Opinion
HHDCV146051747S
11-10-2015
Elbiona Best PPA Elbert Best v. City of Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. Susan Peck, J.
The plaintiff, Elbiona Best PPA Elbert Best, alleges negligence against the defendants; City of Hartford; City of Hartford Board of Education (Board); Superintendent of Hartford schools Christine Kishimoto; and Principal of the Dr. Ramon E. Betances Elementary School (School) Immacula Didier, arising out of an injury suffered by her minor child. On June 19, 2015, the plaintiff filed her second amended complaint, the operative complaint, in which she alleges the following facts. On September 5, 2013, her child fell off of playground equipment during recess at the School, suffering severe and permanent injuries to the right arm. The negligence of the individual defendants, and by extension City of Hartford and the Board, caused the minor plaintiff's injuries in that such defendants failed to supervise students at recess, failed to train School employees, and failed to provide a safe learning environment for students such as the minor plaintiff. The plaintiff alleges that the defendants Kishimoto and Didier are employees of the defendant City of Hartford, not the defendant Board.
The plaintiff filed her second amended complaint well after the defendants had filed their motion for summary judgment. However, the defendants did not object within fifteen days of the plaintiff's filing, and therefore, in accordance with Practice Book § 10-60(a)(3), the second amended complaint is the operative complaint. Because the defendants failed to amend any of their pleadings related to this motion, the court regards the defendants' motion for summary judgment as applicable to the second amended complaint in so far as possible. See Practice Book § 10-61.
In count one, the plaintiff alleges that the defendants City of Hartford, Kishimoto, and Didier are liable under General Statutes § 52-557n(a)(1)(A), and that Hartford is required to indemnify Kishimoto and Didier under General Statutes § 7-65. In count two, the plaintiff alleges that the defendant City of Hartford must indemnify the defendants Kishimoto and Didier, as employees of the defendant City of Hartford, under General Statutes § 7-101a. In the third count, the plaintiff alleges that the Board must indemnify the defendants Kishimoto and Didier, as employees of the defendant City of Hartford, under General Statutes § § 7-101a and 10-235.
General Statutes § 7-465 was amended by No. 15-85, § 1, of the Public Acts of 2015, but such amendments are not relevant to the present memorandum.
The defendants filed their motion for summary judgment as to the entire complaint and memorandum in support of the motion on May 15, 2015. The plaintiff filed her objection to the motion and memorandum in opposition on June 19, 2015, to which the defendants replied on July 10, 2015. The matter was heard at short calendar on July 13, 2015. The plaintiff filed a further memorandum in opposition to the motion after oral argument, on July 20, 2015.
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014); Practice Book § 17-49. " [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).
The defendants argue that first count is barred by the doctrine of governmental immunity for discretionary acts, codified at General Statutes § 52-557n. The plaintiff counters that either the duties at issue were ministerial in nature, and thus not subject to governmental immunity, or that the suit falls into the identifiable person/imminent harm exception to that doctrine. The defendants further argue that an action seeking indemnification by the defendant City of Hartford under General Statutes § 7-465 is inappropriate because the defendants Kishimoto and Didier are not employees of the City of Hartford, or because a claim under § 7-465 must be pleaded separately from the underlying negligence claim. Likewise, the defendants argue that the statutes referenced in counts two and three, § § 7-101a and 10-235, either do not give rise to independent claims or are inappropriately stated in these circumstances because the employer of Kishmoto and Didier is the Board. The plaintiff resists these arguments, asserting that she has referenced the correct indemnification statutes, and that her claims are appropriately pleaded.
FIRST COUNT
General Statutes § 52-557n codifies the circumstances under which a municipality may be held liable, but also provides municipal immunity from liability where " damages to person or property [are] caused by . . . negligent acts or omissions [of its agents or employees] which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." General Statutes § 52-557n(a)(2)(B). " [Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties . . . [Section] 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions [of municipal officers] which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Edgerton v. Clinton, 311 Conn. 217, 229, 86 A.3d 437 (2014). " The issue of governmental immunity is simply a question of the existence of a duty of care, and [our Supreme Court] has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006).
Section 52-557n may provide immunity for the negligence of municipal agents in the performance of governmental acts requiring the use of independent judgment and discretion, but not for those acts which are purely ministerial in nature. " Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental [discretionary] acts." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48, 881 A.2d 194 (2005). Discretionary acts always involve " the exercise of judgment." (Internal quotation marks omitted.) Id., 49. " 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.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003). Generally, a duty is ministerial if it is " required by any . . . charter provision, ordinance, regulation, rule, policy, or any other directive . . . [and the manner of performance is] prescribed . . ." Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006). Supervision of school children is generally considered a discretionary duty. Heigl v. Board of Education of the Town of New Canaan, 218 Conn. 1, 8, 587 A.2d 423 (1991); Doe v. Board of Education of the City of New Haven, 76 Conn.App. 296, 300, 819 A.2d 289 (2003).
While the plaintiff argues that the duty at issue, supervision of children on the playground, is ministerial in nature, there is no evidence that mode or manner of such supervision was guided by a specific policy or directive. As noted previously, generally the supervision of children is a discretionary duty in that it requires the exercise of judgment. While the plaintiff does allege in her complaint that the duty was ministerial, an attempt to plead it as fact does not alter its status as a legal conclusion. See Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). Thus, duty at issue was discretionary in nature, meaning that the municipal defendants are shielded by governmental immunity unless an exception to that doctrine applies in these circumstances.
There are three exceptions that may abrogate municipal immunity for negligence in discretionary acts. Each exception " 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." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 319. The exception pertinent to the present case is the identifiable person/imminent harm exception under which " 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.) Id., 320. The exception has three elements: " (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 . . . All three must be proven in order for the exception to apply." (Citations omitted; internal quotation marks omitted.) Edgerton v. Clinton, supra, 311 Conn. 230-31. " The identifiable person subject to imminent harm exception . . . is a narrow one . . ." Merritt v. Bethel Police Dept., 120 Conn.App. 806, 815, 993 A.2d 1006 (2010).
School children are considered members of an identifiable class of beneficiaries as a matter of law for the purposes of the identifiable person/imminent harm exception. Haynes v. Middletown, 314 Conn. 303, 325 n.18, 101 A.3d 249 (2014). (" [W]hen a condition in a school creates a risk of imminent harm, all students are deemed to be identifiable persons subject to the risk . . ."). There is no dispute in the present case that the plaintiff was a student at the defendant School at the time of injury, and accordingly, is an identifiable victim.
It is generally agreed that the risk of harm is imminent under the exception when it creates " a situation in which the public official's duty to act is . . . clear and unequivocal . . ." (Internal quotation marks omitted.) Haynes v. Middletown, supra, 314 Conn. 318. The Supreme Court, however, recently clarified and refocused the standard governing the imminence of harm. Id., 322-23. In reaching its conclusion, the Haynes court partially overruled two cases, Burns v. Board of Education of the City of Stamford, 228 Conn. 640, 638 A.2d 1 (1994), overruled in part by, 314 Conn. 303, 101 A.3d 249 (2014), and Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), overruled in part by, 314 Conn. 303, 101 A.3d 249 (2014), as too narrowly focused on the temporal and geographical limitation of the risk of harm.
Those cases, the Haynes court reasoned, had misinterpreted Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989), in which the court declined to find the risk of harm imminent because such harm " could have occurred at any future time or not at all." Citing Evon, the Burns court found risk of a slip-and-fall on ice in a school parking lot to be imminent because the risk was temporally and geographically limited to " the duration of the temporary icy condition in this particularly treacherous area of the campus, " and because the potential for harm was " significant and foreseeable." (Internal quotation marks omitted.) Burns v. Board of Education of the City of Stamford, supra, 228 Conn. 650. Echoing Burns and again citing Evon, the court in Purzycki found the risk of harm posed by unsupervised elementary-school student use of a hallway to be imminent because the " case involve[d] a limited time period and limited geographical area . . . [and] the risk of harm was significant and foreseeable . . ." (Footnotes omitted.) Purzycki v. Fairfield, supra, 244 Conn. 110.
The Haynes court concluded " that this court in Burns incorrectly held that a foreseeable harm may be deemed imminent if the condition that created the risk of harm was only temporary and the risk was significant and foreseeable. Our statement in Evon . . . that a harm is not imminent if it 'could have occurred at any future time or not at all' was not focused on the duration of the alleged dangerous condition, but on the magnitude of the risk that the condition created. Accordingly, the 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. We therefore overrule Burns and Purzycki to the extent that they adopted a different standard." (Emphasis in original.) Haynes v. Middletown, supra, 314 Conn. 322-23.
Factually, Haynes involved a student who was injured by the jagged edge of a broken locker during horseplay with other students in a school's locker room. Id., 325. There was evidence that school officials knew that horseplay in the locker room was an ongoing problem, and that officials could have been aware that the locker had been broken for some time. Id. Applying the newly articulated standard to this evidence, the court was " unable to conclude [as the Appellate Court did] that no reasonable juror could find that it was apparent to school officials that, in combination, the ongoing problem of horseplay in the locker room and the presence of the broken locker were so likely to cause an injury to a student that the officials had a clear and unequivocal duty to act immediately to prevent the harm either by supervising the students while they were in the locker room to prevent horseplay or by fixing the broken locker." Id. The court remanded the case for a new trial so that a jury could consider the issue of governmental immunity, and specifically, whether the identifiable victim/imminent harm exception applied. Id., 326-27.
The apparentness prong requires that a government agent be aware that his or her acts or omissions would subject an identifiable individual to imminent harm. The Supreme Court has recently explained that " [i]n order to meet the apparentness requirement, the plaintiff must show that the circumstances would have made the government agent aware that his or her acts or omissions would likely have subjected the victim to imminent harm . . . This is an objective test pursuant to which we consider the information available to the government agent at the time of her discretionary act or omission . . . We do not consider what the government agent could have discovered after engaging in additional inquiry." (Citations omitted; footnotes omitted.) Edgerton v. Clinton, supra, 311 Conn. 231.
In the present case, an issue of fact exists as to the imminence prong of the analysis, specifically, the level and manner of supervision that was taking place on the playground at the time of the plaintiff's injury. The defendants point to two pieces of evidence that they argue militate against imminence. The first is the plaintiff's interrogatory response stating that several adults witnessed the plaintiff's injury. The other is the deposition testimony of Laura Giannitti, the plaintiff's teacher, who states that she was supervising the plaintiff's class on the playground at the time of the injury. The defendants argue that the presence of witnesses and the testimony of Ms. Giannitti establish that the plaintiff was adequately supervised at the time of her injury, and thus there could have been no imminent risk of harm for which the defendants are responsible.
While this evidence establishes that there was supervision, it says nothing whatsoever about the adequacy of the supervision. Ms. Giannitti remembered very little detail about her supervision of the children at the time of the incident, and stated that she did not, in fact, actually see the plaintiff's fall. Further, as to the plaintiff's interrogatory response, the fact that there may have been other adult witnesses says nothing of their involvement in the incident. It cannot be determined whether they were supervising the children, or were perhaps simply bystanders within view of the playground. The inadequacy of supervision was an issue leading to remand on the issue of imminence in Haynes . See Haynes v. Middletown, supra, 314 Conn. 322-23. " [T]he defendants are not necessarily entitled to summary judgment simply because they attempted to address the threat" without adducing evidence regarding the adequacy of their remedy. Palmieri v. Town of Southington Board of Education, Superior Court, judicial district of New Britain, Docket No. CV-11-6013156-S (July 6, 2015, Abrams, J.) . Therefore, the defendants are not entitled to summary judgment on the ground that the underlying negligence action is barred by governmental immunity, as there are issues of fact regarding the identifiable person/imminent harm exception to that doctrine.
Additionally in first count, the defendants allege that the defendant City of Hartford must indemnify the defendants Kishimoto and Didier pursuant to General Statutes § 7-465. Section 7-465 provides, in pertinent part: " 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 . . ." " A claim for indemnification against a municipality under § 7-465 is entirely dependent upon establishing liability against a municipal employee." Bonington v. Westport, 297 Conn. 297, 316, 999 A.2d 700 (2010); Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).
" 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; emphasis altered; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); see Mazzo v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV-12-6031781-S (March 13, 2015, Kamp, J.); Hadden v. Southern New England Telephone Co., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Nos. X06-CV-03-0183016-S, X06-CV-03-0183017-S (August 18, 2004, Alander, J.).
In the present case, the defendants argue that the defendants Kishimoto and Didier are not employees of the defendant City of Hartford, but rather the defendant Board. As such, the defendants argue, § 7-465, which applies only to municipal employees, is not the appropriate indemnification statute in this case. They fail, however, to adduce any evidence to counter the plaintiff's specific allegations in her complaint that the defendants Kishimoto and Didier are employed by the defendant City of Hartford, and not the defendant Board. Accordingly, the defendants have failed to meet their evidentiary burden, and are not entitled to summary judgment on this ground.
The defendants further argue that the summary judgment must be granted on the plaintiff's claim under § 7-465 because such claim must be pleaded as an individual count under which liability is dependent on a separate finding of negligence by municipal employees in another count. The defendants are correct in arguing that, based on Wu, Mazzo, and Hadden, for example, that the plaintiff has improperly pleaded indemnification and negligence in the same count when the two claims should have been separated. Effectively, the defendants argue that summary judgment should be granted as to the indemnity portion of count because it is procedurally improper.
In Shelton Yacht & Cabana Club, Inc. v. Voccola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-0075380-S (February 2, 2007, Stevens, J.), the defendants argued, similarly to the present case, that " summary judgment [should be granted] because the plaintiffs have improperly pleaded multiple claims in individual counts of the complaint." The court rejected this argument, stating: " Although the rules of pleading are important and should be followed, there is no authority for the defendants' argument. The legal sufficiency of a cause of action is not defeated merely because it is joined with another claim in a single count. The appropriate way to address this procedural problem is through a request to revise, not a dispositive motion such as a motion for summary judgment. See generally, Rowe v. Godou, 209 Conn 273, 279, 550 A.2d 1073 (1988) (as 'there is nothing to prevent . . . two possible causes of action from being joined in the same [count] complaint . . . the proper way to cure any confusion [regarding the complaint] is to file a motion to revise, not a motion to strike')."
The logic of Shelton Yacht & Cabana Club, Inc. applies with equal force in the present instance. The impropriety of the plaintiff's indemnity claim under General Statutes § 7-465 does not entitle the defendants to judgment as a matter of law. Indeed, the defendants, prior to this dispositive motion, could have sought to clarify and correct any confusion or error in the plaintiff's pleading by other means. Accordingly, the defendants are not entitled to summary judgment on the first count.
COUNT TWO
In count two, the plaintiff incorporates the allegations of negligence in first count and alleges that the defendant City of Hartford must indemnify the defendants Kishimoto and Didier from losses under the first count pursuant to General Statutes § 7-101a. Section 7-101a(a) provides, in pertinent part, that: " Each municipality shall protect and save harmless . . . any municipal employee, of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence . . . while acting in the discharge of his duties." Much the same as General Statutes § 7-465, a municipality's liability under § 7-101a depends on a separate finding of liability for negligence on the part of an employee of the defendant municipality. See, e.g., De Los Reyes v. Yllanes, Superior Court, judicial district of Danbury, Docket No. CV-14-6014717-S (February 27, 2015, Ozalis, J.). Indeed, the summary judgment analysis of a claim under § 7-101a in circumstances analogous to the present case is nearly identical to that of a claim under § 7-465. See, e.g., Id.; Texidor v. Thibedeau, Superior Court, judicial district of Hartford, Docket No. CV-13-6040518-S (September 10, 2014, Peck, J.); Thompson v. Town of Groton Board of Education, Superior Court, judicial district of New London, Docket No. CV-07-5007113-S (February 16, 2012, Martin, J.).
The defendants make arguments in support of their motion as to count two that are identical to their arguments as to first count. Namely, the defendants argue that § 7-101a must be pleaded in a separate count, and that the defendants Kishimoto and Didier are not employees of the defendant City of Hartford, but rather the defendant Board. Because the analysis of this issue as to count two is essentially the same as first count, the defendants' arguments fail for the same reasons Accordingly, the defendants have failed to demonstrate their entitlement to summary judgment on second count.
THIRD COUNT
In third count, the plaintiff alleges that the defendant Board is required to indemnify the defendants Kishimoto and Didier under General Statutes § § 7-101a and 10-235. General Statutes § 10-235(a) provides that: " Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff . . . shall protect and save harmless any member of such boards, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence . . . provided such teacher, member or employee, at the time of the acts resulting in such injury, damage or destruction, was acting in the discharge of his or her duties or within the scope of employment or under the direction of such board of education . . ." As the statute makes clear, " General Statutes § 10-235 is the proper statute for indemnification against a school board on behalf of their employees ." (Emphasis added.) Williams v. City of Bridgeport Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV-05-4009664-S (October 12, 2007, Maiocco, J.T.R.); see Pastor v. Bridgeport, 27 Conn.Supp. 337, 339-40, 238 A.2d 43 (1967) (distinguishing General Statutes § § 10-235 and 7-465 based on employer of defendant employee, either school board or municipality, respectively); see also Gorman v. New Milford, Superior Court, judicial district of Danbury, Docket No. CV-08-5004455-S (March 17, 2010, Marano, J.) (citing Pastor v. Bridgeport, supra, 27 Conn.Supp. 337). Additionally, as discussed above, by its own terms " [s]ection 7-101a requires that " municipalities indemnify municipal employees for negligent actions occurring in the scope of employment." (Emphasis added.) Texidor v. Thibedeau, supra, Superior Court, Docket No CV-13-6040518-S .
The plaintiff in the present case has expressly alleged that the defendants Kishimoto and Didier are employees of the defendant City of Hartford, not the defendant Board. Again, the defendants have offered no evidence that this is not the case. Section 10-235 requires boards of education to indemnify their own employees, and not municipal employees. In any event, although § 7-101a requires municipalities to indemnify their own employees, it does not bind boards of education. Accordingly, the defendants have met their burden of demonstrating entitlement to judgment to summary judgment on third count.
CONCLUSION
For all the foregoing reasons, the defendants' motion for summary judgment as to counts one and two is hereby denied and, as to third count, is hereby granted.