Summary
In Maretz v. Huxley, 2009 Ct.Super. 1392 LOIS (Conn.Super.Ct., Jan. 12, 2009) (Corradino, J.) the court applied the same governmental immunity analysis to high school students as the Supreme Court applied to second graders in Purzycki and to middle school students in Bonamico.
Summary of this case from Sheehan v. Coventry Board of Ed.Opinion
No. CV07 5011978S
January 12, 2009
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#121)
In this case the defendants Amity Regional School District, Dr. John Brady, Dr. Edward Goldstone, and Robert Cole have filed a motion for summary judgment on the basis of a claim of governmental immunity. The suit arises out of an incident that allegedly occurred at the Amity Regional Senior High School in June 2005. Dr. Brady was the superintendent of the school district, Dr. Goldstone was the principal, and Robert Cole the assistant principal.
The plaintiff claims he was assaulted by another student during the school day; he alleges the "defendants were negligent in failing to provide adequate protection" and he now seeks damages pursuant to § 7-465 of the General Statutes.
(1)
Very generally the defendants premise their motion on the argument "that there are no genuine issues of material fact that the plaintiff's claim is barred by the doctrine of governmental immunity." Therefore, they argue "they are entitled to judgment as a matter of law."
The court will first paraphrase and even sometimes quote the plaintiff's version of the underlying facts he believes require that the motion be denied, then refer to facts brought out by the defendants, if any, which are not included in the plaintiff's rendition but which they believe support their position.
The plaintiff Maretz, because of a prior medical condition, preferred to have his lunch in a smaller picnic area adjacent to the main cafeteria which accommodated hundreds of students. He claims not to be aware of any supervision of this outside area which accommodated only 30 students. The high school had about 1100 students in June 2005 in "lunch waves" that lasted twenty-five minutes each. Thus about 370 students would be having lunch in any one lunch period.
As far as supervision was concerned, the school did not require staff to "go outside and directly supervise students in the outside picnic area" but there were four or five teachers in the cafeteria and each one of them would cover a different area. One of these teachers "was also required to monitor not only the cafeteria students, but also the students outside (in the picnic area) by looking out a glass wall which overlooked the outdoor tables." The plaintiff notes this "teacher could be up to 60 feet away from the students outside." Also there were three administrators in the cafeteria who supervise teachers and students.
When the bell for class rang the teachers had to go into the hallways to supervise students, they also had to watch for questionable behavior in the stairwells. In addition to the above supervision the school had three security personnel who would patrol randomly between 7 a.m. and 4 p.m. — random so that the students could not predict what areas would be unsupervised and when.
To turn to the allegations in this case, the plaintiff at his deposition said that he was talking and sitting at one of the picnic tables when a student named Huxley hit the plaintiff in the head, he in turn tried to kick Huxley, but merely grazed his shin. The plaintiff then responded by retreating from the area to avoid Huxley. Since the lunch period was nearing its end and the plaintiff decided to go to his next class, he left the picnic area and went toward the entrance doors. The school bell then rang which terminated the lunch period and the plaintiff "entered the stairwell leading to the second floor. Huxley was right behind the plaintiff and hit him on the head again, causing the plaintiff to lose his balance and experience severe head pain." Huxley's assaults are alleged to have caused the plaintiff severe physical and emotional injuries.
The defendants in the memorandum attached to their motion for summary judgment refer to portions of the deposition of the plaintiff where he states that he never reported to school authorities the difficulties he was having with Huxley prior to the date of the attacks. He also never reported, on the date of the incident, the first attack in the picnic area prior to the second assault in the area of the stairwell. At his deposition the plaintiff also testified the assault in the picnic area was "sudden and unexpected" — a characterization he agreed with. He also said he had no warning the incident was going to happen before it did — he did not foresee it.
(2) CT Page 1394
The standards to be applied when motions for summary judgments are filed is well known. If there is an issue of material fact the court should not grant it since a party has a constitutional right to a trial. If no such dispute over a material fact exists, the court should decide the motion since it may avoid the expense of litigation.(3)
To put the discussion in context procedurally, the defendants' claim here is one of governmental immunity. The plaintiff advances an exception to governmental immunity arguing the immunity is qualified and "there is sufficient evidence to support application of the identifiable-person/imminent harm exception to governmental immunity." The court in Doe v. Peterson, 279 Conn. 607, 613 (2006) said that: "The issue of governmental immunity is simply a question of the existence of a duty of care and `this court has approved the practice of deciding the issue of governmental immunity as a matter of law' Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 . . . (1988)."
However, the court, in Mulligan v. Rioux, 299 Conn. 716, 736 (1994), did say that: "Although the ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court, when, as in this case, there are unresolved factual issues material to the applicability of the defense preventing its early disposition, resolution of those factual issues is properly left to the jury." (Emphasis by Mulligan court. This language was cited with approval in cases discussing the applicability of the identifiable person/imminent harm exception to governmental immunity, Colon v. City of New Haven, 60 Conn.App. 178, 181 (2000); Tryon v. Town of North Branford, 58 Conn.App. 702, 708 (2000); Purzycki v Fairfield, 244 Conn. 101, 108 (1998). But see Doe v. Peterson, 279 Conn. 607, 621 (2006), however, in Peterson there does not appear to be an issue of material fact which would have prevented the court from deciding whether there was a duty of care (of which the court indicates government immunity is a subset).
Also it should be noted preliminarily that there is no claim here that any of the defendants cannot advance or are barred from asserting a claim of governmental immunity. To paraphrase the language of Doe v. Peterson, 279 Conn. at page 616, the plaintiff seems to recognize that in this case "the imminent harm exception is the only relevant exception to the discretionary act immunity" asserted here, thus further recognizing that discretionary activity on the part of the defendants is involved.
(4)
The question presented then is whether the imminent harm exception applies.
"Discretionary act immunity is abrogated 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' . . . 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." Doe v. Peterson, supra.
The court went on to note that the "identifiability" requirement applies "not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." Id. page 618. These three core requirements are to be analyzed "conjunctively." Id. page 620. At footnote 10, page 618 the court further noted that prior cases, including Burns and Purzycki "have utilized criteria including the duration, geographic scope, significance, and foreseeability of the risk of harm to determine whether that risk can correctly be considered imminent." But "these criteria . . . are not particularly relevant to the `apparentness' requirement." The footnote went on to note these criteria are forced and awkward when applied to a "non-physical risk of harm." Here of course we have a claim of alleged physical injury.
In the memorandum in support of the motion for summary judgment and in the reply to the defendants' opposition, two requirements of the exception are put in issue — the imminence of the harm and the apparentness of the risk of harm. In the school setting the exception could apply to a student like the plaintiff if he "was a member of a foreseeable class of victims" to whom the school authorities owed a "special duty of care," Burns v Board of Education, 228 Conn. 640, 646 (1994). In these school incidents the identifiable victim inquiry is subsumed in the imminence and apparentness inquiry for all intents and purposes. That the plaintiff was a member of an identifiable class does not appear to be in dispute.
The court will try to review the appellate cases that have raised the issue of the immunity exception in cases where there was injury to a student in a school setting. Purzycki v. Fairfield, 244 Conn. 101 (1998) is instructive in that regard. There the court lays out the operative facts at page 104:
"The Appellate Court decision sets forth the procedural history, and the facts that the jury reasonably could have found. `The [child] was an eight year old second grade student at the Roger Sherman School in Fairfield. School rules required that teachers escort students to an all-purpose room, which served as a cafeteria during lunchtime. While eating lunch the students were supervised by two adults. After eating lunch the students were dismissed on a table by table basis to go to the playground for recess. To get to the playground from the lunchroom the students proceeded down a hallway. The hallway was not monitored, but teachers in the classrooms abutting the hallway were instructed to keep their doors open in order to hear or see any activity in the hallway. This process was in accordance with the policies, rules and regulations promulgated by school officials." (Emphasis by this court.)
On June 13, 1989, at approximately 12:30 p.m., [the child], along with the rest of his class, was escorted to lunch by a teacher. After being dismissed for recess, [he] proceeded to his locker, where he removed his coat and hat. He then ran down the hallway, and as he neared the exit door, another student extended his leg and tripped him. [The child] fell head first through the wire mesh window of the exit door and sustained injuries."
It is necessary to make a lengthy quote from Purzycki which underlines its significance for this case.
"In Burns, it was critical to our 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, supra, 44 Conn.App. 367 (Heiman, J., dissenting). Thus, we follow Burns and, under the facts of the present case, conclude 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.
"The defendants and the amici curiae claim that the risk of harm presented here was more similar to Evon because there was evidence that this type of harm had not previously occurred during the twenty-two year time period in which the same level of supervision had occurred. The defendants also point out that the hallway itself harbored no dangers or defects. We disagree. There was no evidence from which the jury could have inferred that no such injuries had occurred. Moreover, although the absence of prior similar incidents may induce a jury to find an absence of liability, it does not foreclose a finding of liability, as a matter of law, for the first incident that occurs.
Furthermore, as noted previously, 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 are 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." 244 Conn. at pp 110-11. (Emphasis by this court.)
The significance of Purczyki is underlined by what happened in Bonamico v. City of Middletown, 47 Conn.App. 758 (1998) and 49 Conn.App. 605 (1998). In 47 Conn.App. at pp. 759-60 the court set forth the relevant facts:
"The minor plaintiff, Rosamaria Bonamico, was a student at Woodrow Wilson Middle School on November 25, 1992. On that day, she was walking down a corridor in the school and was struck in the eye with a "bean/pea/pellet" that had been thrown in her direction by fellow student Asa Black. Black had just come from a home economics session during which he, along with the other students, learned how to make bean bags. Black failed to return some of the beans in his possession and instead took them with him out of the classroom and into the corridor.
The school had a policy that required all teachers to be physically present and visible in the hallway to supervise the students as they changed class periods. The plaintiffs alleged that co-defendant Mary Ann Vinci, Black's home economics teacher, failed to comply with this policy and, as a result, caused the minor plaintiff to suffer injury to her left eye." (Emphasis by this court.)
In rejecting the applicability of the exception, the court said:
"The identifiable person-imminent harm exception is the only exception that is relevant to this case. Our courts have construed this exception to apply not only to identifiable individuals, but also to narrowly defined classes of foreseeable victims . . . The plaintiffs argue that, as a student, the minor plaintiff was a member of a class of identifiable victims that was subject to imminent harm when the school and its officials failed to supervise the corridors properly between class periods. We do not agree.
The plaintiffs in this case have failed to provide factual support for their allegations that the minor plaintiff was an identifiable person that was subject to imminent harm. The harm allegedly suffered by the minor plaintiff was caused by the voluntary, willful or negligent acts of another student. The plaintiffs do not allege that any of the defendants knew that the other student possessed the beans or pellets or that he would throw them toward the minor plaintiff. Moreover, the complaint contains no allegation that the defendants had any foreknowledge that the other student would act or would be likely to act in the way that he did during the period between classes. Thus, the plaintiff could have been injured at any time in the future or not at all." 42 Conn.App. 703.
The court went on to quote from its decision in Purzycki at 44 Conn.App. 359, 365-66 where it said "A combination of a lack of supervision, [the child's] own conduct and the conduct of another student caused the injuries. While it may have been foreseeable that [the child] might run in the hallway, any risk of harm that did exist required a confluence of events and did not rise to the level of imminence necessary to overcome the defendants' immunity." But the Appellate Court decision in Purzycki was overruled and in 49 Conn.App. 605 (1998) the Appellate Court, in light of the Supreme Court's decision in Purzycki, said its earlier decision in Bonamico was vacated which had upheld the trial court's striking of the plaintiff's complaint for failure to allege facts that would overcome governmental immunity on the basis of the imminent harm exception.
The interesting thing to note in Purzycki and the end result in Bonamico is that the court seemed in the last analysis to articulate the reason for application of the immunity exception to situations where there was an absence of supervision. That would make sense if the admonition in Doe v. Peterson is kept in mind that the third requirement of the exception must be met — it must be apparent to the public official that his or her conduct is likely to subject the victim or member of a class of foreseeable actions to imminent harm. As will be discussed shortly, in these school supervision cases, that factor seems to have a direct bearing in the finding of imminent harm. The identifiable member or class requirement is assumed. Thus in Burns second graders were allowed to proceed down a hallway after lunch to go to recess. Teachers who were in rooms abutting the hallway were told to keep their doors open to hear or see activity in the hallway. That was hardly enough to meet the supervision test since, as the principal testified, "if elementary school children are not supervised they tend to run and engage in horseplay that often results in injuries." The danger was limited in time and geographically which also made the application of the exception reasonable.
In Bonamico the opinion of the court noted that the injured child was injured in the hall while changing classes with other students, one of whom threw some kind of a pellet in her eye. The school had a policy requiring all teachers to be in the hallways during the changing of classes but the plaintiff claims the teacher assigned this task on the day in question failed to comply with the policy. The court noted as indicated in the previous quotation that "the exception to immunity could not apply because the injury was caused by the voluntary, willful or negligent act of another student and the school authorities had no foreknowledge the incident would be likely to occur."
But Purzycki invalidated this reasoning as the Bonamico court realized and in its second opinion which vacated the prior ruling. In effect Purzycki keyed in on the lack of supervision by emphasizing testimony to the effect that unsupervised children can engage in horseplay resulting in harm so that observations that unexpected, even willful conduct by another student is irrelevant in considering whether the exception applies — that is the very activity requiring the supervision in the first place. The risk of injury is also foreseeable and significant and imminent in light of the way kids can act without supervision. And the exception would apply as long as the danger is limited in time and duration — a limitation necessary to make imposition of the duty of care a reasonable burden for schools.
(5)
The court will review the facts previously discussed in this case to see how they comport with the requirements of Purzycki and Bonamico.
An associate principal said at a deposition that the lunchroom area presented no higher risk of incidents between students than classrooms or the library or hall areas. But the risk of incidents in the lunchroom was apparent to school authorities because several hundred students were gathered in one place. The risk of incidents there was also apparent because of the very level of security provided, five teachers would monitor the lunchroom area in sections, and three administrators would be present to monitor the teachers and their supervision. One of the teachers was also supposed to keep an eye on the patio area but apparently did not at least regularly go into the patio area. The monitoring area, for the lunch period was limited in time — the duration of lunch, and the supervised area was geographically limited to the indoor lunchroom and the patio area. Teachers and security personnel were also to monitor the stairwells leading out of the lunchroom. Staff and security people "have a responsibility to keep an eye on things" which, from the associate principal's testimony, referred to the stairwell and hallway areas whenever large movements of students were occurring — class changes and movements in and out of the lunchroom.
It should be noted that it does not appear that Purzycki can be limited to the dangers of unsupervised children racing down hallways when they are second graders. In Bonamico the student was coming from a home economics class; she was not a very young child. High school students gathered in large numbers at lunchtime or at sporting events would certainly seem to present a risk of incidents such as the one involved in this case occurring. The defendants recognized this by the amount of supervision in the lunchroom area.
How are these facts any different from Purzycki or Bonamico on the question of lack of supervision at least as to the patio area and the stairwell on the day the injuries occurred? In Purzycki the court, in effect, found an absence of supervision of the hallway area even though teachers in classrooms abutting the hallway "were instructed to keep their doors open in order to hear or see any activity in the hallway," 244 Conn. p. 104. In Bonamico, policy required "all teachers to be physically present and visible in the hallway to supervise the students as they changed class periods," 47 Conn.App. p. 760. The plaintiff there claimed a teacher failed to locate herself in the hallway.
The court frankly is constrained to deny the motion because there are unresolved issues of fact which prevent it from making a definitive judgment on what is basically a legal issue, cf Mulligan v. Rioux, supra. In other words much of the information provided concerned general policies and security questions. For example, the plaintiff said by way of affidavit that on the day of the incident the teachers monitoring the patio could be up to sixty feet away from the glass wall overlooking the patio area. But could they have been or were they closer? When we say glass wall, does it run from floor to ceiling? Does it present an unobstructed view? Would the answer to these questions allow a judicial fact finder to say this is not analogous to a teacher secreted in a classroom abutting a hallway but is tantamount to actual supervision? Were the students generally aware that the patio was being monitored? The plaintiff's deposition testimony was somewhat equivocal. He said he did not see teachers in the patio area at any time except when there was some type of problem. Does this mean there was direct minimum supervision which would pass the Purzycki test?
As to the stairwell incident, there is no indication any teachers or security people were present although the associate principal underlined the strong policy reasons that to him dictated the need for direct supervision. He seemed to assume such security was present by saying that if the assailant struck the plaintiff in the stairwell area, it would have been observed and the assailant would have been brought to the school office but admittedly his answer was unclear.
In any event, the defendants have the burden of proof on this motion and the court cannot grant it on what has been presented, but only on what has been presented so that if Mulligan v. Rioux is being read correctly at the time of trial, this defense of government immunity can be reviewed and factual issues necessary to its resolution can be resolved by the jury.
In any event, the motion for summary judgment is denied.