Opinion
CV146047401
08-01-2017
Eileen M. Denny, PPA v. Town of Hamden Board of Education et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 120)
Jon C. Blue, Judge of the Superior Court.
I. INTRODUCTION
The Motion For Summary Judgment now before the court presents issues concerning both the applicable statute of limitations and municipal immunity. For reasons set forth below, the Motion must be granted in part and denied in part.
Eileen M. Denny commenced this action by service of process on May 1, 2014, on behalf of her son, Michael Brandi (" Michael"). Michael was an elementary school student enrolled at Bear Path School, a public elementary school in Hamden, at the time of the incidents in question. The defendants are the Hamden Board of Education (" Board") and a teacher. The Motion now before the court, however, attacks only the First Count of the Revised Complaint, and the Board is the only defendant named in that count.
The First Count alleges that, while he was an elementary school student, Michael was bullied, on separate occasions, by two different classmates, referred to as " Bully 1" and " Bully 2." Bully 1 allegedly bullied Michael from September 2010 until he was removed from Michael's classroom on November 15, 2011. Bully 2 allegedly bullied Michael from September 2011 until the commencement of the action on May 1, 2014.
Denny commenced this action by service of process on May 1, 2014. Her Revised Complaint consists of three counts. Only the First Count is implicated here. The First Count alleges " Negligence versus the Board of Education." It specifically alleges that the Board was negligent in failing to supervise Bully 1 and Bully 2, failing to follow its own policies related to bullying, and failing to protect Michael from bullying.
The Motion For Summary Judgment now before the court was filed on April 13, 2017. The Motion seeks summary judgment on the First Count of the Revised Complaint. It claims both that the allegations with respect to Bully 1 are barred by the statute of limitations and that the Board is entitled to immunity under Conn. Gen. Stat. § § 10-222l & 52-557n. The Motion was argued on July 31, 2017. The Board's claims will now be considered in order.
II. STATUTE OF LIMITATIONS
Conn. Gen. Stat. § 52-584 provides, in relevant part, that:
No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no action may be brought more than three years from the date of the act or omission complained of . . .
The Board claims the protections of § 52-584 with respect to Denny's allegations concerning Bully 1. It does not make a statute of limitations claim with respect to the allegations concerning Bully 2.
As mentioned, the actions of Bully 1 with respect to Michael ended on November 15, 2011. The action was commenced by service of process on May 1, 2014, approximately two and a half years later.
Denny does not claim the benefit of the " discovery rule" of § 52-584. The parties have presented ample evidence that Denny was quite aware of what was happening to her son at the time that the alleged bullying occurred. Indeed, it is part of her case that, throughout the period of time in question, she promptly complained of these events to the school authorities and that they did nothing in response. Denny instead rests her opposition to the Board's statute of limitations argument on the " continuing course of conduct doctrine." That doctrine, however, is not applicable here.
" The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." Watts v. Chittenden, 301 Conn. 575, 583-84, 22 A.3d 1214 (2011). (Internal quotation marks, brackets, and citation omitted.) The classic example is an action against a medical practitioner who has treated a patient for a lengthy period of time. In a situation such as that, it may be difficult to discover exactly when an act of malpractice has occurred, and it is in many cases possible that the problem could be remedied by future treatment.
A moment's reflection establishes that the continuing course of conduct doctrine has no place in the present case. First, where the courts " have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." Watts v. Chittenden, supra, 301 Conn. at 584. As explained in the memorandum of decision granting the Board's motion to strike the Second Count of the Revised Complaint (No. 111.10), the Board did not have a " special relationship" with either Denny or Michael for purposes of the allegations in this case. Moreover, any " later wrongful conduct" of the Board--presumably related to Bully 2--was not " related to the prior act" --namely the Board's alleged acts and omissions with respect to Bully 1. The alleged acts of Bully 1 and Bully 2 were entirely distinct acts committed by entirely distinct perpetrators.
Second, this is not a case where " specific tortious acts or omissions may be difficult to identify and may yet be remedied." Watts v. Chittenden, supra . 301 Conn., at 583. As mentioned, Denny was very well aware of the alleged tortious acts of Bully 1 and complained about them promptly. Once the acts of Bully 1 had been completed, they could not " yet be remedied." By that time, the injuries inflicted by Bully 1 were irreparable. This situation is not at all comparable to the classic case of a patient being treated over a course of time by a physician.
For these reasons, the continuing course of conduct doctrine has no place in this case. The Motion For Summary Judgment on the First Count is granted with respect to the allegations involving Bully 1.
III. IMMUNITY
The Board claims immunity under both Conn. Gen Stat. § § 10-222 l & 52-557n. Although the Board understandably reviews each of these immunity statutes in its brief, an important meta-question must be considered at the beginning--which of these quite different immunity statutes applies to the facts of this case?
Conn. Gen. Stat. § 52-557n is a familiar statute of general application, first enacted as § 13 of the Tort Reform Act of 1986. P.A. 86-338. Sec. 52-557n(a)(2) provides that, " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) 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." Our Supreme Court has accurately, if unhelpfully, observed that, " The meaning of § 52-557n(a) is far from plain." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 188, 592 A.2d 912 (1991). It is enough, for present purposes, to observe that our Supreme Court " has recognized an exception to discretionary act immunity 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." Haynes v. City of Middletown, 314 Conn. 303, 312, 101 A.3d 249 (2014). (Internal quotation marks and citation omitted.) As Haynes itself shows, the question of exactly what acts " subject an identifiable person to imminent harm" has become a significant cottage industry in our courts.
Sec. 20-222 l, in contrast, is a more recent statute of specific application, first enacted in 2011 as § 10 of An Act Concerning the Strengthening of School Bullying Laws. P.A. 11-232. As the title of P.A. 11-232 indicates, § 10-222 l is specifically designed to address the issue of school bullying. Claims of damages against local boards of education are specifically addressed in subsection (c):
No claim for damages shall be made against a local or regional board of education that implements the safe school climate plan, described in section 10-222d, and reports, investigates and responds to bullying or teen dating violence, as defined in section 10-222d, if such local or regional board of education was acting in good faith in the discharge of its duties. The immunity provided in this subsection does not apply to acts or omissions constituting gross, reckless, wilful or wanton misconduct.
Sec. 10-222 l has not yet been construed by a reviewing court. It is, however, reasonably clear that its provisions are specifically intended to address cases claiming damages from local boards of education for injuries caused by school bullying. Moreover, immunity analysis under § 10-222 l is quite different from immunity analysis under § 52-557n. Under § 52-557n the question is whether a failure to act would be likely to subject an identifiable person to imminent harm. Under § 10-222 l, in contrast, the question is whether the defendant board has implemented a safe school climate plan and has reported, investigated, and responded to bullying in good faith. Which analysis should be implemented here?
The answer is found in a maxim of statutory construction known as the General/Specific Canon. Antonin Scalia & Bryan A. Gamer, Reading Law 183 (2012). Our Supreme Court has recently explained that:
We are mindful of the well established principle of statutory interpretation that requires courts to apply the more specific statute relating to a particular subject matter in favor of the more general statute that otherwise might apply in the absence of the specific statute. It is a well settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling . . . The provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage.LaFrance v. Lodmell, 322 Conn. 828, 835 n. 3, 144 A.3d 373 (2016). (Internal quotation marks, brackets, and citation omitted.)
Under these circumstances, § 10-222 l (c) controls the question of immunity presented in this case.
To obtain immunity in a school bullying case under § 10-222 l (c), a local board of education must do two things: (1) it must implement a safe school climate plan and (2) report, investigate and respond to bullying in good faith. This is a safe harbor provision, somewhat analogous to the affirmative defense judicially created for employers subject to vicarious liability to victimized employees for hostile workplace environments. See Burlington Industries, Inc. v. Ellereth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
The Board has presented evidence that on January 10, 2012, it implemented a safe school climate plan. The remaining question, however, is whether it reported, investigated, and responded to the bullying alleged here in good faith.
Denny has submitted an affidavit stating as follows:
I and my husband and son made numerous complaints to teachers and staff of the School regarding the unwanted and inappropriate touching of Michael on his back, jumping on him at recess and invasion of his personal space by Bully 2. Agents and/or employees of the Board of Education told us that they could not stop " annoying behavior" and that Bully 2 was not acting with " intent."
" [I]ssues of motive, intent and good faith are not properly resolved on a motion for summary judgment." Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). Denny's affidavit presents a factual predicate for her argument that the Board failed to report, investigate, and respond to the acts of Bully 2 in good faith. This raises a genuine issue of material fact as to whether the Board is entitled to immunity pursuant to Conn. Gen. Stat. § 10-222 l (c). Under these circumstances, the Board's Motion For Summary Judgment on the basis of immunity must be denied. P.B. § 17-49.
IV. CONCLUSION
The Motion For Summary Judgment is granted, on statute of limitations grounds, as to the First Count of the Revised Complaint with respect to the allegations pertaining to Bully 1 only. The Motion is otherwise denied.