Opinion
No. CV 09 5013690
March 24, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 113)
Facts and Procedural History
The plaintiffs, Jamie Wilson and her son, Issiah Wilson-Hewitt, bring this action against the defendants, the Norwich Board of Education ("Board"), the city of Norwich, and Susan Bailey. In their twenty-count complaint, filed November 9, 2009, the plaintiffs allege that Bailey, an elementary school counselor, spat in Issiah's face while disciplining him on December 17, 2007. The defendants filed this motion for summary judgment and memorandum in support on November 1, 2010.
On November 24, 2010, the court granted the plaintiffs' motion for an extension of time to respond to the defendants' motion. Thereafter, on January 18, 2011, the plaintiffs filed their objection to summary judgment, along with their memorandum in opposition, and several exhibits. The defendants filed their reply on January 24, 2011. The parties appeared for oral argument at short calendar on February 7, 2011.
Discussion
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendants argue that they are entitled to summary judgment on the plaintiffs' negligence counts based upon the doctrine of government immunity. As against the Board, counts one and two allege negligence and counts five and six allege negligent infliction of emotional distress. As against Norwich, counts seven and eight allege negligence and counts eleven and twelve allege negligent infliction of emotional distress. As against Bailey, counts thirteen and fourteen allege negligence and counts seventeen and eighteen allege negligent infliction of emotional distress. The defendants also seek summary judgment as to counts fifteen and sixteen, which allege intentional infliction of emotional distress against Bailey.
The plaintiffs concede that the defendants are entitled to summary judgment as to counts three, four, nine and ten, which allege that the Board and Norwich are liable for intentional infliction of emotional distress. In their brief, the plaintiffs agree with the defendants' argument that General Statutes § 52-557n(a)(2)(A) expressly provides for immunity for municipalities in connection with claims for intentional torts by its employees. That section states: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . ."
The court will first address the application of the doctrine of governmental immunity as it relates to the plaintiffs' negligence counts. The court will conclude its decision by addressing the intentional infliction of emotional distress claim against Bailey.
Statutory Basis for Governmental Immunity
First, the defendants contend that the plaintiffs have failed to advance any statutory basis for abrogating the defendants' government immunity. The plaintiffs counter that their complaint specifically references § 57-557n, which allows for governmental liability. Indeed, paragraph twelve of count one, against the Board, and paragraph twelve of count seven, against Norwich, both state: "This action is brought pursuant to General Statutes section 52-557n."
In Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003), the Appellate Court concluded that the trial court improperly granted the defendants' motion for summary judgment on the basis of governmental immunity and the plaintiffs' failure to plead the statute abrogating that immunity. In addressing the latter, the court stated: "[T]he plaintiffs in the present case relied on the statute in their memorandum of law in opposition to the motion for summary judgment and in oral argument before the trial court. That sufficiently apprised the defendants that the plaintiffs were relying on § 52-557n to abrogate governmental immunity. Under the circumstances of this case, the defendants cannot complain of unfair surprise." Id.; see also Colon v. New Haven, 60 Conn.App. 178, 188 n. 4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). Therefore, the court is satisfied that the plaintiffs have sufficiently apprised the defendants of their intent to rely upon § 57-557n in abrogating governmental immunity by specifically pleading the statute in their complaint.
Whether the Acts Complained of Are Ministerial or Discretionary
Next, the defendants contend that the acts complained of by the plaintiffs are public, discretionary acts, which entitle them to governmental immunity. The plaintiffs counter that the acts complained of are ministerial.
"Section 52-557n . . . specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity." (Citation omitted.) Durrant v. Board of Education, 284 Conn. 91, 105, 931 A.2d 859 (2007). Section 52-557n(a)(1)(A) states: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . 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 . . ." Section (a)(2)(B), however, states: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . 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."
These sub-sections codify the principle that: "[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." (Internal quotation marks omitted.) Cotto v. Board of Education, 294 Conn. 265, 272-73, 984 A.2d 58 (2009). "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." (Internal quotation marks omitted.) Kastancuk v. East Haven, 120 Conn.App. 282, 287, 991 A.2d 681 (2010) (defendants entitled to governmental immunity as to plaintiff's claim of negligence because the duties alleged were inherently discretionary and plaintiff offered no evidence demonstrating a policy or procedure existed that required defendants to complete these duties in a prescribed manner).
In the present case, the plaintiffs specifically allege that the defendants "failed to execute proper disciplinary action policies, procedures and protocols to ensure that students would be reasonably safe from violence, and should have contained its employee, Susan Bailey . . ." In support of their motion, however, the defendants submit Bailey's affidavit, dated November 1, 2010, in which she attests: "There are no rules, policies, procedures or other directives in place which required me to supervise the students in a particular manner . . . The method and manner of supervising students was left to my professional judgment and discretion . . . There were no rules, policies, procedures or other directives in place which required me to speak with and/or verbally reprimand students in a particular manner . . . The method and manner of communicating with and/or verbally reprimanding students was left to my professional judgment and discretion." The plaintiff provides the court with the school's transportation policy and the mission statement of the Norwich Public Schools.
Neither the transportation policy nor the mission statement contain any rules, policies, procedures or other directives regarding student supervision or the method and manner in which faculty should communicate and/or verbally reprimand students. As such, the court is satisfied that the acts complained of in the plaintiffs' complaint are discretionary. The plaintiffs have failed to produce any evidence that these acts were required to be performed in a prescribed manner. See also Doe v. Board of Education, Superior Court, judicial district of Hartford, Docket No. CV 03 0824527 (April 8, 2005, Miller, J.) ( 39 Conn. L. Rptr. 107, 108) ("duties of the employees of a board of education, in supervising and disciplining students, are inherently discretionary, involving the use of judgment and the choice between alternative courses of action"); Romanella v. Nielson, Superior Court, judicial district of New London, Docket No. CV 06 5100163 (May 27, 2009, Abrams, J.) ("Connecticut law . . . considers the supervision of students a discretionary act"); Busque v. Mansfield, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 99 0068698 (October 15, 2001, Bishop, J.) ("supervision of students and the manner in which it is done is a discretionary act requiring the exercise of judgment").
Whether the Identifiable Person/Imminent Harm Exception Applies
"Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . Under its common-law authority, the court recognized limited exceptions to the discretionary acts immunity . . . Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force." (Citations omitted; internal quotation marks omitted.) Durrant v. Board of Education, supra, 284 Conn. 106. Accordingly, the defendants are entitled to governmental immunity unless the plaintiffs demonstrate that an exception to that doctrine applies. The plaintiffs argue that if the court finds that the acts complained of are discretionary, then the identifiable person/imminent harm exception applies.
For the identifiable person/imminent harm exception to apply, three things are required: "(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. Peterson, 279 Conn. 607, 616, 903 A.2d 191 (2006). These three core requirements are to be analyzed conjunctively. See id., 620. The identifiability requirement applies "not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Id., 618.
" Burns was the first case decided by this court after the enactment of § 52-557n(a)(2)(B) to address the foreseeable victim/imminent harm exception that the court previously had recognized under its common-law authority. Although Burns and its progeny implicitly proceeded from the assumption that the statute had codified the common law in considering whether a class of victims could be foreseeable, the court's reasoning was consistent with the narrow common-law view of the exception. The only identifiable class of foreseeable victims that we have recognized for these purposes is that of school children attending public schools during school hours. In determining that such schoolchildren were within such a class, we focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Internal quotations marks omitted.) Durrant v. Board of Education, supra, 284 Conn. 107.
In Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994), the court held that a student injured when he slipped and fell on ice while on school premises during school hours was a member of a foreseeable class of victims to whom the superintendent owed a special duty of care and, thus, the defense of governmental immunity did not apply. The court reasoned that the student was compelled by statute to be on those school grounds, which were particularly treacherous and the potential for harm from a fall on ice was significant and foreseeable thus governmental immunity was no defense. See id. Later in Purzycki v. Fairfield, 244 Conn. 101, 103, 708 A.2d 937 (1998), the minor plaintiff suffered injuries when he was tripped by another student in an unmonitored school hallway. In discussing the applicable exception to governmental immunity, the court reiterated that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims. See id., 109. The court concluded that the 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 constituted sufficient evidence for a jury to find imminent harm. See id., 110. Thus, Burns and Purzycki, "utilized criteria including the duration, geographic scope, significance and foreseeability of the risk of harm to gauge whether that risk correctly may be considered imminent." Doe v. Peterson, supra, 279 Conn. 618 n. 10.
Here, in the course of supervising Issiah, Bailey allegedly spit in his left eye. The plaintiffs in this case seek to turn the identifiable person/imminent harm exception on its head. Bailey was acting to prevent Issiah from getting injured on ice when she is alleged to have spit into the child's eye. In her affidavit, Bailey attests: "I do not believe I projected any spit onto Issiah. If I did, it was absolutely inadvertent . . . At the request of . . . [the] school principal, I spoke with Ms. Wilson the following day, December 18, to discuss this incident. I explained that I was not aware that I had projected any spit onto Issiah, but I apologized sincerely if I had done so inadvertently."
As previously discussed, Bailey was engaged in a discretionary act directed toward assuring Issiah's safety. There was no imminent harm perceptible when Bailey attempted to instruct Issiah of the dangers of running on ice. The nature of the harm complained of in this action is not foreseeable. The identifiable person/imminent harm exception to governmental immunity has traditionally been applied to situations related to the condition of the school property or the lack of supervision of students; See Burns v. Board of Education, supra, 228 Conn. 650 (student injured when he slipped and fell on ice on school premises); Barnum v. Milford, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 5000225 (October 29, 2007, Esposito, J.) (student injured in gym class when she fell into an unpadded wall in the school gym); or the lack of supervision of the students created a foreseeable danger. See Purzycki v. Fairfield, supra, 244 Conn. 103 (student injured when he was tripped by another student in an unmonitored school hallway); Beckwith v. O'Hara, Superior Court, judicial district of New London, Docket No. CV 07 5004521 (August 26, 2009, Peck, J.) (student injured when fellow students forced a school bathroom door shut with a rope and jammed her hand in the door); Sheehan v. Coventry Board of Education, Superior Court, judicial district of Tolland, Docket No. CV 07 5002086 (May 13, 2009, Bright, J.) ( 47 Conn. L. Rptr. 785) (student injured during a chemistry lab class after another student removed a stopper from a flask containing hydrogen gas and then lit a match, resulting in an explosion); Jahic v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000255 (September 26, 2008, Roche, J.) (student injured during a game of freeze tag at recess when a male student involved in the game pushed a female student, also involved in the game, who then fell on her causing injuries).
Connecticut courts' application of this exception simply does not comport with the facts presented by this case. Therefore, the defendants are entitled to governmental immunity because Bailey was engaged in a discretionary act when she disciplined Issiah and Issiah does not fall into the identifiable person/imminent harm exception. As such, the court grants the defendants' motion for summary judgment as to the plaintiffs' allegations of negligence contained in counts one, two, five through eight, eleven through fourteen, seventeen and eighteen.
Intentional Infliction of Emotional Distress Against Bailey
Finally, the court will address the defendants' argument in favor of summary judgment as to counts fifteen and sixteen, which allege intentional infliction of emotional distress against Bailey. The defendants contend that the plaintiffs' intentional infliction of emotional distress claim fails as a matter of law because there is no evidence that the defendants intended to harm Issiah and there is no evidence of any outwardly outrageous activity. The plaintiffs counter that the spitting incident in conjunction with another incident occurring a few days prior, in which Bailey allegedly made a comment to Issiah regarding the condition of his mother's van, constitute a legally sufficient claim for intentional infliction of emotional distress.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme or outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). The extreme and outrageous element is only satisfied "where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Id., 443.
The court finds that the defendants are entitled to summary judgment as to the plaintiffs' intentional infliction of emotional distress claims against Bailey. As previously discussed, Bailey affirms that she was acting to prevent Issiah from getting injured on ice when she inadvertently projected spit into his eye. The plaintiffs, in their affidavits opposing summary judgment have not created a genuine issue of a material fact. The court cannot conclude that on these facts that Bailey's conduct was extreme and outrageous.
Conclusion
For all of the foregoing reasons, summary judgment is granted as to counts one through eighteen of the plaintiffs' complaint.