Opinion
No. CV06-5002923S
File Date: February 14, 2007
MEMORANDUM OF DECISION
Before the court is the defendants' motion to strike plaintiff's revised complaint dated July 12, 2006, on the basis that governmental immunity bars the plaintiff's claim.
FACTS
On March 31, 2006, the minor plaintiff, Christina Esposito, through her father and next friend, filed a negligence complaint against three defendants: the Town of Bethany ("town"); the Board of Education of the Bethany Public School District ("board of education"); and, the Bethany Public School District ("school district"). On July 12, 2006, the plaintiff revised her complaint to allege specific counts against each defendant individually. Therein, the plaintiff alleges the following facts.
The plaintiff was a student at Bethany Community School, an elementary school under the jurisdiction of the school district. At all relevant times, all school officials, teachers and teacher's aides mentioned in the complaint were acting as servants, agents and/or employees of the defendants and were acting within the scope of their agency. Beginning in the spring of 2003, the plaintiff became the target of a severe pattern of bullying by one of her classmates, Paige Woodward. School officials, teachers and teacher's aides were aware of the bullying, but took no disciplinary or other action to protect the plaintiff.
The bullying persisted throughout the 2003-2004 academic year. On March 12, 2004, teacher's aides took students, including the plaintiff and Woodward, to recess. They allowed the plaintiff and Woodward to play unsupervised in portions of the recess area that were not visible to the aides. While unsupervised, Woodward intentionally and without warning threw a large rubber ball at the back of the plaintiffs head, severely injuring the plaintiff.
On August 15, 2006, the defendants filed a motion to strike all three negligence counts on the ground that they are barred by the doctrine of governmental immunity. The defendants have submitted a memorandum of law in support of their motion. On December 26, 2006, the plaintiff filed an opposition to the defendants' motions to strike. The matter was heard on the short calendar on January 2, 2007.
In addition, the defendants move to strike count three against the town, on the ground that the town is not legally responsible for the acts or omissions of the other defendants' employees, and thus, the plaintiff fails to state a claim upon which relief may be granted. The defendants infer that count three must be grounded in the common law doctrine of respondeat superior. This argument is misplaced, however, because the plaintiff alleges that the town is liable for the torts of its own employees, officers and agents, not for those of the codefedants' agents. Moreover, the plaintiff emphasizes that she seeks statutory relief, rather than relying on the common law theory of respondeat superior.
On November 9, 2006, the defendants also filed a supplemental motion to strike on the ground that the plaintiff's claim is barred by the doctrine of sovereign immunity. Therein, however, the defendants mischaracterize the plaintiff's complaint as claiming the denial of an educational opportunity. Thus, the defendants argue that the present case is governed by Santoro v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 04 0488583 (August 18, 2006, Robinson, J.) ( 41 Conn. L. Rptr. 850), which held that the plaintiff's claim of lost educational opportunity as the result of alleged bullying was barred by the doctrine of sovereign immunity. According to Santoro, sovereign immunity applies when a defendant is acting for the benefit of the state, as opposed to the benefit of a municipality. Id. The Supreme Court has explained, however, that "[t]he duty to supervise students is performed for the benefit of the municipality . . . Therefore, sovereign immunity is not implicated . . ." (Citations omitted.) Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d 937 (1998). Because the plaintiff's complaint in the present case implicates the defendants' duties to supervise the plaintiff and her fellow students, the doctrine of sovereign immunity is inapplicable.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In addition, "[w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321-22, 907 A.2d 1188 (2006). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). Moreover, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [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, 280 Conn. 225, 229, 905 A.2d 1165 (2006).
In support of their motion to strike, the defendants argue that governmental immunity shields them from liability and that because the plaintiff did not identify any individual municipal employees, no exceptions to the governmental immunity doctrine apply. In response, the plaintiff argues that she is not required to name as defendants any individual employees and that, instead, she has a direct cause of action against the municipalities. The plaintiff further argues that the identifiable person, imminent harm exception to governmental immunity applies and thus renders the defendants subject to liability under the circumstances of the present case.
General Statutes § 7-465(a) permits an injured plaintiff to seek indemnification from a municipality, under certain circumstances, for the liability imposed upon a municipal employee. This section specifically prohibits municipalities from asserting governmental immunity as a defense to any action brought thereunder. Thus, "[§]7-465(a) effectively [circumvents] the general common law immunity of municipalities from vicarious liability for their employees' acts . . ." Myers v. Hartford, 84 Conn.App. 395, 400, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004). Contrary to the defendants' argument, however, the mere availability of § 7-465(a) does not preclude plaintiffs from bringing an action directly against municipalities under alternative statutory sections.
Section 7-465(a) provides in pertinent part "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, 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, except as set forth in this section, 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, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . As used in this section, `employee' includes . . . a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board . . .
In particular, the plaintiff in the present case is free to seek redress under General Statutes § 52-557n(a)(1)(A), which holds a municipality "liable for damages to person or property caused by . . . [t]he negligent acts or omissions of [the municipality] or any employee, officer or agent thereof acting within the scope of his employment or official duties . . ." In Spears v. Garcia, 263 Conn. 22, 32, 818 A.2d 37 (2003), the Supreme Court discussed §§ 52-557n and 7-465(a) and concluded that "[t]he causes of action under the statutes are independent and are not mutually exclusive." The court went on to state that "[i]n the absence of any . . . reference [in § 52-557n] to . . . § 7-465(a) . . . the statutes can coexist and . . . a party may choose to rely on either statute." (Emphasis added.) Id., 34. As a result of this statutory scheme, "there may be circumstances under which a municipality is held liable under § 52-557n where it would have been able to avoid liability had suit been brought jointly against the employee and the municipality under § 7-465. This outcome, however, results from a clear legislative expression of an intent to abrogate municipal immunity independent of the availability of a claim under § 7-465." Id., 37. In light of Spears, therefore, the defendants cannot prevail on their argument that the plaintiff must bring her action against an individual municipal employee and subsequently seek indemnification from one or more of the municipalities named as defendants to the present case. See also Gaudino v. East Hartford, 87 Conn.App. 353, 356, 865 A.2d 470 (2005) ("[s]ection 52-557n allows an action to be to be brought directly against a municipality for the negligent actions of its agents").
Section 52-557n(a)(1)(A) reads in pertinent part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he 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 . . ."
As mentioned above, § 52-557n imposes liability upon a municipality for the negligent acts or omissions of its employees, officers and agents under certain circumstances. Section 52-557n also limits the extent of such liability, however, providing that a municipality is not liable for those "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)(2)(B). In the present case, the plaintiff concedes that the supervision of schoolchildren, including the plaintiff and Woodward, constitutes a discretionary act. Nevertheless, the plaintiff argues that the identifiable person, imminent harm exception to governmental immunity prevents the defendants from availing themselves of § 52-557n(a)(2)(B).
Section 52-557n(a)(2) reads in pertinent 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 expressed or impliedly granted by law."
As the Supreme Court recently explained, "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." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 609, 903 A.2d 191 (2006). Thus, "[b]y its own terms, this [exception] requires three things: (1) an imminent harm; (2) an identifiable victim . . . and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 329.
The plaintiff in the present case has pleaded facts, which, if true, satisfy the requirements of the exception. Taking the elements out of order, the plaintiff, as a school child, falls within a class of identifiable victims. "The identifiable person-imminent harm exception applies not only to identifiable individuals but also to narrowly defined classes of foreseeable victims." (Internal quotation marks omitted.) Colon v. Board of Education, 60 Conn.App. 178, 184, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). "[The] Supreme Court has held that school children, who are statutorily required to attend school, are an identifiable class of foreseeable victims." (Citations omitted; internal quotation marks omitted.) Id. See also Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1 (1994).
Next, as to the imminent harm element, the Supreme Court explained in Purzycki v. Fairfield, supra, 244 Conn. 110, that the risk of such harm must be confined to "a limited time period and limited geographical area . . ." Purzycki involved a second grade student who was injured when a fellow student tripped him in an unsupervised hallway during the lunchtime recess period. In applying the exception, the court reasoned that the risk of such harm was limited to the one-half hour interval during which the students passed through the unmonitored hallway on their way to the recess area. Id., 110. The court further noted that this interval was the only time during which students were left unsupervised. Id. Such finite and temporary conditions rendered the harm sufficiently imminent for purposes of applying the identifiable person, imminent harm exception to governmental immunity. Similarly, according to the plaintiff in the present case, the risk that Woodward would injure her on the date in question was limited to the brief period of time in which the students played out of sight of the teacher's aides.
Subsequent courts also have found imminent harm present under facts analogous to those which the plaintiff pleads in the present case. In Zaborowski v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002868 (March 24, 2006, Pickard, J.) ( 41 Conn. L. Rptr. 80), the plaintiff alleged that be was injured when he fell from a basketball rim while playing unsupervised during an after-school program. The court explained that "the possibility of the occurrence of imminent harm was not a constant possibility, like a fight that could break out at any time . . . but here was a situation that existed only because [the plaintiff] was on a basketball rim over the concrete basketball court . . ." Id. The court relied on similar reasoning in Buckley v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4001542 (May 11, 2006, D'Andrea, J.T.R.), in which the plaintiff student was injured while playing badminton during gym class. There, the defendant teacher had distributed badminton equipment to the plaintiff and six of his classmates before leaving the group unsupervised while he attended to students in a separate part of the gym. Id. The plaintiff was injured when another student accidentally struck him in the face with a racquet. Id. The court determined that the risk of such harm was imminent, given that the students were left unsupervised only for approximately ten minutes and that the area designated for their game was limited to a small, makeshift badminton court. Id.
By contrast, the Supreme Court has explained that "imminent harm" excludes perils "that could have occurred at any future time or not at all." Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989). Thus, the Appellate Court held that the exception did not apply where the plaintiff alleged that she was sexually assaulted by a fellow student in an empty classroom, because the alleged danger caused by the purportedly insufficient number of hall monitors "was not limited to a particular area of the school and a particular time period." Doe v. Board of Education, 76 Conn.App. 296, 305, 819 A.2d 289 (2003). Nor did the Appellate Court originally apply the exception in Bonamico v. Middletown, 47 Conn.App. 758, 706 A.2d 1386, cert. granted, 244 Conn. 923, 714 A.2d 8, on remand, 49 Conn.App. 605, 713 A.2d 1291 (1998), in which the plaintiff was struck in the eye by an object thrown in the hallway by a fellow student during the period between classes. Relying on the absence in the complaint of any allegation that the defendants knew or should have known that the other student would be likely to act in such a manner, the court concluded that "the plaintiff could have been injured at any time in the future or not at all." Id., 762. The present case is distinguishable from Doe v. Board of Education and Bonamico, however, because here, the plaintiff alleges that she was injured during a recess period of a fixed duration and within a specific location, and that the defendants were aware of the risk that Woodward would injure the plaintiff. Thus, the facts as alleged satisfy the imminence requirement of the identifiable person, imminent harm exception.
The Supreme Court, however, remanded the case to the Appellate Court for reconsideration in light of Purzycki v. Fairfield, supra, 244 Conn. 101. Bonamico v. Middletown, 244 Conn. 923, 714 A.2d 8 (1998). On remand, the Appellate Court vacated its earlier decision, reversed the trial court's judgment in favor of the defendants on governmental immunity grounds and remanded for further proceedings. Bonamico v. Middletown, 49 Conn.App. 605, 713 A.2d 1291 (1998).
As to the final element of the exception, "[w]hether it is apparent to a defendant that his act or failure to act subjects an identifiable person to imminent harm is a question of fact." Marceau v. Norwich, 46 Conn.Sup. 197, 203, 746 A.2d 836 (1999). According to the plaintiff, the defendants, through their employees, officers and agents, were aware of Woodward's pattern of bullying the plaintiff and, thus, also knew or should have known that Woodward posed a risk to the plaintiff. The plaintiff further alleges that the teacher's aides allowed Woodward and the plaintiff to play unsupervised in a portion of the recess area that was not visible to the aides. Assuming the plaintiffs allegations are true for purposes of ruling on the defendants' motion to strike, that it should have been apparent to the teacher's aides that such inadequate supervision subjected the plaintiff to imminent harm, and therefore, the plaintiff has established the third and final element of the identifiable person, imminent harm exception to governmental immunity.
The defendants, however, argue that this particular exception applies only to municipal employees, and not to municipalities themselves. In support of their position, the defendants cite footnote nine of Pane v. Danbury, 267 Conn. 669, 677 n. 9, 841 A.2d 684 (2004), in which the court stated that the exception "applies to a municipal employee, as distinct from the municipality itself . . ." (Emphasis in original; internal quotation marks omitted.) In reaching its conclusion, the Pane court drew upon Spears v. Garcia, supra, 263 Conn. 29. The language of Spears, however, does not support Pane's limited interpretation of the identifiable person, imminent harm exception. Rather, as the Superior Court noted in Singletary v. Poynton, Superior Court, judicial district of New Haven, Docket No. CV 03 0473378 (June 1, 2006, Licari, J.), Spears in fact expressly "acknowledged that permitting a direct cause of action [against a municipality] does not require naming the tortfeasor." Id. The Singletary court further emphasized that Pane's discussion of whether the exception applies to municipalities is confined to "a footnote in which by way of dicta at best the court makes a passing reference to the applicability of the exception to municipal employees but moves on without further discussion. The issue was not before the court." Id. Consequently, the court in Singletary rejected the proposition set forth in Pane, reasoning that "[i]t would be a quantum leap to transform this cryptic observation into a general rule of law." Id.
In Pane, the plaintiff brought an action against the city of Danbury and its personnel director in connection with the alleged release of the plaintiff's personnel file to a newspaper reporter. The court affirmed the trial court's granting of summary judgment in favor of the defendants. With regard to the plaintiff's allegations that the defendants violated the Freedom of Information Act ("FOIA"), the Supreme Court reasoned that the trial court had ruled properly, because FOIA did not provide a private cause of action, and because the plaintiff's allegations were insufficient to support a cause of action for a violation of public policy. As merely an alternative ground on which the trial court could have granted the defendants' motion, the court proffered that the plaintiff had failed to establish that governmental immunity had been statutorily abrogated for invasion of privacy claims.
Numerous Superior Court cases have accepted Pane's proposition and, thus, also have declined to apply the exception to municipal defendants in actions brought under § 52-557n. See, e.g., Winters v. Windsor, Superior Court, judicial district of Hartford, Docket No. CV 05 4011068 (December 14, 2006, Scholl, J.); Pagliaro v. Middletown, Superior Court, judicial district of Middlesex, Docket No. CV 05 5000161 (September 12, 2006, Dubay, J.); Bacchiocchi v. Carden, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 06 5000407 (August 17, 2006, Sylvester, J.T.R.); Cotto v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV 01 045489 (June 30, 2006, Corradino, J.); Amex v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 05 500252 (May 16, 2006, Domnarski, J.); Escobales v. New Britain, Superior Court; judicial district of New Britain, Docket No. CV 06 4009470 (May 5, 2006, Shapiro, J.) ( 41 Conn. L. Rptr. 351); D'Agostino v. Orange, Superior Court, judicial district of New Haven, Docket No. CV05 4011875 (April 27, 2006, Thompson, J.) ( 41 Conn. L. Rptr. 270); Mangels v. Yale, Superior Court, judicial district of Fairfield, Docket No. CV02 0389790 (February 15, 2006, Gilardi, J.); Disabella v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 0832044 (November 15, 2005, Keller, J.).
Similarly, the Superior Court previously rejected the same argument, based upon Pane, that is urged by the defendants in the present case. In Rasmus v. Plainville, Superior Court, judicial district of New Britain, Docket No. CV 04 4002902 (October 31, 2006, Shapiro, J.), the court was "unpersuaded" by the defendant's argument that the identifiable person, imminent harm exception does not apply to municipalities. Id. Instead, whereas the defendant relied upon Pane, the court in Rasmus concluded that it "must be guided by [the] Supreme Court's more recent, and more extensive, discussion of the subject in Doe v. Petersen, [ supra, 279 Conn. 607.]" Id. Although the Supreme Court declined to apply the imminent harm exception under the circumstances in Petersen, it nevertheless made it clear that the exception could apply to municipalities under different facts. Doe v. Petersen, supra, 609. As discussed above, after noting that municipalities generally enjoy immunity from negligence liability for the discretionary acts of their employees, officers and agents, the Petersen court went on to explain that "[a]n 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." (Emphasis added; internal quotation marks omitted.) Id. This language retains the connection between the identifiable person, imminent harm exception and municipalities, thereby superceding Pane's suggestion to the contrary.
Furthermore, in Colon v. Board of Education, supra, 60 Conn.App. 178, the Appellate Court indicated that § 52-557n permits actions against municipalities themselves where the exception applies. There, the court stated: "Section 52-557n contains no language evincing a legislative intent to vitiate [the identifiable person, imminent harm] exception to governmental immunity for discretionary acts. In the absence of any such language, we do not construe the statute as barring recovery from a political subdivision where this exception applies." (Internal quotation marks omitted.) Id., 184. In light of Petersen and Colon, therefore, this court chooses to recognize the imminent harm exception as it applies to municipalities. Because, as discussed above, the plaintiff in the present case has pleaded facts, which, if true, sufficiently establish the elements of the exception, this court denies the defendants' motion to strike on the ground of governmental immunity.
CONCLUSION
In light of the foregoing, the defendants' motion to strike is denied, because the plaintiff has pleaded sufficient facts to invoke the identifiable person, imminent harm exception to governmental immunity.