Opinion
No. CV04-0490216
February 10, 2009
MEMORANDUM OF DECISION ON RENEWED MOTION FOR SUMMARY JUDGMENT
The matter before the court is a renewed motion for summary judgment brought by the town. The original action was brought against several defendants. It arises out of an alleged inappropriate sexual relationship that occurred between the minor plaintiff and a teacher's aide. The court granted a previous motion for summary judgment with regard to other counts against the town but denied summary judgment as to the third count. That count alleges the minor plaintiff was assaulted in violation of § 52-71 of the General Statutes at a public library in the town.
In the original complaint the third count was brought pursuant to § 52-557n of the General Statutes. It was alleged that the library "is a public library maintained, controlled and operated by the Town of Clinton." It went on to say children and students of the Town's schools "frequently visit the public library." The library "frequently holds programs and events geared towards children and students in the Town of Clinton." Then this count stated that beginning on around February 2002 and through April 2002, "the defendant, Joanna Diaz, went to the public library in the Town of Clinton with the plaintiff alone on multiple occasions" (Para. 13). Paragraph 14 stated that during these visits, Diaz engaged in conduct including holding the plaintiff's hand and kissing him inside the public library. It then referred to the previously mentioned sexual assaults which occurred "in the parking lot of the public library." Paragraph 16 said these occurrences "were known or should have been known by those employed by the Town of Clinton at the public library," and were due to the Town's and its agents' and employees' negligence, all to the harm of the plaintiff. The town contested liability under § 52-557n claiming by way of affidavit that it did not operate the library on a day-to-day basis. If the town did not operate the library it could not be held liable under § 52-577n because any negligence could not be attributed to its agents or employees; it would have no duty to prevent or forestall the assaults which are the basis of the complaint. But the town in its answer to paragraph 9 of the complaint which alleged such operation and control admitted this paragraph which the court construed as a judicial admission, citing Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199 (1971), and Nationwide Ins. Co. v. Allen, 83 Conn.App. 526, 541-42 (2004). The court went on to note that there are exceptions to the rule giving binding and conclusive effect to judicial admissions citing Hirsch v. Thrall, 148 Conn. 202, 207 (1961), Kanopka v. Kanopka, 113 Conn. 30, 39 (1931); Ferreira v. Storms, 159 Conn. 259, 261 (1970), see also Peiter v. Degenring, 136 Conn. 331, 338 (1949), where the court indicated trial court's have discretion to ignore such admissions.
In addressing the previous motion, despite the previously mentioned affidavit from the town's first selectmen denying the town operated and controlled the library, the court felt uncomfortable in exercising discretion to ignore this admission. It said that the admission by the town to the allegation of the complaint alleging the town ran the library on a day-to-day basis "may have lulled the plaintiff into concluding that it did not have to rebut or explore the affidavit and lease provisions presented by the town (to show it did not operate the library.)" But the court went on to explicitly say that "given the evidence presented by the town on this point the court is reluctant to forestall (the town's) ability to present the (non control) argument which if it prevails on, will avoid the burden and expense of litigation. The fairest way to resolve this, in the court's opinion, is to deny without prejudice this particular basis of the town's motion as to count three because of the current state of the pleadings."
The defendant town did in fact file a motion to amend its answer in which it denied the assertion in paragraph 9 of the complaint that the town maintained, operated, and controlled the library. The motion to amend was opposed by the plaintiff and the court overruled the objection. The court then denied a motion for reconsideration filed by the plaintiff arguing essentially that the amendment to its answer now being operative the motion for summary judgment on the third count should be granted. The court in its written denial of the motion stated that because the court permitted the answer to paragraph 9 of the complaint does not mean the plaintiff cannot contest the position the defendant now takes denying the town's control of the library and its operations. The court again expressed concern that the town's initial admission of the control allegations in paragraph 9 might have lulled the plaintiff into not pursuing discovery it could otherwise have pursued to establish such control by the town.
(1)
In a typically thorough brief, the town in its renewed motion asserts a convincing factual basis for its claim that it owed no duty to the minor plaintiff which would preclude a claim of liability under § 52-557n for the sexual assault on library grounds. An affidavit from the town selectman was submitted on the renewed motion just as it was on the original summary judgment motion. He stated that the town owns the property on which the library is located which it leases to the Henry Carter Hall Library. This entity is "a separate and private entity." The town "does not own the Henry Carter Hull Library, nor does it participate in or have knowledge of library business and/or operations." The town also submitted the lease between the town and the library which is signed by the first selectman for the town and by the President of the Board of Trustees for the Henry Carter Hull Library. Article V states that when the tenant library occupies the premises it is deemed that possession of the library "has been fully and completely accepted by (the) tenant." Article VII says the tenant "shall use and occupy the premises as a library and for related activities." Article VIII requires the tenant to maintain general liability insurance. Article IX states that the tenant shall provide for all building maintenance with the landlord only responsible for certain repairs and lawn mowing, tree trimming, etc.
Article XIII provides that the landlord town can only enter the premises to inspect them or make repairs after prior notice to the tenant. The landlord is not to be liable for any inconvenience, annoyance or disturbance or loss of business to the tenant by reason of making repairs but agreed to do such work with as little annoyance, disturbance, or loss of business to the tenant as may be reasonably possible.
Article XXIII states the tenant in the use and occupancy of the premises shall comply with all laws, local, state, and federal and shall not permit any part of the premises to be used for "dangerous, noxious or offensive trade or business."
Article XXV is a covenant of quiet enjoyment and states upon payment of rent and complying with the covenants and agreements in the lease, the tenant "shall lawfully and quietly hold, occupy and enjoy the premises during the term of (the) lease without hindrance or molestation of the landlord . . . This is only subject to the town being allowed to use the parking lot occasionally for town functions." However, this use shall not interfere with parking for the tenant library's employees or patrons.
Also the town may use the community room in the library for town boards and agencies so "as not to conflict with the use of the facility by the tenant." Also the tenant must give prior written approval for such use. Article XXXII states the lease cannot be changed orally but only by written agreement.
The only response to all of the above by the plaintiff is that the town's exhibits do not provide evidence that the library entity operated and controlled the library in April 2002 the date of the alleged abuse. The selectman signed the affidavit in April 2007. The lease was dated October 2006.
The plaintiff's reading of the selectman's affidavit is too narrow. He does make the general statement that the town does not own the entity that runs the library and does not operate and maintain it. He states the town leases the library to the Henry Carter Hull Library. True the affidavit is dated 2007 but its general language is not date specific and would appear to apply to operation of the library as such whenever it started functioning as a library which it was certainly doing in 2002. The lease is dated 1996 and it clearly indicates the Henry Carter Hull Library is a separate entity from the town and runs the library qua library to the exclusion of the town. It is certainly some relevance given its terms, that the town which signed such a lease in 1996 would permit the library to function without a lease in 2002 and subject to its control and operation.
Perhaps more to the point the plaintiff to advance its § 52-557n claim has the burden of proving the town had a duty to the plaintiff based on the fact that it ran and operated the library on a day-to-day basis. Disbelief of the defendant's exhibits to rebut such a claim is "not the equivalent of proof. Thus, if a witness testifies to `heads,' and the trier disbelieves that witness, it is not permitted to find `tails' without affirmative evidence to that effect," Tait's Handbook of Connecticut Evidence, Tait and Prescott, § 4.3.3, page 140, see Peters v. Billick, 147 Conn. 699, 703 (1969) cf. State v. Alfonso, 195 Conn. 624, 634 (1985).
But the plaintiff does have a response to this which has made this case so difficult to decide for the court. By permitting the amendment to the answer in respect to paragraph 9 the court in effect allowed the judicial admission to be withdrawn. But the standard rule is that even where a judicial admission is withdrawn by permission of the court an evidentiary admission remains which is admissible against the plaintiff, see Tait at § 8.16.3, pp. 481-83, Kanopka v. Kanopka, 113 Conn. 30, 39 (1931).
We are dealing then with an evidentiary admission in a superseded pleading (answer to specific paragraph. Tait discusses the "effect" of such an admission at § 8.16.4(b), page 486. Evidentiary admissions are not conclusive and are subject to explanation Remkiewicz v. Remkiewicz, 180 Conn. 114, 118-19 (1980). Evidentiary admissions and their probative force "must depend on the circumstances of each case. They may have little, if any, weight or, in connection with other evidence, they may amount to convincing proof," Stitham v. LeWare, 134 Conn. 681, 684 (1948).
The problem here is that there is an evidentiary admission. The affidavit submitted by the first selectman is relevant to the issue at hand but the fact remains that it is not specifically directed at the status of library operations in 2002 when the alleged assault occurred. Similarly with the lease; it is dated 1996 but the incident happened in 2002 — what and where is the operative lease, if it existed, for that year? Issues of credibility of the evidence presented is raised and the court is frankly constrained to say that a material issue of fact exists. The court cannot deprive the plaintiff of his constitutional right to a jury trial on what has been presented based on this ground.
II
The next question presented by this case is assuming the operation and control of the library's day-to-day operations were in the control of the town can it held to be responsible in negligence to the plaintiffs under § 52-557n. Doe v. Petersen, 279 Conn 607, 609 (2006), sets the framework for the discussion given the facts of this case referring to § 52-557n and saying:
Connecticut municipalities are statutorily immune from negligence liability resulting from the discretionary acts of their employees officers and agents. An exception to this immunity exists — and municipalities are exposed to possible liability — 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 . . .'Doe v. Peterson has instructive comments on the three exceptions to immunity for discretionary activity and in particular to the exception involved in that case and this — imminent harm/identifiable person exception. Speaking of all the exceptions the court said: "Each of these exceptions 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," 279 Conn. at page 615.
The defendant in this case as this court did in Cotto v. New Haven, 2008 Ct.Sup. 11561 sought first to deal with the issue of whether there was negligence; only then was the immunity for discretionary acts discussed and the exceptions to it. Upon reconsideration this court believes this is not the correct approach. In fact in Doe v. Peterson, the court explicitly said: the issue of governmental immunity is simply a question of the existence of a duty of care, which is a question of law. "Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand," 279 Conn. at page 621 (quoting from Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171 (1988)).
The imminent harm/identifiable person exception says the court sets up a test that 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," 279 Conn. at page 616.
At 279 Conn. pages 620-21, the court further defined the relationship between the tests and specific attributes of individual tests. The court said "the core requirements of the `imminent harm' exception are analyzed conjunctively." Thus "an allegedly identifiable person must be identified 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" and "it is impossible to be an identifiable person in the absence of any corresponding imminent harm."
The court in effect summed up by saying: "To prevail, the plaintiff must demonstrate that she was an identifiable person and was subject to imminent harm and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to her," id. page 620.
Of course the court noted that in Burns v. Bd. of Education, 228 Conn. 640, 646 (1994), the "identifiability requirement was construed" to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims," 279 Conn. at page 618.
The case of Durant v. Board of Education, 284 Conn. 91 (2007), specifically dealt with the appropriate ambit of Burns v. Board of Education, 228 Conn. 640, 646 (1994), as it relates to the identifiable person element of the test to determine if there is to be an exception to immunity for discretionary activity. In Durant the plaintiff sought to recover for injuries she sustained when she slipped on a puddle of water on the outside staircase of a public school her son attended. The mother of a six-year-old son went to pick up her child who attended an "after school program conducted under the auspices of the defendant board of education pursuant to the statute (§ 17b-737) that allows the use of school facilities for child day care services before and after school, 284 Conn. at page 92.
The Durant court recognized the identifiable person requirement generally involves a foreseeable specific victim but noted that in Burns an identifiable class of foreseeable victims was said to meet this aspect of the test. The court noted that state statute required children to attend school and their parents were required by statute to relinquish their custody to school officials during school hours thus requiring "special consideration in the face of dangerous conditions," 284 Conn. at 107. But the court would not extend Burns to the case before it. It said at 279 Conn. page 108 that:
"In the present case, the plaintiff was not compelled statutorily to relinquish protective custody of her child. No statute or legal doctrine required the plaintiff to enroll her child in the after school program; nor did any law require her to allow her child to remain after school on that particular day. Contrast General Statutes §§ 10-157 and 10-220 (school boards and superintendents required to maintain schools for benefit of students); General Statutes §§ 10-184 and 10-220 (children statutorily compelled to attend school and parents statutorily obligated to send them to school). The plaintiff's actions were entirely voluntary, and none of her voluntary choices imposes an additional duty of care on school authorities pursuant to the Burns standards."
The court went on to concede "that our state statutes condone and even encourage the use of public school facilities for the very purpose for which the plaintiff's child was in attendance at the school on the day of the plaintiff's fall," citing § 17b-737. But the court went on to say that for Burns purposes "there is a significant distinction, however, between a program in which participation is encouraged and one in which it is compelled," id. page 109.
The court will attempt to apply the foregoing principles to the question of deciding whether the imminent harm exception to applies so as to permit the finding of a duty of care where discretionary activity is involved. The court should add that there seems no dispute that discretionary action is involved in this case. The plaintiff argues for application of the imminent harm/identifiable person exception to the town's immunity for discretionary acts.
III
The parties spend considerable time addressing the applicability of Durant v. Board of Education as to the second prong of the imminent harm exception test — was the plaintiff an identifiable victim. This court would respectfully suggest that that is not the difficulty presented by this case and whether the three test requirements for this exception has been met. Petersen itself said "We have construed the `identifiability' requirement `to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims,'" id. 279 Conn. page 618. This is not a Burns v. Bd. of Education case where the issue concerned whether the exception applied to an injured child who before the slip and fall would not be subject to identification as an individual — Burns said the child, who along with other children is required to attend school is in effect part of an identifiable class of foreseeable victims.
Here there is no need to create or recognize identifiable classes of foreseeable victims. The minor plaintiff was the identified victim. The real question is whether he was a foreseeable victim which must be analyzed conjunctively in light of the other two aspects of the test referred to in Petersen (1) an imminent harm and (2) the presence of a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm. These two aspects of the imminent harm exception have presented great difficulty to the court.
The actual facts forming the basis of the claim are not really disputed. They are based on the statements and deposition of the plaintiff youth, John Doe and the confession of the special education teacher who sexually assaulted him, Joanna Diaz. In her June 2008 opposition to the renewed motion for summary judgment by the town counsel for the plaintiff fairly summarizes the facts as they relate to the issue before the court. The court will quote that statement of facts.
The plaintiff, John Doe, was an eighth grade student at the Eliot Middle School in the Town of Clinton. Defendant Joanna Diaz was one of Doe's teachers in a special education class. Beginning in February 2002, Diaz suggested that Doe come with her to the library after school. Dias was then 36 years old. They would meet at the library and Diaz would help Doe with reading.
Doe began seeing Diaz almost four times a week since their initial meeting at the library. At the library they read and talked. As Doe describes "Sometimes I would read the book and other times Diaz would read. Diaz would hold my hand as we read. At first, it felt weird that she held my hand but after a while I had gotten used to it. During this time Diaz would raise my hand and kiss it.
Diaz began picking Doe up in her car to drive him to the library. By the end of March 2002, Diaz began having sex with Doe in her car, parked in a corner of the library parking lot. On the first such occasion, Diaz had sexual intercourse with Doe in her car after spending some time together in the library. John Doe was fourteen. They had sexual intercourse in the library parking lot on at least three different occasions.
The basic position on which the opposition to the summary judgment is grounded is concisely stated on page 8 of the June 5, 2008 brief where it says:
The conduct in which Diaz and John Doe engaged in the library should have made the library employees aware that he (John Doe) was subject to imminent harm from sexual abuse by an adult. Diaz and Doe openly engaged in conduct that was inappropriate for any adult to engage (in) with a fourteen year old boy. They held hands while reading together. Diaz kissed Doe's hand while they read. There is no innocent explanation for such conduct between an adult woman and a boy. Library employees should have known from this inappropriate conduct that John Doe was in danger of sexual abuse at the hands of a woman more than twice his age. These facts present at least a question of fact whether Doe was in imminent harm, making summary judgment inappropriate.
To deal with the last assertion first, the plaintiff cites several cases for the proposition that "whether a municipal employee's act or failure to act creates a situation of imminent harm to that plaintiff, presents a question of material fact, Tryon v. North Branford, 58 Conn.App. 702, 717 (2000), Sestito v. Groton, 178 Conn. 520, 525, 526 (1979). But the court does not agree with the plaintiff's broad characterization of the law on this question. The court in Doe v. Petersen at 279 Conn. page 613 explicitly said that "The issue of governmental immunity is simply a question of the existence of a duty of care and `this court has approved the practice of deciding the issue of governmental immunity as a matter of law,' Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 . . . (1988)."
The court in Mulligan v. Rioux, 229 Conn. 716, 736 (1994), did say that: "Although the ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court, when, as in this case there are unresolved factual issues material to the applicability of the defense preventing its early disposition, resolution of those factual issues is properly left to the jury" (emphasis by Mulligan court). But the Mulligan court would not disagree with the holding in Petersen that where, as here, and in Petersen there are no factual issues material to the applicability of the governmental immunity defense, the court must decide the question as a matter of law. This necessarily follows from the fact that when presented with the defense of governmental immunity the court must decide whether, given the exceptions to that doctrine there is a duty of care and absent a dispute as to material facts that question is one of law that must be decided by the court. Here there are no disputed issues of material fact which would or should prevent the court from deciding whether the exception to government immunity being advanced applies and therefore the town had a duty of care.
The two questions in this case depend on whether it can be said that the plaintiff child was subject to imminent harm and whether it should have been apparent to library personnel that their actions or failure to act was likely to have subjected this youngster to sexual abuse. In this case these factors are inextricably bound together and as Petersen indicated must be read conjunctively.
On the imminency of the harm test the court in Petersen cited Burns and other cases as having "utilized criteria including the duration, geographical scope, significance and foreseeability of the risk of harm to gauge whether that correctly may be considered imminent," 279 Conn. footnote 10. Here the defendant notes that the exploitive actions of Diaz occurred over a fairly lengthy period of time and in several locations. Standing alone that would not be enough to defeat the plaintiff's reliance on this exception, in the court's opinion if any of the incidents should have alerted the government employees to the foreseeability of risk and the significance of any risk.
But therein lies the problem for the plaintiff — what was the significance and foreseeability of any risk and should that risk have been apparent. Apart from the library hand-holding and hand-kissing incident or incidents there was nothing introduced into the record that library authorities or any town employees had any indication that inappropriate sexual activity was going on between the plaintiff and this substitute teacher Diaz. As the court indicated in its general remarks Petersen is quite clear each of the three exceptions to immunity (1) identifiable victim, (2) imminent harm; and (3) apparent risk of the harm to the public official "represents a situation in which the public official's duty is so clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force," 279 Conn. page 615.
At the time of these incidents Diaz was 36 years old, the plaintiff John Doe was an eighth grade student. Diaz was over twice as old as the plaintiff and could very well have been his mother, an aunt, or an affectionate child sitter hired to care for him on a daily basis. How would it be unequivocally obvious that such displays of affection in the environs of a public library no less would be the spring board for acts of ensuing sexual abuse leading to actual sexual relations? At least for the court to ask the question is to provide the answer.
As early as 1982 in Shore v. Stonington, 187 Conn. 147, 157, our court has recognized the usefulness and propriety of permitting summary judgment procedure in deciding whether to recognize an exception to governmental immunity based on the imminent harm/foreseeable victim rule. Nor is this a case like Sestito v. Groton, 178 Conn. 520, 528 (1979), which as Shore v. Stonington said "involved a policeman who waited and watched a public disturbance without interfering until the plaintiff's decedent was shot. Resolving conflicting testimony on the issue of imminence of harm in favor of the plaintiff, we held that the case should have been submitted to the jury," Shore at 187 Conn. page 153. That is the point, where there is conflicting testimony the matter can be submitted to the jury. In the absence thereof it is properly a question of law whether there is a duty of care. Frankly, Petersen regularizes the procedure by underlining the fact that the duty of care issue is separate and distinct from the issue presented when a duty of care is found. In that case whether the duty of care was violated (i.e., negligence was present) is for the jury to decide. Petersen in that sense explains some of the confusing language in earlier cases.
In any event for the reasons stated the motion for summary judgment is granted.