Opinion
No. FST CV 07 6000465 S
January 12, 2009
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE #108, #110 and #112
Motion to Strike #108
In the twelve-count revised complaint filed August 17, 2007, the plaintiff, Christian Rodriguez, alleges the following facts. The plaintiff was at all relevant times a student at Stillmeadow Elementary School (Stillmeadow) in Stamford, CT. On April 11, 2005, the plaintiff was required to participate in a physical education class while attending Stillmeadow. The teacher in charge of the class was the defendant, Judy Anker. During said class, a large group of students were instructed in the use of tennis rackets by the defendant Anker. Each student was provided a metal tennis racket for the purposes of the class exercise, and during the course of the exercise, the plaintiff was struck in the mouth by a fellow student's metal racket, resulting in injuries to the minor plaintiff.
The plaintiff maintains that the injuries suffered were, in part, the direct and proximate result of the negligence of the defendant Anker, in that she failed to supervise the students during the course of the exercise and allowed a class of students to practice swinging rackets with only a single teacher present to supervise them.
Counts two and eight of the plaintiff's revised complaint allege that pursuant to General Statutes § 10-235, the defendant, Stamford Board of Education (board), shall protect and save harmless its employee, the defendant Judy Anker, from any financial loss and expense. The defendant board moves to strike counts two and eight on the ground that § 10-235 does not provide a basis for a direct cause of action, rather, § 10-235 establishes the indemnification right of a school employee against the board of education.
Law
"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 [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, judicial district of Waterbury, Docket No. 154112 (March 9, 2000, Pelligrino, J.) (26 Conn. L. Rptr. 547).
"A motion to strike . . . 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). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
"In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading] . . ." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. The court must "construe the [challenged pleading] in the manner most favorable to sustaining its legal sufficiency." Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
GENERAL STATUTES § 10-235
Section 10-235(a) provides in relevant part: "Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof . . . from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence . . ."
In Burns v. Board of Education, 30 Conn.App. 594, 602, 621 A.2d 1350 (1993), rev'd on other grounds, 228 Conn. 640, 638 A.2d 1 (1994), our Appellate Court stated § 10-235 is "an indemnification statute contingent on a judgment's being obtained against a board member, teacher, employee or any member of the board's supervisory or administrative staff."
The majority of Superior Court cases that have analyzed the issue of whether § 10-235 provides a direct cause of action against a board of education, have concluded that it does not. Brown v. Acorn Acres, Superior Court, judicial district of New London at Norwich, Docket No. CV 0117980 (August 23, 2000, Martin, J.) (28 Conn. L. Rptr. 24, 26).
While the plaintiff claims that there is a split of authority in the Superior Court over whether § 10-235 provides a direct action against a board of education, a closer look reveals that a majority of cases holding that § 10-235 provides a direct cause of action against a board of education were decided by one court, and thus, there is not a significant divide within the Superior Court on this issue.
In Barnum v. Milford, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 5000225 (October 29, 2007, Espinosa, J.), the court stated that, "§ 10-235 is not intended to benefit prospective plaintiffs; it is a statutorily created right of indemnification for the benefit of teachers and other board employees . . . Its purpose is to make indemnification available to a board of education employee for losses sustained from claims or suits . . . resulting from any act of the employee performed in the discharge of his or her duties . . . The statute, by its terms, provides for indemnification of employees of the board or its members but does not give plaintiffs a direct cause of action . . . Moreover, the statute provides for indemnification from loss, not from liability . . . The right to indemnification is contingent on a judgment being obtained against a board member, teacher, employee or any member of the board's staff . . . The text of the statute itself, with its protect and save harmless language, supports the conclusion that the legislature intended to provide only actual indemnification of a liable employee, rather than a direct cause of action by a third party . . ." (Citations omitted; internal quotation marks omitted.)
Accordingly, § 10-235 does not provide the plaintiff with a direct cause of action against the defendant Board, and therefore, the motion to strike counts two and eight is granted.
GENERAL STATUTES § 52-557n
In counts three and nine of the complaint, the plaintiff alleges that, pursuant to General Statutes § 52-557n(a)(1)(A), the defendant board is vicariously liable for the negligent acts of its employee, the defendant Judy Anker. The defendant board moves to strike counts three and nine on the ground that board is not a political subdivision of the state, and thus, § 52-557n(a)(1)(A) cannot be the basis for imposition of liability on a board.
The defendant board recognizes that § 52-557n has been applied to boards of education in a number of cases, but maintains that it has only been applied because "it has been assumed, without analysis, to apply." (Defendant's Brief in Support, p. 6.) The defendant, however, fails to provide any case law supporting such a position.
Section 52-557n provides: "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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (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."
In fact, in Gaizler v. Pagani, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4004807 (May 24, 2007, Tobin, J.) (43 Conn. L. Rptr. 518), the court was faced with such an argument. The court noted that "the term political subdivision is broad and comprehensive and denotes any division of the state made by proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out a portion of those functions of the State which by long usage and inherent necessities of government have always been regarded as public." Id., 520 quoting State ex rel Maisano v. Mitchell, 155 Conn. 256, 263, 231 A.2d 539 (1967). In holding that § 52-557n does in fact apply to boards of education, the court provided a thorough and extensive analysis of the use of the phrase "political subdivision" in the General Statutes and concluded that the phrase "political subdivision" does in fact include boards of education.
This court agrees with the reasoning in Gaizler and finds that § 52-557n applies to the defendant board.
Accordingly, the motion to strike counts three and nine is denied.
Motion to Strike #110
In count seven, of the revised complaint, the plaintiff further alleges that the injuries suffered were, in part, the direct and proximate result of the defendant, Michael Sanders, principal of Stillmeadow. Specifically, the plaintiff alleges that the defendant Sanders was negligent in that he authorized the defendant Anker to teach a tennis class to nine-year old children using metal tennis rackets without adequate supervision and failed to assign sufficient staffing necessary for adequate supervision of the students under the circumstances.
The defendant Sanders moves to strike the seventh count of the plaintiff's revised complaint, on the ground that such count does not state a legally sufficient cause of action. Specifically, the defendant argues that the seventh count alleges negligence in the performance of a discretionary function and the plaintiff has not invoked an exception to governmental immunity for the performance of discretionary functions.
Law
As the Supreme Court recently noted, "Connecticut municipalities are statutorily immune from negligence liability resulting from discretionary acts of their employees, officers and agents." Doe v. Peterson, 279 Conn. 607, 609, 903 A.2d 191 (2006). "Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . 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.) Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994).
"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, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006). Thus, the "identifiable person-imminent harm" exception requires three elements: (1) an identifiable victim; (2) an imminent harm and; (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm. Id.
"[The] Supreme Court [has] emphasized the limited nature of the concept of imminent harm . . . [I]n [cases where the identifiable person-imminent harm exception has applied to school children], the identifiable person-imminent harm exception was applicable because the dangerous condition was sufficiently limited both in duration and in geography to make it apparent to the defendants that schoolchildren were subject to imminent harm." Doe v. Board of Education, 76 Conn.App. 296, 302-03, 819 A.2d 289 (2003); see also Burns v. Board of Education, supra, 228 Conn. 650 (stating that imminent harms exists where the danger is limited to the duration of the temporary condition and the potential for harm was significant and foreseeable).
"`Imminent' is defined as something about to materialize of a dangerous nature. 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 . . . the risk must be temporary and of short duration . . ." (Citations omitted; internal quotation marks omitted.) Cady v. Tolland, Superior Court, judicial district of Tolland, Docket No. CV 05 5000054 (November 30, 2006, Peck, J.).
Discussion re: Motion to Strike #110
In the present case, the allegations set forth in the complaint, if true, satisfy the elements of the "identifiable person-imminent harm" exception to immunity. "[The Supreme Court has] established specifically that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." Purzycki v. Fairfield, 244 Conn. 101, 109, 708 A.2d 937 (1998). Thus, the plaintiff, a student enrolled at the Stillmeadow, is an identifiable person within the meaning of the exception.
Additionally, the allegations set forth in the complaint satisfy the `imminent harm' element of the exception. In Purzycki v. Fairfield, supra, 244 Conn. 110, the court noted that the harm must be confined to a" limited time period and geographical area." In Purzycki, the plaintiff was a second grade student who was injured when a fellow student tripped him in an unsupervised hallway during the lunchtime recess period. In applying the exception, the court reasoned that the half-hour recess interval where students were dismissed from lunch and allowed to traverse the school's unsupervised hallways, was sufficient to satisfy the limited time period and geographical area elements of the exception. The court noted that the situation involved a temporary condition, which evidenced a temporary duration to the potential harm, in that every other aspect of the lunch period was supervised while the plaintiff was injured during an unsupervised portion of the period.
In the present case, the complaint alleges a temporary condition which placed the plaintiff's minor in imminent harm. Specifically, the complaint alleges that the plaintiff's minor was injured during gym class when a fellow student struck her in the mouth with a tennis racket. The harm in the present case, therefore, could only have occurred while the students were in gym class and in possession of tennis rackets.
Lastly, the complaint alleges facts that, if true, show that it should apparent to the defendant that his failure to assign sufficient staffing necessary for adequate supervision of the students under the circumstances could likely have subjected the plaintiff's minor to the alleged harm. See Loman v. Frank, Superior Court, judicial district of New Haven, Docket No. CV 97 0398833 (May 19, 1999, Devlin, J.) (holding that allegations of inadequate instruction, training and supervision during a gym class where the students were participating in a game of floor hockey were sufficient).
Accordingly, the complaint alleges facts that, if proven, establish that the plaintiff is entitled to the "identifiable person-imminent harm" exception to governmental immunity for tort claims. The defendant, therefore, is not entitled to qualified immunity on the plaintiff's negligence claim.
Therefore, the defendant's motion to strike is denied as to count seven.
Motion to Strike #112 Law and Discussion CT Page 1379
In counts six and twelve, the plaintiff alleges that, pursuant to General Statutes § 52-557n, the defendant, City of Stamford, is directly liable for the conduct of educational personnel. The defendant moves to strike counts six and twelve on the ground that such counts fail to state a legally sufficient cause of action. Specifically, the defendant argues that, as a matter of law, educational personnel are not employees of the City of Stamford, but are employees of the local board of education.The defendant argues that a municipality is not liable for the conduct of educational personnel under the provisions of § 52-557n because teachers are employees of the local board, not the municipality.
Section 52-557n provides: "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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (c) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (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."
In Cheshire v. McKenney, 182 Conn. 253, 260, 438 A.2d 88 (1980), the court stated that, "we have expressly held that members of a local board of education are officers of the town they serve and that the persons employed by them in the performance of their statutory functions are employees of the town, . . . [L]ocal boards of education act on behalf of the municipality they serve as well as in fulfillment of their state mandates and that their professional and nonprofessional employees are employees of the municipality . . ."
The defendant's motion to strike counts six and twelve, which claims that educational personnel are not considered employees of the municipality, is denied.
In counts four and ten, the plaintiff alleges that, pursuant to General Statutes § 7-101a, the defendant is directly liable for the conduct of educational personnel. The defendant moves to strike counts four and ten on the ground that such counts fail to state a legally sufficient cause of action. In response, the defendant argues that § 7-101a does not provide for a direct cause of action against a municipality, but rather is only an indemnification statute governing the rights of employees to protection from the employer.
Section 7-101a provides in relevant part that "each municipality shall protect and save harmless . . . any municipal employee . . . of such municipality from financial loss and expense . . . arising out of any claim, demand, suit or judgment by reason of alleged negligence . . . of such . . . employee while acting in the discharge of his duties."
"While the appellate courts of Connecticut have not explicitly stated that § 7-101a does not allow a direct cause of action, the language of § 7-101a gives no indication that the legislature intended the statute to provide an injured person an independent cause of action against a municipality . . ." Williams v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 05 4009664 (October 12, 2007, Maiocco, J.T.R.); see Karbowiz v. Naugatuck, 921 F.Sup. 77, 78 (D.Conn. 1995); Early v. Allen, Superior Court, judicial district of Hartford, Docket No. CV 06 5003421 (February 7, 2007, Hale, J.T.R.) (42 Conn. L. Rptr. 802); Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0147192 (January 2, 2001, D'Andrea, J.) (26 Conn. L. Rptr. 671); Parsons v. Board of Education, Superior Court, judicial district of Hartford, Docket No. CV 94 533484 (September 16, 1994, Corradino, J.) (13 Conn. L. Rptr. 52); Kuriansky v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91 0116189 (March 25, 1992, Rush, J.) [6 Conn. L. Rptr. 686].
It is clear that § 7-101a does not provide for a direct cause of action against a municipality. Therefore, the motion to strike counts four and ten is granted.
So Ordered.