Opinion
No. HHD-CV-06-4027110
August 28, 2008.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
I STATEMENT OF CASE
On March 30, 2007, the plaintiff filed a five-count amended complaint alleging the following claims: (1) negligence (Town of West Hartford); (2) nuisance (Town of West Hartford); (3) nuisance (West Hartford Board of Education); (4) negligence (Keith Robichaud); and (5) for negligence of Keith Robichaud (Town of West Hartford). On December 24, 2007, the defendants filed a motion for summary judgment on the following grounds: (1) the plaintiff's amended complaint fails to state a claim of negligence against the Town of West Hartford which has no duty to maintain school premises or supervise students; (2) plaintiff's public nuisance claims are barred by the statute of limitations; (3) plaintiff has failed to satisfy the elements of a public nuisance claim; (4) plaintiff's negligence claims against the Town of West Hartford and Keith Robichaud are barred by the doctrine of governmental immunity; and (5) plaintiff's respondeat superior claim against the Town fails as it does not set forth a statutory basis for abrogating immunity. On February 27, 2008, the plaintiff filed a memorandum of law in opposition to motion for summary judgment. On May 8, 2008, the defendants filed a reply memorandum to plaintiff's opposition to motion for summary judgment.
II FACTS
The plaintiff, Trevor Adams, is a minor who brings this action by and through his legal guardian and next friend, Deborah Adams. The defendants are the Town of West Hartford (West Hartford), the West Hartford Board of Education (board of education), and Keith Robichaud. According to the complaint, on May 21, 2004, the plaintiff was a student enrolled at King Phillip Middle School (the school) in West Hartford, Connecticut. At this time, the plaintiff was enrolled in a class supervised by Robichaud, who was a teacher employed by West Hartford. Under Robichaud's direction, the students in this class were ascending a staircase in the school. This staircase had a glass divider separating one run of the stairs from the other, as well as the upper landing from the stairs. While ascending the stairs, another student pushed the plaintiff, causing the plaintiff's leg to break through the glass divider. This incident caused serious injuries to the plaintiff.
In count one of the complaint, the plaintiff alleges that West Hartford was negligent in designing, building and maintaining the stairwell in the school with a breakable glass pane, with no adequate railing or protective equipment to prevent such an injury. In counts two and three of the complaint, the plaintiff alleges that building and maintaining the staircase with a glass divider constituted a nuisance by West Hartford and by the board of education. In count four, the plaintiff alleges that Robichaud, the teacher's aide who was present for the accident, was negligent in failing to prevent the injury to the plaintiff. Finally, count five alleges that the town of West Hartford must assume Robichaud's liability.
III DISCUSSION A Summary Judgment
"In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time . . . These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action. The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge." Practice Book § 17-44.
"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." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
B Negligence
Counts one and four of the complaint allege negligence against West Hartford in a premises liability theory and negligence against Keith Robichaud for failing to prevent this accident. The defendants move for summary judgment on theses counts on two grounds. First, the defendants claim that the duty to maintain the school property was that of the board of education, not the municipality. Second, the defendants claim that the governmental immunity bars liability because the actions and omissions of both West Hartford and Robichaud were discretionary in nature rather than ministerial. The plaintiff first responds that West Hartford built and designed the school, even if it did not maintain it, and furthermore that West Hartford may have voluntarily undertaken a duty to maintain. The plaintiff then responds that governmental immunity should not apply because such immunity does not apply because the actions and omissions here were ministerial, not discretionary, and because this situation implicates the identifiable victim-imminent harm exception to governmental immunity.
The court need not determine in this count whether the municipality owed a duty to maintain the school or whether that duty was squarely on the board of education. "The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n." (Internal quotation marks omitted.) Martin v. Westport, 108 Conn.App. 710, 729, 950 A.2d 19 (2008).
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.'" Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006).
"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." (Internal quotation marks omitted.) Id., 318.
Generally, a municipality cannot be held liable for the discretionary actions of its agents and employees. Therefore, in determining whether to apply the governmental immunity to West Hartford, the court must first determine whether having the glass divider at the stairwell was a discretionary or ministerial act.
A ministerial action has a prescribed manner by which the action must be done; there is no discretion whatsoever in the execution of a ministerial task. "If by statute or other rule of law the official's duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance. For example, an official may be sued in a civil action for refusing to recognize a validly cast vote . . . or for releasing from quarantine a dangerous dog before the expiration of the time period required of the official." (Citation omitted.) Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982). If, however, the action constituted an exercise of judgment that one may argue was poor or negligent, then the municipality enjoys immunity. "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." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 106, 931 A.2d 859 (2007).
Here, the plaintiff claims that the decision to have a glass pane divider installed and the decision not to include some sort of safety railing led to the allegedly dangerous condition of the stairwell. This amounts essentially to a premises liability claim. The design of the school, be it for reasons of functionality, aesthetics or cost-saving, is in the discretion of West Hartford, the board of education and its employees and agents. If, for example, there had been a law, building code, or internal directive mandating the use of some other material, the task would likely have been ministerial. As it stands, the affidavit of David Sklarz, Superintendent of Schools of West Hartford, states that there is no policy in place mandating the design, equipping or maintenance of the staircases of the West Hartford schools. See Colon v. City of New Haven, 60 Conn.App. 178, 182, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) (holding task to be discretionary absent some directive or requirement on how to execute task). The plaintiff has provided no evidence showing anything to the contrary; as such, this fact is not in dispute. Therefore, the design of the school is a discretionary act.
As for Robichaud, the alleged breach was a failure to supervise the students adequately. This form of activity does not involve conduct according to a prescribed manner, but rather involves the exercise of discretion. "The word 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). This is further evidenced by the affidavit submitted by David Sklarz, Superintendent of Schools of West Hartford, which indicates that there were no policies in place mandating the method of supervision. (Defendants' Exhibit I.) The plaintiff has not submitted any evidence to the contrary. Therefore, the supervision of students is a discretionary, rather than ministerial, act.
The plaintiff argues that, even if these were discretionary acts, the court should apply the identifiable victim-imminent harm exception to municipal immunity. "The imminent harm exception to discretionary act immunity applies 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 . . . 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 329, 907 A.2d 1188 (2006). In applying this narrow exception to discretionary immunity, our Supreme Court has stressed the importance of the requirement that the harm be imminent. See Evon v. Andrews, supra, 211 Conn. 508 (holding imminence requirement not satisfied by harm that implicates "a wide range of factors that can occur, if at all, at some unspecified time in the future").
The plaintiff correctly argues that our Supreme Court has recognized schoolchildren who are required to be on the premises as an identifiable class for the purpose of this exception. See Burns v. Board of Education, 228 Conn. 640, 649-50, 638 A.2d 1 (1994). In Burns, however, the plaintiff had fallen on a patch of ice while walking from one school building to another; "this 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." Id., 650. Similarly, the Court has called imminent the horseplay that would ensue from unsupervised second-graders passing through one specific hallway during a half-hour period after lunch. See Purzycki v. Fairfield, 244 Conn. 101, 104, 708 A.2d 937 (1997).
In both these cases, the imminent danger was limited both geographically and temporally. The ice in Burns was only an imminent harm during the particular icy period; likewise, the horseplay in Purzycki was only an imminent harm during the half-hour unsupervised period. Here, nothing indicates that the risk of harm to the plaintiff was imminent; the harm here could have happened at anytime since the installation of the glass divider, if at all. Nothing limits the danger to one specific, foreseeable time of day or time of year. This harm, therefore, fails to satisfy the requirement of imminence. Therefore, this situation does not meet the narrow identifiable victim-imminent harm exception to governmental immunity.
Finally, count five of the plaintiff's complaint consists of a series of paragraphs incorporating prior allegations from the other counts of the complaint. The gist of the count is that the plaintiff is suing West Hartford to assume the liability of Robichaud pursuant to General Statutes § 7-465. Since Robichaud is immune from liability, however, there is nothing for West Hartford to indemnify. Therefore, West Hartford cannot be held liable under General Statutes § 7-465.
The plaintiff never mentions this statute in his complaint. The defendants claim that this error is fatal to the pleading; the plaintiff argues that a line of cases has stated that the requirement to plead the statute is directory, not mandatory, and that the defendants cannot attack this pleading defect on summary judgment. The court need not decide such matters in this case since the count may be disposed on other grounds.
Accordingly, the court grants the defendants' motion for summary judgment as to the first count because West Hartford enjoys statutory immunity for negligence based on the discretionary actions or omissions of its agents and because the facts of this case do not satisfy the narrow identifiable victim-imminent harm exception. Because Keith Robichaud enjoys governmental immunity for his discretionary actions at the time in question, the court grants the defendants' motion for summary judgment on count four. Finally, because Robichaud will have no liability for West Hartford to assume, the court grants the defendants' motion for summary judgment on count five.
C Nuisance
In counts two and three of the amended complaint, the plaintiff alleges two counts of nuisance against West Hartford and the board of education; these counts do not allege any different facts. The defendants move for summary judgment on the grounds that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. The defendants argue that the statute of limitations bars the nuisance claims and that the plaintiff cannot satisfy the elements of public nuisance. The plaintiff counters that the nuisance counts were timely filed and that the facts support a nuisance claim.
"[The Supreme Court] has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Petsey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). "Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety." Id., 357.
"Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public . . . [I]f the annoyance is one that is common to the public generally, then it is a public nuisance . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., CT Page 14131 258 Conn. 313, 369, 780 A.2d 98 (2001). "Typical examples of public nuisances are: pollution and obstruction of waterways; air and noise pollution; maintenance of a fire or explosion hazard, or other unsafe premises; maintenance of a house of prostitution; obstruction of safe travel on a public highway; and maintenance of a junkyard or dump." Id.
The alleged nuisance here is the pane of glass installed by the stairwell in a public middle school. The plaintiffs argue that this invades the public right to education. This is a mischaracterization of the public right requirement. "Generally, to prove the existence of a public right, a court looks to whether the alleged condition is one that is common to the public. The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence." (Internal quotation marks omitted.) Kelsey v. Schoolground Three, 49 Conn.Sup. 338, 343, 877 A.2d 963 (2005); see also Couture v. Board of Education, 6 Conn.App. 309, 315, 505 A.2d 432 (1986).
In determining the public right aspect of a public nuisance claim, courts will consider whether this harm could have happened to the public as a whole, rather than to an individual or to a class of the public. For example, the Supreme Court determined that poorly insulated wires that caused severe injury to workers in trees on public land were not public nuisances because "[i]t is not expected that the general public will climb thirty-foot trees in the highway." Higgins v. Connecticut Light Power Co., 129 Conn. 606, 612, 30 A.2d 388 (1943). "[T]he plaintiffs' claim for recovery was based upon their peculiar and particular relation to the defendant and not upon their rights as members of the general public." Id. The Supreme Court distinguished the public nuisance as one that could hurt any member of the public, not just a plaintiff situated in circumstances unique to an individual or subsection of the general public. For example, courts will distinguish between a public right and the right of a business invitee; a business invitee's right to be on the premises does not constitute the exercise of a public right, even if the premises is opened to the public. See Webel v. Yale University, 125 Conn. 515, 524-25, 7 A.2d 215 (1939) ("One who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance").
Here, the injury occurred to the minor plaintiff while in the middle school. The courts have recognized that minors in schools, while exercising their right to a public education, are a unique class, distinguished from the general public. See Burns v. Board of Education, 228 Conn. 640, 645-46, 638 A.2d 1 (1994) (considering children attending school a narrowly defined class); Russo v. Town of Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0154836 (August 20, 1998, D'Andrea, J.) ( 23 Conn. L. Rptr. 62) ("[T]he plaintiff must show that the harmful condition had a tendency to create danger upon members of the general public, not just members of the public school system"). The danger, if any, posed by a glass divider on a stairwell in a middle school is only to those students, faculty, and staff who have access to the school.
Because the plaintiff's nuisance claims do not involve interference with the enjoyment of a public right, the court grants the defendants' motion for summary judgment on counts two and three.
IV CONCLUSION
For the above-stated reasons, the court enters the following orders. The court grants the defendants' motion for summary judgment as to all counts of the complaint because there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law. For counts one and four, the defendants enjoy discretionary governmental immunity, and the facts do not satisfy the identifiable victim-imminent harm exception. For count five, because Robichaud cannot be liable for negligence, there is no vicarious liability for the town of West Hartford through General Statutes § 7-465. Finally, for counts two and three, the alleged nuisance does not interfere with a right enjoyed by the general public; as such, it is not a public nuisance.