Opinion
HHDCV156058258S
05-30-2017
Skyler Austin PPA Laura Austin et al. v. Connecticut Greater Hartford Academy of Arts et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#167)
Cesar A. Noble, J.
Before the court is a motion to strike a complaint that alleges school liability for injuries sustained by two school students off school property. The motion requires the court to examine the contours of the identifiable victim imminent harm exception to the governmental immunity enjoyed by municipal schools for claims based on the discretionary acts of its employees.
The court finds that the minor plaintiff, Skyler Austin (Skyler), and his brother, Dakota Austin (Dakota), have failed to allege they were compelled to be present at school when they left school grounds. Additionally, the court finds that they have also failed to plead that the school defendants were aware that students were leaving the school in violation of school policy and thereafter crossing a busy street some distance away from the school premises. The first finding compels the conclusion that both plaintiffs failed to plead sufficient facts to qualify themselves as " identifiable victims." The second finding renders insufficient the attempt to plead the facts necessary to establish they were subjected to " imminent harm." The court therefore grants the motion to strike on the ground that governmental immunity bars the action.
Facts and Procedural History
The original complaint (complaint) of the minor plaintiff, Skyler, and his brother, Dakota, alleged that on April 1, 2013, at approximately 4:57 p.m., Skyler was struck by an automobile (accident) suffering physical injury while in a crosswalk at the intersection of Washington Street and Allen Place in Hartford. Dakota witnessed the accident and injury. Skyler and Dakota attended, respectively, the middle and high schools of the defendant, Greater Hartford Academy of the Arts in Hartford, Connecticut (academy). On the day of the accident Skyler had been bussed from the academy's middle school to its high school to attend Dakota's after school performance. The complaint was silent as to the time of the after school performance and the geographical proximity between the location of Skyler's injury and the high school. The plaintiffs named (1) the academy as a defendant in the first count, (2) Jeffrey Ostroff, the academy's principal, as a defendant in the second count, (3) Murphy Security Service, LLC (Murphy) as a defendant in the third count, and (4) the Capitol Region Education Council (CREC) as a defendant in the fifth count. The fourth count was withdrawn. See footnote 2 of this opinion.
The action was brought on behalf of Skyler through his mother and next friend, Laura Austin.
The original complaint and the operative, revised complaint name Murphy, which provides security services for the academy as a defendant. Murphy is not involved in the present motion. The fourth count of the original complaint was directed to a driver involved in the accident and has since been withdrawn.
The academy, Ostroff, and CREC are referred to in this decision as the defendants.
The action came before the court, Huddleston, J., on a motion to strike by the defendants. The decision of the court recited additional factual background. " The academy is a public school and, as such, is under a statutory duty to provide 'a safe school setting.' See General Statutes § 10-220(a)(4). Ostroff, as the academy's principal, is a municipal employee. CREC is a regional educational service center established pursuant to General Statutes § 10-66a by local boards of education 'for the purpose of cooperative action to furnish programs and services' to the communities served by those boards. As such, it is a political subdivision of the state. The plaintiffs allege that CREC manages the academy . . . [The plaintiffs] assert identical claims of negligent supervision against each of these defendants. These defendants have moved to strike the first, second, and fifth counts on the ground of governmental immunity. The plaintiffs object, arguing that the defendants had a ministerial duty to provide a safe school environment; but if the supervision of students is a discretionary function, the imminent harm, identifiable victim exception to governmental immunity applies. The defendants reply that the supervision of students has been held to be a discretionary function, not a ministerial function, and the imminent harm, identifiable victim exception does not apply because the plaintiffs were not compelled to be where they were when the accident occurred outside school hours." Austin v. Greater Hartford Academy of the Arts, Superior Court, judicial district of Hartford, Docket No. CV156058258S, 2016 WL 4497660, at *1 (July 19, 2016, Huddleston, J.).
" [T]he plaintiffs have asserted identical claims of negligence against the academy, Ostroff, and CREC. Although stated in sixteen separate subparagraphs, the essence of these allegations is as follows: The defendants owed a duty to provide a safe school environment. They knew or should have known that the minor plaintiff would leave school property if not properly supervised; they knew the area surrounding the school property was not safe for unsupervised minor children; they failed to take adequate steps or provide adequate staff to patrol the premises and stop students from leaving; and because of their failure to monitor the premises properly, the children left the premises and were exposed to a dangerous condition." Id. at *2. The motion to strike was granted on the grounds that " the supervision of students has been held to be a discretionary function, not a ministerial function, and the imminent harm, identifiable victim exception does not apply because the plaintiffs were not [alleged to have been] compelled to be where they were when the accident occurred outside school hours." Id. at *1.
Following several motions for extension of time to plead, the plaintiffs filed a revised complaint on September 15, 2016 (revised complaint). The revised complaint restates the original allegations and adds the factual claims that the participation of Dakota in the afterschool performance was mandatory. The revised complaint contains no allegation that Skyler was compelled to attend his brother's performance but alleged that attending Dakota's performance was an important component of the arts training at the academy as written in the Student Handbook. It also alleges that, pursuant to the terms of the Student Handbook promulgated by the school an unexcused absence policy was in full force and effect at the academy during afterschool hours for an academy-sponsored event. Students in violation of the unexcused absence policy were subject to ultimate referral to the juvenile court system. The plaintiffs were alleged to have left the school property to obtain dinner " against the rules promulgated by" the academy's applicable student handbook. The revised complaint describes Washington Street as a " busy city street and . . . a major motor vehicle artery to which access to a major inner city hospital [is] had as well as a major thoroughfare running from the south end of the city of Hartford to downtown Hartford." The revised complaint asserts the same specific claims of negligence against each of the defendants as appeared in the original complaint. The revised complaint remains silent as to the time of the afterschool performance and the geographical proximity between the location of Skyler's injury and the high school.
In the present motion the defendants rely on the same grounds of governmental immunity to strike the counts in the revised complaint directed to them. Specifically, the defendants assert that the supervision of students is a discretionary obligation entitled to governmental immunity pursuant to General Statutes § 52-557n. The plaintiffs object to the motion on the grounds that the plaintiffs belonged to a class of identifiable victims and were subject to imminent harm qualifying them for the exception to the governmental immunity for discretionary acts. The defendants respond that the plaintiffs have still failed to allege they were identifiable victims because they had not pled sufficiently that they were compelled to be present at the academy at the time they left school grounds. The court agrees with the defendants.
This statute provides in pertinent part: " (a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) 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; . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (B) 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." § 52-557n.
The plaintiffs raised the same argument presented in their objection to the first motion to strike that the duty to keep students safe and at a safe school setting is a ministerial duty. This court adopts Judge Huddleston's well-reasoned decision rejecting this argument on the basis that the supervision of children in school requires the exercise of discretion and thus is shielded from liability. Austin, 2016 WL 4497660, at *1.
Standard
" 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
Analysis
The doctrine of governmental immunity applicable to schools and their officials has most recently been examined by our Supreme Court in Strycharz v. Cady, 323 Conn. 548, 148 A.3d 1011 (2016). Strycharz is particularly instructive because it involves a claim by a high school student against his school and its employees for an injury incurred as a result of having been hit by a car while leaving school grounds and crossing a street intersecting the entrance to his high school. After having arrived by bus at the school and, in violation of a known school policy, the minor plaintiff attempted to leave school property immediately prior to the start of school to smoke a cigarette off school grounds. The plaintiff complained that no one sought to prevent him from leaving school property or supervised his departure from school grounds, all allegedly in violation of school policy. Id. at 557.
The Court stated: " It is well settled that municipal employees 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 . . . Therefore, [d]iscretionary act immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officials and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits . . . from imposing liability for that injury . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, municipal [employees] are not immune from liability for negligence arising out of their ministerial acts, which are defined as acts 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 [in which] it is apparent from the complaint . . . that the nature of the duty . . . turns on the character of the act or omission complained of in the complaint . . . Accordingly, when it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus necessarily were discretionary in nature, summary judgment is proper. Lastly, determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions." (Citations omitted; internal quotation marks omitted.) Id. at 564-65. In the present case, the court can conceive of no basis to distinguish between granting a motion to strike on the grounds that the allegations of a complaint are legally insufficient and granting a motion for summary judgment because the nature of the acts complained of in the complaint necessarily are discretionary in nature.
An exception exists to governmental immunity for discretionary acts where the claimant is (1) an identifiable person subject to (2) imminent harm and (3) there is a public official to whom it is apparent that his or her conduct is likely to subject that victim to harm. Id. at 573. The Court held " that school officials may be held liable for injuries occurring off school property if the allegedly negligent act that proximately caused the injury occurred on school grounds when the student was under the school's supervision and control." Id. at 575. The Court stressed that whether a student was " compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims." Id. at 575-76. This is so because " [p]arents who have relinquished control and custody of their children to the school rightly expect that the school will exercise reasonable care, as long as their children remain under the school's custody and control." Id. at 579.
The Court concluded that " a school is required to exercise reasonable care to prevent schoolchildren attending school during school hours from leaving school grounds when doing so would expose them to imminent harm." Id. at 579. The Court provided examples of such a circumstance, including if a six-year-old student were allowed to wander into a street, or if a high school student was permitted to leave school when officials knew of an active shooter and knew that students would be walking directly toward the area of the shooting. Id. at 580.
The element of imminent harm is present when " 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." (Citations omitted.) Strycharz, 323 Conn. at 587. In the context of the facts presented in Strycharz, the Court held that the failure of the plaintiff to identify any facts that would have made it apparent to the defendants that students were in the area of danger was fatal to their claim. Id. at 589.
In the present case the plaintiffs have failed to allege additional facts in the revised complaint sufficient to assert a claim that they were identifiable victims. Skyler is not alleged to have been required to be present at the after school production of his brother. Accordingly, he has not pleaded sufficiently that he was compelled to be present at the school at the time the injury occurred. See id. at 575-76. The revised complaint fails to allege facts that Dakota was compelled to be present at school at the time he allegedly left the high school grounds " against the rules promulgated by the [academy] as outlined by the Student Handbook." Rev. Compl. ¶ 23. The revised complaint therefore possesses the same infirmity present in the original complaint. " Even if Dakota was required to be on the school premises for a concert later that evening, there has been no suggestion that he was compelled to remain on the campus for the entire time between regular school hours and the evening concert. Similarly, there has been no suggestion that Skyler was compelled to attend his brother's concert at all." Austin, 2016 WL 4497660, at *4.
The revised complaint also insufficiently asserts a factual basis to conclude that the failure to supervise Dakota or Skyler subjected them to imminent harm as defined by our case law. The Supreme Court explained that the standard for determining whether a harm is " 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." Haynes v. City of Middletown, 314 Conn. 303, 322-23, 101 A.3d 249 (2014). The revised complaint lacks any allegation that any of the defendants had actual or constructive knowledge that students were crossing the intersection of Washington Street and Allen Place after having left the school in violation of school policy. Similarly, albeit in the context of a motion for summary judgment, the Court in Strycharz found dispositive the lack of evidence that " the school was aware that students were crossing Norwich Avenue in violation of school policy after getting off the bus on school property and before the start of the school day." (Emphasis in the original.) Strycharz, 323 Conn. at 588. The plaintiffs have thus failed to set forth a legally sufficient claim that any failure to supervise them subjected them to an imminent harm.
Conclusion
Because the plaintiffs have not alleged sufficient facts regarding any compulsion to be on school premises when they departed from them, the allegations of the revised complaint do not qualify them as " identifiable persons" for purposes of the " identifiable person imminent harm" exception to governmental immunity for discretionary acts. The plaintiffs similarly failed to plead facts alleging that it was apparent to the defendants that students were crossing Washington Street and Allen Place after departing school in violation of school policy, thus rendering insufficient the allegations of their revised complaint to qualify them as subjected to " imminent harm" at the time of the school officials' alleged negligence on school property. For the foregoing reasons, the motion to strike is granted.