Opinion
No. CV 08-5002754-S
January 28, 2011
RULING ON DEFENDANTS' MOTION TO STRIKE
This case is an action by the plaintiffs, Estate of Michael Girard and his mother and stepfather Caryn and Mark Casey, over the death of Michael, a Putnam High School student who committed suicide in 2006. The Amended Complaint contains nine counts: Count One is by the Estate and it alleges negligence by the defendant, Town of Putnam; Count Two is by the Estate and it alleges negligence by the defendant, Board of Education; Count Three is by the Estate and it alleges negligence by the defendant Margo Marvin, Putnam superintendent of schools, in her official capacity; Count Four is by the Estate and it alleges negligence against the defendant Linda Joyal, principal of Putnam High School, in her official capacity; Count Five is by the Estate and it alleges negligence by the defendant Eileen Blair, a guidance counselor at Putnam High School, in her official capacity; Count Six is by Caryn Casey and it alleges negligent infliction of emotional distress against Blair, in her official capacity; Count Seven is by Mark Casey and it alleges negligent infliction of emotional distress against Blair in her official capacity; Count Eight is by Caryn Casey and it alleges intentional infliction of emotional distress against Blair in her individual capacity; and Count Nine is by Mark Casey and it alleges intentional infliction of emotional distress against Blair in her individual capacity. The defendants have moved to strike all of the counts. For the following reasons, the motion is granted as to Counts Six, Seven, Eight and Nine. It is denied as to Counts One, Two, Three, Four and Five.
"It is well settled law that an action against a government official in his or her official capacity is not an action against the official, but, instead, is one against the official's office and, thus, is treated as action against the entity itself . . . In general, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity . . . It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself." (Citations omitted.) Kelly v. New Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005).
I
"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 . . . A motion to strike . . . consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . ." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
While "[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
"[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion . . . Nonetheless . . . [a] complaint includes all exhibits attached thereto." (Citations omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
II
The amended complaint alleges that during the 2005-06 academic year, Michael was a student in his senior year at Putnam High School in Putnam, CT. It alleges that at all times relevant to the complaint, the town and Board of Education were responsible for the supervision and control of Putnam High School, and that Michael was legally obligated to attend the school.
During that same time, there was in effect a school system-wide Suicide Prevention Policy. The Board was required to enact such a policy pursuant General Statutes § 10-221(e). The policy provided: "Suicide is a complex issue, and that while the school may recognize potentially suicidal youth, it cannot make clinical assessment of risk and provide in-depth counseling, but must refer the youth to an appropriate place for such assessment and counseling. Any school employee who may have knowledge of a suicide threat must report this information to the building principal or his/her designee. Immediately this youth will be referred to a school psychologist for initial evaluation and counseling." The policy also provided detailed guidelines to be followed "[w]hen a staff member in the public school system is confronted with a situation in which a student makes a statement of suicidal thinking, or it appears that an attempt at suicide is possible." The mandatory steps required, inter alia, immediate notification of emergency medical personnel or school psychologist or social worker. They specifically provided that at no time during the process is the student to be left alone, or allowed to go home alone. The student must be released only to a parent, guardian or other responsible adult.
The policy provides as follows:
Suicide Prevention Guidelines
When a staff member in the public school system is confronted with a situation in which a student makes a statement of suicidal thinking, or it appears that an attempt at suicide is possible, the following actions will take place:
1. The staff member will refer the student to the appropriate guidance counselor.
2. In the event the staff member perceives that a student has taken action which creates a medical emergency, the school nurse will be notified immediately and emergency medical procedures will be followed.
3. The counselor will notify the principal and the school nurse and seek the intervention of the department of student services worker — either the school psychologist or the school social worker.
4. The counselor and/or department of student services worker will meet with the student immediately for the purpose of establishing sequential facts or events leading to the crisis. At no time during this process is the student to be left alone.
5. If the student is not found to be suicidal, the parents will be notified of the referral and of all conclusions reached.
6. If the student is found to be suicidal, immediate contact will be made with a parent or guardian and a conference will be held the same day.
During the conference, the parent or guardian will be advised that an immediate psychiatric evaluation is needed.
Under no circumstances is a student allowed to go home alone. The student must be released only to a parent, guardian, or other responsible adult.
If reasonable attempts to reach the parent, guardian, or other responsible adult in whose custody the student may be released are not successful, the case will be treated as a medical emergency and arrangements will be made to transport the student to an area hospital emergency room or mental health facility.
If the student requires medical attention, he/she will be transported immediately to an area hospital.
The school nurse will arrange to have the parents meet the student at the hospital.
A detailed report will be written within twenty-four hours by the department worker who assumes responsibility for the case. The report shall include
— name of the student.
— name of the staff member(s) involved.
— time and date of all conferences.
— summary of all conferences.
— recommendations made to parents, student, and building staff.
Follow-up contact will be in accordance with the recommendations. A report will be written indicating those activities performed to follow through and ensure the safety and well-being of the student.
A copy of all reports will be submitted to the parents, the principal, and the director of student services.
Failure on the part of the family to take seriously and provide for the safety of the student in case of potential suicide will be considered emotional neglect and reported to the Department of Children and Youth Services. (cf. 5141.4 — Child Abuse/Neglect).
If as a result of suicidal activity a need exists for changes in the student's program, the school's planning and placement team will convene and consult with the student's mental health professional, the parent(s) or guardian, appropriate outside facility staff members and, if feasible, the student to plan the student's educational program. The school social worker or department of student services worker who assumes responsibility for the case will maintain contact with the student's mental health professionals to support programming needs and follow-up procedures.
The complaint alleges that on an occasion shortly before his death, the defendant guidance counselor, Blair, received information that Michael was suicidal and/or had threatened to kill himself. It alleges that Blair took no action mandated by the Suicide Prevention Policy. Rather, she let him go home alone. It similarly alleges that shortly before his death, while on school property and during school hours, Michael expressed an intention to harm or kill himself in the presence of employees and agents of the High School, Board of Education and Town. No such official took any action mandated by the Suicide Prevention Policy. The complaint alleges a variety of other deficiencies and failings of the defendants to properly implement suicide prevention precautions or to provide necessary training, supervision and education on the subject.
As a consequence of the defendants' negligence, the amended complaint alleges that Michael committed suicide on March 23, 2006 at approximately 10:30 a.m., in his bedroom at home. The cause of death was determined to be methadone toxicity. Allegedly, he was despondent over a break up with a girlfriend.
Additionally, Michael's mother and step father allege, in Counts Six, Seven, Eight and Nine, that the defendant Blair should be personally liable to them for their medical expenses, permanent injuries to their emotional and mental health, and income loss caused by Blair's failure to follow procedures that could have spared them injury, on theories of negligent and intentional infliction of emotional distress.
III
The defendants' motion to strike is based on three grounds: (A) since the act of suicide is a deliberate and intentional act, the defendants are relieved from any liability for which they may allegedly be responsible; (B) that the defendants are entitled to governmental immunity pursuant to General Statutes § 557n and 52-557n(b)(6); and (C) that the plaintiffs have not alleged sufficient facts to support a claim for intentional infliction of emotional distress. The points are discussed and decided seriatim:
A
The first argument is that since the act of suicide is a deliberate and intentional act, the defendants are relieved from any liability for which they might allegedly be responsible on all counts. The argument, in this regard, rests on a theory that the defendants cannot be considered to have caused injury because they did not cause Michael's death; rather, Michael killed himself. Indeed, it has been held that an unforeseeable, intentional tort is a superseding cause that can relieve a defendant, sued for negligence, from liability. Sullivan v. Metro-North Commuter R. Co., 292 Conn. 150, 164-67, 971 A.2d 676 (2009). The argument is legally correct, but it does not apply under the circumstances alleged in this case.
The seminal case on point is Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997). That case teaches that, "[a]s a general rule, negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered a deliberate, intentional and intervening act which precludes a finding that a given defendant, in fact, is responsible for the harm." Edwards v. Tardif, supra, 240 Conn. 615, quoting McLaughlin v. Sullivan, 123 N.H. 335, 337, 461 A.2d 123 (1983), see also annot., 11 A.L.R.2d 751, 756 (1950) ("[W]here an action is bought under a wrongful death statute the general rule is that suicide constitutes an intervening force which breaks the line of causation from the wrongful act to the death and therefore the wrongful act does not render [the] defendant civilly liable"). In other words, suicide generally is an unforeseeable result that serves to preclude civil liability; see, e.g., Tate v. Canonica, 180 Cal.App.2d 898, 913-14, 5 Cal.Rptr. 28 (1960); Eidson v. Reproductive Health Services, 863 S.W.2d 621, 627 (Mo.App. 1993); McLaughlin v. Sullivan, supra, 337-38. This common-law rule has been stated as follows: "[I]f one is sane, or if the suicide is during a lucid interval, when one is in full command of all faculties, but life has become unendurable by reason of the injury, it is agreed in negligence cases that the voluntary choice of suicide is an abnormal thing, which supersedes the defendant's liability. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 44, p. 311." Edwards v. Tardif, supra, 240 Conn. 615-16.
Conversely, suicide does not break the chain of causation if it was a foreseeable result of the defendant's tortious act. This was an important exception established in the Tardif case. "Several courts have concluded that liability will be imposed on a physician when suicide was one of the foreseeable risks that made the physician's antecedent conduct negligent." See, e.g. Meier v. Ross General Hospital, 69 Cal.2d 420, 427, 445 P.2d 519, 71 Cal.Rptr. 903 (1968) ("those charged with the care and treatment of a patient, who know of facts from which it might reasonably be concluded that a patient would be likely to harm himself in the absence of preclusive measures, must use reasonable care to prevent such harm"); Summit Bank v. Panos, 570 N.E.2d 960, 969 (Ind.App. 1991) (reversing summary judgment in favor of defendant because, "[g]iven [the decedent's] history, and [the decedent's] own testimony of his awareness of her emotional problems, there is a genuine issue of fact whether it was foreseeable that [the decedent] might abuse the drugs which he prescribed for her"); Fernandez v. Baruch, 52 N.J. 127, 132, 244 A.2d 109 (1968) ("[t]he controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated the danger that the deceased should have anticipated the danger that the deceased would attempt to harm himself"); Champagne v. United States, 513 N.W.2d 75, 76-77 (N.D. 1994) ("[i]f the patient's act of suicide is a foreseeable result of the medical provider's breach of duty to treat the patient, the patient's act of suicide cannot be deemed a superseding cause of the patient's death that breaks the chain of causation between the medical provider and the patient, which absolves the medical provider of liability"). Edwards v. Tardif, supra, CT Page 4211 240 Conn. 616-17.
Applying these tests to the facts as alleged in the instant case, this court concludes that such a student's suicide could be a foreseeable result of school staff's failure to follow the suicide prevention policy. This is especially true in this case where it is alleged that school staff was presented with a student's declaration of intent to harm or kill himself. It is foreseeable that if a person declares an intent to commit suicide, suicide is a foreseeable risk if nothing is done. Indeed, it was the written policy of the Putnam High School to immediately safeguard a student and obtain emergency medical or professional assessment and counseling for such a student in that circumstance. That is a clear cut warning of the need to take action. It creates a foreseeable harm as a consequence of a failure to act. No reasonable staff member could have concluded otherwise, assuming the circumstances alleged are true as we must at this stage of the pleadings, and in light of the written school policy. Schools have been made subject to potential liability for much less serious foreseeable hazards. See, e.g., Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998) (school subject to liability for failure to monitor running in hallway); Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994) (school subject to liability for failure to salt and sand icy campus); Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000) (school subject to liability for student hit by door suddenly opened by teacher). The plaintiff has alleged sufficient facts to show that the defendants committed negligent acts that increased the risk of accomplishment of a suicide by the decedent, and that their negligence was a substantial factor in causing that harm. Under such alleged circumstances, the suicide could be considered a foreseeable consequence. See, Rasmus v. Plainville, Superior Court, judicial district of New Britain, Doc. No. CV 04-4009202 (April 23, 2007, Shapiro, J.) [ 43 Conn. L. Rptr. 508]; cf. Kastancuk v. East Haven, 120 Conn.App. 282, 287, 991 A.2d 681 (2010); Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven, Doc. No. CV 00-0436800 (July 23, 2003, Arnold, J.), aff'd, 83 Conn.App. 903, 853 A.2d 650 cert. denied, 270 Conn. 917, 853 A.2d 531 (2004); Savinelli v. East Haven Board of Education, Superior Court, judicial district of New Haven, No. CV 02-0468383 (April 28, 2003, Arnold, J.). Whether plaintiffs will win their case remains to be seen. At this point, the court is only considering whether they have alleged a claim recognized at law. They have done so in regard to this issue.
Defendants, nevertheless, argue that the Tardif exception only applies to physicians. Indeed, in that case, the defendant accused of negligence in the suicide of a patient was the patient's physician who specialized in internal medicine. The decision was discussed in terms of the duties of physicians and the foreseeable consequences of medical malpractice because the case involved a physician. However, there is nothing in that case limiting its value as precedent to the particular facts. To the contrary, the principle accepted was a broader general principle applicable to a variety of circumstances. As the Tardif court stated:
Indeed, we have recently "adopted the standard set forth in § 442B of the Restatement [(Second) of Torts] that [w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third party and is not within the scope of the risk created by the actor's conduct." (Internal quotation marks omitted.) Steward v. Federated Dept. Stores, Inc., 234 Conn. 597, 607-08, 662 A.2d 753 (1995).
Edwards v. Tardif, supra, 240 Conn. 617 (emphasis added); see also Sullivan v. Metro-North Commuter Railroad Co., supra, 292 Conn. 164-67 (2009).
Thus, there is nothing in the Tardif case limiting its application to physicians. Moreover, as expressed in the emphasized portion cited above, the court in that case indicated that a superseding cause that relieves a negligent actor of liability must be an unforeseeable intentional act by a third party. There is no such unforeseeable act or third party involved in this case under the allegations of the amended complaint.
Accordingly, the motion to strike on this ground is denied.
B
The second argument is that all counts of the amended complaint should be stricken because the defendants are entitled to governmental immunity pursuant to General Statutes § 52-557n and 52-557n(b)(6). On these points, the court agrees with the defendants, but only as to Counts Six, and Seven.
The law governing governmental liability and governmental immunity is now largely controlled by statute. General Statutes § 52-557n sets out the rules, and the exceptions. In pertinent part, the statute provides that municipalities "shall be liable" for "[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 . . ." [e]xcept . . . 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). This parallels the common-law qualified immunity of the employee. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 169 n. 3, 544 A.2d 1185 (1988); Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982); D. Wright, J. FitzGerald, W. Ankerman, Conn. Law of Torts (3rd Ed. 1991) Sec. 93. Thus, governmental immunity for discretionary acts is identical to the employee's immunity for discretionary acts. Kastancuk v. East Haven, supra, 120 Conn.App. 287; Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004). In other words, generally, municipalities and their employees may be exposed to liability for acts of negligence unless the function involved the exercise of discretion. The corollary rule is that there is no immunity for ministerial acts. Kastancuk v. East Haven, supra, 120 Conn.App. 287. The word "ministerial" refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1171 (1989). An act is ministerial where, for example, it is required to be performed in a prescribed manner by a city charter provision, ordinance, regulation, rule, policy or any other directive. Violano v. Fernandez, supra, 280 Conn. 323; Kastancuk v. East Haven, Id. "Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint . . . [that] [t]he determination of whether an act or omission is discretionary in nature, and thus, whether governmental immunity may be successfully invoked pursuant to . . . § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint." (Citations omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). Thus, in some circumstances, the issue may properly be decided on motion to strike. See, e.g. Violano v. Fernandez, supra, 280 Conn. 325. For the following reasons, in the instant case, the court concludes that the governmental immunity issue can be resolved in the context of the motion to strike.
Employees are generally indemnified, by their municipal employer, in cases of liability due to negligence, if the employees were acting in the performance of their duties and within the scope of their employment and not wantonly or wilfully. General Statutes § 7-465.
The critical issue to be decided here is whether the defendants' activities alleged in the amended complaint in this case were discretionary, thus lending themselves to a defense of governmental immunity, or ministerial, for which there is no governmental immunity. It is beyond cavil that the Suicide Prevention Policy in this case required defendants to follow certain and specific steps, leaving no room for discretion. Nevertheless, defendants argue that whether the policy is even to be followed is a discretionary function. Defendants' Brief, p. 17. The point is important. Even when the duty to respond to a situation is ministerial because a specific response is mandated, the predicate act — determining whether a duty arises — generally is deemed to be a discretionary act. "A ministerial duty on the part of an official often follows a quasi-judicial determination by that official as to the existence of a state of facts. Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act, the duty of giving effect, by taking appropriate action, to the determination is often ministerial." (Citations omitted.) Pluhowsky v. New Haven, 151 Conn. 337, 347-48, 197 A.2d 645 (1964); see, e.g., Wright v. Brown, 167 Conn. 464, 472, 356 A.2d 176 (1975) (concluding in case of dog warden charged under General Statutes § 22-358 with duty of quarantining dog for fourteen days once she found that dog had bitten person who was not on premises of owner or keeper of dog: "[w]hile the determination of that state of facts involved the exercise of judgment, the subsequent duty to quarantine for fourteen days was mandatory and, therefore, ministerial"); Leger v. Kelley, 142 Conn. 585, 589, 116 A.2d 429 (1955) (concluding that determination by commissioner of motor vehicles as to whether car was manufactured after July 1, 1937, and, if so, whether it was equipped with type of safety glass approved by him, was quasi-judicial and not ministerial, but, after that determination had been made, commissioner's duty of registering or refusing to register car, according to which determination he had reached, was ministerial, since commissioner had no discretion in the matter); Grignano v. Milford, 106 Conn.App. [648, 656-60, 943 A.2d 507 (2008] (concluding that defendant's duty to perform reasonable and proper inspection and maintenance activities on premises was discretionary because ordinance did not prescribe manner in which defendant was to do so, but duty to warn upon making discretionary determination of hazardous condition was ministerial because ordinance prescribe both duty and manner in which warning should be issued). In order to overcome governmental immunity in such cases, the plaintiff must plead and prove that the official made the discretionary determination that triggered the ministerial duty. See, Bonington v. Westport, supra, 297 Conn. 310.
In the present case, the court finds that the Suicide Prevention Policy, by its terms, resolved that staff members are not qualified to assess whether someone is suicidal and it forbids discretion or delay in sending a student, who threatens suicide, to someone who is qualified to make the assessment. The policy requires that when a staff member is presented with a situation where a student makes a statement of suicidal thinking, or it appears that an attempt at suicide is possible, that staff member is required to take certain steps. The complaint alleges that a staff member in this case was presented with such a situation, and even had a conversation with Michael about it, but failed to take the mandatory steps to protect the suicidal student. The complaint alleges that the student shortly thereafter committed suicide. Thus, to the extent that plaintiffs allege in Counts One, Two, Three, Four and Five that defendants failed to follow their own mandatory procedures after a ministerial duty was triggered, it states a viable claim upon which relief can be granted outside the scope of governmental immunity. Accord, Kolaniark v. Board of Education, 28 Conn.App. 277, 281-82, 610 A.2d 193 (1992) (school snow removal procedures created a ministerial duty); Anglin v. East Hartford, Superior Court, judicial district of Hartford, Doc. No. CV 06-5001800 (October 28, 2010, Domnarski, J.) [ 50 Conn. L. Rptr. 850] (police family violence procedures created a ministerial duty); Thomes v. Duong, Superior Court, judicial district of Hartford, Doc. No. CV 05-5001223 (March 12, 2008, Bentivegna, J.) (policy suicide prevention procedures created a ministerial duty), but see, Esposito v. Bethany, Superior Court, judicial district of New Haven, CV 06-5002923 (May 3, 2010, Corradino, J.T.R.) (school bullying/hazing procedures may create a ministerial duty, but issue should be resolved by the jury).
Nevertheless, defendants argue that if the court accepts that the Suicide Prevention Policy creates a cause of action against them, then they are protected by sovereign immunity because the policy was written at the direction of the state pursuant to state statute, General Statutes § 10-221(e). In this circumstance, they argue, they are state agents protected by sovereign immunity. Defendants' Reply Brief, p. 6 n. 1. The argument is of no avail. First, the court is not recognizing that General Statutes § 10-221(e) creates a private cause of action on which plaintiffs may proceed. The plaintiffs' cause of action in this case is negligence, a common-law cause of action, not the statute. Second, in this type of case, the applicable immunity doctrine is governmental immunity, not sovereign immunity. Purzycki v. Fairfield, supra, 244 Conn. 112.
General Statutes § 10-221(e) provides: "Not later than July 1, 1990, each local and regional board of education shall adopt a written policy and procedures for dealing with youth suicide prevention and youth suicide attempts.
Each such board of education may establish a student assistance program to identify risk factors for youth suicide, procedures to intervene with such youths, referral services and training for teachers and other professionals and students who provide assistance in the program."
Having concluded that the defense of governmental immunity does not apply to Counts One, Two, Three, Four and Five because plaintiffs have sufficiently alleged a violation of a ministerial duty, the parties further address the alternative issue of whether governmental immunity might still apply if the duty or any other duties alleged were found to be discretionary. It is now well settled that municipal employees and municipalities are immune from liability for discretionary acts except "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." (Citations omitted; internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 338, 984 A.2d 684 (2009). The court need not address those issues now because ". . . a motion to strike addressed to the entire count fails if it does not reach all of the causes pleaded." 1 Stephenson's Connecticut Civil Procedure (3rd Ed., 1997) § 72(f) citing Wachtel v. Rosol, 159 Conn. 496, 499, 271 A.2d 84 (1970). Having concluded that that the amended complaint survives the motion to strike because it alleges a cause of action based on a ministerial duty not covered by governmental immunity, the remainder of the allegations in the same counts based on other theories also survive the motion to strike. Accordingly, the motion to strike is denied as to Counts One, Two, Three, Four and Five.
On this point, defendants argue that Michael could not be considered an identifiable person subject to imminent harm because he committed suicide 10 days after the communication to the guidance counselor alleged in the complaint. Assuming, arguendo, those facts are correct, those facts cannot be considered on a motion to strike. Those facts are not alleged in the amended complaint and, therefore, cannot be considered. "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). Those facts might bear significantly on the factual issues of, inter alia, breach of duty and causation. But those are issues that concern the merits of the case and depend on the credibility of witnesses. Those are issues for the trier of fact. Whether the plaintiffs will ultimately prevail in this case remains to be seen. At this point, the court is only considering the issues of whether the complaint states a claim on the particular issues raised by the defendants in their motion to strike.
Counts Six and Seven additionally seek to hold the defendant guidance counsel liable to Michael's mother and step father for negligent of emotional distress. The plaintiffs' ministerial duty claim has no applicability to these claims. The Suicide Prevention Policy does not protect parents. By its language, it clearly protects the particular student at risk. See, Ward v. Greene, 267 Conn. 539, 549, 839 A.2d 1259 (2004). Moreover, the court agrees with the defendants that the guidance counselor's conduct vis-a-vis the parents involves discretion, as does the operations of a school generally. Heigl v. Board of Education, supra. Of course, that does not end the inquiry. Although the municipality and municipal employees are generally immune from liability in cases of negligence, as noted earlier, there is a narrow exception. "[L]iability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." (Citation omitted; internal quotation marks omitted.) Bonington v. Westport, supra, 297 Conn. 306; Grady v. Somers, supra, 294 Conn. 338.
Thus, the court must determine whether the amended complaint states a claim on the issue of whether the parents were identifiable persons subject to imminent harm. Foreseeability is the touchstone of the court's analysis in this regard. Durrant v. Board of Education, 284 Conn. 91, 101, 931 A.2d 859 (2007); see also Purzycki v. Fairfield, supra, 244 Conn. 108 n. 5 ("[t]he ultimate test of the existence of a duty to use care is found in the forseeability that harm may result if it is not exercised" [internal quotation marks omitted]). Fleming v. Bridgeport, 284 Conn. 502, 532, 935 A.2d 126 (2007); see also Brooks v. Sweeny, 299 Conn. 196, 221 n. 18 (2010). On this point, there are no allegations in the complaint suggesting such forseeability. There are no allegations as to whether the guidance counselor or any other defendant had any contact with Michael's mother or step father or even knew who they were or nor when or where they would be harmed. See Florence v. Town of Plainfield, 50 Conn.Sup. 1, 8 (2006). The burden is on the plaintiffs to allege facts sufficient to show the potential for liability on these points. See Bailey v. Town of West Hartford, 100 Conn.App. 805, 812, 921 A.2d 611 (2007). They have failed to do that in the amended complaint as to Counts Six and Seven. Accordingly, the court grants the motion to strike Counts Six and Seven due to governmental immunity for discretionary acts.
Counts Eight and Nine allege intentional infliction of emotional distress, an intentional tort, against the defendant guidance counselor in her individual capacity. There is no governmental employee immunity for such alleged "wilful misconduct." General Statutes § 52-557n(a)(2)(A); Fleming v. Bridgeport, supra, 284 Conn. 532. Accordingly, the motion to strike on the grounds of governmental immunity must be denied as to Counts Eight and Nine.
Finally, defendants argue that all counts of the amended complaint should be stricken due to immunity under General Statutes § 52-557n(b)(6). That section of the statute extends governmental immunity to municipalities and employees for injuries resulting from "the act or omission of someone other than an employee, officer or agent of the political subdivision." Id. The defendants' argument here is that they should not be liable for the death of Michael Girard because he killed himself [and he is not an employee]. Defendants' Brief, p. 24. This argument echoes their argument in Part A that contended that they could not be considered the cause of Michael's death because he killed himself. For the same reasons explained in Part A of this decision, the court finds that Michael's suicide could have been a foreseeable risk substantially caused by the defendants' failure to follow the Suicide Prevention Policy. Accordingly, the statutory immunity for intervening acts by others in General Statutes § 52-557n(b)(6) is not applicable.
In sum, the motion to strike on the grounds of governmental immunity is granted as to Counts Six and Seven only.
C
In Counts Eight and Nine, plaintiffs allege that the defendant guidance counselor should be personally liable to them for her failure to notify them of Michael's suicide threat, for failure to prevent him from going home alone and to release him only to them, and for failure to give them a written report within twenty-four hours, all as required by the Suicide Prevention Policy. They allege that she had received information that Michael was suicidal and/or had threatened to kill himself on more than one occasion; that she had confirmed in a conversation with Michael that he had threatened suicide; and, yet, she failed to follow the policy. They allege that these actions were extreme and outrageous and caused them extreme emotional distress and other injuries.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that [she] knew or should have known that emotional distress was the likely result of [her] conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Id.
"Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 267, 597 A.2d 807 (1991); Muniz v. Kravis, 59 Conn.App. 704, 708, 757 A.2d 1207 (2000).
In Estate of Smith v. West Hartford, Superior Court, complex litigation docket at Tolland, Doc. No. X07 CV 02-0080891 (July 28, 2003, Sferrazza, J.), a widow sued officers of the West Hartford Police Department for failing to take steps to prevent the suicide of her husband — also a police officer. She alleged in one of the courts that the officers, through their nonfeasance in response to signs of her husband's suicidal tendencies, intentionally caused her to suffer emotional distress. Id. She claimed that their failure to "refer [her husband] to a professional counselor . . . to remove his firearm, and . . . to reassign him to desk duty" constituted extreme and outrageous conduct. Id. Under the facts alleged, the court could not conceive that the average citizen in the community would regard the particular shortcomings as extreme and outrageous and beyond the bounds of socially acceptable behavior. Id. Reasonable minds could not disagree on that point. Id.
In light of the above, this court concludes that the facts alleged in the present case do not, as a matter of law, rise to the level of extreme and outrageous conduct. The alleged misconduct is the failure to follow a prevention policy. The facts alleged may constitute negligence, if true. However, plaintiffs have not alleged facts that amount to conduct that "exceed[s] all bounds usually tolerated by decent society . . ." DeLaurentis v. New Haven, supra, 220 Conn. 267.
Accordingly, the motion to strike as to Counts Eight and Nine is granted.
IV
Finally, plaintiffs ask the court to delay ruling on this motion to give them more time investigate their case and add more allegations, particularly on the issue of imminent harm to identifiable persons. The request is denied. This case has been pending since 2008. Any request for delay at this point is unjustified.
V
For all of the above stated reasons, the defendants' motion to strike is granted as to Counts Six, Seven, Eight and Nine. It is denied as to Counts One, Two, Three, Four and Five.