Opinion
CV166028575
10-31-2017
Aubrey Panarella et al. v. Greenwich Board of Education et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#125)
Hon. Charles T. Lee, J.
Before the court is the defendants' motion for summary judgment (#125.) On November 29, 2016, the minor plaintiff, Aubrey Panarella, with her parents and next friends, Lauren and Anthony Panarella, filed the two-count revised complaint (#110) against the defendants, the Greenwich Board of Education (the board), and the Town of Greenwich (the town). In her revised complaint, the plaintiff alleges that, while playing on the school playground, she was injured when she fell off a raised tunnel. The plaintiff alleges that her injuries were caused by the negligence of the school employees supervising the students during recess, that the board is liable pursuant to General Statutes § § 7-465, 10-220, and/or 52-557n for the negligence of its employees and that the town is liable for any damages assessed against the board.
On May 5, 2017, the defendants filed the present motion for summary judgment. The defendants argue that they are immune from liability. In support of their motion, the defendants submitted a memorandum of law and the affidavits of Megan Longo and Meaghan Cullen, kindergarten teachers, and the affidavit of Valerie Caro, a paraprofessional (#126). On May 30, 2017, the plaintiff filed her objection to the defendants' motion for summary judgment, accompanied by a memorandum of law and excerpts from the depositions of Longo and Cullen (#128). The court heard oral argument on July 10, 2017, and reserved decision at that time. As more fully explained below, the court grants defendants' motion for summary judgment.
BACKGROUND
In her revised complaint, the plaintiff alleges the following: On October 27, 2015, Aubrey was a kindergarten student at Riverside School. On that day, she was on the playground with a large group of students during recess. She climbed over a piece of playground equipment and then climbed on top of a raised playground tunnel. Aubrey then fell approximately five feet to the ground and was seriously injured. At the time of this incident, the plaintiff alleges that there were only two school employees supervising the students. She claims that the supervising adults were negligent in that they permitted the plaintiff to climb atop the tunnel and failed to take reasonable steps to ensure the safety and well-being of the students, including the plaintiff. Plaintiff asserts that the board is responsible for the actions of its employees and the town is responsible for the acts of its employees, including teachers and members of the board. Accordingly, the plaintiff brought suit and asserted causes of action against the board and the town.
CONTENTIONS OF THE PARTIES
In the memorandum in support of their motion for summary judgment, the defendants argue that the acts of which the plaintiff complains are discretionary in nature and, therefore, they are entitled to immunity pursuant to General Statutes § 52-557n(a)(2)(B). Thus, the defendants contend, unless an exception to governmental immunity applies, they cannot be held liable. Further, the only applicable exception is the identifiable person-imminent harm exception developed under Connecticut case law, and the plaintiff cannot satisfy all three prongs of the exception because the harm she suffered was neither imminent nor apparent.
In response, the plaintiff first argues that a ministerial duty exists and points to the testimony of the two supervising teachers, who both stated that students are not allowed to climb on the tunnel from which she fell and that teachers are required to enforce that rule. In the alternative, the plaintiff argues that even if the alleged acts or omissions were discretionary in nature, the identifiable person-imminent harm exception applies to the present case. Specifically, the plaintiff contends that she was an identifiable person because she was a student at school during school hours and thus falls within an identifiable class of foreseeable victims. Additionally, she argues that the harm was imminent because a child climbing on top of a raised tunnel poses a significant risk of injury, and that the harm was apparent to the teachers because a rule prohibiting children from climbing on the subject tunnel was created because of the risk of injury if a child were to do so.
DISCUSSION
A. Standard of Review
" [S]ummary 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 deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " 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 the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" Once the moving party has met its burden, . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
B. Discretionary Act Immunity
In counts one and two of her revised complaint, the plaintiff alleges negligence against the board and the town, respectively, on the basis of their employees' negligence in the supervision of the kindergarten students during recess. The defendants argue that they are not liable for their alleged negligence because they are protected by discretionary act immunity and no exception applies.
Section 52-557n(a)(2)(B) provides in relevant part that " a political subdivision of the state shall not be liable for damages to person or property 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." " 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.) Coe v. Board of Education, 301 Conn. 112, 118, 19 A.3d 640 (2011).
" Although 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 [in which] it is apparent from the complaint . . . [that the nature of the duty] . . . turns on the character of the act or omission complained of in the complaint . . . Accordingly, [when] it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus necessarily were discretionary in nature, summary judgment is proper." (Internal quotation marks omitted.) Strycharz v. Cady, 323 Conn. 548, 565, 148 A.3d 1011 (2016).
The supervision of students is generally considered a discretionary act. See Harris v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV-09-6004180-S, (March 12, 2013, Fischer, J.) (" [b]y framing their claims as addressing the adequacy of the defendants' supervision . . . as opposed to alleging a total failure to supervise . . . the plaintiffs have acknowledged the discretionary nature inherent to the act of supervising students"); Romanella v. Nielson, Superior Court, judicial district of New London, Docket No. CV-06-5100163-S, (May 27, 2009, Abrams, J.) (" Connecticut law . . . considers the supervision of students a discretionary act"); LaPerle v. Woodstock Academy, Superior Court, judicial district of Windham, Docket No. CV-06-5000370-S (June 5, 2007, Martin, J.) (43 Conn. L. Rptr. 531, 532, ) (" [t]he duty of a [town board of education] to supervise students is discretionary rather than ministerial"). " [S]upervising students is not a single act that one can perform uniformly in all circumstances. It is a dynamic activity that must be tailored to the various circumstances in which it occurs. But for school employees to effectively evaluate the circumstances that face them and determine how best to respond, they must exercise some measure of judgment." Harris v. Board of Education, supra .
In the present case, the defendants have met their burden of showing that there is no genuine issue of material fact as to the absence of a written directive establishing a ministerial duty sufficient to remove this case from application of the holdings of the cases cited above. Defendants have submitted affidavits from Megan Longo and Meaghan Cullen, who are kindergarten teachers at Riverside School. Longo and Cullen both state that there were no directives or prescribed procedures on how to supervise the students during recess. The defendants also attached to the affidavits a copy of the " Givens, " which is a guide to the procedures at the school and indicates that it is the classroom teacher's responsibility to supervise their students on the playground, but does not dictate any particular manner of supervision. The plaintiff does not submit or point to any written policy, rule, or directive imposing a ministerial duty. Rather, the plaintiff contends that the deposition testimony of the teachers establish the existence of a ministerial duty.
" Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive . . . Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive." (Citation omitted.) Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012); see also Strycharz v. Cady, supra, 323 Conn. 566 (finding that testimony of a superintendent provided a sufficient basis to conclude that school administrators had a ministerial duty to assign staff members to respective posts, such as bus duty).
In the present case, both Longo and Cullen testified that there were rules regarding the use of the playground, such as no climbing on top of the tunnel, no climbing on or over safety rails, and keeping their hands and feet to themselves. Both teachers also testified that they were required to enforce these rules and that, if they saw a child breaking a rule, such as climbing on the tunnel, they would need to stop them. Longo additionally testified that the playground rules were not written, but rather were rules that all the kindergarten teachers had collectively created. The teachers agreed to follow these rules and it was expected that they would enforce them. Long and Cullen further stated that they were responsible for supervising their students and that the classroom teacher stays with their class during recess.
From this testimony, it can reasonably be inferred that teachers had a ministerial duty to supervise or be present with their students at recess. The uncontested evidence presented by the defendants is that there were three school employees outside with the students during recess supervising them: Longo, Cullen, and a paraprofessional. However, the crux of the plaintiff's complaint concerns the quality or adequacy of the supervision rather than a total lack of supervision. Thus, the question is whether the performance of supervision is also ministerial, i.e., was the supervision to be performed in a prescribed manner? Although the teachers' testimony provides a sufficient basis to conclude that there was a ministerial duty to supervise recess, their testimony regarding their obligation to enforce the playground rules is insufficient to establish a ministerial duty beyond that because the manner of conducting the supervision was plainly discretionary.
First, there is a distinction between a ministerial duty to do something and discretion as to how to actually do it. See Strycharz v. Cady, supra, 323 Conn. 566-67 (finding that school administrators had ministerial duty to assign staff members to respective posts and distribute bus duty roster, but ensuring that staff actually reported to and adequately discharged assignments was discretionary). Here, there was a ministerial duty to supervise their students at recess. How a teacher conducts this supervision depends on her judgment and discretion, as demonstrated by the testimony of the teachers that there were no rules or policies mandating how supervision of recess was to be performed. For example, the school's guide to procedures, the " Givens, " provides only that teachers are to supervise their students, but does not mandate or prescribe any particular manner of how to do that.
Second, the obligation to enforce the playground rules does not diminish the teachers' ability to use their judgment and discretion as to how they supervise their students to ensure the rules are being followed. This obligation arises not from a mandate or policy of the board or school, but from informal, unwritten rules that the kindergarten teachers created of their own accord. Although the teachers testified that they were required to follow these rules, this was a requirement they agreed upon together as kindergarten teachers, not one imposed upon them by the school or board. There is no evidence that any official school or board policy mandated that the teachers even create these rules, let alone strictly follow them.
Accordingly, the alleged acts and omissions in the present case are of a discretionary nature, and, unless an exception applies, the defendants are not liable for the plaintiff's injuries.
C. Identifiable Person-Imminent Harm Exception
Our Supreme Court recently reiterated three exceptions to discretionary act immunity in St. Pierre v. Plainfield, 326 Conn. 420, 434 n.13, 165 A.3d 148 (2017):
Liability for a municipality's discretionary act is not precluded when (1) the alleged conduct involves malice, wantonness or intent to injure; (2) a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; or (3) 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.)
Here, the parties agree that only one, the identifiable person-imminent harm exception, is relevant to the present case. " This identifiable person-imminent harm exception has three requirements: (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 . . . All three must be proven in order for the exception to apply." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 312-13, 101 A.3d 249 (2014).
1. Identifiable Person
The parties do not dispute that the plaintiff qualifies as an identifiable person for purposes of the exception. Because the plaintiff was a student who was attending public school during school hours at the time of her injury, the contention that Aubrey was an identifiable person in this context is beyond dispute. See Strycharz v. Cady, supra, 323 Conn. 576 (" [t]he only identifiable class of foreseeable victims that [the Supreme Court] ha[s] recognized . . . is that of schoolchildren attending public schools during school hours . . ." [internal quotation marks omitted]).
2. Apparentness and Imminence
At issue are whether the harm was apparent to the teachers and whether the harm was imminent. The court disagrees with the defendants' contention that the plaintiff cannot establish that the harm was apparent because no one actually witnessed Aubrey fall. The mere fact that the teachers were not looking does not render the alleged harm unapparent, and such an interpretation of the exception could lead to very bad policy. See Strycharz v. Cady, supra, 323 Conn. 589 (" [o]f course, the plaintiff was not required to prove actual knowledge on the part of the defendants"). " [T]he applicable test for the apparentness prong of the identifiable person-imminent harm exception is an objective one, pursuant to which [courts] consider the information available to the [school official] at the time of [his or] her discretionary act or omission . . . Under that standard, [courts] do not ask whether the [school official] actually knew that the harm was imminent but, rather, whether the circumstances would have made it apparent to a reasonable [school official] that harm was imminent." (Citation omitted; internal quotation marks omitted.) Id.
The plaintiff has attempted to present evidence that it was apparent that an injury to a child climbing on top of the tunnel could occur by citing the teachers' deposition testimony acknowledging the potential for such an injury. Nevertheless, " [f]oreseeability of an injury . . . does not translate to imminent harm without also showing that the probability that an injury will occur from the dangerous condition . . . is high enough to necessitate that the defendants act to prevent it." Washburne v. Madison, 175 Conn.App. 613, 631, 167 A.3d 1029.
The plaintiff's claim that she is within the purview of the identifiable person-imminent harm exception fails because the evidence does not establish that the harm suffered was imminent. " [T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." Haynes v. Middletown, supra, 314 Conn. 322-23. This analysis focuses not on " the duration of the alleged dangerous condition, but on the magnitude of the risk that the condition created." (Emphasis omitted.) Id., 321.
Applying that standard, the Haynes court stated: " The evidence showed that the school had informed students in writing at the beginning of the school year that horseplay in the locker room was prohibited. There was also evidence that school officials knew that horseplay in the locker rooms was an ongoing issue. In addition, there was evidence that the locker was in a dangerous condition and that it had been in that condition since the beginning of the school year, seven months before the injury occurred. The jury reasonably could have inferred from this evidence that the dangerous condition was apparent to school officials. Although this evidence is far from compelling, we are unable to conclude that no reasonable juror could find that it was apparent to school officials that, in combination, the ongoing problem of horseplay in the locker room and the presence of the broken locker were so likely to cause an injury to a student that the officials had a clear and unequivocal duty to act immediately to prevent the harm either by supervising the students while they were in the locker room to prevent horseplay or by fixing the broken locker." (Footnote omitted.) Id., 325.
In the present case, there is no allegation of the existence of any hazardous condition that is akin to a rusty and jagged locker. Rather, the focus of the plaintiff's complaint is on the defendants' alleged failure to provide adequate supervision of students during recess. In arguing that the harm was imminent, the plaintiff points to the testimony of the teachers that the purpose of the playground rules, particularly the rule prohibiting students from climbing on the tunnel, was to prevent injuries. This evidence, however, speaks more to apparentness than imminence, demonstrating an awareness or acknowledgement of the potential for injury while climbing or attempting to climb on the tunnel. See Washburne v. Madison, Superior Court, judicial district of New Haven, Docket No. CV-12-6026966-S, (November 5, 2015, Nazzaro, J.) (finding that evidence presented by plaintiffs spoke more to apparentness prong, in that there was acknowledgement of potential injury from not wearing shin guards while playing soccer in gym class, but did not support finding that harm was imminent), aff'd, Washburne v. Madison, supra, 175 Conn.App. 630-31 (2017).
Here, there is no evidence of any other student falling off the tunnel and being injured. Longo testified that she had previously seen children trying to climb on the tunnel and stopped them, or had seen other supervising adults do the same. However, the fact that students had previously climbed on or attempted to climb on the tunnel without injury actually operates to reduce imminence. See e.g., McCarroll v. City of E. Haven, Superior Court, judicial district of New Haven, Docket No. CV-14-6044518-S (May 9, 2016, Fischer, J.) (62 Conn. L. Rptr. 307, 314, ) (thousands of students had played on the decrepit playscape over the course of years without being injured, so harm was not imminent); Washburne v. Madison, supra, Superior Court, Docket No. CV-12-6026966-S (defendants' responses to interrogatories indicating that there had been no prior complaints regarding lack of shin guards or any prior injuries during soccer focused gym class undermined applicability of exception).
Although climbing on the tunnel was an improper use of the playground equipment, this alone is insufficient to raise an issue of fact as to imminence. Using the equipment incorrectly may increase the risk of injury, but that does not mean that the probability of harm is high enough to require the defendants act to prevent it, and do so immediately. An injury from falling off the tunnel could have occurred at any time in the future or not at all. See Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989) (holding that plaintiffs' decedents were not subject to imminent harm because risk of fire implicates variety of factors that may or may not occur and fire could have occurred at any point in future or not at all). Moreover, the risk of injury while playing on playground equipment does not arise solely from a child using it incorrectly. Children can fall off a slide, lose their grip on the monkey bars, or trip climbing onto the equipment; these are all instances of injuries that could happen, even when properly using the equipment. See e.g., Zamora v. City of New Haven, Superior Court, judicial district of New Haven, Docket No. CV-12-6033735-S, (February 8, 2017, Alander, J.) (child injured when she unexpectedly fell off slide while climbing stairs to slide down). In other words, there is always a level of risk to children using playground equipment, properly or not, though harm may never occur. It " would cramp the exercise of official discretion beyond the limits desirable in our society"; (internal quotation marks omitted) Evon v. Andrews, supra, 211 Conn. 508; to impose liability because some kind of harm may happen to a child on the playground. Id. Because there is no evidence in this case demonstrating that the harm suffered was imminent, the plaintiff is not within the purview of the identifiable person-imminent harm exception and defendants are entitled to the protection of municipal immunity.
CONCLUSION
By reason of the foregoing, the defendants' motion for summary judgment is granted.