Opinion
No. LLI-CV 05-4002868 S
March 24, 2006
MEMORANDUM OF DECISION
This is a motion to strike the plaintiffs' complaint on the basis of municipal immunity. This motion must be denied because the plaintiffs have pled legally sufficient facts to sustain their claims and to show that they may fit into the identifiable person-imminent harm exception to governmental immunity under § 52-557n.
FACTS
The plaintiffs, Morgan Thornsberry and his mother, 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 from a basketball rim, that it appears he had climbed up onto, onto the concrete on the school playground. As a result of that fall, the plaintiffs allege that he suffered severe injuries.
The plaintiffs claim that Thornsberry's injuries and losses were caused by the negligence of the town and its employees in several ways, including their failure to supervise Thornsberry, the failure to not have a sufficient number of counselors on hand, the failure to properly train their supervisors, and the fact that the supervisors allowed Thornsberry to climb up on a basketball rim and hang from it over a concrete basketball court.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted . . ." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court must assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court should] read the allegations broadly, rather than narrowly . . ." (Citation omitted; internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 77, 811 A.2d 243 (2002). "If a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiff's claims is legally sufficient . . ." (Citation omitted; internal quotation marks omitted.) Depot Square Bus. Center v. Charbonneau, Superior Court, judicial district of Waterbury, Docket No. CV04 01844715 (April 12, 2005, Agati, J.). "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 . . ." (Citation omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
The defendants filed this motion to strike the plaintiffs' complaint on the grounds that it fails to state a claim upon which relief may be granted. The defendants argue that the town and its employees cannot be held liable, and therefore there is no cause of action, because governmental immunity applies through General Statutes § 52-557n and the plaintiffs have failed to show that they fit within one of the limited exceptions to that suit, namely, the identifiable person-imminent harm exception.
"[A] motion to strike ordinarily is an improper method for raising a claim of governmental immunity . . . however . . . 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. [W]here it is not apparent from the allegations of the complaint that the municipality was so engaged, then the defense of governmental immunity should be pleaded. Under the allegations as pleaded in the complaint, a motion to strike can be used to raise the issue of governmental immunity in this action.
"Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . [T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury. The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where 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; . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Generally, liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act.
"[T]he [identifiable person-imminent harm] exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . Our Supreme Court [has] emphasized the limited nature of the concept of imminent harm . . . This strict limitation on the exception exists because [t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Citations omitted; internal quotation marks omitted.) Kowalczyk v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 0440008065 (December 13, 2005, Pickard, J.). In this case, the employees at issue were engaged in discretionary activities, as their duties of supervising children in the playground clearly involved the exercise of judgment or discretion, and were clearly not engaged in a ministerial activity, because they were not performing in a prescribed manner. Therefore, the defendants will be immune unless Thornsberry falls into the category of an identifiable person subject to imminent harm.
In Kowalazyk v. New Milford Board of Education, this court determined that the plaintiff did not fall into the identifiable person-imminent harm exception. Kowalczyk v. New Milford Board of Education, supra, Superior Court, Docket No. CV 0440008065. In Kowalczyk, an employee working at New Milford high school was injured while trying to break up a fight between students in the hallway while the students were in the hallways changing classes. Id.
This court determined that the plaintiff was not an identifiable person subject to imminent harm because "[i]t was not a part of [the plaintiff's] job to be in the corridors at that time, nor was it her duty to monitor the students' interactions outside of her classroom." Id.
Conversely, in Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), a second grader was injured when another student tripped him by sticking out his foot while the student was walking through an unmonitored hallway on his way from the lunchroom to outdoor recess. Purzycki v. Fairfield, supra, 244 Conn. 110-11. The court determined that the identifiable person-imminent harm exception applied because "schoolchildren . . . are statutorily compelled to attend school" and therefore are an identifiable class of victims, and because the path from the supervised lunchroom to recess "involve[d] a temporary condition . . . [where] the risk of harm was significant and foreseeable, as shown by the principal's testimony that if elementary school children are not supervised, they tend to run and engage in horseplay that often results in injuries." Id., 110.
In this case, Thornsberry was a student at an after school program. Though not statutorily compelled to be there, neither was he just a random member of the public at a sporting event, like in Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005). Instead, he was clearly within a temporal and geographical zone similar to that of children at recess. Considering the fact that "[a]n individual may be "identifiable" for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition," and viewing the plaintiffs' pleadings as true, it could be determined that Thornsberry was in fact an identifiable person as an enrolled and therefore expected member of the after school program. Tryon v. North Branford, 58 Conn.App. 702, 755 A.2d 317 (2000).
Reading the allegations broadly, as this court must in a motion to strike, it could also be determined that Thornsberry was in imminent harm. Like the child in Purzycki, Thornsberry was in a setting where it is common knowledge that the children would be engaging in horseplay that could and likely would result in an injury. In addition, not only was Thornsberry on a playground, but he had climbed up and was hanging from a basketball rim, which creates a specific and isolated risk of harm as, clearly, basketball rims are not made to be climbed on in the sense that a jungle gym is. Further, unlike in Kowalczyk, the possibility of the occurrence of imminent harm was not a constant possibility, like a fight that could break out at any time and was not a more likely occurrence just because kids were walking through the halls, but here was a situation that existed only because Thornsberry was on a basketball rim over the concrete basketball court which, assuming the allegations are true, was a condition that the supervisors were aware of. Because Thornsberry was an identifiable person and the risk on the playground was temporally and geographically limited, he was in imminent harm, considering the known risks and dangers present with a child climbing on something such as a basketball rim. Therefore, reading the allegations in the complaint broadly, the plaintiffs have pled sufficient facts to sustain their claim that they fall within an exception to governmental immunity through the identifiable person-imminent harm exception.
The motion to strike is denied.