Opinion
No. CV 10 5032978S
March 8, 2011
MEMORANDUM OF DECISION
FACTS
The plaintiff, Tyree Wells, through his mother and next friend, Diane Chapman, commenced this action by service on December 1, 2009 on Latasha Stoval, Darryl Nicholson, Sr., Darryl Nicholson, Jr., City of New Haven Board of Education, Christopher Mignosa, and Kathy Beck Russell. In their amended complaint, dated July 30, 2010, the plaintiff alleges the following facts. At all relevant times, Darryl Nicholson, Jr. was a minor student attending Beecher School, located at 100 Jewell Street, New Haven, Connecticut. Latasha Stoval and Darryl Nicholson, Sr. are the parents of Darryl Nicholson, Jr. On November 2, 2007, while leaving the premises after school, the plaintiff was walking on the school grounds at or near the sidewalk in front of Beecher School. As the plaintiff was walking, he was struck in the eye by a rock propelled by a sling shot being operated by Darryl Nicholson, Jr. The plaintiff alleges that Darryl Nicholson, Jr.'s actions caused severe and painful injuries.
The following individuals are not parties to the instant motion to strike: Latasha Stoval, Darryl Nicholson, Sr., and Darryl Nicholson, Jr. In this memorandum, City of New Haven Board of Education, Christopher Mignosa, and Kathy Beck Russell will be referred to as "the defendants."
Count one of the complaint alleges negligence against Darryl Nicholson, Jr. and parental liability for Darryl Nicholson, Jr.'s torts against Latasha Stoval and Darryl Nicholson, Sr. Count two alleges that the New Haven Board of Education owned and controlled Beecher School, and alleges negligent supervision against the New Haven Board of Education. Count three alleges negligent supervision against Christopher Mignosa, a teacher at Beecher School. Count four alleges negligent supervision against Kathy Russell Becker, a principal at Beecher School.
On August 27, 2010, the defendants filed a motion to strike counts two through four of the plaintiff's amended complaint on the ground that the counts arise from discretionary acts subject to governmental immunity and that the plaintiff does not fall under the identifiable person-imminent harm exception. The defendants also filed a memorandum of law in support of the motion on the same day. The plaintiff did not file a memorandum in opposition to the motion. The court heard oral argument on November 15, 2010.
DISCUSSION
Practice Book § 10-39 provides in relevant part: "(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." "We take the facts to be those alleged in the complaint that has been stricken and we construe 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, we note that [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 well-pleaded 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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). The court must "construe 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.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
The defendants argue that counts two through four should be stricken on the ground that they are entitled to qualified immunity as their acts were discretionary, not ministerial. Further, they assert that the plaintiff does not fall under an exception to governmental immunity, as he is not an identifiable person who was subject to imminent harm.
"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." (Citations omitted.) Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). "Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "Determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature." Segreto v. Bristol, 71 Conn.App. 844, 857, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). In contrast, the term "ministerial" "refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
"Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint" such that the court can make a determination as a matter of law. (Citation omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). In addition, "[i]f the plaintiff does not allege specific ministerial misconduct or fails to allege a breach of a specific ministerial standard, then it may be concluded from the pleadings that the plaintiff is alleging a discretionary act." Martel v. Metropolitan District Commission, Superior Court, judicial district of Hartford, Docket No. CV 02 0814799 (November 13, 2003, Wagner, J.)
In his complaint, the plaintiff alleged that his injuries and damages were caused by the negligence and carelessness of the New Haven Board of Education, Christopher Mignano and Kathy Russell Beck in the following ways: (1) failing to supervise the student, Darryl Nicholson, Jr., to not propel rocks from a slingshot; (2) failing to caution the plaintiff about Nicholson's propelling rocks from a slingshot; (3) failing to supervise the plaintiff so as to safeguard him from Nicholson; (4) failing to warn the plaintiff of Nicholson's propensity to propel rocks from his slingshot, when in the exercise of reasonable care, should and could have done so; (5) failing to prevent Nicholson from carrying a slingshot on school grounds; (6) failing to supervise Nicholson so as not to cause injury to the plaintiff when they should have known of Nicholson's disobedient personality; (7) failing to safeguard the plaintiff in a reasonable manner; and (8) failing to supervise Nicholson in a reasonable manner.
The alleged negligence of the defendants stems from omissions to act which involve the exercise of judgment, therefore involving discretionary action. Essentially, the plaintiff alleges that the defendants were negligent and careless in that they failed to adequately supervise both the plaintiff and Nicholson, and that the defendants failed to warn the plaintiff of the defendant's disobedient personality and propensity to utilize a slingshot on school grounds when they could have done so in the exercise of reasonable care. More importantly, the plaintiff does not allege that any rules, regulations, or policies mandated that the defendants take certain action or that they were ministerially required to perform any duties. See Segreto v. Bristol, supra, 71 Conn.App. 858-59 (holding that defendant's actions were discretionary in part because "the plaintiff's complaint failed to allege that the city negligently failed to perform a ministerial duty").
Since the plaintiff has alleged only that the defendants' conduct stemmed from discretionary acts, the defendants are immune from liability unless the plaintiff alleges one of the exceptions to governmental immunity. The defendants argue that the plaintiff does not fall within any such exception; specifically, that the plaintiff is not an identifiable person subject to imminent harm.
"There are three exceptions to discretionary act immunity . . . 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, supra, 280 Conn. 319-20. "By its own terms, [the identifiable person-imminent harm exception] 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." (Internal quotation marks omitted.) Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009). "If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Internal quotation marks omitted.) Benedict v. Norfolk, 296 Conn. 518, 519 n. 1, 997 A.2d 449 (2010).
The court emphasizes again that in this memorandum, Darryl Nicholson, Jr., the student who is alleged to have intentionally harmed the plaintiff, is not one of the defendants moving to strike. Therefore, the first exception to discretionary act immunity does not apply because the three defendants moving to strike are not alleged to have engaged in conduct involving malice, wantonness or intent to injure.
In the present case, the plaintiff does not allege that the harm was imminent. "Imminent [harm] does not simply mean a foreseeable event at some unspecified point in the not too distant future. Rather we have required plaintiffs to identify a discrete place and time period at which the harm will occur. [R]ecent decisions focus on the government actors' specific awareness of the imminent harm at issue, and further illustrate the very limited recognition in this state accorded to the identifiable person, imminent harm exception." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 314, 999 A.2d 700 (2010). "[The Supreme Court has] construed the identifiable person-imminent harm exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." The Supreme Court, however, has "emphasized the limited nature of the concept of imminent harm." Doe v. Board of Education, supra, 76 Conn.App. 302. In the few instances where the identifiable person-imminent harm exception has applied in cases involving injured schoolchildren, "the dangerous condition was sufficiently limited both in duration and in geography to make it apparent to the defendants that school children were subject to imminent harm." Id., 303 (holding that plaintiff failed to allege harm was limited to particular time period and geographic area, as harm "potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school." Id., 305.
Here, the plaintiff has alleged only that he was "on the school grounds at or near the sidewalk" of the Beecher School. The plaintiff states that he was on the premises "while leaving after school" though he does not directly allege that he was a student attending the school. In addition, the plaintiff alleges that the incident occurred after school hours, not during school hours. As a result, the plaintiff does not fall under the limited identifiable class of foreseeable victims for the purposes of the identifiable person-imminent harm exception.
This is unlike other cases where the court has held that a minor schoolchild suffering injuries on campus fell under the identifiable person-imminent harm exception. For example, in Burns v. Board of Education, supra, 228 Conn. 640, the plaintiff schoolchild slipped and fell on a sidewalk as a result of an icy patch. The court held that the exception applied: "[T]his accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus. Further, the potential for harm . . . was significant and foreseeable." Id., 650; see Purzycki v. Fairfield, 244 Conn. 101, 110, 708 A.2d 937 (1998) (one-half hour interval when students were dismissed from lunchroom to traverse unsupervised hallway on way to recess constituted limited time period and geographical area).
In the present case, the plaintiff does not allege that the defendants knew or should have known that Nicholson would attack the plaintiff with a slingshot after school hours on or around November 2, 2007. Rather, the complaint only states that the defendants failed to prevent Nicholson from carrying a slingshot on school grounds and that they knew or should have known of Nicholson's disobedient personality. Nicholson's attack on the plaintiff, however, could have happened at any time and location on campus. There are no allegations that the danger to the plaintiff was limited to any specific part of the school or at any specific time period. Therefore, it would not have been apparent to the defendants that their discretionary omissions subjected the plaintiff to imminent harm.
CONCLUSION
The court grants the defendants' motion to strike the plaintiff's complaint.