Opinion
HHBCV156027852S
02-20-2019
Brianna TEODORO ppa Dawn Teodoro v. TOWN OF BRISTOL et al.
UNPUBLISHED OPINION
OPINION
Morgan, J.
The plaintiff, Dawn Teodoro, as parent and next friend of her minor daughter, Brianna Teodoro (Brianna), commenced this action against the defendants, the city of Bristol (city), the Bristol Board of Education (board) and the Bristol Eastern High School (high school) junior varsity cheerleading coach Sophia Bayne (Bayne) to recover damages for injuries suffered by Brianna due to the alleged negligence of the defendants in conducting and supervising after-school cheerleading practice. The defendants moved for summary judgment on all counts of the complaint on the ground that the plaintiff’s claims are barred by the doctrine of governmental immunity.
The defendants’ summary judgment motion was originally granted by the court (Young, J.) on April 18, 2016. See Docket Entry No. 154.00. The plaintiff appealed, claiming that the trial court erred in granting the defendants’ motion for summary judgment: (1) without considering the deposition transcript excerpts she filed in opposition to the motion; and (2) without considering her surreply brief and attached exhibits which were filed without the court’s permission. The Appellate Court agreed with the plaintiff as to her first claim only and remanded the case for further consideration of the defendants’ motion for summary judgment. Teodoro v. Bristol, 184 Conn.App. 363, 383-84, 195 A.3d 1 (2018). This court now considers the motion for summary judgment on remand.
"The purpose of summary judgment procedure is to provide a vehicle for ending litigation short of trial where the admissible evidence available to the parties, as presented to the court, establishes that the moving party is entitled to judgment as a matter of law because there is no genuine issue as to one or more material facts upon which his right to judgment depends. See Practice Book § 17-49 (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").
"The ultimate facts upon which a party’s right to a judgment in his favor depends are determined by the pleadings, which not only identify the claims and defenses upon which the parties have joined issue, but the factual theories upon which they have committed themselves to proving those claims and defenses. Although the sufficiency of such pleaded allegations to state viable claims and defenses can be determined by comparing the pleaded claims and defenses to the pleaded allegations, the availability to the pleader of evidence to prove such allegations cannot be inferred from the mere fact that they have been pleaded. Accordingly, our rules of court require any party moving for summary judgment to prove to the court that admissible evidence available to him not only tends to prove the material facts upon which his right to judgment depends, but eliminates any genuine issue as to the existence of such material facts, thereby establishing his right to prevail on his claim or defense as a matter of law. A party opposing summary judgment, by contrast, need only demonstrate that the admissible evidence available to the moving party is insufficient to eliminate any genuine issue as to the material facts upon which the movant’s right to judgment depends, or that admissible evidence available to her is sufficient to raise a genuine issue as to the existence of one or more such material facts. 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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Teodoro v. Bristol, supra, 184 Conn.App. 372-74, 195 A.3d 1.
The factual background and procedural history of this case are set forth at length in the Appellate Court’s opinion. Id., 365-73. In brief, the plaintiff alleges that her injuries were caused by the defendants’ negligence in that they failed to properly supervise and conduct the cheerleading practice at which Brianna was injured; failed to have a cheerleading coach with up to date knowledge; and violated the rules and protocols of the American Association of Cheerleading Coaches and Administrators (AACCA). The defendants deny the plaintiff’s claims and assert the special defense that the plaintiff’s claims are barred by the doctrine of governmental immunity pursuant to General Statutes § 52-557n and the common law. As noted by the Appellate Court, the court previously granted the defendants’ motion for summary judgment and ruled, on the evidence it found to be admissible, that "the defendants were entitled to governmental immunity because there was no genuine issue of material fact that (1) cheerleading is a student athletic activity authorized by the board, and thus Bayne’s conduct in supervising that activity was public in nature; (2) Bayne’s duties while engaging in such supervisory activity were discretionary, rather than ministerial, in nature; and (3) Bayne’s alleged negligence in performing such discretionary duties on the evening of Brianna’s fall did not come within an exception to qualified governmental immunity by subjecting Brianna, as an identifiable member of a narrowly defined class of foreseeable victims, to a risk of imminent harm." (Footnote omitted.) Id., 370-71.
"At common law, a municipality generally was immune from liability for its tortious acts, but its agents and employees faced the same personal tort liability as private individuals ... In the early twentieth century, our courts extended qualified immunity to municipal employees as well ... Eventually, the personal liability of public officers acting in the scope of their office came to depend on whether the acts or omissions in question were discretionary or ministerial in nature ... In 1986, our legislature enacted § 52-557n, which allows a municipality to be held liable for the negligent acts of its employees under certain circumstances ... Under the relevant statutory provisions, a municipality’s liability in negligence for its employees’ acts hinges on the same ministerial-discretionary dichotomy." (Citations omitted.) Thiverge v. Witham, 150 Conn.App. 769, 774, 93 A.3d 608 (2014).
"The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Jahn v. Board of Education, 152 Conn.App. 652, 658, 99 A.3d 1230 (2014). "The availability of governmental immunity as a defense depends on two factors: (1) whether the employee’s action was public or private in nature, and (2) whether the employee was engaged in a discretionary or governmental act, versus a ministerial act." Id., 658.
On appeal in this case, the plaintiff did not challenge the court’s finding that the acts alleged to be negligent on the part of the defendants were public in nature. This court agrees with its predecessor and finds that a coach supervising students during after-school cheerleading practice is engaged in a public function. Accord, Sevigny v. Daviau, Superior Court, judicial district of Windham, Docket No. CV-12-6005018-S (July 31, 2013, Boland, J.). See also Couture v. Board of Education, 6 Conn.App. 309, 313, 505 A.2d 432 (1986) (board of education’s sponsoring of a football game was a public duty). Thus, the first factor of the governmental immunity test is satisfied.
The second factor to be determined is whether the official acts or omissions are ministerial or discretionary. "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 ... If the acts or omissions complained of are not imposed in the form of a general legal duty, they must, in order to be characterized as ministerial, be required by [a] ... charter provision, ordinance, regulation, rule, policy, or any other directive ... that prescribe[s] the manner in which [they are to be performed]." (Citation omitted; emphasis in original; internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 271, 41 A.3d 1147 (2012). Our Supreme Court has recently reaffirmed that the determination of whether official acts or omissions are discretionary or ministerial is typically a question of law for the court. Ventura v. East Haven, 330 Conn. 613, 636-37 (2019) (expressly disavowing language in prior cases that indicates otherwise).
The defendants argue that their actions in conducting and/or supervising the after-school junior varsity cheerleading practice during which Brianna was injured were discretionary. In support of their position, the defendants submit the affidavit of the Board’s athletic supervisor who attests, among other things, that (1) the cheerleading team is a voluntary program; (2) there are no written ordinances, regulations, directives or policies within the city, board or high school which mandate the manner in which cheerleading team practices are to be conducted, supervised or controlled; (3) there are no written statutes, directives, policies, procedures or ordinances within the city, board or high school which mandate the manner in which any cheerleading activities, cheers, dances, stunts or pyramids are to be coached, practiced or performed; (4) decisions concerning activities, cheers, dances, stunts, training and the manner in which junior varsity cheerleading team practices are to be conducted and supervised are left to the discretion of the cheerleading coach, in this case, Bayne; and (5) neither the city nor the board has adopted the AACCA standards. The defendants also submitted the affidavit of Bayne who attests, among other things, that (1) she was not required to be AACCA certified to be the junior varsity cheerleading coach; and (2) she was not required to follow any standards promulgated by the AACCA to be the junior varsity cheerleading coach.
The plaintiff counters that the defendants’ activities were ministerial in nature, not discretionary, or at the very least there is an issue of fact as to whether the conduct was discretionary or ministerial. In opposition to the summary judgment motion, the plaintiff submitted her second amended complaint, excerpts from Brianna Teodoro’s and Bayne’s deposition transcripts, the plaintiff’s expert witness disclosure of Dr. Gerald S. George, an excerpt from the National Federation of State High School Associations 2012-13 Spirit Rules Book (NFHS rules) and an excerpt from the Bristol Public Schools Coaching Handbook (coaching handbook). Although not specifically alleged in her complaint, the plaintiff claims in her opposition to the summary judgment motion that the NFHS rules and the coaching handbook establish specific policies and procedures with which the defendants failed to comply.
In reply, the defendants submit a supplemental affidavit of the board’s athletic supervisor who attests, among other things, that the board is not a member of the National Federation of State High School Associations and has not adopted the NFHS rules upon which the plaintiff relies. The affiant further re-attests that there are no written statutes, directives, policies, procedures or ordinances within the city, board or high school which mandate the manner in which any cheerleading activities, cheers, dances, stunts or pyramids are to be coached, practiced or performed. Lastly, the defendants argue, the coaching handbook does not impose any ministerial duties on them because it does not impose an obligation upon any of the defendants to act in a prescribed manner without the exercise of judgment or discretion.
In surreply, the plaintiff submits an affidavit from Dr. Gerald S. George, her disclosed expert in the field of biomechanics and cheerleading safety, in further support of her argument that the defendants’ actions were governed by the NFHS rules and the coaching handbook, and that the defendants violated those rules and protocols. Finally, in sur-surreply, the defendants reiterate that the board did not adopt the NFHS rules, but in any event neither the NFHS rules nor the coaching handbook imposes a ministerial duty on the defendants.
The plaintiff originally filed a surreply without the court’s permission. On appeal, the Appellate Court held that the trial court properly exercised its discretion under the rules of practice in not considering the plaintiff’s surreply. Teodoro v. Bristol, supra, 184 Conn.App. 384, 195 A.3d 1. See also Practice Book § 11-10(c). Following remand to this court, the plaintiff moved for permission to file the surreply. This court granted the motion over the defendants’ objection and also permitted the defendants’ previously filed sur-surreply to stand absent objection from the plaintiff. Given the lapse of time between the court’s initial ruling on the summary judgment motion (April 18, 2016) and the Appellate Court’s decision remanding the case for further proceedings (August 28, 2018), this court gave the parties an opportunity to file supplemental memoranda of law to address any recent authority on the issue of governmental immunity. Both parties filed supplemental memoranda. This court thereafter heard argument on the motion on October 29, 2018.
Our Supreme Court has recognized that managing and supervising school employees is a discretionary function. Strycharz v. Cady, 323 Conn. 448, 567-69, 148 A.3d 1011 (2016) abrogated on other grounds by Ventura v. East Haven, supra, 330 Conn. 637. "Similarly, the supervision of students is generally considered a discretionary act. See, e.g., Rigoli v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5007920-S (February 6, 2012, Hiller, J.) (53 Conn.L.Rptr. 466, 467) ("[w]hen presented with the issues of supervision of students, implementation of school policies and the control and management of a school and its students, Superior Courts have generally held that these ... [duties] are carried out through discretionary acts"); Romanella v. Nielson, Superior Court, judicial district of New London, Docket No. CV-06-5100163-S (May 27, 2009, Abrams, J.) ("Connecticut law ... considers the supervision of students a discretionary act"); LaPerle v. Woodstock Academy, Superior Court, judicial district of Windham, Docket No. CV- 06-5000370-S (June 5, 2007, Martin, J.) (43 Conn.L.Rptr. 531, 532) ("[t]he duty of a [town board of education] to supervise students is discretionary rather than ministerial")." Lewis v. Newton Board of Education, Superior Court, judicial district of New Haven, Docket No. CV- 15-6075650-S (May 7, 2018, Wilson. J.). See also Sevigny v. Daviau, supra, Superior Court, judicial district of Windham, Docket No. CV-12-6005018 (July 31, 2013, Boland, J.) (cheerleading coach’s supervision of team practice is discretionary).
Consistent with the foregoing authorities, the court finds that the defendants’ actions as alleged by the plaintiff in conducting and/or supervising the after-school cheerleading practice during which Brianna was injured all involve the exercise of judgment and discretion. Allegations that the defendants failed to conduct an appropriate warm-up prior to proceeding with a stunt cheer activity, failed to require stunt group participants to remain in defined stunt groups, permitted stunt group participants to rotate in and out of and to switch positions within the stunt group, and failed to have an instructor with up to date knowledge all describe discretionary activities.
The only source the plaintiff alleges in the complaint that could ostensibly create a ministerial duty is the rules and protocols of the AACCA. However, the undisputed evidence before this court shows that the defendants did not adopt the AACCA rules. Thus, the AACCA rules cannot serve as the basis for a finding of a ministerial duty on the part of the defendants. And while the parties dispute whether the NFHS rules even apply to the defendants, this dispute does not create a material issue of fact. Neither the excerpts from the NFHS rules nor the excerpts from the coaching handbook clearly compels the defendants to act in a prescribed manner that negated the need for the defendants to exercise judgment and discretion in conducting and supervising cheerleading practice. Nothing in Dr. George’s affidavit changes this conclusion.
In her complaint, the plaintiff alleges that the defendants violated an AACCA rule regarding cheerleading spotters. However, the plaintiff did not submit any portion of the AACCA rules in opposition to the defendants’ summary judgment motion.
A ministerial duty cannot reasonably be inferred from the evidence before the court. In the absence of an ordinance, rule, or policy that "clearly compels a prescribed manner of action that does not involve the exercise of judgment or discretion"; Northrup v. Witkowski, 175 Conn.App. 223, 242, 167 A.3d 443, cert. granted, 327 Conn. 971, 173 A.3d 392 (2017); the defendants’ negligent acts or omissions as alleged by the plaintiff are discretionary, not ministerial. Thus, the second factor of the governmental immunity test is satisfied.
The plaintiff argues further that if the defendants’ actions are found by the court to be discretionary, she has alleged facts sufficient to fall within the "identifiable person-imminent harm" exception to the governmental immunity doctrine. Discretionary act immunity is subject to three well-recognized exceptions: (1) where the circumstances make it apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). Only the first exception is relevant to the present case.
The parties’ memoranda of law do not address the second or third exceptions. Accordingly, the court will only discuss the first exception to governmental immunity, namely, the "identifiable person-imminent harm" exception.
The identifiable person-imminent harm exception, which our Supreme Court has characterized as "very limited"; Strycharz v. Cady, supra, 323 Conn. 573; "applies when the circumstances make it apparent to the [municipal] officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... 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 ... If the [plaintiff] fail[s] to establish any one of the three prongs, this failure will be fatal to [his] claim that [he] come[s] within the imminent harm exception ... [T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." (Citation omitted; internal quotation marks omitted.) Brooks v. Powers, 328 Conn. 256, 266, 178 A.3d 366 (2018).
"The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals." Cotto v. Board of Education, 294 Conn. 265, 274, 984 A.2d 58 (2009). In this case, the plaintiff does not argue that she was a member of an identifiable class of foreseeable victims, recognizing that the only class of foreseeable victims our Supreme Court has recognized for purposes of the identifiable person-imminent harm exception is that of school children attending public schools during school hours. Id. Rather, the plaintiff argues that genuine issues of material fact exist as to whether Brianna was an identifiable person. Our Supreme Court has noted that "[o]utside of the schoolchildren context, we have recognized an identifiable person under this exception in only one case [i.e., Sesito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979) ] that has since been limited to its facts. Beyond that, although we have addressed claims that a plaintiff is an identifiable person or member of an identifiable class of foreseeable victims in a number of cases, we have not broadened our definition." (Footnotes omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 436-37, 165 A.3d 148 (2017).
"Generally ... a party is an identifiable person when he or she is compelled to be somewhere." Id., 436. "[E]ven outside the public school context, whether the plaintiff was compelled to be at the location where the injury occurred remains a paramount consideration in determining whether the plaintiff was an identifiable person or member of a foreseeable class of victims." (Emphasis added.) Grady v. Somers, 294 Conn. 324, 355, 984 A.2d 684 (2009). In fact, "Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred ..." (Internal quotation marks omitted.) DeConti v. McGlone, 88 Conn.App. 270, 274, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005); see Durrant v. Board of Education, 284 Conn. 91, 108, 931 A.2d 589 (2007) (plaintiff, parent of schoolchild, was not compelled statutorily to enroll child in the after school program).
In St. Pierre v. Plainfield, supra, 326 Conn. 437-38, our Supreme Court provided specific examples in support of a narrow definition of an identifiable person subject to imminent harm: "Cotto v. Board of Education, supra, 294 Conn. 267-68, 279 (director of community based summer youth program located in public school was not identifiable person when he slipped in wet bathroom because then so was every participant and supervisor in the Latino Youth program who used the bathroom, and anyone could have slipped at any time [emphasis in original]); see also Coe v. Board of Education, 301 Conn. 112, 119-20, 19 A.3d 640 (2011) (student injured while attending middle school graduation dance occurring off school grounds did not qualify as member of identifiable class of foreseeable victims because she was not required to attend dance); Grady v. Somers, supra, 294 Conn. 328, 355-56 (permit holder injured at refuse transfer station owned by town did not qualify as identifiable person despite being paid permit holder and resident of town); Durrant v. Board of Education, [supra, 284 Conn. 96] (mother who slipped and fell while picking up her child from optional after-school day care program run in conjunction with public school did not qualify as member of identifiable class of foreseeable victims because program was optional); Prescott v. Meriden, 273 Conn. 759, 761-62, 764-65, 873 A.2d 175 (2005) (parent voluntarily attending high school football game to watch his child play was not member of identifiable class of foreseeable victims because he was not compelled to attend, school officials lacked similar duties of care to him as to child given his status as parent and exception is narrowly tailored [internal quotation marks omitted]); Evon v. Andrews, [supra, 211 Conn. 508] ([t]he class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of identifiable persons.)" (Internal quotation marks omitted.)
In the present case, the plaintiff was not an identifiable victim as that term has been narrowly defined by our Supreme Court. The plaintiff, one of many cheerleaders at practice, was not statutorily required or legally compelled to be on school premises at the time of her alleged injury. Instead, she was an invitee who was on the premises voluntarily. Under established case law, the plaintiff’s voluntary choice to be on school premises, even within the context of her participation in an after school sanctioned activity, precludes this court from holding that she was an identifiable person or a member of an identifiable class of persons. See Costa v. Plainville Board of Education, 175 Conn.App. 402, 409, 167 A.3d 1152, cert. denied, 327 Conn. 961, 172 A.3d 801 (2017) (plaintiff who voluntarily participated in non-mandatory senior picnic and pick-up basketball game did not qualify as an identifiable person for purposes of the identifiable person-imminent harm exception). Consequently, the identifiable person-imminent harm exception to the doctrine of governmental immunity does not apply in this case. The court’s analysis of this issue ends here. See St. Pierre v. Plainfield, supra, 326 Conn. 438 (as identifiable person-imminent harm exception requires conjunctive proof of both, court’s determination that plaintiff does not qualify as identifiable person ends court’s analysis, and it need not consider whether imminent harm existed).
For the reasons stated above, the plaintiff’s claim of negligence against Bayne is barred by governmental immunity; none of the recognized exceptions to that doctrine apply. The court finds further that the city and the board are not liable to the plaintiff under General Statutes § 52-557n because the discretionary act immunity that applies to Bayne applies equally to the city and to the board. Gen. Stat. § 52-557n(a)(2)(B). See Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006) ("[s]ection 52-557n(a)(2)(B) extends ... the same discretionary act immunity that applies to municipal officials to the municipalities themselves"); Heigl v. Board of Education, 218 Conn. 1, 3-4, 587 A.2d 423 (1991) (discretionary act immunity applies to town board of education, as an agent of the municipality).
The pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact regarding whether discretionary act immunity applies in this case and whether Brianna was an identifiable person for purposes of the identifiable person-imminent harm exception to governmental immunity. The defendants, therefore, are entitled to governmental immunity and the entry of judgment as a matter of law. The motion for summary judgment is GRANTED. Judgment shall enter in favor of the defendants on all counts of the plaintiff’s complaint.