Opinion
No. LLI CV 05 4002368 S
April 24, 2007
MEMORANDUM OF DECISION
Before me is the defendants' motion for summary judgment (#118). The defendants claim they are entitled to judgment as a matter of law because the "imminent harm" exception to discretionary act governmental immunity does not apply to the facts of this case as set forth in their affidavits. For the reasons that follow, the motion must be granted.
On July 12, 2005, the plaintiffs, Morgan Thornsberry, PPA Holly Zaborowski, and Holly Zaborowski filed suit against the defendants, the town of New Milford, Gary Leavitt, Brian Hembrook, and Jessica O'Connor, all employees of New Milford Youth Agency (NMYA). The complaint alleges the following facts: NMYA is an after school program for children in New Milford that is run by the town; employees of NMYA are municipal employees. On September 23, 2003, Thornsberry, who was enrolled in the after school program and in attendance at Northville Elementary School fell onto the concrete of the school playground after hanging from a basketball rim. As a result of that fall, the plaintiffs allege that he suffered severe injuries. The plaintiff's claim that Thornsberry's injuries and losses were caused by the negligence of the town and its employees in that: they failed to supervise Thornsberry; they failed to have a sufficient number of counselors on hand; they failed to properly train their supervisors; and they allowed Thornsberry to climb up on a basketball rim and hang from it over a concrete basketball court.
On December 13, 2006, the defendants filed a motion for summary judgment on the ground that there are no genuine issues of material fact and they are entitled to judgment as a matter of law that the "imminent harm" exception to discretionary act governmental immunity does not apply. On January 22, 2007, the plaintiffs filed an objection to the defendants' motion for summary judgment arguing that the motion should be denied because the issue had already been decided by the court when it denied the defendants' previous motion to strike.
"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.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "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]." Id., 319.
"[T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[the existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).
The defendants argue that they are entitled to summary judgment because there are no facts indicating that: (1) Thornsberry was an identifiable victim at the time of the injury; or (2) that it was apparent to the defendants that Thornsberry was at risk of imminent harm. In support of theft motion, the defendants submitted the certified affidavits of Gary Leavitt, director of the program, and Brian Hembrook, a counselor at the program, as well as relevant case law.
The plaintiffs counter that summary judgment should be denied because this issue has already been raised and decided previously on the defendants' motion to strike. The plaintiffs attached the court's prior decision on the motion to strike but did not submit any evidence in support of their opposition to summary judgment.
See Zaborowski v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002868 (March 24, 2006, Pickard, J.).
The most recent Supreme Court decision involving the contours of government immunity is Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006). In Doe, the Court reiterated that, "[m]unicipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite the 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." (Citation omitted; internal quotation marks omitted.) Id., 614-15.
There are, however, three exceptions to discretionary act immunity. Id., 615. As in Doe, the only issue before the court today is whether the "imminent harm" exception is applicable. Under the "imminent harm" exception, "[d]iscretionary act immunity is abrogated 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 . . . By its own terms, this test 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." (Citation omitted; internal quotation marks omitted.) Id., 616. To prevail, a plaintiff must meet all three requirements, and "[d]emonstration of less than all of these criteria is insufficient." Id., 620.
Doe ultimately turned on the third prong of the "imminent harm" test. Id. "The `apparentness' requirement is grounded in the policy goal underlying all discretionary act immunity, that is, keeping public officials unafraid to exercise judgment . . . It surely would ill serve this goal to expose a public official to liability for his or her failure to respond adequately to a harm that was not apparent to him or her." (Citation omitted; emphasis in original.) Id., 616-17.
In the present case, the defendants submitted two affidavits in support of their motion for summary judgment. In his affidavit, Gary Leavitt said that on the day in question, there was an appropriate number of supervisors present (three) relative to the number of students (seventeen), and that this was in accordance with all applicable state and municipal guidelines. The program itself is not rigidly controlled and the children engage in a wide range of recreational activities. Gary Leavitt also said that in his capacity as director of the program, he had observed the plaintiff and other children shinnying up the pole and playing on, or hanging from, the basketball rim and dropping to the ground without incident or injury. Mr. Leavitt, who has been employed in various capacities for the NMYA for approximately 24 years, had never seen any child injured in this activity either at Northville School or anywhere else.
In his affidavit, Brian Hembrook provides the significant fact that the rim was not the regulation height of ten feet. He estimates that the rim was approximately seven feet high and that the children hanging on the rim would have their feet about two feet above the ground. He said he had seen children hanging on the shortened rim many times before. He also said that on previous days he had picked boys up and helped them grab the rim and had let them drop to the ground on their own. Both supervisors said that in their experience, both within the program and in supervising children generally, they do not consider hanging from the shortened rim a dangerous activity, nor did they have any reason to suspect the minor plaintiff would be injured. Essentially this was a permitted activity which has never resulted in injury.
The official basket height of ten feet has remained constant ever since the game was invented in 1891 by Dr. James Naismith at the YMCA Training School (today, Springfield College) in Springfield, Massachusetts. Dr. Naismith nailed peach baskets onto an elevated running track which happened to be ten feet off the floor. See Basketball Hall of Fame, at http://www.hoophall.com. The height of the baskets has occasionally caused controversy. 2007 marks the 50th anniversary of one such incident. In 1957 the Boston Celtics and the St. Louis Hawks engaged in a classic seven game struggle in the finals of the National Basketball Association playoffs. The teams split the first two games in Boston and traveled to St. Louis for game three. "Tension had been mounting in the series, and tempers were taut before game 3. [Red] Auerbach [Celtics coach] was growling that his team had been given old and ragged basketballs for warmups. Then some of the Celtics told him that the basket seemed too high. Flushed with anger, Auerbach demanded that the referees measure the basket's height — which they did on a stepladder as the crowd jeered and [Ben] Kerner [Hawk owner] steamed. And the volatile owner boiled over when the officials ruled the basket's height was the regulation 10 feet. He and Auerbach engaged in a lively courtside conversation, cut short when the Boston coach charged from 12 feet away and punched Kerner squarely in the mouth, swelling his lip (and later costing Auerbach a $300 league fine.)" George Sullivan, The Picture History of the Boston Celtics, 34 (1981). The Celtics went on to win the first of their many championships. Red Auerbach was inducted into the Basketball Hall of Fame in 1969 and died in October 2006 at the age of 89.
The defendants have met their burden of providing evidence sufficient to establish that there is an absence of a genuine issue of material fact as to the applicability of the "imminent harm" exception. This is not a case where the child slipped on an icy condition; cf. Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994); or where the children were playing unsupervised. Cf Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998). Rather, the present case is just like Doe, where the court found that discretionary act governmental immunity applied when it was not apparent to the defendant that the plaintiff was subject to a risk of harm. Here, the only evidence shows that Thornsberry was playing on the playground during an after school program and the supervisors had no reason to suspect that Thornsberry was subject to any imminent risk of injury from hanging from the shortened rim. Therefore, in keeping with the policy expressed in Doe, it would not further the policy goal of keeping public officials unafraid to exercise judgment to hold them liable when there was no apparent risk of injury from the activity.
Since the defendants have met their burden, it is up to the plaintiffs to demonstrate the existence of a material fact. Zielinski v. Kotsoris, supra, 279 Conn. 318-19. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46. In the present case, the plaintiffs have not submitted any admissible evidence in support of the objection to the motion for summary judgment. Their sole basis for opposition to this motion for summary judgment is the court's denial of the motion to strike.
But, there are fundamental differences between a motion to strike and a motion for summary judgment. "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.) Commissioner of Labor v. C.J. M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). Additionally, the court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). When considering a motion for summary judgment, on the other hand, the court has to look to the admissible evidence. Great County Bank v. Pastore, supra. The court's decision on the motion to strike was based on the allegations of the complaint. Now, in considering the motion for summary judgment the court has admissible evidence based upon affidavits: it was only a seven foot rim, not a regulation ten foot one; there were 3 supervisors for 17 students; the activity was permitted and deemed safe by the supervisors; children had engaged in the activity on previous occasions without injury. The plaintiff did not provide any evidence to refute any of these facts. The plaintiffs cannot rely on the pleadings as they could in the earlier motion to strike.
In denying the defendants' earlier motion to strike, this court, as it is required to do, was "[r]eading the allegations broadly," and "assuming the allegations are true." Zaborowski v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV 054002868 (March 24, 2006, Pickard, J.) [ 41 Conn. L. Rptr. 80].
Therefore, based on the admissible evidence before the court, there are no genuine issues of material fact and the defendants are entitled to judgment as a matter of law that the "imminent harm" exception to discretionary act governmental immunity does not apply. The defendants' motion for summary judgment is granted.
The defendant also argued that the minor plaintiff was not an identifiable victim and that whatever risk of injury there may have been was not imminent. Since the plaintiff must meet all three requirements under the "imminent harm" exception and the court finds that the plaintiff cannot prevail on the "apparent" requirement, the court need not reach the defendants' remaining arguments. See Doe v. Petersen, supra, 279 Conn. 620.