Opinion
No. CV 07 5004521
August 26, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This case arises from an incident at Fitch Senior High School ("Fitch") in Groton, Connecticut, in which Cassandra Beckwith, a minor, through her mother, Marilyn Beckwith, alleges that she was injured when fellow students forced a bathroom door shut and jammed her left hand in it. The complaint, as amended, essentially alleges negligence (counts one though five) against fellow students Anthony O'Hara and Kelsey Black, the town of Groton ("the town") and the Groton Board of Education ("the board"), Richard Chiappetta, the band teacher at Fitch and John Luciano, the former principal of the school. Pending before the court is a motion for summary judgment filed on behalf of the town, the board, Chiappetta and Luciano.
The sixth count is brought by Marilyn Beckwith claiming medical expenses.
"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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "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. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . 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]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In support of their motion, the defendants assert that the plaintiffs' claims against them are barred by the doctrine of governmental immunity to which no exception applies, and accordingly, they are entitled to judgment as a matter of law. The plaintiffs counter that Cassandra Beckwith's claims against the defendants qualify under the identifiable person-imminent harm exception to governmental immunity.
"Section 52-557n . . . specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity." (Citation omitted.) Durrant v. Board of Education, 284 Conn. 91, 105, 931 A.2d 859 (2007). Section 52-557n(a)(2)(B) states: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . 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."
"Prior to the enactment of § 52-557n, municipalities generally were immune for the discretionary acts of their officials . . . This court has explained the policy rationale for this immunity as follows: Municipal officials are immunized 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 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 . . . Under its common-law authority, the court recognized limited exceptions to the discretionary acts immunity . . . Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity to encourage municipal officers to exercise judgment has no force . . . As a result, under the common law, [t]he discrete person/imminent harm exception to the general rule of governmental immunity for employees engaged in discretionary activities ha[d] received very limited recognition in this state." (Citations omitted; internal quotation marks omitted.) Durrant v. Board of Education, supra, 284 Conn. 105-06.
For the identifiable person/imminent harm exception to apply, three things are required: "(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." Doe v. Peterson, 279 Conn. 607, 616, 903 A.2d 191 (2006). These three core requirements are to be analyzed conjunctively. Id., 620. The identifiability requirement applies "not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Id., 618.
" Burns was the first case decided by this court after the enactment of § 52-557n(a)(2)(B) to address the foreseeable victim/imminent harm exception that the court previously had recognized under its common-law authority. Although Burns and its progeny implicitly proceeded from the assumption that the statute had codified the common law in considering whether a class of victims could be foreseeable, the court's reasoning was consistent with the narrow common-law view of the exception. The only identifiable class of foreseeable victims that we have recognized for these purposes is that of school children attending public schools during school hours. In determining that such schoolchildren were within such a class, we focused on the following facts: 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 quotations marks omitted.) Durrant v. Board of Education, supra, 284 Conn. 107-08.
In Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994), the court held that a student injured when he slipped and fell on ice while on school premises during school hours was a member of a foreseeable class of victims to whom the superintendent owed a special duty of care and, thus, the defense of governmental immunity did not apply. The court reasoned that the student was compelled by statute to be on those school grounds, which were particularly treacherous and the potential for harm from a fall on ice was significant and foreseeable thus governmental immunity was no defense. Id. Later in Purzycki v. Fairfield, CT Page 14484 244 Conn. 101, 103, 708 A.2d 937 (1998), a minor plaintiff suffered injuries when he was tripped by another student in an unmonitored school hallway. In discussing the applicable exception to governmental immunity, the court noted that the imminent harm was limited to a one-half hour time period when second grade students were dismissed from the lunchroom "to traverse an unsupervised hallway, when school administrators were aware that unsupervised children are more like to run and engage in horseplay leading to injuries" giving them "reason to foresee the danger that could occur on a daily basis . . ." Id., 110-11. Thus, Burns and Purzycki, "utilized criteria including the duration, geographic scope, significance and foreseeability of the risk of harm to gauge whether that risk correctly may be considered imminent." Doe v. Peterson, supra, 279 Conn. 618 n. 10.
In Prescott v. Meriden, 273 Conn. 759, 764, 873 A.2d 175 (2005), the court refused the adult plaintiff's invitation to enlarge the category of foreseeable victims, emphasizing that the only class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours. The unsuccessful plaintiff in Prescott was the parent of a high school student-athlete who was attending his son's football game as a spectator on school grounds after school hours. Id., 761-62. Finally, in Durrant v. Board of Education, supra, 284 Conn. 108-09, the court rejected the claim of a parent who was injured upon the public school grounds she had visited in order to pick up her child who had completed an extracurricular activity.
In the present case, the defendants concede that Cassandra Beckwith, as a student attending a public school during school hours, is a member of a foreseeable class of victims to whom the school authorities owed a special duty of care. Thus, disposition of this motion depends on the existence of genuine issues of material fact as to the question of whether there was imminent harm to Beckwith and whether it was apparent to the defendants that their conduct was likely to subject the plaintiff to that harm.
In Colon v. New Haven, 60 Conn.App. 178, 187-88, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), the court held that the plaintiff schoolchild was a foreseeable victim subject to imminent harm when, while walking in a hallway, he was struck by a door swung open by a teacher. Later, in Doe v. Board of Education, 76 Conn.App. 296, 297, 819 A.2d 289 (2003), the Appellate Court rejected the claim of a twelve-year-old student who was sexually assaulted by three male students in a classroom that was off limits to both her and her attackers. There, the court distinguished that scenario from cases in which the identifiable person, imminent harm exception was applied by finding that the alleged danger was not limited to a particular area of the school and a particular time period. Id., 304-05. Furthermore, the court concluded that the facts alleged did not show that it was apparent to the board that students would likely be subject to imminent harm if it failed to act. Id., 305-06.
Superior Courts addressing the imminent harm requirement have almost unanimously denied summary judgment when there are questions concerning the duration, geographic scope, significance and foreseeability of the risk of harm. See Sheehan v. Coventy Board of Education, Superior Court, judicial district of Tolland, Docket No. CV 07 5002086 (May 13, 2009, Bright, J.) (genuine issue of material fact as to the existence of imminent harm when plaintiff was injured during a chemistry lab class after another student removed a stopper from a flask containing hydrogen gas and then lit a match, resulting in the explosion); Maretz v. Huxley, Superior Court, judicial district of New Haven, Docket No. CV 07 5011978 (January 12, 2009, Corradino, J.) (genuine issue of material fact as to the existence of imminent harm when plaintiff was hit in the head by another student during his lunch period); Jahic v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000255 (September 26, 2008, Roche, J.) (sufficient issues of fact concerning the level of supervision and the nature of recess activities by second graders on a hard impact area when student alleged that during a game of freeze tag a male student involved in the game pushed a female student, also involved in the game, who in turn fell into student); Barnum v. Milford, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 5000225 (October 29, 2007, Espinosa, J.) (sufficient issues of fact presented when student alleged that she was injured in gym class when she fell into an unpadded wall in the school gym).
II
In the present case, the plaintiff alleges the following in her amended complaint. "On or about February 28, 2006, at approximately 12:10 p.m., the minor-plaintiff, Cassandra Beckwith, had returned from her lunch period to the band classroom, waiting for her band class to begin. She then proceeded to use the bathroom located in the band room foyer. As she attempted to exit the bathroom, the door was difficult to open. Unbeknownst to her, the defendants, Anthony O'Hara and Kelsey Black, were forcing the door shut on the opposite side, when Cassandra's left hand became jammed in the door causing her to suffer personal injuries and losses . . ." The plaintiff alleges that the town, the board, Chiappetta and Luciano are liable because "they failed to exercise reasonable supervision, when they permitted the . . . minor-defendants to hold the bathroom door shut while the minor-plaintiff attempted to exit, thereby creating a dangerous and hazardous condition"; "they failed to utilize a classroom monitor, when it would have been reasonable to do so following the lunch recess period and before the start of band class"; and "they failed to prevent the . . . minor defendants from using a school supplied rope to prevent the minor-plaintiff from exiting the bathroom."
The defendants offered portions of the deposition of Cassandra Beckwith in support of their motion for summary judgment. See Exhibit A to the Defendants' Memorandum in Support of Motion for Summary Judgment ("Defendants' Memorandum"). Beckwith testified as follows: Her injury occurred when she returned to band class after a lunch break. Id., 17. When students returned from their lunch break, they would highlight their names on a list to show they had returned to class. Id., 18. Once class had begun, the band teacher, Mr. Chiappetta, would call the highlighted names to confirm that the students were in class. Id. When she returned from lunch, she highlighted her name and then proceeded to the bathroom located in a foyer outside of the band room. Id., 22-24. Soon after, the incident during which she was injured occurred. Id., 26-28. She did not know where the rope used to slam the door shut came from; id., 33; and had no knowledge of other Fitch students playing a game in which they would tie a rope to a doorknob and pull it to prevent persons from exiting a room. Id. She did, however, witness such a game being played without a rope, yet neglected to report it to school officials. Id., 34-35. Fitch had hall monitors at the time of her injury. Id., 35. To the portions of the deposition transcript, the defendants attached pictures of the bathroom and foyer where the incident allegedly occurred.
The defendants also presented portions of the deposition of Alexandra Gil. See Exhibit B to Defendants' Memorandum. Gil stated as follows: The bathroom where the alleged incident took place was located outside of the band room. Id., 19. When questioned about the rope, Gil stated: "I know that it would be either used to secure the percussion instruments or perhaps to tie — we had a prop cart, so perhaps to tie the carts together or even tie as a handle onto a water jug or something." Id., 22. Although she could not say with certainty how long the whole incident lasted, it could have been less than five minutes or even less than one minute. Id., 25-26.
The defendants also appended an affidavit of Richard Chiappetta in support of the motion for summary judgment. See Exhibit C to Defendants' Memorandum. Chiappetta attested as follows: On the day in question, "the class took a break for lunch at 11:37 a.m. and reconvened at 12:09 p.m. . . . the second lunch period ended at 12:03 p.m. and band class reconvened at 12:09 p.m. Accordingly, students in the band class had six minutes in between periods to return to class . . . During these six minutes, I monitored the hall in the vicinity of the band class to ensure students' orderly return to class, and thereafter, entered class attendance in my computer." See Exhibit C, ¶¶ 5, 9-10. The bathrooms were located outside of the band room. Id., ¶ 12. Students were permitted to use these bathrooms before, during, and at the end of class. Id., ¶ 14. Fitch had two hall monitors on staff, but they did not monitor the band foyer because that was an area monitored by him. Id., ¶ 18. As of the date of the incident, there were no written policies regarding the monitoring of this area or of the cabinets, which contained "band paraphernalia." Id., ¶¶ 19-20. The monitoring of these areas (the band foyer and the band cabinets) was left to his discretion and that, prior to the incident, he did not know of students using a rope to close another student in a room. Id., ¶¶ 21-26.
The defendants also included portions of the deposition of Anthony O'Hara. See Exhibit E to Defendants' Memorandum. O'Hara testified as follows: The entire incident occurred quickly. Id., 27. Mr. Chiappetta was in the classroom setting up music when the incident occurred. Id., 32. The rope used in the incident was located in a cardboard box in the band foyer. Id., 37. Finally, the defendant attaches portions of the deposition of Kelsey Black. See Exhibit B to Defendants' Memorandum. Black testified that she saw O'Hara get the rope from a corner of the band room foyer. Id., page 27. She also states that at the time of the incident, Mr. Chiappetta was located in the band room, out of view of the foyer and that the foyer area was not monitored by hall monitors at the time of the incident. Id., 41, 43 and 65. Furthermore, she states that she had seen other Fitch students use a rope to keep someone in a bathroom. Id., 56.
In opposition to the motion for summary judgment, the plaintiffs also attached and referenced portions of the depositions of the witnesses to their memorandum, including the deposition of Richard Chiappetta. See Exhibit A to Plaintiffs' Memorandum in Opposition to Motion for Summary Judgment ("Plaintiffs' Memorandum"). In his deposition, Chiappetta reiterated the statements contained in his affidavit including the following: On the day in question, the students were released from lunch at 12:03 and had six minutes to get back to class before it started at 12:09. Id., 16. In the past, he had yelled at students for engaging in certain activities in the foyer area where the incident took place. These activities did not include using a rope to close a bathroom door. Id., 64-66.
The plaintiffs also reference the deposition testimony of Alexandra Gil. See Exhibit B to the Plaintiff's Memorandum. As the plaintiffs point out, Gil states that there were six to eight students in the foyer prior to the start of class on the day in question. Id., 18. "It was common for pranks to be pulled in band, especially in the lobby area, whether it be playing hacky sack and taking someone's hat or holding the door when someone was in the bathroom." Id., 56. The plaintiffs also reference portions of the deposition of Anthony O'Hara in which he states that he had seen students use a rope to force a door shut. See Exhibit C to the Plaintiffs' Memorandum, p. 29. Finally, the plaintiffs reference the deposition of Kelsey Black. See Exhibit D to Plaintiffs' Memorandum. Black stated that she had heard of other Fitch students tying a rope around a door. Id., 41, 67.
In view of the deposition testimony, the court finds that the defendants have failed to meet their burden of demonstrating that there are no genuine issues of material fact as to whether there was imminent harm to the plaintiff based upon the duration, geographic scope, significance and foreseeability of the risk of harm to Chiappetta and/or other school officials. Of particular note, is conflicting testimony regarding the location of the rope used in the incident, the number of students present, the duration of the incident, the previous occurrence of similar incidents and whether Chiappetta actually monitored the area on the day and during the time period in question as was his admitted responsibility. In light of these genuine issues of material fact, the defendants are not entitled to summary judgment.
Conclusion
For all of the foregoing reasons, the defendants' motion for summary judgment is hereby denied.