Opinion
No. CV 06-5005855S
November 7, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#105)
The defendants' motion to strike and the plaintiffs' opposition to it present several issues. The first issue is whether counts one and four of the plaintiffs' amended complaint should be stricken because the defendants are entitled to governmental immunity or whether the defendants' alleged actions fall within an exception to the governmental immunity clause. The second issue is whether count two of the plaintiffs' amended complaint should be stricken because the plaintiffs have failed to satisfy the pleading requirements of General Statutes § 7-465. The third issue is whether count three of the plaintiffs' amended complaint should be stricken because General Statutes § 10-235 does not create a direct cause of action against a board of education by an injured plaintiff.
The plaintiffs allege that on June 13, 2005 Brittany Bacote, who brought this action through her mother, Sonya Bacote, was in the school yard of Conte/West Hills Magnet School as a student when she tripped over a peg that was coming up out of the ground where temporary bleachers were once located. The plaintiffs allege that at the time of the fall, she was playing during recess in an area designated by her teacher and that she suffered injuries to her left leg as a result of her fall. The plaintiffs further allege that the defendants, the City of New Haven, the New Haven Board of Education, and Superintendent Reginald Mayo, knew or in the exercise of due care should have known that the condition of the school yard was in a dangerous and defective condition that was likely to cause injury or inflict harm upon persons like the plaintiff.
"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." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
I. Counts One and Four
Initially, this court must address the fact that despite raising the issue of governmental immunity, the defendants have not yet filed an Answer or any Special Defenses. Generally, where a defendant argues entitlement to governmental immunity, the defendant is required to plead governmental immunity as a special defense. See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.26 719 (1995) ("governmental immunity must be raised as a special defense in the defendant's pleadings.") However, the Appellate Court recognized in Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003), that there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. "[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." Id., 299 n. 6.
First, this court concludes that the plaintiffs have alleged sufficient facts to demonstrate on the face of the complaint that the defendants were engaged in a governmental function while performing the acts and omissions complained of by the plaintiffs. Specifically, the plaintiffs allege that the City of New Haven, the New Haven Board of Education, and Superintendent Reginald Mayo were obligated, among other things, to supervise and maintain the public school that the plaintiff attended. See Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 A.2d 266 (1980) (the act of providing public education for students is a basic governmental function.) Therefore, a motion to strike is the proper vehicle for raising the issue of governmental immunity in the present case because the alleged facts demonstrate that the defendants were engaged in a governmental function.
Next, this court must determine whether counts one and four should be stricken because the defendants are entitled to governmental immunity. In their memorandum of law in support of the motion to strike, the defendants assert that each of the defendants are entitled to governmental immunity under General Statutes § 52-557n(a)(2)(B) because a municipality and its agents are not held liable for 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." The defendants argue that the acts or omissions that the plaintiffs allege against the defendants amount to conduct that requires the exercise of judgment and therefore, the defendants are entitled to governmental immunity. The acts or omissions that the plaintiffs allege include the failure to make a reasonable and proper inspection and the failure to maintain the premises upon which the plaintiff fell in a reasonably safe condition. The Supreme Court has held that "what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment." Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989). Consequently, construing the alleged facts most favorably for the plaintiffs, the defendants would be shielded by governmental immunity because their alleged acts involved the exercise of discretion unless there is some exception to the doctrine of governmental immunity which applies in the case.
The plaintiffs argue that the defendants are not entitled to immunity because the facts fall within the identifiable person or foreseeable victim exception to governmental immunity. "While municipal employees generally have a qualified immunity from tort liability for the performance of discretionary acts, an exception has been recognized where the circumstances have made it apparent to the employee that the failure to act would be likely to subject an identifiable person to imminent harm." Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994). In Burns, a student fell and suffered injuries on an icy path on school grounds that had not been sanded or salted, nor had any warnings been issued to students as to its condition. Id., 642. The Supreme Court stated: "we note that statutory and constitutional mandates demonstrate that school children attending public schools during school hours are intended to be the beneficiaries of certain duties of care. Statutes describe the responsibilities of school boards and superintendents to maintain and care for property used for school purposes." Id., 648. The Court held that public school students are members of a foreseeable class of victims to whom the school owes a special duty of care and, thus, the defense of governmental immunity does not apply to actions involving public school children. Id., 650. See also Purzyki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998); Durrant v. Board of Education, CT Page 17967 284 Conn. 91, 931 A.2d 859 (2007).
Applying the holding in Burns, this court concludes that the facts as alleged in Counts One and Four fall within the identifiable person exception. Here, as in Burns, the plaintiff allegedly suffered her injuries during a school sanctioned recess on the school's playground. Therefore, the plaintiffs have pleaded facts that are legally sufficient to maintain causes of action against the defendants and therefore, the defendants' motion to strike counts one and four is denied.
II. Count Two
In count two, the plaintiffs claim that the City of New Haven is liable pursuant to General Statutes §§ 7-465 for negligently causing the plaintiff's injuries. The defendants argue that count two against the City of New Haven should be stricken because the statutes do not permit the plaintiffs to maintain a claim for negligence directly against the municipality.
"Sec. 7-465. Assumption of liability for damage caused by employees or members of local emergency planning districts. Joint liability of municipalities in district department of health or regional planning agency.
(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . ."
The plaintiffs have pleaded also cause of action in count two against the City of New Haven pursuant to § 10-235. While a cause of action can arguably be maintained against the city under § 7-465, it appears that the plaintiff, in error, included § 10-235 in the text of count two. By its language, § 10-235 is applicable only to boards of education, Here, the named defendant in count two is the City of New Haven and not the New Haven Board of Education. Therefore, § 10-235 is not applicable to the named defendant in count two and a cause of action pursuant to § 10-235 cannot be maintained against the City of New Haven.
The well-established parameters of § 7-465 were outlined by the Supreme Court in Martyn v. Donlin, 148 Conn. 27, 166 A.2d 856 (1961). "In order for the plaintiff in this case to establish the liability of the municipality under 7-465, she must prove compliance with the requirements of the statute as to demand and notice and that the conduct of the employee of which she complains was not wilful or wanton. The complaint should be in two counts: the first, alleging the facts essential to the legal liability of the employee, and the second, the facts essential to the legal liability of the municipality under the statute." Id., 32.
In view of the long standing precedent surrounding § 7-465, a plaintiff can maintain a claim for negligence directly against a municipality based upon the negligence of a municipal employee. Here, the plaintiffs satisfied the requirements of § 7-465 by alleging liability against a named individual employee of the municipality and then in a separate count, alleging liability against the municipality. Having satisfied the pleading requirements of § 7-465, the plaintiffs have sufficiently pleaded facts to maintain a direct cause of action against the City of New Haven. Accordingly, the defendants' motion to strike count two is denied.
III.
Count Three
In count three the plaintiffs claim that the New Haven Board of Education is liable pursuant to General Statutes §§ 7-465 and 10-235 for negligently causing the plaintiff's injuries. The defendants argue that count three against the New Haven Board of Education should be stricken because the statutes do not permit the plaintiffs to maintain a claim for negligence directly against the Board of Education.
It appears that the plaintiffs included § 7-465 in the text of count three in error. By its language, § 7-465, is applicable only to municipalities, whereas the named defendant in count three is the New Haven Board of Education. Therefore, § 7-465 is not applicable to the named defendant in count three and a cause of action pursuant to this statute cannot be maintained against the New Haven Board of Education.
"Sec. 10-235. Indemnification of teachers, board members, employees and certain volunteers and students in damage suits; expenses of litigation.
(a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff . . . employed by it, from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person, or in accidental damage to or destruction of property . . ."
While neither the Appellate Court, nor the Supreme Court have definitively ruled on this issue, ". . . the majority of Superior Court decisions have held that § 10-235 is solely an indemnification statute and does not permit a direct cause of action against a board of education." (Internal quotation marks omitted.) Barnum v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 5000225 (October 29, 2007, Espinosa, J.), citing D'Alessio v. Ansonia, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 0070881 (October 11, 2000, Nadeau, J.) [ 28 Conn. L. Rptr. 361]. See also Logan v. New Haven, 49 Conn.Sup. 261, 873 A.2d 275 (2005) [ 38 Conn. L. Rptr. 700]; Fotheringham v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 06 5007577 (February 1, 2007, Cosgrove, J.); Williams v. Bridgeport Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 05 4009664 (October 12, 2007, Maiocco, J.T.R.); Duffus v. McClendon, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182286 (April 12, 2001, Karazin, J.) [ 29 Conn. L. Rptr. 536]; Walsh v. Watertown Board of Education, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-980149790 (November 6, 2000, Wiese, J.); and Loman v. Frank, Superior Court, judicial district of New Haven, Docket No. 398833 (May 19, 1999, Devlin, J.).
In King v. Board of Education, the Supreme Court concluded that the purpose of § 10-235 was "to make indemnification available to a board of education employee for losses sustained from claims or suits . . . resulting from any act of the employee performed in the discharge of his or her duties . . ." 195 Conn. 90, 97, 486 A.2d 1111 (1985) (internal quotation marks omitted). A majority of trial courts have interpreted the Court's holding in King to mean that the "statute, by its terms, provides for indemnification of employees of the board or its members but does not give plaintiffs a direct cause of action." Loman v. Frank, supra, Superior Court, Docket No. 398833.
"A few Superior Court cases support the plaintiff's ability to bring this action directly under § 10-235. However, these cases, for the most part, gave little reasoning for their decisions. The exception was Rosen v. Reale, Superior Court, judicial district of New London at New London, Docket No. 527510 (January 13, 1994, Hurley, J., 9 CSCR 176), which relied on the Appellate Court case Burns v. Board of Education, 30 Conn.App. 594, 621 A.2d 1350 (1993). The Appellate decision, while related to the issue, did not directly discuss whether or not a direct cause of action would be allowed under General Statutes § 10-235. Moreover, this decision was later reversed by the Supreme Court, with no further discussion of General Statutes § 10-235. See Burns v. Board of Education, supra, 228 Conn. 640. In light of the greater authority and reasoning denying a direct cause of action for indemnification by an injured plaintiff under General Statutes § 10-235, the defendants' motion . . . is granted." Ambrose v. Singe, Superior Court, judicial district of Danbury, Docket No. 320896 (June 10, 1997, Stodolink, J.) [ 19 Conn. L. Rptr. 639].
Cases cited in footnote 6 of Ambrose v. Singe, Superior Court, judicial district of Danbury, Docket No. 320896 (June 10, 1997, Stodolink, J.) [ 19 Conn. L. Rptr. 639]; Pastor v. Bridgeport, 27 Conn.Sup. 337, 338, 238 A.2d 43 (1967); Grimes v. Rouser, Superior Court, judicial district of New London at New London, Docket No. 518242, 10 Conn. L. Rptr. 14 (August 24, 1993, Hendel, J.); Rosen v. Peale, Superior Court, judicial district of New London at New London, Docket No. 527510 (January 13, 1994, Hurley, J., 9 CSCR 176); Nowinski v. Town of Greenwich, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 111420 (March 16, 1994, Lewis, J.).
This court joins the majority and concludes that § 10-235 does not create a direct cause of action against a board of education by an injured plaintiff. Therefore, the plaintiffs' third count must be stricken.
Conclusion
For the foregoing reasons, this court denies the defendants' motion to strike counts one, two and four of the plaintiffs' amended complaint and grants the defendants' motion to strike count three of the plaintiffs' amended complaint.