Summary
In Kelly v. Deegan, 111 Ala. 152, 20 So. 378, we specifically held that an interest in a remainder is not subject to division over the objection of one tenant.
Summary of this case from Bernhard v. BernhardOpinion
No. NNH CV 09-5031405
October 5, 2011
MOTION FOR SUMMARY JUDGMENT #130
FACTS
On August 24, 2009, William Deegan, the plaintiff, filed a complaint against Joseph Kelly, the town of Cheshire (the town) and the Cheshire Board of Education (the board) alleging that as a result of their negligence, he sustained injuries. The complaint alleges the following. On April 8, 2009, at or about 2:15 p.m., the plaintiff, a student at Cheshire High School, was walking in the library hallway at his school when he sustained injuries as a result of an "accidental physical contact with" defendant Joseph Kelly, a fellow student at the school. Such contact with defendant Kelly caused the plaintiff to "strike the adjacent wall and fall to the ground" which caused various injuries. The incident came about as a result of several students having taken and hidden defendant Kelly's backpack in the girls' bathroom as a prank in violation of school rules. Such inappropriate behavior and horseplay continued in an unsupervised environment. Defendant Kelly, in an attempt to locate his missing backpack, bumped into or otherwise made contact with the plaintiff, causing him to fall and sustain injuries.
The first count sounds in a negligence claim against defendant Kelly, which is not at issue on this motion for summary judgment. The second count, which is a negligence claim against the town and the board is brought pursuant to General Statutes § 52-557n. The plaintiff alleges that because the students were in the process of passing through the school's halls and corridors or were in transition to athletic or other after school activities at the time of the incident, the defendants, through their employees, were responsible for the safety and well-being of students at the school.
On May 2, 2011, the town and the board moved for summary judgment on the grounds of governmental immunity. The motion is supported by a memorandum of law and exhibits. On June 6, 2011, the plaintiff filed his opposition to the motion for summary judgment, accompanied by a memorandum of law and exhibits. In turn, the defendants filed a reply memorandum of law on June 20, 2011. The matter was heard at short calendar on June 21, 2011, at which time the plaintiff conceded that the motion for summary judgment can be granted in favor of the town.
DISCUSSION
"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." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553, 985 A.2d 1042 (2010). "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 . . . Once the moving party has met its burden . . . 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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
The board argues that it is entitled to summary judgment on the ground of governmental immunity because there is no genuine issue of material fact as to whether the alleged acts and/or omissions complained of involved discretionary duties, and also that no exceptions to governmental immunity are applicable in the present case. In opposition to the summary judgment, the plaintiff argues that there are issues of fact as to whether the board's duties were discretionary or ministerial, and also whether the plaintiff was an identifiable person or a member of a class of persons subject to imminent harm. Therefore, he argues that the board is not entitled to summary judgment. In the reply memorandum of law, the board argues again that the plaintiff's negligence claim against it is barred by governmental immunity, and no exception to such immunity is applicable.
"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; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998). General Statutes § 52-557n(a)(2) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) 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." "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.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368 (2011).
"[A]lthough the general rule is that a determination as to whether the actions or omissions of a municipality are discretionary or ministerial is a question of fact for the jury, there are cases where it is apparent from the complaint." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 97 n. 5, 931 A.2d 859 (2007). "Determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions." Violano v. Fernandez, 280 Conn. 310, 322, 907 A.2d 1188 (2006). "Absent evidence of . . . a policy or directive, [the Supreme Court concluded] that the defendants, in determining whether to supervise, inspect and maintain . . . were engaged in duties that inherently required the exercise of judgment." Martel v. Metropolitan District Commission, 275 Conn. 38, 50, 881 A.2d 194 (2005).
"A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: 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.) Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009).
"The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals . . . Thus far, the only identifiable class of foreseeable victims that [the Supreme Court has] recognized for these purposes is that of schoolchildren attending public schools during school hours." (Citations omitted; emphasis added; internal quotation marks omitted.) Cotto v. Board of Education, supra, 294 Conn. 274. To invoke this exception, a plaintiff must demonstrate: "(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.) Coe v. Board of Education, 301 Conn. 112, 118, 19 A.3d 640 (2011).
"For the harm to be deemed imminent, the potential for harm must be sufficiently immediate. In fact, the criteria of identifiable person and imminent harm must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." (Internal quotation marks omitted.) Cotto v. Board of Education, supra, 294 Conn. 276.
In the present case, the plaintiff alleges that the board, acting through various agents, servants and/or employees, was negligent in one or more of the following ways: (a) it failed to supervise and make reasonable and proper use of their powers of observation regarding student activities; (b) it failed to maintain a safe environment within hallways and corridors during periods of student passing and dismissal; (c) it failed to monitor the hallways and corridors under circumstances where they knew or should have known it was unreasonable not to do so; (d) it failed to intervene in a timely manner so as to prevent the risk of injury associated with horseplay that was then and there occurring; (e) it permitted students to disrupt the educational process within the school; (f) it failed to create and preserve the conditions essential to the orderly operation of the school; (g) it failed to promote orderly conduct and behavior; and (h) it failed to ensure that all pupils in the public school were annually informed of the board's policies and the board approved regulations governing student conduct and behavior.
In the complaint, the plaintiff does not allege that the defendant board or any of its employees at the school failed to perform in a prescribed manner mandated by a policy or directive at the time of the incident. The plaintiff, however, attached a deposition transcript of Richard Sansoucy, who is the school's assistant principal. When asked if there was any writing that describes what the hall monitors are supposed to be doing in "the immediate after school time frame," he testified that "there are procedures in place but they are not written." Additionally, he testified that he discovered that there are no job descriptions setting forth their expectations, duties or responsibilities of the hall monitors. He testified further that a regular school day ends at 2:00 p.m., and that the board provides monitoring of students immediately before and after school days. In particular, he explained that there are four hall monitors on duty from the close of school at 2:00 p.m. until 3:00 p.m. When asked about his understanding as to the teachers' and administrators' monitoring of the students, he testified that "[t]he expectation is that we will all monitor student behavior until the halls clear out, within a few minutes of school ending. The buses all leave the school at ten past two. Students not involved with after-school activities also leave quickly after school. So the expectation is that we will all supervise while students are exiting the building."
Therefore, the plaintiff argues that there was a policy or procedure regarding the supervision of hallways at the time the incident at issue occurred. He argues further that because the defendant failed to perform in a prescribed manner directed by such policy or procedure, it was negligent in performing its ministerial duty, and as a result, governmental immunity is inapplicable. Additionally, the plaintiff argues that his failure to allege that the defendant failed to perform a ministerial duty was because he was not aware of the existence of any policy or procedure regarding after school supervision by the defendant at the time. He contends, however, through deposition, he became aware of the existence of such and will amend the complaint accordingly.
The defendant argues that there is no prescribed way in which hall monitors, teachers and/or administrators are to supervise the students in hallways after school. Therefore, it maintains that the duty to supervise is a discretionary one that requires an exercise of judgment, and that this argument is supported by the assistant principal's deposition testimony.
"A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 378, 374 A.2d 1051 (1977). In the present case, whether the alleged acts or omissions by the board involved discretionary or ministerial duties is a material fact because the determination of nature of duties will make a difference in the result of the case. As the movant for summary judgment, the defendant has provided evidence and/or proof to show that there is no genuine issue as to whether its employees were engaged in discretionary duties, and that it is entitled to judgment as a matter of law. In response, the plaintiff, as the opposing party, presented evidence demonstrating that there is a genuine issue of material fact as to whether there was a procedure, which mandated the board and its employees to act in a prescribed manner, which would mean that the defendant's employees were engaged in ministerial duties. As a result, the plaintiff has met his burden in demonstrating the existence of a disputed factual issue.
CONCLUSION
For the foregoing reasons, the court denies the defendant's motion for summary judgment.