Opinion
No. X07-CV02 0078407S
July 21, 2003
MEMORANDUM OF DECISION
The defendants in this case are the town of Coventry; the Coventry Board of Education; Kathleen Ryan, chairman of that board; Michael Malinowski, Coventry Superintendent of Schools and Marie Castle-Good, principal of the Captain Nathan Hale Middle School and they move for summary judgment based on qualified, governmental immunity.
Summary judgment shall enter if the pleadings and documentary proof submitted demonstrate that no genuine dispute exists as to material fact and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
An examination of the pleadings and documents submitted discloses that it is undisputed that on April 14, 2000, the plaintiff, Megan White, was a student attending the Captain Nathan Hale Middle School and was a member of the school's softball team. After the regular school day ended, at 2:30 p.m., Ms. White went to the girls' locker room to prepare for softball practice, opened her assigned locker, and removed certain necessary items from it. Her locker was one among a bank of six lockers which then toppled onto her causing injury to her. This group of lockers was freestanding and stacked three on three. This locker configuration had been in place and used by the plaintiff and other students at least since the school year began, several months before the accident.
The first count of the complaint alleges that the superintendent and principal were negligent by allowing the use of these unsafe, freestanding lockers rather than lockers witch could be bolted to the floor or wall and by failing to warn students regarding the risk of using such freestanding lockers. The second count alleges indemnification liability against the town and its board of education, under General Statutes § 7-465, for the negligence of its superintendent and principal.
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The school officials contend that governmental immunity entitles them to judgment as a matter of law because they are charged with negligence arising from the doing of discretionary acts in performance of their public duty. Municipal employees or officials are cloaked with such immunity for the performance of discretionary, public acts. Evon v. Andrews, 211 Conn. 501, 506 (1989). Unquestionably, providing a safe, educational environment in public schools is a public function, so the salient question becomes whether the decision to employ the freestanding locker configuration was a discretionary or ministerial act.
The defendants submitted affidavits that the installation and use of a particular locker system falls within the discretion of school officials. The plaintiff has neither alleged nor offered any statute, regulation, or school policy that barred the purchase, installation or use of freestanding lockers. Because the decision as to locker type and setup requires the exercise of judgment, which is the "hallmark of a discretionary act," the use of these lockers was an exercise of discretion. Colon v. New Haven, 60 Conn. App. 178, 181 (2000). Therefore, unless an exception applies, the superintendent and principal possess governmental immunity from liability.
There are three recognized exceptions to qualified, governmental immunity where discretionary, public action is concerned, viz. 1. where the circumstances make it apparent to the public official that the failure to act would likely subject an identifiable person, or limited identifiable class of persons, to imminent harm; 2. where a statutory exception exists; or 3. where the municipal officer acts with malice, wantonness, or intent to injure. Purzycki v. Fairfield, 244 Conn. 101, 107 (1998). The only exception potentially pertinent to the present matter is the imminent harm to an identifiable person exception.
School children, who are compelled to attend school, during school hours on a school day, can constitute a narrow, identifiable class, so as to invoke this exception to governmental immunity. Purzycki v. Fairfield, supra, 109; Burns v. Board of Education, 228 Conn. 640, 648, 649 (1994). The defendants contend that this exception is inapplicable because the plaintiff's activity put her outside a narrow, identifiable class and because the negligence alleged failed to create an imminent risk of harm.
A.
The defendants first observe that Ms. White was in the locker room after regular school hours had concluded and as a voluntary member of the CT Page 8453-ex softball team. They argue that because the Burns and Purzycki line of cases, supra, were based on compulsory attendance during school hours, the plaintiff cannot take advantage of the definition "identifiable class" employed in those cases. While this issue is an interesting one, the court declines to address it because the plaintiff fails, as a matter of law, to satisfy the imminent harm requirement of the exception.
B.
"Imminent harm" excludes risks which might occur, if at all, at some unspecified time in the future. Evon v. Andrews, supra, 508. In order to meet the imminent harm prong of this exception to governmental immunity, the risk must be temporary and of short duration. Purzycki v. Fairfield, supra, 110.
In the Burns case, supra, the risk was a temporary, icy condition on a portion of a school walkway. In Purzycki, supra, the danger zone was a hallway during a brief, unsupervised lunch recess. In Colon v. New Haven, supra, the imminent harm was being struck by the isolated and immediate act of opening a door.
In contrast, in Evon v. Andrews, supra, the danger arose from continuously existing fire and building code violations which went uninspected and unremediated. In Doe v. Board of Education, 76 Conn. App. 296 (2003), the danger posed by unsupervised and accessible, vacant classrooms were ruled, as a matter of law, to be too long in duration and nonspecific as to location to be considered as creating a risk of imminent harm. Id., 305-06.
In the present case, the negligent acts alleged are the use of unsafe, freestanding lockers and the failure to warn students of the danger that the lockers might tip over. As noted above, this purportedly dangerous condition existed for at least several months before the accident. The claimed risk appears akin to a design defect rather than a transitory mishap such as the opening of a door. As then Chief Justice Callahan stated in his dissent in Purzycki, supra, 118, " Burns did not create a new definition of `imminent harm' unrelated to the common understanding of that phrase." The documentary proof submitted shows no factual dispute that the danger of toppling lockers was longstanding which might have occurred at any time during the school year, if at all.
Consequently, the superintendent and principal retain governmental immunity which shields them from liability for utilizing the allegedly unsafe locker system, and they are entitled to judgment as a matter of law. CT Page 8453-ey
II
The liability of the remaining defendants, the town and board of education, is derivative of the liability of the superintendent and principal, and, therefore, these defendants are entitled to judgment also.
Summary judgment is granted on behalf of all defendants.
Sferrazza, J. CT Page 8453-fz