Opinion
HHDCV196112394S
01-28-2020
Ryan Heslin PPA Stephen Heslin v. Town of South Windsor et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Taylor, Mark H., J.
MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 107
Mark H. Taylor, Judge
The defendants move to strike counts one, two, and three of the plaintiff’s complaint because they allege discretionary acts by municipal defendants and are therefore barred by the doctrine of governmental immunity, to which no exception is applicable pursuant to General Statutes § 52-557n. Subsection (a)(2) of § 52-557n, regarding municipal liability, provides in relevant part: "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." (Emphasis added.)
The plaintiff opposes the motion, asserting that the negligent performance of a ministerial duty is sufficiently alleged in the amended complaint for purposes of a motion to strike. As a matter of law, "municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319, 907 A.2d 1188 (2006). In the present case, the allegation is that the defendants negligently performed a ministerial duty alone. Therefore, a discretionary act analysis is inapplicable and the court need not evaluate the allegations under the exceptions permitted for, otherwise, discretionary acts such as an identifiable person subject to imminent harm. See id., 318-20.
Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive; see Violano v. Fernandez, supra, 280 Conn. 323-24; and "the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). Although evidence of a ministerial duty is provided by specific provisions of law and rules, as stated in Violano, the procedural context of the present motion involves allegations subject to a motion to strike and, therefore, evidence of such an alleged duty is not yet required for the court’s evaluation and analysis.
The issue before the court is the adequacy of the pleadings in this case, which allege a violation of a ministerial duty, resulting in harm to the plaintiff who was struck in the eye by a magnet thrown by another eighth grade student in an unsupervised classroom during school hours. In counts one, two and three, leveled against the town of South Windsor, the South Windsor Board of Education, and the plaintiff’s teacher, respectively, it is alleged that the negligent supervision of the plaintiff was in violation of school "policies, procedures, regulations, and/or handbooks ..." See Amended Compl., Count 1, ¶13(f) & (g); Count 2, ¶9(f) & (e); & Count 3, ¶8(e) & (f).
The court notes that in their opposition to the motion to strike, the defendants rely primarily upon cases in which summary judgment was denied for failure to adequately identify a ministerial duty. For example, in Rigoli v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5007920-S (February 6, 2012, Hiller, J.) (53 Conn.L.Rptr. 466), the plaintiffs alleged "that the defendant was required to perform certain acts in a prescribed manner and failed to do so. For example, the plaintiffs alleged that, in violation of the faculty handbook, the defendant failed to emphasize, illustrate, repeat, and make sure all students in the class understand the rules of behavior expected in the hallway." (Internal quotation marks omitted.) Id., 467. In evaluating this allegation for purposes of a motion for summary judgment, the court held that "[t]here is an insufficient factual record concerning these and other allegations to make summary judgment appropriate." Id. Similarly, in Lewis v. Newtown, 191 Conn.App. 213, 235, 214 A.3d 405, cert. denied, 333 Conn. 919, 216 A.3d 650 (2019), the Appellate Court upheld summary judgment against the plaintiff because the applicable guidelines "did not contain any language placing upon the school faculty and staff a ministerial duty to act in a specific manner in the event of an emergency ..."
The analysis applicable under a motion to strike, however, is distinguishable. "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any [pleading] ... to state a claim upon which relief can be granted ... A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ... [The court] take[s] the facts to be those alleged in the [pleading] ... and [it] construe[s] the [pleading] in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied ... A motion to strike is properly granted if the [pleading] allege mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318.
The language of the plaintiff’s complaint is challenged by the motion to strike because it does not specifically identify the policies, procedures, regulations, and/or handbooks the defendants negligently violated, leading to the plaintiff’s injury in an unsupervised classroom. In determining whether a ministerial duty is sufficiently alleged in the present case, the court finds the matter of Kumah v. Brown, 127 Conn.App. 254, 15 A.3d 1021 (2011), aff’d, 307 Conn. 620, 58 A.3d 247 (2013) to be instructive. In Kumah, the trial court struck the allegations of a violation of ministerial duties, after denying a request to revise the complaint to "[specify] each and every safety standard, rule, procedure and/or regulation that allegedly created a ministerial duty on the part of the [t]own and its agents." (Internal quotation marks omitted.) Id., 258. The Appellate Court reversed the trial court and found "[o]ur review of the record clearly demonstrates that the plaintiffs’ negligence counts were sufficient to overcome this threshold determination in the context of a motion to strike, and, therefore, the court’s conclusion to the contrary was improper." Id., 262.
The plaintiff here has alleged that the defendants failed to follow ministerial duties in a manner prescribed by policies, procedures, regulations, and/or handbooks. Specific policies must be identified during future, evidentiary proceedings before the court; however, at this juncture, the court finds that the plaintiff has sufficiently alleged a municipal liability claim against the defendants.
The defendants’ motion to strike is denied.