Opinion
No. CV 04-0093025-S
February 2, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( #106)
This is an action brought by the minor plaintiff, Morgan Thornsberry, through his mother and next friend Holly Zaborowski. On April 29, 2004, the plaintiff filed a two-count complaint against the defendant, town of New Milford, for injuries he allegedly sustained while participating in a town-sponsored after-school program (program) at the Northville Elementary School in New Milford (school).
The town of New Milford is the only named defendant.
In count one, the plaintiff alleges that his injuries were caused by the negligence of the agents or employees of the town, acting through its department/agency the New Milford youth agency (agency), in that they: (1) failed to properly supervise the plaintiff while he was in the care of the agency; (2) allowed the plaintiff to climb upon and hang from a basketball rim when they knew or should have known that it was unsafe to do so; (3) failed to have a sufficient number of counselors on hand to adequately supervise the children left in the care of the agency; (4) failed to establish and/or implement adequate safety policies and procedures to be followed by the agency counselors when supervising children left in their care; and (5) failed to adequately train agency counselors in the proper methods of supervising children left in their care. The plaintiff further alleges that as a result of the negligence of the town, he suffered injuries, and that pursuant to General Statutes § 52-557n, the town is liable for his damages. Count two incorporates the factual allegations contained in paragraphs one through five of count one and alleges that the town is also liable for Holly Zaborowski's damages pursuant to General Statutes § 52-557n.
On August 25, 2004, the defendant filed a motion to strike the complaint. The motion was accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the defendant's motion to strike on September 22, 2004. On September 28, 2004, the defendant filed a reply to the plaintiff's objection.
DISCUSSION
"The motion to strike . . . replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading." (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The defendant moves to strike the complaint on the ground that the plaintiff failed to plead sufficient facts to abrogate the municipal immunity of the defendant. Specifically, the defendant argues that because the plaintiff has not pleaded sufficient facts to support the claim that the "acts complained of arose from a ministerial duty or that the plaintiff child fell within a recognized exception to the ministerial/discretionary rule." § 52-557n does not entitle the plaintiff to recovery. In response, the plaintiff argues that a motion to strike is not the right procedural vehicle to determine whether the facts of the case abrogate governmental immunity, and that he should be allowed to finish the discovery process. Alternatively, the plaintiff argues that he has alleged sufficient facts to support a claim that the minor child falls within the foreseeable victim/imminent harm exception to qualified governmental immunity.
"[A] motion to strike ordinarily is an improper method for raising a claim of governmental immunity . . . however . . . 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." Doe v. Board of Education, 76 Conn.App. 296, 299 n. 6, 819 A.2d 289 (2003); Brown v. Branford, 12 Conn.App. 106, 111 n. 3, 529 A.2d 743 (1987). "[W]here it is not apparent from the allegations of the complaint that the municipality was so engaged, then the defense of governmental immunity should be pleaded." Trzaska v. Hartford, 12 Conn.Sup. 301, 302 (1943). Under the allegations as pleaded in the complaint, the court does find that a motion to strike can be used to raise the issue of governmental immunity in this action.
"[A] municipality is immune from liability for [negligence] unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004); Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). General Statutes § 52-557n(a)(1) "clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents." Id., 29. General Statutes § 52-557n(a)(2), however, expressly makes a municipality not liable for "negligent acts or omissions which require the exercise of judgment or discretion . . ." In addition, "[w]hile [a] municipality itself was generally immune from liability for its tortious acts at common law . . . its employees faced the same personal tort liability as private individuals . . . [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Internal quotation marks omitted.) Doe v. Board of Education, supra, 76 Conn.App. 300. Therefore, "barring the possible application of an exception, both municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliot v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998); see also Bonamico v. Middletown, 47 Conn.App. 758, 761, 706 A.2d 1386, remanded, 244 Conn. 923, 714 A.2d 8, vacated and remanded, 49 Conn.App. 605, 713 A.2d 1291 (1998).
General Statutes § 52-557n(a)(1) provides, in part, that: "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."
General Statutes § 52-557n(a)(2) provides, in part, that "a political subdivision of the state shall not be liable for damages to person or property 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."
"The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "[T]he determination as to whether governmental immunity may successfully be invoked by a municipality . . . turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint." Segreto v. Bristol, 71 Conn.App. 844, 854, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). "[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . ." (Citations omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., supra, 252 Conn. 628. It becomes a question of law if the nature of the acts complained of is "apparent from the complaint." Id., citing Evon v. Andrews, 211 Conn. 501, 505-07, 559 A.2d 1131 (1989). In Connecticut, the supervision of school children has generally been held to be a discretionary act. Purzycki v. Fairfield, 244 Conn. 101, 108, 708 A.2d 937 (1998) (student tripped by fellow student in unsupervised hallway); Heigl v. Board of Education of New Canaan, 218 Conn. 1, 8, 587 A.2d 423 (1991) (student injured in auto accident while off school grounds during open campus period).
See also Bonamico v. Middletown, supra, 47 Conn.App. 760, (student injured when struck in eye by object thrown by other student); Colon v. Board of Education, 60 Conn.App. 178, 183, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) (student injured when struck by door opened by teacher); Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994) (student injured after fall on ice); Doe v. Lasaga, Superior court, judicial district of New Haven, Docket No. CV 99 0430858 (March 10, 2004, Arnold, J.) (adult school mentor charged with abuse); Domejczyk v. New Britain Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 98 491816 (March 6, 2002, Shortall, J.) (student assaulted in unattended classroom); Cluney v. Regional School District No. 13, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0089468 (June 16, 2000, Gordon, J.) ( 27 Conn. L. Rptr. 415) (student raped by other students during unattended detention period); Loman v. Frank, Superior Court, judicial district of New Haven, Docket No. CV 97 0398833 (May 19, 1999, Devlin, J.) (student sustained eye injury during gym class).
In this case, the plaintiff was injured on a school playground, while participating in an after-school program sponsored by the agent for the defendant. The complaint does not allege that there were any procedures or guidelines established by the defendant for the supervision of the children on the playground during the program, which would support an argument that the actions of the defendant were ministerial. The court concludes that the actions of the defendant were discretionary in that the allegations pleaded in the complaint involve the exercise of judgment or discretion. The defendant would, therefore, be immune from liability under the doctrine of governmental immunity unless the actions of the defendant fall within an exception to the rule that a municipality would not be liable for the discretionary acts of its employees.
There are "three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where 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 . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Colon v. New Haven, 60 Conn.App. 178, 180-81, 758 A.2d 900 (2000); Evon v. Andrews, supra, 211 Conn. 505.
The plaintiff claims that the facts of this case fall under the "identifiable person/imminent harm" exception to the doctrine of governmental immunity. For this exception to apply, the plaintiff must allege facts sufficient to support a finding both that the plaintiffs were identifiable persons and that the plaintiffs were subject to imminent harm. See Shore v. Stonington, 187 Conn. 147, 156, 444 A.2d 1379 (1982). The `identifiable person' aspect of this exception has been construed `to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims.'" Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994). "[S]chool children who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims." Purzycki v. Fairfield, supra, 244 Conn. 109; Burns v. Board of Education, supra, 228 Conn. 650; Sanchez v. New Milford, Superior court, judicial district of New Haven, Docket No. CV 01 0453299 (July 7, 2004, Arnold, J.).
It is not argued that there is an applicable statute and there are no allegations that the acts of the defendant involve malice, wantonness or an intent to injure the plaintiff.
Nevertheless, "the common-law identifiable person/imminent harm exception . . . has been determined to be inapplicable to any direct liability imposed against a municipality under [§ 52-557n]." Rodriguez v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 00 0437974 (June 25, 2004, Licari, J.). "[T]he proper means to expose a municipality to liability in cases alleging imminent harm to identifiable persons is through the indemnification provisions of § 7-465." Gaudino v. East Hartford, Superior Court, judicial district of Tolland, Complex Litigation Docket at Tolland, Docket No. X07 CV 01 0081310 (September 10, 2003, Sferazza, J.) ( 35 Conn. L. Rptr. 448); see also Johnson v. New Haven, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0282191 (February 23, 2004, Tanzer, J.); Sanchez v. New Milford, supra, Superior Court, Docket No. CV 01 0453299. "[U]nder Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), the town has no direct common-law liability. The holding of Williams is that town liability only arises by statute. Therefore, one must look to § 52-557n to define that direct liability and cannot rely on common-law exceptions regarding employee immunity." Id.
"When the Tort Reform Act of 1986, which spawned § 52-557n, was enacted, [the] legislature chose to omit the imminent harm to identifiable persons exception, applicable under the common law to employees, from § [52-557n(a)] which pertains to the municipality itself. That exception to qualified immunity for town servants has existed since . . . 1979. If the legislature wished municipalities to be subject to such an exception to governmental immunity, one would have expected to see that exception explicitly stated along with the other exceptions which were set forth. In short the common-law imminent harm exception to qualified immunity for municipal employees is inapplicable to the direct liability imposed against a municipality under § 52-557n." (Internal quotation marks omitted.) Sanchez v. New Milford, supra, Superior Court, Docket No. CV 01 0453299.
In the present case, the town is the only named defendant. The court therefore finds that the identifiable person-imminent harm exception does not apply. Governmental immunity shields the town from liability. For the reasons stated the defendant's motion to strike the complaint is granted.
Brunetti, J.