Opinion
FSTCV146023798S
11-15-2016
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#143.00)
Kenneth B. Povodator, J.
Factual and Procedural Background
This is a personal injury lawsuit brought on behalf of the minor plaintiff, who claims to have been injured at school. A somewhat unusual and complicating factor is that the student was a special education student, and for purposes of this proceeding, the critical factor is that he was essentially wheelchair-bound and was being provided assistance by an assigned paraprofessional. In the course of attempting to propel himself down a school corridor, his foot got caught between the wheelchair and the floor, causing the wheelchair to stop suddenly, thereby causing him to fall.
According to paragraph 13 of the operative complaint, " as he was willing himself down the school hallway, his foot became caught under his wheelchair. He was ejected from his wheelchair, and the wheelchair fell on top of him, and he sustained [injuries]." (The defendants' more detailed recitation claims that it was a boot that the plaintiff was wearing, that got caught.)
The minor plaintiff and his mother have sued the interim superintendent of schools, the paraprofessional/aide, the city of Norwalk, and the Board of Education of the city of Norwalk claiming negligence. The defendants have moved for summary judgment, claiming governmental immunity precludes any liability. They also assert a failure to exhaust available administrative remedies and sovereign immunity, effectively raising jurisdictional issues.
The defendants have submitted affidavits, transcripts, and other evidentiary materials in support of their contentions. The plaintiffs have not submitted any evidentiary materials, instead relying on the claimed weaknesses in the defendants' presentations, as discussed/identified in their brief in opposition to the motion. In effect, they are relying upon the well-established principle that in connection with a motion for summary judgment, the non-moving parties do not have any obligations with respect to proof, until such time as the moving parties establish at least presumptively or facially that there is no material issue of fact and that based on those proffered facts, they are entitled to judgment.
When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . . (Citation and internal quotation marks, omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
Jurisdictional Issues
" [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." Honan v. Dimyan, 85 Conn.App. 66, 69, 856 A.2d 463 (2004); Sousa v. Sousa, 157 Conn.App. 587, 599-600, 116 A.3d 865 (2015). The claimed failure to exhaust administrative remedies and the invocation of sovereign immunity implicate jurisdictional issues. Thus, despite the defendants de-emphasizing the issues by identifying and discussing these claims well past the middle of their brief (and not mentioning the issues in the formal motion), the court must address these claims at the outset.
The court believes that both the exhaustion and sovereign immunity claims are without merit, and suffer from related if not identical flaws.
A natural starting point for the claim of sovereign immunity is identification of the analytic factors that have been established by our appellate courts in this regard.
The vital test is to be found in the essential nature and effect of the proceeding. To determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court . . . If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred. Accordingly, we must determine whether " (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks and citations, omitted.) Cimmino v. Marcoccia, 149 Conn.App. 350, 357-58, 89 A.3d 384, 389 (2014).
This analysis typically is articulated in the context of a claim against a state agent or employee. In connection with a claim against municipal employees and entities, presumably the first two factors need to have some form of substitution of the recognition that the local official or entity is claimed to have been acting as a representative of the state for purposes of the dispute in issue. Seemingly, that would require a combination of the first two elements, since at the local level, the two would be inexorably linked.
For purposes of municipal analysis, the third and fourth elements appear to be the true foci of attention. In this case, it is absolutely clear that the state is not the real party against whom relief is sought. To the extent that the third and fourth elements actually are somewhat linked in a municipal setting, the court believes that in a practical sense, it is the fourth element that is typically determinative, and even more narrowly, the " control" rather than " liability" aspect of that fourth element.
Unless the state is a party, there probably are a few situations in which a suit/claim against a municipality will create direct financial liability for the state.
Quite simply, there is nothing about the outcome of this case that will impact the state, any other municipality, any other student in this school system, or even, except in the most minimal sense, the services provided to the minor plaintiff. The issue is whether at a particular time and place, the paraprofessional assigned to the minor plaintiff failed to act reasonably in the performance of her duties, and whether liability can result from such claimed negligence. There is no impact on any state program, and no direct impact on any state budgetary concern (except to the extent that the state provides some funding to municipalities for educational and special educational needs).
In this regard, the court finds the analysis in a very recent trial court decision to be thorough and persuasive. In Lopez v. City of Bridgeport, J.D. Fairfield at Bridgeport, No. CV156051932S, 2016 WL 4071711, (June 27, 2016) [62 Conn.L.Rptr. 593, ], Judge Bellis reviewed the conflicting arguments, and concluded that in an analogous (and seemingly far more egregious) situation, the claim of inadequate supervision, etc., coincidentally also with respect to a special education student's use of the bathroom, was governed by governmental immunity, not sovereign immunity.
Claiming that this incident--the paraprofessional's failure to give adequate attention to the minor plaintiff--implicates state-level concerns, trivializes the concept of sovereign immunity.
The exhaustion of administrative remedies claim is similarly flawed. There is no claim that the IEP that was implemented was somehow deficient, or that the town/board failed to implement the IEP, or anything else that would require some administrative-body attention. The issue is simply whether the paraprofessional who had been (properly) assigned pursuant to the IEP, had been reasonably attentive to her charge, or had been negligent (with such negligence proximately causing the injuries claimed to have been sustained). Are the defendants suggesting that there is a need to ask an administrative body to tell the paraprofessional that she needs to pay closer attention to the minor plaintiff? The plaintiffs are not asking for anything within the " jurisdiction" of any administrative body--they are not asking for a change in the IEP, they are not claiming that the IEP was not implemented, but rather are claiming that the IEP-mandated paraprofessional breached her duty to the minor plaintiff while she was carrying out the duties mandated by the IEP.
This is not a claimed failure to provide an appropriate educational program, and it is not a claimed failure to provide an appropriate IEP and it is not a claimed failure to implement the IEP--it does not implicate any required or appropriate administrative review.
Accordingly, both the claim of sovereign immunity and the claim of failure to exhaust administrative remedies are inapplicable to this case.
The Pleadings
The pleadings in this case have not followed the prototypical format. In the operative complaint (#110.00), instead of simply alleging that certain conduct of the individual defendants was negligent, leaving it to the defendants to assert governmental immunity as a result of the exercise of discretion, in turn resulting in the plaintiffs then asserting one or more exceptions, the plaintiffs have asserted essentially duplicative counts as to each individual plaintiff, one based on the duties to the plaintiff having been ministerial, and one expressly stating that it is applicable in the event that the court determines that there was an exercise of discretion.
That, in turn, has led to some level of uncertainty as to the precise scope of the plaintiffs' claims. In their reply memorandum, the defendants interpret certain language in the plaintiffs' opposition memorandum as constituting a concession that the duties implicated by this incident were discretionary. The court does not read the plaintiffs' memorandum as constituting such a concession, but rather perceives the language to be more in the nature of a common " even if the opposing party is partially correct" type of argument--even if the duties are deemed discretionary, the plaintiffs are entitled to prevail.
" The ministerial versus discretionary analysis is not necessary in this case. The exception to governmental immunity, specifically, that immunity does not exist when it is or should be apparent to the municipal employees that their failure to act, or the negligence would likely subject an identifiable person to imminent harm, clearly applies in this case."
Further confusion is sowed by the reference in the seventh count, Incorporated into subsequent counts, to the effect that the plaintiff was a member of an identifiable class of potential victims rather than an identifiable victim. Paragraph 10 of that count recites that the minor plaintiff " was a member of an identifiable class of foreseeable victims who were subject to imminent harm, in that: . . ." The paragraph then goes on to enumerate four claimed components of that class membership: that he was a special needs student; that he was attending public school during normal school hours; that he had been assigned a school aid to assist/care for him; and " his school aide left him unattended when he left the bathroom on May 20, 2013."
The plaintiffs misconstrue the nature of the identifiable class exception. The first three enumerated factors would define a possible class of potential imminent victims, except that there is nothing to suggest that there was a risk to all members of the class so defined. The fourth component is a risk that was purely personal to him, and therefore wholly inapplicable to anyone else, thereby negating any possible class-based exposure to a risk. Somewhat simplistically, the identifiable class exception arises when an identifiable group including the plaintiff is at risk (a risk to all class members) and the plaintiff is the unfortunate member of the class actually to have been injured.
As will be discussed below, this carries over, to an extent, into the discussion of law. The plaintiffs extensively discusses Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994) and Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), with a recognition that Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014), might apply. All three cases were identifiable class of victims cases (Burns --students crossing outside area of school, covered by ice; Purzycki --students running in hallway; Haynes --students in locker room), thereby focusing on an issue not present here. See, e.g., Cotto v. Board of Education, 294 Conn. 265, 274-80, 984 A.2d 58 (2009), recognizing and discussing distinction between identifiable victim and identifiable class of victims; see, also, Jahn v. Board of Education, 152 Conn.App. 652, 99 A.3d 1230 (2014).
The plaintiffs state in their brief " [e]ven if the Haynes standard is controlling . . ." Haynes explicitly overruled portions of Burns and Purzycki . Therefore, as the most recent pronouncement on the subject and in light of the explicit overruling of key portions of the earlier cases, Haynes must be deemed controlling, to the extent that it is applicable.
Ministerial Duties
A. General Principles
As discussed above, the plaintiffs have taken an " it really doesn't matter" approach to ministerial versus discretionary functions, in responding to the defendants' motion for summary judgment. For purposes of the court's analysis of the issues presented by the motion, it does make a difference, particularly in this case, where there are separate counts alleging ministerial and discretionary functions/duties as to individuals. Notwithstanding the absence of any affirmative resistance to the motion for summary judgment with respect to ministerial duties, the court must nonetheless determine whether the defendants have carried their burden in establishing the complete lack of liability of the claim, in order to entitle them to summary judgment on such counts. (Unless and until the defendants have carried their burden, there is no burden on the plaintiffs to demonstrate that there is a material issue of fact.)
In Heigl v. Board of Education, 218 Conn. 1, 587 A.2d 423 (1991), the court acknowledged that supervisory functions relating to students were inherently discretionary. Such when case law, such as Burns and most recently Haynes, have recognized that the general supervisory functions relating to students can still implicate potential liability if there is an imminent risk of harm. More narrowly, cases such as Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006) have recognized the potential for liability to an identifiable victim--a student--if the necessary criteria for identifiable victim liability are satisfied. At least presumptively, then, duties relating to training, supervision, etc., are supervisory and discretionary in nature.
This issue is controlled by cases such as Violano v. Fernandez, 280 Conn. 310, 323-24, 907 A.2d 1188, 1196 (2006) and Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). The plaintiffs have not identified " any city charter provision, ordinance, regulation, rule, policy, or any other directive" (Violano, supra, 280 Conn. 323) controlling the conduct of the aide--and especially controlling the conduct of the interim superintendent--at the time and place of the injury. Other than the general obligation of the aide to accompany, assist, etc. the minor plaintiff, there is no " thou shalt" command that has been identified as existing and having been violated. Especially noteworthy in this case, there is no claim that the aide had been directed never to allow the minor plaintiff to self-propel his wheelchair and no claim that the aide had ever been directed never to leave the immediate proximity of, or actual control over, the wheelchair. (The situation is even more pronounced with respect to the superintendent.)
B. The Superintendent
The plaintiffs' efforts to cast the duties as ministerial, based on the existence of an IEP for the minor plaintiff, does not suffice--it is more in the nature of a non-sequitur. The allegations in paragraph 14 of the amended complaint do not address the content or sufficiency of the program but rather claim negligence relating to the inherently discretionary supervision and training of the aide--which is not even negligence in implementation of the program itself.
Note that if in fact there were proper claims of improper or inadequate implementation of the IEP, that might well trigger the claims of failure to exhaust administrative remedies which the court otherwise has rejected.
It is axiomatic that the court is to read the pleadings in a common-sense fashion, " not contorted in such a way so as to strain the bounds of rational comprehension, " (internal quotation marks and citation, omitted), State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 582, 142 A.3d 1079 (2016). See, also, Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001), in which the court rejected the plaintiff's effort to claim that negligence was the basis for claimed liability when the facts alleged actually established that the proper claim should have been a statutory highway defect claim. Thus, the court is not bound by the conclusory characterization of the conduct of any defendant as being ministerial, if the facts alleged (and the evidence. submitted) mandate characterization as discretionary.
It is perhaps helpful to recite paragraph 14 in full, as it is essentially the heart of the claim of ministerial duty: " [the minor plaintiff's] injuries were caused by the negligence of the defendant, Tony Dadonna, or his agents, servants or employees, in one or more of the following ways in that the defendant, or his agents, servants or employees violated duties that they owed to the plaintiff, which duties were ministerial in nature, and not discretionary in that he, or they, failed to adhere to the statutory requirements of Connecticut General Statutes, section 10-76d, to provide 'appropriate educational programs' for [the minor plaintiff] in that . . ."
That introductory assertion is followed by recitation of specifications of claimed negligence. The first three specifications clearly are discretionary functions--failure to properly train the aide, failure to properly supervise the aide, and failure to properly monitor the aide. The fourth specification asserts a failure " to adhere to the written requirements of the I.E.P. of the [minor plaintiff], " but there is no mention of any deficiency other than the already-identified failures to train, supervise and monitor the aide. (Or, to put it differently, the fourth specification is purely conclusory.)
The fifth specification also needs to be quoted in full. " He, or his agents, servants and employees, failed to train, supervise or monitor [the minor plaintiff's] aide in connection with how to protect the [minor plaintiff] as he was leaving the Boy's Room in Ponus Ridge Middle School." Again, this reverts to the notion of a failure to " train, supervise or monitor" the aide, coupled with a conclusory reference to protection of the minor plaintiff as he was leaving the rest room. This adds the numerous questions of what protection the minor plaintiff might have needed when he exited a restroom, how one trains, supervises or monitors an aide with respect to protecting someone exiting a restroom, and how any of this is anything but discretionary (assuming such a duty even exists), when focusing on a school superintendent. As noted earlier, there is no claim that the aide had been directed never to allow the minor plaintiff to self-propel his wheelchair and no claim that the aide had ever been directed never to leave the immediate proximity of, or actual control over, the wheelchair, and no claim that the IEP included expressly or by implication any such obligation.
The general allegations are consistent with this characterization. In paragraph 9, quoting the IEP, states that the minor plaintiff " requires the assistance of a paraprofessional to assist with his transportation and safety within school. He continues to require door-to-door transportation." Paragraph 11 recites that the aide " was assigned to stay with him throughout the school day." Paragraph 12 recites that his aide " accompanied him to the bathroom and waited in the school hallway." There is nothing specific in a ministerial sense in any of these allegations, particularly with a focus on the superintendent. The minor plaintiff was provided with somebody to assist him, and the level of assistance implicates some level of discretion, particularly in the absence of any claimed mandate that the aide was required to push the wheelchair or otherwise engage in specified conduct. And at the risk of being unduly repetitious, the superintendent is necessarily and inherently several steps removed from the actual conduct occurring within the school.
Are the plaintiffs truly suggesting that the superintendent had a personal duty to supervise and monitor this aide--and therefore, by implication, every aide and every teacher at every minute of the school day? (" It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 778, 607 A.2d 418 (1992).) Or. are they suggesting that the superintendent can be vicariously liable for the conduct of every aide and every teacher? No authority for such a proposition has been offered; cf., Burns, supra, 228 Conn. 640, 648 n.6 (recognizing but declining to address issue of vicarious liability of superintendent and others).
There being no plausible claim of (or evidence of) a ministerial duty, the court must grant summary judgment as to the claims of a ministerial duty directed to the individual defendant.
C. The Other Defendants
The second through sixth counts all rely upon the viability of the first count. They assert vicarious liability on the part of the city and the Board of Education, and they also assert claims of the minor plaintiff's mother to the extent that she claims to have incurred bills arising from the injuries to the minor plaintiff. Accordingly, all of these claims are derivative in one fashion or another, and cannot survive without a viable first count. The defendants, then, are entitled to judgment on the second through sixth counts.
Discretionary functions
A. General Principles
As identified above, there is at least some level of confusion as to the precise nature of the plaintiffs' claims relating to the exception to governmental immunity that is applicable, and some level of confusion as to the appropriate authorities, such that it is especially useful to " set the stage" before any substantive discussions.
As noted above, the plaintiffs have invoked the identifiable class of victims exception to governmental immunity (for discretionary acts) when in fact the situation actually implicates the identifiable victim exception. The defendants do not appear to have been misled, as in the brief in support of the motion for summary judgment, at page 4, the defendants correctly identify the appropriate exception as the identifiable victim exception.
Also as noted above, to the extent that the plaintiffs rely upon Burns and Purzycki, with only passing mention of Haynes, they are relying upon authorities that are largely inapplicable, with the additional necessary observation that with respect to the concept of imminence, Haynes overruled the earlier decisions.
That however leads to an issue that needs to be addressed. Haynes was an identifiable class of victims case, and overruled, in part, two earlier identifiable class of victims cases (Burns and Purzycki ). The decision focused on the concept of imminence, but left unaddressed whether the " new" definition of imminence only is applicable to identifiable class of victims cases, or more generally is applicable to all such exceptions--identifiable victims and identifiable class of victims. This possible distinction is a necessary consequence of the existence of cases that attempt to distinguish the analysis applicable to identifiable victim cases from the analysis applicable to identifiable class of victims cases (e.g., Cotto and Jahn, supra ). For the sake of clarity, the court believes that it is important to explain why the definition of imminence as articulated in Haynes is also applicable in identifiable victim cases.
In Haynes, the court stated: " Accordingly, the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." 314 Conn. 322-23. This replaced the formulation in Burns to the effect that " a harm is imminent when the condition causing the risk of harm is temporally limited and the risk of harm is 'significant and foreseeable, '" (with the later elucidation that " this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly 'treacherous' area of the campus, " 228 Conn. 650).
That same formulation, however, had been used on numerous occasions in connection with identifiable victim cases.
A recent starting point: " This would run counter to the purpose of governmental immunity, which is to protect a municipality from liability arising from a municipal officer's negligent, discretionary acts unless the officer's duty to act is clear and unequivocal." Coley v. City of Hartford, 312 Conn. 150, 168, 95 A.3d 480, 492 (2014) (in turn, quoting from Edgerton v. Clinton, 311 Conn. 217, 228 n.10, 86 A.3d 437 (2014).
Edgerton, in turn, cited Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191, 197 (2006), wherein the court stated:
We have identified three exceptions to discretionary act immunity. 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.
Doe, in turn, referred to the seminal case of Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379, 1382 (1982), where the court had stated: " There is also authority for the proposition that where the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal."
Numerous cases outside of this " chain" also have used the " clear and unequivocal" terminology:
Thus, we will permit official liability for discretionary acts only if 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 . . . The issue of governmental immunity is a question of law, over which we exercise de novo review. Brooks v. Sweeney, 299 Conn. 196, 221-22 n.18, 9 A.3d 347, 364 (2010).
Similarly, in Bonington v. Town of Westport, 297 Conn. 297, 307, 999 A.2d 700, 708 (2010), the court stated: " 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." (Bracketed word as in cited case.)
In other words, the concept of " clear and unequivocal" duty to act was not " new" as of Haynes-- if anything, Haynes would appear to be a return to that formulation in identifiable class of victims cases, where the need for some practical limits led the court, in Burns, to impose requirements relating to the brevity or transient nature of the risk.
Although the language, then, appears to be the same in this regard, it is the method(s) of analysis that differ. In identifiable victim cases, there has been a recognition of the interrelatedness of the elements.
For the harm to be deemed imminent, the potential for harm must be sufficiently immediate. In fact, the criteria of identifiable person and imminent harm must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person. See, e.g., Evon v. Andrews, supra, 211 Conn. at 508, 559 A.2d 1131 (the class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of identifiable persons) . . . For the purposes of the imminent harm exception . . . it is impossible to be an identifiable person in the absence of any corresponding imminent harm. Indeed, we have found imminent harm only in the clearest cases. (Internal quotation marks and citations, omitted.) Cotto v. Board of Education, 294 Conn. 265, 276, 984 A.2d 58 (2009).
By contrast, in identifiable class of victims cases, the risk typically (almost necessarily) is evaluated in more isolated terms, precisely because there is no identifiable person at imminent risk of harm--the risk is evaluated without any particular person in mind. Thus, in Haynes, the question is (would be) whether the defective locker presents a hazard to students in the locker-room, without regard to the identity of particular students in the locker-room at any particular time.
Haynes can be used to illustrate the difference (hypothetically). In the actual case, knowledge of the defective condition of the lockers, coupled with knowledge of horseplay in the locker-room, presented a risk knowable/identifiable to any/all school personnel who might have observed these conditions, which would be a risk to all students who might use the locker-room in connection with school-related activities. If an individual staff member had observed the minor plaintiff in the vicinity of the defective locker, along with observing ongoing horseplay, then the minor plaintiff could have been an identifiable victim. Note that in the latter scenario, there might not necessarily be a requirement that the student was exposed to the risk because of a school-related activity.
A further refinement focusing on the inter-relatedness of risk and victim, for an identifiable victim analysis--if the defective condition were 6 feet from the ground, then a student who was 5 feet 6 inches tall might not be an identifiable (potential) victim, even if observed in the area of the defect, because there would be no apparent risk to him/her--but the condition still might be a risk to an identifiable class of victims (taller students using the locker-room during school activities).
Having identified the legal framework, the court now can address the particular claims.
B. The Superintendent
Pursuant to General Statutes § 10-157, " (a) Any local or regional board of education shall provide for the supervision of the schools under its control by a superintendent who shall serve as the chief executive officer of the board. The superintendent shall have executive authority over the school system and the responsibility for its supervision." The duties of the superintendent, as contemplated by the statute, are discretionary in nature. In Heigl v. Board of Education, 218 Conn. 1, 587 A.2d 423 (1991), the court recognized the inherently discretionary nature of supervision of students.
As will be discussed below, a case just released by the Connecticut Supreme Court is but the most recent one to cite this principle.
More specifically, Paragraph 4 of the seventh count states that the superintendent had duties including " the training, management, operation, supervision and control of the employees of the Norwalk Public schools, including the employees of the Ponus Ridge Middle School." All of these functions are inherently discretionary/supervisory in nature, especially in the absence of identification of any relevant or applicable " city charter provision, ordinance, regulation, rule, policy, or any other directive" (Violano, supra ) that might allow characterization of any aspect of his function as ministerial, as relates to this case.
Paragraph 11 alleges the various ways in which the plaintiffs claim that the superintendent acted negligently with respect to discretionary functions. There are two fundamental problems with those allegations. First, the allegations are framed in terms of what he did, personally, or through " his agents, servants or employees." While a municipality may be liable, under General Statutes § 52-557n for the conduct of its agents, servants or employees, there is nothing in the statute, nor in governmental immunity jurisprudence independent of the statute, that seemingly allows for individual vicarious liability in that fashion. In other words, although there could be liability for negligent training or negligent supervision of a subordinate, the mere existence of a supervisor-subordinate relationship does not create a basis of liability for the supervisor simply based on the subordinate's negligence, without more (or at least the plaintiffs have not cited any authority for such proposition).
See, also, previously identified footnote 6 in Burns .
Further, the claims of discretionary negligence track the ministerial claims, except that instead of focusing on the specific aide assigned to the minor plaintiff, they are more broadly worded: most are couched in terms of the superintendent having negligently trained, supervised, and monitored " the aides responsible for the health and welfare of students unable to care for themselves, including the aide assigned to the [minor plaintiff]."
The court already has noted that the plaintiffs inappropriately invoke the identifiable class of victims exception rather than the identifiable victim exception, and these allegations do not fit either formulation. There is no identified risk to anyone other than the minor plaintiff, associated with the circumstances that are claimed to have led to his injuries. Further, there is no identified risk even to the minor plaintiff that has been identified as known or knowable to the superintendent. Doe v. Petersen emphasizes the need for actual knowledge. Even on a more relaxed standard of constructive knowledge, there is nothing asserted in the complaint that might form the basis for constructive knowledge of any risk existing at or around the time that the minor plaintiff was injured. It defies common sense to believe that the superintendent had any knowledge or notice that the aide might engage in protracted conversation with another staff member at the school. There is no allegation that the superintendent was within the building on the day of the incident or had any information whatsoever relating to the manner in which the aide performed her duties, generally, or the manner in which she was acting immediately before the incident leading to the minor plaintiff's claimed injuries. Indeed, there is no evidence or claim that he knew anything relevant to the claimed negligence of the aide, being asserted here.
In Doe v. Petersen, the court seemed to require actual knowledge--the defendant of concern had prevented the plaintiff from imparting knowledge of a situation and that lack of knowledge was a basis for declining to allow liability to be found. More recent cases, however, seem to recognize the possibility of liability based on constructive knowledge, including Haynes, supra, and Edgerton v. Clinton, 311 Conn. 217, 86 A.3d 437 (2014). In the just-released decision in Strycharz v. Cady, 323 Conn. (2016), discussed below, the court does not limit potential liability to situations involving actual knowledge.
The superintendent, then, is entitled to summary judgment as to discretionary claims.
C. The Other Defendants
The eighth through twelfth counts all rely upon the viability of the seventh count. They assert vicarious liability on the part of the city and the Board of Education, and they also assert claims of the minor plaintiff's mother to the extent that she claims to have incurred bills arising from the injuries to the minor plaintiff. Accordingly, all of these claims are derivative in one fashion or another, and cannot survive without a viable first count. The defendants, then, are entitled to judgment on the eighth through twelfth counts.
The thirteenth and fourteenth counts, however, are not simply derivative of the earlier counts, but plead claims directly against the city of Norwalk based on § 52-557n. As the fourteenth count is derivative of the thirteenth, the court will focus on the thirteenth count.
Paragraph 10 sets forth the claims of negligence, stating that the municipality is liable pursuant to the statute for the " negligent acts or omissions of its employees" and then specifies the alleged negligent conduct. The negligent conduct was that they
(1) failed to have proper protocols for the care of students who suffer from disabilities; (2) failed to reasonably assist [the minor plaintiff] when he left the Boy's Room on May 20, 2013; (3) failed to have proper protocols for assisting disabled students going to or returning from the bathroom or lavatory; (4) failed to reasonably follow [the minor plaintiff] when he left the Boy's Room on May 20, 2013; (5) failed to reasonably stop or slow down [the minor plaintiff] when he left the Boy's Room on May 20, 2013; (6) failed to stop or halt the aide's conversation with another person so as to allow the aid to assist [the minor plaintiff] when he left the Boy's Room on May 20, 2013.
It is readily apparent that (1) and (3) are not incident-specific, but rather state general claimed failures that include the incident in question. Refining that still further, (1) is so general/vague as to be essentially meaningless, particularly given the existence of (3) which narrows (1) to a realm that is at least related to the subject incident. Or, to put it another way, (3) is the only subset of (1) that might have any bearing on this case.
Even so narrowed, (1) is at best discretionary, if not illusory. What does it mean to claim that there should have been " proper protocols for assisting disabled students going to or returning from the bathroom or lavatory" ? Particularly given the context of a student with an IEP--and remembering that the " I" requires a focus on the individual's needs--is the claim that there should have been a " one-size-fits-all" protocol (notwithstanding the mandate for individualized programs), or is the claim that there should have been a generalized protocol that was so non-specific as to be applicable to everyone while providing guidance to no one? Drilling down even further, is there any protocol that the plaintiff's claim should have been in place, not encompassed by the remaining (quoted above) subparagraphs in paragraph 10?
Assuming that any or all of the subparagraphs (other than (1)) identify a cognizable duty that was breached, the plaintiffs nonetheless must address the issue of imminence of harm. The complaint makes it clear that the accident occurred in a manner as described in paragraph 9: " [The minor plaintiff] attempted to return to his classroom on his own, but as he was wheeling himself down the school hallway, his foot became caught under his wheelchair. He was ejected from his wheelchair, and the wheelchair fell on top of him and he sustained [injuries]."
The most obvious form of possible assistance would have been if the aide had actually been expected to push the wheelchair down the hallway. Another possible form of assistance, even if the aide had not been expected to push the wheelchair, would have been to ensure no obstructions, including potentially assisting the minor plaintiff in navigating down a crowded hallway, by clearing a path. The defendants have submitted evidence, however, that the minor plaintiff insisted on propelling himself in his wheelchair, and was able to utilize bathroom facilities without any direct assistance. The incident occurred during a class period, i.e. during a time when there were few or no other students in the hallway. The plaintiffs have not submitted any evidentiary materials suggesting any factual issue relating to the minor plaintiff's general insistence on propelling himself, and they have submitted no evidentiary materials suggesting any need for assistance in navigating through the hallway due to other students or other possible obstructions. The plaintiffs do not explain how a failure to follow the wheelchair, or a failure to terminate a conversation earlier (other than as might be implicated by other specifications) had anything to do with this occurrence. Indeed, as to all of these specifications, there is no indication as to how or why anything that might have been done by the aide, or any other possible city or board employee might have prevented the minor plaintiff's foot from getting caught under the wheelchair, with the possible exception of a scenario in which the aide was actually pushing the wheelchair--but again, that is something negated as a factual matter by the defendants and not affirmatively asserted as a factual matter by the plaintiffs.
Returning to the Haynes -based discussion of imminence, perhaps the ultimate question is the identification of the imminent risk--a risk that was so apparent as to create a clear and unequivocal duty to act. Given the knowledge of the aide, which included the almost-universal desire of the minor plaintiff to propel himself in his wheelchair, was the risk of a wheelchair accident so great as to create a clear and unequivocal duty to act? What aspect of the situation created such a clear and unequivocal duty to act--how would or should the aide have known that a failure to terminate her conversation sooner might lead to an injury to the minor plaintiff?
Tellingly, none of the specifications set forth in paragraph 10 states that the negligence consisted of a failure of the aide to propel the wheelchair, the most obvious conduct that might possibly have had a bearing upon the occurrence of the incident. Following the wheelchair would not have had any impact on the occurrence (unless the claim is that her reflexes would have enabled her to catch the chair, mid-topple). Telling the minor plaintiff to slow down or stop would have no causal relationship to his foot getting caught--unless, again, the aide were to take over the obligation to propel the wheelchair. (Nor is there a claim that had the paraprofessional been present, the minor plaintiff would have propelled his wheelchair at a slower (safer) speed--which in turn would require an assertion and/or evidence that speed was actually a factor in causing the injury.) Terminating a conversation with another staff member might have facilitated the aide being closer to the wheelchair, but again would have nothing to do with whether the minor plaintiff, in propelling himself in his wheelchair, would get his foot caught under that wheelchair or would have sustained the resulting injuries.
The court recognizes that for liability, it was not necessary for the aide to have foreseen the specific mechanism for the injury. However, there must have been some basis on which the aide could have/should have foreseen an imminence of harm if she did not act otherwise, and act promptly. Other than with the benefit of 20-20 hindsight, there was no clear and unequivocal duty to act.
In Williams v. Housing Authority of City of Bridgeport, 159 Conn.App. 679, 124 A.3d 537 (2015); cert. granted, 319 Conn. 947, 125 A.3d 528 (2015), the Appellate Court undertook its first attempt to interpret and apply Haynes, and especially the " clear and unequivocal duty" aspect of that decision:
Third, the likelihood of the harm must be sufficient to place upon the municipal defendant a clear and unequivocal duty to alleviate the dangerous condition. The court in Haynes tied the duty to prevent the harm to the likelihood that the dangerous condition would cause harm. Thus, we consider a clear and unequivocal duty to be one that arises when the probability that harm will occur from the dangerous condition is high enough to necessitate that the defendant act to alleviate the defect. 159 Conn.App. 706.
Focusing on what the paraprofessional could see and what she knew, at (immediately before) the time of this incident, there was no " clear and unequivocal duty to alleviate [a] dangerous condition" --assuming that leaving the minor plaintiff in his wheelchair without proximate supervision/presence to be a dangerous condition. On what basis would/could a reasonable person determine that " the probability that harm [would] occur" was so great as to mandate essentially immediate action " to alleviate the defect" ? (The court is using the phrase " essentially immediate" intentionally--absent a claim that the aide was intending to abandon the minor plaintiff, the sole issue would be how quickly she terminated her conversation and moved towards accompanying/supervising the minor plaintiff.)
There is nothing that takes this situation out of the category of a harm that might occur at any time if ever, with no imminent quality--either in a dictionary sense or in a Haynes sense. Indeed, although it is not clear that it is anything more than a reiteration of the always-present requirement of causative link (proximate cause), in Wiilams, immediately before the recitation of the " Third" requirement as quoted above, the court had stated: " Second, the alleged dangerous condition must be likely to have caused the harm suffered by the plaintiff. A dangerous condition that is unrelated to the cause of the harm is insufficient to satisfy the Haynes test." Again, absent direct control over the wheelchair by propelling it, or by preventing the minor plaintiff from operating the wheelchair at an excessive speed, there is no possible causative relationship between the claimed inattention to the minor plaintiff in his wheelchair and the occurrence of the accident--the minor plaintiff's foot (or boot) getting caught between the wheelchair and floor, causing the wheelchair to stop abruptly and thereby ejecting the minor plaintiff onto the floor.
" New" Caselaw
The foregoing analysis is consistent with the just-released Supreme Court decision in Strycharz v. Cady, 323 Conn. (2016) (officially released on November 15, 2016).
The court engaged in a lengthy discussion before concluding (affirming) that supervision of school personnel by school supervisory personnel was inherently discretionary. The court reaffirmed that a ministerial duty required some level of objective directive, eliminating any discretion as to performance. Unlike Strycharz, where there was a question as to whether teachers had actually been assigned to certain protective functions (with the assignment being deemed a ministerial function), here there is no question but that the aide had been assigned to assist the minor plaintiff. Conversely, the plaintiffs have not identified any prescribed manner in which the aide was supposed to perform her duties, in general or in particular in relation to the minor plaintiff's use of a bathroom and subsequent return to the classroom.
The court also focused on the proper application of its recent decision in Haynes .
In doing so, we expressly observed that our statement in Evon that a harm is not imminent if it could have occurred at any future time or not at all was not focused on the duration of the alleged dangerous condition . . . but on the magnitude of the risk that the condition created . . . Thus, in accordance with the implicit rationale of Evon, we concluded that the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm. (Internal quotation marks and citations, omitted.)
A number of the later footnotes in the decision also are informative. In footnote 33, the court quoted a dictionary definition of imminent: " See, e.g., Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) p. 621 (defining 'imminent as, inter alia, 'hanging threateningly over one's head')." Footnote 36 further emphasized the specificity of an imminent harm: " Our case law makes clear, however, that a plaintiff seeking to invoke that exception must demonstrate that the defendants were aware of the specific danger alleged to have caused the plaintiff's injuries."
Putting matters into perspective, the court noted the contours of a court's inquiry, in footnote 35 (relying in part on Haynes ).
" We further emphasized that, because [a] condition that is not an imminent harm in one context may be an imminent harm in another context, the determination of whether a harm is imminent should include an examination of all facts and circumstances surrounding the dangerous condition, including the characteristics of the persons who are likely to be exposed to it [including a child's age and its relationship to] understanding and appreciation of danger)." (Internal quotation marks and citations, omitted.)
Again, in the current case, the issue relates to a middle school student who has relied upon a wheelchair for an extended period of time, and who, according to the unchallenged evidence, preferred to be allowed to propel himself through school corridors. In such a context, what was " the specific danger alleged to have caused the plaintiff's injuries" that was or should have been apparent as being imminent (" hanging threateningly over [the minor plaintiff's] head")? The court alluded to the importance of " the magnitude of the risk that the condition created" (quoting, in turn, Haynes )--what was the magnitude of the risk associated with a delayed response to the minor plaintiff indicating that he was through with his use of the bathroom and wished to return to class?
Conclusion
At the outset, the court must emphasize that its decision should not be taken as approval or acceptance of the conduct of the aide. The court's function is not to evaluate her conduct except to the extent that there are liability issues predicated on that conduct.
The court has rejected the claims of the defendants that their conduct is immunized by sovereign immunity, or that the failure to seek administrative review precludes any form of judicial relief. Conversely, the court has rejected the plaintiffs' claims that the conduct of the aide, under the circumstances of this case, implicated ministerial obligations. While an IEP might well prescribe in great detail the nature of the duties of a paraprofessional assigned to a student, or other ministerial-invoking standards might exist, no such source of proscribed conduct has been identified, as is relevant to this case. There is no suggestion that the minor plaintiff required such intensive supervision as not to permit the aide to leave his side for any nontrivial interval of time, with the corresponding obligation to resume closely monitoring the minor plaintiff after any interruption in such close-monitoring. There is no claim that the aide was required to propel the wheelchair and there is no claim that that was the usual practice; the defendants have submitted evidence negating any such possibility.
Certainly the aide's seeming prioritization of her conversation over her duties could provide a basis for a claim of a lack of reasonable/due care. The problem, in this governmental immunity context, is that the issue of governmental immunity does not arise unless there is a claimed or actual lack of good judgment, where it is the very existence of a judgment-based choice that invokes governmental immunity. The plaintiffs, as noted, have chosen not to submit anything of an evidentiary nature to the court, such that the evidence of the minor plaintiff's preference (insistence?) on not being assisted in propelling his wheelchair is an undisputed fact, as is the lack of any need for any direct assistance to the minor plaintiff with respect to movement in school corridors, except perhaps ensuring a clear path during busy/congested times--and this incident did not occur in such a circumstance.
The evidence presented to the court, without any dispute by the plaintiff, is that there was nothing out of the ordinary in terms of risks that were or should have been apparent immediately preceding this incident. There is nothing in the record that would establish even a possibility of a clear and unequivocal duty to act based on the known or observable risks. (The superintendent, of course, wasn't even on the scene.) The plaintiffs do not identify what the defendant would/should/could have done to prevent the injury, had she terminated her conversation sooner--effectively rendering any negligence more amenable to characterization as condition rather than cause, a distinction recognized in Mahoney v. Beatman, 110 Conn. 184, 195-96, 147 A. 762 (1929). That distinction finds application in exceptions to governmental immunity, as articulated in Williams with its recitation of the post- Haynes prongs of the imminent victim (class of victims) exception to governmental immunity as including a causative linkage.
As quoted earlier: " Second, the alleged dangerous condition must be likely to have caused the harm suffered by the plaintiff. A dangerous condition that is unrelated to the cause of the harm is insufficient to satisfy the Haynes test." Williams, supra, 159 Conn.App. 706.
All of the derivative claims are, by virtue of their status as derivative claims, dependent upon the viability of an underlying claim of liability of an actor such as the aide or superintendent. Whether they are based on statutory indemnification or based on statutory liability under § 52-557n, there can be no vicarious liability without underlying liability, and no such liability exists.
Spears v. Garcia, 66 Conn.App. 669, 785 A.2d 1181 (2001); aff'd, 263 Conn. 22, 818 A.2d 37 (2003), recognized the ability to sue the municipal-principal directly, but did not obviate the need to demonstrate actionable negligence (liability) on the part of the agent/employee.
For all of these reasons, then, the motion for summary judgment is granted as to all defendants and as to all counts.