Opinion
No. TTD CV 10 6002121 S
October 27, 2011
MEMORANDUM OF DECISION
The defendants in this case are the town of Vernon; the Vernon Board of Education; Mary Conway, Vernon Superintendent of Schools; and Matthew Wlodarczyk, principal of the Skinner Road School, and they move for summary judgment based on qualified, governmental immunity.
Summary judgment shall enter if the pleadings and documentary proof submitted demonstrate that no genuine dispute exists as to material fact and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
An examination of the pleadings and documents submitted discloses that it is undisputed that on September 16, 2009, the plaintiff's young daughter, Brianna Murphy, was a student attending the Skinner Road School and was injured when she fell from monkey bars during recess. The apparatus had been in place and in use on the school's playground for some period of time before September 16, 2009.
The complaint alleges in the first and second counts, that the superintendent and principal, respectively, were negligent by allowing dangerous playground equipment to be installed at the school; for failing to inspect the playground properly; for hiring incapable staff; for failing to train staff properly; and for failing to promulgate policies and rules governing supervision of students during recess with respect to their use of playground equipment.
The school officials contend that governmental immunity entitles them to judgment as a matter of law because they are charged with negligence in the performance of discretionary acts incident to fulfilling their public duties. Municipal officials are cloaked with such immunity for the execution of discretionary, public acts. Evon v. Andrews, 211 Conn. 501, 506 (1989). Unquestionably, providing a safe, educational environment in public schools is a public function. The plaintiff conceded at oral argument that these officials possess such immunity unless the imminent harm to an identifiable person exception applies.
School children, who are compelled to attend school during set hours on a school day, can form a narrow, identifiable class so as to invoke this exception to governmental immunity. Purzycki v. Fairfield, 244 Conn. 101, 109 (1998); Burns v. Board of Education, 228 Conn. 640, 648-49 (1994). The defendants agree that Brianna Murphy was a member of such a narrowly defined, identifiable class.
The imminent harm exception requires the person seeking to benefit from it to prove "(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." Grady v. Somers, 294 Conn. 324, 350 (2009). "Imminent harm" excludes risks which might occur, if at all, at some unspecified time in the future. Evon v. Andrews, supra, 508. 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, supra, 110.
In the Burns case, supra, the peril was a temporary, icy condition on a school walkway. In Purzycki, supra, the danger zone was a hallway during a brief, unsupervised lunch recess. In Colon v. New Haven, 60 Conn.App. 178 (2000), the imminent harm was being struck by the isolated and immediate act of opening a door.
By contrast, in Evon v. Andrews, supra, the danger arose from continuously existing fire and building code violations which went uninspected and unremediated. In Doe v. Board of Education, 76 Conn.App. 296 (2003), a student was raped in an accessible, vacant classroom. The Appellate Court ruled that such a danger, as a matter of law, was too long in duration and nonspecific as to location to be considered as creating a risk of imminent harm. Id., 305-06.
Also, our Supreme Court has stressed that this exception to immunity also contains an "apparentness" element. Doe v. Petersen, 279 Conn. 607, 619 (2006). A municipal official has no liability for failing to protect an identifiable victim if the imminent harm was not reasonably apparent to the governmental agent. To overcome qualified, governmental immunity, the plaintiff must establish that the victim was an identifiable person, subjected to imminent harm by negligent conduct, despite the apparent likelihood of harm. Id., 620.
All of the specifications of negligence against the superintendent of schools and the principal allege delinquencies which occurred at times and places remote from the time and place of Brianna Murphy's fall and injury. The improper selection and installation of playground equipment, the improper hiring and training of staff, and the failure to promulgate safety rules all necessarily transpired well before the accident and, presumably, at some location other than the playground. Any harm created by these alleged improprieties would occur, if at all, at some unknown, future date relative to the purportedly negligent acts or omissions. Therefore, these assertions of negligent conduct cannot, as a matter of law, satisfy either the imminence or apparentness requirements necessary to overcome the governmental immunity which otherwise insulates these municipal officials from liability. Doe v. Petersen, supra, 620-21. "[T]he alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." Id.
Summary judgment is entered in favor of Wlodarczyk and Conway as to the counts of the complaint which pertain to them and the indemnification counts derivative of their liability, viz. counts one, two, five, and six.
Regarding the remaining counts, these allege direct liability of the town of Vernon and its Board of Education. Political subdivisions of the state, such as a municipality or a board of education, may incur direct liability under General Statutes § 52-557n where the imminent harm exception removes these entities from the protection of qualified, governmental immunity. Grady v. Somers, 294 Conn. 324, 332 (2009). Paragraph seven of the third and fourth counts also avers that the teachers assigned to monitor Brianna Murphy at the recess during which she fell "inappropriately supervised" the students in their care and caused her injuries.
The court holds that there exists a genuine, factual dispute surrounding the adequacy of this monitoring of students at the particular recess on September 16, 2009, during which Brianna Murphy fell. The trier-of-fact must determine whether the plaintiff proves any negligence on the part of these teachers at the time and place and whether the imminent harm exception to the governmental immunity conferred by § 52-557n obtains.
To recapitulate, the motion for summary judgment is granted as to counts one, two, five, and six and denied as to counts three and four but only with respect to the allegations of negligence by the teachers who monitored the recess of September 16, 2009.