Opinion
CV156051932S
06-27-2016
Leticia Santana Lopez as Parent & Guardian of A.L. v. City of Bridgeport et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (NO. 117)
Barbara N. Bellis, J.
I
FACTS
The plaintiff, Leticia Lopez, as the parent and guardian of her minor son, Andre filed the nine-count complaint in this action against the city of Bridgeport (the city), the Bridgeport Board of Education (the board), Judith Rutter, Ruta Leonard, Ellyn Sitten, Renu Zammarieh, and Marisol Baez on August 28, 2015. On October 22, 2015, the board and the individual defendants filed a request to revise. The plaintiff submitted a revised complaint on November 20, 2015. Subsequently, on December 4, 2015, the plaintiff filed a request for leave to amend the complaint and an amended complaint, to which the defendants did not object. Count one of the amended complaint provides the factual basis for the remaining counts.
For purposes of this memorandum, Rutter, Leonard, Sitten, Zammarieh, and Baez will be referred to, collectively, as " the individual defendants."
In summary, the plaintiff alleges the following. In August of 2013, Andre was a fourteen-year-old special needs student in the special education classroom at Warren Harding High School (Harding) in Bridgeport. The special education class included twenty-five students who were developmentally disabled and with special needs, and who ranged in age from fourteen years old to twenty-one years old. The students were taught and supervised by two teachers, Rutter and Leonard, and four paraprofessionals, who included Sitten, Zammarieh, and Baez.
In teaching and supervising the special education students, the individual defendants had a ministerial duty to comply with the students' Individual Education Plans (IEPs) and Harding policy. Although aware of the responsibilities and duties that these sources imposed on them, on August 30, 2013, the individual defendants failed to comply with these requirements. As a result, on his way to lunch with the rest of the special education class, Andre entered the restroom unattended and unsupervised. An older, male special education student followed him into the restroom. For at least eight minutes, while other male special needs students watched, laughed, encouraged, and filmed, this other student sexually and physically assaulted Andre. Andre was left crying and bleeding on the bathroom floor. No one came to his aid.
Although Andre informed two of the individual defendants about the attack, no one notified the plaintiff. Instead, the plaintiff learned of the attack when her older son, another student at Harding, heard that a video of the attack was circulating throughout the school. Subsequently, the plaintiff brought suit alleging negligence against the individual defendants (count one) and the board (count six), negligent infliction of emotional distress against the individual defendants (count two) and the board (count seven), failure to provide a safe school setting in violation of General Statutes § 10-220 (count eight), and derivative claims, including indemnification (count three) and liability pursuant to General Statutes § 52-557n (count nine) against the board.
The plaintiff also asserted two indemnification claims (counts four and five) and liability pursuant to § 52-557n (count ten) against the city. The city did not join in this motion and therefore this memorandum does not discuss these counts.
On January 15, 2016, the individual defendants and the board (the defendants) filed a motion to strike counts one, two, three, six, seven, eight, and nine, accompanied by a memorandum of law. Specifically, the defendants move to strike: (1) counts one, two, six, and seven of the plaintiff's amended complaint, alleging negligence and negligent infliction of emotional distress against the individual defendants and the board, on the ground that the claims are barred by sovereign immunity; (2) count eight of the plaintiff's amended complaint, alleging negligence against the board based on the board's breach of the statutory duty imposed by General Statutes § 10-220 to provide a safe school setting, on the ground that the claim is barred by sovereign immunity or, in the alternative, governmental immunity; and (3) counts three and nine, which invoke liability under General Statutes § § 10-235 and 52-557n, on the ground that the claims are derivative and the underlying claims should be stricken. The plaintiff filed her memorandum of law in opposition to the motion to strike on February 16, 2016, to which the defendants replied on April 27, 2016. The court heard oral argument on May 2, 2016.
In their motion, initially the defendants mistakenly ask the court to strike count four as opposed to count three. Later in the same motion, the defendants identify the causes of action against the individual defendants and the board as the counts that they are moving to strike.
II
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a). " 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 considering a motion to strike, " [the court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [Accordingly] all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id. " [I]f a motion to strike attacks an entire count, but any part of the plaintiff's claims therein are legally sufficient, the motion will fail." (Internal quotation marks omitted.) Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-02-0175465-S (November 26, 2003, Gallagher, J.) (36 Conn.L.Rptr. 39, ).
A
Sovereign Immunity
As a preliminary matter, it is noted that, because " [t]he doctrine of sovereign immunity implicates subject matter jurisdiction [it is ordinarily raised via] . . . a motion to dismiss." (Internal quotation marks omitted.) Housatonic R.R. Co. v. Comm'r of Revenue Servs., 301 Conn. 268, 274, 21 A.3d 759 (2011). Nevertheless, " [a]ny party, or the court itself, can raise the issue of subject matter jurisdiction at any time. It matters not how or by whom the question of jurisdiction is raised." Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014). " Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
" The doctrine of sovereign immunity, which establishes that the state cannot be sued without its consent, is well recognized in Connecticut . . . The protection afforded by this doctrine has been extended to agents of the state acting in its behalf . . . Town boards of education, although they are agents of the state responsible for education in the towns, are also agents of the towns and subject to the laws governing municipalities." (Citations omitted.) Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982). " [O]ur jurisprudence has created a dichotomy in which local boards of education are agents of the state for some purposes and agents of the municipality for others." Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d 937 (1998), overruled in part on other grounds by Haynes v. Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014). " To determine whether the doctrine of sovereign immunity applies to a local school board, [courts] look to whether the action would operate to control or interfere with the activities of the state . . ." (Internal quotation marks omitted.) Purzycki v. Fairfield, supra, 112.
As a general rule, " [a] local board of education acts as an agent of the state when it performs those duties delegated to it by the state . . . A board of education acts as an agent of its respective municipality when it performs those functions originally entrusted by the state to the municipality that the municipality has subsequently delegated to the board of education . . ." (Citations omitted.) Board of Education v. New Haven, 237 Conn. 169, 181, 676 A.2d 375 (1996). For example, " the furnishing of an education for the public is a state function and duty"; Cheshire v. McKenney, 182 Conn. 253, 257, 438 A.2d 88 (1980); while the " [t]he duty to supervise students is performed for the benefit of the municipality." Purzycki v. Fairfield, supra, 244 Conn. 112. Accordingly, actions taken in furtherance of the former duty are protected by sovereign immunity, while actions taken in furtherance of the latter are not.
1
Sovereign Immunity as to Counts One, Two, Six, and Seven
In counts one, two, six, and seven, the plaintiff alleges negligence and negligent infliction of emotional distress against the defendants. The defendants argue that the alleged actions and omissions stem from their providing special education services pursuant to a delegated state responsibility. Relying on a finite line of Superior Court decisions and their progeny, including related federal court cases, the defendants conclude that they are therefore immune from suit. The plaintiff challenges the significance of the rulings on which the defendants rely and avers that binding law has determined that sovereign immunity does not apply when school boards are carrying out a duty to supervise students. In addition, the plaintiff distinguishes the present case from the cases on which the defendants rely; here, the plaintiff avers, she has alleged a general violation of the duty to supervise, independent of Andre's being a special education student.
Whether claims stemming from the violation of duties imposed by special education mandates are barred by sovereign immunity is unclear. The defendants have correctly identified a line of cases that supports the application of sovereign immunity to such allegations. If the court were to elect to follow this nonbinding line of cases, sovereign immunity would apply as a bar to the portions of the complaint; Paragon Constr. Co. v. Dep't of Pub. Works, 130 Conn.App. 211, 221 n.10, 23 A.3d 732 (2011); that allege violations of a duty imposed by Andre's and other students' Individual Education Plans. For the following reasons, the court does not elect to do so.
The cases on which the defendants rely trace back to Crandall v. Board of Education, Superior Court, judicial district of New London at Norwich, Docket No. 102935 (November 26, 1993, Hendel, J.) (10 Conn.L.Rptr. 430, ). In Crandall, the plaintiff, a special education student, alleged that she was subjected to abuse by transportation aides employed by the defendant board of education. Id., 430, . Specifically, the complaint alleged negligence against the board for failure to properly hire, train, and discipline aides, and for failure to provide appropriate transportation as required by § 10-76d-10 of the Regulations of Connecticut State Agencies. Id. The board moved to strike part of the plaintiff's complaint on the basis of sovereign immunity. Id. The plaintiff conceded that the defendant was entitled to the protection of sovereign immunity for the act of providing special education services, but argued that sovereign immunity did not apply to the duty to provide transportation in connection with these services. Id. Citing Cheshire v. McKenney, supra, 182 Conn. 258, the court held that " [i]n developing and maintaining a special education program, a board of education acts under state mandate, and, thus, as an agent of the state." Crandall v. Board of Education, supra, 431, .
The rule from Crandall was adopted in Todd M. v. Richard L., 44 Conn.Supp. 527, 696 A.2d 1063 (1995). In Todd M., the minor plaintiff was a special education student who was transported to school in accordance with the individualized education program developed for him as mandated by statute. Id., 538. The plaintiffs alleged that the defendants were negligent in the provision, selection, and conduct of the minor plaintiff's transportation to and from elementary school. Id., 528. The defendants asserted numerous special defenses, including that the claims were barred by the doctrine of sovereign immunity, which the plaintiffs moved to strike. Id., 528-30. Citing Cheshire v. McKenney, supra, 182 Conn. 258, and echoing the language from Crandall, the court held that " [i]n developing and maintaining a special education program, a board of education acts under state mandate and, thus, acts as an agent of the state." Todd M. v. Richard L., supra, 539. As in Crandall, the court reasoned that " [t]he transportation of [the special education strident] . . . involved duties and activities for which the board was responsible as an agent of the state." Id. The court concluded that " [s]ince the provision of special education services, which specifically include transportation as part of an individualized education plan, is carried out by a board of education pursuant to a specific educational mandate of the state, the doctrine of sovereign immunity applies and bars the plaintiffs' claims of negligence . . ." Id., 541.
In 2000, the legislature amended General Statutes § 52-557 to eliminate sovereign immunity as a defense in the context of transportation of a student. Public Acts 2000, No. 00-133.
The seemingly settled law from the above cited cases--that, in developing and maintaining a special education program, a board of education acts under state mandate and thus acts as an agent of the state--has been adopted and applied in a variety of contexts. For example, the United States District Court for the District of Connecticut has relied on this language numerous times. See, e.g., M.H. v. Board of Education, 169 F.Supp.2d 21 (D.Conn. 2001) (relying on Crandall and Todd M . for the conclusion that claims stemming from the defendants providing special education services were barred by sovereign immunity); see also Doe v. Wilson, United States District Court, Docket No. 3:05-cv-482, (WWE) (D.Conn. February 18, 2010) (citing M.H. and Todd M . in support of the proposition that " [s]overeign immunity has been extended to employees of local boards of education providing special educational services with regard to tort claims arising from their state-mandated duties to provide such services").
The legislature has also relied on this language. Specifically, in discussing House Bill No. 5610, an Office of Legislative Research Bill Analysis explains that " [the] Supreme Court has held that school boards implementing state-mandated special education programs are acting as agents of the state, and are thus immune from suit (Cheshire v. McKenney, supra, 182 Conn. 258)." House of Representatives, An Act Concerning the Protection of Children Being Transported to School, March 23, 2000, available at https://www.cga.ct.gov/2000/fc/2000HB-05610-R000221-FC.htm, last visited June 24, 2016. The Bill Analysis also cites Todd M . for the rule that " sovereign immunity bars special education students' suits against school boards for injuries occurring in vehicles the board provided to take them to school."
The court finds the sources discussed above to be unpersuasive for numerous reasons, most of which are explained in Nisinzweig v. Kurien, Superior Court, judicial district of Stamford-Norwalk, Docket No. X05-CV-96-0150688-S (August 21, 2001, Tierney, J.) (30 Conn.L.Rptr. 342, ). First, from Crandall onward, Cheshire v. McKenney, supra, 182 Conn. 258, is credited as the source of the rule that a board of education acts as an agent of the state when developing and maintaining a special education program. " Cheshire v. McKenney . . . involved a quo warranto action brought concerning a Cheshire teacher who wished to simultaneously retain an elected position as a councilman at-large in the town of Cheshire along with his current teaching position. The court held that 'furnishing of an education for the public is a state function and duty.' . . . 'There is no question but that local boards of education act as agencies of the state when they are fulfilling the statutory duties imposed upon them pursuant to the constitutional mandate of article eighth, § 1 . . . Local boards of education are also agents of the municipality that they serve, however. This court has recognized that the state, in the exercise of its policy to maintain good public schools, has delegated important duties in that field to the town.' . . . Cheshire v. McKenney broke no new ground and did not discuss special education . . ." (Citations omitted; internal quotation marks omitted.) Nisinzweig v. Kurien, supra, 353, . Accordingly, the reliance on Cheshire, and therefore Crandall, is misplaced. Second, following Todd M., the legislature specifically deemed the conclusion from Todd M., which created a different standard for special education students than all other students in the context of transportation, to be incorrect. See Nisinzweig v. Kurien, supra, 353, . As is explained above, Todd M . relied on Crandall which relied on Cheshire; accordingly, the conclusion from all three cases has been called into question. Third, in most situations, the school board acts as an agent of the municipality and not the state. Nisinzweig v. Kurien, supra, 350, (citing Superior Court decisions). Finally, " [t]he IEP is a form of contract made between the local board of education and the parents." Id., 358, . A school board may be held liable for breach of a contract that does not " operate to control the activities of the state or subject it to liability." Cahill v. Board of Education, supra, 187 Conn. 102.
In addition to the reasons as stated in Nisinzweig, the court declines to adopt the defendants' argument because Crandall and therefore its progeny are distinguishable from the present case. As a preliminary point, in Crandall, " [t]he plaintiff concede[d] that the defendant [was] entitled to the protection of the doctrine of sovereign immunity for the act of providing special education services." Crandall v. Board of Education, supra, 10 Conn.L.Rptr. 430, . Here, the plaintiff has not done so. Furthermore, Crandall predates Purzycki v. Fairfield, supra, 244 Conn. 101. In Purzycki, a student was injured on his way to recess when another student tripped him in an unmonitored hallway. Id., 104. The defendants were aware that students repeatedly violate the rules and will engage in horseplay when left unsupervised. Id., 110-11. The court characterized the defendants' breach as a failure to supervise and stated that the duty to supervise is provided for the benefit of the municipality. Id., 112. Accordingly, the court refused to extend sovereign immunity. Id. In the present case, no reason appears why the duty to supervise students with special needs would not be considered the same. Finally, the Crandall court concluded that, in providing appropriate transportation as specifically required by § 10-76d-19 of the Regulations of Connecticut State Agencies, the board acted as an agent of the state. Crandall v. Board of Education, supra, 431, . Here, the plaintiff has not alleged a violation of the regulatory duty to provide adequate transportation. In fact, the plaintiff has not alleged a violation of any comparable statutory or regulatory duty. Instead, the plaintiff's allegations stem from the alleged failure to supervise students, who happened to be special needs students, in violation of Individual Education Plans, as against school policy, and in violation of the defendants' duty to supervise and ensure the safety of their students.
Whereas Crandall is distinguishable, the court finds Doe v. Klingberg Family Centers, Superior Court, judicial district of New Britain, Docket No. CV-00-504520 (August 15, 2001, Shortall, J.) (30 Conn.L.Rptr. 256, ), to be instructive. In that case, the plaintiff special education student asserted claims of negligent supervision, negligent failure to implement and/or enforce policies and/or procedures for the prevention of sexual abuse, and negligent infliction of emotional distress against the defendant board of education. Id., 256-57, . The allegations were unrelated to transportation services. Id., 256, . The board of education moved to strike the claims on the ground of sovereign immunity. Id., 257, . Electing to follow " the majority of cases which have considered the availability of sovereign immunity as a defense to allegedly tortious conduct on the part of teachers or other employees of local boards"; id., 258, ; and rejecting the rationale from Todd M . and Crandall, the court explained: " There is no way that this action would operate to control the activities of the state or subject it to liability. Any judgment for the plaintiff here would be the responsibility of the municipality not the state. The state is not the real party in interest; the board and the municipality are." (Citation omitted; internal quotation marks omitted.) Id. Accordingly, sovereign immunity did not apply. Id.
In sum, there is no appellate authority and inconsistent Superior Court law on this subject. The defendants have not demonstrated how this action would operate to control the activities of the state or subject it to liability. Therefore, indulging every presumption favoring jurisdiction, the defendants' motion to strike counts one, two, six, and seven of the amended complaint is denied.
2
Sovereign Immunity as to Count Eight
In count eight, the plaintiff alleges that the board breached its statutory duty, pursuant to General Statutes § 10-220, to provide Andre with a safe school setting. As a preliminary matter, the court recognizes that the plaintiff is not alleging a direct cause of action for the board's violation of § 10-220. In her opposition to the motion to strike, in response to the defendants' confusion, the plaintiff states that " [c]ount [e]ight asserts a negligence claim based upon the [b]oard's breach of the statutory duty imposed by [§ 10-220] to provide a safe school setting." The defendants do not argue against a plaintiff's ability to assert a negligence claim in such a way.
General Statutes § 10-220, in relevant part, provides: " Each local or regional board of education . . . shall provide an appropriate learning environment for all its students which includes . . . a safe school setting . . ."
Unless expressly or impliedly provided for, a plaintiff cannot bring a direct cause of action for violation of a statute. Gerardi v. Bridgeport, 294 Conn. 461, 468, 985 A.2d 328 (2010). Section 10-220 does not expressly provide for a direct cause of action and the plaintiff has not demonstrated that one implicitly exists.
In their memorandum in support of their motion to strike, the defendants argue that the plaintiff's claim arising under § 10-220 must be stricken because the board is entitled to sovereign immunity. The defendants' entire argument in regard to the application of sovereign immunity rests on a comparison of § 10-220 to General Statutes § 10-222d. The defendants contend that courts have repeatedly found that negligence claims based on § 10-222d are barred by the doctrine of sovereign immunity. Therefore, because the structure and purpose of both statutes are similar, they argue, negligence claims based on § 10-220 should also be barred. In response, the plaintiff summarily relies on her previous argument against sovereign immunity as to the earlier counts.
Pursuant to the relevant portion of § 10-222d, " [e]ach local and regional board of education shall develop and implement a safe school climate plan to address the existence of bullying and teen dating violence in its schools."
There is no appellate authority on this issue. Nunes v. Blake Bus Service, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-90-030469-S (January 4, 1991, Mancini, J.) (3 Conn.L.Rptr. 116, ), is the most instructive Superior Court case. In Nunes, the plaintiff brought an action to recover damages for injuries sustained while she was riding a school bus. Id., 117, . In her second count, the plaintiff alleged negligence against the local board of education for failure to contract for safe bus service. Id. The board moved to strike this count on the ground that it was an agent of the state entitled to sovereign immunity. Id. In denying the motion, the court explained: " General Statutes § 10-240 provides, in part: 'Each town shall through its board of education maintain the control of all of the public schools within its limits.' . . . Local boards of education act on behalf of the municipality, then, in their function of maintaining control over the public schools within the municipality's limits . . . [General Statutes] § 10-220(a) provides, in pertinent part, that each local board of education 'shall . . . provide for the transportation of children wherever transportation is reasonable and desirable, and for such purpose may make contracts covering periods of not more than five years." (Emphasis in original.) Id., 118, . As the Nunes court points out, Cheshire v. McKenney, supra, 182 Conn. 258 n.5, confirms that, when read together, § § 10-240 and 10-220 obligate the school board, as an arm of the municipality, as opposed to the state, to fulfill certain obligations. With regard to these obligations, the school board is therefore not entitled to sovereign immunity.
The present case is analogous. Here, the plaintiff has brought an action to recover for injuries sustained while her son was in the care of the school. In her eighth count, the plaintiff alleges negligence against the board for failure to provide a safe school setting in violation of § 10-220. The board has moved to strike this count on the ground that it is an agent of the state entitled to sovereign immunity. As the court explained in Nunes, based on a reading of § § 10-240 and 10-220, local boards of education act on behalf of the municipality when they carry out duties imposed by § 10-220(a). Therefore, sovereign immunity does not apply to claims asserting a violation of § 10-220.
The court finds the reasoning from Nunes, supplemented by the footnote from Cheshire, to be more persuasive than the defendants' analogy to § 10-222d. First, the defendants merely argue that the two statutes are analogous, but do not provide any legal support of this claim. Second, the defendants put forth a single Superior Court decision in support of their argument that sovereign immunity bars claims brought pursuant to § 10-222d. The case on which the defendants rely specifically states that the decisions of the Superior Court have not analyzed the issue in a consistent way. C.M. v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-14-6045516-S (March 6, 2015, Nazzaro, J.) (60 Conn.L.Rptr. 105, ). Furthermore, courts have also found that sovereign immunity does not bar negligence claims based on § 10-222d. See., e.g., Hernandez v. Board of Education, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5010484-S (June 7, 2013, Sequino, J.) (56 Conn.L.Rptr. 311, ).
Furthermore, when the Superior Court has faced negligence claims arising under § 10-220, the court has routinely analyzed the claims under governmental, as opposed to sovereign, immunity. For example, in Travaglino v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV-11-6020569-S, (August 11, 2014, Wilson, J.), the plaintiff alleged negligence against a local board of education pursuant to General Statutes § 10-220. The defendants argued that they were immune from liability under governmental immunity. Agreeing with Superior Court decisions " that have held that the supervision of students inherently involves the exercise of discretion"; id.; the court concluded that " all of the board members are protected from liability both individually and as agents of the city . . ." Id. Because the application of governmental immunity requires a municipal function; see, e.g., Haynes v. Middletown, supra, 314 Conn. 312; these decisions necessarily imply that a board of education acts as an agent of the municipality, and not the state, when carrying forth the mandates prescribed by § 10-220. These decisions further support the conclusion that sovereign immunity does not apply to count eight.
B
Governmental Immunity
Preliminarily, the court recognizes that, as a general rule, " governmental immunity must be raised as a special defense in the defendant's pleadings." Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). Nonetheless, " there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, where it 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." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116 n.4, 19 A.3d 640 (2011).
In the present case, it is apparent from the face of the allegations comprising count eight of the complaint that the defendants were engaging in a governmental function. As is stated in the preceding section, the plaintiff alleges that the defendants failed to properly supervise Andre and his classmates. " The duty to supervise students is performed for the benefit of the municipality." Purzycki v. Fairfield, supra, 244 Conn. 112. In addition, the plaintiff has not objected to the defendants' assertion of governmental immunity via a motion to strike. Instead, the plaintiff argues that the doctrine does not apply. Accordingly, the court will consider the issue. See Doe v. Board of Education, 76 Conn.App. 296, 299 n.6, 819 A.2d 289 (2003) (permitting defendant to assert governmental immunity via motion to strike where " the plaintiff has not objected to the defendant's use of a motion to strike for adjudication of the applicability of the exception to governmental immunity . . . has not argued that she needs an opportunity to plead additional facts . . . [and] [o]n the contrary . . . maintains that the facts set forth in the complaint are sufficient to establish the applicability of the identifiable person-imminent harm exception").
" The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n." (Internal quotation marks omitted.) Martin v. Westport, 108 Conn.App. 710, 729, 950 A.2d 19 (2008). " [Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties . . . [Section] 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the 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." (Internal quotation marks omitted.) Haynes v. Middletown, supra, 314 Conn. 312. " In contrast, 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." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006). " [M]unicipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists." Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010).
" [The Connecticut Supreme Court] has recognized an exception to discretionary act immunity that allows for 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 . . . This identifiable person-imminent harm exception has three requirements: (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 . . . All three must be proven in order for the exception to apply." (Internal quotation marks omitted.) Haynes v. Middletown, supra, 314 Conn. 312-13.
In their memorandum in support of their motion to strike, the defendants argue that the allegations in count eight fall within the immunity that is carved out by General Statutes § 52-557n(a)(2)(B) for discretionary acts. Relying on two Superior Court decisions, the defendants contend that " [s]everal courts have already reviewed § 10-220 and concluded that it allows boards of education discretion when implementing the duties set forth in that statute." Essentially, the defendants argue that § 10-220 mandates that boards must generally provide a safe school setting and that, in implementing this general obligation, the board makes discretionary decisions that are entitled to governmental immunity.
The plaintiff contends that this argument lacks merit and must be rejected. First, the plaintiff argues that the defendants' duty to safely supervise Andre was a ministerial, nondiscretionary duty. The duty, which was to protect a special needs student from the known risk of sexual and physical assault, was to be performed in a prescribed manner-by providing one-on-one supervision when Andre was removed from the classroom; there was no room for the exercise of judgment or discretion. Second, the plaintiff argues that, even if this duty was discretionary, Andre was an identifiable victim subject to imminent harm. Therefore, governmental immunity does not apply.
The court first considers whether the actions were discretionary or ministerial. Count eight is composed of the sixty-eight paragraphs that make up count one (negligence against the individual defendants), the seven paragraphs that make up count six (negligence against the board), and the five paragraphs that make up count seven (negligent infliction of emotional distress against the board). In addition, the plaintiff adds two paragraphs: (1) the board breached its statutory duty, pursuant to § 10-220, to provide Andre with a safe school setting and (2) as a result of the board's breach, Andre was physically and sexually assaulted and suffered damages.
These combined eighty-two paragraphs allege violations of duties imposed by essentially five sources: (1) Andre's and other students' Individual Education Plans; (2) school policy; (3) the normal practice of the special education classroom professionals; (4) the general responsibility to supervise; and (5) the " safe school setting" provision from § 10-220. The court agrees with the line of Superior Court decisions that have determined that the latter two duties are discretionary. See, e.g., Travaglino v. East Haven, supra, Superior Court, Docket No. CV-11-6020569-S, ; Strycharz v. Cady, Superior Court, judicial district of New London, Docket No. CV-09-5013484-S (November 7, 2013, Devine, J.) (51 Conn.L.Rptr. 261, ); Silano v. Board of Education, 52 Conn.Supp. 42, 23 A.3d 104, aff'd, 129 Conn.App. 682, 21 A.3d 899 (2011). To carry them out, the board would have to exercise judgment and discretion. Therefore, the general rule of immunity is triggered.
This conclusion is not dispositive. At the motion to strike stage, if any part of a claim is legally sufficient, the motion will fail as to that claim. In her amended complaint, count one, paragraph 16, the plaintiff alleges that " [e]ach of the defendants had a non-discretionary, ministerial duty to comply with the supervision requirements in Andre's IEP." In count one, paragraph 19, the plaintiff alleges that " [a]s of August 30, 2013, when the paraprofessionals . . . took the special needs students out of the classroom to go to the school cafeteria for lunch their usual practice was that one paraprofessional was in the front of the line, two were somewhere in the middle, and the last paraprofessional was towards the back." Additionally, in paragraph 31, the plaintiff alleges that " [i]n order to ensure the safety and well-being of the special needs students, the policy at Harding in August 2013 was to allow only one student at a time to use the restroom." Read in the light most favorable to sustaining this count's legal sufficiency, these two paragraphs allege policies that limit the discretion that can be exercised in the completion of otherwise discretionary acts. See, e.g., Kumah v. Brown, 127 Conn.App. 254, 258, 262, 14 A.3d 1012 (2011) (finding allegations that " actions and omissions . . . were ministerial to the extent there exist[ed] prescribed standards, regulations, rules and/or procedures requiring that . . . municipal officials perform their duties in . . . a prescribed manner without the exercise of judgment or discretion" were sufficient to survive a motion to strike based on governmental immunity), aff'd, 307 Conn. 620, 58 A.3d 247 (2013). Therefore, as omissions that occur despite such policies (complaint, count one, ¶ ¶ 20, 32) would be violations of ministerial duties, the general rule of governmental immunity does not apply.
Although the court has determined that the alleged misconduct was in violation of ministerial duties and that therefore governmental immunity does not apply, had the court determined that the duties were discretionary, the court would next proceed to examining whether the claims in count eight fall within the identifiable person-imminent harm exception to that immunity. The result would be the same. As is stated above, the " identifiable person-imminent harm exception has three requirements: (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 . . . All three must be proven in order for the exception to apply." (Citations omitted; internal quotation marks omitted.) Haynes v. Middletown, supra, 314 Conn. 312-13. The defendants recognize that public schoolchildren are an identifiable class of victims. Accordingly, the court must determine whether the facts alleged in the complaint are sufficient to establish that schoolchildren, including Andre, were subjected by the defendants to imminent harm and that the imminent harm was apparent to the defendants.
In Haynes v. Middletown, supra, 314 Conn. 303, the Supreme Court held that " the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." Id., 322-23. The focus of the analysis is whether " the imminence of harm [is] intrinsically related to the probability that the harm [will] occur due to the dangerous condition." Williams v. Housing Authority of Bridgeport, 159 Conn.App. 679, 703, 124 A.3d 537, cert. granted on other grounds, 319 Conn. 947, 125 A.3d 528 (2015). Courts should consider " the magnitude of the risk that the condition create[s] . . . associated . . . with the probability that harm [will] occur . . ." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id.
In their reply to the plaintiff's opposition memorandum, the defendants contend that the allegations do not meet this standard. Based on the factual predicate of Haynes v. Middletown, supra, 314 Conn. 303, the court disagrees. In Haynes, the plaintiff was engaged in horseplay with other students in a locker room when another student pushed him into a locker with an exposed jagged and rusted edge. Id., 308. " The evidence showed that the school had informed students in writing at the beginning of the school year that horseplay in the locker room was prohibited. There was also evidence that school officials knew that horseplay in the locker rooms was an ongoing issue. In addition, there was evidence that the locker was in a dangerous condition and that it had been in that condition since the beginning of the school year, seven months before the injury occurred." Id., 325. Based on this evidence, the court concluded that a reasonable person could find that " it was apparent to school officials that, in combination, the ongoing problem of horseplay in the locker room and the presence of the broken locker were so likely to cause an injury to a student that the officials had a clear and unequivocal duty to act immediately to prevent the harm either by supervising the students while they were in the locker room to prevent horseplay or by fixing the broken locker [and therefore] that the plaintiffs had established the imminent harm to identifiable persons exception to governmental immunity." (Footnote omitted.) Id., 325-26. In reaching this decision, the court commented that " [the] evidence [was] far from compelling"; id., 325; which demonstrates that the evidence presented in Haynes represents a minimum standard that a plaintiff must reach in order to establish the imminent harm to an identifiable person exception.
In the present case, the facts alleged are compelling. The allegations show that the school had a policy, enacted to ensure the safety of special needs students, that prohibited more than one person to use the restroom at a time. There are also allegations that the individual defendants knew that Andre and the other students required focused supervision when transitioning from the classroom to the cafeteria, knew that Andre was unable to protect himself from sexual and physical assault, and knew that Andre would be exposed to danger if left unsupervised. Furthermore, the special education teachers and paraprofessionals observed a practice of staggering the paraprofessionals throughout the line of students when they left the classroom to go to lunch. Finally, there are allegations that the defendants were aware of the ages, disabilities, and predispositions of the students in the class. In sum, the defendants adopted, but did not follow, measures to prevent students from being injured in specific ways; the magnitude of the risk was great and the probability that harm would occur was high. If a reasonable person could conclude that the evidence in Haynes demonstrated a danger that was so likely to cause an injury to a student that the officials had a clear and unequivocal duty to act immediately to prevent the harm, a reasonable person could surely do so in this case as well, if the facts alleged were to be proven at trial. Accordingly, the plaintiff has alleged facts in count eight that bring the claims presented within the identifiable person-imminent harm exception to governmental immunity.
For all of the foregoing reasons, the defendants' motion to strike count eight is denied.
III
CONCLUSION
The defendants' motion to strike is denied in its entirety. As to counts one, two, six, and seven, sovereign immunity does not apply. As to count eight, neither sovereign immunity nor governmental immunity applies. As to counts three and nine, because the underlying claims have not been stricken, these derivative claims cannot be stricken on the ground asserted in the motion.
In their motion to strike and memorandum in support of their motion, the defendants argue that counts three and nine are derivative and, once the underlying claims are stricken, the remaining indemnification claims must be stricken as well. In their reply to the plaintiff's opposition, the defendants assert new arguments regarding counts three and nine. However, as is stated above, " [i]n ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, supra, 182 Conn. 140.