Opinion
FBTCV146041193
03-20-2017
Jeanne Miller ppa Kobe Stewart v. City of Bridgeport
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael P. Kamp, J.
This action was commenced by the plaintiff, Jeanne Miller, by service of process on February 10, 2014. On February 24, 2014, the plaintiff filed a complaint in four counts, against the City of Bridgeport, the Bridgeport Board of Education, and two employees of the Board of Education. Prior to the commencement of the evidence, the plaintiff orally withdrew counts one, three, and four. The plaintiff agreed to proceed only against the. Bridgeport Board of Education in a claim for negligence. The defendant filed an answer and one special defense on March 25, 2014. After the plaintiff withdrew counts one, three, and four, the defendant withdrew the special defense of governmental immunity.
A trial before the court began on December 13, 2016. No post-trial briefs were submitted. After careful consideration of all the testimony and documentary evidence, the court makes the following findings. The plaintiff's son, Kobe Stewart, began showing developmental problems around the age of eight months. Those issues included delayed speech, vision problems, and impairment of motor skills, consistent with a diagnosis of cerebral palsy. As these problems developed, Kobe received treatment through a State of Connecticut program known as " Birth to Three." This program provides developmental evaluations and family centered early intervention support for families with children with development concerns.
As Kobe approached three years in age, the Birth to Three program recommended that Ms. Miller enroll her son in the Skane Center School, run by the Bridgeport Board of Education. Skane was recommended to Ms. Miller on the basis that the school could provide the appropriate level of services to Kobe. As a result, Kobe enrolled as a student in 2011. As part of his enrollment, a Planning and Placement Team (PPT) meeting took place on February 11, 2011. The PPT meeting was attended by Ms. Miller, a professional staff member from Skane, occupational and physical therapists, a social worker, a special education teacher, and Skane's principal, Michele Matera. As a result of that PPT meeting, it was determined that Kobe was eligible for special education services as a child with developmental delays, which meant he was eligible to receive services to meet his physical and educational needs.
During the 2011-2012 school year, Kobe was placed in an integrated classroom. Kobe's classroom was staffed by two special education paraprofessionals, Robin Romero and Janette Adams. Kelly Davis was Kobe's special education teacher. The class was comprised of both special education students and students without any special education needs. Of the fifteen students in Kobe's class, approximately half were special education students. Ms. Romero, Ms. Adams, and Ms. Davis all indicated that Kobe was the student in the classroom who needed the most individual attention due to his impaired gross and fine motor skills as well as his impaired speech.
A follow up PPT meeting was held on June 6, 2011. This PPT meeting was attended by Michele Matera, Kelly Davis, as well as Kobe's occupational therapist, his physical therapist, and his speech and language therapist. Ms. Miller participated by telephone. At that meeting, Kobe's progress and status were reviewed, and the professional staff recommended that Kobe be considered for a more highly structured classroom where there was a lower student-to-teacher ratio. At Skane, self-contained classrooms were available, which had special education students only, and a lower student-to-teacher ratio. This recommendation was made, in part, due to concerns about his safety in large group settings. However, the evidence supports a finding that Ms. Miller rejected this recommendation out of her desire that her son be integrated with typical peers his age.
During each school day, students participated in a twenty-minute recess period that was held either in the school gym or, weather permitting, outdoors. On these occasions, three or four classes would share the same recess time. During recess, all of the teachers and paraprofessionals from each classroom would supervise the recess activities. Those activities were intended to give the students an opportunity to develop their gross motor skills. The activities would include games, some with balls. Students also had access to tricycles they could ride. Prior to February 15, 2012, Kobe had participated in these recess activities each day he was in school without incident.
On February 15, 2012, Kobe and his classmates had their recess period in the school gym. There were at least two other classes sharing the same recess period in the gym. All of the teaching professionals from each class were in the gym and were supervising the students. As Kobe was playing with a ball, a student riding a tricycle struck Kobe, knocking him to the ground. The only staff member who observed this was Ms. Adams. She was standing at one end of the gym when she observed the student on a tricycle strike Kobe on his side, knocking him to the ground. She saw the other student only moments before Kobe was struck. Neither Ms. Romero nor Ms. Davis observed this incident as they were located in a different area in the gym. Prior to Kobe being hit, neither Ms. Adams nor any of the other teachers observed any activity in the gym that was out of the ordinary. This was the first occasion there had ever been any problem involving a student riding a tricycle.
After this incident, Kobe was immediately taken to the office of the school nurse. His mother was contacted. After Ms. Miller picked her son up at school, she took him to Bridgeport Hospital. Upon examination, it was determined that Kobe had sustained a fracture to his femur and required a full leg cast. The injury necessitated treatment with an orthopedic surgeon and physical therapy.
Kobe did sustain a subsequent injury to the same leg when he tripped and fell and sustained a non-displaced fracture. The incident resulting in the subsequent fracture is not pertinent to this action.
A
The plaintiff's complaint is in a single count in negligence against the Bridgeport Board of Education. The plaintiff alleges that the defendant was negligent in its failure to properly supervise Kobe and in its failure to take proper precautions to protect his safety.
" In order to make out a prime facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant's duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant's negligence caused the plaintiff's injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor's conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant conduct [was] a substantial factor in bringing about the plaintiff's injuries and that there was an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident . . . The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture and surmise." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 776-77, 83 A.3d 576 (2014).
The evidence before the court fails to establish that the defendant was negligent as alleged. There was no evidence from any expert witnesses that the defendant's conduct with regard to the amount of supervision that they provided students during recess was inadequate or failed to meet appropriate educational standards for schools such as Skane. Specifically, there was a lack of expert testimony with regard to the applicable standard of care and whether that duty was breached. Although the evidence demonstrated that Kobe was a special needs student who required supervision and support, there was no evidence that Kobe needed or required direct one-on-one attention. Although disputed by Ms. Miller, at the June 6, 2011 PPT meeting it was suggested that Kobe be transferred to a different classroom which would have provided a higher level of support. That recommendation was rejected by Ms. Miller. It was her desire that Kobe be in a setting with peers who were not all special education students. Consistent with that desire, Kobe remained in an integrated classroom.
At all times prior to February 15, 2012, Kobe had participated in recess in the gym on many occasions without incident. There was no evidence that any student at any time prior to this occurrence had ever been injured by engaging in any of the activities, including riding tricycles, during recess. The only witness who testified that they observed Kobe getting knocked to the ground was Ms. Adams. She saw the student who was riding the tricycle only moments before Kobe was struck. The identity of the student who was riding the tricycle and whether he too was a special education student was not established. Ms. Adams had no notice that another student was about to make contact with Kobe which may have provided her an opportunity to prevent the incident from occurring.
Foreseeability is a standard element of negligence law. In Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982), the court found that camp supervisors had not negligently failed to supervise youngsters playing volleyball. The court referred to the general standard for holding a person negligent, as it had enunciated in Goldberger v. David, 139 Conn. 629, 632, 96 A.2d 309 (1953): " [I]t must appear that a reasonably prudent person in his [or her] position, knowing what he [or she] knew or should have known, would have anticipated that harm of the general nature of that suffered was likely to result from his [or her] conduct." (Internal quotation marks omitted.) Id., 5.
Finally, there was an absence of evidence that the conduct of the defendant and any of its employees violated a school policy or directive. The plaintiff did not provide evidence of any rule, policy, or directive requiring the defendant to undertake any specific safety precautions in connection with the activities conducted during recess.
CONCLUSION
The plaintiff has failed to prove that the conduct of the defendant or any of its employees was negligent. The finding of this court is against the plaintiff and in favor of the Bridgeport Board of Education. Judgment shall enter accordingly.