Opinion
No. CV05-4007851 S
February 7, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #112
On February 24, 2005, the minor Alex Galindo through his mother, Yvette Delgado, filed a complaint in negligence against the defendants, Dr. Reginald Mayo, superintendent of schools in New Haven, Dr. Belinda Carberry, principal of the Jackie Robinson School, the city of New Haven and the New Haven Board of Education. The plaintiffs allege that Galindo was struck by a fellow student on March 20, 2003 during a physical education class at the school, and again struck by other students on school grounds on April 17, 2003 and June 18, 2003. They further allege that the defendants were negligent in that they failed to properly supervise the students of the school, failed to set guidelines to ensure a safe educational environment, allowed students to strike Galindo, and failed to take action in response to the plaintiffs' complaints of prior incidents.
The court notes that the correct procedure to bring a claim on behalf of a minor requires the summons and complaint to include the name of the minor followed by the parent's name. The pleadings in this case list the plaintiff's as "Delgado, Yvette, PPA Galindo, Alex O." and "Delgado, Yvette." "PPA" is an acronym for "per proxima amici," meaning "by or through the next friend," and is employed when an adult brings suit on behalf of a minor, who was unable to maintain an action on his own behalf at common law. See Ryan v. Depamphilis, Superior Court, judicial district of Hartford, Docket No. CV 04 4002606 (April 28, 2005, Hale, J.) ( 39 Conn. L. Rptr. 293, 294). In Ryan, the summons listed "[the minor child] PPA" without a referent for the "PPA"; furthermore, the complaint had the names listed correctly in several counts but others, like in the present case, read "[the parent] PPA [the minor child]," a result the Ryan court recognized as nonsensical since it indicates that the child is bringing suit on behalf of the adult. The court in Ryan also recognized, however, that "a modern trend which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded and do substantial justice between the parties." Id., quoting Venedetto v. Wamat, 79 Conn.App. 139, 148, 829 A.2d 901 (2003). The present plaintiffs intended that Delgado bring suit as next friend of Galindo, since the complaint states "Yvette Delgado . . . brings this action in her capacity as parent and next of friend on behalf of said minor plaintiff." Since their intent is patent, and since the defendants have not objected on these grounds, this court determines that the two plaintiffs in this case are Alex Galindo, PPA Yvette Delgado and Yvette Delgado individually.
In response to the defendants' request to revise, the plaintiffs filed a revised complaint on July 8, 2006. On September 15, 2006, the defendants filed a motion to strike the revised complaint on the ground that they are shielded from liability by governmental immunity. In support, they submitted a memorandum of law. On October 11, 2006, the plaintiffs filed a memorandum in opposition.
The defendants objected to this revised complaint on June 15, 2006, which objection was overruled by the court, Skolnick, J., on August 29, 2006.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court must] take the facts to be those alleged in the complaint . . . and . . . 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." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006). If it is apparent from the complaint that the government actor was engaging in a discretionary function, it is appropriate to raise the defense of qualified immunity in a motion to strike. Violano v. Fernandez, CT Page 2526 88 Conn.App. 1, 10 n. 9, 868 A.2d 69 (2005), aff'd, 280 Conn. 310, 907 A.2d 1118 (2006).
The defendants move to strike the plaintiff's revised complaint on the grounds that, as to counts one and two, the plaintiffs have not referenced a statute that would abrogate governmental immunity, and as to counts three and four, the plaintiffs have alleged discretionary acts, for which the defendants are immune from liability. The city and board argue that municipalities are generally immune from liability for negligence unless the legislature has specifically abrogated this immunity by statute. Since the plaintiffs have not alleged that any such statute exists, the city and board claim, they are entitled to governmental immunity. The superintendent and principal argue that they are subject to qualified immunity because the complained-of acts are discretionary. They argue that no exceptions to the doctrine of immunity apply, nor have the plaintiffs alleged any in their complaint; specifically, they claim that Galindo does not fall within the purview of the identifiable person subject to imminent harm exception.
The plaintiffs counter that statutes are not the only means by which governmental immunity may be abrogated. While they concede that the conduct in question — supervision of schoolchildren — was discretionary, they argue that both subdivisions of the state and their employees and agents may be held liable for the negligent acts of employees, despite their governmental immunity, if the conduct falls under one of the exceptions to governmental immunity.
"[A] municipality itself was generally immune from liability for its tortious acts at common law . . . [The Connecticut Supreme Court has] recognized, however, that governmental immunity may be abrogated by statute . . . Thus, the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). General Statutes § 52-557n provides in relevant part: "(a)(1) Except 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 . . . (2) 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 . . ." General Statutes § 52-557n(a).
In Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), the court held that the plaintiffs failure to identify a statute specifically abrogating governmental immunity in his pleadings was fatal to his cause of action against the city, and granted the defendant's motion to strike. Id., 769-70. The Appellate Court later modified this by holding that the failure to plead such a statute in the complaint was not fatal as long as the plaintiff set forth the statute in his or her brief and at oral argument. See Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003) ("although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings"). The present plaintiffs have not alleged in their complaint nor suggested in their memorandum in opposition to the present motion any statutes that would serve to abrogate the governmental immunity otherwise afforded municipalities. Instead, they suggest that there are other avenues by which a municipality may be sued. The cases they rely on, however, do not support their position; in those where an action for negligence was permitted against a municipality, the plaintiff had alleged a specific statute abrogating immunity.
The Supreme Court on appeal expressly declined to consider this determination; Spears v. Garcia, supra, 263 Conn. 27 n. 4, and it has not been overturned.
In Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006), the plaintiff had alleged an abrogation of governmental immunity pursuant to § 52-557n(a)(1)(B), providing that a municipality may be sued for negligence committed in their proprietary capacity. Id., 850-51. In Elliot v. Waterbury, 245 Conn. 385, 715 A.2d 27, while holding that § 52-557n(b)(6) did not create a heightened standard of causation for negligence, the court nevertheless upheld the trial court's summary judgment for the defendant on the plaintiff's negligence claim since it was barred by governmental immunity. Finally, in Purzycki v. Town of Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), the plaintiff had dropped his claims against the city before trial; the Supreme Court's reversal of the trial court's decision to set aside the verdict for the plaintiff was only applicable to the school officials and the board of education.
Nevertheless, the present plaintiffs did raise § 52-557n at oral argument and thus, under Spears v. Garcia, supra, 66 Conn.App. 676, have sufficiently asserted it as the basis for the city's liability. Section 52-557n expressly exempts the city from liability for discretionary acts committed by its employees or agents, and the plaintiffs have conceded that the alleged negligent acts were discretionary in nature; however, there appears to be some confusion regarding the operation of § 52-557n(a)(2)(B). Our Supreme Court, in Pane v. Danbury, 267 Conn. 669, 677 n. 9, 841 A.2d 684 (2004), noted that "there is an [identifiable person/imminent harm] exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself . . . That exception does not apply in this case because the claims against [the defendant employee] have been withdrawn." This construction of the statute is supported by the weight of Superior Court authority prior to August 2006: "[T]he common-law imminent harm exception to qualified immunity for municipal employees is inapplicable to the direct liability imposed against a municipality under § 52-557n." Gaudino v. East Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0081310 (September 10, 2003, Sferazza, J.) ( 35 Conn. L. Rptr. 448, 450), aff'd, 87 Conn.App. 353, 865 A.2d 470 (2005) (additionally noting that "[t]he proper means to expose a municipality to liability in cases alleging imminent harm to identifiable persons is through the indemnification provisions of [General Statutes] § 7-465"). The Supreme Court, however, recently decided Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006), which suggests that the common-law exceptions to governmental immunity are applicable to the city directly. The plaintiff had sued a police officer for sexual assault, and alleged the city was liable due to the negligence of the police officer's supervisor, who failed to investigate the incident after the plaintiff complained of it to him (but, importantly, who had not been named as a harm exception to governmental immunity applied, and while the court ultimately held that it did not, the fact that the court engaged in such analysis indicates that § 52-557n(a)(2)(13) does not preclude the application of the common-law exceptions to qualified immunity. Curiously, there was no mention of the Supreme Court's holding in Pane v. Danbury, supra, 267 Conn. 677 n. 9, or the prevailing opinion among lower courts to the contrary. As the Superior Court; Rasmus v. Plainville, Superior Court, judicial district of New Britain, Docket No. CV 04 4002902 (October 31, 2006, Shapiro, J.); recognized, however, Doe v. Petersen, supra, 279 Conn. 607, is controlling as the most recent authority on the matter. Therefore, a municipality may be directly liable for the negligence of its employees or agents, even if their acts were discretionary, if one of the common-law exceptions to immunity applies. The next inquiry is whether the board of education is similarly liable.
See also Pavelko v. Cheshire Board of Education, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4001895 (November 15, 2005, Rubinow, J.) ("As a matter of law, the identifiable person-imminent harm exception is inapplicable to the municipality itself as provided by General Statutes § 52-557n. If the complained-of act or omission is discretionary, as acknowledged to have occurred in this case, a municipality such as the Town of Cheshire is thus legislatively shielded from direct liability"); Sanchez v. New Milford, Superior Court, judicial district of New Haven, Docket No. CV 01 0453299 (July 7, 2004, Arnold, J.) ("[The identifiable person/imminent harm] 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"); Rodriguez v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 00 0437974 (June 25, 2004, Licari, J.) ("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]").
At least one Superior Court decision since Doe v. Petersen has continued to cite Pane v. Danbury, supra, 267 Conn. 677 n. 9, for the proposition that the common-law exceptions are inapplicable to the city; see, e.g., Winters v. Windsor, Superior Court, judicial district of Hartford, Docket No. CV 05 4011068 (December 14, 2006, Scholl, J.).
A municipal employee or municipal entity may be held liable even for its discretionary acts "when the alleged conduct involves malice, wantonness or intent to injure . . . when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . [or] 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." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 615-16.
Boards of education have been uniformly held to be "political subdivisions of the state" for the purposes of negligence claims under § 52-557n. See, e.g., Bonamico v. Middletown, Superior Court, judicial district of Middlesex, Docket No. CV 940074041 (June 4, 1999, Gordon, J.) ("While the legislature has defined `political subdivision' in other contexts; see General Statutes § 7-462(b); it has not done so with reference to § 52-557n. Nevertheless, there exists a consensus among the superior courts of this state that for purposes of § 52-557n, boards of education are political subdivisions of the state"). Furthermore, there is no question that the common-law exceptions to immunity apply to boards of education; see Colon v. Board of Education, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). The only remaining issue, then, is whether the plaintiffs have pleaded sufficient facts to overcome the immunity held by the defendants.
The court in Colon noted that "[u]nder the common law, immunity from liability for the performance of discretionary acts is subject to [an] exception 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 . . ." (Internal quotation marks omitted.) Id., 184. Since "statute[s] should not be construed as altering the common law rule, farther than the words of the statute import . . . [and] statutes are not readily interpreted as abrogating common-law rights," and since a board could be held liable at common law for the discretionary acts of its employees if an exception to immunity applied, the court reasoned that § 52-557n did not bar recovery from a board of education where the identifiable person/imminent harm exception applied. (Citation omitted; internal quotation marks omitted.) Id., 183-84.
"[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 . . . [T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . ." (Citations omitted; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998). Notwithstanding this, an employee may still be held liable for negligence if one of three exceptions applies: "[W]hen the alleged conduct involves malice, wantonness or intent to injure . . . when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . [or] 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." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006).
The plaintiffs in the present case argue that the latter "identifiable person/imminent harm" exception is applicable. "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." Doe v. Petersen, supra, 279 Conn. 616. The defendant concedes that Galindo was an "identifiable victim"; therefore, the only issue is whether the harms befalling him were "imminent" and "apparent."
While it has been stated that "[the identifiable person/imminent haul exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state"; (internal quotation marks omitted.) Prescott v. Meriden, 80 Conn.App. 697, 702, 836 A.2d 1248 (2003); the appellate courts have recently expanded the scope of the "imminent harm" aspect of the doctrine in a series of cases beginning with Purzycki v. Fairfield, supra, 244 Conn. 101. Relying on Burns v. Board of Education, supra, 228 Conn. 640, the court in Purzycki, where the plaintiff had been injured by another student who tripped her in a hallway, noted that "the present case involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision." Id., 110. In response to Purzycki, the court in Bonamico v. Middletown, 49 Conn.App. 605, CT Page 2530 713 A.2d 1291 (1998), reversed its initial decision and held that a child injured when another child hit him in the eye with a bean in the hallway between classes was subject to imminent harm. In Colon v. New Haven, supra, 60 Conn.App. 178, the court found the plaintiff schoolchild to be subject to imminent harm when she was injured by a door opened by a teacher because "[t]he danger presented was limited in duration, as it could happen only when students are in the hallway in a dangerous spot. Moreover, the potential for injury from being hit by an opening door is significant." Id., 187.
On the other hand, in Doe v. Board of Education, 76 Conn.App. 296, 303, 819 A.2d 289 (2003), the plaintiff had alleged she was sexually assaulted by another student while in an unsupervised classroom. The court held that "the harm in the present case potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school. Under the facts alleged, therefore, it would not have been apparent to the defendant that its discretionary policy decisions subjected students to imminent harm." Id., 305. Revealingly, however, the court also commented that "[t]he plaintiff does not allege . . . that the defendant or its agents had been put on notice that any such conduct had occurred." Id., 297 n. 2.
Several recent Superior Court decisions indicate that notice to supervisors of previous instances of harassment may give rise to "imminent harm." Most probative is Pavelko v. Town of Cheshire Board of Education, Superior Court, judicial district of New Haven at Meriden, Docket No. CV05 4001895 (November 15, 2005, Rubinow, J.), where the plaintiff was injured by two other students while in the cafeteria at lunchtime. In determining whether "imminent harm" existed, the court stated: "The cafeteria during a lunch break is a specific location of short duration. If, but only if, it is established that the school, through the named defendants, was aware of the propensities for violence by [the assaulting students] and that the supervision in the cafeteria and adjoining hallway was inadequate during this lunch period, the identifiable person-imminent harm exception would apply to the defendants . . ." Id. Although the plaintiff had not thereby proven the applicability of the exception, the court noted that, for the purposes of a motion to strike, "it is clear that the identifiable person-imminent harm exception may well pertain to the circumstances of this case, but that the issues of fact must be resolved by the trier, not as a matter of law . . ." Id.
Similarly, in Saez v. Suarez, Superior Court, judicial district of New Haven, Docket No. CV 00 0443901 (July 15, 2005, Corradino, J.), the plaintiff, who was injured when another student had slammed his hand in the door when the teacher momentarily left the room, had alleged that the defendant teacher "knew or had reason to know that the assailant . . . had a history of harassing and picking on [the plaintiff] . . . It can be inferred that the potential for harm . . . was significant and foreseeable if in fact the teacher knew Sanchez had a history of harassing and picking on Saez. If it is established that the harassment was ongoing, of long duration, and the implication of physical violence especially is proven then there at least is a prima facie case that if these students were left together unattended for however short a time, in their classroom, there was a potential for harm being inflicted on the injured child. This will not be an easy burden to meet but the court does not believe it would be appropriate to grant the motion to strike despite the bare boned allegations of the complaint." Id. Also noteworthy is that, in the face of the defendant's claims that the plaintiff had not alleged that the conduct occurred during school hours, the court reasoned that "[i]t can be inferred that [the plaintiff] was in a public school during the time school was in session" based on the fact that the incident happened in May, when school was still in session, and that the teacher was accused of leaving students unattended.
See also Domejczyk v. New Britain Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 98491816 (March 6, 2002, Shortall, J.) (facts suggesting plaintiff had history of being assaulted by other students and that at certain times he was unsupervised required resolution by a jury and the case was not ripe for summary judgment on governmental immunity grounds); Kendall v. West Haven Department of Education, Superior Court, judicial district of New Haven, Docket No. 398488 (November 17, 2000, Blue, J.) (imminent harm found where a student told his teacher he'd been spit on and racially slurred and mother personally complained, but teacher said she'd take care of it and yet did nothing, and plaintiff was subsequently assaulted and injured).
In the present case, the plaintiffs, in their revised complaint, have alleged that Galindo was injured on three separate occasions while on school grounds, in March, April and June of 2003, and that the defendants failed to take action in spite of previous complaints by the plaintiffs. Construing the facts in the plaintiffs' favor, it can be inferred that the incidents all occurred during school since they occurred on school grounds, during the normal school year. The defendants also had notice of ongoing violence against the plaintiff since it is alleged that there were several prior incidences of harassment that had been complained about to school officials. The plaintiffs have alleged facts sufficient to overcome the defense of governmental immunity through the "identifiable person/imminent harm" exception. Therefore, the defendant's motion to strike is denied in its entirety.