Opinion
No. CV 07-6001394-S
October 7, 2011
MEMORANDUM OF DECISION
I FACTS
The following facts are alleged in the six-count revised complaint, the operative complaint, which was filed on November 27, 2007, by the plaintiff Paula Liverpool, the mother and legal guardian of Jameel James. James was a ninth grade student at Hillhouse High School (Hillhouse) in New Haven. The defendants are Eric Barbarito, Dr. Lonnie Garris, the city of New Haven, and the New Haven School Board. Count One sounds in negligence against Barbarito, count two sounds in negligence against Garris, counts three and four sound in negligence against New Haven, and counts five and six sound in negligence against the New Haven School Board. The action arises from injuries and damages James allegedly sustained when he hit his head on a brick wall while playing basketball during gym class.
While this defendant's name is spelled "Barbarito" on the summons, it is spelled as "Barabarito" throughout the operative complaint. The defendants, in their memorandum in support of the motion for summary judgment, alternate between "Barbarito," appearing to indicate on page one of the memorandum that "Bararbarito" is an incorrect spelling, and "Barabarito," with the affidavit using the spelling of "Barabarito." For purposes of this memorandum, this court will refer to this defendant as "Barbarito."
In the operative complaint, the plaintiff alleges the following facts. At all relevant times, Garris was the principal of Hillhouse, the city of New Haven maintained public schools pursuant to General Statutes § 10-15, and the New Haven School Board was "responsible for all aspects of employment and maintenance" at Hillhouse under General Statutes § 10-220. On or about February 8, 2007, James was attending Hillhouse and participating in a mandatory physical education class. As part of this class, James was participating in a game of basketball under the supervision of Barbarito, who was present in the gym during the aforementioned class. During the class James "fell, tripped and/or was pushed and struck his head on a brick wall," and subsequently suffered a loss of consciousness and required surgery.
An answer and special defenses were filed on February 19, 2008. In the first special defense, the defendant alleges that the plaintiff's claims are barred by governmental immunity. In the second special defense, the defendant alleges that the plaintiff's claims are barred by General Statutes § 52-557n as the acts alleged by the plaintiff were official governmental functions requiring discretion. On March 25, 2011, the defendants filed a motion for summary judgment directed against the revised complaint on the ground that the acts alleged by the plaintiff in all counts of the revised complaint "are protected by governmental immunity as they were discretionary in nature and it was not apparent to the defendants that their discretionary acts subjected [James] to imminent harm." A memorandum of law in support of the motion for summary judgment accompanied the motion along with an affidavit of Denisha Williams, a physical education teacher at Hillhouse; an affidavit of Barbarito; an affidavit of Glenn R. Gollenberg, an architect and principal at the S/L/A/M Collaborative, Inc; and a copy of the National Federation of State High School Associations' Court and Field Diagram Guide. The plaintiff did not file a memorandum in opposition to the motion for summary judgment, and her counsel did not attend oral argument on this matter; which was conducted at the short calendar on June 13, 2011.
In Barbarito's affidavit, he indicates that at all relevant times he was a physical education teacher at Hillhouse, but the title below his signature indicates that at the time he swore to the affidavit, he was an assistant principal at Wilbur Cross High School in New Haven.
II DISCUSSION
Practice Book § 17-44 provides, in relevant part: "In any action . . . any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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 . . ."
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . Because the burden of proof is on the movant, the trial court must view the evidence in the light most favorable to the nonmoving party . . ."
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist . . . Because [l]itigants have a constitutional right to have factual issues resolved by the jury . . . motion[s] for summary judgment [are] designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . ."
"Of course, [o]nce the moving party has met its burden [of production] . . . the opposing party [to survive summary judgment] must present evidence that demonstrates the existence of some disputed factual issue . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, [however] the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365-66, 2 A.3d 902 (2010).
A Counts against Barbarito and Garris
In count one of the complaint, the plaintiff makes the following allegations. Barbarito, who was responsible for the supervision of the basketball game to make sure that students complied with the relevant rules and regulations associated with this activity, failed to provide adequate supervision over the gym class activities and "failed to adequately explain and demonstrate the rules and regulations for this activity." "Barbarito's failure to supervise, explain and demonstrate these activities to the students" proximately caused James' injuries and damages.
In count two of the complaint, the plaintiff alleges the following additional allegations. Garris bore responsibility for Hillhouse's daily operations, which included "the supervision of staff, training of staff, implementation of safety protocols and general staff accountability." Garris "failed to adequately supervise, train and/or direct the staff" under his supervision and permitted a physical education class to take place on or about February 8, 2007, that was inadequately supervised. Garris's "failure to supervise, train and/or direct the school staff" directly and proximately caused James' injuries.
With regard to governmental immunity, the defendants argue that any duty that either Barbarito or Garris owed to James was discretionary. The defendants next argue that the identifiable victim-imminent harm exception to governmental immunity for discretionary acts does not apply to the counts against Barbarito or Garris. The defendants concede that "[a]s a school child during school hours, [James] was part of an identifiable class of persons," but they argue that James was not subject to imminent harm and the plaintiff does not allege that James was subject to imminent harm. The defendants assert that no allegations "[indicate] that the risk of harm to [James] was imminent, the harm here could have happened at anytime since the gymnasium was built. Nothing limits the danger to one specific, foreseeable time of day or time of year. This harm, therefore fails to satisfy the requirement of imminence." The defendants further assert that "both Barbarito and Williams in their many combined years of teaching at Hillhouse have never witnessed a student injured by sliding into a wall playing a game of basketball in the Hillhouse gymnasium." Both Barbarito and Williams state that in their affidavits that they have never witnessed this type of injury before. The defendants also argue that this incident occurred when a student was playing basketball during a supervised gym class and chased the ball out of bounds and that there is no way Barbarito could have prevented the incident from happening.
"The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998).
"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." (Internal quotation marks omitted.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011).
The Supreme Court has stated that there are certain exceptions to governmental immunity for discretionary acts. "[W]here the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal . . . One exception is when it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm . . . Another exception is where a statute may specifically provide for a cause of action against an official or a municipality for failure to enforce certain laws, such as those designed to prevent disturbances of the peace by riotous assemblies . . . A third exception to the general rule is where the complaint alleges an action involving malice, wantonness or intent to injure, rather than negligence." (Citations omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1988).
"[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Purzycki v. Fairfield, supra, 244 Conn. 107-08.
"Whether conduct is ministerial or discretionary may be determined as a matter of law. See Martel v. Metropolitan District Commission, 275 Conn. 38, 49, 881 A.2d 194 (2005) (`[a]lthough the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint' . . .)." Smart v. Corbitt, supra, 126 Conn.App. 900.
"When presented with the issues of supervision of students, implementation of school policies and the control and management of a school and its students, Superior Courts have generally held that these are public duties, as they affect students generally, and are carried out through discretionary acts." Negron v. Ramirez, Superior Court, judicial district of New London, Docket No. CV 09 5013686 (June 10, 2011, Cosgrove, J.), citing, inter alia, Dube v. Bye, Superior Court, judicial district of New Haven, Docket No. CV 98 0418259 (December 13, 1999, Zoarski, J.T.R.) ( 26 Conn. L. Rptr. 290).
"To properly allege the existence of a ministerial duty, a plaintiff must allege that [the defendant] was required to perform in a [prescribed] manner and failed to do so. See Colon v. Board of Education, 60 Conn.App. 178, 182, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). That is, there must be a written policy, directive or guidelines mandating a particular course of action. Bashaw v. Glastonbury, Superior Court, judicial district of Hartford, Docket No. CV 09 5032294 (December 7, 2010, Peck, J.) ( 51 Conn. L. Rptr. 100, 102)." (Emphasis added; internal quotation marks omitted.) Lang v. New London, Superior Court, judicial district of New London, Docket No. CV 09 5011549 (April 21, 2011, Martin, J.). The allegations in the operative complaint do not describe ministerial duties that Barbarito owed to James under a policy, directive or guidelines; therefore, any duty alleged to have been held by Barbarito was discretionary, not ministerial.
As the court has determined that the alleged duties of Barbarito were discretionary, the court will now determine whether any of the exceptions to governmental immunity for discretionary acts applies. The only exception to the qualified immunity of municipal employees for discretionary acts that is pertinent to the instant action is the identifiable person-imminent harm exception. See Purzycki v. Fairfield, supra, 244 Conn. 108. "[T]he identifiable person, imminent harm exception . . . applies 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 . . . By its own terms, this 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 . . . We have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim, that they come within the imminent harm exception." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350, 984 A.2d 684 (2009).
"The Supreme Court has in some cases discussed whether the imminent harm was `foreseeable,' while at other times has framed the issue as whether the imminent harm was `apparent' to the public official. Compare Purzycki, supra, 244 Conn. at 110, and Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994) (both cases discuss whether the harm was foreseeable) with Doe v. Petersen, [ 279 Conn. 607, 621, 903 A.2d 191 (2006] and Shore v. Stonington, [ 187 Conn. 147, 153-54, 444 A.2d 1379 (1982] (both cases discuss whether the harm was apparent). This court is not aware of any case that has analyzed whether the harm was both foreseeable and apparent. This is not surprising. The court can see no difference between analyzing whether a risk is foreseeable or apparent. In fact, in Fleming v. Bridgeport, 284 Conn. 502, 532-35, 935 A.2d 126 (2007), the Supreme Court, although analyzing whether the harm was `apparent,' also stated that `foreseeability is the touchstone of our analysis in determining whether a public officer can be liable for his discretionary acts under this exception.' Thus, because the Supreme Court has never in this context differentiated between foreseeable arid apparent, and the court sees no difference between the terms in analyzing plaintiff's claim, the court will treat them as interchangeable for purposes of the defendants' motion." Sheehan v. Board of Education, Superior Court, judicial district of Tolland, Docket No. CV 07 5002086 (May 13, 2009, Bright, J.) ( 47 Conn. L. Rptr. 785, 789 n. 2).
"The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals. Colon v. Board of Education, [ supra, 60 Conn.App. 184]; see also Burns v. Board of Education, [ 228 Conn. 640, 646, 638 A.2d 1 (1994]; DeConti v. McGlone, 88 Conn.App. 270, 273, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005); Gajewski v. Pavelo, 36 Conn.App. 601, 620, 652 A.2d 509 (1994), aff'd, 236 Conn. 27, 670 A.2d 318 (1996). Thus far, the only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours. See [ Burns v. Board of Education, supra], 640; see also Purzycki v. Fairfield, [ supra, 244 Conn. 110-11] (determining whether there was sufficient evidence of imminent harm to school child). In determining that such schoolchildren were within such a class, we 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. Burns v. Board of Education, supra, [648-50].' Prescott v. Meriden, 273 Conn. 759, 764, 873 A.2d 175 (2005)." Cotto v. Board of Education, 294 Conn. 265, 274, 984 A.2d 58 (2009).
"Imminent harm is harm ready to take place within the immediate future. Tryon v. North Branford, 58 Conn.App. 702, 712, 755 A.2d 317 (2000). 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 . . ." (Internal quotation marks omitted.) Green v. Hochman, Superior Court, judicial district of Fairfield, Docket No. CV 08 4024068 (April 8, 2011, Dooley, J.).
The Supreme Court in Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989), discussed how it has handled the identifiable person-imminent harm exception in previous cases. "The `discrete person/imminent harm' exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. In Shore v. Stonington, [ 187 Conn. 147, 444 A.2d 1379 (1982], a police officer stopped a speeding automobile. Despite evidence of intoxication, the officer did not arrest the driver. Later that evening, the driver struck a vehicle being operated by the plaintiff's decedent, who died from the injuries she sustained in the collision. [The Supreme Court] upheld the trial court's conclusion that the plaintiff had failed to show that the plaintiff's decedent was an identifiable person subject to imminent harm. In Sestito v. Groton, [ 178 Conn. 520, 423 A.2d 165 (1979], a police officer, while on duty, observed a group of men drinking, arguing and scuffling in a parking lot outside a bar. The officer did not intervene until he heard gunshots. The plaintiff's decedent died as a result of being shot. This court concluded that the trial court erred in directing a verdict for the defendant town based upon governmental immunity. In resolving `conflicting testimony on the issue of imminence of harm in favor of the plaintiff [the Supreme Court] held that the case should then have been submitted to the jury.' Shore v. Stonington, supra, 153."
In Evon, the plaintiffs' decedents died when a fire destroyed their Waterbury residence, and the plaintiffs brought a claim against the city of Waterbury and certain city officials for negligence. Evon v. Andrews, supra, 211 Conn. 502. The trial court granted the defendants' motion to strike that claim; id., 502-04; and the Supreme Court affirmed the trial court stating: "The gravamen of the plaintiffs' allegations is that the defendants had not done enough to prevent the occurrence of a fire. The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. The class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of `identifiable persons' within the meaning of Shore v. Stonington, supra. Furthermore, the plaintiff's decedents were not subject to `imminent harm.' This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v Groton, supra. The present allegations do not even rise to the level of the imminence [the Supreme Court] rejected in Shore v. Stonington, supra, in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiff's decedent. In the present instance, the fire could have occurred at any future time or not at all. [The Supreme Court] cannot accept the proposition that the plaintiffs' decedents in this case were readily identifiable victims subject to imminent harm. As [the Supreme Court] observed in Shore v. Stonington, supra, 157, `[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.'" Evon v. Andrews, supra, 211 Conn. 507-08.
In the educational realm, in Burns, the case where the Supreme Court held that schoolchildren attending public school during school hours were among an identifiable class of foreseeable victims, the minor plaintiff, a high school student, fell on a sheet of ice and sustained an injury while walking to his guidance counselor's office. Burns v. Board of Education, supra, 228 Conn. 642, 650. The area where the minor plaintiff fell was neither salted nor sanded and no warnings were issued regarding the condition. Id., 642. The Burns court distinguished the facts of its case from the facts of Evon, stating: "In this case, the plaintiff school child slipped and fell `due to icy conditions on a main accessway of the school campus, during school hours, while the child was compelled by statute to be on those school grounds Unlike the incident in Evon v. Andrews, supra, 211 Conn. 501, this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus. Further, the potential for harm from a fall on ice was significant and foreseeable. Under these circumstances, [the Supreme Court] conclude[s] that the plaintiff school child was one of a class of foreseeable victims to whom the superintendent owed a duty of protection in relation to the maintenance and safety of the school grounds, and accordingly governmental immunity is no defense." Burns v. Board of Education, supra, 222 Conn. 650 As the plaintiff alleges that James was a school child in school participating in a mandatory physical education class, he would have been a member of an identifiable class of foreseeable victims if the potential for harm from the unpadded wall was significant and foreseeable.
In Purzycki v. Fairfield, supra, 244 Conn. 103-04, the minor plaintiff, an eight-year-old second grade elementary school student, was tripped by another student when running down an unmonitored hallway after lunch. The plaintiffs alleged, inter alia, negligence against the town of Fairfield, the school principal, and the Fairfield board of education, though the claim against the town was withdrawn prior to trial. Id., 103-04 n. 1. The defendants alleged governmental immunity as a special defense, and the jury rendered a verdict in favor of the plaintiffs. Id. 104-05. On appeal, the Supreme Court found the facts of Purzycki to be more analogous to the facts of Burns than to Evon; Purzycki v. Fairfield, supra, 244 Conn. 109; stating: "In Burns, it was critical to [the Supreme Court's] conclusion that governmental immunity was not a defense that `the danger was limited to the duration of the temporary . . . condition . . . [and that] the potential for harm . . . was significant and foreseeable.' Burns v. Board of Education, supra, 228 Conn. 650. Similarly, the present case involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision. Finally, the risk of harm was significant and foreseeable, as shown by the principal's testimony `that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries.' Purzycki v. Fairfield, 244 Conn.App. 359, 367, 689 A.2d 504 (1997] (Heiman, J., dissenting). Thus, [the Supreme Court] follow[s] Burns and, under the facts of the present case, conclude[s] that there was sufficient evidence from which the jury reasonably could have found a foreseeably dangerous condition that was limited in duration and geographical scope." Purzycki v. Fairfield, supra, 244 Conn. 110. The Supreme Court in Purzycki further stated: "the imminent harm was limited to a one-half hour period each day when the second grade students were dismissed to traverse an unsupervised hallway, when school administrators were aware that unsupervised children arc more likely to run and engage in horseplay leading to injuries. Therefore, because the school administrators here had reason to foresee the danger that could occur on a daily basis, the harm in the present case was not as remote a possibility as was the harm in Evon." Purzycki v. Fairfield, supra, 244 Conn. 111.
In Colon v. Board of Education, supra, 60 Conn.App. 178, the minor plaintiff, a student at a school in New Haven, allegedly sustained injuries when she, while in a school hallway, was struck by a teacher opening a door. Id., 179. The plaintiffs brought suit against, inter alia, the New Haven board of education. Id., 179 n. 1. The trial court granted summary judgment, determining that the identifiable person-imminent harm exception to governmental immunity for discretionary acts did not apply and the plaintiffs appealed. Id., 180. The trial court held that unlike the facts in Purzycki, the imminent harm exception did not apply "because the injury could have occurred at any time or not at all." Colon v. Board of Education, supra, 187. The Appelle Court in Colon stated: "In light of the precedent cited previously, [the Appellate Court] conclude[s] that the [minor plaintiff] was subject to danger that was limited in duration and that the potential for harm was significant and foreseeable. [The minor plaintiff] was a student required by statute to be in school. It is alleged that [the teacher] opened a door in a negligent manner causing [the minor plaintiff], a student, to be injured. The danger presented was limited in duration, as it could happen only when students are in the hallway in a dangerous spot. Moreover, the potential for injury from being hit by an opening door is significant. Accordingly, [the Appellate Court] conclude[s] that governmental immunity does not apply to the present case because the identifiable person-imminent harm exception is applicable." (Emphasis added.) Colon v. Board of Education, supra, 187-88.
"The `apparentness' requirement is grounded in the policy goal underlying all discretionary act immunity, that is, `keeping public officials unafraid' to exercise judgment. G. Bermann, `Integrating Governmental and Officer Tort Liability,' 77 Colum. L. Rev. 1175, 1180 (1977). It surely would ill serve this goal to expose a public official to liability for his or her failure to respond adequately to a harm that was not apparent to him or her." (Emphasis in original.) Doe v. Petersen, 279 Conn. 607, 616-17, 903 A.2d 191 (2006). "[T]he core requirements of the `imminent harm' exception are analyzed conjunctively. 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, 620.
In the present case, Williams, in her affidavit, states that in the year prior to the incident and the year in which James got hurt, she never personally saw any student sustain injuries by sliding out of bounds during basketball and hitting the Hillhouse gymnasium wall. Williams also states that when James got hurt, he was in the course of playing a half court basketball game and James tried to save a ball when it went out of bounds, and was not pushed. Williams further states in her affidavit that prior to this incident occurring she "had no indication that [James] would slide into the brick wall and be injured."
In Barbarito's affidavit, he states that prior to the incident, he "never personally observed any student sliding out of bounds and hitting the wall in the gymnasium at Hillhouse High School during basketball, nevertheless be injured doing so." He also states that prior to James' being injured, the students would have been practicing their skills and that James was injured during an actual game and he did not witness James' fall.
"While it is the defendant's burden to prove the defense of governmental immunity . . . it is the plaintiff's burden to prove an exception to that defense." (Citation omitted.) Silano v. Board of Education, 52 Conn.Sup. 42, 62, 23 A.3d 104 (2010), aff'd, 129 Conn.App. 682; 21 A.3d 899 (2011), citing, inter alia, Cotto v. Board of Education, supra, 294 Conn. 273.
Barbarito's affidavit demonstrates that it was not apparent to him that James, albeit a member of an identifiable class of victims, was subject to imminent harm by hitting an unpadded gymnasium wall during the course of playing basketball during gym class. The plaintiffs have not submitted any evidence to refute the defendants' evidence to show that a genuine issue of material fact exists with regard to imminence and apparentness. Therefore, the motion for summary judgment as to Barbarito is granted as the identifiable victim-imminent harm exception to governmental immunity for discretionary acts does not apply.
Next, this court must address the issue of whether summary judgment should be granted as to Garris on the ground of governmental immunity. "It is well settled in Connecticut that decisions involving municipal employee hiring, training, supervision and discipline are discretionary acts as a matter of law. Hughes v. Hartford, 96 F.Sup.2d 114, 119 (D.Conn. 2000)." Brooks v. Sweeney, Superior Court, judicial district of Hartford, Docket No. CV 06 5005224 (November 28, 2008, Miller, J.), aff'd, 299 Conn. 196, 9 A.3d 347 (2010). Similar to the allegations against Barbarito, in the operative complaint, there are no allegations that Garris breached any ministerial duty he owed to James. Therefore, like Barbarito, any duty that Garris may have owed to James was discretionary, not ministerial.
Next the court must determine whether the identifiable victim-imminent harm exception for governmental immunity for discretionary acts applies to bar James' claims against Garris. The defendants refer back to the arguments they made with regard to Barbarito. If it was not apparent to Williams or Barbarito, who were present in the gym class where James was allegedly injured that James was in danger of imminent harm, then it could not have been apparent to Garris, who was more removed from the situation, that his allegedly inadequate supervision, training and direction of the school staff and his permitting an insufficiently supervised physical education class to proceed would put James in imminent harm. Further, James has not put forth any evidence demonstrating otherwise. Therefore, summary judgment is granted as to Garris.
B Count Three against the City of New Haven and Count Five against the New Haven Board of Education
In count three, James alleges that New Haven, a municipality defined in General Statutes § 7-187, which was "responsible for hiring, training and supervising staff" that the New Haven School Board employed, "failed to adequately train, supervise and/or direct its employees at [Hillhouse]," which directly and proximately caused James' injuries. In count five, James alleges that the New Haven School Board, which was "responsible for supervising and training employees" within the New Haven public schools, "failed to adequately and/or properly supervise and train employees" of the New Haven public schools, which directly and proximately led to James' injuries. Both count three, which is brought against New Haven, and count five, which is brought against the New Haven School Board, cite to General Statutes § 52-557n as a basis for these defendants' liability.
The defendants argue that New Haven and the New Haven School Board are entitled to summary judgment as to counts three and five on the basis of governmental immunity as their acts were discretionary, not ministerial, and as a matter of law, James was not an identifiable person who was subject to imminent harm. The defendants assert that New Haven and the New Haven School Board were engaged in performing a governmental duty as governmental entities. The defendants contend that at common law, a municipality generally has immunity for the torts it commits. The defendants further argue that the New Haven School Board is protected from liability for its employees' discretionary acts pursuant to § 52-557n. The defendants maintain that the plaintiff brought these claims under § 52-557n and that this statute, combined with the common law, provides governmental immunity to state political subdivisions.
The defendants argue that considerations pertaining to hiring, training and supervising employees involve discretionary acts. The defendants maintain that the allegations leveled against New Haven and the New Haven School Board in counts three and five, which are identical to those against Garris, pertain to inadequate training and supervision of employees, which involve discretionary acts or omissions. The defendants argue that the exceptions to governmental immunity for discretionary acts do not apply, and they cite to the portion of their memorandum of law where they addressed these exceptions with respect to Barbarito.
"A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued . . . in any action . . . Municipalities do, in certain circumstances, have a governmental immunity from liability . . . But that is entirely different from the state's sovereign immunity from suit . . ." (Emphasis in original; internal quotation marks omitted.) Vejseli v. Pasha, 282 Conn. 561, 573, 923 A.2d 688 (2007). "[U]nlike the state, municipalities have no sovereign immunity from suit . . . Rather, municipal governments have a limited immunity from liability." (Internal quotation marks omitted.) Id., 572. "The state legislature, however, possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities." White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990).
General Statutes § 52-557n provides, in relevant part: "(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 . . . (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."
The Supreme Court has analyzed whether the identifiable person-imminent harm exception applies to cases brought pursuant to § 52-557n; Grady v. Somers, supra, 294 Conn. 330-49; and held that "that the identifiable person, imminent harm exception to employees' qualified immunity applies to the immunity afforded to municipalities for the negligent performance of discretionary acts under § 52-557n(a)(2)(B)." Grady v. Somers, supra, 349. This is regardless of whether an employee or officer of the municipality was also named as a defendant in the complaint. Id., 348. "[A]lthough § 52-557n does not require a plaintiff to identify the [municipal employee] tortfeasor, it does not prohibit a plaintiff from doing so. Indeed, [the Supreme Court] recognize[s] the fact that a plaintiff who fails to identify an alleged tortfeasor in his or her complaint would be faced with a greater burden in establishing negligence." (Emphasis in original; internal quotation marks omitted.) Grady v. Somers, supra, 324 n. 27.
As stated earlier in this memorandum with regard to the individual defendants, "[i]t is well settled in Connecticut that decisions involving municipal employee hiring, training, supervision and discipline are discretionary acts as a matter of law." Brooks v. Sweeney, supra, Superior Court, Docket No. CV 06 5005224. Furthermore, the plaintiff does not allege that either New Haven or the New Haven School Board had a prescribed way of hiring, training and supervising employees that it violated; therefore, the plaintiff does not allege a violation of a ministerial duty owed to James. See Lang v. New London, supra, Superior Court, Docket No. CV 09 5011549. Therefore, any duty that New Haven or the New Haven School Board owed to James with regard to hiring, supervising and training employees was discretionary, not ministerial.
Now this court must consider whether the identifiable person-imminent harm exception applies to the allegations in counts three and five. Just as the court found that the defendants met their burden of proof with regard to the court determining it was not apparent to either Barbarito or Garris that James was subject to imminent harm, the court finds that as New Haven and the New Haven School Board were even more removed from the situation where James allegedly sustained his injuries, it could not have been apparent to these defendants that James was subject to imminent harm. Furthermore, while counts three and five relate back to count one, which is brought against Barbarito, neither count three nor count five identify an individual to whom it should have been apparent that New Haven's failure or the New Haven School Board's failure to train, supervise or direct employees would put James in imminent harm. Therefore, summary judgment is granted in favor of New Haven and the New Haven School Board as to counts three and five.
C Count Four Against the City of New Haven and Count Six against the New Haven School Board
In count four, the plaintiff alleges that New Haven "allowed and/or failed to correct a known dangerous condition" at Hillhouse, in violation of § 10-220, which included "an inadequately padded brick wall located near the basketball courts at [Hillhouse]." New Haven's "failure to correct the known dangerous condition" directly and proximately caused James' injuries. Allegations similar to the ones leveled against New Haven for failure to correct the brick wall were also made against the New Haven School Board in count six. The defendants argue that, as stated in Gollenberg's affidavit, there is no requirement to install padding on the brick wall that the plaintiff alleges was inadequately padded. The defendants further note that Gollenberg, in his affidavit, states that "dimensions and court location of the Hillhouse gymnasium" relative to where James allegedly sustained injuries complied with and/or exceeded the National Federation of State High School Associations' Court and Field Diagram Guide's recommendations. The defendants maintain that "[a]s the design of the school is [a] discretionary duty and the plaintiff has cited no standards which the wall has violated, the actions of [New Haven] and the [New Haven School Board] are discretionary as a matter of law." The defendants further assert that the exceptions to governmental immunity for discretionary acts do not apply, citing to the portion of their memorandum of law where they addressed these exceptions with respect to Barbarito.
"The design of the school, be it for reasons of functionality, aesthetics or cost-saving, is in the discretion of [the defendant town], the board of education and its employees and agents. If, for example, there had been a law, building code, or internal directive mandating the use of some other material, the task would likely have been ministerial." Adams v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 06 4027110 (August 28, 2008, Bentivegna, J.) ( 46 Conn. L. Rptr. 305). According to Gollenberg's affidavit, to the best of his knowledge, "there are no State of Connecticut building codes or other mandatory standards authored by the State of Connecticut that require padding the walls around a basketball court . . ." The plaintiff does not allege any mandatory state or municipal standards that would mandate padding the walls surrounding a basketball court. Furthermore, according to Gollenberg, the distance between the outside boundaries of the basketball court at issue and the wall where James allegedly sustained injuries is eleven feet and five inches, which either complies with or exceeds the National Federation of State High School Associations' Court and Field Diagram Guide. As the plaintiff does not allege any state or municipal requirement that the wall be padded, the alleged failure to correct the condition of the wall involved discretionary acts, not ministerial ones. See Colon v. Board of Education, supra, 60 Conn.App. 182-83 (absent an allegation that the teacher was performing an act in a directed or proscribed manner, the Appellate Court concluded that her acts were discretionary in nature).
Now this court must turn to whether the identifiable person-imminent harm exception applies to the allegations in counts four and six. Just as the court found that the defendants met their burden of proof with regard to the court determining it was not apparent to either Barbarito or Garris that James was subject to imminent harm, the court finds that as New Haven and the New Haven School Board, in failing to address an allegedly inadequately padded brick wall, were even more removed from the situation where James allegedly sustained his injuries, it was thus not apparent to them that James was subject to imminent harm. Therefore, the evidence demonstrates that it could not have been apparent to these defendants that James was subject to imminent harm. Furthermore, while counts six and four incorporate count one by reference, which is brought against Barbarito, neither count four nor count six identify an individual to whom it should have been apparent that New Haven's failure or the New Haven School Board's failure to correct an allegedly inadequately padded brick wall would put James in imminent harm. For all of these reasons, the identifiable person-imminent harm exception to governmental immunity does not apply to these claims. Therefore, summary judgment is granted in favor of New Haven and the New Haven School Board as to counts four and six.
III CONCLUSION
The motion for summary judgment is granted as to all counts of the complaint.