Opinion
No. CV 99-0430858 S
March 10, 2004
MEMORANDUM OF DECISION RE MOTION FOR DIRECTED VERDICT
The defendant City of New Haven Board of Education has filed a motion for a directed verdict pursuant to Practice Book § 16-37 et seq. requesting that the court direct a verdict in its favor on the Third Count of the plaintiff's amended complaint dated May 1, 2001. The substance of the Third Count are allegations that the defendant Board of Education was negligent in that it failed to supervise and oversee the mentor program; failed to heed the concerns of Jane Doe regarding the relationship between defendant Antonio Lasaga and her minor son John Doe; and failed to adequately check the background of Lasaga before admitting him into the volunteer mentoring program. The plaintiff's complaint is grounded in allegations of common-law negligence.
Sec. 16-37. Reservation of Decision on Motion for Directed Verdict.
CT Page 4069 Whenever a motion for a directed verdict made at any time after the close of the plaintiff's case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict; or if a verdict was not returned such party may move for judgment in accordance with his or her motion for a directed verdict within the aforesaid time after the jury have been discharged from consideration of the case. If a verdict was returned the judicial authority may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the judicial authority may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.
The defendant Board of Education in filing its motion sets forth several grounds. First, it argues that the plaintiff has not specifically alleged any statutory authority to eliminate governmental immunity. Second, the defendant argues that the Board of Education owed no duty to the plaintiff. Third, it argues that the plaintiff has not presented any evidence of causation. Fourth and lastly, the defendant Board of Education argues that it is entitled to immunity pursuant to General Statutes § 52-557n(a)(2)(b) for negligent acts or omissions which require the exercise of judgment or discretion, and that none of the three recognized exceptions to immunity apply to the present case.
A summary of the evidence presented by the plaintiff reveals that this is a lawsuit involving allegations of sexual abuse of a minor by defendant Lasaga, a former professor at Yale University. Lasaga participated as a volunteer mentor in a program for students run by the School Volunteers of New Haven, Inc. a non-profit corporation. While the corporation is separate and distinct from the New Haven school system, the corporation maintains its offices at the New Haven Board of Education. The Board of Education has offered office space to the corporation as an in-kind donation, as well as several monetary grants of relatively small amounts. While the corporation is a separate entity from the Board of Education, the Board and the corporation work closely with each other to co-ordinate volunteer services to the school system. Volunteers are recruited by the corporation, and the volunteers are then made available to the Board of Education and the schools. The Board, based upon the needs of the individual schools and students therein, recommended placement of volunteers with certain skills at the various school facilities. School Volunteers of New Haven, Inc. then matched its pool of volunteers with the appropriate school and student based on the Board's requests. It was in this manner that the defendant Lasaga, who had volunteered for the mentoring program in 1992, was matched as a mentor for the plaintiff John Doe.
The plaintiff presented evidence at trial that no background check or investigation was done on Lasaga by either the Board of Education or the School Volunteers of New Haven, Inc. prior to accepting him as a volunteer mentor and assigning him to John Doe. The Superintendent of the New Haven Schools, Dr. Mayo testified that background checks for school employees were not instituted until 1994-1995 when state law first required them. When that law became effective, it did not require background checks or investigations for volunteers such as Lasaga.
Because of his position as a tenured professor at Yale, Lasaga was accepted as a mentor in 1992. The Executive Director of the School Volunteers of New Haven, Inc. from 1975 until recently, stated that a background check was not conducted on Lasaga because the corporation assumed Yale "has taken care of this," and because Lasaga was held in high esteem in the academic world and the community. Yale professors, faculty and students were viewed as "low risk" volunteers by the School Volunteers, Inc. and the Board of Education.
At the time the mentor relationship began in 1992, John Doe was a first grade student at the Vincent Mauro School in New Haven. The mentoring program was designed for children who had special needs, academic and otherwise. The goal of the program was to enhance the school experience and to assist in the educational process. Volunteers for the mentoring program were recruited from a variety of organizations, including local corporations, Yale University and local banking institutions. Separate volunteer programs in the New Haven school system also utilized volunteer mentors from the City's police and fire departments. There was no public advertising in mass media outlets to recruit volunteers, as none of these programs wished to run the risk of attracting "undesirable persons."
The mentoring program at issue in this matter was designed so that mentoring activities occurred only on school grounds during school hours. The program was aware that various contacts and activities between the mentors and their assigned student were occurring off school grounds and after school hours, but these activities were with the explicit permission of the students' parents or guardians. Such after-school activities required written permission of the parents. The School Volunteers of New Haven, Inc. employees were not employees of the Board of Education. The corporation did however co-ordinate its program with the Social Development Department of the Board of Education.
The mentoring relationship between John Doe and the defendant Lasaga continued from 1992 through the 1996 school year without reported incidents or problems. In the course of the years between 1992 and 1996, Lasaga developed a close relationship with the family including Join Doe's mother, Jane Doe. John Doe's mother spoke predominantly Spanish and the defendant Lasaga was fluent in the Spanish language. Lasaga attended many school functions and was present at meetings with school personnel to assess John Doe's educational and emotional development. He was a frequent visitor to the school and assisted teachers and students in computer training and science fairs. He also had frequent out-of-school contact with John Doe and the Doe family. This was confirmed by the mother, Jane Doe as well as Lizette Flores-Gregory, a bilingual social worker from the Department of Children and Families and Maria Christina Noguera, a bilingual social worker for the New Haven Board of Education.
Flores-Gregory confirmed that the DCF had become involved with the Doe family in 1989 and had continual involvement with the family regarding matters unrelated to this case. Flores-Gregory herself began working with the Doe family in 1994. Flores-Gregory testified that she began to have "bad feelings" about John and Lasaga's relationship in 1996. She mentioned these feelings to her immediate supervisor at the DCF. However, no further steps were taken by her or the DCF because there had been no complaints or evidence from anyone, John Doe included, regarding any sexual abuse or other misconduct by Lasaga. Flores-Gregory described her "bad feelings" about John Doe and Lasaga by stating that she was worried that Lasaga had become "over-invested" in John Doe. Flores-Gregory admitted that she did not share her suspicions with anyone other than her immediate supervisor and possibly the New Haven school social worker Christina Noguera.
Noguera performed social work assessments and evaluations of John Doe in 1994 due to a referral to her regarding John Doe's academic and speech problems. She had many occasions to observe John Doe in the presence of Lasaga at the school facilities. She was aware of Lasaga's role as a mentor and tutor to John Doe. She was aware that John and Lasaga took field trips together during non-school hours with the mother's permission. While the mother Jane Doe, Flores-Gregory and Noguera were aware that Lasaga and John Doe spent significant time together, at no time were they aware of any complaint or any reasonable belief that sexual misconduct by Lasaga was occurring.
During the 1996-1997 school year, John Doe and his family moved to Wallingford, and John Doe enrolled in the Wallingford public school system. At this time, any formal educational relationship between John Doe, the New Haven Board of Education, and the School Volunteers of New Haven, Inc. ended. Lasaga's formal role as a mentor ended, as well. However, the informal mentor relationship, as well as, the social relationship between Lasaga, John Doe and the Doe family continued. Ms. Noguera, the New Haven school social worker confirmed that although John Doe had left the New Haven school system, Lasaga continued to visit the Vincent Mauro School in New Haven to assist with the Science Fair. Noguera on one occasion had dinner with Lasaga and his wife and discussed the progress of the Doe family after the Doe family had left New Haven.
On May 23, 1997, the mother, Jane Doe contacted Flores-Gregory of the DCF and voiced concerns to Flores-Gregory regarding John Doe's relationship with Lasaga. She was upset that Lasaga was returning John Doe home late at night, and that Lasaga was picking John up without her consent. She requested that Flores-Gregory accompany her to John's school in Wallingford to inform school authorities that they were not to release John into Lasaga's custody and that John was not to see Lasaga at his school. Flores-Gregory and Jane Doe went to John's school on May 27, 1994, and school authorities in Wallingford agreed to co-operate with Jane Doe's wishes, despite their belief that Lasaga "was good" for John Doe. On a subsequent date, the principal at John Doe's Wallingford school directed Lasaga to leave the school building.
Sandra Kiertz a special education teacher in John's Wallingford school testified that the Wallingford School system did not have a mentoring program. She knew that Lasaga had been John Doe's formal mentor while John was a New Haven student. However, she believed that Lasaga now had assumed a role as an informal "generic" mentor in John's life.
In late May 1997, Lasaga contacted Noguera and voiced concerns to her regarding Jane Doe's returning home late in the evenings from church services. Lasaga felt that the children, John Doe included, were not getting to bed early enough to get sufficient sleep. He requested that Noguera speak to Jane Doe about this topic and he gave Noguera Jane Doe's address in Wallingford. Noguera claims she called Jane Doe and made an appointment to visit her on June 2, 1997. Jane Doe denies this and testified that without prior contact, Noguera arrived at Jane Doe's home uninvited. Nonetheless, both Jane Doe and Noguera confirm that they spoke about Lasaga's complaints regarding Jane Doe's late evening hours and Jane Doe's complaints that Lasaga was returning John Doe home too late after visits with Lasaga. Jane Doe testified that Noguera advocated for a resumption of the relationship between John Doe and Lasaga, while Noguera denies this. Noguera stated that she did not have knowledge at that time that Jane Doe had ended the relationship between John Doe and Lasaga. Both parties agree, however, that there was no conversation regarding any complaints of sexual abuse by Lasaga against John Doe. In fact Jane Doe testified that she had questioned John Doe as to whether Lasaga had ever inappropriately touched him and John Doe denied it. Following this meeting between Noguera and Jane Doe, the relationship between John Doe and Lasaga was allowed to resume by Jane Doe, after Lasaga apologized to Jane Doe regarding their disagreements.
In late 1998, The Federal Bureau of Investigation received a complaint from the Yale University Police Department and the New Haven Police Department regarding the downloading of child pornography by the defendant Lasaga. Acting upon that complaint a search warrant of Lasaga's residence at Yale University was obtained. As a result of the ensuing execution of the search warrant and a search of the premises at Lasaga's residence, located at 90 High Street, New Haven, Connecticut, photographs, computer images and videotapes of John Doe and Lasaga engaged in sexual activity were seized, along with various computer equipment belonging to Lasaga. Special Agent Lisa Tutty of the F.B.I. testified that the computer images of child pornography seized from Lasaga, numbered between 250,000 to 400,000 images. Approximately 7 images were of John Doe.
A statement from the defendant Lasaga was also obtained. In his statement Lasaga admitted that he had begun collecting child pornography in 1996. He stated that he had been introduced to John Doe through the school mentoring program in New Haven. Tutty testified that John Doe was interviewed by the New Haven Police Department on four occasions. Tutty was present at the third interview only, when John Doe first acknowledged the sexual abuse by Lasaga.
Detective Kelly Shaffer of the New Haven Police Department was involved in the investigation of Lasaga. She interviewed John Doe on November 6, 1998 and November 7, 1998. On both occasions John Doe denied any sexual abuse by Lasaga. During a third interview with John Doe in the presence of Special Agent Tutty, John Doe finally admitted to being a victim of Lasaga's sexual assaults after being confronted with the videotape evidence. A report of this interview reveals that John Doe stated that the sexual assaults by Lasaga began when John Doe was 11 or 12 years old.
In 1998, at this interview, John Doe was 13 years old. It was therefore estimated that the sexual assaults commenced in 1996 or 1997, after John Doe had left the New Haven school system and had entered the Wallingford school system.
As a result of criminal investigations and arrests of Lasaga by both federal and State of Connecticut law enforcement authorities defendant Lasaga was convicted and sentenced to incarceration by federal and state courts and remains incarcerated at present on various criminal charges relating to possession of child pornography and for sexually assaulting John Doe. Lasaga has failed to file an appearance in the present matter and has been defaulted for said failure to appear. Additionally, Lasaga did not file any notice of his intent to defend or to contradict the allegations of the plaintiff at the hearing in damages to the jury pursuant to Practice Book § 17-34. Lasaga did not file any intent to offer evidence to reduce any damages claimed, pursuant to Practice Book § 17-40. Lastly, there have been no motions filed by Lasaga to open or set aside the default for failure to appear, which was previously entered by the court.
The standards for considering a directed verdict are well known. Generally, litigants have a constitutional right to have factual issues resolved by the jury. Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). "Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion." (Internal quotation marks omitted.) Domogala v. Molin, 57 Conn. App. 525, 527, 749 A.2d 676 (2000). The court must consider all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff . . . A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict." (Internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 187, 804 A.2d 1018 (2002); Johnson v. North Branford, 64 Conn. App. 643, 645-46, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).
"If the evidence in a case presents such a situation that the minds of fair and reasonable [jurors] could therefrom reach but one conclusion, there is no question for a jury. The case should be decided by the judge as essentially a question of law, and he may direct a verdict." Lombardi v. J.A. Bergen Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 317, 240 A.2d 881 (1968). "While it is jury's right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury." (Internal quotation marks omitted.) Vona v. Lerner, supra, 72 Conn. App. 187; Sheridan v. Desmond, 45 Conn. App. 686, 691, 697 A.2d 1162 (1997). A directed verdict is justified if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. Janusaukas v. Fichman, 264 Conn. 796, 804, 826 A.2d 1066 (2003).
"[D]rawing logical deductions and making reasonable inferences from facts in evidence, whether that evidence be oral or circumstantial, is a recognized and proper procedure in determining the rights and obligations of litigants, but to be logical and reasonable they must rest upon some basis of definite facts, and any conclusion reached without such evidential basis is a mere surmise or guess." (Emphasis added; internal quotation marks omitted.) Crone v. Connelly, 74 Conn. App. 788, 796, 813 A.2d 1084 (2003); Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 34, 734 A.2d 85 (1999). "A directed verdict is appropriate when the jury could not reasonably and legally have reached any other conclusion . . . A finding of liability cannot be predicated on conjecture, surmise or guess . . . Mere possibilities or suppositions will not sustain a legitimate inference of a fact, nor can such an inference be drawn by conjecture only." (Citations omitted; internal quotation marks omitted.) Id. at 797; See also, Pagani v. BT II, Ltd Partnership, 24 Conn. App. 739, 751, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).
I
Mindful of the foregoing legal principles on which the plaintiff's claims rest, the court considers whether the defendant Board of Education owed a duty to the plaintiff.
The essential elements of a cause of action for negligence are a duty; a breach of that duty; causation; and actual injury. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). If a plaintiff cannot prove all of those elements, the cause of action fails. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
"The test of a legal duty is twofold. It entails (1) a determination of whether the ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability and the second part invokes the question of policy." Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001).
"The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand." Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). "If a court determines, as a matter of law, that a defendant owes no duty to the plaintiff, the plaintiff cannot recover in negligence from the defendant." RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 384-85.
The court agrees with the defendant Board of Education that there is no authority to state that the Board of Education had a duty to perform a background check on school volunteers or mentors in the year 1992. See Beach v. Jean, 46 Conn. Sup. 252, 263, 746 A.2d 228 (1999). The plaintiff has failed to produce any evidence that the defendant Board of Education had such a duty. See, Kuhn v. Youlten, 692 N.E.2d 226, 232 (Ohio App.Ct. 1997).
There is also no authority to state that the duty to supervise students extends to students who are off of school grounds with a mentor or school volunteer presumably virtue of their parents' permission.
There is no evidence that the New Haven Board of Education had any knowledge that Lasaga had a propensity and profile of a pedophile. Nor is there evidence that they could have done anything to become aware of that knowledge. There is no evidence that background checks, random interviews, or more frequent oversight of the mentoring program would have revealed that information.
As to the plaintiff's claim that the Board of Education knew or should have known of Lasaga's perversions, there has been no such evidence presented by the plaintiff. Without such knowledge, the Board of Education could not have "allowed" Lasaga to do anything to "cultivate" such a perversion, as the plaintiff alleges. Also, there is no evidence that Lasaga's sexual assaults on John Doe were foreseeable to the Board of Education.
The defendant Board of Education points the court to the decision in Koran I v. Board of Education, 683 N.Y.S.2d 228 (1998). In Koran, the defendant was a volunteer art teacher who molested a student. The volunteer art teacher was never subjected to a background check prior to working in the schools. The volunteer, after gaining the mother's permission, brought the student to his home and molested him on several occasions. The Koran court held that the volunteer's tortious acts were outside the scope of his volunteer work at the school and all of the acts complained of took place outside the school and after school hours, just as in the present case. Koran I v. Board of Education, supra, 683 N.Y.S.2d at 230.
Further, the Koran court found that the principal of the school had no duty to investigate further after interviewing the volunteer art teacher because there were no facts to lead a reasonably prudent person to suspect that the volunteer had dangerous propensities. Koran, supra 683 N.Y.S.2d at 230. These dangerous propensities were not reasonably foreseeable. The Koran court also noted that at the time the molestation occurred the art teacher's volunteer duties had ended. In the present case Lasaga's first sexual assaults on John Doe occurred after John Doe had left New Haven and enrolled in the Wallingford school system. Lasaga at that time was no longer assigned by the New Haven Board of Education to John Doe as his New Haven school mentor.
II
The court next considers the issue of causation and the evidence related to the issue of causation that the plaintiffs submitted to the court in support of their complaint.
The plaintiff has not offered any evidence that the Board of Education's negligence caused the plaintiff John Doe's injuries. The defendant Board of Education has not been shown to know or that it should have known that the defendant Antonio Lasaga had a propensity for sexual acts against minors or that Lasaga would sexually assault John Doe by virtue of the evidence presented by the plaintiff. There has not been any evidence that any acts of negligence by the Board of Education proximately caused the plaintiff John Doe's injuries at the hands of Lasaga.
"The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . . In negligence cases such as the present one, in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the plaintiff." (Citations omitted.) First Federal Savings Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999).
"[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant's conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrews Roman Catholic Church Corp., supra, 250 Conn. 25-26. Even where harm was foreseeable no duty can be found when the nexus between a defendant's negligence and the particular consequences to the plaintiff was "too attenuated." First Federal Savings Loan Assn. of Rochester, supra, 247 Conn. at 604.
While the question of proximate causation generally belongs to the trier of fact, it becomes a conclusion of law only when the mind of a fair and reasonable person could reach only one conclusion. If there is room for a reasonable disagreement the question is one to be determined by the trier of fact. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995).
In the present case, the plaintiffs failed to provide any testimony on the issue of causation, which is fatal to the plaintiff's claims of negligence against the defendant Board of Education. Beecher v. Greaves, 73 Conn. App. 561, 564, 808 A.2d 1143 (2002). The plaintiff was under an obligation to present evidence to support more than mere speculation regarding causation. Crone v. Connelly, supra, 74 Conn. App. 796.
The plaintiff has presented evidence that Lasaga became John Doe's mentor while John Doe was a first grade student at the Vincent Mauro School in 1992. While it was admitted that Lasaga was not subjected to a background check in 1992, school employees and volunteers were not required to be subjected to a background check. The court is cognizant that a higher degree of care was required to constitute reasonable care when dealing with young children and the foreseeable hazards that can exist when introducing strangers into the school system. However, the plaintiff has failed to offer evidence that had a background check been completed, the results would have yielded information to alert the defendant Board of Education as to the propensities for pedophilia and sexual misconduct exhibited by Lasaga in 1996-1997. The evidence shows that no person or entity testifying in this case was aware of any sexual misconduct by Lasaga against John Doe or otherwise until the execution of the search warrant by law enforcement authorities in 1998. Witnesses including John Doe's mother, a DCF social worker, a New Haven school system social worker had not received any complaints or evidence regarding sexual misconduct by Lasaga. John Doe himself denied it to his mother in 1996 and on two occasions to law enforcement authorities in 1998.
If in fact the Board of Education could be termed negligent for not conducting a background check or for more closely supervising and monitoring the mentor program any such negligence was not the proximate cause of John Doe's injury. The cause of the injuries was the intentional criminal conduct of the third party Antonio Lasaga.
This court noted in its decision in Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven at New Haven, No. CV 00 0436800 (Jul. 23, 2003) (Arnold, J.), that prior to the Supreme Court's decision in Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003), Connecticut courts recognized the doctrine of superseding cause, which could relieve defendants of their own negligence in certain circumstances. Connecticut had adopted the standard set forth in § 442B of the Restatement [(Second) of Torts] that "[w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct." (Internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 607-08.
The Connecticut Supreme Court, in Barry v. Quality Steel Products, Inc., supra, 263 Conn. 424, abandoned the doctrine of superseding cause because General Statutes § 52-572h provides for apportionment among negligent defendants; and because Connecticut is a comparative negligence jurisdiction. See General Statutes § 52-572o. "The simpler and less confusing approach to cases . . . where the jury must determine which, among many, causes contributed to the plaintiff's injury, is to couch the analysis in proximate cause rather than allowing the defendants to raise the defense of superseding cause." Id. at 436-37.
However, the court in Barry also stated that "Our conclusion that the doctrine of superseding cause no longer serves a useful purpose is limited to the situation in cases, such as the one presently before us, wherein a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence. Our conclusion does not necessarily affect those cases where the defendant claims that an unforeseeable intentional act, force of nature, or criminal event supercedes its tortious conduct . . . Nor does our conclusion necessarily affect the doctrine of superseding cause in the area of criminal law." Id. at 439 fn.16, citing Doe v. Manheimer, 212 Conn. 748, 761, 563 A.2d 699 (1989); Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995); State v. Munoz, 233 Conn. 106, 124-25, 659 A.2d 683 (1995).
This court concludes that the holding in Barry v. Quality Steel Products, Inc., supra, 263 Conn. 424, is not applicable to the situation in the present case. The act of criminal sexual assaults, which were deliberate and intentional act by the defendant Lasaga, relieved the defendant Board of Education from any negligence for which it may be responsible. One cannot leap to a conclusion that the defendant Board of Education's failure to do a background check in this matter or oversee the mentoring program caused Lasaga to sexually assault John Doe. Lasaga's sexual assaults were not reasonably foreseeable and there is no evidence that a background check in 1992 and more oversight of the mentoring program would have revealed that Lasaga had the propensity or profile of a pedophile. "A superseding cause is, by definition, one that is not reasonably foreseeable." Barry v. Quality Steel Products, Inc., supra at 445, quoting Control Techniques, Inc. v. Johnson, 762 N.E. 104 (Ind. 2002).
III
Lastly the court considers the issue of governmental immunity. It is noted that the defendant Board of Education has filed a special defense of governmental immunity in this action.
"The general rule is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003); Williams v. New Haven, 243 Conn. 763, 766-67, 707 A.2d 1251 (1998). The plaintiff has alleged common-law negligence as to the New Haven Board of Education, but the plaintiff has not alleged any statute in his complaint allowing him to bring a direct cause of action for negligence against the Board of Education. The plaintiff has not named any employee of the Board of Education as a tortfeasor, nor has the plaintiff brought this action under General Statutes § 52-557n, which would not require that an employee be named as a tortfeasor. Spears v. Garcia, supra, 263 Conn. 37. The complaint is legally insufficient and the defendant is entitled to governmental immunity.
The defendant Board of Education's acts were an exercise of its discretion and judgment in its official function and it would be entitled to immunity from negligence liability. Eliot v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998).
If the court were to apply the immunity set forth in General Statutes § 52-557n, the defendant Board of Education would also prevail. Its actions were discretionary. The duty to supervise school children is a discretionary act. Heigl v. Board of Education, 218 Conn. 1, 8, 587 A.2d 423 (1991). Governmental immunity applies pursuant to General Statutes § 52-557n(a)(2)(b).
The plaintiff alleges that the defendant Lasaga was an agent, servant or employee of the Board of Education and that Lasaga engaged in intentional and criminal acts. If there was sufficient evidence to allow the jury to determine that a school volunteer mentor was an "agent servant or employee" of the New Haven Board of Education, then General Statutes § 52-557n(a)(2)(A) is applicable. This statute provides in pertinent part, that, "[e]xcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by the acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct."
IV CONCLUSION
Accordingly for all of the reasons stated herein, the motion for directed verdict, filed by the defendant New Haven Board of Education, dated March 9, 2004, is hereby granted.
The Court
By Judge Richard B. Arnold