Opinion
FSTCV156024275S
08-11-2016
Rebekah Estrada v. Yverline Pierre-Louis et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE
Donna Nelson Heller, J.
The plaintiff Rebekah Estrada commenced this action, returnable January 20, 2015, against Yverline Pierre-Louis and Gabrielle Pierre-Louis (the original defendants) to recover for personal injuries that she sustained on May 10, 2014 when the Pierre-Louis vehicle, in which she was a passenger, was involved in an automobile accident. On December 3, 2015, the plaintiff moved to cite in the Norwalk Board of Education (the Board) as a defendant in this action (#106.00). The court (Heller, J.) granted the motion on December 21, 2015 (#106.01). On January 19, 2016, the plaintiff filed an amended complaint against the original defendants and the Board (#108.00), returnable January 26, 2016. She withdrew her claims against the original defendants on March 17, 2016 (#109.00).
The plaintiff's only remaining cause of action is a negligence claim pursuant to General Statutes § 52-557n, asserted against the Board in count three of the amended complaint. On March 24, 2016, the Board filed a motion to strike count three, together with a supporting memorandum of law (#111.00; #112.00). The Board filed a supplemental motion to strike on March 30, 2016 (#113.00). The plaintiff filed a memorandum of law in opposition to the motion to strike on April 25, 2016 (#115.00).
The motion to strike was before the court on the May 9, 2016 short calendar. The court heard argument from counsel for the parties and reserved decision at that time. For the reasons set forth below, the motion to strike is granted.
I
In count three of the amended complaint, the plaintiff incorporates the allegations of paragraphs 1 through 12 of count one and alleges the following against the Board: The students at Brien McMahon High School skip school every year for " Senior Day." A scavenger hunt traditionally takes place on Senior Day. The scavenger hunt involves drinking and driving and other dangerous and/or reckless activities. The motor vehicle accident in which the plaintiff was injured occurred during the annual scavenger hunt.
The court has taken judicial notice that the motor vehicle accident occurred on a Saturday night, as counsel for the Board also pointed out during oral argument on the motion to strike.
According to the plaintiff, the motor vehicle accident was caused by the negligence and/or carelessness of the Board in one or more of the following respects: The Board was aware of the dangerous and reckless scavenger hunt; it allowed students, including the defendant Gabrielle Megan Pierre-Louis, to plan and implement the scavenger hunt when it knew or should have known that the plans included drinking and driving; it did not penalize students for skipping school for Senior Day and planning and implementing dangerous and/or reckless activities on school grounds; it implicitly condoned skipping school and planning and implementing such activities because it allowed students to do so without school consequences; it had no procedures to prevent the scavenger hunt from taking place; and it failed to implement any procedures to prevent the use of alcohol during the scavenger hunt, despite having knowledge of such alcohol use.
The plaintiff alleges that the motor vehicle accident in which she was injured was foreseeable and a direct result of the Board's negligence. She claims that the Board owed ministerial duties to her, and the Board breached such duties. She further alleges that she was an identifiable person and in imminent danger. The plaintiff seeks to recover pursuant to General Statutes § 52-557n.
II
" 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." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " It is fundamental that in 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 . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " A motion to strike attacks the legal sufficiency of the allegations in a pleading . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action." (Citation omitted; internal quotation marks omitted.) Kortner v. Martise, 312 Conn. 1, 47-48, 91 A.3d 412 (2014). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Citation omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
III
The Board has moved to strike count three of the amended complaint on the ground that the plaintiff's suit against the Board is barred by the doctrine of governmental immunity. The Board argues that its alleged acts or omissions did not fall within the scope of the statutory waiver of governmental immunity set forth in General Statutes § 52-557n(a)(1) because they were discretionary and not ministerial in nature; therefore, liability was barred by General Statutes § 52-557n(a)(2)(B). The Board further contends that the plaintiff's claim does not fall within the exception to § 52-557n(a)(2)(B) for claims involving identifiable persons who are at risk of imminent harm.
As a general rule, " governmental immunity must be raised as a special defense in the defendant's pleadings." Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). Nonetheless, " there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116 n.4, 19 A.3d 640 (2011).
General Statutes § 52-557n(a)(1) provides in pertinent part that " [e]xcept 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 . . ." General Statutes § 52-557n(a)(1). Under subdivision (2) of § 52-557n(a), " [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: (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." General Statutes § 52-557n(a)(2).
" [W]hile a municipality is generally liable for the ministerial acts of its agents, § 52-557n(a)(2)(B) 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 . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Coe v. Board of Education, supra, 301 Conn. at 117-18. " [M]unicipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists." Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010).
The plaintiff contends that the Board breached its ministerial duties to her by failing to implement any procedures to prevent the scavenger hunt from taking place. While " [t]he existence of a breach of a ministerial duty may be established by showing the defendant possessed prescribed procedures or policies to which it failed to adhere"; Haberern v. Castonguay, Superior Court, judicial district of Hartford, Docket No. CV-02-0820429-S (May 27, 2005, Wagner, J.T.R.) [39 Conn.L.Rptr. 441, ]; the plaintiff has not shown that the Board had " prescribed procedures or policies" that it failed to observe. All of the Board's alleged acts or omissions--allowing students to plan and implement the scavenger hunt when it knew or should have known that the plans involved drinking and driving; failing to penalize students for skipping school or for planning and implementing the scavenger hunt on school grounds and implicitly condoning such activities; having no procedures in place to prevent the scavenger hunt; and failing to implement any procedures to prevent alcohol use during the scavenger hunt--required the exercise of judgment or discretion. Therefore, the Board is entitled to governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B).
In her memorandum in opposition, the plaintiff relies on an excerpt from the Norwalk Board of Education Policy Book, which is not referenced in the amended complaint, to show that the Board's duty was ministerial. The court will not consider the excerpt from the Norwalk Board of Education Policy Book in ruling on the Board's motion to strike. See Bremmer-McLain v. City of New London, Superior Court, judicial district of New London, Docket No. CV-11-5014142-S, (Conn.Super.Ct. June 1, 2012), aff'd per curiam, 143 Conn.App. 904, 69 A.3d 351 (2013). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint. A speaking motion to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). " Notably . . . speaking motion principles have not only been applied to a motion to strike, these principles have also been applied to memoranda in opposition to a motion to strike." Mas v. Perry, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-06-5001431-S, (February 13, 2007, Esposito, J.). " Plaintiffs may not file objections to motions to strike which refer to facts and accusations not contained in the four corners of the [c]omplaint." Martin v. CK Investment, LLC, Superior Court, judicial district of Waterbury, Docket No. CV06-4008920-S, (November 15, 2006, Gilligan, J.). When deciding a motion to strike, the court is limited to the facts alleged in the complaint.
A finding that the Board is immune from liability does not conclude the court's analysis, however; the plaintiff contends that her claim falls within the exception to General Statutes § 52-557n(a)(2)(B) because she was an identifiable person who was at risk of imminent harm. The exception arises when it is " apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . [T]his exception [has been construed] to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [T]his test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm. All three of these factors . . . must be met for a plaintiff to overcome qualified immunity." (Citations omitted; internal quotation marks omitted.) Coe v. Board of Education, supra, 301 Conn. at 118. According to the plaintiff, she was an identifiable victim--or part of a class of identifiable victims--because she was a student at the high school. She contends that it was apparent to the Board that the harm was imminent because the Board knew when the scavenger hunt was going to take place, and the Board's failure to act resulted in the harm that she suffered.
Beginning with the first prong of the exception, " [t]he only identifiable class of foreseeable victims that [the Connecticut Supreme Court] ha[s] recognized for . . . purposes [of the foreseeable victim/imminent harm exception] is that of school children attending public schools during school hours. In determining that such schoolchildren were within such a class, [the Supreme Court] focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 107, 931 A.2d 859 (2007). Courts have refused to expand " this class to parents or children engaged in school-sponsored activities outside of mandatory school hours . . ." Jahn v. Board of Education, 152 Conn.App. 652, 668, 99 A.3d 1230 (2014).
The court finds that the plaintiff was not within a class of identifiable victims for purposes of the identifiable victim/imminent harm exception to governmental immunity under General Statutes § 52-557n(a)(2)(B). The plaintiff was not legally required to participate in the scavenger hunt or to ride as a passenger in another student's motor vehicle on the night of May 10, 2014. Her actions that night were entirely voluntary. Whether the Board knew or did not know about the scavenger hunt is immaterial. The plaintiff has alleged only that her participation in the scavenger hunt was not discouraged; she had not claimed that her attendance was encouraged, let alone compelled. See Durrant v. Board of Education, supra, 284 Conn. at 109 (" There is a significant distinction . . . between a program in which participation is encouraged and one in which it is compelled" (emphasis omitted)); Grady v. Somers, 294 Conn. 324, 328, 356, 984 A.2d 684 (2009) (town resident who was injured at transfer station not within class of foreseeable victims because he was not legally required to dispose of his refuse by taking it to the transfer station personally and could have hired an independent contractor to do so); Jahn v. Board of Education, supra, 152 Conn.App. at 666-68 (injured student not within class of foreseeable victims when injury occurred at swim meet, after normal school hours, which was an extracurricular, non-mandatory activity that required a participation fee).
Turning to the second prong of the exception--whether a harm was imminent--our Appellate Court recently explained that " [t]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm . . . This test focuses on the 'magnitude of the risk, ' not on the temporal or geographical scope of that risk . . . In short, the question is whether a situation is so dangerous that it merits an immediate response." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) Brooks v. Powers, 165 Conn.App. 44, 70-71, 138 A.3d 1012, cert. granted, 322 Conn. 907 (2016) (citing and quoting Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014)). Taking as true the allegations against the Board in the amended complaint, as the court must in ruling on a motion to strike, the court finds that the plaintiff has failed to make a threshold showing of imminent harm.
Accordingly, the plaintiff's claim against the Board is barred by the doctrine of governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B). The identifiable victim/imminent harm exception to governmental immunity is not applicable here. The Board's motion to strike count three of the amended complaint is granted.
The Board has also moved to strike count three of the amended complaint on the ground that it fails to state a claim for which relief can be granted. The Board argues that it had no cognizable duty to the plaintiff regarding the scavenger hunt such as would give rise to a claim against the Board for negligence. Because the court finds that the Board is entitled to governmental immunity, it does not reach this additional ground for the Board's motion to strike.
IV
For the reasons set forth above, the defendant Norwalk Board of Education's motion to strike (#111.00; #113.00) is hereby GRANTED.