Opinion
HHDCV146047423
12-23-2015
Brynn Leslie ppa Kimberly Leslie v. Hartford Board of Education
UNPUBLISHED OPINION
Filed January 5, 2016
REVISED MEMORANDUM OF DECISION
Nina F. Elgo, J.
In the action before this court, the plaintiff, Brynn Leslie, ppa Kimberly Leslie, has sued the defendant, City of Hartford Board of Education, for damages she allegedly sustained after being injured at a haunted house event held at the Greater Hartford Classical Magnet School. The defendant has filed a motion for summary judgment, asserting there is no genuine issue of material fact and that they are entitled to judgment as a matter of law based on governmental immunity. The plaintiff has filed her objection and contends that there are issues of material fact in dispute and, therefore, summary judgment is not appropriate.
The plaintiff has withdrawn its action against the City of Hartford, which was originally a co-defendant in this matter.
The plaintiff, who is a minor, was attending a haunted house event at the Classical Magnet School when she got injured after other students became unruly while she was in the lavatory, which was being used as part of the haunted house. The defendant does not dispute these facts, nor does it dispute the fact that the haunted house collected $1, 875 in entrance fees. The defendant has submitted evidence, which has not been contradicted or disputed by the plaintiff, that the funds collected from the haunted house event went into a student activities fund.
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
" [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014).
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, supra, 316 Conn. 820-21.
In support of its motion for summary judgment, the defendant argues that as a political subdivision of the state, it is immune from liability for negligence for discretionary acts under General Statutes § 52-557n(a). The defendant notes that because the plaintiff specifically alleges conduct that encompasses inherently discretionary acts, i.e., that the defendant failed to provide adequate supervision, failed to adequately train those supervising the event, and failed to adequately inspect the premises, the defendant is immune from liability under the statute. The court agrees.
" This court has previously stated that [a] municipality itself was generally immune from liability for its tortious acts at common law . . . We have also recognized, however, that governmental immunity may be abrogated by statute." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). Thus, under § 52-557n(a)(1), " [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 . . ."
Section 52-557n(a)(2), however, also provides 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 . . . (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." Read together, our Supreme Court has reconciled these provisions to mean that while municipal liability will attach when the negligent acts or omissions are ministerial in nature, a town will be immune from liability when the alleged negligent acts or omissions involve the exercise of discretion. See Martel v. Metropolitan District Commission, supra, 275 Conn. 47-48.
" The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . 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 . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the factfinder . . . there are cases where it is apparent from the complaint." (Citations omitted; footnote omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 48-49.
In this case, the court agrees that the alleged negligent acts of omission, i.e., that the defendant failed to provide adequate supervision, failed to adequately train those supervising the event, and failed to adequately inspect the premises, are inherently discretionary acts. Moreover, the plaintiff has failed to produce a municipal policy or directive demonstrating that these responsibilities were ministerial in nature. While the plaintiff argues this point by claiming that a motion to strike is more appropriate rather than summary judgment, our Supreme Court in Martel held otherwise. In the absence of such a policy or directive, the court in Martel found that where allegedly negligent acts are inherently discretionary as a matter of law, summary judgment was appropriately rendered in favor of the defendants.
The plaintiff also argues that even if the negligent acts are discretionary, the defendant is not entitled to immunity because the haunted house event yielded a profit and therefore, under § 52-557n(a)(1)(B), the municipality is liable pursuant to that provision. See Considine v. Waterbury, 279 Conn. 830, 854, 905 A.2d 70 (2006) (where the defendant is engaged in a proprietary act, rather than a governmental act, the distinction between discretionary and ministerial acts does not apply). This court, however, is not persuaded that § 52-557n(a)(1)(B) applies.
Section 52-557n(a)(1) provides, in relevant part, that " a political subdivision of the state shall be liable for damages to person or property caused by . . . (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . ." Generally, " [i]f a municipality is acting only as the agent or representative of the state in carrying out its public purposes . . . then it clearly is not deriving a special corporate benefit or pecuniary profit." (Citation omitted; internal quotation marks omitted.) Considine v. Waterbury, supra, 279 Conn. 845-46.
In contrast, " a municipality generally has been determined to be acting for its own special corporate benefit or pecuniary profit where it engages in an activity for the particular benefit of its inhabitants . . . or if it derives revenue in excess of its costs from the activity." (Citation omitted; internal quotation marks omitted.) Id., 847. " [A] municipality is engaged in a proprietary function when it acts very much like private enterprise . . ." (Internal quotation marks omitted.) Id., 848.
" When a municipality derives substantial revenue from its commercial use of municipal property, it has been considered . . . to be engaged in a proprietary function even if it reinvests that revenue back into the property's maintenance expenses or to pay down debt related to the property." Id., 848. Nevertheless, " [t]he municipality may . . . charge a nominal fee for participation in a governmental activity and it will not lose its governmental nature as long as the fee is insufficient to meet the activity's expenses." Id., 847.
The plaintiff argues that the haunted house is a proprietary activity by suggesting that the funds raised exceed the costs of the activity. This claim, however, requires that this court ignore the context for the activity itself. The plaintiff cannot seriously dispute the fact that the haunted house event was a fundraiser for the school's senior class activities fund. Therefore, the underlying purpose of the event was to support school activities, which is part and parcel of the municipality's delegated duty from the state to provide education. In this respect, Couture v. Board of Education, 6 Conn.App. 309, 505 A.2d 432 (1986) is on point.
In Couture v. Board of Education, the court observed that by providing public education, " municipalities . . . are engaged in a governmental duty" delegated by our state legislature to the local boards of education. Id., 312. In considering the board of education's claim of immunity for negligence and nuisance claims arising from injuries sustained to a spectator at a high school football game, the court further noted that " [p]ursuant to their duty to provide public education, the town boards are given substantial discretion to determine educational policy . . . Included in this authority is the power to decide that sporting events are a necessary or desirable part of the town's educational program." (Citation omitted.) Id., 313. The court also rejected the plaintiff's claim that, because a school-sponsored event is not statutorily mandated, the defendant cannot invoke their immunity. According to the court, " [w]hether the duty is directly imposed upon the city or permissive, that is, one which it voluntarily assumed . . . does not change the character of the act or function. The duty in either case will be governmental if the nature and character of the act or function be such." (Internal quotation marks omitted.) Id. .
Far from acting like a private enterprise for the purpose of deriving substantial revenue from its activities, the haunted house event was a school-sponsored activity intended to support other school-sponsored activities. Moreover, the alleged negligent acts, specifically the duty " to maintain, inspect, and repair school property, to provide safe premises for school-sponsored activities, and to supervise such activities clearly affect the general public, and do not involve special or unique duties owed to a particular individual." Natale v. Greenwich Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV-86-234271-S (November 13, 1991, Katz, J.) [5 Conn. L. Rptr. 254, 256]. Because these activities ultimately serve, at their core, inherently governmental functions, the defendant is entitled to governmental immunity.
The motion for summary judgment is granted.