Opinion
CV13 6043218S
06-01-2016
DEYALITH ROMERO v. CITY OF NEW HAVEN, ET. AL
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Brian T. Fischer, J.
IN RE: MOTION TO STRIKE #132
FACTS
The plaintiff, Deyalith Romero, filed a nine count second revised complaint on December 31, 2015, against the defendants, the city of New Haven (city); the New Haven Board of Education (board); Gina Wells, the principal of the John C. Daniels School of International Communication; Marlene Baldizon, the assistant principal of the John C. Daniels School of International Communication; and Reginald Mayo, the superintendent of the board.
The plaintiff brings the action through her father, Isidro Romero.
The complaint alleges in relevant part as follows. On November 18, 2011, at approximately 8:30 a.m., the six year old plaintiff attempted to enter the front entrance of her school, the John C. Daniels School of International Communication, located in New Haven, Connecticut. Suddenly and without warning, the plaintiffs hand became entrapped in the entrance door, causing her to sustain significant and permanent injuries to her hand. The plaintiff's injuries were caused by the negligence of the defendants and/or their agents, servants and/or employees, in one or more of the following ways: " a. in that they failed to have an adult assisting the minor six year old children into the school; b. in that they failed to have an adult monitoring the entrance and exit doors to the school; c. in that they failed to have an adult walking the minor students from the bus into the school building; d. in that they failed to have an adult stationed outside of the school building to greet and escort the arriving children into the building; e. in that they failed to implement a policy whereby school bus drivers were required to exit their buses to escort and/or supervise the minor children from the bus to the building entrance; f. in that they failed to have an adult open and close the exit/entrance doors to the building for the minor children coming into and leaving the school; g. in that they allowed six year olds to open the school doors without appropriate supervision; h. in that they failed to make reasonable and proper inspections of the exit and entrance areas to the school making it unsafe for small children including the plaintiff; I. in that they failed to remedy the hazardous and dangerous condition by not having an adult supervise the children entering the school through the entrance doors." The defendants knew, or in the exercise of reasonable care, should have known of the " aforesaid dangerous condition."
The allegation regarding knowledge is absent from count seven.
The plaintiff brings counts one and nine against the city and board, respectively, for negligence pursuant to General Statutes § 52-557n. She brings counts two, four, and six against Wells, Baldizon, and Mayo, respectively, for negligence. In counts three, five, and seven, the plaintiff claims indemnity from the city pursuant to General Statutes § 7-465 based upon the negligence of Wells, Baldizon, and Mayo, respectively. Count eight is against the board for negligence pursuant to General Statutes § 10-220a.
General Statutes § 10-220a relates to in-service training programs for school personnel and does not have any obvious relevance to this action. It appears that the plaintiff may have intended to base count eight instead on General Statutes § 10-220 (a), which governs the duties of boards of education.
On October 21, 2015, the defendants filed a motion to strike all nine counts of the complaint. The grounds stated in the motion are as follows. As to all of the counts, they should be stricken as the board and the city are shielded by governmental immunity and Wells, Baldizon, and Mayo are entitled to qualified immunity for their actions; the acts alleged are discretionary in nature and the plaintiff does not fall within any exception to governmental immunity. The defendants also move to strike count eight on the ground that General Statutes § 10-220a is not a statute that abrogates governmental immunity. The motion was accompanied by a memorandum of law. On December 31, 2015, the plaintiff filed a memorandum of law in opposition to the motion. The matter was heard at the short calendar on February 1, 2016.
Although the plaintiff did not file the second revised complaint with the court until December 31, 2015, the plaintiff represents in her memorandum of law, and the defendants do not dispute, that she sent the second revised complaint to the defendants' counsel in October of 2015. There does not appear to be any dispute that the second revised complaint that the plaintiff filed on December 31, 2015, is the same complaint that the plaintiff sent to defense counsel in October. Because the parties treat the second revised complaint as the operative complaint, the court may do likewise.
DISCUSSION
" 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). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged. . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all wellpleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
The defendants argue in their memorandum of law in support of their motion as follows. As to counts one and nine, the city and board are entitled to governmental immunity as the plaintiff does not allege that the defendants violated a ministerial duty. Specifically, the allegations of failing to provide " appropriate" supervision, failing to make " reasonable" and " proper" inspections, and failing to " implement a policy, " are discretionary as a matter of law. Additionally, the absence of any allegation regarding a policy, law or directive indicates that no ministerial duty has been alleged. The allegations do not entitle the plaintiff to the benefit of the exception to discretionary act immunity for identifiable victims subjected to imminent harm.
As to counts two, four, and six, the defendants argue that Wells, Baldizon, and Mayo, as municipal employees in the performance of governmental duties, are entitled to qualified immunity and that the imminent harm exception does not apply. The defendants expressly rely upon their arguments made in support of striking counts one and nine " [a]s the allegations against these individuals are the same as those made against the city and board . . . ." As to counts three, five, and seven, the defendants argue that the conclusion that Wells, Baldizon, and Mayo are immune from liability precludes the counts for indemnification against the city, which are derivative of the direct counts against those three individual defendants. As to count eight, the defendants argue that governmental immunity applies and that § 10-220a, on which the count is premised, does not abrogate that immunity.
In response, the plaintiff concedes that the complaint does not set forth the breach of any ministerial duty. The plaintiffs sole argument in opposition to the motion to strike is that the allegations of the complaint bring the case within an exception to immunity because the plaintiff was an identifiable person subject to imminent harm.
The plaintiff also does not argue that count eight should be treated any differently than the other counts because any statute abrogates immunity.
As a preliminary matter, it is noted that, as a general rule, " governmental immunity must be raised as a special defense in the defendant's pleadings. . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50]. . . . The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
Nonetheless, " there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116 n.4, 19 A.3d 640 (2011). In the present case, the court will consider the motion to strike based on governmental immunity. First, it is apparent from the face of the complaint that the defendants were engaging in a governmental function. Specifically, the plaintiff alleges in the complaint that the defendants failed to supervise schoolchildren. Second, the plaintiff has not objected to the defendants' use of a motion to strike for adjudicating the applicability of the imminent harm exception to governmental immunity and claims that the facts in the complaint are sufficient to bring the case within the exception. The Appellate Court permitted the issue to be addressed by way of a motion to strike where these same two factors were present in Doe v. Board of Education, 76 Conn.App. 296, 299 n.6, 819 A.2d 289 (2003) .
Turning to the merits of the motion, the principles governing a municipality's immunity are well established. " [Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages.... One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. . . . [Section] 52-557n (a) (2) (B), however, explicitly shields a municipality from liability for damages to person or property caused by the 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." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 312, 101 A.3d 249 (2014).
A municipality's individual employees are protected by a similar immunity from liability for their discretionary acts. " Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The plaintiff concedes for purposes of the motion to strike that the complaint does not set forth any ministerial duty. Accordingly, the parties are in agreement that the allegations of negligence set forth in the complaint concern duties of the defendants involving the exercise of discretion and judgment, thus triggering the general rule of immunity. The court, therefore, may proceed directly to examining whether the case falls within an exception to that immunity because the plaintiff has alleged facts demonstrating that it was apparent to the defendants that their failure to act was likely to subject an identifiable person to imminent harm.
The plaintiff does not claim that any other exception to discretionary act immunity applies here.
" [Our Supreme Court] has recognized an exception to discretionary act immunity that allows for liability 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 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). Our Supreme Court has recognized that this exception applies also to an individual employee's qualified immunity. See Grady v. Somers, 294 Conn. 324, 338, 984 A.2d 684 (2009).
The defendants do not dispute that the second element, an identifiable person, is present in this case. Indeed, our Supreme Court has recognized that public schoolchildren are an identifiable class of persons for purposes of this exception to governmental immunity. See Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1 (1994). Accordingly, the court must determine whether the facts alleged in the complaint are sufficient to establish that schoolchildren including the plaintiff were subjected by the defendants to imminent harm and that the imminent harm was apparent to the defendants.
In making this determination, it is important for the court to be mindful of what the plaintiff has and has not alleged. The plaintiff alleges that she was injured when her hand suddenly became entrapped in the front door of the school as she was attempting to enter the school through that door. The plaintiff has not alleged any facts regarding the condition of that door, whether it was in good working order, or whether the defendants were aware of any hazard presented by the door itself. In short, the " hazardous and dangerous condition" alleged in the complaint is not a defective or unreasonably dangerous door or any other defective condition of the property controlled by the defendants. Instead, the focus of the complaint is the defendants' alleged failure to provide supervision of students, including the plaintiff, as they walked from their buses to the front door of the school building and entered the school, opening and closing the door in the process.
There is one further allegation in the complaint that is worth noting, namely, the allegation that the defendants " failed to make reasonable and proper inspections of the exit and entrance areas to the school making it unsafe . . . ." While this language sounds as if it belongs in a complaint alleging defects in the premises, as stated in the body of this memorandum, there is nothing in the complaint actually alleging any such defect. Accordingly, there is no indication from the complaint what the alleged failure to inspect would have revealed.
In Haynes v. Middletown, supra, 314 Conn. 303, our Supreme Court held that " the 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." (Emphasis added.) Id., 322-23. In so holding, the court overruled its own prior decisions in Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1 (1994), and Purzycki v. Fairfield, 244 Conn. 101, 107-108, 708 A.2d 937 (1998), in which it had determined that a harm is imminent if it is " significant and foreseeable" and if it is limited both geographically and temporally. Haynes v. Middletown, supra, 319-23. The Haynes court characterized the correct standard as " the demanding imminent harm standard" and noted that it is a higher standard than both " the ordinary negligence standard, under which a person may be held liable for an injury if there was an unreasonable risk that it would occur" and the overruled " significant and foreseeable" standard. (Internal quotation marks omitted.) Id., 321. Accordingly, for the plaintiff to sufficiently allege facts that come within the identifiable person-imminent harm exception to governmental immunity, it is not enough for the plaintiff to allege facts demonstrating an unreasonable risk of harm or even a harm that is significant and foreseeable; she must allege facts demonstrating that the harm was so likely to occur that the defendants had to act immediately to prevent it.
Here, the facts the plaintiff has alleged do not meet this demanding standard. As stated previously, the plaintiff has alleged that students walked from their buses to the school entrance, opened the door, and entered the school without supervision. She has not alleged the existence of any factors, other than the lack of supervision itself, such as any defective condition of the entry door, that presented a special danger to the students. It may be that leaving young schoolchildren unsupervised under these circumstances would support liability under the ordinary negligence standard of " an unreasonable risk" of harm or even the somewhat higher standard of a " significant and foreseeable" risk, which the Haynes court rejected. The court need not determine whether those lower standards are satisfied here, because the only question is whether the plaintiff has alleged a situation so dangerous that it required the defendants to intervene immediately.
In the cases involving schoolchildren in which our appellate courts have determined that the identifiable person-imminent harm exception applied, there have been additional factors, beyond a lack of supervision, that have made the situations particularly dangerous to students. The most important case is Haynes v. Middletown itself. In Haynes, the plaintiff was engaged in horseplay with other students in a locker room when another student pushed him into a locker with an exposed jagged and rusted edge. Haynes v. Middletown, supra, 314 Conn. 308. There was evidence that the locker had been in the dangerous condition for seven months. Id., 325. Furthermore, there was evidence that the defendants knew that there was an ongoing problem with students engaging in horseplay in the locker rooms. Id. The court determined that these facts were sufficient to allow the identifiable person-imminent harm exception to go to a jury. Id., 325-26. While the court determined that the evidence was sufficient to create an issue for the jury, it nevertheless observed in passing that the " evidence [was] far from compelling, " suggesting that Haynes was a close case. Id., 325.
In Haynes, the court referred to evidence because it was examining the applicability of the identifiable person-imminent harm exception in the context of a motion to set aside a jury verdict. Haynes v. Middletown, supra, 314 Conn. 310. Nevertheless, because the court analyzed the factual threshold that must be crossed to bring the exception into play as a matter of law, its analysis is relevant to the present motion to strike.
Here, there is no allegation of the existence any hazardous condition akin to a rusty and jagged locker, let alone that the defendants knew of any such condition. The complaint likewise lacks any allegation that students engaged in horseplay during the time that they were traveling from buses into the school building or that the defendants were aware of any horseplay. If Haynes presented a close case with evidence that was " far from compelling, " the complaint in the present case is completely devoid of allegations that would even permit the presentation of the type of evidence relied upon by the Haynes court. Instead, there is just the bare allegation that the defendants allowed students to be unsupervised for a time and that the plaintiff's hand was injured when it became caught in a door. Accordingly, the complaint does not set forth circumstances demonstrating that students were subjected to an imminent harm or that any harm was apparent to the defendants.
The plaintiff nevertheless argues that the motion to strike should be denied because there is " virtually no difference" between the facts here and those that were found sufficient to invoke the identifiable person-imminent harm exception in Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900 (2000). While the plaintiff is correct that Colon involved a schoolchild injured by a door, it is distinguishable from the present case both factually and legally. In Colon, the plaintiff schoolchild's injury occurred when a teacher swung a door open into a hallway, hitting the plaintiff in the head. Id., 179. The plaintiff brought an action against the board of education for the teacher's negligence. Id., 179-80. Because the teacher was present and actually swung the door into the plaintiff, it is not surprising that the Appellate Court concluded that the situation was one in which it was apparent that the student was subjected to imminent harm by the teacher's conduct. Id., 187. Here, by contrast, none of the defendants is alleged to have been present at the time and place of the plaintiffs injuries and, as stated previously, there is no allegation that the defendants were aware of any hazardous condition other than the lack of supervision. There is no factual basis for the court to conclude that there was any imminent harm apparent to the defendants. Furthermore, Colon was decided under the old test for imminent harm; see id.; which, as discussed previously, the Haynes court overruled.
Purzycki v. Fairfield, supra, 244 Conn. 101, on which the plaintiff also relies, is likewise distinguishable. It was one of the decisions that the Supreme Court overruled in Haynes to the extent that it set forth an incorrect standard for the identifiable person-imminent harm exception. Although the Appellate Court recently suggested that Purzycki remains good law with regard to its bottom-line determination that the exception applied; see Brooks v. Powers, 165 Conn.App. 44, 72-73 n.17, 138 A.3d 1012 (2016); Purzycki is also distinguishable on its facts. In Purzycki, the plaintiff was injured when he was tripped by another student during a daily unsupervised period; Purzycki v. Fairfield, supra, 104; and, as in Haynes, the defendants were aware that students engaged in horseplay when left unsupervised. Id., 111. As previously stated, there are no analogous allegations in the present case.
CONCLUSION
The plaintiff has not alleged facts bringing the present case within the identifiable person-imminent harm exception to immunity. The plaintiff concedes that the second revised complaint does not set forth any breach of a ministerial duty. Moreover, the plaintiff has not alleged facts demonstrating that it was apparent to the defendants that harm was so likely to occur that they had a clear and unequivocal duty to act immediately to prevent that harm. Accordingly, under the allegations alleged in the second revised complaint, the defendant town and defendant board are protected by governmental immunity and the individual defendants are protected by qualified immunity. For the foregoing reasons, the court grants the defendants' motion to strike.