Opinion
No. CV05 4001895-S
November 15, 2005
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE SPECIAL DEFENSES (#117) AND DEFENDANTS' OBJECTION (#126)
This memorandum of decision addresses issues of governmental and/or municipal immunity raised by the plaintiff's motion to strike certain special defenses. The underlying complaint was brought by the minor plaintiff, Daniel Pavelko, Jr. through his next friend and father Daniel Pavelko, Sr. The amended complaint dated March 16, 2005, generally alleged that the minor suffered personal injuries upon school premises as the result of negligent supervision and/or other acts and omissions on the part of: the Town of Cheshire itself; the Town of Cheshire's Board of Education; Salvatore Randazzo, the Principal at Cheshire High school; Robert Eberle, an Assistant Principal at Cheshire High School; and David Cressy, Ph.D., the superintendent of schools in Cheshire. Under date of April 12, 2005, the defendants filed their answers and certain amended special defenses asserting, among other things, that the plaintiff's claims are "barred by the Doctrine of Governmental Immunity pursuant to both common law and General Statutes § 52-557n and, therefore, fail . . . to state a claim upon which relief can be granted." (#115.) Under date of April 27, 2005, the plaintiffs moved to strike the First and Second special defenses to Counts One and Two; and the First Special Defenses to Counts Three, Four and Five, asserting that "these special defenses are legally insufficient" as the doctrine of governmental immunity is legally insufficient under the circumstances of the present case. (#117.) Under date of May 27, 2005, the defendants submitted their objection to the plaintiffs' motion to strike the special defenses, arguing that "the special defense of governmental immunity is properly pled in response to [plaintiff's] negligence claims and the defense is legally sufficient in response to those claims." (#126.)
The names on the writ and summons are Daniel Pavelko, Jr., ppa, Daniel Pavelko, Sr., as father and next friend, and Daniel Pavelko, individually. However, the captions of the original and amended complaints name only the minor; the text of each count of each complaint refers only to the minor. The motion to strike at issue was brought by "the plaintiff" alone. Therefore, throughout, the court has utilized the term "the plaintiff" or "Daniel" to reference Daniel Pavelko, Jr. ppa, Daniel Pavelko, Sr., consistent with the operative allegations brought on the minor's behalf.
The complaint also alleged negligence on the part of the defendants' "servants, agents and/or employees."
For the reasons set forth herein, the court finds the issues in favor of the defendants, and accordingly DENIES the plaintiffs' motion to strike (#117) and SUSTAINS the defendants' objections to the motion to strike (#126).
I. FACTUAL AND PROCEDURAL BACKGROUND
"Whenever any party wishes to contest the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 489, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading and consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). For the purpose of ruling upon a motion to strike, "the facts alleged in a [pleading], though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). In addition, "in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Emphasis added; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
Using this measure for the purpose of resolving the motion to strike, the court considered the following facts.
On April 29, 2004 at 12:00 p.m., the plaintiff, Daniel Pavelko, Jr. (Daniel), a student at Cheshire High School, was standing in the school lunch line when he was beaten and punched by two other high school students, Roland Goodrich and Benjamin Delmonico. As a result, Daniel fell and was seriously injured. Counts One through Five of the complaint allege that the defendants did not provide supervision of the students or safety precautions adequate to prevent the injuries Daniel suffered from the assault. These counts further allege that during the time of this assault the defendants did not attempt to prevent or stop the fight or provide Daniel with adequate supervision or protection.
Additional facts will be referenced as necessary.
II. THE PARTIES' ARGUMENTS
The plaintiff's motion to strike confronts the defendants' assertions that his claims are barred by governmental immunity, as presented in Counts One and Two alleging negligent supervision by the board of education and the town, respectively, and as presented in Counts Three, Four and Five alleging negligent supervision by the principal, assistant principal and superintendent, respectively. Rebuffing the special defenses at issue, the plaintiff argues that he is a member of a defined class who was subject to imminent harm as a result of the defendants' failure to supervise and their failure to act in a manner that would have prevented his injuries; as such, the plaintiff complains that he falls within the purview of the identifiable person-imminent harm exception to governmental immunity. See Colon v. Board of Education, 60 Conn.App. 178, 180-81, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). In addition, the plaintiff argues that the doctrine of governmental immunity is inapplicable to claims against teachers and principals, and that the doctrine does not therefore preclude his claims against Principal Randazzo and Assistant Principal Eberle, thus rendering the special defenses legally insufficient as to the claims brought against these defendants.
The court notes that no teacher has been named as a defendant in the present case, although, in his final argument, the plaintiff ostensibly references Eberle as "the teacher" to whom the governmental immunity defense ostensibly cannot apply. The complaint, however, identifies Eberle as having an administrative capacity, casting him as the assistant principal at Cheshire High School, not in a traditional "teaching" role.
In opposition, the defendants argue that the defense of governmental immunity has been properly pleaded and is legally sufficient. They assert that the plaintiff's motion to strike requires the court to draw factual and legal conclusions as to whether he is a member of a foreseeable class exposed to imminent harm; they contend that this process would require the court to look at information outside of the pleadings, engaging in a process which is impermissible in reviewing a motion to strike. See Larobina v. McDonald, supra, 274 Conn. 400. Lastly, the defendants argue that, relevant case law cloaks both teachers and principals with governmental immunity, so that the special defenses are properly raised as to Randazzo and Eberle whether they served as administrators or in a teaching capacity in the context of this case.
II. APPLICATION OF CONNECTICUT LAW TO THE FACTS
Both the plaintiff's and defendants' arguments generally address Connecticut's principles of governmental and municipal immunity, and accordingly require assessment of the discretionary or ministerial nature of the acts or omissions alleged to have occurred at Cheshire High School on April 29, 2004.
Historically, "[w]hile [a] municipality itself was generally immune from liability for its tortious acts at common law . . . its employees faced the same personal tort liability as private individuals . . . [A] municipal employee [however] 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." (Citations omitted; internal quotation marks omitted.) Colon v. Board of Education, supra, 60 Conn.App. 180. "Therefore, barring the possible application of an exception, both municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." (Internal quotation marks omitted.) Zaborowski v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV 04 0093025 (February 2, 2005, Brunetti, J.) ( 38 Conn. L. Rptr. 638). "Where the parties have clearly set forth the conduct that is claimed to be actionable, the characterization of conduct as proceeding from a ministerial or discretionary duty is a matter of law." (Internal quotation marks and external citation omitted.) Santana v. Rohan, Superior Court, judicial district of Hartford, Docket No. CV 04 0830569 (June 7, 2005, Shapiro, J.) ( 39 Conn. L. Rptr. 461), citing, generally, Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989).
In the present case, each of the plaintiff's theories of liability relies on the failure of the town, its employees and agents to adequately supervise Goodrich and Delmonico, the students who allegedly attacked the plaintiff or the failure of the defendants to adequately protect Daniel from harm. The plaintiff does not dispute either that the defendants' actions or omissions were discretionary, or that any duty owed by the defendants to the plaintiff is, therefore, a discretionary duty. Doe v. Board of Education, 76 Conn.App. 296, 300, 819 A.2d 289 (2003). Accordingly, as the law is applied to the facts of this case, the defendants are immune from liability under the doctrine of governmental or municipal immunity unless their actions fall within one of the three exceptions to that doctrine.
"[T]he duty . . . of the defendant to supervise students, is a discretionary, governmental duty." Doe v. Board of Education, 76 Conn.App. 296, 300, 819 A.2d 289 (2003). As "[t]he duty to supervise school children has been held to be a discretionary, rather than a ministerial duty . . . [t]he duty involved in this case is one of a discretionary nature as the complaint alleges a failure to adequately supervise. Neither the town nor the board is liable for the discretionary acts of [its employees]." (Citations omitted.) Mann-Byrdsong v. Bloomfield, Superior Court, judicial district of Hartford, Docket No. CV 99 0586162 (March 13, 2002, Wagner, J.T.R.); see also Purzycki v. Fairfield, 244 Conn. 101, 108, 708 A.2d 937 (1998) (plaintiffs conceded that any duty owed by the defendants to the child was discretionary, not ministerial in nature).
"The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where 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 . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Colon v. Board of Education, supra, 60 Conn.App. 180-81.
The plaintiff argues that he falls within the identifiable person-imminent harm exception to governmental immunity. "For this exception to apply, the plaintiff must allege facts sufficient to support a finding both that the plaintiffs were identifiable persons and that the plaintiffs were subject to imminent harm." Zaborowski v. New Milford, supra.
The legislature has already addressed this aspect of the plaintiff's argument insofar as the Town of Cheshire's First and Second Special Defenses to Count Two of the Complaint are concerned. As a matter of law, the identifiable person-imminent harm exception is inapplicable to the municipality itself as provided by General Statutes § 52-557n. If the complained-of act or omission is discretionary, as acknowledged to have occurred in this case, a municipality such as the Town of Cheshire is thus legislatively shielded from direct liability. See Zaborowski v. New Milford, supra. Accordingly, the court is constrained by statute from striking the First and Second Special Defenses to Count Two of the Complaint as alleged by the Town of Cheshire in Count Two. This aspect of the plaintiff's motion to strike must be denied, and the defendants' objection to the motion to strike these special defenses must be sustained.
In pertinent part, § 52-557n provides: "(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 common law relating to the identifiable person-imminent harm exception governs the motions to strike the Special Defenses brought by the remaining defendants: the Cheshire Board of Education, Principal Randazzo, Assistant Principal Eberle, and Superintendent Cressy. "The identifiable person-imminent harm exception applies not only to identifiable individuals but also to narrowly defined classes of foreseeable victims . . . 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 . . . In applying these factors, our Supreme Court has held that school children, who are statutorily required to attend school, are an identifiable class of foreseeable victims." (Citations omitted; internal quotation marks omitted.) Colon v. Board of Education, supra, 60 Conn.App. 184. In the present case, the plaintiff has alleged that he was a student and that the incident incurred on school grounds during school hours, and, therefore, he is properly classified as an identifiable person to whom the exception may apply, as he was owed a duty of care at Cheshire High School under the circumstances presented by this case.
"The existence of the duty is a question of law whereas whether there was a breach of that duty is a question of fact . . . Whether that duty was violated because [the defendant] placed [the plaintiff] in imminent harm is a question of fact." (Emphasis added.) Tryon v. North Branford, 58 Conn.App. 702, 715-16, 755 A.2d 317 (2000). As another superior court has persuasively explained: "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 to governmental immunity, the risk must be temporary and of short duration." (Citation omitted; internal quotation marks omitted.) Eberle v. Coventry, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0078407 (July 21, 2003, Sferrazza, J.).
It is incumbent upon the plaintiff to establish a factual basis sufficient to implicate the risk of imminent harm, so as to overcome the protection provided to municipality or municipally-related defendants through the doctrine of governmental immunity. Here, the complaint indeed alleges in each count that the defendants did not have adequate staff at or near the cafeteria to supervise Goodrich and Delmonico, the defendants failed to take the appropriate action to separate Goodrich and Delmonico from the plaintiff during the attack, the defendants failed to properly train employees and staff in dealing with altercations of this nature and the defendants "failed to heed warnings, prior complaints and other indicia as to the propensities" of Goodrich and Delmonico. The location of the incident is alleged to have occurred in the hallway outside the cafeteria at approximately 12:00 p.m. on a school day. The cafeteria during a lunch break is a specific location of short duration. If, but only if, it is established that the school, through the named defendants, was aware of the propensities for violence by Goodrich and Delmonico and that the supervision in the cafeteria and adjoining hallway was inadequate during this lunch period, the identifiable person-imminent harm exception would apply to the defendants, disabling the protections from liability otherwise available under the municipal or governmental immunity doctrine.
For instance, in Saez v. Suarez, Superior Court, judicial district of New Haven, Docket No. CV 00 0443901 (July 15, 2005, Corradino, J.), the court denied a motion to strike "despite the bare boned allegations of the complaint" based upon the inferences that could reasonably be drawn from the limited facts there set forth. The complaint alleged that a student slammed the plaintiff's hand into a door while the teacher was outside the classroom. The complaint also alleged that the teacher knew the student had a history of harassing the plaintiff. The court stated therein that "[i]t can be inferred that the potential for harm . . . was significant and foreseeable if in fact the teacher knew [the student] had a history of harassing and picking on [the plaintiff]. If it is established that the harassment was ongoing, of long duration, and the implication of physical violence especially is proven then there at least is a prima facie case that if these students were left together unattended for however short a time, in their classroom, there was a potential for harm being inflicted on the injured child." (Internal quotation marks omitted.) Id.
Upon scrutiny of the applicable principles of law, it is clear that the identifiable person-imminent harm exception may well pertain to the circumstances of this case, but that the issues of fact must be resolved by the trier, not as a matter of law; proper protocol and procedure allows the defendants to be permitted to present their legally sufficient pleading, subject to the strength of such evidence as they may be able to present to support their burden of proving these special defense at trial. Colon v. Board of Education, supra, 60 Conn.App. 184. Specifically, as to the defendant Board of Education's First and Second Special Defenses to Count One of the complaint, the plaintiff's allegations concerning his status as an identifiable person subject to imminent harm raise questions of fact that cannot be resolved without the presentation of further evidence and testimony. Under these circumstances, at base the special defenses raised in response to these allegations are legally sufficient, albeit subject to evidentiary support at trial. As such, the issue of whether the identifiable person-imminent harm exception applies to the defendant Board of Education, "must await an evidentiary presentation" at trial. See Santana v. Rohan, supra. Accordingly, the plaintiff's motion to strike the First and Second Special Defenses to Count One of the Complaint, as alleged by the Board of Education, must be denied, and the corresponding objections to the motions to strike must be sustained.
As to the defendant Superintendent Cressy, subject to the allegations of Count Five of the Complaint, the plaintiff specifically argues that the special defense of governmental immunity cannot be asserted because he owed a special duty to the plaintiff who is a member of a foreseeable class of victims. The plaintiff relies on an Appellate Court opinion which held that "[a]t least during school hours on school days, when parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees, the superintendent has the duty to protect the pupils in the board's custody from dangers that may reasonably be anticipated." (Emphasis added.) Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1 (1994). However, the reasoning utilized in the Burns v. Board of Education opinion pivots upon an analysis of the factual underpinnings of a plaintiff's claims that, as a school child, he was subject to imminent harm. Thus, even utilizing the case upon which the plaintiff relies as the basis for denying the defendant superintendent's motion to strike, it becomes clear that for the identifiable person-imminent harm exception to apply, a determination must be made as to whether the specific factual circumstances establish, or failing to establish, the existence of imminent harm. Through his First Special Defense to Count Five of the complaint Superintendent Cressy has presented a legally sufficient premise, for which he and he alone bears the burden of proof. As such, the plaintiff's motion to strike the special defenses raised by Superintendent Cressy must be denied, and the corresponding objection to the motion to strike must be dismissed.
The plaintiff's last argument is apparently corporately addressed to Principal Randazzo and Assistant Principal Eberle, as Daniel submits that the doctrine of governmental immunity is inapplicable to claims against principals and teachers as a matter of law. Specifically, the plaintiff argues that the First Special Defense as to Counts Three and Four should be stricken because Principal Randazzo and Assistant Principal Eberle are not entitled to governmental immunity. The plaintiff apparently relies on Sansone v. Bechtel, 180 Conn. 96, 429 A.2d 820 (1980), as cited in Conti v. Labier, Superior Court, judicial district of Hartford-New Britain, Docket No. CV03-63483 (February 27, 1991, Purtill, J.), for the proposition that "teachers are not [municipal or governmental] officers in the ordinary sense of the word but are employees of the board of education and not entitled to assert the municipal or governmental immunity that extends to public officers." The plaintiff further asserts that this limitation of governmental or municipal immunity was extended to school principals in Swainbank v. Coombs, 19 Conn.Sup. 391, 115 A.2d 468 (1955).
See footnote 4.
However, a number of well-reasoned superior court decisions have more cogently and logically ruled that school principals are indeed employees of the board of education and are thus entitled to governmental immunity. Because "principals can be considered employees of the towns they serve[, they may] and therefore enjoy qualified governmental immunity" from civil liability under the circumstances of the present case. See Ruggiero v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 02 0512180 (February 22, 2003, Bryant, J.) ( 34 Conn. L. Rptr. 289). Here, "to the extent of the plaintiffs' allegations of negligence . . . [the defendant principal was] acting in [his] capacity as [an employee] of the Town and not . . . of the state . . . [the principal] may enjoy governmental immunity for [his] actions." See Grimes v. Houser, Superior Court, judicial district of New London, Docket No. CV05-18242 (August 24, 1993, Hendel, J.) ( 10 Conn. L. Rptr. 14). Employing this rationale, under the factual claims presented by the plaintiff in this matter, Principal Randazzo is entitled to the protection offered by the premise of governmental immunity. Accordingly the plaintiff's motion to strike the First Special Defense to Count Three of the Complaint must be denied, and the corresponding objection to the motion to strike must be sustained.
The plaintiff nonetheless argues that a distinction should be drawn between the status of principals and assistant principals in their school roles, and that assistant principals do not enjoy governmental immunity. The plaintiff bases its argument on Sansone v. Bechtel, 180 Conn. 96, 429 A.2d 820 (1980), and Swainbank v. Coombs, 19 Conn.Sup. 391, 115 A.2d 468 (1955). In addressing the present issues, this court finds that the plaintiff's reliance on Sansone v. Bechtel advanced by the plaintiffs is misguided. In reaching this conclusion, the court has adopted and applied the reason of other superior court decisions which recognize the Supreme Court's edict that Sansone has a far more limited application than that to which parties such as the plaintiff herein ascribe to it. For instance, in Doe v. Brown, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 96 0251878 (June 11, 1997, DiPentima, J.) ( 19 Conn. L. Rptr. 611), the defendant, a teacher alleged to have negligently caused injuries to the minor plaintiff, raised the special defense of governmental immunity because she was engaged in discretionary activities. The plaintiff in that matter attempted to rely on the Sansone opinion for the proposition that the defendant was not entitled to governmental immunity as an employee of the board of education. Denying the plaintiff the succor sought through that argument, Judge DiPentima aptly recognized that in Board of Edacation v. State Employees Retirement Commission, 210 Conn. 531 [ 556 A.2d 572] (1989), decided some eight years after Sansone, the Supreme Court had interpreted Sansone as deciding the sole issue of whether the teacher was a state employee for purposes of General Statutes § 4-165, which grants state officers and employees immunity from personal liability. Board of Education v. State Employees Retirement Commission further held that teachers are also employees of the towns they serve, citing the venerable decision of Cheshire v. McKenney, 182 Conn. 253 [ 438 A.2d 88] (1980). Therefore, in Doe v. Brown, Judge DiPentima, acting in her capacity as the trial court, denied the plaintiff's motion to strike the defendant's special defense of governmental immunity.
The plaintiffs in Rheiner, PPA v. Lefevre, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0541267S (March 12, 1998, Teller, J.) ( 21 Conn.L.Rptr. 502), also relied on Sansone in arguing that a defendant school teacher was not entitled to immunity. Judge Teller cogently recognized that the teacher, as a municipal employee, was not entitled to sovereign immunity, which attaches only to state-based entities. Also relying upon Cheshire v. McKenney, supra, 182 Conn. 260, Judge Teller distinguished the Sansone v. Bechtel ruling, and held that local boards of education act on behalf of the municipality they serve even though they also fulfill their state mandates; under these circumstances, the professional and nonprofessional employees of local boards of education are functionally employees of the municipality. Therefore, the better reading of the applicable case law firmly establishes that a defendant teacher or principal or assistant principal, as an employee of the municipality, may be entitled to governmental immunity for acts or omissions which give rise to a student's injury, depending upon the factual situation presented.
The plaintiff has provided insufficient legal authority for his proposed restriction of the municipal or governmental immunity doctrine, through which school principals could be protected from liability, while assistant principals could remain exposed and unprotected. Rather, since municipal employees are afforded qualified immunity, and since qualified immunity has been extended to principals and to teachers, and since assistant principals are also employees of the municipality, qualified immunity should be extended to assistant principals as well. See Cheshire v. McKenney, supra, 182 Conn. 260 and Ruggiero v. New Britain, supra; see also 57 Am.Jur.2d, Municipal, County, School, and State Tort Liability § 34 (2001) ("Public school officers, administrators, principals, superintendents, teachers, and other employees may be entitled to immunity from personal liability in tort for their acts or omissions in the scope of their employment or authority depending on the nature of the particular function or activity in which they were engaged at the time of the tortious conduct").
This court adopts the sterling legal analysis presented through Doe v. Brown, supra, and Rheiner, PPA v. Lefevre, supra, and finds that both "teachers and principals can be considered employees of the towns they serve and therefore enjoy qualified governmental immunity." (Citations omitted; emphasis in original; internal quotation marks omitted.) Ruggiero v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 02 0512180 (February 22, 2003, Bryant, J.). Accordingly, the plaintiff's motion to strike must be denied as it relates to the First Special Defense raised on behalf of Principal Randazzo as to Count Three of the Complaint, and the plaintiff's motion to strike must also be denied as it relates to the First Special Defense raised on behalf of Assistant Principal Eberle as to Count Four of the complaint. Correspondingly, at as each of these defendants is lawfully entitled to assert governmental immunity as a special defense, his respective objection to the plaintiff's motion to strike must be sustained.