Opinion
HHDCV156058258S
07-19-2016
Skyler Austin PPA Laura Austin et al. v. Greater Hartford Academy of the Arts et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#148)
Sheila A. Huddleston, Judge.
This action was brought on behalf of Skyler Austin, a minor, through his mother and next friend Laura Austin, and by Skyler's brother, Dakota Austin. The plaintiffs seek damages for injuries Skyler sustained when he was struck by an automobile on Washington Street in Hartford and for emotional distress experienced by Dakota, who was present when his brother was struck. The accident occurred on April 1, 2013, at about 5 p.m., near the high school campus of the Greater Hartford Academy of the Arts (academy), which Dakota attended. Skyler, a student at the academy's middle school, had been brought by school bus to the high school. The brothers left the academy's premises to get dinner and were crossing the intersection of Washington Street and Allen Place when a three-car collision occurred there. Skyler was pinned beneath one of the vehicles involved and was seriously injured.
The defendants include the academy, its principal Jeffrey Ostroff, and the Capitol Region Education Council (CREC). 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 name the academy as defendant in the first count, Ostroff as the defendant in the second count, and CREC as the defendant in the fifth count. They 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. The court agrees with the defendants and, accordingly, grants the motion to strike.
The third count is directed against Murphy Security Service, LLC, which provides security services for the academy. The fourth count, directed against Brittain Gagnon, one of the drivers involved in the collision, was recently withdrawn by the plaintiffs.
A motion to strike challenges the legal sufficiency of a pleading and requires no factual findings by the trial court. Greenwald v. Van Handel, 311 Conn. 370, 374, 88 A.3d 467 (2014). The court must take the facts alleged in the complaint to be true, and it must construe the complaint in the manner most favorable to sustaining its legal sufficiency. Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006). If facts provable under the complaint would support a cause of action, the motion to strike must be denied. Id., 318. All well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Id.
In this case, the 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.
In opposing the motion to strike, the plaintiffs state that the academy is located in a high-traffic area near Hartford Hospital and the Connecticut Children's Medical Center, where there are frequent ambulances, and that Washington Street also serves as main channel for traffic to several courts, the state police Troop H headquarters, the state capitol, and many other state offices. These facts are not alleged in the complaint but are not in dispute.
The first question presented by the defendants' motion is whether the acts or omissions alleged in the complaint involve a ministerial or a discretionary duty. Whether an act or omission is discretionary in nature turns on the character of the act. Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). Although the determination of whether official acts are discretionary or ministerial is normally one of fact, it may be determined on a motion to strike or a motion for summary judgment when it is apparent from the complaint that the allegedly negligent acts or omissions necessarily involve the exercise of judgment. Id.
Under the common law, a municipal employee is liable for the misperformance of ministerial acts. Id. A ministerial duty is one that is to be performed in a prescribed manner without the exercise of judgment or discretion. Violano v. Fernandez, supra, 280 Conn. 318. A duty that would otherwise be considered discretionary may be ministerial if it is to be performed in a manner prescribed by a charter provision, ordinance, regulation, rule, policy, or any other directive. See id., 323; see also Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010).
It is readily apparent that the supervision of children in school requires the exercise of discretion, as many decisions have recognized. See, e.g., Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994), overruled in part on other grounds by Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014); Strycharz v. Cady, Superior Court, judicial district of New London, Docket No. CV-09-5013484, (November 7, 2013, Devine, J.), appeal pending (Docket No. SC 19507) [decision now reported at: 323 Conn. 548, 148 A.3d 1011]; Rigoli v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5007920-S (February 6, 2012, Hiller, J.) (53 Conn.L.Rptr. 466, 467, ).
It is true that each local or regional board of education has a duty, under General Statutes § 10-220(a)(4), to provide a " safe school setting." Nevertheless, the implementation of this statutory directive necessarily requires the exercise of judgment by school boards and their employees. The plaintiffs have not pointed to any policy or directive that prescribes the manner in which the academy was required to provide such a safe setting. See Strycharz v. Cady, supra . This court concludes, as others have done, that the duty at issue was discretionary.
At common law, municipal employees have been afforded a qualified immunity for acts requiring the exercise of judgment and discretion. " Municipal 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." (Footnote omitted; internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 161, 95 A.3d 480 (2014). Discretionary 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 to be had from imposing liability for that injury." (Internal quotation marks omitted.) Id.
At common law, municipal entities were immune from liability for the negligent acts or omissions of their employees. General Statutes § 52-557n, however, " abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties . . . [Section] 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the 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." (Internal quotation marks omitted.) Coley v. Hartford, supra, 312 Conn. 161. The standard to be applied in determining whether Ostroff, as a municipal employee, and the academy and CREC, as political subdivisions of the state, are entitled to discretionary act immunity are the same. See Myers v. City of Hartford, 84 Conn.App. 395, 401, 853 A.2d 621 (common-law " employee immunity for discretionary acts is identical to the municipality's immunity for its employees' discretionary acts under § 52-557n"), cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).
Governmental immunity is typically raised as a special defense and involves questions of fact. Nevertheless, " [w]here 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." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 321.
There are three recognized exceptions to governmental act immunity, only one of which--the imminent harm, identifiable victim exception--is relevant here. That exception applies " 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." (Footnote omitted; internal quotation marks omitted.) Id., 329. " We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come with the imminent harm exception." (Citation omitted; internal quotation marks omitted.) Id.
The Supreme Court has held, with respect to the identifiable victim element, that the exception applies " not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 100, 931 A.2d 859 (2007). " [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care." Id., 100-01. In Durrant, the Supreme Court emphasized that the only identifiable class of foreseeable victims that it has recognized for these purposes is that of " schoolchildren attending public school during school hours" because " 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 quotation marks omitted.) Id., 107. In Durrant, the court held that a mother who fell on school grounds while picking up her child from an after school program was not a member of a cognizable class of identifiable victims because she was not required to enroll her child in that after school program. Other courts have similarly held that the " class of identifiable victims" is defined by compulsion. " Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred . . ." DeConti v. McGlone, 88 Conn.App. 270, 274, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005).
In Strycharz v. Cady, supra, Superior Court, Docket No. CV-09-5013484, the court addressed a situation somewhat similar to this one. The plaintiff in that case was a fourteen-year-old student at Bacon Academy in Colchester. Shortly after he was delivered to school by a school bus one morning, he and another student left the campus to smoke cigarettes. While attempting to cross Norwich Avenue, he was struck by a car. The plaintiff sued, among others, the members of the town's board of education and the school's principal. When they asserted governmental immunity as a defense, the plaintiff argued that he fell within the imminent harm, identifiable victim exception. The court concluded that he did not because he had voluntarily left the school premises. It viewed the case as similar to those that had refused to find the exception applicable to students or their families who were injured during activities encouraged but not compelled by a school. It concluded that " precedent dictates that the identifiable victim requirement has both geographical and temporal components, which must be considered together." Strycharz v. Cady, supra . " That is, under our case law, plaintiffs must be compelled to be present at the place where the injury occurred at the time when the injury occurred, because that is where and when the persons charged with protecting those plaintiffs from harm would expect them to be . . . If a plaintiff voluntarily places himself or herself outside of that time . . . or place, as the plaintiff did here, the plaintiff loses his or her status as a member of an identifiable class of victims, and therefore cannot meet the imminent harm, identifiable victim exception to discretionary act immunity." Id.
In this case, the plaintiffs voluntarily left the school premises after school hours--not during school hours as in Strycharz --to get dinner. The complaint in this case alleges that the accident occurred at 4:57 p.m. at the intersection of two public streets near the school. At oral argument on the motion to strike, the plaintiffs' counsel represented that the plaintiffs were on the school campus after school hours because Dakota was to take part in a concert in the evening and Skyler had been bussed from the academy's middle school to the high school to watch the concert. These facts are not alleged in the complaint and cannot reasonably be inferred from any allegation currently in the complaint. Only if both brothers were compelled to be there after regular school hours for some specific purpose--which is not alleged--would the question of their membership in a class of foreseeable victims approach the situation in Strycharz .
The plaintiffs' argument that the school owed a duty to prevent them from leaving the campus is unpersuasive because the events at issue occurred after regular school hours. 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.
After regular school hours, students normally leave a school's campus for many reasons--to go home, to go to extracurricular activities, or to go to after school jobs. The plaintiffs' theory of the case would impose a duty on school employees or agents to monitor every student who remained on a school campus after regular school hours, for any purpose, and to prevent them from leaving unless their safety could be assured. This would significantly expand the concept of a class of identifiable victims beyond any so far expressed in judicial decisions.
The court is aware that recent developments in the law have left somewhat unsettled the " imminent harm" and " apparentness" requirements of the imminent harm, identifiable victim exception to governmental immunity. See Haynes v. Middletown, supra, 314 Conn. 303 (expanding temporal limits of " imminence" element); Edgerton v. Clinton, 311 Conn. 217, 86 A.3d 437 (2014) (redefining " apparentness" element); Williams v. Housing Authority, 159 Conn.App. 679, 124 A.3d 537 (2015) (deriving four-prong test of imminence from Haynes), cert. granted, 319 Conn. 947, 125 A.3d 528 (2015); Brooks v. Powers, 165 Conn.App. 44, 138 A.3d 1012 (2016) (applying imminence test), cert. granted, June 29, 2016. None of these cases, however, directly involve the " identifiable victim" element. Strycharz v. Cady, supra, is currently on appeal in the Supreme Court and was argued on November 6, 2015, in Docket No. SC 19507. Even if the judgment in Strycharz is reversed, however, the decision may not apply to the situation presented here, which concerns activities occurring after, not during, school hours.
For the reasons stated above, the motion to strike the first, second, and fifth counts is granted.