incident engaged in horseplay. In short, the pleadings rely on the general duty to supervise in the area around the locker without specific facts to support why there existed a need to supervise in the first place. The plaintiff pleads as to the damaged locker but does not plead the need for supervision because of the potential for roughhousing that could lead to the very harm that ensued in this case.
Because Purzycki is not applicable to the facts of the present case, the question becomes whether there is sufficient evidence to show that the damaged locker itself, without the attendant need for supervision, presented a foreseeable dangerous condition that was limited in duration and geographic scope.
The plaintiff pleads that the defendant "permitted the broken, jagged, rusty locker to be exposed to persons required to be in the locker room." There are sufficient facts to show that the risk of injury from the defective locker is limited in geography because it is confined to the boys' locker room where the defective locker is located. This is similar to the ice in Burns, which met the geographical limitation because it was confined to a particularly "treacherous area of campus." The harm that met the plaintiff could not have occurred anywhere else in the school.
The plaintiff has not brought forth sufficient evidence on the temporal limitation. While the four or five minutes after gym class may be the time when the harm is most focused, the students could have committed the harm at another time, either before class or even at some other point throughout the day. It is important to note that the harm in Purzycki was deemed to be a temporary condition based on the principal's testimony that "every other aspect of the lunch period involved supervision." Purzycki v. Fairfield, supra, 244 Conn. 110. Therefore, there was a limited period of unsupervised time where the harm was focused. In the present case, however, there is no such limited period of time because, based on Heigl, there is no specific duty to supervise high school students. In addition, the plaintiff did not bring forth evidence that these students in particular required supervision.
In Burns, the court deemed the harm imminent because it was a "temporary icy condition." The area was harmful only so long as the ice was present. The broken rusty locker in the present case, however, had existed for seven months before the plaintiff was injured, according to evidence presented. The possibility for harm, then, existed for as long at the locker remained in its defective condition. Like the risk of fire in Evon, the harm could have happened at any time, or not at all. See also Rodriguez v. New Haven, Superior Court, judicial district of New Haven, Docket No: CV 00 0437974S (June 25, 2004, Licari, J.) (In a claim that the base under playground monkey bars consisting of soil over concrete rather than rubber or other protective materials rendered them defective and unreasonably dangerous, the court found these were "structural conditions present around the clock throughout the year"); Adams v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 06 4027110S (August 28, 2008, Bentivegna, J.) [46 Conn. L. Rptr. 305] (In a case where the plaintiff sustained injuries after being pushed by another student into a glass divider separating two staircases, the court found that the harm "could have happened at anytime since the installation of the glass divider, if at all"); Malloy v. Colchester, Superior Court, judicial district of New London, Docket No. X04 CV 000120896S (May 8, 2003, McLachlan, J.) [34 Conn. L. Rptr. 652], aff'd, 85 Conn.App. 627 (2004) (The dangerous condition created by a horse loose on the road was not limited in time "because the risk of danger existed the entire time the horse was loose. The horse could have been loose for minutes or hours, yet the risk continues for whatever length of time the animal is outside of the corral and roaming"); Doe v. Board of Education, 76 Conn.App. 296, 305, 819 A.2d 289 (2003) (In a case where a 12-year-old student traveled to her home room to get her lunch money and was sexually assaulted there, the court determined that the "harm . . . potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school").
There is no way to predict, by a preponderance of the evidence, when the imminent harm would have occurred, if at all. Therefore, there is no factual basis sufficient to demonstrate the risk of imminent harm, and the jury could not find that all the elements of the exception were met.
Identifiable Person and Apparentness of the Harm
According to Doe v. Petersen, 279 Conn. 607, 620-21, 903 A.2d 191 (2006), "[f]irst . . . the core requirements to the `imminent harm' exception are analyzed conjunctively. To prevail, the plaintiff must demonstrate that she was an identifiable person and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her. Demonstration of less than all of these criteria is insufficient . . . Second, the criteria of `identifiable person' and `imminent harm' must be evaluated with reference to each offer. 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 purposes of the `imminent harm' exception . . . it is impossible to be an identifiable person in the absence of any corresponding imminent harm." (Emphasis in original.) "All three of these factors are intimately tied to the question of forseeability, and all must be met for a plaintiff to overcome qualified immunity." Fleming v. Bridgeport, 284 Conn. 502, 533, 935 A.2d 126 (2007).
The "imminent harm" prong determines the applicability of the exception in this case. Absent an "imminent harm," then the "identifiable person" and "apparentness of the harm" prongs also cannot be met. While the plaintiff probably falls within an identifiable class of foreseeable victims, he was not a potential victim of a specific imminent harm, as required by Doe. Similarly, if the harm cannot properly be classified as "imminent," there cannot exist an individual to whom such an "imminent harm" was apparent.
Our Supreme Court has found the exception "to apply not only to identifiable individuals but also to narrowly identified classes of foreseeable victims . . . [S]chool children who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." Purzycki v. Fairfield, supra, 244 Conn. 108-09.
In keeping with the foregoing analysis, the court finds that the plaintiff has not produced sufficient evidence to support a showing of "imminent harm," and, therefore, the injured plaintiff does not satisfy the identifiable person/imminent harm exception in order to pierce the shield of governmental immunity. Thus governmental immunity insulates the City from the claim and verdict in this case.
The plaintiffs claim that the defense of government immunity is unavailable because it is barred by the general verdict rule. "Under the general verdict rule, `if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.'" Gajewski v. Pavelo, 229 Conn. 829, 836 (1994). Although there were no interrogatories addressed to the issue of sovereign immunity, since the issue is a legal one, this Court must decide it.
Conclusion
For the foregoing reasons, the Motion to Set Aside Verdict and the Motion for Directed Verdict are granted. Accordingly, judgment enters for defendant City of Middletown.