Opinion
No. CV 06 5002676
August 11, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #115
On March 21, 2006, the minor plaintiff, Ian Blanchardon, through his mother and next friend, Ana Crosby, filed a one-count complaint against the defendant, the Woodbridge Board of Education, alleging the following. For a three month period in 2004, the plaintiff was a student at Beecher Road Primary School in Woodbridge, during which time Eileen O. Roxbee served as principal. Roxbee, acting as the agent, servant and employee of the defendant, "knowingly tolerated an atmosphere of chaos, disruptiveness and violence directed against [the plaintiff] in his classroom, as a result of which he was exposed on a daily basis to so much physical and verbal violence in the classroom and play areas that school became a place of fear and learning could not and did not take place in any meaningful manner." (Plaintiff's complaint ¶ 5.) The plaintiff further alleges that "[t]he acts and omissions described [in paragraph 5] were extreme and outrageous and were carried out with the knowledge that [the plaintiff] would probably suffer emotional distress as a result"; (Plaintiff's complaint ¶ 6); and that the plaintiff "did suffer as a consequence severe emotional distress." (Plaintiff's complaint ¶ 7.)
On May 5, 2006 the defendant flied a request to revise, seeking with regard to paragraph 5 only that the plaintiff provide more facts as to what conduct created the atmosphere of chaos, disruptiveness and violence and a more specific description of the nature and kind of physical and verbal violence to which the plaintiff was allegedly exposed. The plaintiff objected to the defendant's request to revise, stating that "the language to which the defendant objects is verbatim the language approved by the Appellate Court in Bell v. Board of Education, 55 Conn.App. 400 [ 739 A.2d 321] (1999)." The court, Blue, J, sustained the plaintiff's objection, citing Bell, supra.
On December 14, 2007, the defendant filed an amended answer to the plaintiff's complaint and asserted two special defenses. The first special defense asserts statutory immunity, General Statutes § 52-557n(a); the second, common-law governmental immunity. On April 10, 2008, the defendant moved for summary judgment on the ground that "the defendant is immune from liability for the intentional tort allegedly committed by a school principal as a matter of law pursuant to § 52-557n(a)(2) and therefore is entitled to judgment as a matter of law." In support of its motion for summary judgment, the defendant filed a memorandum of law and certified transcripts of deposition testimony of the plaintiff and his mother. On May 6, 2008, the plaintiff filed a memorandum of law in opposition to the defendant's motion, to which the defendant filed a reply memorandum on May 9, 2008.
"Summary judgment is a method of resolving litigation when 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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). The defendant argues that it is entitled to summary judgment as a matter of law because the plaintiff's complaint alleges a claim of intentional infliction of emotional distress, a claim from which it is immune pursuant to General Statutes § 52-557n(a)(2). In addition, the defendant argues that the plaintiff cannot prove any conduct or damage sufficient to meet the test for intentional infliction of emotional distress.
General Statutes § 52-557n(a) provides in relevant part: "(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 (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . ."
The plaintiff argues in opposition that his complaint states "a blended claim of both intentional and negligent infliction of emotional distress" and "[a]s the defendant never sought to revise the complaint to separate the causes of action and the pleadings are now closed, [the defendant] has waived its right to do so at a later time." He further argues: "[T]he cases cited by the defendant which purport to defeat liability against a board of education for the intentional acts of its employees are inapposite as they do not address whether such a board may be liable for the negligent acts of its employees. If the court finds that the plaintiff has in fact pled a combined cause of action, then the defendant's motion must fail." In reply to the plaintiff's contention that his single-count complaint blends claims in intentional and negligent infliction of emotional distress, the defendant argues that "[t]he complaint in the instant action is devoid of two of the four elements required to state a claim for negligent infliction of emotional distress."
It is worth mentioning, once more, that the defendant had attempted to secure, through a request to revise, a more definite statement of the specific conduct supporting the plaintiff's claims that the defendant, through Roxbee's actions, knowingly tolerated an atmosphere of chaos, disruptiveness and violence. The defendant's stated reason for requesting the revision was that "[w]ithout a more specific description of what the alleged misconduct consisted of, the defendant has no way of ascertaining whether or not a motion to strike would be appropriate." (Emphasis added.) The plaintiff's objection to the request to revise stated: "The Complaint is legally sufficient in its present form. Indeed, the language to which the defendant objects is verbatim the language approved by the Appellate Court in Bell v. Board of Education, 55 Conn.App. 400 [ 739 A.2d 321] (1999)." (Emphasis added.)
In Bell v. Board of Education, supra, the case relied upon by the plaintiff to support his objection to the defendant's request to revise, the case whose language the plaintiff claims to have used verbatim, and the case cited by the trial court in sustaining the plaintiff's objection to the request to revise, the determination to be made by the Appellate Court was whether language identical to that used by the plaintiff in the present case was sufficient, in the context of a motion to strike, to state a claim for intentional infliction of emotional distress. The Appellate Court concluded that "the extremely broad allegations contained in . . . the plaintiffs' complaint, not addressed by any request to revise filed by the defendants, were sufficient to establish a cause of action sounding in intentional infliction of emotional distress, which should not have been stricken from the complaint." (Emphasis added.) Id., 412.
The trial court's order dated 05/30/06, reads, in its entirety, as follows: "Sustained. See Bell v. Board of Education, 55 Conn.App. 400, 411 (1999).
In Pane v. Danbury, 267 Conn. 669, 685, 841 A.2d 684 (2004), the Supreme Court noted that under Connecticut law, the term "wilful," as used in § 52-557n(a)(2)(A), is synonymous with "intentional." Thus, the court held that a political subdivision of the state, like the defendant in the present case, "may not be liable under [§]52-557n(a)(2)(A) for [its employee's] alleged intentional infliction of emotional distress." Id. See also O'Connor v. Board of Education, 90 Conn.App. 59, 877 A.2d 860 (2005) (protection of § 52-557n(a)(2) available to municipal defendant as a matter of law); Bell v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV 065002676 (July 19, 2005, Pittman, J.) (political subdivision of state not liable for intentional torts committed by employees).
The plaintiff in the present case apparently now realizes that if his complaint alleges a claim solely for intentional infliction of emotional distress, the defendant is immune from liability and entitled to summary judgment. He therefore argues, for the first time, for an alternate interpretation of his pleadings.
"The construction of a pleading is a question of law . . ."; Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 ((2003); and it is apparent that Judge Blue, by relying on Bell to sustain the plaintiff's objection to the defendant's request to revise, construed the plaintiff's complaint as alleging a cause of action for intentional infliction of emotional distress. In ruling on the defendant's motion for summary judgment, this court must therefore consider the law of the case doctrine. "In essence [the doctrine] expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case . . ." Johnson v. Atkinson, 283 Conn. 243, 249, 926 A.2d 656 (2007). "According to the generally accepted view [however] one judge may in a proper case . . . modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." Id.
See footnote 2, supra.
Although a plaintiff claiming negligent infliction of emotional distress need not prove any particular level of intent; Stohlts v. Gilkinson, 87 Conn.App. 634, 645, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005); to prevail on such a claim, a plaintiff must plead and prove the following elements: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
A careful reading of the substantive allegations of the plaintiff's complaint contained in paragraphs 5, 6, and 7 does not convince this court that the plaintiff's one-count complaint alleges anything more than a claim for intentional infliction of emotional distress. This court does not construe those allegations to allege either that it was foreseeable to Roxbee, as principal of the school, that the plaintiff would suffer emotional distress as a result of her toleration of the atmosphere described by plaintiff as chaotic, disruptive and violent or that the emotional distress he allegedly suffered was severe enough that it might result in illness or bodily harm. Having concluded that the plaintiff's complaint sounds only in intentional infliction of emotional distress, a construction reached earlier in this case by Judge Blue and a claim to which the defendant is immune pursuant to General Statutes § 52-557n(a)(2), this court concludes that the defendant is entitled to judgment as a matter of law.
CONCLUSION
The defendant's motion for summary judgment #115 is, therefore, granted.