Opinion
No. CV 07-5011441 S
June 22, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#128)
DISCUSSION
Prior to commencing trial, the court will address the defendant's, Madison Board of Education's, motion for summary judgment. The court will first address the defendant's argument as to the applicability of the Appellate Court's recent decision in Haynes v. Middletown, AC 30964, which will be officially released on June 22, 2010. The Haynes court affirmed the trial court's decision to set aside a jury verdict in favor of the plaintiff student on the grounds that the defendant city was entitled to governmental immunity. "[W]e conclude that the court properly set aside the jury verdict because the verdict was against the law. We reach that conclusion because the defendant specially pleaded and proved that it was entitled to governmental immunity, but the plaintiffs failed to plead an exception to discretionary act immunity under § 52-557n(a)(2)(B) in their reply to the defendant's special defense."
The court explained: "The plaintiffs filed a general denial to the defendant's specially pleaded defense of governmental immunity. When the defendant moved for a directed verdict at the conclusion of the evidence in the plaintiffs' case, they indicated that the identifiable person, imminent harm exception was applicable to the facts of the case. The plaintiffs did not, however, move to amend their reply to allege the identifiable person, imminent harm exception to governmental immunity . . . When the plaintiffs conceded that the defendant's actions were discretionary, it then clearly was the plaintiffs' burden to plead and to prove the exception to that immunity. Pursuant to Practice Book § 10-57, a `[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply . . .' The plaintiffs failed to comply with the rules of practice and failed to place this issue before the jury. Accordingly, our plenary review of the pleadings . . . discloses that the plaintiffs never made the applicability of the identifiable victim, imminent harm exception to discretionary act immunity a legal issue in the case because they failed to plead it in their complaint or in their reply to the defendant's special defense of governmental immunity. Without a jury finding that the defendant's negligence subjected the plaintiff to imminent harm, the plaintiff legally could not prevail on his negligence claim." (Citations omitted.)
In the present case and contrary to the defendant's argument, the plaintiff clearly plead in the operative complaint: "That this action is authorized pursuant to Connecticut General Statutes sections 52-557n and 10-220." The plaintiff did fail, however, to plead the applicability of the identifiable person-imminent harm exception to governmental immunity as the Appellate Court's decision in Haynes now appears to require. Despite this oversight, this court refuses to hold the plaintiff to a pleading standard set forth by a decision of our Appellate Court set to be released on the same day that the plaintiff is scheduled to commence trial.
Prior to Haynes, the three exceptions to governmental immunity were incorporated into a plaintiff's pleading of or reference to the statute. See Grady v. Town of Somers, 294 Conn. 324, 329, 984 A.2d 684 (2009) ("[d]espite the plaintiff's failure to cite § 52-557n(a) in his complaint as the sole basis for his claim against the defendant, a municipality, the trial court stated that the statute `incorporates the three exceptions to governmental immunity previously recognized under the common law'"). Once a plaintiff indicated reliance on § 52-557n, a defendant would attempt to dismiss the action by filing a motion to strike or a motion for summary judgment on the basis that the three exceptions did not apply to the facts of the case. By example, in Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003), the Appellate Court concluded that the trial court improperly granted the defendants' motion for summary judgment on the basis of governmental immunity and the plaintiffs' failure to plead the statute abrogating that immunity.
In addressing the latter, the court stated: "[T]he plaintiffs in the present case relied on the statute in their memorandum of law in opposition to the motion for summary judgment and in oral argument before the trial court. That sufficiently apprised the defendants that the plaintiffs were relying on § 52-557n to abrogate governmental immunity. Under the circumstances of this case, the defendants cannot complain of unfair surprise." Id.; see also Colon v. New Haven, 60 Conn.App. 178, 188 n. 4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) ("plaintiffs raised General Statutes § 52-557n . . . in opposing the defendant's motion for summary judgment. While the defendant is correct in pointing out that the plaintiffs did not cite § 52-557n in their complaint or amend their complaint to include such statute, the plaintiffs' failure to do so does not necessarily preclude recovery. Although Practice Book § 10-3(a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory . . . As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery"). Interestingly, the Haynes court makes no reference to either Spears or Colon. In sum, the court will not dismiss the claim against the board on the basis of Haynes and will address the substantive merits of the motion for summary judgment.
It is clear that §§ 10-220 and 52-557n both provide a direct cause of action against the board. In Pabon v. New London Board of Education, Superior Court, judicial district of New London, Docket No. 555824 (August 14, 2001, Martin, J.), the plaintiff alleged that he was physically assaulted by another high school student on school grounds and brought a negligence action against the board of education pursuant to General Statutes § 10-220 and § 10-221(a). The board filed a motion to strike this count on the ground that it is legally insufficient under General Statutes § 10-235. The court denied the board's motion, finding that the plaintiffs alleged a legally sufficient claim of negligence. The court stated: "§ 10-235 provides indemnification by the board of education for teachers and other school employees, but a plaintiff cannot sue a board of education directly under the statute . . . In the present case, however, the plaintiffs have not filed suit pursuant to General Statutes § 10-235 but have alleged that the board has a duty pursuant to General Statute § 10-220 and General Statute § 10-221. Therefore, the previous holding of this court regarding § 10-235 is inapplicable to the plaintiffs' claim of negligence against the board of education." (Citation omitted.) Id.
The court continued: "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . The plaintiffs allege that the board of education has a duty pursuant to General Statutes §§ 10-220 and 10-221. General Statutes § 10-220 imposes a duty on the board to maintain a `context and environment' that is suitable for learning and free from danger or risk . . . The plaintiffs allege (1) that the defendant breached its duty when it failed to protect Pabon; (2) that Pabon was seriously injured; and (3) that the defendant's actions were a direct and proximate cause of Pabon's injury . . . The plaintiffs further allege that the board is liable for damages pursuant to General Statutes § 52-557n." (Citations omitted; internal quotation marks omitted.) Id.; see also Pringle v. Coleman, Superior Court, judicial district of New Haven, Docket No. CV 08 5020586 (January 12, 2009, Thompson, J.) (granting board's motion to strike plaintiff's claim, brought pursuant to § 10-220, finding that the discrete person-imminent harm exception did not apply to the action of plaintiff, who was the brother of a student).
More significantly, and contrary to the defendant's argument, a plaintiff may bring a direct cause of action against a board of education pursuant to § 57-557n. The defendant's reliance on dicta in Pane v. Danbury, 267 Conn. 669, 677-78 n. 9, 841 A.2d 684 (2004), is misplaced given that it was overruled by Grady v. Somers, supra, 294 Conn. 324. In Grady, the trial court agreed with the defendant city's argument that the plaintiff could not resort to the identifiable person-imminent harm exception to maintain a direct action against the town under § 52-557n(a)(1)(A), and that the exception would be applicable only if he first had named a municipal employee as a codefendant, and then had claimed indemnification from the defendant pursuant to § 7-465(a). See id., 327. This is the exact argument advanced by the defendant.
The Supreme Court, however, held that the trial court's decision was improper stating: "[W]e disagree with the trial court's determination . . . overrule the dicta in Pane v. Danbury, supra, 267 Conn. 677-78 n. 9, that states otherwise, and conclude that the identifiable person, imminent harm exception to employees' qualified immunity applies to the immunity afforded to municipalities for the negligent performance of discretionary acts under § 52-557n(a)(2)(B)." Id., 349. Therefore, the Supreme Court concluded that: "[T]he identifiable person, imminent harm exception to qualified immunity for an employee's discretionary acts is applicable in an action brought under § 52-557n(a) to hold a municipality directly liable for those acts." (Emphasis added.) Id., 332. The court is surprised and disappointed by the defendant's oversight of Grady, given that it appears to be aware of the evolution of this area of law in its reliance upon an advance release opinion of our Appellate Court.
The defendant's next argument is that the board is shielded from liability on the basis of sovereign immunity. In Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006), the Supreme Court stated: "General Statutes § 52-557n 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." This pronouncement undercuts the defendant's argument and additionally, its reliance on Esposito v. Bethany, Superior Court, judicial district of New Haven, Docket No. CV 06 5002923 (May 3, 2010, Corradino, J.), is again, misplaced.
In Esposito, the court dismissed the plaintiffs claims, based upon §§ 10-220 and 10-221, against the town because "the towns have no duty with regards to the discipline and supervision of students." Id. The Esposito court then went on to analyze the claims against the board and in doing so, engaged in governmental immunity analysis, including application of the identifiable person-imminent harm exception. In denying summary judgment, the court stated: "The appellate courts have relaxed the identifiable person requirements as regards school children — they are a foreseeable class to be protected. As regards application of the imminent harm requirement of the exception to governmental immunity we are discussing, this Court must assume that a similarly protective attitude will be applied in examining the imminent harm requirement — bullying is condemned by state statute, children must attend schools, children are not as capable of defending themselves, they are vulnerable in the entire school area where unsupervised conduct prevails, and the bullying concept includes, before the adequacy of supervision is addressed factually, a particular child subject to these acts." Id.
Thus, the court must next determine whether the identifiable person-imminent harm exception applies, as the plaintiff concedes in her brief that her allegations invoke discretionary act immunity. In Doe v. Petersen, supra, 279 Conn. 616, the court stated: "Discretionary act immunity is abrogated 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." (Internal quotation marks omitted.)
Additionally, "[i]n delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts . . . whether the relationship was of a voluntary nature . . . the seriousness of the injury threatened . . . the duration of the threat of injury . . . and whether the persons at risk had the opportunity to protect themselves from harm . . . Applying these factors . . . 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 [such as § 10-220] describe the responsibilities of school boards and superintendents . . ." Burns v. Board of Education, 228 Conn. 640, 647-48, 638 A.2d 1 (1994).
Our Supreme Court has held that the identifiable person-imminent harm exception applies to the claims of students injured while participating in classroom activities, at school and during school hours. In Burns v. Board of Education, 228 Conn. 649-50, supra, the court held that the student plaintiff, who 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. In doing so, the Burns court noted that: "[This] danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus. Further, the potential for harm from a fall on ice was significant and foreseeable." Id., 650.
Our Supreme Court has, however, barred liability for injuries to non-students on school grounds. See e.g., Cotto v. Board of Education, 294 Conn. 265, 984 A.2d 58 (2009) (plaintiff, a summer program director, was not an identifiable person subject to imminent harm because the potential for harm was neither sufficiently immediate nor sufficiently certain); Durrant v. Board of Education, 284 Conn. 91, 931 A.2d 859 (2007) (plaintiff, who fell on a puddle of water on an outside staircase of a public school attended by her child, was not a member of an identifiable class of persons subject to imminent harm); Prescott v. Meriden, 273 Conn. 759, 873 A.2d 175 (2005) (parent attending his child's public school athletic event was not within class of foreseeable victims for purposes of the exception to the governmental immunity doctrine).
Similarly in Purzycki v. Fairfield, 244 Conn. 101, 103-04, 708 A.2d 937 (1998), the plaintiff was injured at school during recess as he ran down a hallway and was tripped by another student. The Supreme Court reversed the trial court's judgment in favor of the defendants finding that there was sufficient evidence from which the jury reasonably could have found a foreseeably dangerous condition. See id., 110. Furthermore, the court found that the imminent harm was limited to a one-half hour period each day when the students were dismissed to traverse an unsupervised hallway, during which school administrators were aware that unsupervised children were more likely to engage in horseplay. See id., 110-11; see also Colon v. City of New Haven, supra, 60 Conn.App. 187-88 (identifiable person-imminent harm exception was applicable when a teacher opened a door into a hallway and hit plaintiff causing injuries).
Furthermore, decisions of the Superior Court addressing the imminent harm requirement in the context of students injured at school during school hours have overwhelmingly denied summary judgment after considering the duration, geographic scope, significance and foreseeability of the risk of harm. See Bacote v. City of New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. CV06 5005855 (April 16, 2010, Wilson, J.) (student alleged she was injured during recess when a fellow student was chasing her on the school playground); Beckwith v. O'Hara, Superior Court, judicial district of New London, Docket No. CV 07 5004521 (August 26, 2009, Peck, J.) (student alleged she was injured when fellow students forced a school bathroom door shut with a rope and jammed her hand in the door); Sheehan v. Coventry Board of Education, Superior Court, judicial district of Tolland, Docket No. CV 07 5002086 (May 13, 2009, Bright, J.) ( 47 Conn. L. Rptr. 785) (student 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 an explosion); Jahic v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000255 (September 26, 2008, Roche, J.) (student alleged that during a game of freeze tag at recess a male student involved in the game pushed a female student, also involved in the game, who then fell on her causing injuries); Barnum v. Milford, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 5000225 (October 29, 2007, Esposito, J.) (student alleged that she was injured in gym class when she fell into an unpadded wall in the school gym); contra Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003); Bacchiocchi v. Carden, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5000407 (August 17, 2006, Sylvester, J.T.R.).
In Doe v. Board of Education, supra, 76 Conn.App. 296, the plaintiff alleged that she was sexually assaulted by three male students in a classroom that neither she nor her attackers had a pass to be present in. The court found that the exception was inapplicable given that the plaintiff's allegations were insufficient to establish that the board's failure to act would be likely to subject students to imminent harm.
Similarly, in Bacchiocchi v. Carden, supra, Superior Court, Docket No. CV 06 5000407, the court agreed with the board that the dangerous condition alleged was not sufficiently limited in both duration and geography. The dangerous condition alleged was that the board allowed another student to bring brass knuckles to school and retain them on his person and allowed him to remain a student, even though the board knew he had a criminal history and a history of assaultive behavior. The court granted the board's motion to strike finding that the injuries to the plaintiff could have occurred at any time and at any place and thus, the harm was not imminent.
In light of these decisions, the court denies the defendant's motion for summary judgment. The plaintiff is a student who was injured in a classroom on school grounds during school hours, while engaging in school activities. Thus, the plaintiff is an identifiable victim. Additionally, the defendant has failed to meet its burden of showing the non-existence of any material fact as to whether the harm alleged in this case was imminent given that it has neither argued nor presented any evidence as to the duration, geographic scope, significance and foreseeability of the risk of the harm. As such, the defendant will proceed to trial.
CONCLUSION
Accordingly, for the foregoing reasons, the defendant's motion for summary judgment is denied.