Opinion
No. DBD-CV08 5004054 S
July 22, 2008
MEMORANDUM OF DECISION Re Motion to Strike No. 102
I FACTS
On January 24, 2008, the plaintiff, Elaine Lowenadler, PPA Randy Lowenadler, commenced this lawsuit. The plaintiff alleges the following: On March 24, 2006, the plaintiff was on the premises of Bethel Middle School in his capacity as a seventh grade student. The plaintiff attended an after-school student-staff basketball game which was sponsored and supervised by school faculty and staff, including two of the co-defendants, Bill Mallard and Derek Muharem. Mallard and Muharem are assistant principals for Bethel Middle School. At that time, students engaged in activity whereby one student would get down on his hands and knees directly in front of the basket while another student would sprint towards the basket, jump on the kneeling student's back and then leap off the student's back in an attempt to dunk the basketball. Shortly after the first student's attempt to dunk the basketball failed, the plaintiff attempted to dunk by jumping off a kneeling student's back and, upon missing the dunk, came crashing down on the gymnasium floor, suffering injuries to his hands, wrists, teeth and face. The plaintiff further alleges that one week prior to this incident, students at Bethel Middle School engaged in a similar dunking contest at a basketball game organized, sponsored and supervised by school faculty.
At the hearing on the motion to strike the plaintiffs conceded that these events occurred after the school day had ended.
On January 26, 2008, the plaintiff commenced this lawsuit by service against the named defendants, Mallard, Muharem, the Bethel board of education (the board), and the town of Bethel (the town). The five-count complaint brings claims of negligence against Mallard and Muharem, statutory indemnification against the board pursuant to General Statutes § 7-465, statutory indemnification against the town pursuant to § 7-465, negligence against the board pursuant to § 52-557n, and negligence against the town pursuant to General Statutes § 52-557n. On March 4, 2008, the defendants filed a motion to strike the complaint in its CT Page 12051 entirety and the matter was heard at short calendar on April 21, 2008.
II DISCUSSION
"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." (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 necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "In ailing on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Id., 580. Ultimately, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
Count one alleges negligence against Mallard and Muharem. The defendants move to strike this count on the ground that these two defendants are being sued in their official capacity only and therefore the real party of interest is the town of Bethel. The plaintiff, however, contends that the allegations against Mallard and Muharem were brought against them individually and not in their official capacity only. "[Whether] the plaintiff . . . has sued the defendants in their official capacities . . . is a question of law . . ." Mercer v. Strange, 96 Conn.App. 123, 127, 899 A.2d 683 (2006). In determining the identity of the defendant, the summons, complaint and plaintiff's briefs are all relevant, See Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003); Ferreira v. Pringle, 255 Conn. 330, 352-54, 766 A.2d 400 (2001); Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). Ultimately, though, "the vital test is to be found in the essential nature and effect of the proceeding;" Miller v. Egan, supra, 265 Conn. 308, and this is ordinarily most closely correlated with the text of the complaint.
In Ferreira v. Pringle, supra, 255 Conn. 352-54, the Supreme Court had to construe whether a claim was brought against municipal employees in their individual or official capacities. The Court disagreed with the "plaintiff's contention that his complaint . . . was brought against various municipal employees, officers and agents in their individual capacities" because " a plain reading of the plaintiff's complaint reveals that the allegations against the defendants were asserted as a basis for imposing liability on the town." (Emphasis added.) Id., supra, 255 Conn. 352-53. In that case, the court focused solely on the complaint, and neither the summons, nor the plaintiff's brief were discussed in resolving the issue.
While Miller v. Egan, supra, 265 Conn. 308, and Hultman v. Blumenthal, supra, 67 Conn.App. 620, involved actions against the state rather than a municipality, their analysis and general principles are nonetheless useful in the present case. In Miller, the plaintiff contended that the state was not the real party against whom relief was sought "because the complaint sought relief both from the state and from the individual defendants." (Emphasis added.) Miller v. Egan, supra, 265 Conn. 308. The court found that `[t]he plaintiff's bare assertion, however, [was] not supported by the allegations of the complaint. Nowhere in the plaintiff's complaint did he allege that he was bringing an action against the defendants in their individual capacities. Instead, as already noted, the complaint repeatedly alleged that the defendants acted in their official capacity." Id., 308-09. Again, the summons and plaintiff's brief were not considered.
See also International Motor Cars, LLC v. James Sullivan, Superior Court, judicial district of New Britain, Docket No. HHB CV05 4005168 (June 20, 2006, Shaban, J.) (41 Conn. L. Rptr. 559).
In Hultman v. Blumenthal, supra, 67 Conn.App. 620, the Appellate Court took a more comprehensive approach, relying primarily on the summons. The court stated "the [trial] court correctly noted [that] the identities of the parties are determined by their description in the summons. See General Statutes § 52-45a . . . Practice Book § 8-1(a)." Id., 620. It went on to observe that while "[t]he complaint [did] not describe [Blumenthal] as the attorney general," "[t[he summons describe[d] the defendant as `Attorney General,' and the plaintiffs repeatedly refer in their brief to the defendant as `Attorney General Richard Blumenthal,'" in ultimately concluding that the action was brought against Blumenthal in his official capacity. Id. This more comprehensive approach, however, was only necessary because "it [was] unclear from the plaintiffs' complaint alone whether the plaintiffs [were] suing the defendant in his individual capacity or in his official capacity as the attorney general." Id.
In the present case, paragraph 3 of the first count states: " At all times hereto, the defendants were acting in the performance of their duties and within the scope of their employment as assistant principals of Bethel Middle School." (Emphasis added.) The complaint continues: "At all times hereto, the defendants were responsible for the administration and supervision of Bethel Middle School including, but not limited to, the promulgation and implementation of school policy, rules and regulations with respect to the use and maintenance of school facilities." Complaint, first count, paragraph 4.
The plaintiff points out in his brief that the heading to the first count of the complaint is subtitled, "Negligence as to the defendants, Bill Mallard and Derek Muharem," and does not suggest they are being sued in their official capacity only. The heading of a count, however, is not dispositive of what cause of action is alleged. See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) ([t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative"). It is the language of the complaint itself that must be analyzed. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) ("[b]ecause we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged"). This same reasoning is applicable not only to a cause of action but also to the identity of the defendants.
As the only allegations in the complaint dealing with the Mallard and Muharem's duty to supervise the plaintiff are based solely on their employment with the town, a plain reading of the complaint indicates the defendants are being sued in their official capacity and not individually. Ferreira v. Pringle, supra, 255 Conn. 352-53. The summons names Mallard and Muharem individually, without reference to their official positions, and lists their home address, but because the complaint makes it clear they are being sued in their official capacities, this is not controlling. Hultman v. Blumenthal, supra, 67 Conn.App. 620. Because the fifth count already alleges negligence against the Town of Bethel, the court grants the defendants' motion to strike the first count.
The defendants move to strike the second and third counts for statutory indemnification against the town pursuant to General Statutes § 7-465 on the grounds that, as claims under § 7-465 are derivative of underlying claims against the individual municipal employees, striking count one necessarily implies the second and third counts must also be struck. The court agrees and grants the defendants' motion to strike both the second and third counts.
On pages 8-9 of its memorandum of law in opposition to the motion to strike, the plaintiff concedes that the "General Statutes § 7-465 does not contemplate indemnification from the Board of Education and, therefore, the second count shall be withdrawn." To date no withdrawal has been filed and so the court has elected to address that count as part of the motion to strike.
Counts four and five allege negligence against the board and the town under General Statutes § 52-557n. The defendants move to strike counts four and five on the ground of governmental immunity. "The following principles of governmental immunity are pertinent to our resolution of the claims raised by the plaintiffs on appeal. 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 . . .
"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts . . ." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318-19.
"The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides 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 . . . Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by 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." (Internal quotation marks omitted.) Id., 320.
The plaintiff argues the determination of whether acts are discretionary or ministerial is best left to the jury and quotes Durrant v. Board of Education, 284 Conn. 91, 97 n. 5, 931 A.2d 859 (2007). The full quote, however, from that case states "although the general rule is that a determination as to whether the actions or omissions of a municipality are discretionary or ministerial is a question of fact for the jury, there are cases where it is apparent from the complaint." (Emphasis added; internal quotation marks omitted.) Id. "The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Prescott v. Meriden, 273 Conn. 759, 763, 873 A.2d 175 (2005). The complaint makes it clear that the defendants' alleged acts required the exercise of discretion.
"There are three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed 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 . . ." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 319-20.
The parties agree that the third exception is the only one that could be applicable to the facts of this case as alleged in the complaint. The defendants argue that the identifiable person-imminent harm exception does not apply. "The imminent harm exception to discretionary act immunity 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." (Citations omitted; internal CT Page 12056 quotation marks omitted.) Id., 329.
We turn to the second of these three elements to resolve the motion to strike counts four and five. "[This court has] construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Durrant v. Board of Education, supra, 284 Conn. 100. Where a plaintiff is not an identifiable individual, he must be a member of the limited class of foreseeable victims to bring a claim. "We begin with the understanding that the question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care . . . In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts . . . whether the relationship was of a voluntary nature . . . the seriousness of the injury threatened . . . the duration of the threat of injury . . . and whether the persons at risk had the opportunity to protect themselves from harm." (Citations omitted; internal quotation marks omitted.) Durrant v. Board of Education, supra, 284 Conn. 100-01.
The defendants concede that the plaintiff is an identifiable person, but "[the court is] not bound by a party's concession." State v. Cassidy, 62 Conn.App. 418, 421, 771 A.2d 240 (2001). For reasons set forth below, the court does not consider the plaintiff to be an identifiable victim.
At oral argument, the plaintiff conceded the injury occurred after school. Consequently, the plaintiff is not a member of an identifiable class of foreseeable victims. Id., 104. In Durrant, a parent slipped and fell in a puddle of water that had accumulated on the backdoor stairs while picking up her child from an after-school day care and homework study program. Id., 96. The Appellate Court had concluded the parent was an identifiable person. "[T]he [Appellate] [C]ourt reasoned that, had the plaintiff's child been injured in the fall, he would have been allowed to maintain an action against a municipality `because, although not legally required to be in the premises after the school day had concluded, the child was legally present on the premises for the after school program by invitation of the defendants . . . [Accordingly] . . . the six year old student would be in an identifiable class of foreseeable victims had he been the one who was allegedly injured.' Durrant v. Board of Education, [ 96 Conn.App. 465, 468-69, 900 A.2d 608 (2006)]." Durrant v. Board of Education, supra, 284 Conn. 98.
The Supreme Court disagreed with the Appellate Court, stating "[e]ven if the Appellate Court properly determined that the puddle of water in the staircase had satisfied the imminent harm element of the identifiable person-imminent harm exception . . . the court's conclusion that the plaintiff's child fell within an identifiable class of foreseeable victims was improper." (Citations omitted.) Id., 104. The court went on to observe that "[t]he only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours." (Emphasis added.) Id., 107. After discussing relevant case law, the Court concluded: "In the present case, the plaintiff was not compelled statutorily to relinquish protective custody of her child. No statute or legal doctrine required the plaintiff to enroll her child in the after school program; nor did any law require her to allow her child to remain after school on that particular day . . . The plaintiff's actions were entirely voluntary, and none of her voluntary choices imposes an additional duty of care on school authorities . . ." Id., 108.
The plaintiff in this case was similarly on the premises after school on a voluntary basis. The school may have sponsored and supervised the faculty-student basketball game, but, as the Supreme Court noted, "[t]here is a significant distinction . . . between a program in which participation is encouraged and one in which it is compelled." (Emphasis in original.) Id., 109. There is nothing alleged in the complaint which expressly states, or would lead to an inference if liberally read, that the plaintiff was compelled to be at, or participate in, the basketball game. The plaintiff therefore is not within an identifiable class of foreseeable victims and governmental immunity would therefore apply. Accordingly, the motion to strike counts four and five of the complaint is granted.
The plaintiff cites several cases as examples of the application of the exception to governmental immunity for a school child on school grounds as a foreseeable victim subject to imminent harm. Those cases cited by the plaintiff, however, deal with a child who was at school during regular school hours and was therefore compelled to be present. Colon v. New Haven, 60 Conn.App. 178, 758, A.2d 900, cert. denied, 255 Conn. 908 (2000) (student in hallway injured by door opened by teacher); Purzycki v. Fairfield, 244 Conn. 101, 110, 708 A.2d 937 (1998) (student injured by another student in hallway during lunch recess period); Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994) (student fell on icy courtyard at school during school hours); Ficorcelli v. O'Connor, Superior Court, judicial district of New Britain, Docket No. CV 990495522 (January 17, 2001, Shapiro, J.) (student injured in basketball game during recess).