Opinion
No. CV 06 5002257
March 23, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The issue before this court is whether the defendants' motion to strike as to counts one, two and three of the plaintiff's complaint should be granted on the ground that they fail to allege facts to state claims for negligence.
Findings of Fact
On August 25, 2006, the plaintiff, John Doe, through Jane Doe as next friend, filed a five-count complaint against the defendants, the Bristol Board of Education, its principals and agents, and a minor defendant, the plaintiff's schoolmate. This action arises out of injuries allegedly sustained from September 2004 until January 2005, when the plaintiff alleges that he was bullied and sexually harassed by the minor defendant, his schoolmate at the Chippens Hill Middle School in Bristol, Connecticut.
While the plaintiff has alleged facts that implicate three schoolmates in the acts of bullying and harassment, only one of the schoolmates has been summoned as a defendant. This minor defendant is identified as "William Roe" in the amended complaint.
The complaint alleges the following facts. Beginning on September 15, 2004, the plaintiff alleges that he told his mother that the defendant bothered him throughout the school day. In November 2004, the plaintiff alleges that the defendant shoved him against his locker and flicked his ears on repeated occasions. That same month, this defendant allegedly sexually harassed the plaintiff by holding his school binder at groin level and rubbing against the plaintiff in a sexual manner. The complaint alleges that this occurred several times a day and several days during the week.
In early December 2004, the plaintiff alleges that he reported the harassment to his social studies teacher. The plaintiff alleges that the teacher failed to report the incident to his supervisors, in violation of the school's sexual harassment policy. Also in early December 2004, the plaintiff's mother allegedly contacted his science teacher to report the harassment. Shortly after that communication, the plaintiff was called to the office of the assistant vice principal, the defendant Christopher Cassin. The plaintiff alleges that at that meeting he told defendant Cassin about the harassment although, to his knowledge, nothing was done to remedy the problem and the plaintiff's mother was not notified.
On December 17, 2004, the minor defendant allegedly "humped" the plaintiff, this time without holding a binder at his groin. The plaintiff's mother called the school principal, Michael Ceruto, on December 21, 2004, to set an appointment to discuss the alleged harassment. On that day, she also contacted the Bristol Board of Education superintendent of schools, Michael Wasta. On December 22, 2004, while attending a luncheon at the school, the plaintiff's mother allegedly approached the minor defendant and asked him to stop harassing the plaintiff. The same day, she allegedly met with Ceruto and Cassin, who indicated that an investigation would follow.
On December 22, 2004, Susan Morreau, the deputy superintendent of schools, allegedly returned the plaintiff's mother's call. During their conversation, the plaintiff's mother was asked for the first time if a sexual harassment report form had been submitted. Morreau allegedly expressed disappointment at the school's failure to provide the plaintiff or his mother with the form and promised to investigate the matter with school officials. The complaint also alleges that Morreau stated that if the problem persisted such that the plaintiff could no longer attend the Chippens Hill Middle School, the city of Bristol would pay for a private tutor.
On January 3, 2005, the plaintiff alleged that the minor defendant called him names and, on January 5, 2005, harassed the plaintiff. The plaintiff alleges that he immediately called his mother, who called Ceruto. Ceruto allegedly told the plaintiff's mother that the plaintiff had to report the incident to a teacher. On January 10, 2005, the minor defendant called the plaintiff names again and the plaintiff called his mother. Upon calling Ceruto, the plaintiff's mother was told again that the plaintiff was required to report the incident to a teacher in order for the school to respond.
On January 11, 2005 and January 12, 2005, the plaintiff did not attend school. On January 13, 2005, the plaintiff received a letter from Morreau indicating that the investigation revealed "no evidence of sexual harassment," and he withdrew from the Chippens Hill Middle School on that day.
Count one alleges negligent supervision on the part of the Bristol board of education, its agents and principals. Count two alleges negligent failure to implement and/or enforce policies to prevent sexual harassment. Count three alleges negligent infliction of emotional distress against all defendants. Count four alleges intentional infliction of emotional distress as to all defendants. Count five alleges assault and battery as to the minor defendant.
On November 30, 2006, the defendants filed a motion to strike counts one, two and three of the complaint on the ground that they are legally insufficient. The defendants submitted a memorandum of law in support of this motion. On January 3, 2007, the plaintiff filed a memorandum in opposition.
The minor defendant did not join in this motion.
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[I]n 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Association v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). Finally, "grounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
The defendants filed this motion to strike on the ground that the allegations in the complaint are not legally sufficient because the plaintiff failed to allege a statutory exception to governmental immunity. The defendants further allege that even if an exception was alleged, the motion to strike should be granted because the plaintiff was not in imminent harm. The plaintiff counters that the allegations in the complaint are legally sufficient because the facts in her claim sufficiently abrogate governmental immunity in that the acts alleged were discretionary and the imminent harm-identifiable victim exception applies.
As a threshold matter, the defendants argue that the plaintiff's claim is grounded on the common-law rule for governmental immunity because the complaint failed to indicate a statute abrogating that immunity. "While the defendant is correct in pointing out that the [plaintiff] did not cite § 52-557n in [her] complaint or amend [her] complaint to include such statute, the [plaintiff's] 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." (Citations omitted; internal quotation marks omitted.) Spears v. Garcia, 66 Conn.App. 669, 675-76, 785 A.2d 1181 (2001).
"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. General Statutes § 52-557n(a)(1)(A). General Statutes § 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by 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.'" (Citation omitted.) Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006). "In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts `to be performed in a prescribed manner without the exercise of judgment or discretion.'" Id., 615.
General Statutes § 52-557n provides, in relevant part: "Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions. (a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (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; or (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."
"There are three exceptions to discretionary act 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 . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006).
In the present case, the relevant exception is the one where it is apparent to the municipal official that his or her failure to act may subject an identifiable victim or class of victims to imminent harm. "To prevail, the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her. Demonstration of less than all of these criteria is insufficient." (Emphasis in original.) Doe v. Petersen, supra, 279 Conn. 620.
In the instant case, the plaintiff's allegations indicate that the identifiable person and the awareness by a public official prongs are satisfied. "[The Supreme Court has] established specifically that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." Purzycki v. Fairfield, 244 Conn. 101, 109, 708 A.2d 937 (1998). Thus, the plaintiff, a student enrolled at the Chippens Hill Middle School, was an identifiable person whose complaints to school officials made them aware of the incidents alleged.
The plaintiff's allegations fail to indicate, however, that the harm was imminent. "[The] Supreme Court [has] emphasized the limited nature of the concept of imminent harm . . . [I]n [cases where the identifiable person-imminent harm exception has applied to school children], the identifiable person-imminent harm exception was applicable because the dangerous condition was sufficiently limited both in duration and in geography to make it apparent to the defendants that schoolchildren were subject to imminent harm." Doe v. Board of Education, 76 Conn.App. 296, 302-03, 819 A.2d 289 (2003). In Doe v. Board of Education, supra, 76 Conn.App. 296, the plaintiff was a victim of sexual assault by three male students at her school in facts similar to those of the present case. The court found that the plaintiff in that case had failed to allege facts that demonstrated that the alleged danger was limited to a particular area of the school and a particular time period. Id., 304-05. Further, "because the facts alleged by the plaintiff [were] insufficient to establish that it was apparent to the defendant that its failure to act would be likely to subject students to imminent ham, the defendant is immune from liability for its discretionary acts." Id., 305.
"`Imminent' is defined as something about to materialize of a dangerous nature. Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future. In order to meet the imminent harm prong of this exception . . . the risk must be temporary and of short duration . . . Such conditions that have been identified as `imminent' include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door." (Citations omitted; internal quotation marks omitted.) Cady v. Tolland, Superior Court, judicial district of Tolland, Docket No. CV 05 5000054 (November 30, 2006, Peck, J.) Conversely, the Court held that potential risk of a fire is not imminent, because a "fire could have occurred at any future time or not at all." Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989); see also Violano v. Fernandez, supra, 280 Conn. 310 (risk of theft not imminent); Eberle v. Coventry, Superior Court, judicial district of Tolland, Docket No. CV 02 0078407 (July 21, 2003, Sferrazza, J.) (no imminent harm where lockers fell on student because lockers installed months prior implicating design defect not temporary occurrence). "[T]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society." (Internal quotation marks omitted.) Purzycki v. Fairfield, supra, 244 Conn. 124.
The allegations in the plaintiff's complaint fail to indicate that imminent harm existed under these circumstances. The alleged danger to the plaintiff was not limited to the duration of a temporary condition, that is, to an approximate time period or to a specific location within the school. Rather, the plaintiff's complaint alleges that the incidents of bullying and sexual harassment occurred at varying times and locations throughout the school, so that significant and foreseeable harm was not apparent to school authority figures. Thus, the facts here are analogous to those in Doe v. Petersen, supra, 279 Conn. 620, and to Evon v. Andrews, supra, 211 Conn. 501, because the injury could have occurred at any time or not at all.
Under the facts of this case, as in Purzycki, it was foreseeable, at best, that if the students were together in an unsupervised location within the school, the plaintiff might be the object of harassment. Something more than mere foreseeability, however, must be alleged in the complaint to establish the degree of imminence that is required for the exception to be triggered and for the claim to survive a motion to strike. Standing alone, the alleged lack of supervision that may have created the foreseeability of the injury to the minor plaintiff is insufficient.
The defendants' motion to strike also challenges the legal sufficiency of count two of the plaintiff's complaint, which alleges that the defendants, the Bristol board of education, and its principals and agents, failed to implement and/or enforce a sexual harassment prevention policy. The defendants argue that the plaintiff was required to allege that she suffered physical injuries as a result of the defendants' negligence. There is a split of authority over whether physical harm must be alleged in order to prove that the harm alleged was imminent.
In Pane v. Danbury, Superior Court, judicial district of Danbury, Docket No. CV 97 347235 (October 18, 2002, Rush, J.) ( 33 Conn. L. Rptr. 377), aff'd, 267 Conn. 669, 841 A.2d 684 (2004), for example, the court stated, "[c]ases where plaintiffs allege `imminent harm' typically involve physical harm." Because the plaintiff did not suffer physical harm as a result of the alleged negligence, the cause of action against the city for negligence failed. Likewise, in Rossetti v. Middlefield, Superior Court, judicial district of New Haven, Docket No. 01 0452129 (May 11, 2004, Arnold, J.) ( 37 Conn. L. Rptr. 129), the court held that governmental immunity abrogated the plaintiff's negligent misrepresentation claim because the imminent harm exception to discretionary acts requires a physical injury to have occurred. Both cases refer to Connecticut Supreme and Appellate court cases dealing with governmental immunity for support. See Elliott v. Waterbury, 245 Conn. 385, 715 A.2d 27 (1998) (decedent killed by hunter while on city-owned property); Purzycki v. Fairfield, supra, 244 Conn. 101 (student injured in unsupervised school hallway); Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994) (student injured by fall in school courtyard); Evon v. Andrews, supra, 211 Conn. 501.
In the instant case, the alleged negligence with respect to the implementation and/or enforcement of a sexual harassment policy was a discretionary act. As discussed above, the defendants are immune from liability for harm resulting from discretionary acts unless one of three exceptions applies. Because the defendants did not act maliciously or with intent to harm the plaintiff, the only applicable exception is, as discussed above, the identifiable person-imminent harm exception. The plaintiff has failed to allege facts to indicate that he was in imminent harm, that is, that the harm was limited in duration and geographical scope. For this reason, it is not necessary on these facts to determine whether the plaintiff must have suffered physical injury. Thus, the motion to strike as to count two is granted.
Finally, the defendants' motion to strike challenges the legal sufficiency of count three, alleging negligent infliction of emotional distress. Specifically, the defendants argue that by merely restating the facts applicable to all counts of the complaint, the plaintiff failed to allege the unique factors required for this cause of action. The Connecticut Supreme Court has set forth the elements of a negligent infliction of emotional distress claim. The plaintiff must establish that "(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). "[R]ecovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact. Nevertheless, [the court] recognize[s] that the protection the law accords to the interest in one's peace of mind . . . must be limited so as not to open up a wide vista of litigation in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law." (Internal quotation marks omitted.) Duffy v. Wallingford, 49 Conn.Sup. 109, 121, 862 A.2d 890 (2004).
In the instant case, the motion to strike count three is granted as to the Bristol board of education and its principals and agents due to municipal immunity. For the reasons previously discussed, the plaintiff has not sufficiently alleged that he was in imminent harm so the defendants are protected from negligence claims due to governmental immunity.
CONCLUSION
The plaintiff's allegations are legally insufficient to state a claim for negligence against the defendants, Bristol board of education, and its principals and agents as to counts one, two and three. Thus, the defendants' motion to strike is granted as to those defendants and those counts.