Opinion
No. CV-04-4000969
March 8, 2007
MEMORANDUM OP DECISION ON MOTION FOR SUMMARY JUDGMENT (NO. 114)
On September 23, 2004, the plaintiff, Karli Spera, commenced the present action against the defendants, the Town of Waterford (Town), the Waterford Board of Education (Board), and James O'Neil. In a three-count revised complaint filed on March 7, 2006, the plaintiff seeks to recover damages for personal injuries sustained while she was playing with a piece of football equipment at Waterford High School. Count One alleges that the Town and the Board are liable pursuant to General Statutes § 52-557n. Count Two alleges negligence on the part of O'Neil in his capacity as athletic director of Waterford High School. Finally, count Three alleges that the Town is liable pursuant to General Statutes § 7-465.
Antonio Spera brought this action as parent and next friend of his minor daughter, Karli Spera.
Presently before the Court is the defendants' motion for summary judgment in which they claim that Count One is barred by the doctrine of governmental immunity; Count Two is barred by qualified immunity for the performance of discretionary acts; and Count Three fails because it is dependent upon the claim asserted in Count Two. "Practice Book [§ 17-49] provides that summary 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
In addition to the memoranda of law filed by the parties, the Court was presented with the sworn affidavit of the defendant O'Neil; as well as the deposition testimony of: (1) Heston J. Sutman, the former Waterford High School head football coach; (2) Michael J. Strecker, the former Waterford High School assistant football coach; (3) Karli Spera; and (4) Antonio Spera.
The parties have filed seven memoranda of law in connection with the motion for summary judgment. At this court's request, the last briefs were filed simultaneously on November 30, 2006.
The following undisputed facts are relevant to the disposition of this motion for summary judgment. On September 28, 2002, the plaintiff, a thirteen-year-old student at Clark Lane Junior High School, attended a football game at Waterford High School. Adjacent to the football field was another field used by the high school football team for practice (practice field). A piece of football equipment used to develop blocking skills (blocking sled) had been left on the practice field during the football game. During the football game, the plaintiff did not watch the game, but rather remained on the practice field and played with her friends. It was apparently a known custom for a large group of children and adults to congregate on the practice field during home football games for what is essentially a social event. The plaintiff and other children began playing with the blocking sled in the practice field. The plaintiff positioned herself on an arm of the blocking sled as another child applied weight to the other end of the blocking sled. This caused the plaintiff to snap forward into the air and onto the ground nearby, which resulted in injuries to her arm. Additional factual information will be discussed where necessary.
I. Immunity
"The [common-law] doctrines that determine the tort liability of municipal employees are well established . . . 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 . . . 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.
"Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune for liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.
"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 . . .
"The tort liability of a municipality has been codified in [General Statutes] § 52-557n. Section 52-557n(a)(1) provides that `[e]xcept 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 . . .' Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages 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.'" (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318-20, 907 A.2d 118 (2006).
The plaintiff has argued that the ministerial/discretionary distinction has been radically altered by a citation and accompanying parenthetical information in Considine v. Waterbury, 279 Conn. 830, 854, 905 A.2d 70 (2006). Given the recitation and application of the traditional ministerial/discretionary distinction by the court in Violano, supra, 280 Conn. 310, which was decided subsequent to the Considine decision, it is submitted that this court reject the plaintiff's argument. Notably, the court in Violano v. Fernandez, supra, 280 Conn. 310, rejected the invitation to alter the standard for distinguishing ministerial and discretionary acts. Id., 327. The court explained it would be beyond its province to do so given the codification of the distinction by the legislature. Id., 327-28.
The defendants contend that there is no genuine issue of material fact that the acts and omissions alleged in the plaintiff's complaint are discretionary in nature. The defendants also argue that there is no genuine issue of material fact that none of the exceptions to governmental immunity apply to the present facts. The plaintiffs counter that the determination of whether the acts or omissions were discretionary is a question for the fact finder. Furthermore, the plaintiff argues that there is a genuine issue of material fact as to whether the plaintiff was in a class of individuals subjected to imminent harm. The court agrees with the defendants.
A Nature of Acts and Omissions
The first matter before the Court is whether issues of fact exist regarding the nature of the defendants' allegedly negligent acts and omissions. Martel v. Metropolitan District Commission, 275 Conn. 38, 881 A.2d 194 (2005), provides sufficient guidance in the resolution of this matter. In Martel, the plaintiff was severely injured while mountain biking along an unpaved trail on land owned by the defendant and opened to the public for recreational purposes. Id., 41-42. The court upheld the granting of summary judgment based on governmental immunity because the defendants' acts were discretionary as a matter of law. Id., 51. The court began its analysis with the language of the plaintiff's complaint, explaining that it "essentially alleges that the defendants were negligent in their: (1) design, supervision, inspection and maintenance of the trail on which the plaintiff was injured; (2) failure to warn recreational users of the trail's dangerous and unsafe condition; and (3) failure to barricade or close the trail." Id., 50.
The court proceeded to address whether the evidence demonstrated a genuine issue of material fact regarding the nature of the defendants' acts or omissions. "The plaintiff, in [his] opposition to the defendants' motion for summary judgment, did not present any evidence demonstrating that a policy or directive existed requiring the defendants to perform these duties. Absent evidence of such a policy or directive, we conclude that the [defendants], in determining whether to supervise, inspect and maintain the trails in Greenwoods and when to mark, close or barricade the trails, if at all, were engaged in duties that inherently required the exercise of judgment . . . Accordingly, we conclude that the defendants' allegedly negligent acts were discretionary in nature as a matter of law and that, therefore, the trial court properly rendered summary judgment in favor of the defendants." (Citation omitted.) Id., 50-51.
The holding in Martel squarely rested on the absence of evidence of a policy or directive prescribing the manner in which trails were to be maintained. The requirement of such a policy or directive in order to characterize an act as ministerial is well established. See, e.g., Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 118 (2006); Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900 (2000); Beach v. Regional School District Number 13, 42 Conn.App. 542, 682 A.2d 118 (1996).
In the present case, the plaintiff essentially alleges that the defendants were negligent in the following respects: (1) They failed to remove and/or secure the sled so it would not pose a danger to children congregating on the practice field; (2) they failed to monitor, observe, control, supervise or restrict the activities of children on the practice field despite knowledge of the children's presence and use of the field; and (3) they failed to warn of the danger posed by the blocking sled.
While the acts and omissions alleged by the plaintiff seemingly require the exercise of judgment, the plaintiff has included allegations that the defendants acted in violation of required procedure. Specifically, the plaintiff alleged that the defendants were "required" by "established practice" to move the blocking sled to an area where it would be inaccessible to children congregating on the practice field. The plaintiff alleged that when the blocking sled was not so stored, such as on the day the plaintiff was injured, it was "in violation of said procedure." The implication of these allegations is that the blocking sled was to be maintained in a prescribed manner, which the defendants failed to do. The defendant's failure to comply with this allegedly ministerial duty caused the plaintiff's injuries. This scenario set forth in the plaintiff's allegations would overcome the defense of governmental immunity. These allegations, however, are not supported by the evidence submitted to the Court.
The defendants take the position that there was no statute, regulation, practice, policy or directive requiring the football equipment to be moved at all, let alone in a prescribed manner. They contend that movement of the football equipment, including the blocking sled, was left to the judgment and discretion of the football coaches. In a sworn affidavit, the defendant O'Neil avers that he was the athletic director for Waterford High School at the time of the plaintiff's injuries. In this role, he states he was responsible for the development and implementation of all policies and procedures governing the administration of athletics at Waterford High School. O'Neil also avers that "at no time during my tenure as athletic director did I, nor anyone else on my behalf, develop and/or implement any policy, practice, procedure or regulation governing the placement, storage, securing and/or restriction of the . . . blocking sled." O'Neil further avers that "it was the responsibility of the Waterford High School football coaching staff to use their best judgment and discretion to determine where to place the one man blocking sled before, during and after the football team used said sled."
The deposition testimony of the Waterford High School head football coach and assistant football coach supports the averments of O'Neil. The testimony of both coaches indicates that neither the Town, the Board, nor O'Neil established by any means the manner in which the blocking sled was to be handled. In fact, both coaches testified that the blocking sled would typically be left on any area of the field so long as it did not interfere with the players' movement during practice. Their testimony supports the defendants' position that the football coaches determined how the blocking sled and other equipment would be moved and secured. In his deposition, Michael Streaker alludes to a vague memory of a rumor of an order. This does not make for a genuine issue.
At all times relevant to the plaintiff's claims, the head football coach was Heston J. Sutman, and the assistant football coach was Michael J. Strecker.
In response, the plaintiffs have failed to present evidence demonstrating a genuine issue of material fact regarding the existence of a directive or policy prescribing the manner in which the field and equipment were to be maintained. Absent such evidence, the decisions regarding where and how to store the blocking sled, as well as whether to post a warning, necessarily required the exercise of judgment. Therefore, this Court finds that the defendant's allegedly negligent acts and omissions were discretionary as a matter of law.
B Imminent Harm Exception
The next issue is whether there is any fact in dispute affecting the applicability of the imminent harm exception. "Discretionary act immunity is abrogated 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.) Doe v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006). "Our Supreme Court has construed this exception [to governmental immunity] to apply not only to identifiable individuals but also to narrowly defined classes of foreseeable victims." (Internal quotation marks omitted.) Tryon v. Branford, 58 Conn.App. 702, 710, 755 A.2d. 317 (2000). "By its own terms, this test requires three things: (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." Doe v. Petersen, supra, 279 Conn. 616. "[T]he question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this exception to qualified immunity is ultimately a question of policy for the courts, in that it is in effect a question of duty . . . This involves a mixture of policy considerations and evolving expectations of a maturing society Thus, it involves a question of law . . ." (Citations omitted; internal quotation marks omitted.) Prescott v. Meriden, 273 Conn. 759, 763-64, 873 A.2d 175 (2005).
The holding and reasoning of Prescott v. Meriden, supra, 273 Conn. 759, indicates that the present plaintiff does not fall within a class of foreseeable victims. In Prescott, the plaintiff attended a high school football game in which his son was playing. Id., 761. It was raining on the day of the game, and the seats of the bleachers became wet and muddy from spectators treading on them. Id., 762. The only way to traverse these bleachers was to step on the seats because there was no stairway. Id. Toward the end of the game, the plaintiff slipped and fell as he was descending the fiberglass-covered plank seats covered with water and mud. Id. The court held that the plaintiff was not a member of an identifiable class of foreseeable victims. Id., 765.
The court began its discussion of the imminent harm exception by noting that "[t]hus far, the only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours." Id., 764; see Purzycki v. Fairfield, 244 Conn. 101, 108, 708 A.2d 937 (1998); Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). The court continued by explaining the relevant considerations. "In determining that such schoolchildren were within such a class, we focused on the following facts: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." Prescott v. Meriden, supra, 273 Conn. 764.
Applying these considerations to the facts before it, the court concluded that the plaintiff was not within a foreseeable class of victims. Id. "First, the plaintiff's presence at the game was purely voluntary. He was not compelled to attend by any statute, regulation or other legal command. In this respect, he was no different from any of the other spectators — whether relatives or friends of the team members, other students at the respective schools, teachers and other school staff members, or simply fans of high school football interested enough to brave any weather to watch a traditional Thanksgiving Day game. Thus, the plaintiff was simply like any other member of the public attending the game. Second, the plaintiff was entitled to no special consideration of care from the school officials because of his status as a parent. Thus, he was unlike the schoolchildren in both Burns and Purzycki. Third, we have characterized the classes of foreseeable victims as narrowly defined . . . Recognizing the plaintiff as establishing a cognizable class of foreseeable victims, namely, parents of students on the team, would be contrary to this characterization, especially given the close resemblance of the plaintiff as spectator to all of the other members of the public similarly situated. Moreover, to do so would mean that all spectators at a public municipal event would constitute a class of foreseeable victims for these purposes, thus making the exception so broad that it would threaten to swallow the rule." (Citation omitted; internal quotation marks omitted.) Id., 764-65.
The present plaintiff argues that the decision in Durrant v. Board of Education, 96 Conn.App. 456, 900 A.2d 608, cert. granted, 280 Conn. 915, 908 A.2d 536 (2006), indicates that she falls within a foreseeable class. In Durrant, a divided Appellate Court recognized a class of foreseeable victims beyond schoolchildren attending public schools during school hours. The plaintiff in Durrant was on the premises of an elementary school in which her six-year-old son was enrolled. Id., 459. She was present in order to pick her son up from "an after school day care and homework study program conducted by the Boys and Girls Club and the school." Id. The plaintiff slipped and fell on a puddle of water as she exited the school. Id. The plaintiff alleged that the injuries she incurred from the fall were a result of the defendants' negligence in connection with their inspection and maintenance of the stairs, as well as their failure to warn of dangerous conditions. Id., 459. The court held that the defense of governmental immunity was unavailable to the defendants because the plaintiff was "within a cognizable and narrowly defined class of foreseeable victims . . ." Id., 458.
In reaching its conclusion, the court expressly distinguished Prescott on two grounds. First, the court explained that, "[u]nlike the parent in Prescott, the presence of the plaintiff at the school was not purely voluntary . . . The plaintiff's presence at the school to ensure the safe departure of her child was reasonably to be anticipated. She was not part of a large class of persons with no reason to be on school premises or part of a large class of persons with varying reasons to be on school premises. She was not on the premises along with other parents and members of the public to watch a sporting event, but to escort her child out of the building safely, rather than to have him leave the school building alone." (Citation omitted; emphasis added.) Id., 469. Second, the court relied on the statutory framework that "provide[s] for the public purpose and establishment of after school programs." Id., 470. "The statutes of Connecticut . . . condone and encourage the use of public school facilities for the very purpose that the plaintiff's child was in attendance at West Middle School on the day of the plaintiff's fall. The public policy involved in this case has been established by the legislature through its enactment of § 17b-737." Id.
While it is noted that our Supreme Court has granted certification in Durrant, it is unnecessary to speculate on whether the Appellate Court's decision will be reversed. The critically distinguishing elements of Durrant are not present in the case before this court. First, it is undisputed that the plaintiff's attendance at the football game was purely voluntary. Second, there is no statute establishing the public policy involved in attendance of a high school football game. The plaintiff was part of the general public attending a high school football game on a voluntary basis. To broaden the concept of a narrowly defined class of foreseeable victims to include all of those similarly situated with the plaintiff would "[make] the exception so broad that it would threaten to swallow the rule." Prescott v. Meriden, supra, 273 Conn. 765. The imminent harm exception does not apply because the plaintiff was not within a foreseeable class of victims.
The plaintiff's citation to General Statutes § 10-220 is without merit. Section 10-220, which describes duties of local and regional boards of education, provides in relevant part: "(a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state as defined in section 10-4a and provide such other educational activities as in its judgment will best serve the interests of the school district . . ." (Emphasis added.) Unlike the statutes involved in Durrant, supra, 96 Conn.App. 470, the emphasized language of § 10-220 does not provide for the finding and encouragement of a specific activity.
II Liability Pursuant to General Statutes § 7-465
Finally, the defendants move for summary judgment on the plaintiff's claim against the Town pursuant to General Statutes § 7-465. The defendants argue that if the plaintiff's claims against the Town's employee fail because they are barred by discretionary act immunity, then the claim under § 7-465 necessarily must fail because it only provides for indemnification.
Section 7-465 provides in relevant part: "(a) Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . Governmental immunity shall not be a defense in any action brought under this section."
"A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification . . . This is a personal liability requirement that calls for an inquiry independent of the statute itself, an inquiry into the factual matter of individual negligence . . . Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual." (Citations omitted; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).
"Section 7-465 clearly states that governmental immunity will not be allowed as a defense in an indemnification claim, except that the municipality will not be liable for the wilful and wanton acts of its employees. Section 7-465 is an indemnity statute; it does not create liability. Under § 7-465, the municipality's duty to indemnify attaches only when the employee is found to be liable and the employee's actions do not fall within the exception for wilful and wanton acts. That statute neither bars a plaintiff from bringing common-law claims against municipal employees nor precludes municipal employees from raising defenses to such claims as are recognized by the common law." Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 59 A.2d 582 (2004). The common-law defense of qualified immunity remains available to municipal employees, despite a claim for indemnification pursuant to § 7-465. Id. While this certainly results in an indirect, yet significant, benefit accruing to the municipality; Spears v. Garcia, 263 Conn. 22, 37, 818 A.2d 37 (2003); to read § 7-465 as stripping the employee of the defense, would destroy the municipality's immunity contained in § 52-557n. Violano v. Fernandez, supra, 280 Conn. 328 n. 10.
In the present case, it has already been determined that the plaintiff's claims against the Town's employee are barred by common-law discretionary act immunity. Therefore, the plaintiff is unable to satisfy a condition precedent to recovery under § 7-465. On this basis, the defendant Town is entitled to summary judgment as to Count Three.
III Conclusion
Based on the foregoing, the defendants' motion for summary judgment is granted as to all of the plaintiff's claims.